S.A. 251 of 2020 v. Sudhir Kumar Singh

favour of the plaintiff in respect of the suit land within three months failing which, the plaintiff will be entitled to get the sale deed executed as per law. The plaintiff filed the suit with relief of specific performance with respect to the agreement as well as confirmation of possession over the schedule land and further sought declaration that the sale deed bearing no. 3639 dated 11.08.2012 is illegal and void ab initio and that the same has no binding effect upon the plaintiff, cost of the suit and other reliefs.

3. The case of the plaintiff in brief is that the defendant no. 1 owned and possessed the suit land where the plaintiff has been residing in capacity of tenant for a period of 25 years. The defendant no. 1 agreed to sell the suit property to the plaintiff for a consideration amount of Rs. 1,50,000/- and in this respect, a written agreement was entered into between the parties upon the defendant no. 1 taking Rs. 5,000/- as an advance from the plaintiff. As per the terms of the agreement, the defendants agreed that they will get the property vacated and will execute the sale deed on receiving the balance consideration amount of Rs. 1,45,000/- by 28th June, 2012. The plaintiff thereafter approached defendants and requested the defendants to execute the sale deed on receiving the balance consideration amount but the defendant no. 1 on one pretext or the other deferred the matter with an assurance to the plaintiff that the defendant no. 1 will execute the registered sale deed and on such assurance, on 20.07.2012, the defendant no. 1 received a sum of Rs. 45,000/- in cash in presence of the witnesses. The defendant, along with Sambhu Nath Rawani, even went to the office of the Registrar for purchasing the requisite stamp papers and the stamp paper worth Rs. 11,000/- was purchased by the plaintiff from the Treasury Office and the same was in the custody of the deed writer. The plaintiff has all along been ready and willing to perform his part of the 3 S.A. 251 of 2020 contract but on 09.08.2012, the plaintiff came to know that the defendant no. 1 in connivance with Sambhu Nath Rawani was trying to part with the property in favour of some other persons. Hence, the plaintiff lodged First Information Report with Madhuban Police Station. After the FIR, the defendant no. 1 approached the plaintiff and assured that he will get the matter settled but on 11.08.2012; the defendant no. 1, surprisingly and clandestinely in connivance with the witnesses sold the property to the defendant no. 2 vide registered sale deed no. 5639 dated

11.08.2012. The plaintiff sent a legal notice and thereafter filed a suit and prayed for the relief as has already been indicated above. In his written statement, the defendant no. 1 challenged the maintainability of the suit on various technical grounds and further pleaded that he has sold major portion of the suit property much earlier and only a small portion of the house consisting of two rooms in the ground floor is in occupation of the plaintiff as a monthly tenant. The defendant no. 1 admitted the execution of the agreement in question for specific performance of which the suit has been filed but pleaded that the plaintiff agreed to get the sale deed executed in his favor within ten days of the agreement by paying full and final consideration money, hence the time was essence of the contract. The defendant no. 1 requested the plaintiff to pay the balance consideration amount. The defendant no. 1 denied having received Rs. 45,000/- on 20.07.2012. The defendant no. 2 in her written statement also challenged the maintainability of the suit on various technical grounds. The defendant no. 2 further pleaded that description of the suit property is not correct.

4. On the basis of the rival pleadings of the parties, learned trial court settled the following nine issues :- I. Is the suit maintainable in its present form? II. Is there any valid cause of action for the suit? III. Is the suit barred by the law of limitation, waiver, acquiescence and estoppel? IV. Is the suit barred under section 34 of the Specific Relief Act? V. Is the suit bad for mis-joinder of parties? VI. Is the Agreement to sell dated 18.06.2012 valid and enforceable ? 4 S.A. 251 of 2020 VII. Is the sale-deed dated 11.08.2012 bearing number 5639 executed by defendant no.1 void, illegal and liable to be cancelled? VIII. Is the plaintiff ready and willing to perform his part of the agreement to sell? IX. Whether the plaintiff is entitled for reliefs as prayed for?

