23. In the backdrop of the depositions of witnesses of both sides we find that the agreement, Exhibit 1, which was duly registered under the Indian Registration Act is an admitted document. The period of agreement stated to have been extended on two occasions, once up to 31-12-2003 and then up to 15th January, 2004 but both these extensions were allegedly made orally. The terms of the agreement having been written in Exhibit 1 and registered under the Registration Act the subsequent oral agreements in this respect would be barred under Section 92 of the Indian Evidence Act and no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. The terms of Exhibit 1 as regards the default clause is allegedly varied and extended but the Exhibit 1 being a registered instrument, subsequent variation of such agreement would also be required to be entered into by a registered document only.
R.F.A. No. 03 of 2005
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Decided On: 15.05.2010
Hon'ble Judges/Coram:
H.N. Sarma and Arun Chandra Upadhyay , JJ.
Citation: AIR2010Gau137, (2010)5GLR143, 2010(3)GLT407
1. This is a statutory first appeal preferred by the defendant-appellants in T.S. 16 of 2004, challenging the judgment and decree passed by the learned Civil Judge, Sr. Division No. 2, West Tripura, Agartala thereby decreeing the suit of the plaintiff-respondents by the impugned judgment and order dated 4-1-2005.
2. We have heard Mr. D.R. Choudhury, learned Counsel for the defendant-appellants and Mr. D. Chakraborty, learned Counsel for the plaintiff-respondent.
3. The pleaded case of the plaintiff in the suit is that the defendant entered into an agreement on 13-6-2003 for sale of the suit land measuring 1550 sq. ft. responding to 1 ganda 3 kara 101/2 dhurs, according to local measurement, covered by Khatian No. 10978 passed in CS Plot No. 12279, Mouja Agartala sheet No. 14 with two storied building standing thereon. The price of the land was fixed at Rs. 18 lakhs out of which Rs. 5 lakh was paid as earnest money on the date of agreement. It is stipulated in the agreement that, among other things, upon receipt of the remaining consideration on or before 31-10-2003 the sale transaction would be completed and defendant would deliver the vacant possession of the suit land and building to the plaintiff. An amount of Rs. 15,000/- was again received by the defendant No. 1 being additional earnest money and the plaintiff paid Rs. 5,15,001/- in total, to the defendant as earnest money. The first floor and three rooms on the ground floor of the suit building were under occupation of tenants. Three rooms in the ground floor are in occupation of the defendant where they are residing. In the meantime, the plaintiff having repaid the security/advance money to the two tenants in the ground floor they surrendered their possession to the defendants on which the plaintiff requested the defendants to complete the sale transaction on or before 31-10-2003 upon receipt of the remaining amount of consideration money. On 12-10-2003 the plaintiff offered to complete the sale transaction but the defendant proposed to extend the period of agreement up to 31-12-2003 and assured the plaintiff that is tenant in the first floor of the suit building would surrender vacant possession thereof during the period and they would be in a position to complete the sale transaction. The plaintiff having agreed to the proposal the date of transaction was extended up to 31-12-2003 by an oral agreement between the parties. The plaintiff thereafter again met the defendant on 19-12-2003 and requested him to complete the transaction in terms of the agreement but the defendant No. 1 requested the plaintiff to wait up to 15th January, 2004 so that in the meantime, they can make alternative arrangement for their staying. The plaintiff having agreed to the said proposal the agreement was further extended to 15th January, 2004.
4. Thereafter, on 9-1-2004 the plaintiff was served with a notice from the defendant informing him that for his failure to pay the balance of the consideration money within the extended date of agreement i.e. 31-12-2003 the defendants allegedly suffered heavy loss by making payment of security money to the tenants for eviction from the suit land and at the same time the defendants informed the plaintiff that the earnest money paid by him to them was forfeited. Upon receipt of the said notice the plaintiff instituted the suit for specific purpose of the agreement dated 13-6-2003.
