1. Heard learned counsel for the parties on admission of second appeal. After hearing it appears that appeal may be decided at this stage. Therefore, I proceed accordingly.
2. It is admitted case of the parties that plaintiff Amarnath was owner of 1/3rd share of plot no. 142S, area 30.5 decimal situated in village Chak Mubarak. It is also admitted that plaintiff had executed the registered sale-deed dated 20.07.2004 of his whole share in said land in favour of defendant Bhuwaneshwar Prasad Gupta for consideration of Rs. 3,40,000/-. It is admitted that at the time of execution the plaintiff had received Rs. 1,76,000/- as sale consideration to defendant. It is also admitted that at the time of registration of said sale-deed the defendant had agreed to pay remaining consideration of Rs. 1,64,000/- to the plaintiff within one month. It is also admitted that when defendant had not paid remaining consideration to plaintiff within one month then plaintiff had filed suit for cancellation of said sale-deed dated 20.07.2004.
3. It is also admitted fact that after execution of sale-deed in question, although remaining consideration was not paid by defendant within one month but plaintiff had raised no objection before revenue court at the time of mutation of name of defendant over disputed land. This was done before institution of original suit.
4. It is also admitted fact that after decree passed by the trial court, plaintiff had deposited the amount of Rs. 2,09,440/-, out of which Rs. 1,76,000/- amount was directed by the trial court in its judgment and remaining was interest.
5. It is also admitted fact between the parties that before filing of original suit no. 115/2006, the plaintiff's brother had filed another civil suit on 31.03.2004 for disputed property. In said suit, Court had granted stay order on 11.08.2004. It is also admitted that after filing of present original suit, the defendant Bhubneshwar Prasad had filed another original suit 176/2006 (Bhuwaneshwar Prasad v. Amar Nath) for seeking refund of aforesaid sale consideration of Rs. 1,76,000/-, then the defendant of said suit Amarnath had filed written-statement, by which he agreed to pay the consideration of Rs. 1,76,000/-. But later on said original suit no. 176/2006 was withdrawn in year 2012 (before the decision of original suit no. 115/2006 relating to present appeal).
6. In original suit no. 115/2006 the trial court had accepted written statement, framed issues, accepted the adduced evidences and then the trial court had passed judgment dated 23.09.2013, by which suit of plaintiff Amarnath was decreed for cancellation of sale-deed dated 20.07.2004 with direction to plaintiff to return the paid part consideration of Rs. 1,76,000/- to defendant, with interest @ 12 per cent per annum.
7. Against the judgment of trial court, Civil Appeal no. 23/2013 (Bhuvneshwar Prasad v. Amar Nath) was preferred, which was heard and allowed by the judgment dated 21.11.2015 by Additional District Judge, Court No.-5, Ballia. In its judgment the first appellate court had held that in present case sale-deed in question had been properly executed after which the mutation of name of defendant was carried out disputed agricultural property. The first appellate court had held that in present contract of sale and execution of registered sale-deed in question, time of payment of remaining sale consideration was not essence of the contract for transferring ownership of disputed property which was transferred by sale-deed in question from plaintiff to defendant. So the said properly executed sale-deed cannot be cancelled because said it was neither voidable nor void. But for default in performing his promise of payment of remaining consideration, plaintiff is entitled to recover remaining consideration/ damages from the defendant. Aggrieved by the judgment of first appellate court, present Second Appeal was preferred by plaintiff of original suit.
8. Learned counsel for the appellant contended that since it was agreed between the parties, and in sale-deed dated 20.07.2004 in question, that the time for payment remaining consideration of Rs. 1,64000/- is essence of the contract for sale, and since said amount was not paid by defendant, therefore the sale-deed in question is liable to be cancelled; and judgment of trial court in this regard is correct and proper, which should be upheld.
9. Learned counsel for the respondent contended that payment of remaining consideration of Rs. 1,64,000/- was not essence of contract of sale. Had this been essence of contract for sale, then plaintiff would not have given consent before revenue court at the time of mutation of name of defendant, which was carried out after one month of execution of sale-deed. He contended that defendant was ready and willing to pay remaining Rs. 1,64,000/- of unpaid consideration, but plaintiff and his brother colluded, and thereafter the plaintiff's brother had filed another suit for permanent injunction about the property sold by plaintiff, in which stay order had been passed by the concerned court, therefore the defendant was unable to pay remaining consideration in spite of his willingness. He further contended that at the best plaintiff can get payment of consideration of Rs. 1,64,000/-. He further contended that, in fact, this amount was deposited in Court by defendant/respondent, therefore there is no error in judgment of first appellate court and this appeal should be dismissed in limne.