5. In support of their case, the plaintiff examined three witnesses and proved the documents which have been marked Exhibit 1 to 4. On the other hand, from the side of the defendant no. 1, one witness was examined besides from the side of the defendant no. 2, two witnesses were examined.

6. Learned trial court first took up issue nos. III and IV together and considering the evidence in the record, came to conclusion that the suit is not barred by limitation and it is in time nor the suit is barred by Section 34 of the Specific Relief Act.

7. In respect of Issue no. V next taken up by learned trial court, learned trial court came to the conclusion that the suit is not bad for misjoinder of the parties.

8. Learned trial court then took up issue nos. VI and VIII together and after considering the evidence in the record, the conclusion the agreement dated

18.06.2012 has been entered into with respect to the suit property by the plaintiff and the defendant no. 1 and the defendant no. 1 did not perform his part of contract, whereas the plaintiff performed his part of contract and the plaintiff was all along ready and willing to perform his part of the contract, hence, the agreement dated 18.06.2012 is legal and binding as the plaintiff is ready and willing to perform his part of contract and thus decided the issue nos. VI and VIII in favor of the plaintiff.

9. In respect of his issue no. VII, next taken up by learned trial court, learned trial court concluded that the sale deed bearing no. 5639 dated 11.08.2012 was executed suppressing the agreement. Hence the same has no legal importance, therefore the sale deed no. 5639 dated

11.08.2012 is bad and illegal and is liable to be annulled. 5 S.A. 251 of 2020

10. Learned trial court, thereafter took up issue nos. I and II together and came to the conclusion that there is valid cause of action for the suit and the suit as filed is maintainable in its present form.

11. In respect of issue no. IX, learned trial court came to the conclusion that the plaintiff is entitled to the relief sought for and decreed the suit as already indicated above.

12. Being aggrieved by the judgment and decree passed by learned trial court, the defendant no. 1 preferred the Civil Appeal No. 111 of 2018, in the court of Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned First Appellate Court.

13. Learned First Appellate Court after considering the submissions made before it, framed the followed five points for determinations:- I. Whether the defendant/appellant entered into the agreement to sell dated 18.06.2012 to sell the scheduled property described in detail in the schedule to the plaint as alleged? II. Whether the agreement to sell dated 18.06.2012, on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document ? III. Whether the plaintiff/respondent has always been ready and willing to perform his part of the agreement dated 18.06.2012 ? IV. Whether the registered sale-deed having no.5639 dated 11.08.2012 is void, illegal and ineffective and liable to be cancelled? V. Whether there is any defect in the judgment and decree of the trial court?

14. Learned First Appellate Court first took up the point for determination no. I and after considering the admitted fact of the agreement to sell dated 18.06.2012 entered into between the plaintiff and the defendant no. 1; came to the conclusion that the defendant no. 1, only desired to sell in part the portion of the schedule property mentioned at the foot of the plaint of the plaintiff upon which, two rooms on the ground floor and one room on the first floor were standing and observed that the plaintiff suppressed material facts in his pleadings and the trial court wrongly reached at the conclusion that the agreement to sell dated

18.06.2012 is subject to total area of 11 decimals. Learned 6 S.A. 251 of 2020 First Appellate faltered by observing that learned trial court has reached at the conclusion that the agreement to sell dated 18.06.2012, is subject to total area of 11 decimals even though nowhere in the trial court judgment, the trial court has specifically mentioned that the agreement has been entered in to by the plaintiff and the defendant No.1 in respect of an area of 11 decimals and trial court has held that the plaintiff is entitled to specific performance of the contract, which has been marked as Exhibit 1 and in no uncertain manner in the Exhibit 1, it has been mentioned that the agreement is entered into between the parties in respect of only three rooms standing over a total area of 11 decimals and nowhere it has been mentioned that the agreement was for the entire area of 11 decimals.

15. Learned First Appellate Court next took up 2nd point for determination and after considering the materials in the record, came to the conclusion that the agreement dated

18.06.2012, the specific performance of which is sought by the plaintiff, could not be received as evidence as it is not a registered document.

