IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 148 of 2012 With CIVIL APPLICATION No. 9342 of 2012 In SECOND APPEAL No. 148 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= JEBUNISHA MAHMMAD MULLA - Appellant(s) Versus RASHIDA IBRAHIM SHAIKH - Defendant(s) ========================================================= Appearance :
MR SP MAJMUDAR for Appellant(s) : 1,MR PP MAJMUDAR for Appellant(s) : 1, MR MANAN A SHAH for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 01/10/2012
ORAL JUDGMENT
1. This Appeal under section 100 of the Code of Civil Procedure, 1908 is at the instance of original defendant against whom respondent herein had filed Regular Civil Suit No. 37 of 2006 praying for mandatory order directing the appellant to execute registered sale deed in respect of suit property bearing survey No. 639, Block No. 715 admeasuring 3 hector, 15 Are, 10 Sq.meter situated at Mangrol, District Surat, by accepting remaining amount of sale consideration of Rs. 100,000.00 from the respondent. The respondent has also prayed for execution of the sale deed through the Court Commissioner, on failure of the appellant to execute sale deed and also for permanent injunction restraining the appellant from transferring the suit land or in any manner dealing with the suit land except transferring the same to the respondent.
2. The suit was resisted by the appellant by filing written statement at exhibit 18 whereby the appellant not only denied the execution of agreement to sell but also denied the receipt of notice at her address and simultaneously contended that the suit was time barred. It was also stated in the written statement that the factum of issuance of notice was just created to earn sympathy of the Court because if at all the respondent was ready and willing to pay the remaining amount of considerations, the respondent could have deposited such amount of consideration with the Court but no such procedure to deposit the remaining amount of consideration was taken by the respondent.
3. At this stage, it is required to be noted that the suit for specific performance of the contract was on the basis of registered agreement to sell dated 27.12.2002 and price for the suit land agreed upon was Rs. 1,48,400.00 out of which 48,400.00 was stated to be paid in cash by the respondent to the appellant. The agreement to sell further recorded that the remaining amount of consideration of Rs. 100,000.00 was to be paid on or before 31.12.2002 and on payment of such amount, the appellant agreed to execute the sale deed.
4. On the basis of the pleadings, learned Trial Judge framed following issues:
1. Whether the plaintiff proves that the suit land is purchased on 27.12.2002 by a registered agreement to sell(Banakhat).
2. Whether the plaintiff is entitled to the relief claimed.
3. Whether the suit of the plaintiff is barred by non-joinder of necessary parties and mis-
joinder of necessary parties.
5. In the suit, respondent examined her husband Nashir Mustafa Belim who also happened to be Power of Attroney of the respondent. The respondent also examined another witness named Harising Anupsingh at exhibit 42 to prove that though the respondent was ready and willing to pay remaining amount of consideration to get the sale deed executed, still the appellant did not come forward to execute the sale deed inspite of repeated requests.
6. On the other hand the appellant examined herself at exhibit 56 stating that the agreement to sell was got up and that she never agreed to sell her suit land and that the suit was filed with an intention to snatch away her property.
7. On appreciation of the evidence available on record, learned Trial Judge allowed the suit and ordered the appellant to execute the sale deed on the basis of the agreement to sell dated 27.12.2002 in favour of the respondent by accepting the remaining amount of consideration of Rs. 100,000.00 and to hand over the possession of the suit land.
8. The appellant challenged the above judgment and decree by filing Regular Civil Appeal No. 25 of 2008 in the Court of learned Additional District Judge, Surat. Before the First Appellate Court, the main contentions were to the effect that the appellant had not executed the agreement to sell, notice was not served to the appellant, that the suit was not filed within the time limit, that the evidence was given by the power of attorney which was not permissible, that the details about frequent visits by the respondent of the appellant for the purpose of execution of the sale deed was not proved, that the respondent had not made any effort to get the sale deed executed, that it was not possible to believe that the appellant would execute the agreement to sell for such large land for consideration of only Rs. 1,48,000.00.
9. Learned Appellate Judge examined and considered all the contentions raised by the appellant on the basis of the evidence available on record and found no error committed by learned Trial Judge and dismissed the Appeal of the appellant by judgment and decree dated 4.05.2012, which is under challenge before this Court. Learned advocate Mr. Manan Shah has appeared on caveat for the respondent.
10. I have heard learned advocate Mr. S.P.
Majmudar for the appellant and Ms. Ketty Mehta with Mr. Manan Shah for the respondent.
