High Court
Case Details
RSA 180/2002 BEFORE HON’BLE MR. JUSTICE N.CHAUDHURY JUDGMENT & ORDER(ORAL) This Second Appeal has been preferred by the defendant against t he concurrent findings of the learned courts below in regard to a suit praying f or decree of Specific Performance of Contract.
Legal Reasoning
2. Plaintiffs 1 and 2 are the husband and wife. They filed Title Su it No.39 of 1996 before the learned Civil Judge, Senior Division No.2 in Cachar at Silchar stating that despite having an agreement been inked by the defendant with plaintiffs on 12.2.93 for purchasing a plot of land measuring 4 Kathas 11 Lechas 8 Gondas from him for a total consideration amount of Rs.30,000/- and the defendant having first received an advance sum of Rs.10,000/- and thereafter a sum of Rs.17,3000/- on 20.5.1993 by issuing a money receipt, hence leaving a balance of Rs. 2,700/- the defendant is yet to execute the sale deed and, worse , playing truant with them. Hence, the plaintiffs had to institute the suit for specific performance of the contract. Vide clause Gha in the prayer of the plai nt, the plaintiffs made an alternative prayer: refund of the sum of Rs.27,300/- along with compensation to the tune of 1/4th of the said sum, if for any reason the plaintiffs had been found to be not entitled a decree for specific perform ance of the contract. 3. After being summoned, the defendant appeared before the learned court below and denied the averments made in the plaint on the point of quantum of the consideration amount as well as the execution of the written agreement. A ccording to the defendant, in good faith he put his signature on a plain paper, which was subsequently converted into a written agreement by the plaintiffs, to suit them. The defendant also pleaded that there was an oral agreement for sal e of 6 Kathas 1 Chatak of land for a total consideration of Rs.28,000/- per Kat ha, thus he was entitled to a total sum of Rs.1,69,750/-. So, after receipt of a sum of Rs.27,300/- in all, the defendant was entitled to a further sum of Rs. 1,42,450/- being the balance consideration amount. The defendant also stat ed that he obtained permission from the jurisdictional Deputy Commissioner for e xecuting the sale deed and the same was brought to the notice of the plaintiffs but the latter did not turn up to get the sale deed executed and as such the pl aintiffs were not entitled to get a decree. On such rival contentions the learne d trial Court framed as many as seven issues and the same are as follows: n this suit? on? (cid:28)1. Whether there is any cause of 2. Whether the suit is barred by law of action i limitati 3. Whether the suit is maintainable in its present form ? 4. Whether the suit is bad for misjoinder/ nonjoinder of necessary parties? 5. Whether the defendant executed the alleged ’bainama’ On 12.2.93 with a proposal to sale the suit land and homestead o the plaintiff s on consideration of money of Rs.30,000/- and accepted an advance of Rs.10,000/ - on condition that they would register the sale deed in favour of the plaintiff on receipt of the balance consideration of money from him? ed for? 6. 7. Whether the plaintiff is entitled for the decree as pray To what relief, the plaintiff is entitled ? (cid:28) 4. Plaintiffs examined three witnesses: PW-1 is plaintiff No.1, PW-3 is plaintiff No.2 and the PW-2 is the witness to the agreement dated 12.2.93. T he agreement for sale dated 12.2.93 was exhibited as Ext.1, while the money rec eipt dated 20.5.93 as Ext.2.The defendant examined himself as his sole witness a nd proved Ext.A (the permission granted by the jurisdictional Deputy Commission er on 17.9.93 allowing conveyance of the land in question) which, however, did not see the light of the day. 5. The learned trial Court, after perusal of the materials on recor d arrived at findings, inter-alia, that there was rule of agreement for sale in writing between the parties on 12.2.93: (i) that the consideration money was simply fixed at Rs.30,000/-and that the plea of same being Rs.1,67,750/- was incorrect. (ii)that the Agreement, Ext.1 did not contain essential ingredient of valid cont ract required for granting a decree of specific performance nevertheless, there was transaction of money between the parties and in process whereof the defendan t admittedly received a sum of Rs.27,300/- from the plaintiffs undertaking to ex ecute a valid register deed of sale. (iii)that the plaintiffs were not entitled to get a decree of specific performan ce for the uncertainties in regard to quantum of land proposed to be sold as we ll as the description thereof. (iv)the plaintiffs were entitled to refund of the amount of Rs.27,300/- paid to the defendant for fallout of the contract executed between them alongwith intere st of 7% per annum from the date of institution of the suit till realization. The said judgment of the learned trial Court was passed on 13.6.2000. 6. 