16. In respect of 3rd point for determination, next taken up by learned First Appellate court, the learned First Appellate court came to the conclusion that the plaintiff has failed to prove that he was willing to perform his part of contract in order to get the sale deed executed in his favour.

17. In respect of point for determination no. IV, learned First Appellate Court held that the sale deed no. 5639 dated

11.08.2012 having been executed, validly in between the parties, the same was legal and enforceable.

18. Learned First Appellate court lastly answered the point for determination no. V by holding that the plaintiff has not approached learned trial court with clean hands and allowed the appeal and set aside the judgment and decree passed by learned trial court as already indicated above.

19. At the time of admission of this Second Appeal, the following three substantial questions of law, were 7 S.A. 251 of 2020 formulated by this court vide order dated 22.02.2023:- 1) Whether learned First Appellate Court committed perversity in arriving at the conclusion that the plaintiff did not come to court with clean hands even though nothing was suppressed by the plaintiff nor the trial court has decreed specific performance of the portion of the property other than the one mentioned in the admitted agreement for sale which was marked Ext. 1? 2) Whether the learned First Appellate Court committed a grave error of law in not receiving the Ext. 1 in evidence even of a contract, in a suit for specific performance, contrary to the principle of law settled by the Hon'ble Supreme Court of India as has been reiterated in para-12 of the case of Ameer Minhaj vs. Dierdre Elizabeth (Wright) Issar and others, reported in (2018) 7 SCC 639? 3) Whether learned First Appellate Court committed perversity in coming to the conclusion that the plaintiff has failed to show his readiness and willingness to perform his part of the contract of the agreement?"

20. Learned counsel for the appellant, Mr. Atanu Banerjee submits that learned First Appellate Court committed perversity by arriving at the conclusion that the plaintiff did not come to court with clean hands though nothing was suppressed by the plaintiff nor the learned trial court has decreed the specific performance of the portion of the property other than the one mentioned in the admitted agreement for sale which was marked as exhibit 1. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar and others reported in (2018) 7 SCC 639 , para 12 of which reads as under: “12. In the reported decision, this Court has adverted to the principles delineated in K.B. Saha & Sons (P) Ltd. v. Development Consultant Ltd. [K.B. Saha & Sons (P) Ltd. v. Development Consultant Ltd., (2008) 8 SCC 564] and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment [Dierdre Elizabeth (Wright) Issar v. Ameer Minhaj, 2016 SCC OnLine Mad 31541] that the sale agreement dated 9-7-2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53-A of the 1882 Act. In that, it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882 Act or the 1899 Act, as the case may be, will have to be adjudicated at the appropriate stage as noted by the trial court after the parties adduce oral and documentary evidence..” (Emphasis supplied) 8 S.A. 251 of 2020 It is submitted by Mr. Banerjee that in view of the principle of law, settled by the Hon’ble Supreme Court of India in the case of K.B. Saha & Sons Private Limited v. Development Consultant Limited, reported in (2008) 8 SCC 564, by now, it is a settled principle of law that the document if unregistered can still be admitted in evidence of a contract in a suit for specific performance and submitted that learned First Appellate court committed gross illegality by holding that the agreement between the plaintiff and the defendant no.1, having been not registered, is not enforceable in law.

21. It is next submitted by learned counsel for the appellant learned First Appellate Court has committed perversity in coming to the conclusion that plaintiff has failed to show his readiness and willingness to perform his part of the contract of the agreement.

22. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Basavaraj v. Padmavathi and Another reported in (2023) 4 SCC 239 , para 15 and 16 of which, reads as under :- “15. From the impugned judgment and order [Padmavathi v. Basavaraj, 2020 SCC OnLine Kar 5049] , [Basavaraj v. Padmavathi, 2021 SCC OnLine Kar 15772] passed by the High Court, it appears that the reasoning given by the High Court is that the plaintiff has not proved that he had the cash and/or amount and/or sufficient funds/means to pay the balance sale consideration, as no passbook and/or bank accounts were produced. In Ramrati Kuer [Ramrati Kuer v. Dwarika Prasad Singh, (1967) 1 SCR 153 : AIR 1967 SC 1134] which has been specifically considered by this Court in Indira Kaur [Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488] , it was observed and held as under : (Ramrati Kuer case [Ramrati Kuer v. Dwarika Prasad Singh, (1967) 1 SCR 153 : AIR 1967 SC 1134] , AIR pp. 1136-37, para 9) “9. Fourthly, it is urged that the respondents did not produce any accounts even though their case was that accounts were maintained and that Basekhi Singh used to give maintenance allowance to the widows who were messing separately. It is urged that adverse inference should be drawn from the fact accounts were not produced by the respondents and that if they had been produced that would have shown payment not of maintenance allowance but of half-share of the income to the widows by virtue of their right to the property. It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. An 9 S.A. 251 of 2020 adverse inference could only have been drawn against the plaintiffs respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non-production of accounts. But it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by Basekhi Singh. Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn (in the absence of any prayer by the appellant that accounts be produced) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed by the appellant.”

16. In Indira Kaur [Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488] this Court after considering the observations made by this Court in Ramrati Kuer [Ramrati Kuer v. Dwarika Prasad Singh, (1967) 1 SCR 153 : AIR 1967 SC 1134] has set aside the findings recorded by three courts below whereby an adverse inference had been drawn against the plaintiff therein for not producing the passbook and thereby holding that the plaintiff was not ready and willing to perform his part of the agreement. It is observed and held that unless the plaintiff was called upon to produce the passbook either by the defendant or, the court orders him to do so, no adverse inference can be drawn.” (Emphasis supplied) Learned counsel for the appellant submits that the learned First Appellate Court in view of the settled principle of law; erroneously held that plaintiff has also failed to prove that the plaintiff was ready and willing to perform his part of the contract and unnecessarily drew adverse inference against the plaintiff for the plaintiff not producing the bank accounts; even though the same was not called for from the plaintiff by the order of the court. Further overlooking the fact that the contention of the plaintiff that he was ready and willing always to perform his part of the contract has not been challenged in the written statement hence the learned First Appellate court has erred by holding that the plaintiff has failed to show his readiness and willingness to perform his part of the contract.

23. It is further submitted by Mr. Banerjee that there is finding 10 S.A. 251 of 2020 in the judgment of learned trial court that the plaintiff was ready and willing to perform his part of the contract which has not been set aside by learned First Appellate Court hence, it is submitted by learned counsel for the appellant that the learned First Appellate court having committed perversity, the judgment and decree passed by learned First Appellate court be set aside and the judgment and decree of learned trial court be restored.

24. Having heard the submissions made at the bar and after going through the materials in the record, it is pertinent to mention here that so far as the first substantial question of law is concerned, certainly the learned First Appellate court has committed a grave error by observing that the trial court has wrongly reached at the conclusion that the agreement for sale dated 18.06.2012 is subject to total area of 11 decimals and this is an error of record as neither the agreement is for 11 decimals of land rather the agreement is only in respect of three rooms situated over 11 decimals of land and in the judgment of the trial court, nowhere it has been mentioned that the agreement is with respect to 11 decimals of land, hence the first Substantial question of law is answered in the affirmative.

25. So far as the 2nd substantial question of law is concerned, in view of the principle of law settled in the case of Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar and Others (supra), by now it is a settled principle for law that even if an agreement is unregistered one, still the same can be admitted as an evidence of a contract for the suit for specific performance, hence learned First Appellate court certainly erred by answering the point for determination no. 2 in the negative on the ground that the agreement is not a registered one, hence, learned First Appellate court committed a grave error of law, in not receiving the exhibit 1, in evidence on the ground that the same is not a registered document, hence the second substantial question of law is answered in the affirmative. 11 S.A. 251 of 2020

