JUDGMENT
R.R. Yadav, J.
1. This first appeal is filed against the judgment and decree dated 6.9.80 passed by the learned District Judge, Pali whereby he decreed the Civil Original Suit No. 12/78 filled by the plaintiff-respondent for specific performance of contract dated 26.1.78.
2. Put the facts briefly are as follows–The plaintiff-respondent filed a suit against the defendant-appellant in the court of District Judge, Pali for specific performance of contract executed between the parties (Ex.3) on 26.1.78 on the ground inter alia, that the defendant-appellant agreed to sell her house for Rs. 70,001/-. The plaintiff-respondent paid a sum of Rs. 10,000/- as earnest money on that day and remaining amount of Rs. 60,001/- was agreed to be paid at the time of registration of the sale-deed. According to Agreement to still (Ex. 3) aforesaid, the defendant-appellant was required to execute the register the sale-deed by 10.4.78. It is stipulated in the aforesaid agreement between the parties that in case, the defendant-appellant commits breach of contract then she would return Rs. 10,000/- received by her as earnest-money and would also pay Rs. 10,000/- by way of damages to the plaintiff-respondent. There is further stipulation in the aforesaid agreement between the parties that in case, the plaintiff- respondent commits breach of contract then the defendant-appellant would forfeit amount of earnest money advanced to tier. It is pertinent to mention here that the amount to spent in getting the conveyance executed was to be borne by the plaintiff- respondent.
3. It has been alleged in the plaint by the plaintiff- respondent that on the request of the defendant-appellant the date of execution and registration was extended twice. It is also alleged by the plaintiff-respondent that according to the Agreement to Sell dated 26.1.78, the defendant was required to execute registered sale-deed in favour of the plaintiff- respondent upto 10.4.78 but it was extended on the request of the defendant-appellant on the ground that her children are prosecuting their studies and she could not be ale to manage alternate accommodation, therefore, with the consent of both the parties, the date of execution of the sale-deed was extended upto 30.5.78. The date for execution of the registered sale-deed was further extended on 30.5.78 upto 15.6.78 on the ground that she is not able to obtain Income-tax Clearance Certificate from the Income Tax Department and stamp duty required to be affixed on the registered sale-deed was also not available. The aforesaid extension of the dates for execution of the sale-deed between the parties is proved by Ex.4 on record. It is also alleged in the plaint by the plaintiff-respondent that he paid Rs. 4,176/- for purchase of stamps in the name of defendant-appellant, for execution of the registered sale-deed. The defendant-appellant was required to obtain a certificate of Clearance from the Income-tax Department as contemplated Under Section 230A of the Income-tax Act, 1961 (for short the Act of 1961). The plaintiff- respondent has specifically pleaded in his plaint about his readiness and willingness to perform his part of contract but the defendant-appellant did not execute the documents irrespective of oral and written request to do so which necessitated to file the present suit for Specific Performance of Contract.
4. After service of summons, the defendant-appellant filed a written statement stating therein that the defendant-appellant is the owner of the suit premises and she did not agree to sell her house property for Rs. 70,001/-. She never obtained a sum of Rs. 10,000/-in advance. It is also alleged by her in her written statement that time for executing the registered sale-deed was extended upto 15.6.78 and the sale-deed could not be executed as the plaintiff-respondent was not ready and willing to perform his part of contract due to paucity of fund. It is also alleged by her in her, written statement that the defendant-appellant was not required to obtain any certificate from the Income-tax Department and she denied of having committed breach of contract. It was asserted by her in her statement that the plaintiff-respondent had no fund to the extent of Rs. 60,000/- on 15.6.78, therefore, he did not appear before the Sub Registrar on 15.6.78, although she was ready and willing to perform the contract.