11. Learned advocate Mr. Majmudar has submitted that the respondent has not averred in the plaint that she was ready and willing to perform her part of the contract. He submitted that Section 16(C) of the Specific Relief Act, 1963 mandates the plaintiff of a suit for specific performance of the agreement to aver and prove that the plaintiff has performed and always been ready and willing to perform his part of the essential terms of the contract. He submitted that in absence of such averments, specific performance of the contract cannot be enforced in favour of such person. He submitted that in the plaint the respondent has not made any such averments as required by Section 16(C) of the Specific Relief Act, 1963. As per his submission, the respondent has not even proved that she was always ready and willing to perform the essential terms of the contract, which are to be performed by her. He submitted that in absence of such averments and proof thereof the Courts below could not have allowed the suit of the respondent for specific performance of the contract. He, therefore, requests to raise substantial question of law as to whether in absence of non-compliance of the requirement of Section 16(C) of the Specific Relief Act, 1963 the respondent-plaintiff was entitled to a decree of the specific performance of the contract.
12. Learned advocate Mr. Majmudar further submitted that time for payment of remaining amount of consideration was essence of the contract. He submitted that the terms as regards payment of the remaining amount of consideration on or before 31st December, 2002 was not dependent upon any condition to be complied with by the appellant. He submitted that the term for making payment of remaining amount of consideration within time bound period was clear and unambiguous and there was no scope left for any of the parties to construe such time limit as not essence of the contract. He submitted that undisputedly the respondent had not made payment of remaining amount of consideration on or before 31st December, 2002 and therefore, in no circumstances the respondent was entitled for execution of sale deed in her favour on the basis of the agreement to sell. He submitted that if payment of remaining amount of consideration was not dependent on any further condition to be complied with by the appellant, it was the respondent, who could be said to have not performed her part of the contract and in fact can be said to have committed breach of the term of the contract and such respondent was not entitled to get specific performance of the contract through the Court of law. Mr. Majmudar, therefore, wants this Court to raise further substantial question of law as to whether the respondent was entitled to specific performance of the contract in her favour when she had failed to make payment of remaining amount of
contract for the purpose of making payment of remaining amount of consideration.
13. Mr. Majmudar contended that the respondent-
the respondent herself never entered into the witness box. He submitted that the respondent has come out with the case that she performed her part of the contract, that she had shown readiness and willingness to perform her part of the contract, that she had already issued registered notice calling upon appellant to accept the remaining amount of consideration and to execute the sale deed before the expiry of the time limit. Mr. Majmudar pointed out that all
performance of the contract, it is for the plaintiff to give evidence and to prove not only the execution of the agreement but also ready and willing to perform his/her part of the contract. He submitted that in the present case, evidence is given by the power of attorney of the respondent. The power of attorney was given after execution of agreement to sell. Such power of attorney was neither authorised nor entitled to depose before the Court on behalf of the respondent. Mr. Majmudar submitted that the evidence of such power of attorney was required to be ignored for the purpose of deciding the present suit for specific performance of the contract. Mr. Majmudar submitted that even if such power of attorney happens to be near relative, then also the agreement holder is not absolved from her obligation to prove the execution of agreement to sell and ready and willing to perform her part of the contract, which is required to be performed by such agreement holder. He further submitted that the power of attorney holder can give evidence only in respect of the acts for which such power of attorney holder is authorized by donor of the power and any evidence beyond such acts cannot be relied on by the Court below for the purpose of deciding the suit for specific performance of the contract. Mr. Majmudar, therefore, wants this Court to raise further substantial question of law as to whether the Courts below were justified in passing of decree of specific performance of the contract on the basis of the evidence of power of attorney in absence of evidence of the agreement to sell holder whose obligation was to comply with the requirment of Section 16(C) of Specific Relief Act. Mr. Majmudar thus urged that the above three important substantial questions of law arise for the consideration of this Court and therefore, this Court may entertain the Appeal by formulating substantial questions of law suggested by him.
14. Learned advocate Mr. Majmudar has relied on following authorities. (i) J. SAMUEL AND OTHERS VS. GATTU MAHESH AND OTHERS reported in 2012 (2) SCC 300 (ii) RAJ KISHORE (DEAD) BY LRS. VS. PREM SINGH AND OTHERS reported in 2011 (1) SCC 657 (iii)MANJUNATH ANANDAPPA URF SHIVAPPA HANASI VS. TAMMANASA AND OTHERS reported in 2003 (10) SCC 390 (iv)MAN KAUR (DEAD) BY LRS. VS. HARTAR SINGH SANGHA reported in 2010 (10) SCC 512 (v) OUSEPH VARGHESE VS. JOSEPH ALEY AND OTHERS reported in 1969 (2) SCC 539 (vi) RAM AWADH (DEAD) BY LRS. AND OTHERS VS. ACHHAIBAR DUBEY AND ANOTHER reported in AIR 2000 SC 860,(vii) SARADAMANI KANDAPPAN VS. S. RAJALAKSHMI AND OTHERS reported in 2011 (12) SCC 18, (viii) Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. And others reported in AIR 2005 SC 439 (ix) NIRMALA ANAND VS. ADVENT CORPORATION (P) LTD. AND OTHERS reported in 2002 (8) SCC 146 (x) Kanshi Ram Vs. Om Prakash jawal and Others reported in AIR 1996 SC 2150 (xi) BAI BACHIBEN VELABHAI VS. STATE OF GUJARAT AND ANR. reported in 1995 (1) GLR 761 (xii) KHIMJIBHAI HARJIVANBHAI PATADIA VS. PATEL GOVENDBHAI BAGVANBHAI & ORS.
