Dismissed

Mukesh Singh and 4 Ors. v. Saurabh Chaudhary and Another

Allahabad HC3 May 2019FAPL/594/2018

Case brief

AI extract

What is this about?

Appeal against a decree of specific performance of a registered agreement to sell; the defendants denied receiving the earnest money and disputed the plaintiffs' readiness and willingness. The court held execution of the agreement and readiness and willingness proved, rejected the plea that the repealed Section 20 of the Specific Relief Act survived the 2018 substitution, and found no error in ref

What the court decided

AI extract

Mukesh Singh and 4 Ors. Vs Saurabh Chaudhary and… — Specific Performance | Allahabad HC (2019)

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AFR

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Judgment Reserved on 11.02.2019 Judgment Delivered on 03.05.2019

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Court No. - 59 Case :- FIRST APPEAL No. - 594 of 2018 Appellant :- Mukesh Singh And 4 Ors Respondent :- Saurabh Chaudhary And Another Counsel for Appellant :- Arvind Kumar Tiwari,H.N.Singh Counsel for Respondent :- Anil Sharma,Pramod Dwivedi

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri H.N. Singh, learned Senior Advocate assisted by Sri Arvind Kumar Tiwari, learned counsel for the defendants-appellants and Sri Anil Sharma, learned counsel for the plaintiffs-respondents.

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Facts

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Briefly stated facts of the present case are that the plaintiffsrespondents filed Original Suit No.5 of 2015 (Saurabh Chaudhary and Gaurav Rawat v. Mukesh Singh, Pratap Singh, Hardev Singh, all sons of late Maharaj Singh and Smt. Sona Devi wife of late Maharaj Singh). During pendency of the suit, Smt. Sona Devi died. She was substituted by her son/heir Satyaveer Singh as defendant-appellant No.4/1.

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The aforesaid original suit no.5 of 2015 was filed by the plaintiffs for a decree of specific performance of the registered agreement to sell dated 11.06.2014 and for a direction to the defendants to execute a sale-deed and get it registered in favour of the plaintiffs with respect to the land mentioned in the agreement, on receiving balance amount of the sale consideration of Rs. 25,00,000/- and in case of failure on the part of the defendants to comply with the conditions, the Court may execute the sale-deed and get it registered within the stipulated time with respect to the disputed land on deposit of sale consideration by the plaintiffs in the court below.

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In paragraph nos. 1 and 2 of the plaint, the plaintiffs have stated

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that the defendants are owner and are in possession of 4/5th share of agricultural land of Khata No.105 (Fasli year 1419 to 1424) being Khasra Plot No.89 measuring 1.011, plot no.234 measuring 0.233, plot no.90 measuring 0.859, plot no.92-kha measuring 0.003, plot no.188 measuring 0.090, total 5 plots measuring 2.196 hectares, which the defendants agreed to sell to the plaintiffs for consideration of Rs.35,00,000/- and executed a registered agreement to sell on 11.6.2014 and received Rs. 10,00,000/- as earnest money.

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In paragraph nos. 4,5 and 6 of the plaint, the plaintiffs have stated that several time the plaintiffs orally requested the defendants and demanded to execute sale deed in favour of the plaintiffs in respect of the disputed land to which the defendant never paid any attention. Therefore, they sent a legal notice by registered post to the defendants on 18.11.2014, calling upon them to execute the sale-deed and to get it registered in favour of the plaintiffs. The plaintiffs remained present on the given date at the office of Sub-Registrar, Sasni, district Hathras on 16.12.2014 with the balance amount of consideration and their presence has been noted, but the defendants wilfully ignored the legal notice and did not do the needful. They failed to appear at the office of the Sub-Registrar, Sasni, to execute the sale-deed and get it registered in favour of the plaintiffs. Thus, they deliberately committed breach of agreement to sell dated 11.06.2014.

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In paragraph no.7 of the plaint, the plaintiffs have clearly stated that they had always been ready and willing and are still ready and willing to perform their part of the contract (agreement) till the defendants agree to execute the sale-deed and get it registered in respect of the suit property under the orders of the Court. The aforesaid suit was filed on 2.1.2015.

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The defendants filed a written statement dated 21.3.2017 in which they partly admitted paragraph-1 of the plaint and denied the remaining contents of the plaint being paragraph Nos. 2 to 10. In the written statement, the defendants-appellants made additional pleas being paragraph nos. 11 to 30.

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The crucial pleadings under the heading of the additional pleas made in the written statement are briefly as under :

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Para-14 In the first week of June 2014, the defendants were in need of Rs.1 lac which they spoke to the plaintiffs and thereupon, the plaintiffs told them to take loan and in this regard they have to do something in writing. The defendants were in active confidence. Since, the plaintiffs have paid a sum of Rs.1 lac before execution of the deed. Therefore, the defendants were in active confidence of the plaintiffs and taking advantage of it, the defendants took thumb impression and signature on the deed without any knowledge of the defendants that the deed in question is an agreement to sell.

