M/s. A.P. Bose, N. Hota, S.S. Routray v. Kar & D.J. Sahoo, Advocates M/s. A. Mohanty, B. Baivab, J.N. Mohanty & S.P
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.133 of 2014 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] Ajaya Kumar Nayak ..… Appellant -Versus- Prem Swarup Agrawal & Another .… Respondents Advocate(s) appeared in this case: For the Appellant : For Respondents : M/s. A.P. Bose, N. Hota, S.S. Routray, V. Kar & D.J. Sahoo, Advocates M/s. A. Mohanty, B. Baivab, J.N. Mohanty & S.P. Biswal, Advocates CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 12.02.2025 SASHIKANTA MISHRA, J. Plaintiff is the appellant against a confirming judgment. Page 1 of 15 2. The judgment passed by learned Additional District Judge, Rourkela in RFA No. 18 of 2010 on 10.12.2013 followed by decree is impugned whereby the judgment passed by learned Civil Judge (Senior Division), Rourkela in CS No.153 of 2007 on 07.05.2010 followed by
Legal Reasoning
decree was confirmed. 3. For convenience, the parties are referred to as per their respective status in the Trial Court. 4. The Plaintiff-Appellant filed the suit for specific performance of contract and in the alternative for recovery of Rs.65,000/- from defendant No.1 and incidental reliefs. 5. The case of the plaintiff, briefly stated is that defendant no.1 is the recorded tenant of the suit land and he had prior acquaintance with the plaintiff. The defendant no.1 negotiated with him for sale of the suit land and it was agreed between them that the plaintiff shall purchase the suit land for a consideration of Rs.1,90,000/. The plaintiff paid Rs.65,000/- towards Page 2 of 15 advance by way of demand draft drawn in the name of defendant no.2, wife of defendant no.1. As per the oral agreement plaintiff went to the house of the defendant on 16.06.2007 along with one Baban Prasad to pay the balance consideration amount of Rs.1,25,000/- but defendant no.1 did not receive the same on the plea of his personal inconvenience. The plaintiff returned and thereafter made several correspondences with defendant no.1 over telephone and requested for registration of the sale deed in his favour. But defendant no.1 did not agree rather, he negotiated with other prospective buyers to sell the suit land. Hence, the suit. 6. The defendant contested the suit by filing written statement. The basic facts such as, agreement for sale of the land, consideration of Rs.1,90,000/- and receipt of Rs.65,000/-towards advance were admitted. However, the plea of the plaintiff of offering to pay the balance consideration amount was specifically denied. It was stated that as per the agreement, the plaintiff was Page 3 of 15 required to pay the balance amount before the Sub- Registrar within a week after payment of the advance but he failed to do so. The defendants never received any letter containing the original demand draft and advocates notice. He rather received telephonic call from the I.I.C., of Sector-3 Police Station, as the plaintiff had made allegations against him in respect of the suit land. 7. His further specific case is that as the plaintiff did not pay the balance consideration money before 18.06.2007, he could not execute the sale deed in his favour and that he is ready and willing to return the advance money received by him. 8. Basing on the rival pleadings, the Trial Court framed the following issues for determination: (i) (ii) (iii) Is the suit maintainable ? Has the plaintiff any cause of action to file the suit? Is the suit hit under section 40 of the Indian Contract Act and under section 34 of the Transfer of Property Act? Page 4 of 15 (iv) Is there any agreement for sale between the plaintiff and the defendant on 11.06.2007 ? (v) Has the plaintiff performed his part of contract dated 11.6.2007 and paid the full consideration money in time? (vi) Is the defendant No.1 liable to execute a registered sale deed in favour of the plaintiff as per agreement dated 11.06.2007 or to return the advance money of Rs.65,000/- to the plaintiff? (vii) To what relief or reliefs the plaintiff is entitled ? 