Reported in 2006 (4) GLR 3058
15. In reply, learned advocate Ms. Ketty Mehta appearing with Mr. Shah for the respondent, submitted that none of the substantial questions of law suggested by Mr. Majmudar has arisen for consideration of this Court. She submitted that the respondent had duly complied with the provisions of Section 16(C) of the Specific Relief Act, 1963 not only by making averments in the plaint, but also by rendering proof thereof. She took the Court to the averments made in the plaint to point out that not only the respondent has stated in the plaint that the respondent had many times personally asked the appellant to accept the remaining amount of consideration and to execute the sale deed before 31.12.2002, but the appellant went on delaying the date for execution of the sale deed and therefore, the respondent had to serve notice dated 27.12.2005 through her advocate by registered AD post and also by Under Postal Certificate (U.P.C.) calling upon the appellant to come and accept the amount and execute the registered sale deed in favour of the respondent. She further took the Court to the averments made in plaint in paragraph No.2, wherein it is stated that since the appellant had not accepted the remaining amount of consideration after the legal notice and refused to execute the sale deed, the cause had arisen for the respondent to file suit in the jurisdiction of the Trial Court. She thus submitted that there was sufficient compliance with provisions of Section 16(C) of the Specific Relief Act, 1963. She submitted that the contention of non-compliance of Section 16(C) of the Specific Relief Act, 1963 was never raised by the appellant before any of the Courts and it is now not permissible to the appellant to raise such point before this Court. She submitted that such point since required to be examined on the facts of the case, it can not be substantial question of law and, therefore, in the facts of the case such question cannot be said to have arisen in this Appeal.
16. As regards the second submission of Mr. Majmudar that time for payment of remaining amount of consideration was essence of the contract, learned advocate Ms. Mehta submitted that from the terms of the agreement between the parties, it is very clear that parties never intended to take the time for making payment of remaining amount of consideration as essence of contract. She submitted that making payment of remaining amount of consideration and execution of sale deed on receipt of such payment were reciprocal terms to be complied with by both the parties. She submitted that the term of making payment of remaining amount of consideration in the agreement cannot be read in isolation leaving the conjoining sentence in the agreement which provided for execution of the sale deed simultaneously on receipt of payment of the remaining amount of consideration. She submitted that the agreement clearly provides that on respondent making payment of remaining amount of consideration on or before 31 December, 2002, the appellant was to simultaneously execute the sale deed for the suit land. She submitted that the respondent proved before the Court below that the respondent was ready and willing to make payment of remaining amount of consideration before 31 December, 2002. The appellant was called upon by registered notice and it was then for the appellant to receive the remaining amount of consideration and to execute the sale deed. She submitted that in view of the above evidence and in view of the terms for performance of reciprocal promises by the parties, time for payment of remaining amount of consideration was never understood and cannot be taken as essence of the contract. She further submitted that this issue was also not raised by the appellant and it is not open for the appellant to raise such issue for the first time in the Second Appeal.
17. As regards last contention of Mr. Majmudar about the evidence given by the power of attorney holder, learned advocate Ms. Mehta submitted that the power of attorney holder was none else than the husband of the respondent. She pointed out that right from the beginning the husband of the respondent had dealt with the appellant for the transaction contained in the agreement to sell. She submitted that in fact husband of the respondent is one of the witnesses to the agreement to sell. She further submitted that provisions of Section 120 of Evidence Act also permits near relatives especially, the husband of a lady to give evidence on her behalf for any proceedings before the Court to prove the transaction with such lady and also submitted that as per the principles of law finally settled by Supreme Court, if, power of attorney holder happens to be near relative, such power of attorney holder is entitled to depose on behalf of the donor of power of attorney. She submitted that the husband of the respondent having full knowledge about the transaction of the agreement to sell and subsequent events taken place as regards meetings etc. with the appellant, Courts below have rightly relied on the evidence of such power of attorney holder and decree passed by both the Courts below for specific performance of the contract could be said to be passed legally and in accordance with law. She submitted that for such issue also no substantial question of law is required to be formulated by this Court as suggested by Mr. Majmudar.
18. She lastly pointed out that the appellant is otherwise also not entitled to challenge the judgment and decree passed by both the Courts below because of her conduct. She drew the attention of the Court to page No. 71, a communication dated 21.4.2010 addressed by Sub- Registrar, Mangrol to the respondent where in response to the application of the respondent dated 20.4.2010 under the Right to Information Act, the respondent was informed that a sale deed dated 19.7.2008 for Rs. 2,34,000.00, executed by the appellant in favour of one Daxaben, daughter of Babubhai Nagarseth was presented for registration but because of the injunction issued by the Court by order dated 10.05.2006 in the suit, the registration of the sale deed had been postponed. From the above information learned advocate Ms. Mehta has seriously urged that even after injunction was issued by the competent Court, the appellant had courage to execute the sale deed in respect of the suit property. She submitted that such appellant is not entitled to any relief in this Appeal. She ultimately, urged to dismiss the Appeal of the appellant.
