MA/11/2022 of PARSHOTAM SINGH Vs AMARJEET SINGH AND ANOTHER on 31 December 2022

JUDGMENT

1. This Civil 1[st] Miscellaneous Appeal in terms of Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC, for short) has been preferred, by virtue of which, challenge has been thrown to order dated 31.05.2022 passed by learned Additional District Judge, Jammu (hereinafter to be referred as trial court) in file No. 13/Civil Suit/2021 titled Sh. Parshotam Singh v. Amarjeet Singh and another, vide which application filed by the appellant for interim relief has been dismissed.

2. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to give an overview of the facts giving rise to the present case.

3. The appellant laid a Suit for Specific Performance of Agreement to Sell dated 23.12.2020 in the trial Court stating inter alia that agreement to sell was executed and duly notarized between him and the respondents whereby respondents agreed to sell the suit land measuring 08 kanals and 12 marlas comprising Khasra No. 329 situate at Village Phinder, Tehsil R. S. Pura in his favour for a sale consideration of Rs.16,50,000/- (rupees sixteen lacs and fifty thousand) per kanal. The appellant, at the time of execution of agreement to sell, paid an earnest amount of Rs.5.00 lacs, which was accepted by the respondents. As per the Agreement in question, the appellant was obliged to pay the balance sale consideration within six months, at the time of registration of sale deed.

4. According to the appellant, he approached the respondents on various occasions in the month of June, 2021 for execution of sale deed and requested him to obtain Fard Intikhab from the concerned revenue authorities, but respondents sought some time to procure revenue extracts. It is allegation of the appellant that respondents not only delayed the execution of formal deed on lame excuses, but tried to enter into some negotiations with respect to the suit land with some unknown persons. It has been asserted by the appellant that he has always showed his readiness and willingness to purchase the suit schedule land but it were the respondents who delayed the execution of sale deed on one pretext or the other.

5. The respondents entered appearance in the trial Court and filed written statement whereby they are primarily affront with the contention that since the appellant/plaintiff could not arrange the balance sale consideration, therefore, he had not shown readiness and willingness on his part to perform the agreement in question. It is pertinent to mention that respondents have also contended that they are still ready to execute the sale deed, in case, appellant pays the balance sale consideration.

6. Alongside the suit, appellant had filed an application for temporary injunction. Initially vide order dated 23.06.2021, learned trial Court directed the parties to maintain status quo qua the suit land. However, on consideration of pleadings of the parties, learned trial Court vide impugned order has dismissed the said application for temporary injunction on the predominant premise that since time is the essence for specific performance of a contract and appellant has failed to pay the balance sale consideration, therefore, there was no readiness and willingness on his part to execute the sale deed.

7. Appellant has assailed the impugned order primarily on the ground that performance of a contract is a mixed question of law and fact and learned trial Court by virtue of impugned order has virtually decided the suit, which is not permissible under law. According to the appellant, it were the respondents who failed to perform their part of contract as they failed to produce the relevant revenue extracts necessary for execution of the sale deed.

8. Heard arguments and perused the file.

9. While learned counsel for the appellant has reiterated the grounds urged in the memo of appeal, learned counsel for respondents on the rival side has argued that it is apparent from the trial Court record as also the impugned order that since appellant failed to arrange the balance sale consideration and perform his part of contract, therefore, there is no illegality in the impugned order.

10. Before adverting to merits of the case, it is required to be underlined that relief for specific performance of a contract lies in the discretion of the court and court is not bound to grant the said relief merely because it is lawful to do so. This is for the reason that a civil court in order to exercise the discretion to order specific performance of a contract would require to satisfy itself that the circumstances are such that it is equitable to grant the decree for specific performance. Plaintiff, in such cases, is not only required to prove that there was a valid contract or agreement which is enforceable under law, but he is also obliged to aver and prove the readiness and willingness on his part to perform the contract from the date of agreement till the date of decree, in terms of Section 16(c) of the Specific Relief Act, 1963 (the Act of 1963, for short) which reads thus:

“16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a)xxxxx (b)xxxxx

(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.”

11. It is evident from the afore-quoted provision that a suit for specific performance of contract can be decreed only if plaintiff succeeds to prove the above referred two conditions that there was a valid contract enforceable under law and that he has performed or has always been ready and willing to perform the essential terms of the contract.

12. I am fortified in my opinion by N. P. Thirugnanam (dead) by LRs v. Dr. R. Jagan Mohan Rao reported as AIR 1996 SC 116, therelevant extract of the judgment, for facility of reference, is reproduced below:

5 MA No. 11/2022

".......the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. 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 the 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."

