Nafr High Court
Case Details
1 Reserved on 07.05.2025 Delivered on 03.09.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 121 of 2018 1 - Rakesh Kumar Agrawal S/o Vishnu Ram Agrawal Aged About 39 Years R/o Ward No.13, Pd. Jawahar Lal Nehru Ward, Ketka Road, Surajpur, District Surajpur, Chhattisgarh (Plaintiff), District : Surajpur, Chhattisgarh versus ... Appellant 1 - Vikram Kumar Sahu S/o Shivnandan Sahu Aged About 52 Years R/o Bhaiyatharran Road, Shubhash Chandra Road No.05, Surajpur, Thana And Tehsil Surajpur, District Surajpur, Chhattisgarh (Defendant No.1), District : Surajpur, Chhattisgarh 2 - State Of Chhattisgarh Through The Collector, Surajpur, District Surajpur, Chhattisgarh (Defendant No.2), District : Surajpur, Chhattisgarh ... Respondent(s) For Appellant For Respondent(s) : : Mr. Amrito Das, Advocate Mr. Rajkumar Pali, Advocate DB: Hon’ble Smt Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput CAV JUDGMENT Per, Sachin Singh Rajput, J. 1. This appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil
Facts
Procedure, 1908 (for short “CPC”) has been filed being aggrieved by the judgment and decree dated 28.11.2017 (Annexure A-1) passed by the Second Additional District Judge, Surajpur (for short “trial Court”) in civil Suit No.29-A/2014, by 2 which the learned trial Court dismissed the suit of the appellant for specific performance of contract, however, granting decree of refund of Rs.12,13,100/- with 6% interest from the date of sale agreement dated 29.03.2012. Parties are referred to their status before the learned trial Court. 2. The fact in this case is that an agreement to sale dated 29.03.2012 in respect of property comprised in piece of Khasra No.1539/05 & 1541/ 2 Area 0.070, 0.108 Hectare respectively situated at Tahsil- Surajpur, District Surajpur (CG) (for short “suit property”) was executed by the defendant No.1 in favour of the plaintiff. As per pleadings of the plaint, defendant No.1 offered to sell the suit property to the plaintiff and the sale consideration was agreed at Rs.12,13,100/- and entire sale consideration was received by defendant No.1 and above stated agreement to sale (Ex.P-1) was executed and registered at Sub-registrar’s office Surajpur. It was assured by defendant No.1 at the time of execution of agreement to sale that he would execute the sale deed after diversion of the suit property. Defendant No.1 filed an application for diversion of suit property before the Court of Sub-Divisional Officer, Surajpur on 11.09.2012 upon which a Revenue Case No.167/11-12 was registered and proceedings of diversion was started and notice to deposit the amount of Rs.5059/- was issued to defendant No.1 by the Officer on special duty on 12.10.2012 despite receipt of same, defendant No.1 did not deposit the same till 18.02.2014. It is further pleaded that defendant No.1 for the last two years despite receipt of entire amount, deliberately not executing the sale deed of the suit property in favour of the plaintiff. It has been further pleaded that plaintiff is ready to purchase the suit property without being diverted for which the plaintiff personally contacted defendant No.1 on many occasions and orally requested him to execute the sale deed of the suit property, however defendant No.1 did not execute the sale deed. The plaintiff on 19.02.2014 issued a registered notice showing his willingness to purchase the suit property in terms of agreement to sale. The said notice was replied by the defendant No.1 and denied the execution of sale deed, therefore, the suit for specific performance of contract was filed. 3 3. Defendant No.1 filed his written statement and pleaded that the suit property recorded in his name in revenue records and it was pleaded that he received the suit property in his succession and he is not sole owner of the same rather his two sons, one daughter and wife are the co-owner of the suit property. He admitted the execution of agreement to sale dated 29.03.2012 and received Rs.12,13,100/- from the plaintiff. It is pleaded that the plaintiff has committed fraud with defendant No.1 and the suit property is not required by plaintiff for his own residential purpose as per the agreement. 4. It was further pleaded that the plaintiff is a property dealer and for the business purpose the said agreement to sale was executed by the plaintiff in order to sell the suit property to some other persons and therefore, road has been constructed by the plaintiff over the suit property. He further pleaded that a specific condition was put in the agreement to sale is that the suit property will be used for the residential purpose of defendant No.1 and if he violates the condition the agreement to sale would automatically be terminated. It is also pleaded that as the plaintiff has violated the terms of agreement to sale therefore, a question of depositing Rs.5059/- for diversion does not arise. It is further pleaded that the plaintiff is economically and politically powerful person and a false report was lodged by the plaintiff against defendant No.1 to the Police Station Surajpur. He was pressurized by the plaintiff with the help of police officials. The defendant No.1 has also filed a complaint against the plaintiff before the Superintendent of Police on 17.06.2014. Whatever land is purchased by the plaintiff, it is sold in future at a higher or double price. 5. Defendant No.2 remained ex-parte and did not file any written statement. On the basis of above broad pleadings, learned trial Court framed the following issues:- I. Whether the plaintiff executed the agreement to sale dated 29.03.2012 with the defendant on the basis of fraud, if yes then what was its effect ? II. whether the plaintiff is entitled to get the land Khasra No.1539/05 & 1541/02 measuring 0.070 and 0.108 hectares respectively registered from the defendant Vikram Kumar Sahu in compliance with the specific relief of the contract? III. relief and cost ? 4 6. In order to establish its case, the plaintiff examined as many as 3 witnesses. 7. By the judgment impugned, learned trial Court dismissed the suit for specific performance of contract and granted a refund of amount paid by the plaintiff to defendant No.1. Hence this appeal.