19. Learned advocate Ms. Mehta has also relied on following case laws:
(i) Pandurang Ganpat Tanawade Vs. Ganpat Bhairu Kadam and others reported in AIR 1997 SC 463,
(ii) Narayan Nagorao Vs. Amrit Haribhau reported in 1957 BOMBAY 241, (V 44 C83 Nov.), (iii) Rajya
Tulsibhai Patel Vs. Benar Enterprise and Others reported in AIR 1988 GLH 42 (iv) G. Suryakumari Vs. B. Chandramouli reported in 2009 (0) GLHEL-SC 47849.
20. As regards the first substantial question of law suggested by Mr. Majmudar, on perusal of the judgment and decree passed by both the Courts below with the paper book of the documents made available to the Court by learned advocate for the respondent, it appears that the date fixed for payment of remaining amount of consideration was 31 December, 2002. In the plaint itself the respondent has averred that on 27.12.2005, the respondent had issued legal notice through her advocate by registered post as well as by U.P.C. The respondent has also averred that before 31.12.2005 the respondent had made efforts many a times by making personal visits to the appellant requesting the him to accept the remaining amount of consideration and to execute the sale deed. It is further stated in the plaint that the registered AD notice has come back with endorsement as “Unclaimed”. These were not the only averments but the respondent has further stated in the plaint that the respondent again went on 15.01.2006 with one Harisingh and Nasir Mustfa to request appellant to execute the sale deed in respect of the suit land but the appellant had asked the respondent to wait for a week but thereafter the appellant had not shown any willingness to execute the sale deed and had started making attempts to go to foreign country. It is further averred that appellant deliberately did not accept the legal notice issued by the respondent and also did not execute registered sale deed by not accepting the remaining amount of consideration and thereby did not act upon terms of agreement to sell. Above are the relevant averments in the plaint.
21. In response to the above such averments in the plaint, it appears that the appellant had not taken any concrete objection in written statement as regards ready and willingness on the part of the respondent but had cursorily stated in the written statement that if the respondent was showing willingness to make payment of remaining amount of consideration such amount was required to be deposited in the Court but the respondent had not taken any such procedure of making deposit in the Court.
22. To prove the avernments in the plaint about readiness and willingness of the respondent, the respondent examined her husband, who was holding power of attorney. In his deposition he stated the details about the measurement of the suit land, about the service of registered notice dated 27.12.2012, about the willingness of the respondent to make payment of remaining amount of Rs. 100,000.00, about the execution of the agreement to sell in his presence by the appellant whereon he signed as a witness, about making personal visits to the appellant requesting the appellant for execution of the sale deed. The respondent also examined one more witness Harisingh whose reference is there in the plaint itself. Said Harisingh has deposed that since the appellant was not ready to execute the sale deed, the respondent had to serve notice through registered AD post and thereafter he along with the husband of the respondent personally went to the appellant on 15.01.2006 and orally requested the appellant to execute the sale deed but the appellant asked the respondent to wait for a period of one week. Thus the averments made in the plaint for readiness and willingness on the part of the respondent were supported by the evidence of the husband of the respondent as also one witness of the respondent. In my view, by such averments and the evidence to prove such averments, the requirements of Section 16(C) of the Specific Relief Act,1963 could be said to have been fully complied with. The respondent could be said to have been ready and willing to perform her part of the contract.
23. On this question, following judgments need to be referred.
23.1 In the case of J.Samuel and others Vs. Gattu Mahesh and others (Supra) Hon'ble Supreme Court has observed in Paragraph No. 14 as under:
“ Before proceeding further, it is also useful to refer to Section 16(c) of the Specific Relief Act which reads as under:
“16. Personal bars to relief:- specific performance of a contract cannot be enforced in favour of a person--
(a)-(b)
(c) who fails to aver and 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 therms 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 must ever performance of, or readiness and willingness to perform, the contract according to its true construction.”
It is clear that in a suit for specific performance of a contract, unless there is a specific averment that he has performed or has always been ready and willing to perform the essential terms of the contract, the suit filed by him is liable to be dismissed. In other words, in the absence of the abovesaid claim that he is always ready and willing to perform his part of the contract, the decree for specific performance cannot be granted by the Court.”
23.2 In the case of Manjunath Anandappa Urf “The decisions of this Court, therefore, leave no manner of doubt that a plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made by the plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16(c) of the Specific relief Act may be held to have been complied with.”
