Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This defendant's appeal has arisen from judgment and decree dated 17.05.2006 and 25.05.2006, respectively, passed by Sri Salim Ahmad Khan, Additional District Judge, Court No. 6, Agra in Original Suit No. 306 of 1995 decreeing aforesaid suit and directing Defendants-1 and 2 to execute sale deed enforcing agreement dated 23.06.1993 in favour of Plaintiff-3 who is nominated by Plaintiffs-1 and 2, within two months since they have already paid entire outstanding dues of Punjab National Bank (hereinafter referred to as "Bank") in Original Suit No. 458 of 1986, failing which execution of decree shall be made by getting sale deed executed by Court. Defendant-2 in suit is the appellant before this Court.
2. Original Suit No. 306 of 1995 was instituted in the Court of Civil Judge, Agra by two plaintiffs, i.e., M/s Unjha Ayurvedic Pharmacy and Sri Nitin Shah. Subsequently by filing an application under Order 22 Rule 10 in January, 2006, Plaintiff-3, Sri Arvind Kumar Bajaj was sought to be impleaded on the ground that a deed of assignment was executed by Plaintiffs-1 and 2 in favour of Sri Arvind Kumar Bajaj on 10.09.2004. Court allowed application and Sri Arvind Kumar Bajaj was impleaded as Plaintiff-3.
PLAINTIFFS' CASE
3. Plaint case is that Plaintiff-1 is a Firm duly registered under Partnership Act, 1890 (hereinafter referred to as the "Act, 1890"). Plaintiff-2 is one of the registered partner of Plaintiff-1-Firm. Defendants-1 and 2, Sri Dau Dayal and Smt. Beena Agarwal are owners of 1865 sq. yards land forming part of Khasra No. 785 and 786, situate in Mauza Mau, Tehsil and District Agra, whereupon they had raised a masonry structure of Kothi without any flooring or plastering or fixing of any doors or door frames etc. Defendants- 1 and 2 contracted for sale of aforesaid land alongwith construction to Plaintiff-1 through Plaintiff-2 for a consideration of Rs. 20,00,000/-, whereagainst Rs. 1 lac was paid by Plaintiffs- 1 and 2 in advance to Defendants-1 and 2.
4. Defendants-1 and 2 were to obtain necessary "no objection" from Income Tax Department under Section 230 of Income Tax Act, 1961 (hereinafter referred to as "Act, 1961") and also "no objection" from Competent Authority under Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as "Act, 1976"). Thereafter they had to execute sale deed in favour of Plaintiff-1 within three months after receiving balance consideration. The agreement for sale was executed by Defendants-1 and 2 in favour of Plaintiff-1 on 22.06.1993. Agreement for sale also contains covenants that property in suit was mortgaged by Defendants- 1 and 2, as Guarantors, to Bank in respect of some financial assistance/ loan advanced to M/s Tara Industries and for recovery thereof Bank has filed Original Suit No. 458 of 1986, which is pending. It was mentioned in the agreement for sale that Principal Debtors would settle amount, to be paid, after negotiation with Bank and Defendants-1 and 2 would pay amount due to Bank and clear off the encumbrance. If for any reason Defendants-1 and 2 failed to clear off said dues within time, Plaintiffs-1 and 2 may deposit the same with Bank on behalf of Defendants-1 and 2 and adjust said amount towards balance of price and take back original title deed from Bank. Defendants- 1 and 2 also put Plaintiff-2 in possession of land and construction thereon on 23.06.1993 and in acknowledgment of giving such possession a written document was executed on 23.06.1993 in favour of Plaintiffs-1 and 2.
5. Plaintiffs-1 and 2 were always ready and willing to perform their part of contract but Defendants- 1 and 2 did not take steps for obtaining "no objection" from concerned authorities and also did not settle amount, outstanding and payable, to Bank.
6. A telegraphic notice dated 18.09.1993 was served by plaintiffs upon Defendants-1 and 2 through Sri Jagidish Chand Gupta, Advocate, requesting them to fulfill their part of contract and execute sale deed by receiving balance amount of consideration. It was also informed to Defendants-1 and 2 that plaintiffs are ready to bear necessary expenses of execution and registration of sale deed. Letter dated 18.09.1993 to the same effect was also served on Defendants-1 and 2.
7. Despite service of aforesaid notice dated 18.09.1993, Defendant-1 remained silent but Defendant-2 sent reply dated 05.10.1993 making allegations against plaintiffs and said that obligation to obtain no objection was upon Plaintiffs-1 and 2. She further alleged that there is a breach of contract by plaintiffs, hence agreement has already come to an end and advance stood forfeited. Plaintiff-2 thereafter took up matter personally to Defendants-1 and 2 and tried to persuade them to give up false stand taken by Defendant-2 and fulfill the contract. Matter lingered on and plaintiffs found that defendants were not in a mood to execute sale deed. Hence, another notice dated 23.05.1994 was served through Sri Bengali Prasad Gupta, Advocate requiring defendants to comply with terms of contract and execute sale deed. Again Defendant-2 sent reply through her Advocate, Sri Hirday Shanker Mathura, reiterating earlier stand taken in reply dated 05.10.1993. It is in these circumstances, suit was filed for specific performance of contract for sale dated 22.06.1993.
8. During pendency of suit, Plaintiffs-1 and 2 assigned their entire rights under agreement dated 22.06.1993 in favour of Plaintiff-3 vide assignment deed dated 10.09.2004 and also executed a registered agreement for sale dated 10.09.2004 in respect of property in suit for a total consideration of Rs. 71 lacs and this amount was received by Plaintiffs-1 and 2 from Plaintiff-3 pursuant to assignment deed dated 10.09.2004. Amendment in plaint bringing aforesaid facts was made by adding para 13A in plaint. Relief in plaint was also accordingly amended and the same reads as under:
"a. A decree for specific performance of the registered contract for sale dated 22.06.93 executed by the defendants no. 1 and 2 in favour of the plaintiff No. 1 be granted to the plaintiff No. 3 to execute a sale deed in accordance with the terms contained in the said contract for sale within such time as may be fixed by the Court and in default the sale deed may be executed by the Court and proprietary possession may also be given to the plaintiff No. 3. The plaintiffs may be permitted to clear off the dues of the defendant no. 3 in O.S. No. 458 of 1986 pending in the Court of 3rd Addl. Civil Judge, Agra- Punjab National Bak v/s. M/s Tara Industries and others, and adjusted the said amount against the balance of price.
b. cost of the suit may be awarded to the plaintiffs against the defendants No. 1 and 2.
c. Any other relief as the Court may deem just and proper or necessary may also be granted to the plaintiff against the defendants No. 1 and 2."
DEFENDANTS' CASE
9. Defendants-1 and 2 contested suit and filed their written statements separately.
10. Contract of sale entered with Plaintiffs-1 and 2 was not disputed but other averments in plaint were denied by Defendant-1 in the written statement filed by it. It is pleaded that period for performance of contract was only three months. It was essence of contract and since it was not performed by plaintiffs, hence agreement stood cancelled. Plaintiffs failed to clear dues of Bank which was their obligation and also did not receive any no objection from concerned authorities. No possession of land in dispute was given since it was to be done when sale deed is executed. No telegraphic notice dated 18.09.1993 was served upon Defendant-1 and notice dated 23.05.1994 was beyond time, hence no reply was required by Defendant-1. Plaintiffs were never ready and willing to perform their part of contract and allegations made against Defendant-1 are denied. In additional pleas, it is said that Defendants-1 and 2 were guarantors of loan obtained by M/s Tara Industries from Bank. Since there was default, Bank filed Original Suit No. 458 of 1996 against Principal Borrowers impleading Defendants-1 and 2 also as defendants in that suit. Original Title deed of property in dispute was in the custody of Bank. Defendants wanted to liquidate property, being in need of money, therefore agreed with plaintiffs to sell suit property, pursuant whereto, agreement for sale was executed on 22.06.1993 and registered in the office of Sub-Registrar on 23.06.1993. Intention and objective of Defendant-1 was to clear off dues of Bank at the earliest so that property may become free from all encumbrances and provide due liquidity to defendants also. However, plaintiffs failed to perform their duties and did not comply with their part of contract. By filing additional written statement Defendant-1 also denied assertions contained in para 13A of plaint which was inserted by way of amendment and it is said, when plaintiffs-1 and 2 did not have any right in respect of suit property, they could not have assigned the same to Plaintiff-3 also. It was also pleaded that plaintiffs on their own paid Rs. 41,60,800/- to Bank on 11.09.2004 but this payment was unauthorized as there was no occasion for them to make payment in September, 2004 to Bank and, therefore, it would not result in any benefit to plaintiffs.
11. Defendant-2 in her separate written statement also took plea similar as were taken by Defendant-1, hence we are not repeating the same.
