32878 NAFR Syed Abid Ali S/o Late Syed Wahid Ali, Aged about 53 yeas v. 1. Shivkumar Satnami S/o
Case Details
1 HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 53 of 2012 2025:CGHC:32878 NAFR Syed Abid Ali S/o Late Syed Wahid Ali, Aged about 53 yeas, R/o Neharpara, Tah. And Dist. Raipur C.G. ... Appellant (s) versus 1. Shivkumar Satnami S/o. Shri Baisakhu Satnami, aged about 37 years, resident of village and post Nardaha, Tehsil Arang, District Raipur (C G) 2. State of Chhattisgarh through the Collector, Raipur (CG) ... Respondent(s) For Appellant (s) : Mr. Sameer Uraon with Mr. K.N. Singh, Advocate. For Respondent(s) : Mr. Raghvendra Pradhan with Mr. Shikhar Sharma, Advocate For State
Legal Reasoning
: Mr. T.N. Nande, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 15/07/2025 1. This first appeal has been filed by the appellant against the judgment and decree dated 08.02.2012 passed by learned 3rd Additional District Judge, Raipur in Civil Suit No. 111-A2011 wherein learned trial court has partly allowed the suit and directed to refund of Rs. 1 lakh 35 thousands with 6% interest from the date of filing of the suit till the actual payment is made but has declined the claim of the plaintiff for specific performance of contract and dismissed the counter claim filed by the plaintiff. SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.08.19 12:36:14 +0530 2 2. The parties have been described as per their description in the suit before the trial Court. 3. Facts of the case in brief, are that the plaintiff has filed the suit for specific performance of contract mainly contending that (a) the defendant has executed an agreement for sale of property situated at village Patharchuva, P. H. No. 06, R.N. M. Sandi, Tahsil Palari District Raipur bearing khasra No. 163, area 0.0600 hectare on 17.09.2009 for sale consideration of Rs. 1,35,000/- and he has paid Rs. 1 lakh as an advance. It is also case of the plaintiff that, as per the terms of agreement dated 17.09.2009, the sale deed has to be executed within 10 months from the date of agreement i.e. upto 17.07.2010. It is also agreed that before execution of sale deed all the relevant documents with regard to the suit property have to be obtained by defendant No.1 i.e. B-1, khasra, Panchsala, Map etc. The plaintiff has made an attempt to execute sale deed but despite persuasion, the defendant failed to perform his part of contract which has necessitated the plaintiff to serve notice on 15.06.2010 through registered post but despite receiving of notice the defendant did not perform his part of contract, as such the defendant filed the suit before the trial Court. (b) It is also contended that the plaintiff is ready and willing to perform his part of contract but the defendant has deliberately not performed his part of contract, as such prayed for directing the defendant to perform his part of contract by executing sale deed in his favour and also prayed for grant of permanent injunction restraining the defendant from not to alienate the property to anyone except plaintiff. 3 4. The defendant No.1 has filed the written statement denying the allegation made in the plaint accept the execution of agreement on 17.09.2009 mainly contending that (a) it is denied that the sale consideration was fixed @ 1,26,000 per acre and at the time of execution of agreement he has taken Rs. 1, 30,000/- as an advance. It has also been contended that sale consideration was agreed between the parties @ Rs. 3 lakhs per acre, Rs. 1, 20,000/-was mentioned as advance and three months time was fixed for execution of sale deed. It has also been denied that as per terms of agreement, sale deed has to be executed within 10 months. It has also been contended that three months more time has been granted for execution of agreement but he has not made any attempt to perform his part of contract and he has deliberately avoid execution of sale deed. The defendant has also filed counter claim wherein it has been stated that agreement was executed fraudulently, voidable and viodable contract. It has also been contended that the agreement was not executed within time period, therefore, right of the parties has already been extinguished and would pray for dismissal of the suit. 5. The plaintiff to substantiate his case has examined himself as (PW-1), Kheduram (PW-2) and exhibited documents namely agreement (Ex.P-1), photocopy of agreement (Ex.P-1c), Notice (Ex.P-2), Acknowledgment (Ex.P- 3), copy of B-1 (Ex.P-4), copy of Khasra (Ex.P-5), Map (Ex.p-6), Information (Ex.P-7), application dated 25.08.2010 (Ex.P-8). Defendants examined Shive Kumar as (DW-1) and Shyam Ratan as (DW-2). 