23.3. In the case of Ouseph Varghese Vs. Joseph Aley and others (Supra) Hon'ble Supreme Court has held that plaintiff must plead readiness and willingness to perform his part of the agreement and in absence of the such allegation, the suit is not maintainable.
23.4. In the case of Ram Awadh (Dead) (Supra) Hon'ble Supreme Court has held in paragraph No. 6 as under:
“ The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirement of Clauses (a),(b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit...”
24. In the case of Pandurang Ganpat Tanawade (Supra) relied on by Ms. Ketty Mehta, Hon'ble Supreme Court has observed in Paragraph No. 5,6,7 and 8 as under:
“In paragraph 6 the appellant has stated that he sent a notice dated June 5, 1976 to Smt. Janabai asking her to execute the sale-deed and that she neither gave a reply to the said notice nor executed the sale-deed. In the said paragraph the appellant has also stated that he sent a registered notice to the respondents on march 13, 1978 asking them to execute the sale-deed but they did not execute the sale-deed. In paragraph 10 the appellant has stated that as per conditions in the deed of agreement for sale the appellant is willing to pay fees which is required for a sale- deed, cost of registration and a balance of amount of Rs. 3,200/-. This shows that in paragraph 6 of the plaint the appellant has averred that after the execution of the agreement for sale, he sent a registered notice dated May 5, 1976 to Smt. Janabai to execute the sale-deed and again sent a notice dated March 13, 1978 to the respondents asking them to execute the sale-deed, meaning thereby that the appellant had been making efforts to have the sale-deed executed by issuing notices dated May 5, 1976 and march 13, 1978. Moreover, in paragraph 10 a specific averment has been made by the appellant that as per conditions in the deed of agreement for sale, he is willing to pay fees which is required for the sale deed, cost of registration and the balance amount of Rs. 3,200/-. The said averments clearly contain a statement about the readiness and willingness on the part of the appellant to perform his part of the contract under the agreement for sale.
6. Apart form the said averments in the plaint, we find that the appellant, in his deposition before the Court, has stated:---
“I issued notice to heirs of Janabai to execute the sale deed. I was ready to pay remaining amount an act as per agreement. The defendants did not execute the sale deed as per notice. They replied my notice (Exh. 50). As defendants are not willing to execute the sale deed I have filed this suit. I am ready to pay remaining amount immediately. I am ready to pay costs as per agreement.”
7. Respondent No. 1, also in his deposition before the Court, has stated:--
“It is true that plaintiff was ready for sale-deed, but I was not ready.”
8. In view of the aforesaid statements of the appellant and respondent No. 1 as well as the averments contained in paragraphs 6 and 10 of the plaint, it must be held that the appellant has not only averred, but has also proved that he was ready and willing to perform his part of the contract under the agreement for sale. The appellate Court and the High Court were, therefore, in error in holding that the appellant had failed to comply with the requirements of Section 16(c) of the Specific Relief Act and the appellant must be held entitled to a decree for specific performance of the contract in the suit filed by him. We find that the possession of the land was delivered to the appellant in 1976 at the time of execution of the agreement for sale and he is in possession of the same and has been enjoying the same since then. Having regard to the depreciation in the value of the rupee during this period, we feel that the appellant should be required to pay a sum of Rs. 16,000/- in lieu of the balance amount of Rs. 3,200/- payable by him.”
25. In the case of Rajat Tulsi Patel (Supra) Hon'ble Division bench of this Court has held that if the provisions of Section 16(c) of Specific Relief Act is found to be substantially complied with, it could be said that the plaintiff has fulfilled the requirement of showing readiness and willingness to perform his part of the contract and no particular set of words or exact words need to be used in the plaint. If the totality of the circumstances and allegations in the plaint disclose that the requirement of statutes are specified, the omission on the part of the plaintiff to adhere about the language or phraseology of the forms or the statute will be of no consequence.
26. In the light of the above, what is required to be considered is, the averments made by the plaintiff in the plaint to show readiness and willingness coupled with notice containing such averments supported by the evidence could be sufficient compliance of the requirement of Section 16(c) of the Specific Relief Act. I have already discussed above that from the averments in the plaint, the contents of the notice and evidence of the husband and of witness of the respondent, there was sufficient compliance of the requirement of Section 16(c) of the Specific Relief Act. Therefore, it could be very well said that the compliance made by the respondent was in consonance with the law declared by the Hon'ble Supreme Court in the above decisions.
26.1. However, learned advocate Mr. Majmudar laid further emphasis on the decision of Manjunath Anandappa (Supra) and pointed out that in the said case, the averments as regards issuance of the registered notice were mentioned in the plaint and such facts about the notice were also stated in the deposition of the witness, still Hon'ble Supreme Court has held that this could not be said to be complied with the mandatory requirement of Section 16(c) of the Specific Relief Act, 1963. Mr. Majmudar pointed out that in the present case also, the averments are only as regards registered notice in the plaint and evidence was led in support of such averments. Such could not be said to be in compliance with the mandatory requirement of Section 16(c) of the Specific Relief Act, 1963.