12. Trial Court formulated following issues:
^^1- D;k oknhx.k jftLVMZ bdjkjukek eqgk;nko; fn- 22-6-93 dh 'krksZa ds vuqlkj lafonk ds vius Hkkx dk vuqikyu djus ds fy, lnSo rRij o bPNqd jgk o vkt Hkh gS\
1. Whether the plaintiffs have been and are still willing and poised to fulfil their part of the contract as per the terms and conditions of the registered agreement dated 22.6.93?
2- D;k oknhx.k ewy okn la0 [email protected] iatkc us'kuy cSad izfr eS0 rkjk bUMLV~ht esa izfroknh la- 3 iatkc us'kuy cSad dh /kujkf'k vnk djds mDr /ku jkf'k dks bdjkukek fn- 22-6-93 ds rgr gksus okys cSukek ds fodz; ewY; esa lek;ksftr djus dk vf/kdkj gS\
2. Whether the plaintiffs, on making payment of amount payable to defendant no 3 in the Original Suit No 458/86 Punjab National Bank versus M/s Tara Industries, have right to adjust the said amount against the sale price mentioned in sale deed to be executed under the agreement dated 22.6.93.
3- D;k bl okn esa izfroknh la- 3 ds fo:) oknh dks okn dkj.k mRiUu ugha gS\
3. Whether the plaintiff has no cause of action against defendant no 3 in the instant case?
4- vuqrks"k\
4. Relief?
5- D;k oknh us eqgk;nko; dh 'krksZa dk ikyu ugha fd;k gS\
5. Whether the terms and conditions of the agreement have not been followed by the plaintiff?
6- D;k vuqca/k esa nh xbZ lhek Hkh vuqca/k dk lkj Fkk\
6. Whether the limit as given in the agreement was also the crux thereof?
7- D;k oknh us U;k;ky; 'kqYd de vnk fd;k gS\
7. Whether the plaintiff has underpaid the court fees?
8- D;k okn iks"k.kh; ugha gS\
8. Whether the suit is not maintainable?
9- D;k u;s ;ksftr i{kdkj vko';d ,oa mfpr i{kdkj gS\
9. Whether newly joined parties are the necessary and proper parties?
10- D;k fofuZfn"V ikyus ds vf/kdkj dk varj.k voS/kkfud gS vkSj izfroknh la- 3 dks iz'uxr fodz; lafonk ds fofuZfn"V ikyu dk vf/kdkjh ugha gS\ ;fn gkWa rks izHkko\
10. Whether transfer of right of specific performance is illegal and whether the defendant no 3 is not entitled to specific performance of the sale agreement in question ? If so, its effect?
11- D;k fMxzh ds fy, izfrQy vi;kZIr Fkk vkSj vc ;g vlkE; gks x;k gS vkSj oknhx.k izfroknh la- 1 ds vfrfjDr izfrokn i= ds izLrj la- 1 o 13 ds vuqlkj fofuZfn"V vuqikyu ds vf/kdkjh ugha gSa\
11. Whether the consideration was insufficient for decree and now it has become inequitable and whether the plaintiffs are not liable to specific performance except towards defendant no 1 given in paras 1 and 13 of the written statement."
(English translation by Court)
13. Plaintiffs in evidence examined two witnesses, i.e., Nitin Shah as PW-1 and Arvind Kumar Bajaj as PW-2. Documentary evidence filed by plaintiffs included:
(i) Agreement for sale dated 23.06.1993 (Exhibit-1/ Paper No. 55C)
(ii) Document of possession (Exhibit-2/ Paper No. 33C)
(iii) Application dated 23.09.1993 filed by Nitin Shah, Plaintiff-2 in the office of Sub-Registrar (Exhibit-3/ Paper No. 34C)
(iv) Copy of telegram sent by Sri Jagdish Chand Gupta (Exhibit-4/ Paper No. 35C)
(v) Receipt of telegram (Exhibit-5/ Paper No. 36C)
(vi) Sanction letter of Executive Engineer, Jal Sansthan, Agra (Exhibit-6/ Paper No. 37C)
(vii) Copy of notice dated 18.09.1993 sent by Nitin Shah, Plaintiff-2 to defendants (Exhibit-7/ Paper No. 38C)
(viii) Two registry receipts (Exhibits-8 and 9/ Paper No. 39C)
(ix) Acknowledgment (Exhibit-10 and 11/ Paper No. 40C/1 and 40C/2)
(x) Reply to notice sent by Defendant-2, i.e., appellant (Exhibit-12/ Paper No. 41C)
(xi) Certificate of installation of electricity meter (Exhibit-13/ Paper No. 42C)
(xii) Copy of payment of electricity charges (Paper No. 43C)
(xiii) Special notice of Agra Nagar Mahapalika (Exhibit-14/ Paper No. 44C)
(xiv) Copy of notice (Exhibit-15/ Paper No. 45C)
(xv) Copy of registry (Exhibit-16 and 17/ Paper No. 46C/1 and 46C/2) (xvi) Reply of Defendant-2, Smt. Veena Agarwal (Exhibit-18 and 19/ Paper No. 47C/1 and 47C/2) (xvii) Notice of Agra Nagar Mahapalika (Exhibit-21/ Paper No. 49C) (xviii) Certified copy of registration of First Unjha Ayurvedic Pharmacy (Exhibit-22/ Paper No. 79C/79C/2) (xix) Copy of Original Suit No. 458/86, Punjab National Bank vs. Tara Industries and others (Exhibit-23/ Paper No. 107C) (xx) Signed agreement by Punjab National Bank (Exhibit-24/ Paper No. 213C) (xxi) Proposal for agreement (Exhibit-25/ Paper No. 214) (xxii) Transfer deed dated 10.09.2004 (Exhibit-26/ Paper No. 206Ka) (xxiii) Agreement for sale dated 10.09.2004 (Exhibit-27/ Paper No. 207Ka) (xxiv) Deed of right (Exhibit-28/ Paper No. 203Ka)
14. Defendant-1 got its statement in examination-in-chief recorded but did not appear for cross-examination. However, Defendant-1 adduced some documentary evidence which included:
(i) Written statement of defendant no. 15 filed in Original Suit No. 458/86, Punjab National Bank vs. Tara Industries (Exhibit-1/ Paper No. 228C)
(ii) Copy of statement of PW-1, Nitin Shah in Original Suit No. 458/86 (Exhibit-2/ Paper No. 231C)
(iii) Copy of order passed in Original Suit No. 458/86 (Exhibit-3/ Paper No. 233C)
(iv) Copy of decree passed in Original Suit No. 458/86 (Exhibit-4)
15. Defendant-2 got examined one Dr. Chhote Lal Garg in support of her case but did not adduce any documentary evidence.
16. Issue-7 was taken as preliminary issue. Court vide order dated 09.12.1997 answered it in favour of plaintiffs. Issue-9 was also answered by Trial Court in favour of plaintiffs holding that all the necessary and proper parties have been impleaded as defendants. Thereafter, Issues-1, 5 and 6 were taken together. Trial Court answered Issues- 1 and 6 in affirmative and Issue-5 in negative. Issues-2 and 11 then were taken together and Issue-2 was answered in affirmative and 11 in negative. Issues-3, 8 and 10 were answered in negative. Issue-4 was answered in favour of plaintiffs. Accordingly Court below decreed suit vide judgment dated 17.05.2006 and decree dated 25.05.2006 which has been challenged in this appeal.
CROSS OBJECTION
17. Defendant, i.e., Respondent-4, Dau Dayal has also filed Cross-Objection No. 138253 of 2016 under Order 41 Rule 22 C.P.C. against judgment in question and has prayed that judgment and decree passed by Court below be set aside and suit of plaintiffs be dismissed.
SUBMISSION
18. Sri Swapnil Kumar, Advocate has advanced his submissions on behalf of appellant, who was Defendant-2 in the suit and supporting her case Sri Anil Sharma, Advocate has advanced submissions on behalf of respondent no. 4, who was Defendant-1 in suit.
19. On behalf of plaintiff-respondent no. 3, Sri Arvind Kumar Bajaj, Sri Suneel Rai, Advocate has put in appearance and none has appeared on behalf of plaintiffs-respondents no. 1 and 2.
20. We have heard learned counsel for parties at length, perused record as well as various judicial pronouncement, cited at the Bar, and relevant statutory provisions.
21. Learned counsels appearing for Defendants-1 and 2, i.e., Appellant and Respondent-4, while assailing judgment in question argued that there had not arisen any cause of action on the date when suit was filed, therefore, it was not maintainable and liable to be rejected on this reason alone. Secondly, it is contended that plaintiffs were never ready and willing as they did not discharge obligation on their part, hence Trial Court erred in law in decreeing suit for specific performance. Thirdly, it is contended that agreement for sale results in undue benefit to plaintiffs and, therefore, decree for specific performance which is equitable and discretionary, ought not to have been passed and instead Court below should have refused the same. In other words, it is contended that essentials of Section 16(c) of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") were not observed and judgment of Trial Court also failed to record any finding, whether mortgage was redeemed or not, and, unless mortgaged is redeemed, suit for specific performance could not have been decreed.