5. Upon receipt of summon the defendants contested the suit by filing written statement. In their pleading, the defendants though admitted the agreement but denied the alleged offer made by the plaintiff to pay the balance consideration money and extension of the agreement beyond 31-12-2003. The assertion of giving possession of the three rooms of the ground floor after one month of the agreement was also denied. The defendants pleaded that after execution of the agreement, the defendants issued notice to the tenants to vacate the suit land and the defendants refunded the security money to their tenants. Ultimately, however, the plaintiff failed to perform the part of his agreement which resulted in huge loss to the defendants. The allegation of offering consideration money with request to completing the sale transaction either on 12th October, 2003 or on any day before or after 31-10-2003 or within the extended period by the plaintiff has been denied.
6. It is further pleaded that the defendant were always ready to execute the sale deed and hand over possession of the suit land on receipt of the rest of the consideration money from the plaintiff and though request was made to that effect the same was not done by the plaintiff. It is further pleaded that the defendant No. 1 was in dire need of money as he entered into an agreement with one Subhankar Ghosh to purchase a plot of land from him and also with one Amit Pal to purchase one Dokan Bhiti within the town itself with a view to run his business but due to non-payment of the rest of the consideration money to him by the plaintiff within the stipulated period, as per agreement, his transaction with those persons could not be completed. The assertion of the plaintiff that on several occasions he met and requested the defendants to complete the transaction has been denied.
7. On the basis of the pleadings the learned Trial Court framed the following issues:
i. Is the suit maintainable ?ii. Is the plaintiff entitled to the decree for specific performance of contract of sale dated 13-6-2003 entered into between the plaintiff and defendants ?iii. Is the plaintiff entitled to have decree as prayed for ?iv. To what relief/reliefs the plaintiff is entitled ?
8. In support of his case, the plaintiff examined himself as P.W. 1 and two other P.Ws. whereas the defendant examined himself and three other witnesses in support of his case. Both the parties also exhibited documentary evidences in support of their respective pleas.
9. The learned trial Court at the end of the trial decided all the issues in favour of the plaintiff and decreed the suit vide the impugned judgment and order, which is the subject-matter of the present appeal.
10. Learned Counsel for the defendant-appellants submits that the learned Trial Court failed to appreciate the evidences and materials on record in its proper perspective and arrived at a wrong decision. According to the learned Counsel, the plaintiff could not prove the case as pleaded in the plaint in order to get the decree. It is further contended that the plaintiff having failed to show and establish by clear and cogent evidence about his readiness and willingness to complete the transaction and offering of the remaining part of the consideration money, the learned trial Judged committed grave error in passing the impugned judgment and decree. Finally, it is contended that the impugned judgment and decree is not as contemplated under the provisions of the Specific Relief Act.
11. The submissions made on behalf of the appellant have been stiffly resisted by Mr. Chakraborty, learned Counsel for the plaintiff-respondent who supports the impugned decree. Learned Counsel contends that the plaintiff clearly proved his offer made to the defendants to pay the remaining part of the consideration money with a request to complete the sale transaction but the defendants, with a plea, one after another, refused to accept the same and complete the transaction. Consequently, the impugned judgment and decree requires no interference, more particularly, in view of the fact that the learned trial Court passed the impugned decree after proper scrutiny of the evidences and materials on record in arriving at a just decision.
12. We have given our thoughtful consideration to the submissions made by the learned Counsel for the parties and also perused the materials available on record.
13. The crux of the plaintiff's case is that an agreement was executed on 13-6-2003 to sell the suit property, for a consideration money of Rs. 18 lakhs, in favour of the plaintiff and the agreement was duly registered. The defendants also received a sum of Rs. 5,15,001/- as part of the consideration money on two different dates but in spite of the request made by the plaintiff to complete the transaction of sale receiving the remaining part of the consideration money on different dates, the defendants did not complete the transaction and ultimately intimated the plaintiff that the agreement has spent its force after expiry of the extended period on 31-12-2003.