26.2. As against this, learned advocate Ms.Mehta has pointed out that in the present case, plaint not only the contains the averments of the notice but also contain more averments and also there is evidence in support of such averments to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963. She also pointed out that in the case before the Hon'ble Supreme Court, the suit was filed after more than a period of three (3) years from the date of agreement to sell, whereas in the present case the suit is filed within only two (2) months from the last date of making payment of balance consideration. This is also an additional factor in favour of the respondent. She thus submitted that since the plaint contains sufficient averments so as to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963 and since the respondent has immediately filed the suit for execution of the sale deed on the basis of the agreement to sell, the decision in the case of Manjunath Anandappa (Supra) would have no application.
27. I have already discussed above that the plaint contains necessary averments, over and above the factum of issuance of registered notice and also discussed that through one more witness, averments in respect of whom are already there in the plaint, the respondent had proved her readiness and willingness to comply with her part of the contract. Therefore, I agree with the submission led by Mr. Majmudar that the decision in the case of Manjunath Anandappa (Supra) would have no application to the facts of the case. Even otherwise, the respondent has not wasted any time in filing the suit after issuance of the notice which was before the last date of making payment. The suit was immediately filed within two (2) months from the last date of making payment of balance consideration. In view of this, I am of the view that the decision in the case of Manjunath Anandappa (Supra) will have no application to the present case.
27.1. It is also required to be noted that aspect of non-compliance of requirement of Section 16(C) of the Specific Relief Act, 1963 was never seriously raised by the appellant either before the Trial Court or before the First Appellate Court. In my view, such issue being the question of fact cannot be permitted to be raised first time before this Court. However, this Court has found that there was sufficient compliance of the provisions of Section 16(c) of the Specific Relief Act,1963, and therefore, it can not be said that substantial question of law has arisen on this issue for consideration of this Court.
28. As regards second substantial question of law suggested by Mr. Majmudar that time for making payment of remaining amount of consideration was the essence of the contract, it is required to be noted that payment of remaining amount of consideration provided in the agreement is though not dependent upon any further compliance by the appellant, however, it is provided that on making payment of remaining amount of consideration the appellant was simultaneously to execute the sale deed in favour of the respondent. Therefore, there were reciprocal promises to be performed and complied with by the parties. In view of the such term in the agreement to sell, what is required to be examined is the evidence available on the record in the context of the pleadings of the parties. The respondent as stated above has averred and proved the readiness and willingness to perform her part of the contract by making payment of the remaining amount of consideration. It is averred in the plaint that before 31.12.2002, the respondent had already issued registered notice calling upon the appellant to execute the sale deed by receiving the remaining amount of consideration. The respondent has proved the issuance of the registered AD notice as also by U.P.C and the same is believed by the Courts below on appreciation of evidence. In view of the reciprocal terms and the evidence available on record that even after the notice, the appellant had not come forward to execute the sale deed, the time cannot be stated as essence of the contract. At this stage, it is required to be noted that within only two months after service of the notice the respondent has approached the Court of law for the purpose of the specific performance of the contract. Therefore, In my view, even if the payment of remaining amount of consideration was not made before 31 December, 2002, the appellant was not entitled to say that because of such non payment, the respondent was not entitled to specific performance of the contract especially, when there are averments in the plaint and the proof thereof to the effect that the respondent was always ready and willing to make payment of remaining amount of consideration. At this stage, the judgment in the case of SARADAMANI KANDAPPAN VS. S. RAJALAKSHMI AND OTHERS reported in 2011 (12) SCC 18, relied on by Mr. Majmudar in support of the above contention need to be referred to:
“[28] The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. If for example, the vendor discloses in the agreement of sale, the reason for the sale and the reason for stipulating that time prescribed for payment to be the essence of the contract, that is, say, need to repay a particular loan before a particular date, or to meet an urgent time-bound need (say medical or educational expenses of a family member) time stipulated for payment will be considered to be the essence. Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract.
[29] Let us consider the terms of the agreement of sale in this case to find out whether time was the essence. The standard agreements of sale normally provide for payment of earnest money deposit or an advance at the time of execution of agreement and the balance of consideration payable at the time of execution/registration of the sale deed. In the absence of contract to the contrary, the purchaser is bound to tender the balance consideration only at the time and place of completing the sale [see clause (b) of section 55(5) of Transfer of Property Act, 1882 'TP Act' for short]. In this case we find that there is a conscious effort to delink the terms relating to payment of balance price (clauses 4, 5 and 6) from the term relating to execution of sale deed (clause 7) and making the time essence only in regard to the payment of the balance sale consideration. There is also a clear indication that while time would be the essence of the contract in regard to the terms relating to payment of balance price, time would not be the essence of the contract in regard to the execution of the sale deed.