22. Per contra, Sri Suneel Rai, learned counsel appearing for Sri Arvind Kumar Bajaj, plaintiff-respondent no. 3, contended that land was mortgaged to Bank and, therefore, vendors were bound to disclose to proposed purchasers, as required under Section 55(1)(a), of Transfer of Property Act, 1882 (hereinafter referred to as "T.P. Act, 1882"), exact amount of mortgage/ encumbrance and otherwise conduct of Defendants-1 and 2 was nothing but a fraudulent conduct within the meaning of Section 55 of T.P. Act, 1882. Since vendors deliberately failed to disclose exact amount, necessary for removing encumbrances, therefore, committed a fraud and made purchaser to enter into an agreement for sale and part with a portion of sale consideration in advance, i.e., Rs. 1 lac. When purchaser insisted upon Bank to disclose exact amount of encumbrances, Bank refused to do so. Purchaser being not aware of the amount, could not clear dues and vendors treated agreement cancelled and did not disclose the due amount. Vendors if were of the view that on account of non-fulfillment of condition by purchaser in getting the amount of encumbrance settled with Bank, agreement would frustrate, then it was bounded duty of vendor to stop Bank from further negotiation with purchaser in respect of mortgaged property but it fraudulently kept silent till actual payment of dues was made by purchase, therefore, defendants now cannot take advantage of their own fraudulent conduct. It is barred by principle of estoppel enshrined under Section 115 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872"). Further, vendors tool upon themselves liability to get no objection certificate from Income Tax Department and Ceiling Authorities but it was not possible without production of original title deed which was lying with Bank. This also shows fraudulent conduct and intention on the part of vendors. Section 34 of T.P. Act, 1882 is founded on the principle that no person can take advantage of his own fraud. Where parties to contract, whether preceding or subsequent, is/are prevented by a person interested in its non fulfillment, delay is excused and such condition of time stand discharged. Learned counsel Sri Rai, appearing for respondent no. 3 placed reliance on the maxim "mullus commodum capere protested injuria sua propria" (i.e., no one can take advantage of his own wrong) and "raus et dolusnemini patricinari debent" (i.e. fraud and deceit ought not to benefit any person). Delay occurred in clearance of Bank dues on account of fraudulent conduct of defendants. It cannot give any advantage to them. Interest of plaintiff-respondent no. 3 is protected by virtue of Section 53A of T.P. Act, 1882 since it is attracted when buyer has performed his promises substantially and is willing to perform remaining promises. Defendant-appellant tried to take advantage of her own wrong and did not come with clean hands, therefore, Trial Court has rightly decreed suit and appeal should be dismissed.
23. From rival submissions, points for determination which have arisen for adjudication of this appeal are:
(i) Whether any time was provided in agreement for sale for execution of sale deed and, if so, what is that time?
(ii) Whether agreement for sale contains stipulations showing that time was essence or not?
(iii) Whether obligation to obtain "no objection certificate" as per agreement for sale was upon defendant-appellant or plaintiffs-respondents, and, whether such respective obligation was discharged by them?
(iv) Whether plaintiffs were "ready and willing" to execute sale deed and finding of Trial Court in favour of plaintiffs are justified and based on evidence?
(v) Whether a cause of action had arisen at the time of filing suit for specific performance?
(vi) Whether agreement for sale in the case in hand has caused undue hardship to defendants-vendors and it was inequitable on the part of Court below to decree suit for specific performance?
OUR FINDINGS
24. Adjudication of aforesaid points for determination first of all require an indepth consideration of agreement for sale and its terms and conditions settled between the parties. The said agreement is Exhibit-1/ Paper No. 55-C. It was executed in respect of land having area of 1865 square yard (1560 square meter) situate at Khasra No. 785 and 786 Mauza Mau Tehsil and District Agra. An incomplete under constructed buildings existed on the said land, inasmuch as, only walls were standing and there was no floor or plasters. No doors or door frames were installed. Neither anybody was residing therein nor it was capable of residence. It was only a structure and that too in a bad and dilapidated condition. On its eastern side there was a plot of one Basan and Bal Kishan, on western side plot owned by Rejendra Prasad Verma, rorthern side land belong to some third person and on southern side there was public road. The said land and construction raised thereon was purchased by Defendants-1 and 2 i.e. appellant and respondent-4 from Lokayan Sahkari Grih Nirman Samiti Limited, Agra through its Secretary Sri Rajendra Singh Rana S/o Sri Bahori Singh Rana, resident of 1 Church Road, Agra vide exchange deed dated 28.5.1983 registered on 20.12.1983. Other facts and terms and conditions mentioned in the sale deed are summarized as under:-
(i) Defendants-1 and 2 are the sole owner and in possession of aforesaid property.
(ii) Original documents were pledged with bank by defendants as guarantor.
(iii) due to non-clearance of dues of bank it had filed a suit no. 458 of 1986 in the Court Civil Judge, Agra for recovery of money and Defendants-1 and 2 were party in the said suit.
(iv) Except of encumbrances of bank, otherwise, property is clean and clear in all respect.
(v) Defendants thought it appropriate to sell the above property and clear bank dues from the amount received as consideration so that defendants may avoid future liability of interest of Bank and balance amount of consideration may be utilized in business so as to become a source of earning to defendants.
(vi) Plaintiffs offered best consideration of Rs. 20 Lacs for said property and Rs. 1 lacs through two cheques of Rs.50,000/- each dated 10th June, 1993 were paid to Defendants-1 and 2.
(vii) Defendants themselves would negotiate with Bank and clear entire outstanding dues.
(viii) If for some reason defendants do not clear outstanding dues of bank within time, Purchaser on behalf of defendants, would clear dues of Bank completely and receive original title deed from bank.
(ix) After payment of dues of Bank and other expenses, remaining amount would be paid to defendants at the time of execution of sale deed.
(x) For execution of sale deed defendants on their own expenses and responsibility would obtain clearance from Ceiling and Income Tax Department within three months from the date of agreement for sale.
(xi) The sale deed would be executed within three months with a clear title of executed property for which expenses shall be incurred by purchaser.
(xii) The property was not numbered and assessed by Nagar Palika Parishad, Agra but if any such assessment has been made and any amount towards house tax, water tax is found due, defendants shall be liable till the date of execution of sale deed and thereafter if any amount is due that will be responsibility of purchaser.
(xiii) If there are dues of any other department, defendants would be liable to clear the same by the date of execution of sale deed.
(xiv) If defendants failed to execute sale deed in terms settled above, purchaser would be entitled to get sale deed executed through Court.
(xv) If purchaser failed to execute sale deed, advance paid to defendants would stand forfeited.
(xvi) However, if sale deed is not executed on account of any legal defect or non-clearance by concerned department or for any defect in the title of defendants or for any wrong title, then advance money shall not be forfeited.
(xvii) Possession of suit property was not given to purchaser by the agreement for sale but it shall be handed over at the time of execution of sale deed.
WHETHER TIME IS THE ESSENCE OF CONTRACT:
25. First and second Points for determination relates to this aspect, hence are taken together.
26. The terms and conditions set out in agreement for sale show that for execution of sale deed following three things were required to be done:-
(i) Dues of bank were to be cleared and original documents were to be taken back. For that purpose, it was stipulated in agreement that firstly Principal Debtor or defendants themselves would clear outstanding dues. However, if defendants within time fail to clear outstanding dues of Bank, then purchaser on behalf of Defendants-1 and 2 would clear entire dues of Bank, full and final, and get Bank's suit dismissed, and obtain title deed of suit property.
(ii) For execution of sale deed, Defendants-1 and 2 on their own expenses and responsibility would obtain permission from Ceiling and Income Tax Departments within three months.
(iii) On obtaining permission from Ceiling Department and clearance from Income Tax Department, owners i.e. Defendants-1 and 2 would execute, within three months from the date of execution of agreement for sale, with a clear title and full responsibility, a sale deed in favour of purchaser who shall bear expenses of sale deed.