5. On the basis of the aforesaid pleadings of the parties, the learned District Judge framed the following issues:
rufd;kr 1- vk;k oknh QeZ Hkkjrh; Hkkxhnkjh dkuwu ds rgr ckdk;nk jftLVMZ QeZ gS oks nkos esa of.kZr 'k['k mlds Hkkxhnkj gS ¼oknh½ 2- vk;k E;kn rkjh[k 15@6@78 rd dh bUdeVSDl Dyh;jsUl lfVZfQdsV izfrokfnuh }kjk izkIr ugha djus ds dkj.k c<+kbZ xbZ\ ¼oknh½ 3- vk;k izfrokfnuh us fodz;i= fu"ikfnr ugha fd;k vkSj u jftLVMZ djok;k vkSj izfrokfnuh us ok;nk Hkax fd;k\ ¼oknh½ 4- vk;k bu nks vkYVjusfVo oknh QeZ izfrokfnuh ls 24167@& :i;s izkIr djus dh vf/kdkjh gS\ ¼oknh½ 5- vk;k izfrokfnuh viuk lafonk iw.kZ djus dks rS;kj Fkh\ ¼izfroknhuh½ 6- vk;k oknh dks Lis'khQhd ijQksjesUl dk nkok ykus dk vf/kdkj ugha gS\ ¼izfroknhuh½ 7- vk;k izfroknhuh fo'ks"k gtkZ ikus dh vf/kdkfj.kh gS\ ¼izfroknhuh½ 8- vuwrks"k \ 6. After framing of the issues, the learned District Judge gave opportunity to the plaintiff-respondent as well as to the defendant-appellant to adduce evidence in support of their respective claims. 7. In support of his claim, the plaintiff-respondent examined PW 1 Mohanlal and PW 2 Shivlal Gupta and also produced the following documents: (a) Ex. 1-- Partnership Registration Certificate. (b) Ex. 2-- Entry of Registration of Firm in the register of the Registrar kept in the office of the Registrar of Firms, Rajasthan, Jaipur. (c) Ex. 3-- Original Agreement to sell dated 26.1.78. (d) Ex. 4-- Two dates of extension as agreed between the parties at the request of the defendant-appellant. (e) Ex. 5-- Certificate granted by the Public Notary on 15.6.78.
(f) Ex. 6– Notice dated 28.6.78 giving in detail of the previous happening indicating therein his readiness and willingness to perform his part of contract but alleging that the defendant appellant deliberately avoiding to perform her part of the contract, therefore, by that written notice, she was called upon to execute the registered sale-deed within 5 days failing which, the plaintiff-respondent will be compelled to file a suit for specific performance.
(g) Ex. 7– Acknowledgment Receipt of the aforesaid written notice Ex. 6 given by the plaintiff-respondent to the defendant-appellant to prove that the aforesaid written notice was duly received by the defendant appellant on 29.6.78.
8. In support of her claim, the defendant-appellant Smt. Shakuntala Devi examined herself as D.W. 1 on commission DW 2 Pratapmal, DW 3 Madan Lal S/o Manna lal DW 4 Madan Lal S/o Heera Lal, DW 5 Sohan Lal and DW 6 Ratan Singh. She also produced Ex. A/1 Certificate from the Sub-Registrar, Pali dated 15.6.78.
9. After hearing the learned Counsel for the plaintiff- respondent and learned Counsel for the defendant-appellant, the learned District Judge, Pali recorded a categorical finding after analytical discussion of oral and documentary evidence on record to the effect that time was not essence in the contract between the parties. Secondly, according to the learned District Judge, the plaintiff-respondent had always been ready and willing to perform his part of the contract but the defendant-appellant had failed to perform her part of contract, therefore, the suit for specific performance was decreed.
10. I have heard Mr. R.R. Nagori, learned Counsel for the defendant-appellant and Mr. D.R. Bhandari, learned Counsel for the plaintiff-respondent a length, and have carefully gone through the oral and documentary evidence adduced by the parties before the learned Dist. Judge, Pali.
11. Mr. R.R. Nagori, learned Counsel for the defendant- appellant argued before me firstly, according to him, time is essence of the contract and secondly, according to him, the learned District Judge mis-construed the agreement dated 26.1.78 entered into between the parties which has resulted into miscarriage of justice. According to him there is stipulation in the agreement dated 26.1.78 that if the defendant-appellant failed to perform her part of contract then she will pay a sum of Rs. 10,000/-received by her from the plaintiff-respondent as earnest money along with Rs. 10,000/- as damages, therefore, according to the argument of the learned Counsel for the defendant-appellant the learned District Judge has fallen into an error in decreeing the suit for specific performance instead of directing the defendant-appellant to pay a sum of Rs. 20,000/- as stated above as damages for her non-performance of the contract.
12. Lastly, the learned Counsel for the defendant-appellant submitted before me that the defendant-appellant was always ready and willing to perform her part of the contract but due to paucity of fund, the plaintiff-respondent was not able to perform his pail of the contract, therefore, the suit for specific performance cannot be decreed. In support of his last argument, learned Counsel for the defendant-appellant placed before me a decision of the Hon’ble Supreme Court in Smt. Chanda Rani v. Kamal Rani AIR 1973 SC 1742.