[33] Apart from the above, the plaintiff in her evidence admitted that time for performance was the essence of the contract vide the following questions and answers :
Q : The payment of the due date and in case of failure on the part of the party of second part, the party of the first part shall cancel the agreement. Is this in the agreement or not?
Ans. Yes. The dates and the title are important. Q : Do you know that everywhere in this agreement one thing is made clear that time is the essence of the agreement ?
Ans. Yes. Time is the essence of the contract and also the title must be proved in the agreement.
Her evidence also shows that she apparently did not have the funds to pay the balance of Rs. 75,000 due on 6.4.1981 and Rs.75,000/- due on 30.5.1981 as was evident from the Bank pass book. It was, therefore, possible that being not ready to perform the contract in terms of the agreement, the appellant had invented a modification in the terms of the agreement.
[45] It was contended that though time was the essence of the contract in regard to payments, it was equally necessary for the defendants to produce original title deeds to show that there were no encumbrances over the suit properties; that after paying the first instalment of Rs.1,00,000 on 28.2.1981, the plaintiff and her husband got doubts about the original title deeds as they learnt that the properties had been mortgaged; that therefore the plaintiff's husband along with his friends Babu (PW2) and Balaraman (PW3) went to defendants' house in March, 1981 and made inquiries and then the defendants requested for some more time promising that they would get original title deeds for verification and therefore on 2.4.1981 only Rs.25000 was paid towards the second installment of Rs.1,00,000 due on 6.4.1981 with the understanding that the balance of Rs. 75,000 towards the second installment as also the third installment would be paid only after the production of original title deeds. Therefore, the contention was that though time regarding payment was essence of the contract and the balance consideration of Rs. 2,75,000 had to be paid in three installments of Rs.1,00,000, Rs.1,00,000 and Rs.75,000 on 28.2.1981, 6.4.1981 and 30.5.1981 respectively, there was an alteration in those terms, as per an oral understanding in March, 1981 to postpone payment of the second and third installments, till the original documents of title were produced by the defendants.
[46] In short the emphasis of the plaintiff was on an oral agreement altering the time schedule and the terms which made time for payment the essence of the contract. Neither the Single Judge nor the Division Bench accepted the claim of appellant that there were any such discussions or oral understanding in March 1981 leading to variation in terms or that the time for payment was postponed.
[47] Before this court there was again a significant shift in the stand of the appellant. Faced with the finding that time for payment was the essence and that there was no change in the terms relating to payment, the emphasis is on a different contention based on section 52 of the Contract Act. The appellant contended that the agreement of sale laid down the order in which the reciprocal promises were to be performed; that it first required respondents 1 to 3 as vendors, to furnish the original title deeds and a nil encumbrance certificate to satisfy the appellant about their title; that the appellant had to pay the balance of the sale price only after the vendors discharged their said obligation; that the appellant was entitled to withhold the balance sale price till the vendors discharged their liabilities, secured the original title deed and delivered them to her and satisfied her about their title; and that without performing their obligation by producing the original title deeds, the vendors cannot expect performance by the purchaser, to pay the balance price. The appellant contended that courts below failed to appreciate the scope of sections 51 to 54 of the Contract Act.
[57]. The terms of the contract makes it clear that payment of sale price did not depend on execution of the sale deed. The sale deed was not required to be executed within any specific period. The purchaser had to fulfil her obligation in regard to payment of price as provided in clause (4) and thereafter vendors were required to perform their reciprocal promise of executing the sale deed, whenever required by the purchaser, either in her name or in the names of her nominees. The sale deed had to be executed only after payment of complete sale consideration within the time stipulated. In these circumstances, section 52 of the Contract Act does not help the appellant but actually supports the vendors-respondents.”
28.1. The judgment in the case of Raj Kishore (Supra) was a case about reconveyance of immovable property and therefore, will not be applicable to the facts on hand. Therefore, no detailed reference of the said case is made on the principle of law, as regards time being the essence of the contract. In my view, the decision in the case of Sharadmani Kandappan(Supra) relied on by Mr. Majmudar would not be of any help to the appellant because in the said case the parties clearly intended to make payment of balance price within the time stipulated without providing execution of the sale deed within the time frame and it was left to the parties to execute the sale deed subsequently. In the present case as rightly submitted by Ms. Mehta, making payment of remaining amount of consideration and execution of sale deed were clearly intended to be simultaneously done and thus it was reciprocal promises to be performed by both the parties at the same time. Not only this but in the case on hand the respondent did not want to postpone the payment of balance amount of consideration and, therefore, before the time ending, the respondent sent notice by RPAD and U.P.C calling upon the appellant to accept the balance amount and to execute the sale deed. In such case time cannot be said to be essence of the contract. Such was not the case before the Hon'ble Supreme Court in the above decision. Therefore, this decision is of no help to learned advocate for the appellant. I am, therefore, of the view that on the second substantial question of law also the appellant has no case as I find that the parties never intended to treat the time as essence of the contract.