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Para-15 The defendants returned the arrears of Rs. 1 lac to the plaintiffs in December 2014 and thereafter, requested them to return the deed to the defendants and get it cancelled, but they did not do so and instead told that they have got executed the agreement to sell.

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Para-22 A sum of Rs. 10 lacs mentioned in the agreement to sell, was never received by the defendants rather only Rs. 1 lac was taken as loan which has been re-paid to the plaintiffs.

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Para-23 The market value of the property has been shown as Rs. 35,00,000/- lacs in the agreement to sell which is insufficient and the market value of the property in question is about Rs.70,00,000/- Therefore, there was no question of contract to sell the property at low price.

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The plaintiffs filed a replica dated 19.4.2017 in which they denied the allegations made in the written statement.

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The plaintiffs-respondents led oral evidence of P.W.1 Saurabh Chaudhary (plaintiff no.1), P.W.2 Ajab Singh, (marginal witness of the agreement to sell dated 11.6.2014), P.W.3 Rakesh Kumar (marginal witness of the agreement to sell dated 11.6.2014) and P.W.4 Anil Kumar Gupta (deed writer ). They led documentary evidence being original agreement to sell dated 11.6.2014, notice dated 18.11.2014, postal receipt dated 18.11.2014, attendance receipt of Sub Registrar office of morning and evening dated 16.11.2014, copy of the family register and copy of Khatauni.

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The defendants led only the evidence of D.W.1 Pratap Singh (defendant-appellant no.2) and filed his own evidence in the form of an affidavit being Paper No.42-A. No other evidence either oral or documentary were led by the defendants-appellants. P.W.1 Saurabh Chaudhary, P.W.2 Ajab Singh, P.W.3 Rakesh Kumar and P.W.4 Anil Kumar Gupta were cross-examined. On 12.5.2017, six issues were framed by the trial court. English translation of the aforesaid six issues famed by the trial court, is as under :

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(i) Whether as per plaint, the plaintiffs are entitled to get the sale-deed executed from the defendants pursuant to the agreement to sell dated 11.6.2014 ?

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(ii) Whether the case of the plaintiffs is barred by the provisions of Sections 14, 16 and 20 of the Specific Relief Act ?

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(iii) Whether the case of the plaintiffs is barred by Order 7 Rule 11 C.P.C.

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(iv) Whether the case of the plaintiffs is barred by principles of non-joinder of parties ?

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(v) Whether any cause of action arose to the plaintiffs against the defendants?

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(vi) Whether the plaintiffs are entitled for any relief ?

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The aforesaid issues were framed on 5.12.2017. After the plaintiffs completed their evidence, the defendants led their evidence and completed it on 15.3.2018. Thereafter, the suit was fixed for hearing. At this stage, the defendants-appellants filed an application (Paper No.47Ga2) for framing of additional issues and English Translation thereof is as under :

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(a) Whether the deed in question is void and ineffective in view of the averments made in the written statement ?

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(b) Whether on the basis of the alleged agreement to sell the plaintiffs had been ready and willing for execution of sale- deed in their favour ?

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(c) Whether on specific performance of the contract the defendants shall suffer irreparable hardship ?

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The aforesaid application was rejected by the court of Civil Judge (Senior Division), Hathras by order dated 19.4.2018, observing that so far as the question no.(a) is concerned, there is no pleading in the written statement by the defendants in this regard. The question no.(b) is covered by Issue no.1 framed on 12.5.2017. It is not justified to frame question no.(c), since, there is no counter claim of the defendants on record.

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By the aforesaid order dated 19.4.2018, the application (Paper No.47-Ga2) filed by the defendants, as afore-mentioned, was rejected

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by Civil Judge (Senior Division), Hathras, which was not challenged by the defendants-appellants before any higher Court.

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Aggrieved with this judgment, the defendants have filed the present appeal.

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Submission of Defendants-Appellants

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Learned counsel for the defendants-appellants submits as under :

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(i) No amount was received by the defendants-appellants from the plaintiffs-respondents as per agreement to sell dated 11.6.2014. (ii) Under the aforesaid alleged agreement to sell, the plaintiffs never shown their readiness and willingness to pay remaining amount of Rs.25,00,000/-. They could neither prove their readiness and willingness to pay the amount nor they could show any source of income. The cold storage is owned by the father of the plaintiff no.1 and not by him. Thus, the plaintiffs completely failed to prove the readiness and willingness to pay the amount as required under Section 16 (c) of the Specific Relief Act, 1963 (hereinafter referred to as the 'Act of 1963'). The plaintiffs never executed an agreement to sell in favour of the plaintiffs, therefore, it is void.