6. Plaintiff (PW-1) in his examination-in-chief by way of an affidavit admitted as provided under Order 18 Rule 4 CPC wherein he has reiterated the stand 4 taken by him in the plaint. This witness was extensively examined wherein he has admitted that there was negotiation with regard to sale consideration of Rs. 3 lakh and he has also stated that he has paid Rs. 1, 35,000/- to the plaintiff and not Rs. 1,20,000/-. He has also admitted in paragraph 23 that he owned the land at village Patharchuva where he is doing agriculture and he is not paying income tax. He has also stated that he has paid Rs. 1,30,000/- from the agriculture income but he has not filed any document. He has also stated that he has withdrawn the amount from Rajnandgaon Branch and in Rajnandgaon he owned agriculture land. He has also stated that with regard to paper publication in the news paper no document has been produced by him before the trial court. He has also stated in paragraph-26 of his examination-in-chief that at the time of registration he has sufficient fund for execution of sale deed but no documents has been produced in the Court. He has further stated that at village Pathardhuva he has owned 1 ½ acres of land and village Machanpara he has owned above 5 acres of land but no document has been produced by him. 7. The plaintiff has examined one Khedulal Verma (PW-2) who has supported the case of the plaintiff. The said witness was cross examined by the defendant wherein he has admitted that at the time of execution of the agreement, he was working as an agent and he has negotiated with the defendant for sale consideration and the plaintiff has not done any negotiation with the defendant. He has denied that an agreement for suit property was settled between the parties at Rs. 3,00,000/- per acres and time period was fixed within three months has been extended to 10 months therefore, 5 defendant No.1 has refused to execute sale deed. He has also denied that the plaintiff made contract with him for execution of sale deed. 8. The defendant examined himself as DW-1 and in his examination in chief he has reiterated the stand taken by him in the written statement as well as in the counter claim. 9. Learned trial Court on the basis of evidence, material on record has partly allowed the suit by directing to refund Rs. 1,35,000/-with 6% interest from the date of filing of the suit till the actual payment is made and remaining prayer of the appellant was denied. Being aggrieved with this judgment, the plaintiff has filed the instant first appeal. 10. Learned counsel for the appellant would submit that the trial Court has committed illegality in recording the finding that burden lies upon the plaintiff to produce the document regarding readiness and willingness and no cross examination to this effect was done by the defendant No.1 even regarding sources of income he has categorically stated that he has owned 1 ½ acres of land at village Patharduva and above 5 acres of land at village Machanpara, therefore, trial court has committed illegality in shifting burden upon the plaintiff to prove that he has sufficient source of fund to purchase the suit property. Though there is no such rebuttal by the defendant No.1 as such the trial Court has wrongly shifted burden upon the plaintiff, therefore, finding recorded by the trial court suffers from illegality which warrants interference by this Court. He would further submit that since the defendant No.1 has never prayed for production of the document then the trial Court has committed illegality in drawing adverse inference against the plaintiff as unless and until production of document is sought by the plaintiff, no 6 document is required to be placed on record, therefore, the finding recorded by the trial Court is illegal and would pray for allowing the appeal. 11. On the other hand, learned counsel for the defendant No.1 would submit that the finding recorded by the trial Court to the extent of denial of specific performance of contract towards the sale deed is legal and justified as the plaintiff has to stand on its own leg and he cannot take advantage of the weakness of the defendant No.1. He would further submit that unless the plaintiff is able to prove factum of sources of income by placing relevant document burden never shifted to the defendant therefore, the finding recorded by the trial court is legal and justified. So far as his counter claim is concerned, the trial Court has committed illegality that once the court has found that the plaintiff is not ready and willingness to perform the part of contract and there was dispute about execution of agreement also in such circumstances, the trial Court should have not granted relief of refund of Rs. 1,35,000 with 6% interest. He would lastly submit that the trial Court has further committed illegality in directing for refund of Rs. 1,35,000/- in absence of no prayer was made by the plaintiff and in view of rider of section 22 of the Specif Performance Act and would pray for allowing the cross objection submitted by the defendant and would also pray for dismissal of the appeal. 12. I have heard learned counsel for the parties and perused the record. 13. From the submission made by learned counsel for the parties the point emerged for determination is whether the finding recorded by the trial Court partly allowing the suit is legal and justified and is not liable to be interfered by this Court? 