29. Then remains the last substantial question of law suggested by Mr. Majmudar that the evidence of power of attorney could not be relied on for the purpose of proving the case of the respondent on various aspects including ready and willingness on the part of the respondent to perform her part of the contract. On this aspect, it is required to be noted that the power of attorney is none else than the husband of the respondent. He has clearly stated in is deposition that right form the execution of the agreement to sell, he had been looking after the transaction and making personal visits of the appellant with another witness for the purpose of execution of the sale deed. He was one of the witnesses who signed the agreement to sell.
30. Learned advocate Ms. Mehta on this issue has rightly relied on the provisions of Section 120 of the Indian Evidence Act, which provides as under:-
“120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.-- In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.”
31. Over and above, the legal provisions pointed out by Ms. Mehta, the decision in the case of MAN KAUR (DEAD) BY LRS. VS. HARTAR SINGH SANGHA (Supra) needs to be referred on this issue. In the said decision Hon'ble Supreme Court after considering Janki Vashdeo Bhojwani (Supra) has summarised the legal position as under:
“The legal position as to who should give evidence in regard to matters involving personal knowledge can be summarized as follows:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is, however, a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.”
32. I have already discussed the evidence of the husband of the respondent, who was a power of attorney and one more witness examined by the respondent. In my view, when the husband had witnessed and fully managed the transaction, he can be said to have full knowledge of the transaction and therefore, his evidence was possible to be accepted including of readiness and willingness of the respondent to perform her part of the contract. Thus in my view, the Courts below have not committed any error in considering and relying the evidence of power of attorney holder of the respondent. Therefore, the appellant has failed to make out any case even on last substantial question of law suggested by Mr. Majmudar.
33. Mr. Majmudar of course, argued the aspect of rise in price and aspect of cash payment referred in the agreement by stating that there was no proof of making cash payment of Rs. 48,000.00 by the respondent. On the aspect of rise in price though Mr. Majmudar has relied on judgment in the case of Nirmala Anand Vs Advent Corporation (P) Ltd. And others (Supra) and Kanshi Ram Vs. Om Prakesh Jawal and others (Supra) but the same would not be of any help to Mr. Majmudar because in the present case not only the transaction was not so old but it is found as a matter of fact that during pendency of the suit, the appellant has entered into fresh sale transaction as stated in earlier part of this judgment and, therefore, such plea of such appellant cannot be considered. In view of this the contention of Mr. Majmudar on the aspect of rise in price is not considered. This Court having found that for none of the legal issues the appellant could successfully raised substantial question of law, this Court will be left with no other option but to dismiss this Appeal.
34. However, while dismissing the Appeal this Court may not shut its eyes towards the fact which emerges from the record. There is no dispute that right from the issuance of the legal notice by the respondent, the respondent has not tendered the balance amount in the Court. The Court is aware that the respondent was not under any such legal obligation to deposit the amount in the Court. The suit is of the year 2006, the First Appeal came to be disposed of on 2.5.2012, therefore, almost six (6) years the amount which would have been otherwise available to the appellant was retained by the respondent.
35. At this stage, reference is required to be made to the judgment of Hon'ble Supreme Court in the case of J.P. BUILDERS AND ANOTHER VS. RAMADAS RAO AND ANOTHER reported in 2011 (1) SCC 429 wherein Hon'ble Supreme Court while confirming the decree for specific performance of the contract, directed the plaintiff of that case to pay interest to the other party. Keeping in mind, the said decision of Hon'ble Apex Court and taking undisputed position to the effect that the respondent had retained the amount for about six (6) years, this Court sought to know from learned advocate for the respondent as to whether the respondent would be willing to pay interest on the balance amount which was retained by her.
36. Learned advocate Ms. Ketty Mehta and Mr. Shah candidly stated before the Court that the respondent would be ready and willing to pay interest at whatever rate the Court decided on the balance amount remained to be paid for getting the sale deed executed.
37. Mr. Majmudar states that the price rise is phenomenon and considering the facts of the case the respondent should be directed to pay interest at the rate of 18 per cent on remaining amount of consideration. As against this Ms. Mehta with Mr. Shah stated that the Court may take reasonable view of the matter and direct to make payment of interest at the reasonable rate.
38. Having considered the submissions made by both the parties, in the facts of the case the interest of justice would be served if the respondent is directed to make payment at the rate of 12 per cent.
39. In the result, the Appeal is dismissed and the judgment and decree passed by both the Courts below are hereby confirmed. However, the respondent is directed to make payment of interest at the rate of 12 per cent on the remaining amount of consideration of Rs. 100,000.00 from the date of filing of the suit till such amount is deposited in the Court below.
40. With the above direction, the Appeal stands disposed of.
41. In view of the order passed in Second Appeal, the Civil Application does not survive. Hence, the same is disposed of accordingly.
Braj..
[C.L. Soni,J.]