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(iii) The court below has arbitrarily acted in considering the case of the defendants in the light of the provision of Section 20 of the Specific Relief Act,1963. The defendants are four brothers, who are solely dependent for their livelihood on the disputed agricultural land and, if it is sold to the plaintiffs then their right of livelihood shall be adversely affected.

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(iv) The consideration shown in the alleged agreement to sell dated 11.6.2014 is totally insufficient, inasmuch as, the market value shall not be less than Rs.70,00,000/-.

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(v) The court below was bound to frame additional issues in view of the provisions of Rule 14 (1) Sub-rules (2) (3), (5) and (7) of Order 14 C.P.C. The application was illegally rejected in view of the provisions of Sections 101 and 102 of the Evidence Act, 1872. The onus to prove payment of earnest money of Rs.10,00,000/- and readiness and willingness to pay Rs. 25,00,000/- to get the sale-deed executed under the alleged agreement to sell dated 11.6.2014, was upon the plaintiffsrespondents, which they failed to discharge.

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(vi) The defendants-appellants are ready to return a sum of Rs. 10,00,000/- to the plaintiffs-respondents along with interest and, therefore, the impugned judgment and decree may be modified in view of the provisions of Sections 14 and 20 of the Specific Relief Act,1963.

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Learned counsel for the defendants-appellants has relied upon the judgments of Hon'ble Supreme Court in Kalawati (D) through Lrs. & Ors. v. Rakesh Kumar and Ors. (2018) 3 SCC 658 (Paragraph Nos. 19 and 20), Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan (2015) 1 SCC 705 (Paragraph Nos. 24 to 33), Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and others, AIR 1987 SC 2328 (Paragraph No.14).

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Learned counsel for the defendants-appellants submits that even after amendment under Section 20 of the Specific Relief Act, the unamended provisions would be applicable in so far as the present appeal is concerned. In support of his submission, he relied upon judgments of Hon'ble Supreme Court in the case of Shyam Sunder and others vs. Ram Kumar and another, (2001) 8 SCC 24 B (paras22, 23, 24, 25 and 28), Commissioner of Income Tax (Central)-I, New Delhi vs. Vatika Township Private Limited, (2015) 1 SCC 1 (paras-27, 28, 29, 33 and 35) and Union of India and another vs.

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Indusind Bank Limited, (2016) 9 SCC 720 (paras-18 and 29). Submission of Plaintiffs-respondents

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Sri Anil Sharma, learned counsel for the plaintiffs-respondents supports the impugned judgment and relied upon the judgments of Hon'ble Supreme Court in the case of Bondar Singh and others v. Nihal Singh and others (2003) 4 SCC 161 (Para No.7), Rajasthan State Road Transport Corporation and another v. Bajrang Lal, (2014) 4 SCC 693 (Paragraph Nos. 14 and 15) and in the case of Shri D.M. Deshpande & others v. Shri Janardhan Kashinath Kadam, JT 1998 (8) SC 39 (Paragraph no.9) . He further submits that the impugned judgment has been passed well in accordance with law after considering the entire facts and circumstances of the case and therefore, no interference is required by this Court.

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Sri Anil Sharma further submits that the arguments raised by the learned counsel for the defendants-appellants before this Court are beyond the pleadings before the trial court and, therefore such arguments cannot be entertained in first appeal.

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Sri Anil Kumar Sharma, learned counsel for the plaintiffs respondents submits that Section 20 was omitted and in place an entirely new provision was substituted w.e.f. 01.10.2018. Therefore, the unamended provisions of Section 20 of the Specific Relief Act has no application or relevance for the purposes of the present case. He further submits that the discretion conferred under the unamended provisions of the Act has been taken away by the amended provisions, therefore, provisions for exercising discretion are not available. In support of his submissions, he relied upon a judgment of Hon'ble Supreme Court in case of V.M. Salgaocar and Brothers Pvt. Ltd. Commissioner of Income Tax, Karnataka vs. Commissioner of

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Income Tax Shivanand V. Salgaoncar, (2000) 5 SCC 373 (paras-24 and 25). He further submits that the defendants have not approached the court with clean hands which is evident from the conflicting statements made/ stand taken before the court below with regard to payment of advance amount. Since the defendants-appellants have not approached the court with clean hands, therefore they are not entitled invoking the discretionary power of the court. In this regard, he relied upon a judgments of Hon'ble Supreme Court in the case of Lourdu Mari David vs. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589 (paras-1 & 2) and Zarina Siddiqui vs. A Ramalingam allias R. Amarnathan, (2015) 1 SCC 705 (paras-31 to 37).