9. After analyzing the oral and documentary evidence adduced by the parties and the contentions put forth by them, the Trial Court held that it was established that a sum of Rs.65,000/- was received by defendant no.1 towards part payment of the consideration money of Rs.1,90,000/-. The Trial Court further found that the evidence of P.W.2 i.e., (Baban Prasad) is not consistent with the evidence of P.W. 1 (plaintiff) regarding the place where the balance consideration of Rs.1,25,000/-was Page 5 of 15 offered to defendant no.2. As such, it was held that the plaintiff failed to prove that he performed his part of the contract by paying the balance consideration money before 18.06.2007 for which the defendant no.1 cannot be compelled to execute and register the sale deed in his favour. In the circumstances, the defendant no.1 is liable to pay the advance money received by him from the plaintiff. On such findings, the Trial Court decreed the suit in part directing the defendant no.1 to refund Rs.65,000/ to the plaintiff within one month with further directions regarding payment of interest for default. 10. The plaintiff carried the matter in appeal to the District Court. The first Appellate Court framed the point for determination as to whether the judgment of the Trial Court without allowing the prayer for specific performance is sustainable. The first Appellate Court also scanned the oral and documentary evidence on record and took note of the provision under Section 20 of the Specific Relief Act, 1963, that such relief is purely discretionary in nature. Page 6 of 15 Looking at the evidence, the first Appellate Court found that the time was essence of the contract inasmuch as the balance amount was to be paid on or before 18.06.2007. The inconsistency in the evidence of PWs.1 and 2 and the contradictions present therein were also taken note of. On such findings, the first Appellate Court found no reason to interfere with the impugned judgment and decree. The appeal was thus dismissed. 11. Being aggrieved, the plaintiff has filed the present Second Appeal, which has been admitted on the following substantial question of law: the defendants-respondents have Whether made out a case for refusal of specific performance of contract under Section 20(2) of the Specific Relief Act, 1963? 12.
Legal Reasoning
Heard Mr. A.P. Bose, learned counsel for the plaintiff-appellant and Mr. A. Mohanty, learned counsel for the defendant-respondent. Page 7 of 15 13. Mr. Bose would argue that both the Trial Court as well as the first Appellate Court have committed error in giving undue weightage to only a portion of PW.2’s evidence without reading the same as a whole. According to Mr. Bose, if the evidence of PWs. 1 and 2 are read as whole it would prove that the plaintiff had gone to the residence/office of defendant no.1 and offered to pay the balance consideration amount, which was refused to be accepted by defendant no.1. Mr. Bose, also argued that the defendant did not come to the witness box but sent his Power of Attorney-Rabindra Kumar Nayak, on his behalf. The Trial Court should have drawn adverse inference against defendant no.1 on such ground. Further, both the Courts below ignored the fact of payment Rs.65,000/- by the plaintiff which amounts to part performance as envisaged under Section 53(A) of the TP Act. The previous and subsequent conduct of the plaintiff clearly proves that he was ready and willing to perform his part of the contract. But the defendant refused to do so. Mr. Bose, concludes by submitting that Page 8 of 15 the suit of the plaintiff for specific performance ought to have been decreed by directing defendant no.1 to register the suit land in his favour. 14. Per contra, Mr. A. Mohanty, argued that firstly no substantial question of law is involved in the Second Appeal, which is directed against concurrent findings of fact. Even otherwise, the plaintiff failed to prove that he had performed or was ready to perform the terms of the contract and therefore, he must be held to have failed to satisfy the conditions under Section 16(C) of the Specific Relief Act. The payment of advance amount cannot discharge the burden cast upon the plaintiff in this regard. Mr. A. Mohanty, would further argue that there are material contradictions and inconsistencies in the evidence of PW.1 and 2 regarding the place where the balance consideration amount was allegedly offered by the plaintiff. Mr. Mohanty, would also argue that the ground that adverse inference should have been drawn by the Trial Court against defendant no.1 for not coming to the witness box, has been taken for the first time during the Page 9 of 15 Second Appeal and is, therefore, not worthy of consideration. Moreover, PW.2 clearly admitted that he had not seen money being offered by plaintiff nor was present during the discussion between them. Time being of the essence of the contract the burden was on the plaintiff to discharge the burden, which he failed. 