7 14. From the record, it is not in dispute that an agreement was executed between the appellant and the defendant No.1, it is well settled legal position of law, that for claiming specific performance of contract the plaintiff has to prove that he is ready and willing to perform his part of contract then only burden shifts upon the defendants, as such it is for the plaintiff to demonstrate that he was ready and willingness to perform his part of contact by placing cogent material on record. The plaintiff has stated in his evidence that he owned land at village Pathardhuva to the extent of 1½ acres and at village Machanpara he has owned above 5 acres of land but no document has been produced by him. Even the plaintiff has not produced any documentary evidence to substantiate that he has sufficient fund or source of income which is the prime condition for grant of specific performance decree. It is also well settled legal position of law that in the case of readiness and willingness the plaintiff has to prove his case then only burden shifted upon the defendants, in absence of any such material and in view of well settled legal position of law that the trial Court has not committed any illegality in not allowing the claim of plaintiff for specific performance of contract. 15. From the perusal of the Section 16 of Specific Performance Act for decree of specific performance of a contract it is expedient for the plaintiff to plead and prove the readiness and willingness by adducing evidence to this effect. The readiness and willingness to execute agreement is subject to interpretation by the Hon’ble Supreme Court in various judgments which are as under :- (A). Hon’ble the Supreme Court in case of C.S. Venkatesh Vs. A.S.C. Murthy [(2020) 3 SCC 280], on consideration of various decisions culled out what is implied by the words “ready and willing” which reads as under:- 8 “16. The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.” (B) U.N. Krishnamurthy Vs. A. M. Krishnamurthy [(2023) 11 SCC 775] wherein it has been held that requisite pleadings and proof are required for the plaintiff to succeed in a suit for specific performance. The Hon’ble Supreme Court has held as under:- “24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of 25 adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.” For tracing an answer, one would necessarily have to bear in mind Sections 10, 16 and (unamended) Section 20 of the Act. Scanning of the evidence on records unmistakably points to the conclusion that the buyer was not ready and willing to have the terms agreed by and between the parties to be performed. 9 (C) Again the Hon’ble the Supreme Court in case of R. Shama Naik Vs. G. Srinivasiah, SLP (Civil) 13933 of 2021 dated 28.11.2021 Neutral Citation 2024 INSC 927 wherein it has been held in paragraph 8 to 13 as under:- “8. Section 16(c) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 01.10.2018) bars the relief of the specific performance of a contract in favour of a person who fails to aver readiness and willingness to perform his part of the contract. 9. There is a legion of precedents on the subject of readiness and willingness. 10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time. 11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance. 12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. 13. The High Court in first appeal upon appreciation of the evidence on record both oral and documentary has arrived at the conclusion that the plaintiff has failed to establish that he was always ready and willing to perform his part of the contract.” 16. So far as refund amount of Rs. 1,35,000/- with interest is concerned, the trial Court has granted this principle in equity and good conscience though this court cannot lose sight of the fact the legal position in view of Section 22 C of the Act that no relief of refund can be granted unless specifically pleaded and sought in the plaint but the trial Court has rightly taken note of the fact that the agreement was executed between the parties and the defendant has not been able to rebut about receipt of payment as advance given by the plaintiff by placing sufficient material on record, therefore, the trial Court has not 10 committed illegality in partly allowing the suit, therefore, I am of the view that the trial Court has not committed illegality in granting the relief of refund of amount Rs. 1, 35,000/- with 6% interest from the date of filing of the suit till the payment is made. Accordingly cross objection filed under Order 41 Rule 22 CPC for setting aside refund of amount of Rs.1,35,000/- along with 6% interest to the plaintiff by the defendant is liable to be disposed of as directed below. 17. This Court while hearing admission stage of the appeal has restrained the respondent No.1 to alienate the suit property till the next date of hearing and interim order is being continued more than 13 years, therefore, there is no justifiable reason for this Court to grant interest after 18.04.2012 to the plaintiff, therefore, interest will be confined to the date of filing of the suit till the defendant No.1 was restrained from alienating the suit property by this Court on 18.04.2012, as such the appeal filed by the plaintiff is dismissed with modification by confining the interest, as directed by the trial Court from the date of filing of the suit i.e. 30.08.2010 till actual payment is made that will be upto 18.04.2012 only. Resultantly, the appeal filed by the plaintiff is dismissed and cross objection filed by the defendant No.1 is disposed of. 18. Interim order granted by this Court on 18.04.2012 stands vacated. 19. Decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge santosh