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The above noted facts of the case and submissions of the parties were noted by this Court in the orders dated 27.11.2018 and 19.12.2018 and with the consent of learned counsels for the parties, following questions were framed for determination in this appeal: Questions for Determination:-

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(i) Whether under the facts and circumstances of the case, the court below has lawfully decreed the suit and directed the defendants to execute saledeed ?

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(ii) Whether under the facts and circumstances of the case, the court below has committed a manifest error of law in not framing the additional issues ?

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(iii) Whether under the facts and circumstances of the case, the defendants-appellants are entitled for equitable relief in view of the provisions of Sections 20 and 21 of the Specific Relief Act, 1963 ?

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(iv) Whether unamended Section 20 of

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the Act would be available for decision in the present appeal even after the aforesaid Section 20 was substituted by a new Section 20 by Act 18 of 2018 which came into force with effect from 1.10.2018 as per Notification No.S.O.4888 (E) dated 19 September, 2018 and published in the Gazette of India, Extra, Part II Section 3(ii) dated 19^th September, 2018.

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Discussion & Findings

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23 I have carefully considered the submissions of learned counsels for the parties.

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Question No.(ii) Whether under the facts and circumstances of the case, the court below has committed a manifest error of law in not framing the additional issues ?

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The additional issue proposed in the application 47-Ga2 filed by the defendants-appellants before the trial court has been noted in paragraph 12 above. The trial court recorded a finding that there is no pleading by the defendants-appellants in support of the proposed additional issue (a). Learned counsel for the defendants-appellants could not point out any pleading in his written statements filed before the court below in support of proposed additional issue. Pleas in Absence of Pleadings – Not Entertainable

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It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to support his pleading made in the plaint or written statement and in the absence of relevant pleadings, the Court is under no obligation to entertain the pleas. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in Larsen & Toubro Ltd. Vs. State of Gujarat, 1998 SCC 387; National Building Construction Corporation Vs. S. Raghunathan & Ors., (1998) 7 SCC 66; Ram Narain Arora v. Asha Rani & Ors., (1999) 1 SCC 141; Smt. Chitra

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Kumari Vs. Union of India & Ors., (2001) 3 SCC 208; State of U.P. Vs. Chandra Prakash Pandey, (2001) 4 SCC 78 and Rajasthan State Road Transport Corporation and another Vs. Bajrang Lal, (2014) 4 SCC 693 (Para 14). Findings in absence of Pleadings – Not sustainable

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It is also well settled that any finding in the absence of necessary pleadings and supporting evidence can not be sustained in law. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, (2001) 5 SCC 133 (para 12); Vithal N. Shetti & Anr. Vs. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18;Devasahayam (Dead) by L.Rs. Vs. P. Savithramma & Ors., (2005) 7 SCC 653; Sait Nagjee Purushotam & Co. Ltd. Vs. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252; Rajasthan Pradesh V.S. Sardarshahar & Anr. Vs. Union of India & Ors., (2010) 12 SCC 609 (para 17); Ritesh Tiwari & Anr. v. State of U.P. & Ors., (2010) 10 SCC 677 and Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148 (para 65, 67 and 68).

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In the case of Bondar Singh and others Vs. Nihal Singh and others (2003) 4 SCC 161 (Para 7), Hon'ble Supreme Court held that when the plea of sub-tenancy was never taken in the written statement and the written statement is lacking in material particulars on this aspect, then as per settled law; in the absence of a plea no amount of evidence led in relation thereto can be looked into and the defendants cannot be allowed to build up a case of sub tenancy. Had the defendants taken such a plea it would have found place as an issue in the suit.

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Facts of the present case shows that there is no pleading with

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regard to the proposed additional issue no.(a) and as such the trial court has not committed any error of law to reject the application 47 Ga2. The proposed additional issue no.(b) is covered by the issue No. (i). The proposed additional issue No. (c) was not liable to be framed in the absence of any pleading of setting up counter claim. Moreover the proposed additional issue no. (c) would also form part of issue No.1. Thus, the trial court has not committed any error of law in not framing the additional issue and rejecting the application 47 Ga 2. Question No. (ii) is answered accordingly.

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Question No. (iii) Whether under the facts and circumstances of the case, the defendants-appellants are entitled for equitable relief in view of the provisions of Sections 20 and 21 of the Specific Relief Act, 1963 ?

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AND

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Question No. (iv): Whether unamended Section 20 of the Act would be available for decision in the present appeal even after the aforesaid Section 20 was substituted by a new Section 20 by Act 18 of 2018 which came into force with effect from 1.10.2018 as per Notification No.S.O.4888 (E) dated 19 September, 2018 and published in the Gazette of India, Extra, Part II Section 3(ii) dated 19^th September, 2018.

