Partly allowed

Ashok Kumar Ingle (Deleted) through Lrs. v. K. Raju and Anr.

Chhattisgarh HC3 Nov 2024FA/127/2013

Case brief

AI extract

What is this about?

The Court allowed one appeal and dismissed the other regarding a disputed property. It held that specific performance should be granted to the proposed purchaser who had paid the major consideration, ordering payment of a lump sum including penalty. The eviction suit filed by the owner was dismissed as the landlord-tenant relationship had ended.

What did the court decide?

Specific performance directed upon payment of Rs. 10 Lacs within 60 days; eviction suit dismissed.

Ashok Kumar Ingle (Deleted) through Lrs. Vs K… — Specific Performance | Chhattisgarh HC (2024)

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2024:CGHC:42659

NAFR

AJAY KUMAR DWIVEDI Date: 2024.11.05 17:19:51 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 61 of 2021

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K. Raju S/o K. Guruwaiya Aged About 56 Years R/o Shastri Nagar, Camp-I, Bhilai Nagar, Police Station Chhawni, Tahsil and District Durg Chhattisgarh

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--- Appellant.

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versus

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1 - Smt. Meera Ingle Wd/o Late Ashok Kumar Ingle, Aged About 58 Years R/o House No. 88/2, Nehru Nagar (East), Bhilai Police Station Supela, Tahsil And District Durg Chhattisgarh

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2 - Smt. Rakhi D/o Late Ashok Kumar Ingle Aged About 25 Years C/o Smt. Meera Ingle, Wd/o Late Ashok Kumar Ingle, R/o House No. 88/2, Nehru Nagar (East), Bhilai Police Station Supela, Tahsil And District Durg Chhattisgarh.

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[Ashok Kumar Ingle S/o Narayan Rao Ingle (Since Died)]

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---- Respondents

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FA No. 127 of 2013

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1 - Ashok Kumar Ingle (Deleted) through LRs

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1-A. Smt. Meera Ingle, W/o late Ashok Kumar Ingle, aged about 46 years, R/o 88/2, Nehru Nagar, East Bhilai, Tahsil & District Durg (CG)

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1-B. Smt. Harshita Bose, aged about 31 years, D/o late Ashok Kumar Ingle, W/o Shri Pratap Narayan Bose, R/o Sadan No.36, Quarter No.31/G, Sector-4, Bhilai, Tahsil & District Durg (CG)

--- Appellants.

Versus

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1 - K. Raju S/o K. Guruvaiya Aged About 59 Years R/o Shastri Nagar, Camp Np. 1, Bhilai Nagar, Tah. And Distt. Durg C.G., Chhattisgarh

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2 - Vadhwani Branch Manager, Punjab National Bank, Behind Vijay Talkies, Whole Sale Fruit Market, Bhilai Nagar, Tah. And Distt. Durg C.G.

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--- Respondents

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For Appellants in	FA	: Mr. Manoj Paranjpe with Mr. Rishabh Gupta,
No.61/2021 & for Res in FA No.127/2013	No.1	Advocates.
For Respondents in No.61/2021 and	FA for	: Mr. N. K. Malaviya, Advocate.
Appellants in	FA
No.127/2013

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SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J.

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Judgment on Board

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04.11.2024

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Since both the appeals relate to same subject property, they are being heard analogously and are being disposed of by this common judgment.

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First Appeal No.127/2013 has been filed against the judgment and decree dated 10.05.2013 passed by the Second Additional District Judge, Durg in Civil Suit No.1-A/2011 which has been filed by the plaintiff therein Ashok Kumar Ingle for specific performance of agreement to sell in respect of suit house situated at Nehru Nagar (East), Block No.88, Plot No.2 admeasuring area 20x35 = 700 sq ft over which plaintiff is having possession. The said suit has been dismissed by the trial Court.

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Another appeal bearing FA No.61/2021 has been filed by the plaintiff K. Raju who is owner of the suit house against the judgment and decree dated 09.07.2021 passed by the Eighth Additional District Judge, Durg in Civil Suit No.64-A/2013 which was filed for eviction, possession and arrears of rent from the period 01.07.2010 to 30.06.2013 i.e. for 36 months which

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comes to Rs.72,000/- and arrears for damages at the rate of Rs.200/- per day until possession is received. The said suit has also been dismissed by the trial Court.