10. Admittedly, the parties had entered into a contract for sale and in compliance of which registered sale-deed in question was executed by plaintiff in favour of defendant. It is also admitted case that part of the consideration had been paid at the time of execution of sale-deed in question and for remaining part of sale consideration it was written in sale-deed that it will be paid within one month by defendant to plaintiff. It is also admitted that remaining consideration was not paid by the defendant till the institution of the suit.
11. Learned counsel for the plaintiff contended that since whole consideration was not paid for the property to be sold, therefore, in absence of payment of consideration sale-deed in question was void, therefore it is liable to be cancelled.
12. This contention was refuted by learned counsel for the respondent, who contended that sale-deed in question was completely executed at the time of it's registration by which part consideration was paid and remaining consideration was promised. He contended that future consideration is also a good consideration. He also contended that in any case the plaintiff has right to recover the remaining consideration for which he can initiate the proceedings against the defendant for recovery and even for the damages; but completed contract of sale cannot be treated as void or illegal because the unpaid part of it's sale consideration was future payment.
13. The definition of consideration is given in Section 2(d) of the Indian Contract Act, 1982, which reads as under:-
"2 (d). When, at the desire of promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise".
14. This provisions makes it clear that "consideration" means a benefit based on promise of promisor to promisee or by transferer to transferee. Such benefits depends upon the fact, circumstances and necessities of the case. Even a promise perform for a third person can be a good and valid consideration for contract.
15. A consideration may be past, present or future. An act already done may be a good consideration. Consideration being transferred at the time of contract is present consideration and a valid one. If it is not unlawful, and a promise to perform any act in future is, if not unlawful, is a good consideration. To constitute consideration, there must be an act, abstinence or promisee or part of promisee or some other person as the desire from the promisor, and unequivocal obligation on the part of promisor to pay the amount in future constitute a good consideration.
16. Thus applying these principles in the present case the promise to pay the amount mentioned in sale-deed in question was a good consideration alongwith present consideration. This made the consideration complete, which have effect of completion of contract for sale. Therefore the registered sale-deed in question dated 20.07.2004, based on legal consideration and completed contract for sale cannot be cancelled. But the plaintiff-appellant is entitled to recover the consideration that was promised but not paid. But point to be considered is that as to whether appellant can get relief in proceeding initiated for cancellation of registered sale-deed in question, and in which relief for recovery of said amount was not sought.
17. The question is as to whether in present appeal the plaintiff-appellant can get such relief. In plaint of the plaintiff-appellant alternative 'any other relief' was sought. Whether he could be granted relief of recovery the consideration that was promised but not paid, and whether such relief may be granted to appellant in this second appeal is the point to be considered.
18. Order 41, Rule 33 CPC read as under:
"33. Power of Court of Appeal - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstandng that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order."
19. This provision makes it clear that the appellate court has power to pass any decree which ought to have been passed. It is admitted case of the parties that plaintiff Amarnath had executed the registered sale-deed dated 20.07.2004 of his whole share in said land in favour of defendant Bhuwaneshwar Prasad Gupta for consideration of Rs. 3,40,000/- and had received Rs. 1,76,000/- as sale consideration from defendant. It is also admitted that at the time of registration of said sale-deed the defendant had agreed to pay remaining consideration of Rs. 1,64,000/- to the plaintiff within one month, but had not paid remaining consideration to plaintiff. Therefore plaintiff is entitled to receive remaining unpaid consideration from defendant. Even the firstappellate court had also held that the plaintiff-appellant is entitle to recover his loss from defendant-respondent. This finding was never challenged.
20. Conventionally, this relief is sought in every plaint that if the plaintiff is found entitled for any relief, it may be granted to him. Also, conventionally this issue is framed in every plaint that to what relief, if any, plaintiff is entitled. The purpose of these two practices is that if the plaintiff is found entitled for any relief, then the Court should and may grant such relief, without going into minor technicalities. It comes within inherent jurisdiction of the Court. In present matter also the plaintiff had prayed for grant of any relief, to which he is found entitled; and also issue no. 9 was framed by the trial Court as to what relief, plaintiff is found entitled. In the present matter it is found that plaintiff-appellant had sold his property to defendant-respondents and had received part consideration. He has been found entitled for remaining unpaid consideration, as discussed above Therefore, he is entitled for the decree of payment of unpaid consideration. Apart from it, as discussed above, this is a fit case where the powers of Court under Rule 13 of Order 41 C.P.C should be exercised.
21. Therefore, this appeal is allowed, the judgment and decree of trial court in original suit no. 115/2006 as well as of lower appellate court in Civil Appeal no. 23/2013 are set aside. The plaintiff's suit is decreed, with cost, for recovery of Rs. 1,64,000/- from defendant-respondent, with interest at the rate of 6% per annum from the date of one month from 20.o8.2004. If the decretal amount is not paid within one month, the plaintiff-appellant will be entitled to recover the same from defendant respondent to process of Court, at his cost.
Order Date :- 15.3.2016.
Sanjeev / Vonod.