(Emphasis Supplied)

13. In a similar fact situation this principle has been reiterated by the Apex Court in Bal Krishna v. Bhagwan Das (dead) by LRsreported as 2008 (12) SCC 145, the relevant extract of the judgment is as below:

"13. ............the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court.”

(Emphasized)

14. It is evident from the afore-quoted pronouncements that plaintiff is not only obliged to aver but prove the readiness and willingness on his part to perform the contract, which can be proved in a full dressed trial only and not in an application for temporary injunction.

15. It is an admitted position of fact on record that parties entered into agreement to sell on 23.12.2020. As per recitals of the agreement to sell, the appellant/plaintiff has paid earnest money of Rs. 5.00 lacs to the

respondents/defendants at the time of execution of the agreement, which is duly notarized. It is pertinent to mention that as per covenants of the agreement to sell, the vendee i.e. appellant is obliged to pay the balance amount to the vendors, the respondents within a period of six months, at the time of registration of the sale deed. It is further provided in the agreement to sell that if seller fails to execute the sale deed and obtain revenue documents of the land in question within the stipulated time, he shall be liable to return double the advance amount along with construction charges and if vendee fails to pay the balance amount within the stipulated time, his advance money shall stand forfeited. It is, therefore, clear that the vendee, the appellant is obliged to pay the balance amount at the time of execution of the sale deed, meaning thereby is that the vendors, the respondents were bound to obtain the relevant revenue extracts before the stipulated period of six months.

16. The case set up by the appellant in the trial Court is that after the execution of agreement to sell, he approached the respondents on various occasions in the month of June, 2021, i.e. before the expiry of scheduled period of six months for execution of the sale deed and handing over of revenue extracts/documents to him, which respondents delayed on lame excuses. Simple question which arises for consideration is whether respondents got the relevant revenue papers, necessary for execution of the sale deed, prepared in time to facilitate the execution of the sale deed or not.

17. A perusal of the trial Court record reveals that learned counsel for the defendants, respondents herein, made a statement in the trial Court on 19.03.2022 that they had got the revenue extracts of 04 kanals of land prepared and they were ready to execute the sale deed. During the currency of arguments, learned counsel for the respondents has produced a copy of Fard-Intikhab countersigned by Tehsildar, R. S. Pura on 17.03.2022 with respect to sale of 04 kanals of land only. It may be recalled that parties entered into the sale agreement for sale of 08 kanals and 12 marlas of land and not 04 kanals. Respondents were obliged to obtain the requisite revenue extracts within six months, which they failed to do so. Since the vendee i.e appellant has already paid an amount of Rs. 5.00 lacs in advance, which has been accepted by the respondents, therefore, there is implied admission on the part of respondents that appellant/plaintiff was ready and willing to execute the sale deed.

18. Hon’ble Supreme Court inNadiminti Suryanarayan Murthy (Dead) through LRs v. Kothurthi Krishna Bhaskara Rao and ors. (2017 AIR (SC) 5052) has clearly ruled that acceptance of earnest money amounts to admission on behalf of the vendor of part performance of the contract on the part of the vendee. The relevant paragraph of the judgment is reproduced below:

“17. On perusal of the pleadings and the evidence, it is also evident to us that defendant Nos. 1 to 5, in clear terms, admitted the execution of the agreement with the plaintiff which they had entered into on 18.01.1983. They further admitted its part performance when they accepted advance money from the plaintiff.”

19. On the conspectus of the case, in the light of trite position of law, it appears that it were respondents who failed to show willingness or readiness on their part to execute the sale deed and perform their part of the contract within the stipulated period of time. Once the earnest money has been paid by the vendee and accepted by the vendor, it amounts to admission of part performance of the contract on the part of the vendee and onus shifts to the vendor to show readiness and willingness on his part to perform the contract. The essence of time in the present case is that the vendors, i.e. respondents/defendants were obliged to obtain the relevant revenue extracts within stipulated period of six months, as per recitals of the agreement, to facilitate the execution of sale deed, and they failed to do so.

20. Having regard to what has been observed and discussed hereinabove, the present appeal is allowed and impugned order is set aside. Consequently, parties are directed to maintain status quo on spot qua the suit land. Learned trial court shall proceed with the trial of case.

21. Record of the trial court be returned.

22. Interim direction, if any, shall stand vacated.

23. Parties shall appear before the trial Court on 15.02.2023.

(RAJESH SEKHRI) JUDGE JAMMU 31.12.2022 Paramjeet\ Whether the order is reportable? Yes/No