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It is pertinent to mention here that during the pendency of the appeal appellant Ashok Ingle has died and his LRs have already been brought on record.

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The undisputed facts of the case are that appellant K. Raju is the original owner of the suit house. Late Ashok Ingle had entered in the subject property as tenant. The tenant had entered into an agreement to sell on 05.02.2004 and his tenancy commenced from 10.08.2003 up-till 09.06.2004. It is also undisputed that initially sale consideration was settled for Rs.2,74,000/- and purchaser Ashok Ingle had agreed that he would pay loan amount of Rs.1,84,000/- which was taken by the owner of the property from Punjab National Bank, Branch Camp-2, Bhilai. Further, out of remaining amount of Rs.90,000/-, Rs.30,000/- was paid as earnest money, however, it was agreed that purchaser would pay balance amount of Rs.60,000/- within two months. Thereafter, the Civil Suit No.1-A/2011 has been filed for specific performance on 03.08.2006 by Ashok Kumar Ingle (plaintiff therein).

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It is also undisputed that further agreement was executed between the parties on 23.08.2007 marked as Article A-1 in the records, whereby, Ashok Kumar Ingle (tenant/proposed purchaser) has agreed to pay balance sale consideration of Rs.50,000/- prior to 22.11.2007. In the said agreement, an endorsement has been made to the effect that if the tenant fails to pay Rs.50,000/-, then he would pay Rs.2000/- per month as penalty and only

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after payment of dues, registry would be carried out. However, the tenant/proposed purchaser failed to perform his part of contract which gave rise to Civil Suit No.64-A/2013 instituted on 05.07.2013 by K. Raju (plaintiff therein) for eviction, possession and arrears of rent and damages from the date of institution of the suit.

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Both the suits have been dismissed by two different judgments which are under challenge in the present appeals.

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In FA No.127/2013, the appellant has filed an application under Order 41 Rule 27 CPC (marked as IA No.3/2013) whereby a prayer has been made for taking certain documents on record which relates to statement of the owner recorded on 21.05.2008 before the competent Authority of the Municipal Corporation, Bhiali. In the said statement, K. Raju has acknowledged that he has received the sale consideration of Rs.3 Lacs and balance amount of Rs.50,000/- was yet to be received from Ashok Ingle. After such statement, mutation has been carried out before the Municipal Corporation Bhilai in the name of tenant/proposed purchaser. Another documents relates to agreement dated 19.03.2008, whereby, owner has given NOC for said mutation and also agreed that balance amount of said agreement shall be paid by the proposed purchaser at the time of Registry.

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Shri Paranjpe, learned counsel for the owner of the suit property would not dispute the contents of the application under Order 41 Rule 27 of the CPC. However, he submits that in CS No.1-A/2011, tenant Ashok Ingle in his statement, has specifically admitted the fact that he has not complied with the terms of agreement Article A-1 which was executed on 23.08.2007 and there was liability upon him to pay Rs.2000/- as per agreement Article-1.

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He would also submit that since the tenant has not honoured and fulfilled the terms of the agreement, so in view of Section 16-C of the Specific Relief Act 1963 specific performance of a contract cannot be enforced in his favour. Further he also fails to 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. He also submits that relationship of landlord and tenant would continue until terms of the agreement are not fulfilled. He further submits that suit of specific performance has rightly been dismissed by the trial Court. However, the suit for eviction, possession and arrears of rent and damages has wrongly been dismissed by the trial Court. The trial Court committed error while applying the ratio laid down in H.K. Sharma Vs. Ram Lal [(2019) 4 SCC 153] and R. Kanthimathi Vs. Beatrice Xavier [(2000) 9 SCC 339] and not applied said principles in proper perspective. Therefore, impugned judgment dated 09.07.2021 may be set-aside and suitable order may be passed in favour of the appellant herein.