27. The relevant extract of agreement reads as under:-
^^cSukek djus ds fy, ge eqfdjku Lo;a vius [kpsZa o ftEesnkjh ij lhfyax foHkkx ls fodz; dh vuqefr o vk;dj foHkkx ls vk;dj izek.k i= vkt ls rhu ekg ds vUnj gkfly djsxsa vkSj cSukek lhfyax dh ijeh'ku o vk;dj izek.k gkfly djrs gq, vkt ls rhu ekg ds vUnj fcYdqy ikd o lkQ xqM Vk;fVy dh iwjh o dEiyhV ftEesnkjh ds lkFk [kjhnkj ds [kpsZ ls ogd [kjhnkj etdwj ;k mlds rtohtk uke esa rgjhj o rdehy djds jftLVjh djsxsaA** "For the purpose of sale-deed, we, the parties, shall at our own expenses and on our personal responsibility obtain the permission to sale from the Ceiling Department and Income Tax Certificate(s) from the Income Tax department within a period of three months and after obtaining the said two papers shall, within a period of three months from today, execute registry for transfer of perfectly good and bonafide title in the favour of purchaser or his/her representative at the latter's expenses." (English translation by Court)
28. Aforesaid clause of agreement in our view makes it very clear that the outer limit for execution of sale deed was three months from the date of agreement to sell. Forfeiture clause in the agreement provides, if sale deed is not executed in terms of agreement for the reason attributable to purchaser, advance money shall stand forfeited but if for any legal defect or want of permission or Income Tax clearance or any other defect in the title sale deed, is not executed, then advance money shall not be forfeited. The forfeiture clause is unilateral against advance money of purchaser and no corresponding liability is upon seller, if for any reason attributable to him sale deed is not executed.
29. There is one more relevant factor mentioned in agreement for sale, i.e., reason impelling seller to proceed for sale of property in dispute. It says:
^^bl izdkj gekjh mDr tk;nkn mDr cSad ds dtsZ dh ,ot esa IysTM gS blds vykok mDr tk;nkn vkt rd gj rkSj ij fcYdqy ikd o lkQ gS dgha fdlh izdkj ls jgu oS; fgoS tsj tekur tsj dqdZ tsjuhyke ;k bdjkj ukek eqvkfgnk oS; rgkjhjh ;k tqokuh ugha gS vkSj u bude VSDl ;k lsyVsDl ;k vU; fdlh ljdkjh ;k xSj ljdkjh foHkkx esa tsjokj oxSjk ugha gS vkSj u vkt rd fdlh Hkh ljdkjh ;k xSj ljdkjh Ldhe esa ,sDok;j ;k uksVhfQds'ku ugha gqbZ gS vkSj u xzhu cSYV ;k ekLVj Iyku esa ,sDok;j gqbZ gSA mDr tk;nkn iw.kZ :i ls jhthMsUly gSA xtZ fd mDr iatkc us'kuy cSad ds pktZ ds vykok vU; fdlh Hkh cSad ;k egdesa dk dksbZ Hkh pktZ fdlh izdkj dk mDr tk;nkn ij ugha gS mDr tk;nkn ls gedks fdlh izdkj dk dksbZ Qk;nk ;k vkenuh ugha gS vkSj ge eqfdjku ds fy, mDr tk;nkn gj rkSj ij vlqfo/kktud gS bl fy, ge eqfdjku us ;g mfpr o vko';d le>k fd mDr tk;nkn dks csap dj mlds :i;sa ls cSad dk :i;k pqdkdj mlds vk;Unk C;kt o [kpsZ ls cpk tkos rFkk cps gq, :i;s dks vius dkjksckj esa yxkdj mlls Qk;nk mBk;k tkos vkSj vkenuh dh tfj;k cuk;k tkosA** "Thus, the aforesaid property of ours is pledged against the loan of the said bank. Except for this, the said property is as on date absolutely free from dispute or encumbrances in all respects; it is neither gifted nor mortgaged nor attached in any way nor subject to any agreement, oral or in written; no income tax or sales tax or any other dues of the government or non government departments are outstanding against it; it is neither acquired nor notified under any government or non government scheme nor has it been acquired under the Green Belt or the Master Plan. The aforesaid property is fully residential. It is submitted that no charge of any bank or department other than the aforesaid Punjab National Bank is outstanding against the said property. We, the parties, do not have any benefit or income from the aforesaid property and it is utterly inconvenient to us. That's why we thought it proper and necessary to sell the said property and make payment to the bank out of the money so obtained; to make savings from the future interests and expenses and invest so saved money in our business, thus making profits and creating a source of income." (English translation by Court) (emphasis added)
30. The agreement clearly mention that disputed property is purely residential, pledged to Bank as defendants-seller are guarantor against a loan advanced by Bank to M/s Tara Industries and was inconvenient to seller, hence it was appropriate for them to sell property by clearing dues of Bank and thereby save themselves from further liability of interest on outstanding dues of Bank and thereafter to utilize remaining sale consideration in their business and earn profit therefrom. Earliest clearance of bank dues to avoid further interest liability is a compelling reason for seller to sell property in dispute and hence, for that purpose specific time was mentioned in the agreement i.e. three months from the date of execution of agreement for sale. These stipulations in agreement, prima facie suggest that for execution of sale deed time was essence and specifically so mentioned in agreement.
31. However, there is one more stipulation in the agreement that the seller would obtain permission from Ceiling Department and clearance from Income Tax Department within three months from the date of execution of agreement for sale and thereafter would execute sale deed within three months from the date of execution of sale of agreement. The three months time in both the matters is overlapping and running simultaneously. When we read both these conditions together apparently it becomes improbable to get both the aforesaid conditions implemented together. On the one hand three months time was retained by seller from the date of execution of agreement obtaining permission from Ceiling Department and clearance from Income Tax Department. That be so, sale deed could have been executed only thereafter and not prior thereto. Simultaneously, if we attempt to read both terms together so as to read that a fix time of three months was provided in the agreement for the purpose of execution of sale deed, we find it difficult to construe first stipulation which enable seller to obtain permission from Ceiling department and clearance from Income Tax Department within three months from the date of execution of agreement for sale in conformity with second stipulation. It is true that sellers had an urgent need of money so as to avoid further liability of interest of outstanding dues of Bank in respect of loan to which sellers were guarantors and recovery suit filed by Bank was pending in Court. Therefore, intention of Sellers was to get sale deed executed, at the earliest after clearing outstanding dues of Bank and avoid further interest liability but that intention by itself cannot be a sole ground to read the agreement as if it provides a fixed time for execution of contract. Unless a very clear and categorical stipulation is given in agreement to show that time is the essence of contract, the same must not be read therein particularly if stipulations of agreement if reasonably construed, do not lead to such inference that time is the essence of contract.
32. The two stipulations have to be construed harmoniously so as to give desired result as intended by parties. Only on the basis of one stipulation, no conclusion can be drawn that time is the essence of contract. Performance on the part of respective parties as stipulated in agreement is also a matter of great importance. Stipulation that sale deed would be executed within three months from the date of execution of agreement for sale, cannot be read in isolation so as to result an inference that time is essence of contract since it is not in consonance with other condition. It is in these circumstances, when we read agreement in its entirety, though at the first flush stipulation with regard to time for execution of sale deed suggest that time was the essence of contract but all stipulations if taken together show that time could not have been taken to be essence of contract else it would lead to an improbable situation and render some performance on the part of parties to agreement, improbable. Such a construction to an agreement is not permissible and it has to be read reasonably.
33. In the matter of construction of agreement for sale, whether time is essence of contract or not, there is no thumb rule and consensus of authorities is that agreement should be read in its entirety and unless show very specifically that time is essence of contract, such inference should not be drawn.
34. Section 55 of Contract Act, 1872 (hereinafter referred to as "Act, 1872") deals with consequences of failure to perform an in a contract, with time or before stipulated time. It reads as under:
"55. Effect of failure to perform at a fixed time, in contract in which time is essential.--When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential.--If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon.--If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so."
35. Statute shows that intention to make time as essence, must be in a language which is unmistakable. Court relied on its earlier decision in Govind Prasad Chaturvede v. Hari Dutt Shastri and Anr. , (1977) 2 SCC 539 wherein it was held:
"It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract." (emphasis added)
36. Court also said that language used in agreement is not such as to indicate in unmistakable terms that the time is the essence of the contract. The intention to treat time as essence of contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of contract.