Legal Reasoning
18. From perusal of the evidence it is quite vivid that there is no dispute with regard to execution of sale agreement and receipt of entire sale consideration. The plaintiff while entering into agreement has not disclosed that the property is of joint family. He took the defence in the suit. However, he has admitted that suit property is recorded in his name in the revenue records as owner. It has also admitted that no suit for any legal proceedings were carried out by the sons for partition of the said property. The question of readiness and willingness though has not been specifically dealt by the leaned trial Court. However, from the record it is quite apparent that at the time of execution of sale agreement, entire sale consideration was paid by the appellant and it has also been admitted by the defendant however, he stated that the same was given in 5 -6 installments. 19. Therefore, it can safely be held the plaintiff was ready to execute the sale deed. So far as willingness is concerned, from the evidence on record it is quite vivid that he has made request to the defendant to get the suit property diverted but it appears that the defendant has not perform his part of contract for getting the suit property diverted. From the record it also appears that a case for diversion was also filed in which a demand was raised by the concerned authorities but the said charges was not deposited. The conduct of the defendant is also not truthful as initially while replying to the notice he denied the execution of agreement and receipt of sale consideration however, admitted the same later on. Therefore, this Court is of the opinion that the plaintiff was always ready and willing to perform his part of contract otherwise, he would have not paid the entire sale consideration. 20. The another defence put forth by the defendant is that the plaintiff is a property dealer and engage in the business of selling the plots and for that purpose, he has entered into agreement with various persons in respect of the suit property. This defence has not been proved by the defendant rather from recital of the agreement it 9 appears that the property was purchased by the plaintiff for his residential purpose, he does not disclose as to whether the residential purpose were only for himself. From the evidence of defendant it is quite vivid that he has not able to prove with whom the plaintiff had entered into agreement to sale the suit property and different plots and how much amount was received. Therefore, this defence appears to be not bonafide and in order to avoid the execution of sale deed. 21. The arguments has been advanced by Mr. Pali that the entire amount has been deposited and therefore, the discretionary relief for grant of specific performance cannot be granted in favour of the plaintiff. The Hon’ble Supreme Court in case of Kamal Kumar Vs. Premlata Joshi and others reported in (2019) 3 SCC 709 laid down the parameters with regard to specific performance as follows:- “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: 7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; 7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5 Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of 10 the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.”. 22. In light of above parameters, fact of this case is required to be examined. As held earlier that the plaintiff was ready and willing to execute his part of the agreement however the same has been denied by the defendant giving the lam excuse that the property was joint family and it would be used by the plaintiff for other then the residential purpose by selling the plots. 23. The defendant has not come in this Court with clean hands if he had this defence for the very beginning that the agreement was executed by playing fraud and he is ready to return the advance receive and plaintiff would not use for residential purpose and the property of joint family, the same could have been mentioned in the reply to the initial notice sent by the plaintiff. Therein in the reply to notice the defendant has simply stated the execution of sale agreement by fraud and also failed to mentioned the receipt of advance money. He also did not mention that the suit property is of joint family. Later on he has stated that because of wrong advised the said reply was sent. Apart from this, from the evidence of defendant it is quite vivid that he has taken the entire sale consideration and utilized his own purposes and enriched himself from that. Apart from this, it is also on record that the defendant no.1 has stated that a road has been constructed over suit property but the same was not on it rather beside it. This must have increased the value of the suit property and as a result of which the defendant must have developed greed. Taking into consideration all this aspect, as the defendant was not honest, this Court is not inclined to exercise the jurisdiction in favour of the defendant and the fact of the present case does not entitled the defendant to get the relief rather entitles the plaintiff decree of specific performance. 