13. Mr. D.R. Bhandari, learned Counsel for the plaintiff-respondent refuted the aforesaid contention and has submitted that the judgment and decree for specific performance passed by the learned District Judge, Pali in the instant appeal is eminently just and proper and does not suffer from any error either on question of fact or on the question of law.
14. I have given my thoughtful consideration to the submissions made by the learned Counsel for the defendant- appellant as well as plaintiff-respondent and in my humble opinion, the learned District Judge after analytical discussion of oral and documentary evidence on record, correctly arrived at a conclusion that time is not essence of the agreement and the plaintiff-respondent was always ready and willing to perform his part of contract but the defenant-appellant had failed to perform her part of contract. The learned District Judge is absolutely correct to hold that the stage of the payment of the balance price never arose in the present case, on account of failure on the part of the defendant-appellant in the matter of performance on her part of contract, inasmuch as, she did not move an application Under Section 230A of the Income-tax Act, 1961 to obtain a Clearance Certificate and unless the clearance certificate is obtained by her, the question of payment of balance of price did not arise.
15. I am in general agreement with the aforesaid finding recorded by the learned District Judge for which the learned District Judge has given cogent and convincing reasons. In order to appreciate the arguments raised on behalf of the parties before me, it would be expedient to address the submissions made by the learned Counsel for the defendant-appellant in seriatim.
16. The first argument raised by the learned Counsel for the defendant-appellant before me is that the time is an essence of the Agreement between the parties in the present case. He invited my attention towards Ex.3-original agreement to sell dated 26.1.78, wherein, there is stipulation that the registered sale-deed is to be executed upto 10.4.78. He also invited my attention towards Ex. 4-, wherein, the terms and conditions of the original agreement dated 26.1.78 had been reiterated between the parties and on 5.10.78, on the request and inability shown by the defendant-appellant herself, the time for execution of the sale- deed was extended from 10.4.78 to 30.5.78. On the said Ex.4, again due to inability shown by the defendant-appellant herself not able to obtain the income-tax clearance certificate Under Section 230A of the Income-tax Act, 1961, the time for execution of the sale-deed which was earlier extended from 30.5.78 was again extended upto 15.6.78. According to the learned Counsel for the defendant-appellant since a specific date is given in the original agreement to sell dated 26.1.78 which was extended from time to time, therefore, in the present case, the learned District Judge has no authority to hold that time was not essence to the agreement between the parties. In my humble opinion, the aforesaid argument of the learned Counsel for the appellant is untenable.
17. The aforesaid question whether time is essence in similar circumstances arose before the Apex Court in the case of Govind Prasad V. Hart Dutt , where their Lorships held that 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 imovable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances, which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.
18. It may be mentioned here the the language used in the agreement dated 26.1.78 (Ex. 3) is not such as to indicate in unmistakable terms that the time is the essence of the contract.
19. In view of the aforesaid proposition of law Laid down by the Apex Court in the case of Govind Prasad (supra). I am of the opinion that the learned District Judge after appraisal of oral and documentary evidence on record and also after giving convincing and cogent reasons in support of his conclusion rightly held that the time in the present case, was not essence of the contract.
20. The second limb of the argument of the learned Counsel for the defendant-appellant Is that the learned District Judge had mis-construed the original agreement to sell dated 26.1.78 wherein there is a clear stipulation that in case, the defendant- appellant failed to perform her part of the contract then she will return Rs. 10,000/- paid to her as earnest money from the plaintiff-respondent along with further Rs. 10,000/- as damages to the plaintiff-respondent. According to the learned Counsel for the defendant-appellant, in view of the specification of a sum of Rs. 20,000/- to be paid for breach of contract on the part of the defendant-appellant, the learned District Judge ought to have awarded Rs. 20,000/- to the plaintiff-respondent instead of passing a decree for specific performance.
21. The aforesaid argument of the learned Counsel for the defendant-appellant is not acceptable to me, inasmuch as, mere specification of a sum of Rs. 20,000/- to be paid for breach of contract on the pail of the defendant-appellant, is not sufficient itself to remove the strong presumption contemplated Under Section 10 read with Section 23 of the Specific Relief Act. The sufficiency or insufficiency of any evidence to remove such presumption as contemplated Under Section 10 read with Section 23 of the Specific Relief Act is a matter of evidence.