37. In Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor AIR 1988 SC 1074, Court in para 6 said:
"The law is well-settled that in transactions of sale of immovable properties, time is not the essence of the Contract. "
38. In Smt. Chand Rani (dead) by LRs. vs. Smt. Kamal Rani (dead) by Lrs., (1993)1 SCC 519 a Constitution Bench considered the question "whether time is the essence of contract or not" and held that in an agreement for sale of immovable property time is never recorded as essence of contract unless there is a specific stipulation or it clearly emerges by way of implication from agreement. Court said:
"It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. ..... It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language. " (emphasis added)
39. Constitution Bench in Smt. Chand Rani (supra) thus lays down three relevant factors to find out whether time is essence of contract or not and said:
"From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the object of making the contract. "
40. In M.P. Housing Board vs. Progressive Writers and Publishers, (2009)5 SCC 678 Court said:
"It is fairly well settled that the time is not normally an essence of any agreement qua immovable properties and even there was an express covenant of time being an essence, the overall agreement have to be looked at to determine whether the time was the essence. Whether the time is the essence of the contract would, therefore, be a question of fact to be determined in each case and merely expression of the stipulated time would not make time an essence of the contract." (emphasis added)
41. The above view, we find, is reiterated in Smt. Swarnam Ramachandran and Anr. vs. Aravacode Chakungal Jayapalan, (2004)8 SCC 689; McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, (2006)11 SCC 181; Balasaheb Dayandeo Naik (Dead) through Lrs. And others vs. Appareheb Dattatraya Pawa, (2008)4 SCC 464; Martin F. D'Souza vs. Mohd. Ishfaq, (2009)3 SCC 1; A.K. Lakshmipathy (Dead) and others vs. Rai Saheb Pannalal H. Lahoti Charitable Trust and others, (2010)1 SCC 287; and, I.S. Sikandar (D) by L.Rs. vs. K. Subramani and Ors., (2013)15 SCC 27.
42. In the light of well settled law discussed above, we have no manner of doubt that agreement for sale, up for consideration before this Court, do mention a specific time for execution of sale deed but after reading the entire agreement and all terms and conditions stated therein, it cannot be said that time stated therein can be construed as essence of contract so as to allow seller from absolving its liability. When we reasonably construe agreement, we find that certain conditions precedent for execution of sale deed itself were to be completed within three months from the date of execution of agreement for sale and that being so it is improbable to hold that time for execution of sale deed was also three months from the date of execution of agreement for sale. Neither law contemplates something which is impossible to be performed nor terms of contract can be read in such an unreasonable and improbable manner so as to render the performance impossible. We, therefore, answer Points-1 and 2 in negative, i.e., against appellant and respondent no. 4 and in favour of plaintiffs-respondents holding that agreement for sale cannot be construed so as to provide time as essence of contract.
43. Now coming to Point-3, agreement is very clear that permission from Ceiling Department and clearance from Income Tax Department shall be obtained by sellers, i.e., owners of property in dispute, i.e., Appellant and Respondent-4 for which they had to incur expenses as also entire responsibility. There is nothing on record to show that said obligation was discharged by them. Therefore, we answer Point-3 against Appellant and Respondent-4.
44. Now we come to Point-4 and would proceed to examine, whether plaintiffs were ready and willing to execute sale deed and had performed their part of contract and findings of Court below in favour of plaintiffs-respondents are justified and based on evidence.
45. In a suit for specific performance it is a fundamental requirement that plaintiff must aver about his readiness and willingness to perform the contract according to its true construction. Section 16(c) of Act, 1963 contemplates such requirement and reads as under:
"16. Personal bars to relief.-- ....
(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 terms the performance of which has been prevented or waived by the defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
46. This requirement is mandatory. In Ouseph Varghese vs. Joseph Aley and Ors., (1969)2 SCC 539 Court said:
"A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement."
47. In Jagarnath Mishra vs. Uma Mishra, 1984 All LJ 1 a Division Bench of this Court said:
"Where in a suit for specific performance there was an omission of the averment in the plaint that the plaintiff was ready and willing to perform his part of the contract, the omission rendered the plaint without a cause of action for the suit and the suit was liable to the dismissed."
48. In the present case, learned counsel for plaintiff-respondent-3 drew our attention to para 12 of the plaint which reads as under:
"12. That the plaintiffs have always been ready and willing and still are ready and willing to perform their part of the contract according to true construction."
49. However, we find that bare assertion of "readiness and willingness" are sufficient but supporting facts to demonstrate that plaintiffs-respondents were actually ready and willing to get sale deed executed are missing, inasmuch as there is no averment about satisfaction of dues of Bank by plaintiffs-respondents or any attempt made by them on this behalf. It is stated in para 7 of plaint that Defendants-1 and 2 did not take steps for obtaining no objection from concerned departments, did not settle outstanding dues of Bank and did not clear off encumbrances but simultaneously plaint is also silent on the question as to what steps were taken by plaintiffs-respondent-1 and 2 for clearing outstanding dues of Bank which was also one of the condition of agreement and without satisfying the same there was no question for the parties to proceed for execution of sale deed.
50. Pleading with regard to "readiness and willingness" is not a matter of technical requirement but it is a matter of substance which has to be demonstrated by plaintiffs if challenged by defendants that plaintiffs were not in condition of "readiness and willingness" for execution of sale deed and all other conditions precedent were not satisfied. Plaintiff has to plead that whatever was required to be performed by him, was performed by him.
51. The term "willingness" and "readiness" though appears to be synonymous but there is essential difference between two terms. Legislature when has used two words which apparently show some similarity then intention of legislature has to be found out in using two similar terms for the reason that legislature does not provide surpluses and words are not essentially repeated by legislature unless required for some specific performance. Here legislature has used two words "readiness" and "willingness". Meaning thereby it had an intention to cover every aspect of matter which may be within the ambit of both terms keeping in view the minutest difference in implication and meaning of two terms.
52. Words 'ready' and 'willing' have been defined in "Concise Oxford English Dictionary", Twelfth Edition, on pages 1196 and 1652, respectively, as under:
"ready"-1. in a suitable state for an activity or situation; fully prepared, Made suitable and available for immediate use. 2. willing to do something. 3. in such a condition as to be likely to do something. 4. easily available or obtained; within reach. 5. immediate, quick, or prompt."
"willing"-ready, eager, or prepared to do something. Given or done readily."
53. In "Collins Cobuild Advanced Learner's English Dictionary", Fourth Edition 2003, latest reprint 2004, words "readiness" and "willing" are defined on pages 1189 and 1666, respectively, as under:
"readiness"-1. If someone is very willing to do something, you can talk about their readiness to do it. 2. If you do something in readiness for a future event, you do it so that you are prepared for that event."
"willing"-1. If someone is willing to do something, they are fairly happy about doing it and will do it if they are asked or required to do it. 2. Willing is used to describe someone who does something fairly enthusiastically and because they want to do it rather than because they are forced to do it."
54. In "The World Book Dictionary" Volume Two, 2011 World Book, words "readiness"; "ready"; and, "willing" have been defined on pages 1737 and 2393, respectively, as under:
"readiness"-1. the condition of being ready; preparedness. 2. quickness; promptness. 3. ease; facility. 4. willingness."
"ready"-1. prepared for action or use at once; prepared. 2. willing. 3. quick; prompt. 4. quick in thought or action. 5. likely; liable. 6. easy to get it; very easy to reach; immediate available."
"willing"-1. ready; consenting. 2. cheerfully ready. 3. freely done or offered; voluntary. 4. of, having to do with, or using the will; volitional."
55. In "The New Lexicon Webster's Dictionary Of The English Language", 1987 by Lexicon Publications, Inc., words, "readiness", "ready" and "willing" have been defined on pages 831 and 1125, respectively, as under:
"readiness"-the state of being ready; willingness, lack of hesitation."
"ready"-1. in a state fit for immediate action; immediately available whenever needed; in an emotional state adapted to a possible set of circumstances, willing; quick and easy; forward, prompt. 2. the state of being fit or poised for immediate action or use."
"willing"-working, helping etc. readily; done, given etc. readily; favourably disposed; of the power of the will."
56. In "Black's Law Dictionary", Eighth Edition, South Asian Edition-2015, words "ready, willing, and able" have been defined on page 1291 as, "legally and financially capable of consummating a purchase".
57. In "Mitra's Legal & Commercial Dictionary", Sixth Edition, Published by Eastern Law House Pvt. Ltd., Second Impression-2014, expression "ready and willing" has been defined on page 727 as under:
"The expression 'ready and willing' implies not merely the disposition but also the capacity to do the act."
58. In P. Ramanatha Aiyer's "Concise Law Dictionary (Abridged Edition) With Legal Maxims, Latin Terms and Words & Phrases", Third Abridged Edition Reprint 2010, expression "readiness and willingness" has been defined on page 977 as under:
"Readiness and willingness. To come within the expression "readiness and willingness" in S. 51 of the Contract Act (9 of 1872), it is not necessary for a person to prove that on the due date he had the goods actually in his possession. It is quite sufficient if he is able to prove that he had control of the requisite goods or that he had the capacity to deliver them to the purchaser when called upon to do so, in other words, that he was in a position to fulfil his part of the contract on the due date on a demand being made by the purchaser."
"The expression 'readiness and willingness' means continuous readiness-dictionary and willingness to pay the balance price as and when the appropriate occasion for the same arises and the expression cannot be treated as a strait jacket formual."