7. The defendant preferred Title Appeal No.12 of 2000 in the Court of Distr ict Judge, Cachar at Silchar challenging the aforesaid decree dated 13.6.2000. The learned District Judge after hearing the parties, dismissed the appeal by hi s order dated 13.6.2000 upholding the judgment of the learned trial Court holdin g inter alia; (i) that a sum of Rs.27,300/- was paid by the plaintiffs to the defendant as advance for sale of a plot of land and that fact has been admitted by the defen dant. (ii) that the defendant entered into an agreement to sell out a plot of land covered by Dag No.634,635 and 636 of RS Patta No.50. (iii) that the defendant did not adduce any evidence in support of his conte ntion that he had put his signature on a blank paper and that that there wa s no written agreement namely Ext.1 and hence the specific plea of the defendant in regard to higher consideration was wrong. (iv) that the document does not contain any registration with respect to t he period within which the plaintiffs were required to pay the balance amount to get the sale deed executed. (v) that limitation should run from 17.9.93, i.e. the date when the permissi on for sale was granted by the jurisdictional Deputy Commissioner, and the suit having been filed on 17.5.96 was not barred by limitation. (vi) that plaintiffs were entitled to get their money back under Section 22(1) (b) of the Specific Relief Act , 1963. 8. As against the aforesaid concurrent findings of fact the defendant prefe rred this Second Appeal challenging the decree directing him to make the payment of the advance amount to the plaintiffs along with interest accrued thereon and the cost of the suit. The Second Appeal was admitted on 3.1.03 on the following substantial qu
Legal Reasoning
9. estions of law: (cid:28)1. Whether in view of the failure on the part of the plaintiffs to aver that he is always ready and willing to perform the essential terms of contract which ar e to be performed by him, the impugned judgment and order decreeing the suit is barred U/S 16(c)of the Specific Relief Act? 2. Whether the suit filed by the plaintiffs was barred by limitation? (cid:29) 10. I have heard learned counsel for the appellant as well as learned counse l for the respondents. As stated above, the learned Courts below concurrently he ld that the plaintiffs though not entitled to a decree for Specific Performance of Contract, but they were entitled to get back the amount paid by them along wi th interest @ 7% per annum from the date of institution of the suit. Since there was no decree for specific performance of contract, the first substantial quest ion of law that the suit is barred U/S 16(c)of the Specific Relief Act, 1963 doe s not arise and as such it is not necessary to answer this substantial question of law. 11. So far the Second substantial question of law is concerned the learned first appellate court has specifically come to a finding of fact that Ext.A, per mission was granted on 29.9.93 and the suit was filed on 17.5.96. Even if it is accepted for the time being that the defendant duly informed the plaintiffs abou t the same, then also suit was filed well within 3 years from the date of granti ng permission. The defendant could not lead any evidence to show that the plaint iffs failed to obtain execution of sale deed for their own fault. Rather, there are uncontroverted evidence on record to support the plea of the plaintiffs that the defendant refused to execute sale deed on 25.4.96. In this view of the matt er, it can not be said by any stretch of imagination that the suit was barred by limitation. Moreover for any suit for Specific Performance of Contract, normall y time is not the essence of contract. The suit having been instituted within a period of three years from the date of the permission for sale of the land it cannot be said that the suit was barred by limitation. So the second substantia l question of law is also decided in the negative and in favour of the defendant /respondent. 12. Now coming to the question of decree in regard to money along with compe nsation there is specific averments to that effect by the plaintiffs in the plai nt. In paragraph Gha of the prayer it has been specifically prayed that in case the plaintiffs are not found entitled to get a decree of Specific Performance of Contract, a decree in lieu thereof be passed for refund of the amount paid al ong with compensation to the tune of …th of amount paid by them. Section 22 o f the Specific Relief Act, provides that in addition to the power to grant a de cree of specific performance the Court has power to grant relief of possession, partition and return of earnest money etc. The only rider has been annexed to this section is under sub-section (2) of the said Section which prescribes that no relief in this regard should be granted unless it has been specifically cla imed. But, by adding the proviso to the said sub-section it has further been man dated that in case the plaintiffs have not made any prayer to that effect the co urt shall at any stage of the proceeding allow the plaintiffs to amend the plain t to such terms as may be just for including a claim for such relief. Thus, spe cific prayer claiming refund being the only rider or condition precedent for get ting a decree for return of earnest money and the same having been present in th e case in hand, the learned Court below committed error in granting a decree for refund of the earnest money with interest @7% per annum from the date of instit ution of the suit till realisation. 13. In view of the observations made above there is no merit in this Second Appeal and the same is accordingly dismissed. However, considering the f
Decision
acts and circumstances of the case, there is no order as to costs.