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The specific Relief Act 1963 was extensively amended by the Specific Relief (Amendment) Act 2018 (No.18 of 2018). By the aforesaid Amendment Sections 6,10,11,14, 15, 16, 19, 20, 21, 25 and 41 were amended. Existing Section 14 was substituted by new Section 14 and 14 A and the existing Section 20 was substituted by new Sections 20, 20-A, 20-B and 20-C. The discretionary jurisdiction of Courts to decree specific performance was done away by newly

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substituted Section 20 by Act 18 of 2018. The newly substituted Section 20 makes specific performance of contract a general rule than exception subject to certain limited grounds. The newly substituted Section provides for substituted performance of contract, where a contract is broken, the parties who suffers would be entitled to get the contract performed by a third party or by his own agency and to recover expenses and cost including compensation from the party who failed to perform his part of the contract. This provision has been provided as an alternative remedy at the option of the party who suffers the broken contract. Newly substituted Section 14 provides a negative list of contracts which can not be specifically enforced. Clause (a) of Section 14 provides that where a party to the contract has obtained substituted performance of contract in accordance with the provisions of Section 20, the contract can not be specifically enforced. Similarly Section 16 of the Principal Act providing for bar to relief for Specific Performance of a contract, has been amended by substituting clause (a) which provides that specific performance of the contract can not be enforced in favour of a person who has obtained substituted performance of contract under Section 20. Some amendment has also been made in Clause (c).

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Repeal & Section 6 of the General Clauses Act

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It is undisputed that the impugned judgment and decree was passed on 27.7.2018 and the present First Appeal was filed on 28.8.2018. The amended provisions came into force w.e.f. 1.10.2018. The Amending Act does not provide for saving of the repealed provisions. Therefore, Section 6 of the General Clauses Act, 1897 needs to be examined which provides as under:-

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“Effect of repeal - Where this Act, or any [Central Act] or Regulation made after the commencement of

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this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not

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(a) revive anything not in force or existing at the time at which the repeal takes effect; or

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(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

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(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

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(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

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and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”

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The law in this regard is well settled and has been clarified by Hon'ble Supreme Court in several decisions including in State of Punjab Vs. Mohar Singh AIR 1955 SC 84; Udai Singh Dager Vs. Union of India (2007) 10 SCC 306 (paras 62 to 71) ; Bhagat Ram Sharma Vs. Union of India 1988 Suppl. SCC 30 (paras 17 to 19) and State of Uttar Pradesh Vs. Dhirendra Pal Singh (2011) 5 SCC 305; K.S. Puttaswamy (Adhar 5 J) Vs. Union of India , (2019) 1 SCC

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In the case of Udai Singh Dager (supra) Hon'ble Supreme Court explained the effect of repeal by substitution and held as under :-

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“62. A distinction exists between a repeal simpliciter and a repeal by an Act which is substituted by another Act.

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63. This legal position operating in the field is clear from the proposition laid down by a Constitution Bench of this Court in State of Punjab v. Mohar Singh [(1955) 1 SCR 893 ] wherein the law has been laid down in the following terms:

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"... Whenever there is a repeal of an enactment,

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the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case."

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64. In Gammon India Ltd. v. Special Chief Secretary and Others [(2006)3 SCC 354], this Court held:

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"73. On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re-enacted enactment manifests in intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the reenacted enactment and the mere absence of the saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether.

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74. On the touchstone of the principles of law culled out from the judgments of various courts applied to the facts of these cases lead to a definite conclusion

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that the Assistant Commissioner (Commercial Taxes), Warangal Division was fully justified in initiating and completing the proceedings under the A.P. GST Act even after it is repealed."

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65. Yet again in India Tobacco Co. Ltd. v. Commercial Tax Officer, Bhavanipore and Others [(1975) 3 SCC 512], this Court held: "16. It is now well-settled that repeal connotes abrogation or obliteration of one statute by another, from the statute book as completely as if it had never been passed; when an Act is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. (Per Tindal, C.J., in Kay v. Goodwin and Lord Tenterdon in Surtees v. Ellison cited with approval in State of Orissa v. M.A. Tulloch & Co.).

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17. Repeal is not a matter of mere form but one of substance, depending upon the intention of the legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super adding conditions,or by restricting, intersecpting or suspending its operation, such modification would not amount to a repeal (see Craies on Statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwells Interpretation of Statutes, 11th Edn. pp. 164, 390 based on Mount v. Taylor; Southerlands Statutory Construction 3rd Edn. Vol. I, para 2014 and 2022, pp. 468 and 490). Broadly speaking, the principal object of a repealing and amending Act is to excise dead matter, prune off superfluities and reject clearly inconsistent enactments see Mohinder Singh v. Harbhajan Kaur."

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66. The legal position as to where there is a repeal of an enactment and simultaneously re-enactment whether the re-enacted enactment manifests an intention incompatible with or contrary to the provisions of the repeal statute has to be ascertained upon consideration of all the relevant provisions of the re-enacted enactment. This is no longer res integra.