59. Apparently the above two terms, to some extent, are overlapping, but one can find a marked distinction between two inasmuch as while "willingness" is a mental process, "readiness" refers to something to do with translating that into action and is preceded by necessary preparation for being in a position to be ready. Willingness must be something to do mainly with a person's mental process to do an act but readiness implies close proximity of such willingness and ultimate physical manifestation. Readiness must, in all cases, be backed by willingness and its imminent physical action is demonstrated when it is about to be put into action. Readiness is a total equipment of a person who is ready to do the thing before he actually does it. Willingness is when a person claims that he is interested to do something but readiness demonstrates and reflects capacity of such person to perform after completion of all other requisite acts or having taken requisite steps which put him into the stage of readiness to put the final act into execution having performed of preceding act on his part. For example, a person claims that he is ready and willing to get sale deed executed but has no sufficient fund for payment of consideration to seller then it cannot be said that he is ready to perform or he is in a state of readiness to perform. Similarly, if some other act is required to be performed by purchaser which he is not done then also it cannot be said that he is in a position to readiness to perform the ultimate act.
60. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors., (1995) 5 SCC 115 Court said:
"Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. ..... the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances."
61. In J.P. Builders and another Vs. A. Ramadas Rao and another, (2011)1 SCC 429 Court said:
"The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness."
62. In P. D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649, Court said:
"It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. .... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. "
63. In R.C. Chandiok and Anr. v. Chuni Lal Sabharwal and Ors. , (1970) 3 SCC 140 Court said that readiness and willingness cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time.
64. In this regard it would be appropriate to recapitulate a few dates. Agreement for sale was executed on 22.06.1993. At that time a suit filed by Bank for recovery of money was pending since 1986. In the aforesaid suit filed by Bank, Appellant and Respondent-4, i.e., Defendants-1 and 2, both were impleaded as defendants since they were also liable to clear dues of Bank, being guarantor. One of the stipulation in agreement was that outstanding dues of Bank were to be cleared by defendants in recovery suit filed by Bank but if they are not able to do so within time, then purchaser, on behalf of sellers, would clear entire outstanding dues of Bank and get suit fully and finally rejected, obtain documents of property and thereafter would proceed to get sale deed executed by paying balance amount to seller.
65. In the entire agreement it is not stated as to within what time defendants in recovery suit of Bank would pay outstanding dues and if they fail to do so then within what time purchaser shall clear outstanding dues of Bank. The word "समय अवधि" (time limit) is mentioned in agreement but specifically no such time limit is mentioned at all. For this purpose we had gone through the entire agreement to find out intrinsic material to throw light on this aspect and also on the evidence led by parties. Intention of parties was to clear outstanding dues at the earliest so as to avoid future liability of interest by defendants. Therefore stipulation with regard to payment of outstanding dues to Bank was with an intention that it should be done at the earliest possible. Time for seeking permission from Ceiling Department and clearance from Income Tax Department mentioned in agreement is three months from the date of execution of contract for sale.
66. PW-1, Nitin Shah in his oral deposition has also stated that sellers promised to settle matter with Bank within three months, and if not, then that would be deposited by purchaser. Relevant extract of statement of PW-1, reads as under:
^^cSad ds :i;s dh vnk;xh ds ckjs esa mUgksaus ok;nk fd;k Fkk fd rhu ekg ds vUnj cSad ls settlement dj ysaxsA ;fn fdlh dkj.k os :i;k ugha ns ik;saxs rks ckdh :i;k esa ls ge cSad esa tek dj nsaxsA** "Regarding the payment of amount due to the Bank, they had promised that they would enter into settlement with the bank within three months. If for any reason, they fail to pay the amount, then we shall make deposition with the bank out of the rest amount." (English translation by Court) (emphasis added)
67. In cross-examination also he admitted this fact that after three months purchaser had to clear outstanding dues of Bank and obtain title documents of property. Relevant extract of statement of PW-1 in cross-examination, reads as under:
^^gesa rhu eghus ds ckn cSad ls okrkZ djds pqdrk djus dk vf/kdkj fn;k FkkA gesa cSad esa iSlk pqdrk djds tk;nkn ds dkxtkr okil ysus FksA geus vHkh rd cSad dk iSlk pqdrk ugha fd;kA u dkxt okil fd;kA** "We had been given the right to make payment after having a discussion with the bank after three months. We were to take back papers of the property after paying the money to the bank. We have neither paid the due amount to the bank nor got the papers back as yet." (English translation by Court) (emphasis added)
68. PW-1 also stated in cross-examination that for ascertaining outstanding dues sellers did not cooperate and purchaser made attempt with Bank to find out total dues and to clear the same which took time but could give no specific reply as to when purchaser approached Bank for ascertaining outstanding dues etc. At one place, however, it appears that such an attempt was made by purchaser after about one and half or two years from the date of agreement. Relevant extract of statement of PW-1 in cross-examination, reads as under:
^^geus cSad ls ;g iwNk Fkk fd fdruk :i;k pqdrk djuk Fkk ftlls ge dj nsaA cSad us fyf[kr esa dksbZ tokc ugha fn;kA ijUrq ehfVax esa okrkZ gqbZ Fkh ml okrkZ esa ;g ekywe iM+ x;k Fkk fd cSad dk fdruk :i;k cdk;k gSA okrkZ ,xzhesaV dh rkjh[k ls Ms<+ nks lky ckn gqbZ FkhA ml le; cSad dk djhc 50 yk[k :i;k cdk;k FkkA** "We have asked the bank how much amount was to be paid; which we may pay. The bank did not give any reply in written; but in the meeting, discussion was held. In the discussion, it came up as to how much amount of the bank was due. The discussion was held one-and-a-half or two years after the date of agreement. At that time, around Rs. 50 lakh amount was due to the bank." (English translation by Court) (emphasis added)
69. With regard to payment to Bank, PW-1 reiterated in his cross-examination as under:
^^;g r; gqvk Fkk fd cSad dk :i;k rhu eghus esa vnk dj fn;k tkosaA ;g rhu eghus dk Vkbe vof/k blfy, r; gqbZ Fkh fd cSad ls lsfVyesaV djds lhfyax o bude VSDl dh ijeh'ku ysdj cSukek dj fn;k tkosA** ^^bdjkjukesa ds vuqlkj rhu ekg ckn lsfVyesaV vkSj Payment djus dh ftEesnkjh gekjh FkhA vkt rd dksbZ lsfVyesaV ugha gqvkA** "It was decided that the money of the bank be paid in three months. The period of three months was fixed so that after settlement with bank, the sale deed could be executed after taking the permission of Income Tax and Ceiling Office."
"As per the agreement, the responsibility to arrive at the settlement and to make the payment after three months was ours. No settlement has occurred till date." (English translation by Court) (emphasis added)
70. Thus it is evident that plaintiffs-respondents knew it well that sellers if fail to clear Bank dues within three months, thereafter dues would be enquired from Bank and cleared by them i.e. purchaser. For more than one year no such attempt was made by plaintiffs-respondents. In fact dues could not be cleared even till the date when suit was filed and also thereafter when statement of PW-1 was recorded by Court in 1997. Therefore, it is difficult to hold that plaintiffs-respondents had completed or performed their part of contract.
71. At this stage, we may also examine an argument advanced vehemently on behalf of Plaintiff-3, i.e., Respondent-3 before this Court, i.e., Sri Arvind Kumar Bajaj, Assignee by Plaintiffs-1 and 2, who is represented by Sri Sunil Rai, Advocate. He contended that sellers, i.e., Defendants-1 and 2 have concealed material information and did not disclose the amount of dues of Bank to Plaintiffs-1 and 2 though they were bound to do so, as required under Section 55(1)(a) of T.P. Act, 1882, therefore, defendants cannot be allowed to take advantage of their own fraudulent conduct and it is also barred by principle of estopple under Section 115 of Act, 1872. He urged that it was incumbent upon Defendants-1 and 2, i.e., sellers, to disclose exact amount of outstanding dues of Bank which had to be cleared by Plaintiffs-1 and 2 but it was not so disclosed at all and this shows fraudulent conduct of sellers.
72. In our view argument is bereft of any substance and appears to have been made in desperation.
73. Section 55 of T.P. Act, 1882 deals with rights and liabilities of buyer and seller and we may reproduce Section 55(1), which has been basically relied by Sri Sunil Rai, learned counsel appearing for Plaintiff-3, i.e., Respondent-3:
"55. Rights and liabilities of buyer and seller.--In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:--
(1) The seller is bound--
(a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing."
(emphasis added)
74. Contract for sale of land is not a contract uberrimae fidei. The duty of seller for disclosure is not absolute. Seller is under an obligation to disclose latent defects of which he is aware. If any defect is such which buyer can get acquaintance by inspection etc., seller is not bound to disclose such defect which is patent. A latent defect is a defect which a buyer with ordinary care cannot discover for himself. Application of maxim of caveat emptor with respect to sale of immovable property has not been made inapplicable. Therefore, every purchaser has to exercise due care to find out patent defects, himself.