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On the contrary, learned counsel for tenant/proposed purchaser would oppose the aforesaid submission. He submits that trial Court has rightly dismissed suit for eviction and possession. He would submit that the trial Court has correctly applied the principles laid down in H. K. Sharma (Supra) and R. Kanthimathi (Supra) wherein it has been observed that when the seller-landlord accepts the sum, he actually acts under the agreement, this acceptance preceded by agreement of sale changes their relationship and once accepting such a change, their relationship of landlord-tenant ceases. He would further submit that perusal of agreement would show that

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time was never the essence of the agreement. Even after expiry of period of the initial agreement dated 05.02.2004, the parties had entered into subsequent agreement on 23.08.2007 So jural relationship between landlord and tenant came to an end after execution of such agreements. He would also submit that clear endorsement in the agreement was made that if the tenant fails to pay Rs.50,000/-, he would be liable to pay Rs.2000/- as penalty to the seller but since the substantial due is cleared by the tenant, the registered sale deed should have been executed in favour of the tenant/proposed purchaser. In view of submission, he prays to set-aside the impugned judgment dated 10.05.2013 and to pass appropriate order in favour of the appellant herein.

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Heard learned counsel for the parties and perused the material placed on records.

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Since the documents filed along with application under Order 41 Rule 27 CPC (marked as IA No.3/2013) filed in FA No.127/2013 are not disputed, the application (IA No.3/2013) is hereby allowed .

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Tenant/proposed purchaser Ashok Ingle, at Para 23 of his statement, has categorically admitted that parties have entered into the agreement on 23.08.2007 (marked as Article A-1 in the records). At para 24, he has also admitted the liability fastened upon him for payment of Rs.50,000/- and penalty of Rs.2000/- per month. The said condition is also mentioned in the endorsement in Agreement Article A-1 to the effect that until balance amount of Rs.50,000/- is paid by the tenant in favour of the landlord, the tenant would continue to pay Rs.2000/- as penalty and after completion of dues, Registry would be carried out.

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From perusal of the agreement executed on 23.08.2007 and terms mentioned therein, it is quite vivid that time was not the essence in the said agreement.

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Admittedly, the tenant/proposed purchaser failed to fulfill the terms of the agreement executed on 23.08.2007 and has not paid balance amount of Rs.50,000/-. Even he has not paid penalty amount of Rs.2000/- per month after 23.08.2007. However, it is also not disputed that substantial consideration has already been paid by the tenant/proposed purchaser in favour of the seller which has been duly acknowledged by the seller and no time limit has been fixed in the agreement executed on 23.08.2007 and the seller has given NOC for mutation. Though an amount of Rs.2000/- has not been paid to the owner since August 2007 i.e. for about 17 years which at present comes to about Rs.4,08,000/-, if the entire amount for the said period is calculated, the same comes to Rs.4,58,000/- (balance amount of Rs.50,000 + penalty Rs.4,08,000/-).

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Certainly, if the said amount had been paid timely to the seller and if such amount was invested, indeed the seller would have received better return. Further, it is well settled law that a contract should be complied in reasonable time, even in absence of fixed time limit.

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For the foregoing and considering the fact that major portion of the amount i.e. Rs.3 Lacs has already been paid by the proposed seller, this Court finds equity in favour of the tenant/proposed buyer to some extent. However, since 17 years have been passed and balance amount and penalty amount have not been paid so far, ends of justice would be served if the tenant/proposed purchaser pays an amount Rs.10 Lacs (Rupees Ten Lacs)

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through Demand Draft to the owner of the suit house or deposit the same before the concerned trial Court within a period of 60 days from the date of this judgment. In turn, the original owner shall execute registered sale deed in favour of the legal representatives of tenant/proposed purchaser (Appellant No.1-A and 1-B in FA No.127/2013), failing which, the proposed purchaser shall be entitled for execution with the help of the Court. Ordered accordingly.

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It is also made clear that if the tenant/proposed purchaser fails to pay the aforesaid amount within the prescribed period, the original owner of the house would be entitled to get possession of the suit property after returning Rs.3 Lacs along with interest at rate of 6 % per annum from the date of passing of this judgment.

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From perusal of the terms of the agreement dated 05.02.2004 (Ex.P-2) and subsequent agreement dated 23.08.2007 (Ex.P-4) filed in Civil Suit No.64A/2013, it is explicit that after execution of such agreement, intention and conduct of the parties altered their relation/status from that of tenant to that of transferee and the tenant retained his part performance of contract and the agreements executed between the parties are genuine and defence is bonafide. In such circumstances this Court is of the opinion that the trial Court has rightly dismissed the Civil Suit No.64-A/2013 which was filed for possession, eviction and arrears of rent and damages.

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