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68. Whether such a right is protected or not must be considered having regard to the statute in question. If a right has crystallized before the repealing Act comes into force, by reason of repeal of the earlier statute indisputably the right crystallized cannot be taken away.

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71. The expression "unless a different intention appears" contained in Section 6 of the General Clauses Act, thus, in this case, would be clearly attracted. A right whether inchoate or accrued or acquired right can be held to be protected provided the right survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all. [See Bansidhar and Others v. State of Rajasthan, (1989) 2 SCC 557 and Thyssen Stahlunion Gmbh v. Steel Authority of India Ltd., (1999) 9 SCC 334]”

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(Emphasis supplied by me)

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In the case of Bhagat Ram Sharma (supra) Hon'ble Supreme Court explained the effect of repeal by substitution and held as under :-

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“17. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between 'repeal' and an 'amendment'. In Sutherland's Statutory Construction, 3rd edn., vol. 1 at p. 477, the learned author makes the following statement of law:

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"The distinction between repeal and amendment as these terms are used by the Courts, is arbitrary. Naturally the use of these terms by the Court is based largely on how the Legislatures have developed and applied these terms in labelling their enactments. When a section is being added to an Act or a provision added to a section, the Legislatures commonly entitle the Act as an amendment .... When a provision is withdrawn from a section, the Legislatures call the Act an amendment, particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, Legislatures lebel the Act accomplishing this result a repeal. Thus as used by the Legislatures, amendment and repeal may differ in kind-addition as opposed to withdrawal or only in degree-abrogation of part of a section as opposed to abrogation of a whole section or Act; or more commonly, in both kind

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and degree-addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Act. This arbitrary distinction has been followed by the Courts, and they have developed separate rules of construction for each. However, they have recognised that frequently an Act purporting to be an amendment has the same qualitative effect as a repeal-the abrogation of an existing statutory provision-and have therefore applied the term 'implied repeal' and the rules of construction applicable to repeals to such amendments."

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18. Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing statute. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re-enacts it. An amendment of substantive law is not retrospective unless expressly laid down or by necessary implication inferred.”

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(Emphasis supplied by me)

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From perusal of Section 6 of the General Clauses Act it is evident that the consequences laid down in Section 6 will follow unless, as the Section itself says, a different intention appears . In the case a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject then one has to look to the provisions of the new Act to determine whether the new Act manifests an intention to destroy rights under the repeal Act. Section 6 of the Act, 1897, would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section which has to be ascertained considering all the relevant provisions of the new Act and the mere absence of a semi clause, is by itself not material. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe out the former enactment, wholly or in part, then it

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would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding condition, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. A right whether inchoate or accrued or acquired right can be held to be protected provided the rights survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all inasmuch as the phrase “unless a different intention appears” used in Section 6 would be attracted. Where, the amending Act substitute new provisions and thereto delete existing provision, it shall have the effect of repeal of the existing provision as has been done by the Specific Relief (Amendment Act 2018) (No.18 of 2018). The amended provision provide for the introduction of several new provisions by Amendment Act 2018. The old provisions were withdrawn and replaced by the new one substituted by the Amendment Act 2018.

¶124

Turning to the facts of the present case, I find that the Principal Act 1963 has been extensively amended by the Specific Relief (Amendment) Act 2018, without any saving clause Sections 10, 14, and 20 of the Principal Act have been repealed and substituted by new Sections 14, 14 A, 20, 20 A, 20 B and 20 C as under:-

¶125

Unamended provisions of the Specific Provision Substituted by the Relief Act, 1963 Amendment Act, 2018 (No.18 of 2018) Section 10 . Cases in which specific Section 10 . Specific Performance in performance of contract enforceable - respect of contracts - Except as otherwise provided in this The specific performance of a contract Chapter, the specific performance of any shall be enforced by the court subject contract may, in the discretion of the court, to the provisions contained in sub- be enforced- section (2) of section 11, section 14 and (a) when there exists no standard for section 16. ascertaining actual damage caused by the

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non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its nonperformance would not afford adequate relief. Explanation:Unless and until the contrary is proved, the court shall presume(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and (ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-

¶128

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

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(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

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Section 14. Contracts not specifically enforceable

¶131

(1) The following contracts cannot be specifically enforced, namely:(a) a contract for the non-performance of which compensation in money is an adequate relief;

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(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

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(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

¶135

(2) Save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

¶136

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of subsection (1), the court may enforce specific performance in the following cases:

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(a) where the suit is for the enforcement of a contract,-

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(i) to execute a mortgage or furnish any other security for securing the repayment of

¶139

Section 14. Contracts not specifically enforceable. The following contracts cannot be specifically enforced, namely :— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;

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(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.