15. In view of the substantial question of law framed, this Court is to consider whether the Courts below committed any illegality in refusing the decree for specific performance of contract. Admittedly, there was an oral contract between the plaintiff and defendant no.1 for sale of the suit land by the latter to the former for total consideration of Rs.1,90,000/- out of which, Rs.65,000/- was paid by plaintiff to defendant no.1 towards advance. The balance amount of Rs.1,25,000/- remained to be paid. 16. According to the defendants the balance amount was to be paid on or before 18.06.2007. The plaintiff admitted the above fact while deposing as PW.1 during the trial. Thus, time was essence of the contract as Page 10 of 15 rightly held by the First Appellate Court to maintain the suit for specific performance of contract. It is necessary for the plaintiff to prove that he is ready and willing to perform his part of contract. In fact, Section 16 bars such relief if the above requirement is not satisfied. Clause (c) of Section 16 of the Specific Relief Act, being relevant is quoted herein below: “16. Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person- (a) xxx xxx (b xxx xxx (c) [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.—For the purposes of clause (c),— (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.” 17. Therefore, the burden is always on the plaintiff to prove that he was ready and willing to perform his part Page 11 of 15 of the contract. In the instant case, both the Courts below, after meticulously analyzing the oral evidence, particularly that of PWs.1 and 2, have held that the plaintiff could not discharge the onus of proving that he was ready and willing to perform his part of the contract. In other words, the plaintiff’s plea that he had offered the balance consideration amount to defendant no.1 was not believed by both the Courts below because of the inherent contradictions and inconsistencies present in the evidence. 18. It is trite that the plaintiff, who claims a decree of specific performance of contract needs to stand on his own legs. He must come forward with clinching evidence showing his readiness and willingness to perform the essential terms of the contract. As already stated both the Courts below found that the plaintiff never did so. This Court does not find anything wrong in the factual findings of the Courts below to be persuaded to interfere. 19. Another significant aspect that is required to be pointed out is that the defendants in their written Page 12 of 15 statement specifically took the plea that the plaintiff was not financially capable of paying the balance amount. In this regard also the plaintiff did not adduce any evidence whatsoever. In the case of UN Krishnamurthy vs. AM Krishnamurthy, (2023) 11 SCC 775, the Supreme Court held as follows: “20.It is well settled that, in a suit for specific performance of an agreement, it is for the plaintiff to prove his readiness and willing ness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the plaintiff to show that he was in a position to pay the balance money. The plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. 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.” 20. A plea has been taken that having paid the advance amount the same amounts to part performance Page 13 of 15 of contract as mandated under Section 53(A) of the TP Act. This contention can be considered only to be rejected for the reason that the payment of advance amount cannot be treated as part performance because the contract was entered into on such basis with the rider that the balance amount was to be paid within a stipulated time. So part performance in the present case entails payment of the balance consideration amount. If the same is paid then the onus shifts to the defendants to perform their part of contract namely, to register the suit land in favour of the plaintiff. Therefore, invocation of the provision under Section 53(A) is misconceived. Secondly, such provision applies only to written contracts but not oral contracts. 21. Thus, from a conspectus of the analysis of facts and law and the contentions raised this Court is of the considered view that both the Courts below did not commit any illegality in refusing the decree for specific performance. As such, no ground for interference with the impugned order is made out. Page 14 of 15 22. In the result, the appeal fails and is, therefore
Decision
dismissed. There shall be no order as to costs. ………………………. Sashikanta Mishra Orissa High Court, Cuttack. 12th February, 2025/P. Ghadai, Jr. Steno Judge Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 12-Feb-2025 16:52:49 Page 15 of 15