75. We find that in the present case sellers specifically declared that their title for property in dispute is clear except the encumbrances of Bank, to which property was under charge as sellers were guarantors against a loan advanced by Bank. Even this fact was disclosed that suit has been filed by Bank for recovery of money and therein sellers are defendants and liable to pay dues of Bank if suit of Bank is decreed. Even this was disclosed that there are dues of Bank which have to be paid. Exact amount of dues on the date of execution of sale deed, it appears, neither purchasers desired to know nor it is the case of purchasers i.e. Plaintiffs-1 and 2 that despite having knowledge of exact amount sellers refused to disclose the same. In fact there is no such pleading on the part of Plaintiffs-1 and 2 before Court below, hence Plaintiff-3, i.e., Respondent-3 before us, who is an Assignee of rights of proposed purchasers, i.e., Plaintiffs-1 and 2, cannot be allowed to raise this question for the first time before this Court.
76. Even otherwise, we do not find that there is any non disclosure on the part of sellers of an information which constitute defect in property or sellers' title. If Plaintiffs-1 and 2 find no or occasion to have the information of exact amount payable to Bank at the time of execution of contract for sale, this non disclosure by sellers cannot be said to be a violation of requirement of Section 55(1)(a) of T.P. Act, 1882. Neither Plaintiffs-1 and 2 pleaded that sellers were knowing this fact and deliberately concealed it nor they ever pleaded that there was any any fraud played by sellers on this aspect. The contention of Sri Rai, with reference to Section 55(1)(a), therefore, is rejected. Moreover, in view of above discussion, we are clearly of the view that Section 115 of Act, 1872 has no application.
77. We may also add at this stage that position of Plaintiff-3 i.e. Respondent-3 is very fragile and delicate. Plaintiffs-1 and 2 themselves had no right to property for the reason that a mere contract for sale and agreement for sale of immovable property does not create a title in favour of proposed purchasers. Such an agreement is merely a promise for execution of another agreement whereafter only title would be transferred from owner to purchasers.
78. Contract for sale would not make the purchaser/vendee to be owner in equity of estate so long as the sale deed is executed and registered. Mere execution of contract for sale by itself would not create any right or interest in property.
79. In Rambaran Prosad v. Ram Mohit Hazra and Ors., AIR 1967 SC 744 it was held that a contract for sale does not create any interest in property. A three Judge Bench of the Court noticed distinction in law as it was prior to enactment of T.P. Act, 1882 and thereafter. In para 14 of the judgment, it said, that in the case of an agreement for sale entered into, prior to passing of Transfer of Property Act, could have resulted in creating an interest in land itself in favour of purchaser. Thereafter the Court referred to the change resulted with enactment of T.P. Act, 1882, and in para 17, said as under:
". . . . . a mere contract for sale of immovable property does not create any interest in the immovable property and it therefore follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit within which the option has to be exercised." (emphasis added)
80. The Court also noticed, when agreement itself recited with that sale deed would be executed within three years, the purchaser had a right to sue for specific performance and this by itself mean that agreement for sale does not create any right or interest in property.
81. In Jiwan Das Vs. Narain Das, AIR 1981 Delhi 291 a Single Judge in para 10 and 11 of the judgment following Rambaran Prosad (supra) said:
"10. . . . . . . the law in India does not recognise any such estate. Section 54 of the Transfer of Property Act in specific terms provides that a contract for sale does not, of itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate, No privity in estate can be deduced there from which can bind estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale.
11. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed."
82. In Sujan Charan Lenka and others Vs. Smt. Pramila Mumari Mohanty and others, AIR 1986 Ori 74 the Court in para 7 of judgment said that a bare contract for sale of immoveable property does not create any interest in immoveable property. Referring to Section 54 of T.P. Act, 1882, it says:
"7. . . . . . a contract for sale does not, by itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate. No privity in estate can be deduced therefrom which can bind the estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed."
83. A Division Bench in Dewan and sons Investments Pvt. Ltd. Vs. Delhi Development Authority, AIR 1997 Delhi 388 said:
"6. In our opinion, the submission of the learned counsel for the petitioner that as a result of agreement to still dated the 1st May. 1970 in respect of the properly in question, entered into between the petitioner and M/s. Goodwill India Limited, the petitioner had acquired a 'vested right' not only in the property in question bill also to claim a 'No Objection Certificate' on that basis, is devoid of substance. . . . . . . In Kanaya Ram v. Rajender Kumar, AIR 1985 SC 371 their Lordships of the Supreme Court have held that in cases where after oral sales mutation of lands was effected in favour of the transferees even then i.e. after the mutation of properties, no rights accrued in favour of the transferees in respect of such lands as the purported sales and the subsequent mutation based on those sales did not create any right or title in favour of the transferees as the provisions of Section 54 of the Transfer of Property Act were not complied with-their being no registered sale deeds. In the present case too the agreement to sell dated the 1st May, 1970 in the absence of any registered sale deed by itself would not be sufficient to create any right or title in favour of the petitioner in respect of the property in question. The registered sale deed, admittedly, in respect of the property in question, was executed on 13-2-90 and thus the petitioners acquired a right and a title in respect of the property in question only after the execution of the registered sale deed on 13-2-90." (emphasis added)
84. Section 54 itself says that a contract for sale does not create any interest in or charge upon such property. This is what has been noticed by this Court in Indira Fruits and General Market, Meerut Vs. Bijendra Kumar Gupta, AIR 1995 All 316.
85. In other words, a person having an agreement for sale in his favour does not get any right in the property except the right of litigation on that basis. Sometimes it is also described that a contract for sale is merely a document, creating a right to obtain another document.
86. In Imtiaz Ali Vs. Nasim Ahmed, AIR 1987 Del 36 it was said that in absence of a registered sale deed, nobody can call himself as owner by purchase, on the basis of agreement for sale and power of attorney executed by alleged vendor in favour of prospective purchaser cum attorney. The agreement for sale, therefore, by itself does not create any status to petitioner to enter into the shoes of owner of land in dispute.
87. The maximum right Plaintiffs-1 and 2 had is the enforcement of contract for sale in a suit for specific performance. It is this right which was purchased by Plaintiff-3, i.e., Respondent-3 by way of alleged assignment deed dated 10.09.2004. In effect it is nothing but a transfer of right to sue and not a right to transfer of property and apparently such a transfer is barred being not a transfer of property in view of Section 6(e) of T.P. Act, 1882.
88. It is now well established that a mere right to sue cannot be transferred. In Union of India vs. Sri Sarada Mills Ltd., AIR 1973 SC 281 Court said:
"Section 6(e) of the Transfer of Property Act states that a mere right to sue cannot be transferred. .... An assignment of a mere right of litigation is bad."
89. However, we are not going on this aspect of the matter further to non suit Plaintiff-3 for the reason that we are examining this matter on merits itself and would not non suit Plaintiff-3, i.e., Respondent-3 for the reason as stated above.
90. Now coming back to question, whether Plaintiffs-1 and 2 can be said to be in the condition of readiness and willingness, we find from record that in the present case suit was filed in 1995. Dues of Bank were not cleared by plaintiffs-respondents. This was one of the essential condition in the contract. It was mentioned in the plaint, para 5, that Defendants-1 and 2, if failed to clear off dues of Bank, plaintiffs would deposit the same on behalf of Defendants-1 and 2 and adjust the said amount towards balance price. It is not stated anywhere in plaint, whether any attempt was made by plaintiffs to enquire from Bank about the dues and to clear off the same. In this backdrop it is difficult to hold that plaintiffs stand that they were ready and willing to execute sale deed is a correct statement which can be relied on for the purpose of decreeing suit for specific performance.
91. It has also come on record that plaintiffs-respondents-1 and 2 executed an assignment deed with plaintiff-respondent-3 on 10.09.2004 and thereafter dues of Bank were paid on 11.09.2004. Neither any evidence has been placed before Court below nor we find any discussion on the part of Court below in judgment in question that Plaintiffs-Respondents-1 and 2 could show that they had capacity to clear Bank dues, whatsoever, not only on the date of execution of agreement for sale but even thereafter till they filed suit or even thereafter when suit was pending. It is also not made clear by any evidence that Plaintiffs-1 and 2, were capable of clearing outstanding dues of Bank but they were prevented from doing so either by Bank or by sellers. No fact or evidence is placed as to why and in what circumstances, despite having capacity to clear Bank dues, Plaintiffs-1 and 2 did not clear the same at all and allowed liability of sellers to grow on by adding of interest with passage of time till September, 2004.