14. The defendant denying the allegation contended that in spite of the request made by him, the plaintiff on the plea one after another did not complete the transaction by offering the balance consideration money and as a result, the transaction entered into by him with Subhankar Ghosh and Amit Paul to purchase homestead land and land for business purpose could not be completed. Consequently, no relief can be granted to the plaintiff.
15. In the backdrop of the pleaded facts and the decisions rendered by the learned trial Judge the points that would be necessary for decision in this appeal is as to whether the plaintiff could establish his claim for specific purpose of the agreement dated 13-6-2003 and as to whether the plaintiff is entitled to get a discretionary decree of specific purpose to contract in terms of Section 20 of the Specific Relief Act.
16. In support of his claim, the plaintiff No. 1 examining himself as P.W. 1 submitted his affidavit-in-chief during trial. By deposing in the Court he proved the agreement dated 13-6-2003, Exhibit-1 and also proved the payment of consideration money amounting to Rs. 5,15,001/-. He further deposed that upon receipt of the consideration money the defendant repaid the advance taken from his tenant on the ground floor and accordingly his tenant surrendered their possession to the defendant who in turn delivered possession of the three tenanted rooms in the ground floor to him and he has been in possession thereof till date. He further stated that in spite of request made by him on several occasions to complete the sale transaction on 31-12-2003 on receipt of the remaining consideration money the defendants could not deliver the vacant possession of the first floor of the suit building to him after removal of the tenant. He further stated that on 12-10-2003 when he met the defendant No. 1 and requested to complete the sale transaction on or before 31-10-2003 the defendant assured to complete the transaction within 31-12-2003 and verbally extended the agreement till that date. He further approached the defendant No. 1 on 19-12-2003 with the same request but the defendant avoided the same. Thereafter, the P.W. 1 stated that in the last part of December, 2004 he met defendant No. 1 again with the same request to complete the transaction and on such meeting the defendant assured him to complete the sale within 15-1-2004. He received the letter dated 7-1-2004 from the defendant No. 1 alleging that they failed to complete the transaction on payment of the remaining amount of consideration money of Rs. 13 lakhs within the stipulated period of agreement i.e. on or before 31-10-2003 and as such the agreement has become ineffective but the allegations made therein are denied. In his cross-examination, P.W. 1 denied the suggestion that three rooms were not delivered to him by the defendant on 12-10-2003 and that he is carrying his own business in the said three rooms. He also denied the suggestions that the defendant No. 1 did not request him for extension of time up to 31-12-2003 and he admitted that his witness Gopal Debnath is his employee. He also denied that defendant No. 1 extended time up to 15-1-2004 and that in terms of the agreement he did not pay the consideration money within the stipulated time.
17. P.W. 2, Gopal Debnath, is an employee of P.W. 1, who in his deposition corroborated the payment of consideration money of Rs. 5,15,001/- to the defendant No. 1 by the plaintiff and that the agreement was extended up to 31-12-2003 by way of oral agreement. He further deposed that on the last part of December, 2003 the plaintiff again reminded the defendant No. 1 to complete the transaction as early as possible on which the defendant assured that it would be completed within 15 January, 2004. He also stated that three rooms in the ground floor of the suit premises were handed over to him and he received the key on behalf of the plaintiff and put a lock on the shutter.
In cross, he stated that on 19-12-2003 the plaintiff accompanied by himself and others met the defendants offering the consideration money and to get the sale deed. He further admitted that except on 19-12-2003 he never visited the defendants along with the plaintiff.
18. Similarly, P.W. 3 is another employee of P.W. 1 who also supported regarding the execution of an agreement for consideration money of Rs. 18 lakh and that the defendant received Rs. 5 lakh as a part of the earnest money. P.W. 3 however, has not stated regarding the delivery of the possession of the three rooms of the ground floor to the plaintiff by the defendants.