¶141

14 A . Power of court to engage experts. - (1) Without prejudice to the generality of the provisions contained in the Code of Civil Procedure, 1908, (5 of 1908), in any suit under this Act, where the court considers it necessary to get expert opinion to assist it on any specific issue involved in the suit, it may engage one or more experts and direct to report to it on such issue and may secure attendance of the expert for providing evidence, including production of documents on the issue.

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(2) The court may require or direct any person to give relevant information to the expert or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

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any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the vendor is willing to advance the remaining part of the loan in terms of the contract; or

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(ii) to take up and pay for any debentures of a company;

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(b) where the suit is for,-

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(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

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(ii) the purchase of a share of a partner in a firm;

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(3) The opinion or report given by the expert shall form part of the record of the suit; and the court, or with the permission of the court any of the parties to the suit, may examine the expert personally in open court on any of the matters referred to him or mentioned in his opinion or report, or as to his opinion or report, or as to the manner in which he has made the inspection.

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(4) The expert shall be entitled to such fee, cost or expense as the court may fix, which shall be payable by the parties in such proportion, and at such time, as the court may direct.”.

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(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely,-

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(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

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(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

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20. Discretion as to decreeing specific performance-

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(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

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(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:

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(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

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(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such

¶159

20 . Substituted performance of contract

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(1) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872, (9 of 1872), and, except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.

¶162

(2) No substituted performance of contract under sub-section (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by

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hardship on the plaintiff; or

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(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1 : Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2: The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

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(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

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(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

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a third party or by his own agency: Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the contract performed through a third party or by his own agency. (3) Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice under sub-section (1), he shall not be entitled to claim relief of specific performance against the party in breach.

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(4) Nothing in this section shall prevent the party who has suffered breach of contract from claiming compensation from the party in breach.

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20A . Special provisions for contract relating to infrastructure project -

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(1) No injunction shall be granted by a court in a suit under this Act involving a contract relating to an infrastructure project specified in the Schedule, where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project. Explanation.—For the purposes of this section, section 20B and clause (ha) of section 41, the expression “infrastructure project” means the category of projects and infrastructure Sub-Sectors specified in the Schedule.

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(2) The Central Government may, depending upon the requirement for development of infrastructure projects, and if it considers necessary or expedient to do so, by notification in the Official Gazette, amend the Schedule relating to any Category of projects or Infrastructure SubSectors.

¶173

(3) Every notification issued under this Act by the Central Government shall be laid, as soon as may be after it is issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be made, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment

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shall be without prejudice to the validity of anything previously done under that notification.

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20B. Special courts - The State Government, in consultation with the Chief Justice of the High Court, shall designate, by notification published in the Official Gazette, one or more Civil Courts as Special Courts, within the local limits of the area to exercise jurisdiction and to try a suit under this Act in respect of contracts relating to infrastructure projects.

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20C . Expeditious disposal of suits-. Notwithstanding anything contained in the Code of Civil Procedure, 1908, a suit filed under the provisions of this Act shall be disposed of by the court within a period of twelve months from the date of service of summons to the defendant:

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Provided that the said period may be extended for a further period not exceeding six months in aggregate after recording reasons in writing for such extension by the court.”.

¶179

Apart from the aforesaid substitution, the Amending Act also amended and inserted/substituted some portion in Sections 6, 15, 16, 19, 21, 25 and 41 of the Principal Act and inserted new Schedule under Section 20-A and Section 41(ha).

¶180

The scheme of the Act as amended by the Amendment Act 2018 (No.18 of 2018) that the wider discretion of courts to grant specific performance and to make specific performance of contract a General Rule than exception subject to certain limited ground has been done away. The discretionary jurisdiction to decree specific performance as provided in the old Section 20 of the Act has been omitted. After the amendment there is no provision under the present Act like the repealed provision of Section 20(1) that the “jurisdiction of Court to decree specific performance” is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so ; but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a

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Court of appeal. Similarly, after the amendment there is no provision similar to the repealed provision of sub-section 2 of Section 20 providing for cases in which Court may exercise discretion not to decree specific performance. Thus, the amending Act clearly expressed a different intention than the repealed provisions of Section 20. Therefore, the provisions of Section 6 of the General Clauses Act would not be attracted. After amendment, the jurisdiction of the Court is not discretionary to decree specific performance. Consequently, the repealed provisions of Section 20 of the Act would not be available for decision in the present appeal. Question Nos.3 and 4 are answered accordingly. The benefit of repealed Section 20 of the Act is not available to the defendant-appellant.