24. However, this Court has also conscious of the fact that during the pendency of the lis, the value of the suit property must have increased many fold. Therefore, in the light of 11 the judgment of Hon’ble Supreme Court in case of Basavaraj v. Padmavathi and anr. (2023) 4 SCC 239 and keeping in mind the interest of justice, this Court is inclined to direct the plaintiff to make an additional payment of Rs. 10,00,000/-. 25. The appeal is allowed and it is ordered that the plaintiff would pay additional sum of Rs. 10,00,000/- within a period of two months from today and deposit the same in the trial Court. Thereafter, the defendant would execute the sale deed in respect of suit property comprised in piece of Khasra No.1539/05 & 1541/ 2 Area 0.070, 0.108 hectare respectively situated at Tahsil- Surajpur, District Surajpur (CG). If the plaintiff failed to deposit the amount in the time stipulated, he will not be entitled for specific performance and only entitle to refund of the earnest money as directed by the learned trial Court. If upon depositing the amount as directed by this Court, the defendant no.1 fails to execute the sale deed, the plaintiff would be entitled to get the sale deed executed and registered through the trial Court. Parties to bears their own cost. Decree be drawn accordingly. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Parul/P
Arguments
8. Mr. Amrito Das, learned counsel for the appellants/ plaintiff argued that the learned trial Court failed to consider that the respondent in his examination has admitted the fact of execution of the agreement to sale as well as receipt of entire sale consideration and plaintiff was able to prove that the appellant has already shown his readiness and willing for execution of sale deed. The learned trial Court also failed to see that the appellant had already paid the entire consideration amount of Rs.12,13,100/- to the respondent on 29.03.2012 and despite lapse of more than 2 years, the respondent with an ulterior motive refused to execute the sale deed. He further submits that the reason stated by the respondent is absolutely baseless. As per agreement the land would be used for residential purpose after sale and there is absolutely no material to show that the appellant intended to use the land for any other purpose. The reasons stated by the respondent for non-execution of sale deed is therefore absolutely misplaced and misconceived. To buttress his submissions, he placed reliance upon the judgment of Hon’ble Supreme Court in case of P. Ramasubbamma Vs. V. Vijaylakshmi and Others reported in (2022) 7 SCC 384. 9. Per contra Mr. Rajkumar Pali supported the judgment impugned and submits that the finding recorded by learned trial Court on issue No.2 is based upon proper appreciation of evidence and does not require any interference. He submits that the plaintiff is a property dealer and agreement to sale was executed for residential purpose whereas the plaintiff is ready and willing to purchase the said property for his business purposes and therefore, condition of agreement to sale was violated and the plaintiff is not entitled to get decree of specific performance of contract. He submits that in compliance of the judgment of decree the defendant No.1 has already deposited the entire amount. Even otherwise he submits that the relief of specific 5 performance of contract is a discretionary relief and considering the facts and circumstances of the case, the said relief cannot be granted to the plaintiff. He placed reliance upon the Judgment of this Court passed in FA No.556 of 2017 dated 13.03.2020. 10. Heard learned counsel for the parties and perused the records with rapt attention. 11. Issue No.1 framed by learned trial Court with respect to execution of the agreement to sale dated 29.03.2012 by playing fraud which has been found to be proved by learned trial Court and the defendant No.1 has not denied the execution of sale agreement. The receipt of entire sale consideration of Rs.12,13,100/- by defendant No.1 is also not in dispute. The issue No.2 is with respect to whether the plaintiff is entitled to get the execution of sale deed in respect of suit property. The learned trial Court has not framed any issue with regard to readiness and willingness. 12. The points for determination before this Court is to whether findings recorded by the learned trial Court on issue Nos. 1 and 2 is correct and it can sustain the scrutiny of this Court. 13. Issue No. 1 has been held to be proved by the learned trial Court. The learned trial Court came to the conclusion that the agreement to sale was executed by playing fraud. The agreement to sale is executed on 29.03.2012 and also a registered one. Recital of which indicates that the defendant no.1 agreed to sale the suit property for a consideration of Rs. 12,13,100/-. The entire consideration was also received by the defendant. It also reflects that suit property is required to be used for residential purpose, it would be diverted by the defendant. It would be essential to note here that the recital of the agreement to sale does not disclose that the suit property would be used for residential purpose of plaintiff only. 14. The plaintiff has led evidence in line of the pleadings of the plaint. He