In cross he denied that the plaintiff was not ready to make the payment of the remaining part of the consideration money to the defendant for which the transaction could not be completed.
19. In contrast to the aforesaid evidences of the plaintiff the defendant examined himself as D.W. 1. In his deposition, by way of affidavit-in-chief, he narrated the facts as stated in his written statement. In cross, he specifically denied that he has handed over the possession of the three rooms in the ground floor of the suit building to the plaintiff. He further stated that he intended to purchase a plot of land near the suit land and another plot in the Agartala town itself for his business. He denied the suggestion that he did not approach the plaintiff to execute and register the sale deed at once relating to suit land/building on taking the rest of the consideration money as per agreement. He further denied the suggestion that he extended the time up to 15th January, 2004 for shifting his family from the suit premises and that he was not inclined to execute and register the sale deed. He also denied that the plaintiff on 12th October 2003 requested him for taking the rest of the consideration money with a view to complete the sale transaction. He reiterated that notice dated 7-1-2004 was sent to the plaintiff which was received by him on 9-1-2004.
20. One Subhankar Ghosh was examined as D.W. 2. In his chief examination he stated that the defendant No. 1 with a view to purchase a plot of land orally made an agreement in the month of May, 2003 with the assurance to make payment of the consideration money within October, 2003 and as the defendant No. 1 is a well to do and reliable person of the locality he believed his assurance of making payment of the consideration money within the stipulated period. He further stated that the defendant told him that he would enter into an agreement with the plaintiff to sell the suit land and building and the part payment of the consideration money that would be paid by the plaintiff to him would be required to return the security money to his tenant for vacating the rooms of his building as would be sold to the plaintiff and the plaintiff would make payment of the total consideration money within October, 2003 or latest by December, 2003, as was discussed orally by the D.W. 1 with the plaintiff. He further stated that the defendant told him that written agreement with plaintiff for sale would be made within June, 2003.
In his deposition, he further stated that the defendant having requested him to wait for sometime as the transaction with the plaintiff could not be completed he believed and waited accordingly. However, ultimately, he sent a letter to the defendant on 28-11-2003 to make the payment of the consideration money within December, 2003 otherwise he would not sell the plot of land to the defendant as agreed.
In his re-examination he further proved the letter dated 15-11-2003 and 28-11-2003 Exhibits A and B as given by him.
In his cross, the evidence adduced by him in chief examination could not be demolished or was in any way shaken.
21. Similarly, Pradip Kr. Roy Chowdhury was examined as D.W. 3 with whom the defendant No. 1 made an agreement to purchase homestead land and building. Such agreement for purchase of the homestead land with D.W. 3 as deposed by the D.W. 1 has been corroborated by the D.W. 3. Although D.W. 3 was cross-examined in chief examination his evidence could not be in any way shaken or demolished.
22. D.W. 4 is the person who wrote the letter to the defendant on 5-12-2003 asking him complete the transaction entered into by D.W. 1. By the letter which has been exhibited as Exhibit F. F/1 D.W. 4 intimated D.W. 1 that for not completing the transaction as regards purchase of the shop house as agreed between him and D.W. 1 he intimated that the shop house would be sold to some other person.
In cross-examination the veracity of D.W.4 was not shaken.
23. In the backdrop of the depositions of witnesses of both sides we find that the agreement, Exhibit 1, which was duly registered under the Indian Registration Act is an admitted document. The period of agreement stated to have been extended on two occasions, once up to 31-12-2003 and then up to 15th January, 2004 but both these extensions were allegedly made orally. The terms of the agreement having been written in Exhibit 1 and registered under the Registration Act the subsequent oral agreements in this respect would be barred under Section 92 of the Indian Evidence Act and no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. The terms of Exhibit 1 as regards the default clause is allegedly varied and extended but the Exhibit 1 being a registered instrument, subsequent variation of such agreement would also be required to be entered into by a registered document only.