¶183

Scope of First Appeal under Section 96 C.P.C. and Powers of First Appellate Court:-

¶184

The scope of Section 96 C.P.C. and powers of the first appellate court are not res-integra. It is well defined in Section 96 and Order XLI Rule 31 of the Civil Procedure Code. In Shashidhar vs. Ashwini Uma Mathod (2015) 11 SCC 269 (Paras-11 to 16), Hon'ble Supreme Court referred to its earlier judgments on the point in the cases of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, H.K.N. Swami v. Irshad Basith,(2005)10 SCC 243, Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 and B.V. Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 and summarised the law on this point, and, held that an appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full

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and fair and independent consideration of the evidence at the appellate stage. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. It is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.

¶187

Question No. (i) Whether under the facts and circumstances of the case, the court below has lawfully decreed the suit and directed the defendants to execute sale- deed ?

¶188

The submission made by learned counsel for the defendantsappellants before this Court has been noted in para 16 above. Their contentions are two folds, firstly , that no amount was received by them from the plaintiffs-respondents as per agreement to sell dated 11.6.2014, and the plaintiffs-respondents never shown their readiness

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and willingness to pay remaining amount of Rs.25,00,000/- and, secondly , that the court below has acted arbitrarily in not considering the case of the defendants-appellants in the light of the provisions of Section 20 of the Act and the defendants-appellants are ready to return the earnest money of Rs. 10,00,000/- to the plaintiffs-respondents along with interest and, therefore, the impugned judgment and decree may be modified in view of the provisions of Sections 14 and 20 of the Act. In support of their case the defendants-appellants have merely led oral evidence of D.W. 1 Pratap Singh (defendant-appellant no.2) and filed his own evidence in the form of an affidavit being Paper No.42-A. On the other hand the plaintiffs-respondents led oral evidence of P.W.1 Saurabh Chaudhary (plaintiff No.1), P.W.2 Ajab Singh (marginal witness of the agreement to sell dated 11.6.2014), P.W.3 Rakesh Kumar (marginal witness of the agreement to sell dated 11.6.2014), and P.W.4 Anil Kumar Gupta (deed writer). They also led documentary evidences being original agreement to sell dated 11.6.2014, notice dated 18.11.2014, postal receipt dated 18.11.2014, attendance receipt of Sub Registrar office of morning and evening dated 16.11.2014, copy of the family register and copy of Khatauni.

¶191

The aforesaid agreement to sell dated 11.6.2014, for performance of which suit for specific performance was filed by the plaintiff-respondent; is a registered agreement for sale of the disputed property in which it has been clearly mentioned that the defendantappellant has received a sum of Rs. 10,00,000/- from the plaintiffsrespondents which shall be adjusted in the total agreed sale consideration of Rs.35 lacs. D.W. 1 Pratap Singh (defendant-appellant no.2) has identified in his cross examination his photographs and the photographs of his brothers and the mother and the photographs of the plaintiff-respondent are affixed in the registered agreement to sell

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dated 11.6.2014 (paper No.8A -1). D.W. - 1 also admitted that the agreement to sell bears his signatures and thumb impression of his brothers and the mother. He admitted that he alongwith his brother and mother went to Tehsil on 11.6.2014 and put signatures and thumb impression in the office. He also admitted the receipt of the money but alleged it to be Rs.1 lac and not Rs.10 lacs. Thus it has been established by own evidence by the defendants-appellants that the agreement to sell dated 11.6.2014 bears their signatures and photographs and they have signed it and put their thumb impression in the office at the Tehsil. The P.W. 1, P.W. 2, P.W.3 and P.W.4 fully proved the agreement to sell dated 11.6.2014. They were also crossexamined by the defendants-appellants but nothing adverse could be brought out. Thus, execution of agreement to sell dated 11.6.2014 by the defendants-appellants in favour of the plaintiffsrespondents has been well proved. The readiness and willingness to perform their part of the contract has been established by the plaintiffs-respondents by documentary evidences. Own contention of the defendants-appellants has noted in para 16 (iii) and (vi) above that they are ready to return the earnest money of Rs.10 lacs to the plaintiffs-respondents with interest, also proves that the defendants-appellants want to avoid specific performance on the ground that they are ready to return the earnest money received under the agreement to sell dated 11.6.2014. Once it has been established that the registered agreement to sell was lawfully executed by the defendants-appellants in favour of the plaintiff-respondents for sale of the disputed property and that the plaintiff-respondents were always ready and willing to perform their part of the contract, there is no escape from decreeing the suit of specific performance filed by the plaintiffs-respondents . Under the circumstances the court below has not committed any error

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of law to decree the suit for specific performance. Question no.1 is answered accordingly.

¶196

For all the reasons aforestated, I do not find any merit in this appeal. Consequently, the appeal is dismissed .

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Order Date :- 3.5.2019/vkg

Mukesh Singh and 4 Ors. v. Saurabh Chaudhary and Another

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Mukesh Singh and 4 Ors. v. Saurabh Chaudhary and Another

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