26. So far as the 3rd substantial question of law is concerned, it is a settled principle of law that the plaintiff in a suit for specific performance of contract, has to plead and prove that he has all along been ready and willing to perform his part of the contract. True, it is that non-production of the bank passbook by the plaintiff, no adverse inference can be drawn, but coming to the facts of the case it is the case of the plaintiff that after 20.07.2012, on which date the plaintiff claims to have paid Rs. 45,000/- more i.e. as per the case of the plaintiff, the plaintiff has paid altogether Rs. 50,000/- by 20.07.2012 and thereafter, he was ready and willing to pay the remaining amount of Rs. 1,00,000/- only but learned trial court for cogent reasons, i.e. for non- production of any documentary evidence regarding payment of rupees 45,000 on 20.07.2012 and the evidence put forth by the parties, in this regard has not accepted the payment of Rs. 45,000/- on 20.07.2012 claimed to have been paid by the plaintiff to the defendant no. 1 and thereby, learned trial court directed that the defendant no. 1 will execute the sale deed after receiving the sum of Rs. 1,45,000/- from the plaintiff and not Rs. 1,00,000/- only as the plaintiff was claiming. This finding of the trial court has not been challenged by the plaintiff. Hence, such finding of learned trial court had reached finality. Since it is the admitted case of the plaintiff that, after 20.07.2012, the plaintiff was ready and willing to pay Rs. 1,00,000/- only, but in order to show his readiness and willingness to perform his part of the contract as per the facts of the case, the plaintiff ought to have been ready and willing to pay a sum of Rs. 1,45,000/- to the defendant but since it is the natural implication from the case of the plaintiff that he was ready unwilling to pay only Rs. 1,00,000/- and not Rs. 1,45,000/-and obviously there is no evidence in the record put forth by the plaintiff that he was ready and willing to pay Rs. 1,45,000/- to the defendant all along, which is a sine qua non for passing a decree for specific performance 12 S.A. 251 of 2020 of contract and in the absence of such evidence in the record, even if non-production of passbook of the bank by plaintiff to show his readiness and willingness, obliterated from the judgment of learned First Appellate Court for such observation being not in consonance with settled principle of law, as discussed above, still, the finding of learned First Appellate Court cannot be said to be perverse that the plaintiff has failed to prove the readiness and willingness to perform his part of contract because of his failure to show the readiness and willing to pay Rs. 1,45,000/- after 20.07.2012 till the filing of the suit and at best the admitted case of the plaintiff is that he was ready and willing to pay the part of the remaining amount of rupees one lakh only and not the entire remaining amount of Rs. 1,45,000/-. Hence, in the considered opinion of this court learned First Appellate Court has not committed any perversity in coming to the conclusion that the plaintiff has failed to show his readiness and willingness to perform his part of the contract; hence the 3rd substantial question of law is answered in the negative.

27. So far as the contention of the learned counsel for the appellant, that learned First Appellate Court has not set aside the finding of learned trial court that there is readiness and willingness of the plaintiff to perform his part of the contract, is concerned, the learned First Appellate Court, in answer to its point for determination no. 3 has in no uncertain terms and in well-reasoned manner, arrived at the conclusion that the plaintiff has failed to establish that he is ready and willing to perform his part of the contract and on that basis also, third substantial question of law has been formulated.

28. In view of the discussions made above, it is pertinent to mention here that as the plaintiff has failed to prove his readiness and willingness to perform his part of the contract, certainly, the suit of the plaintiff is not to be decreed hence, this court does not find any justifiable 13 S.A. 251 of 2020 reason interfere with the judgment and decree of learned First Appellate Court, so far as it has set aside the judgment and decree of the trial Court passed in Title Suit no. 09 of 2013 and do not interfere with the final outcome of the judgment and decree passed by the learned First Appellate Court. Because of the discussions made above; this appeal is dismissed ex-parte despite the answering the first and second substantial question of law in favour of the appellant, as already indicated above.

29. Accordingly, this Second Appeal is dismissed ex parte; but under the circumstances without any costs.

30. Let a copy of this judgment along with the Lower Courts Records be sent to the courts concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 10th August, 2023. Smita /AFR