24. The plaintiff set up a specific case that three rooms in the ground floor were delivered to him by the defendant after being vacated by the tenant. In this regard, the plaintiff No. 1 (P.W. 1) has deposed that the possession of those three rooms were delivered on 12-10-2003. P.W. 2 on the other hand states that he took delivery of those three rooms on behalf of the plaintiff on 19-12-2003 and except on 19-12-2003 he never visited the defendant. In view of such contradictory statements, we are unable to accept the assertion of the plaintiff that the three rooms of the ground floor were delivered to him by the defendant. The plaintiff in order to prove his case produced two of his employees, P.W. 2 and P.W. 3. They simply corroborated a part of the statements of P.W. 1. Upon close scrutiny we do not find from the statement of P.W. 1, P.W. 2 or P.W. 3 that the plaintiff in fact offered and tendered the balance consideration money to the defendant and was ready with the money. In a suit for specific performance of contract the most crucial question is that the plaintiff must prove that he was ready and willing to complete his part of the transaction. Explanation to Section 16 of the Specific Relief Act mandates that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. On close scrutiny of the materials available on record we do not find that the plaintiff could not effectively prove that he was ready with the money amounting to Rs. 13 Lakh as offered to pay to the defendant for the purpose of completion of the sale transaction. Interestingly, upon receipt of the notice dated 7-1-2004, Exhibit 3, also the plaintiff did not file any reply asserting his readiness with the remaining part of the consideration money and willingness to complete the transaction paying the same to the defendant.
25. On the other hand, the defendant by producing D.W. 2 and D.W. 3 proved the agreement made with them for purchasing of two plots of land, one for residential purpose and one for his business purpose which however could not be completed due to non-receipt of the amount from the plaintiff as per Exhibit 1, agreement.
26. Measuring in the scale of preponderance of the probabilities and marshalling the evidence adduced by the parties we find that the evidence of D.Ws are more probable, natural and acceptable than those of the P.Ws. when measured with the measuring rod of preponderance of probability.
27. Right to get a decree for specific performance of contract is a discretionary one. Section 20 of the Specific Relief Act, mandates that the jurisdiction to decree the specific performance of contract is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; however the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of scrutiny by higher Courts.
28. Such principle have been laid down by the Apex Court in cases reported in MANU/SC/0120/2003: (2003) 4 SCC 86 : AIR 2004 SC 636 :MANU/SC/0871/2004 : (2005) 1 SCC 162 : AIR 2005 SC 1420 : MANU/SC/3291/2006 : (2006) 6 SCC 351 : 2006 AIR SCW 5470 andMANU/SC/0060/1976: (1977) 2 SCC 424 : MANU/SC/0060/1976 : AIR 1977 SC 536.
29. As indicated above, from the proved facts of the case we have no hesitation to hold that the plaintiffs had failed to prove their readiness and willingness to perform the agreement exhibited vide Exhibit 1 by offering the remaining part of the consideration money.
30. In view of the above discussions, decisions rendered by the learned trial Judge in Issue Nos. 2, 3 and 4 are not sustainable and are set aside and the decisions rendered in the suit by the learned Trial Court stands reversed. Issue No. 1 was not pressed by any of the parties before the learned Trial Court which relates to the maintainability and we do not find any materials on record as regards non-maintainability of the suit.
31. From the discussions made herein above and from the evidences adduced by the parties, it is clearly established that the plaintiff paid a sum of Rs. 5,15,001/- to the defendant as part of the consideration money. In order to do equity between the parties we also direct that the said consideration money, so received by the defendant-appellant, shall be returned to the plaintiff as stipulated in the agreement, Exhibit-1 within a period of three months.
32. In the result, the appeal stands allowed and the suit of the plaintiff stands dismissed with a direction to refund the amount of Rs. 5,15,001/- received as earnest money by the defendant-appellant to the plaintiff-respondent.
33. In the facts and circumstances of the case, we direct the parties to bear their own cost.
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