22. In my humble opinion, the jurisdiction of the court to decree a suit for Specific Relief, is discretionary, which is required to be exercised on sound and reasonable ground guided by the judicial principles. The jurisdiction cannot be curtailed or taken away by merely fixing a sum as damages. It is made perfectly clear by Section 23 of the Specific Relief Act, 1963 that the Court has to determine on the facts and circumstances of each case before it whether specific performance of a contract to convey a property ought to be granted, or it should be refused. The fact that the parties themselves have provided in the present case, a sum of Rs. 20,000/- to be paid by the defendant-appellant committing breach of contract dated 26.1.78 Ex. 3 does not by itself remove the strong presumption as contemplated Under Section 10 read with Section 23 of the Specific Relief Act, 1963. According to me, the effect of presumption to the facts that the party coming to the court for specific performance of the contract for sale of immovable property need not to prove anything until other side has remove the presumption. In the present case, the defendant-appellant miserably failed to rebute the aforesaid presumption by adducing any reliable evidence. In fact, in my considered opinion the payment of Rs. 20,000/- will not compensate the plaintiff-respondent who is running from pillar to post from the date of execution of the agreement to sell dated 26.1.78 for paying money to purchase the stamp papers for execution of the sale-died, sending a draftsman to prepare a scale map of the house in question within the knowledge of the defendant-appellant yielding to the pressure of the defendant-appellant to extend the date for execution of the registered sale-deed on some pretext or other, which is evident from Ex.4 on record. The defendant-appellant on some pretext or other extended the period for execution of the sale-deed twice. The defendant-appellant deliberately avoided to move an application Under Section 230A of the Income-tax Act, 1961 and now after such interval of about 16 years taking the defence that she is entitled to pay Rs. 20,000/- as damages to the plaintiff-respondent, while as a matter of fact, in her written statement, she had denied the execution of the initial agreement dated 26.1.78 and had also denied the receipt of Rs. 10,000/- as earnest money. She had taken a plea in her written statement that she was not required to obtain a clearance certificate Under Section 230A of the Income- tax Act, 1961.
23. In view of the afore-mentioned discussion, in my humble opinion, the net result is that presumption as contemplated in the Explanation of Section 12 of the Old Act corresponding to Section 10 of the New Specific Reliefs Act has not been rebutted. In my view, equity helps in the present case to the honest plaintiff-respondent against dishonest defendant-appellant, who deliberately with ulterior motive, break solemnly undertakings given by her while executing the agreement to sell on 26.1.78. The aforesaid date for execution of the registered sale-deed was extended twice on some pretext or other. The Learned District Judge had rightly decreed the suit for specific performance of the contract.
24. I am fortified taking the aforesaid view by the decision of the Apex Court in M.L. Devender Singh and Ors. V. Syed Khaja .
25. Last submission of the learned Counsel for the defendant-appellant is that in fact, the plaintiff-respondent was never ready and willing to perform his part of the contract but the defendant-appellant was always ready and willing to perform her part of the contract, therefore, the learned District Judge has illegally decreed the suit for specific performance.
26. In support of the aforesaid contention, learned Counsel for the defendant-appellant has placed reliance on Ex. A/1- Certificate given by the Sub-Registrar, Registration, Pali certifying that the appellant’s husband namely Devilal present before him and he was ready and willing to execute the registered sale-deed. In order to establish her readiness and willingness to perform her part of the contract and failure on the part of the plaintiff-respondent to perform his pail of contract, she examined the Sub-Registrar, who gave the aforesaid certificate Ex.A/1 as DW.5. Mohanlal (DW 5) who categorically stated in his cross-examination that he did not know Devilal from before. He further stated in his cross-examination that he is unable to say as to whether the person representing himself to be Devilal and who moved an application before him to obtain certificate Ex. A/1 was the husband of the defendant-appellant or not. He further stated in his cross-examination that even today, he does not know Devilal. According to his statement, there is no provision for giving such certificate as given by him by way of Ex.A/1. The aforesaid statement given by DW 5-Mohanlal does not inspire confidence that Ex.A/1 is a genuine document and the defendant-appellant was present before the sub-Registrar on 15.6.78 for executing the registered sale-deed in favour of the plaintiff- respondent. The learned District Judge after analytical discussion of the oral and documentary evidence on record rightly came to this conclusion that the plaintiff-respondent had always been ready and willing to perform his part of his contract and the defendant-appellant has failed to perform her part of the contract. According to me, the aforesaid finding recorded by the learned District Judge is eminently just and proper and is based on proper and analytical discussion of oral and documentary evidence on record.