has deposed by filing an affidavit under Order 18 Rule 4 of CPC that the defendant no.1 has proposed to sale the land which is mentioned in agreement and accepted the same and for sale of the said land the consideration amount is fixed of Rs. 12,13,100/- and he had paid the entire consideration amount i.e. 12,13,100/- by cash and registered 6 agreement has been executed before the Sub-Registrar Office, Surajpur. The condition of the said agreement is binding upon the both. The defendant No. 1 has filed an application for diversion of the suit land on 11.09.2012 before the SDO on the basis of said application a notice has been issued to deposit an amount of Rs. 5059/- on 12.10.2012 but intentionally the defendant No. 1 has not deposited the amount till 18.02.2014. It is also stated therein that the defendant No. 1 has intentionally not executed the sale deed about two years. It is his duty to take a diversion order and thereafter execute the sale deed in his favour. He has also stated that in several occasions personally and orally he has requested to the defendant No. 1 for execution of sale deed. 15. Apart from this two attesting witnesses of the agreement Shanker Jindiya (PW-2) and Rishi Ram (PW-3) who deposed with regard to execution of the agreement to sale. 16. The plaintiff is trying to project that despite of payment of entire sale consideration and despite of repeated request, the defendant no.1 is not getting the suit property diverted and executing the sale deed. 17. On behalf of defendant no.1 four witnesses have been examined. The defence which put forth by the defendant no.1 is that the suit property is of joint family and his wife and children are also co-owner of the suit property. The agreement to sale was executed with a condition that the suit property would be used for residential purpose. Initially in reply to notice sent by the plaintiff, the defendant no.1 has stated that the agreement to sale got executed by plaintiff by playing fraud and without any consideration. However, later on he changed his stand and admitted the execution of agreement to sale and receipt of sale consideration entirely. The defendant no.1 Vikram Kumar Sahu deposed is in affidavit filed under Order 18 Rule 4 CPC that agreement dated 29.03.2012 got executed by the plaintiff by playing fraud. He further deposed that as per agreement the suit land was for his residential purpose but later on he came to know that he is property dealer and for purpose of business fraudulently he has executed the said deed and a road has been constructed upon the 7 suit land and he has made an agreement with others for sale the suit land but when the agreement was executed he has stated that the suit land was for his residential purpose and the plaintiff has violated the condition of agreement. He deposed in his cross-examination that the agreement regarding suit land was executed between the plaintiff and him which is a registered agreement. He further deposed that as per agreement he has received Rs. 12,13,100/- which has given by plaintiff in 5-6 installments. He admitted that he had received an amount of Rs.12,12,100/- in 5-6 installment and if the sale deed is not executed, he would return the money with 5% interest has not been mentioned in the written statement. He said that first time he is making this statement before the Court. He also stated that he did not make any complaint before the competent authority or police Station with regard to receiving the amount of sale agreement in 5-6 installment and fraud committed with him. He further deposed that he has received the legal notice vide Ex. P-2 and replying by his advocate vide Ex. P-3 and above things is not written in the said reply. He further deposed that after constructing the road the value of suit land has been increased. He also stated that his sons have asked to him that they will construct the house and reside there but this things has not been mentioned in his written statement as well as reply given by him of notice and report in the police station. He also stated that his sons have filed any suit regarding this he has not filed any document. He further deposed that at the time of execution of agreement he was owner of the said land and in revenue records only his name has been mentioned as owner. It is also mentioned that there is no any proceedings initiated before any Court regarding giving the share to his wife, daughter and sons. He further stated that he has no knowledge about the sale of the suit land by the defendant. He also does not know that to whom the plaintiff has discussed about price for sale of suit land. He also stated that the road was not constructed upon his land rather then his land is near the road. He also stated that the consideration amount received by the plaintiff has been used in his house and shop and he is doing a cycle business. He also stated that he received a notice from the advocate but his son has told me that the land will not be sold and the 8 consideration amount will be returned with 5% interest and regarding that the defendant No. 1 has not given any notice to the plaintiff and for the first time he has deposed the statement before the court.