92. The fact is that Bank dues were cleared by Plaintiffs-1 and 2 after they got money from Plaintiff-3 on 10.09.2004 when assignment deed was executed and Bank dues were paid thereafter i.e. on the very next day, i.e., 11.09.2004. This fact shows that amount payable to Bank by plaintiffs-respondents-1 and 2 was not available with them. They could arrange said amount after execution of assignment deed with Plaintiff-3 and only thereafter the same was paid. Mere fact that ultimately amount of Bank has been paid by plaintiffs-respondents, in this backdrop, is not a relevant factor since in order to ascertain, whether Plaintiffs-1 and 2 were "ready and willing", to execute sale deed has to be examined from the fact, whether they were capable of discharging their obligation i.e. clearance of Bank dues. It was an integral part of agreement since that was the basic reason for which sellers wanted to sell property in dispute. Plaintiffs-1 and 2 having not shown to possess requisite amount available with them to clear outstanding dues with Bank, it cannot be said that they were ready and willing to execute sale deed, hence findings otherwise recorded by Court below on Issues-1, 5 and 6 has to be reversed.
93. In nutshell, in the case in hand, plaintiffs nowhere either pleaded or could show by evidence that they were ever possess with adequate financial resources to clear all dues of Bank and on the contrary factum that Bank dues were clear only after execution of assignment deed on 10.09.2004 with Plaintiff-3 shows that Plaintiffs-1 and 2 were never in a position to clear Bank dues. In absence of financial resources, plaintiffs-respondents could not show that they possess requisite funds to pay Bank dues and remaining consideration to Defendants-1 and 2, hence Court below was not justified in taking a view that plaintiffs-respondents-1 and 2 were always in a position of readiness and willingness to perform their part of contract. In fact the evidence is otherwise and for that reason alone plaintiffs must have been non-suited. Hence, findings otherwise recorded by Court below on this aspect are reversed and we answer Point-4 in negative, i.e., in favour of appellant and against plaintiffs-respondents.
94. Now coming to Point-5, learned counsel for appellant contended that unless mortgage was redeemed no relief for specific performance of contract for execution of sale deed of property in dispute could have been claimed. He further urged, since there was no pleading in this respect no cause of action had arisen and suit itself was liable to be dismissed for that reason alone. It is true that plaintiffs averred in the plaint that they were ready and still ready and willing to execute sale deed but pleading is short of facts that they did everything which was required by them to be done in terms of agreement for sale. When admittedly Defendants- 1 and 2 failed to clear outstanding dues of Bank and agreement of sale contemplated that said dues were to be cleared by Plaintiffs- 1 and 2 and thereafter they would obtain document of title, unless that is done, it could not have been said that stage was set for execution of sale deed.
95. In P. D'Souza v. Shondrilo Naidu (supra) Court observed:
"If the mortgage was not redeemed and the original documents were not produced, the sale deed could not have been executed and in that view of the matter, the question of plaintiff's readiness and willingness to perform his part of contract would not arise. "
96. Plaintiffs pleaded that defendants were to clear dues of Bank but agreement for sale clearly shows that if defendants failed to clear dues, Plaintiffs-1 and 2 themselves were liable to clear outstanding dues and obtain title from Bank. This fact is also admitted by PW-1 in his oral deposition but neither was observed nor performed nor pleaded. Hence there had arisen no cause of action for plaintiffs to file suit for specific performance since sale deed could not have been executed by Defendants-1 and 2 unless Bank dues are cleared and original documents are released by Bank. Hence, we answer Point-5 also in favour of appellant.
97. Now coming to Point-6, we find that basic object in execution of agreement for sale, on the part of owner, was, to clear outstanding dues of Bank at the earliest so as to avoid further interest liability and also to use balance amount of consideration in their business for earning their livelihood. Plaintiffs-1 and 2 were under an obligation to clear dues of Bank at the earliest and obtain title deed so as to get sale deed executed by Defendants-1 and 2 and this performance on the part of plaintiffs ought to have been discharged within a reasonable time so as to prevent loss to Defendants-1 and 2 on account of increasing interest liability on outstanding dues of Bank.
98. It has come on record that in 1986 loan amount was only Rs. 7 lacs which increased to Rs. 34 lacs and odd in August, 2001 and on 11.09.2004 actual amount paid by plaintiffs-respondents was Rs. 41 lacs and odd. It has also come on record by way of oral deposition of PW-1 that payment was made to Bank after receiving money from Sri Arvind Kumar Bajaj, Plaintiff-3. Relevant extract of statement of PW-1 reads as under:
^^bl 34 yk[k dks cSad us 4160800 :i;s dj fn;kA ;g lgh gS fd ;g Payment cSad dks geus vjfoUn ctkt ls :i;k ysus ds ckn fd;kA** "The bank has turned the amount of Rs. 34 lakh into Rs. 41,60,800/-. It is true that we made this payment to the bank after taking the money from Arvind Bajaj."(English translation by Court)
99. Delay in discharge of obligation on the part of Plaintiffs-1 and 2 with regard to clearance of dues of Bank, after execution of agreement for sale, obviously has seriously prejudiced Defendants-1 and 2, i.e., appellant and respondent-4 before this Court, inasmuch as liability of Bank increased multifold and become larger than the total amount of consideration for which property was agreed to be sold to Plaintiffs-1 and 2. Therefore, inaction on the part of Plaintiffs-1 and 2 and not performing their part of contract within reasonable time after execution of agreement for sale by not clearing dues of Bank, entire translation has caused great prejudice and hardship to Defendants-1 and 2, i.e., appellant and respondent-4 for which Plaintiffs-1 and 2 are responsible. Hence they cannot be allowed to take advantage of their own wrong. In that view of the matter, Court below has erred in law in decreeing suit for specific performance and it should have exercised its discretion by denying relief to plaintiffs. Point-6, therefore, is also answered in favour of appellant and Respondent-4.
100. Now coming to ultimate conclusion, whether appeal and cross-objection of appellant and Respondent-4 deserved to be allowed simply or some other order would be justified in the present case looking to circumstance that Plaintiffs-1 and 2, as a matter of fact, had paid Rs. 1 lac to appellant and Respondent-4 when agreement for sale was executed on 23.06.1993 and thereafter Rs. 41,60,800/- to Bank on 11.09.2004.
101. Jurisdiction to decree specific performance is discretionary but discretion has to be exercised not arbitrarily but on sound and reasonable principles, guided by judicial principles.
102. For the reasons stated above, on the one hand, it cannot be disputed that agreement for sale is not enforceable in view of bar created under Section 16(c) that Plaintiffs-1 and 2 are not found ready and willing, earlier and throughout to perform essential terms of contract, but simultaneously we also cannot ignore the fact that appellant and Respondent-4 are also benefited, may be on account of delayed payment of dues to Bank by Plaintiffs-1 and 2, but the fact remains that property in dispute has become free from encumbrance of Bank after clearance of its dues.
103. We are also aware that plaint as drafted by Plaintiffs-1 and 2 did contain a prayer for execution of sale deed with a permission to clear off dues of Bank which was impleaded as Defendant-3 and during pendency of suit Bank dues were cleared by Plaintiffs-1 and 2. To do complete justice in the matter at appellate stage so that appellant and Respondent-4, i.e., Defendant-1 do not retain any undue benefit in the matter, we find it appropriate that judgment and decree should be modified to the extent that prayer of decree for specific performance on the one hand should be rejected but simultaneously appellant and Defendant-1, i.e., Respondent-4 should be directed to refund amount which has been paid by Plaintiffs-1 and 2 to them, as well Bank to clear dues and to get property in dispute free from encumbrances of Bank.
104. In view of above discussion and in the ultimate result, we allow appeal and cross-objection partly. Judgment and decree dated 17.05.2006 and 25.05.2006 are modified. Relief for specific performance prayed by Plaintiffs-1 and 2 is hereby rejected. Judgment and decree of Court below granting said relief is hereby set aside and suit of plaintiffs is hereby dismissed to that extent. However, we direct appellant and Defendant-1, i.e., Respondent-4 to refund Rs. 1 lac which they received as advance while entering into agreement for sale dated 23.06.1993 and Rs. 41,60,800/-, which Plaintiffs-1 and 2 had paid to Bank, to Plaintiffs-1 and 2, within three months alongwith simple interest of 6% which shall be computed in respect of Rs. 1 lac from the date of agreement dated 23.06.1993 and on Rs. 41,60,800/- w.e.f. 11.09.2004 when said amount was paid by Plaintiffs-1 and 2 to Bank.
105. Before parting, we also make it clear at this stage we are not called upon to decide inter se rights between Plaintiffs-1, 2 and 3 since that is neither scope of suit nor a dispute before us and this judgment shall not preclude concerned parties to settle their inter se rights amongst themselves in accordance with law.
106. In view of divided success, we direct parties to bear their own costs.
Order Date :- 29.05.2018 AK