27. In support of his aforesaid argument, learned Counsel for the defendant-appellant vehemently argued before me that the plaintiff-respondent-firm had not adduced before the court its ‘Bahi’ (Accounts Book) that it has sufficient fund of Rs. 60,000/- plus other expenses to purchase the disputed house. According to the learned Counsel for the defendant-appellant, the certificate produced by the plaintiff-respondent dated 15.6.78 (Ex.5) by Public Notary does not inspire confidence that on 15.6.78, the plaintiff-respondent has sufficient fund to pay Rs. 60,000/- consideration to the defendant-appellant and was also in a position to bear the expenses of conveyance. He invited my attention towards the statement of Shivlal Gupta (PW 2) who was examined by the plaintiff-respondent to prove Ex.5. According to the learned Counsel for the defendant-appellant, PW 2-Shivlal Gupta had not counted the bundle of currency notes and did not verify as to whether the currency notes shown to him on 15.6.78 were upto the value of Rs. 60,000/- or it was less to it. Although the learned District Judge had believed the fact that the plaintiff-respondent had sufficient fund at his disposal to pay consideration to the defendant-appellant and other expenses. A close scrutiny of the judgment of the learned District Judge further indicates that he had rightly repelled the argument of the learned Counsel for the defendant-appellant to the effect that non-production of the ‘Bhai’ (Accounts Book) indicates that the plaintiff-respondent Finn was not in a position to pay Rs. 60,000/- consideration and other expenses of conveyance. The learned District Judge has given cogent and convincing reasons that even if the Bahi (Accounts Book) would have been produced in the present case, then, there was chance on behalf of the defendant-appellant to argue that the Bahi (Accounts Book) has been wrongly prepared in order to demonstrate that his financial position is sound to pay Rs. 60,0001/- and to bear other expenses of conveyance.
28. Apart from the aforesaid reasons, I would like to give my own reasons to the effect that in the present case, the question of payment of the balance price of Rs. 60,0001/- could occur only after the defendant-appellant had obtained the clearnance certificate Under Section 230A of the Income-tax Act, 1961. As a matter of fact, the stage of the payment of the balance price never arose in this case on account of failure on the pail of the defendant-appellant in not obtaining the clearnace certificate Under Section 230A of the Income-tax Act, 1961. The requirement of law is simply the continous readiness and willingness on the part of the plaintiff-respondent to perform his part of the contract throughout from the commencement of the agreement to sell till the hearing of the suit but that does not mean that the plaintiff was expected to carry on the cash balance price of Rs. 60,001/- in his pocket during all the aforesaid period. According to me, the plaintiff-respondent is required to show simply his continuous readiness and willingness to pay the balance price only as and when the appropriate occasion for the same was to arise. In the present case, the plaintiff-respondent had already pleaded in reply to the plaint that he is ready and willing to perform his part of the contract. The plaintiff-respondent had also given a registered notice (Ex.6) calling upon the defendant-appellant to execute the registered sale-deed after receiving the consideration. From Ex.7, it is proved that the aforesaid registered notice (Ex.6) was received by the defendant-appellant. The defendant -appellant herself had stated in her statement on commission as DW 1 that the plaintiff-respondent had sent a drafts-man to prepare a scale map in order to facilitate execution of the registered sale-deed.
29. In Ganesh Prasad V. Saraswati Devi and Ors. , the following observations appearing at page 51 are relevant:
./.. The words ready and willing are to my mind simple words and all that they mean is that a plaintiff, in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under the contract, that preparedness may not, however, be mere verbal show of readiness to do his part. It should be backed by the means to perform his part of the contract when called upon to do so. The plaintiff does not have in such a case to go about jingling money to demonstrate his capacity to pay the purchase price, all that the plaintiff has to do in such a situation is to be really willing to purchase the property when the time for doing so comes and to have the means to arrange for payment of the consideration payable by him…
30. In view of the aforesaid discussion, I hold that the plaintiff-respondent has always been ready and willing to perform his part of the contract but the defendant-appellant had failed to perform her part of the contract, therefore, the learned District Judge has rightly decreed the suit for specific performance and it is hereby affirmed. The facts and circumstances of the decision cited by the learned Counsel for defendant-appellant Smt. Chana Rani (supra) were different, therefore, the proposition of law laid down in the aforesaid decision of the Apex Court are not attracted in the present case. The facts of the said case are clearly distinguishable, inasmuch as, in that case, a purchaser himself was not willing to make part payment of the amount within specified time in the agreement, while in the present case, neither there is any allegation nor proof that any such amount was to be paid to the defendant-appellant before executing of the registered sale-deed which the plaintiff-respondent intended to perform.
31. In view of the aforesaid discussion, the instant first appeal lacks merit and is hereby dismissed and judgment and decree dated 6.9.80 passed by the learned District Judge, Pali is hereby affirmed.
32. The parties are directed to bear their own costs.
