Remanded

Rajesh Agrawal v. Subodh Kumar Agrawal

Chhattisgarh HC10 Dec 2024FA/4/2016

Case brief

AI extract

What is this about?

The Chattisgarh High Court allowed an appeal against a decree dismissing a suit for specific performance on the grounds of the plaintiff's lack of readiness and willingness. The Court held that while such a finding is valid, it must be based on a specific issue framed in the written proceedings. Since no issue was framed, the finding was unsustainable, and the matter was remanded to the trial cour

What did the court decide?

Appeal allowed; impugned judgment set aside; matter remanded to trial court to frame issue on readiness and willingness and decide on merits.

Rajesh Agrawal Vs Subodh Kumar Agrawal — Specific Performance | Chhattisgarh HC (2024)

1 / 12

FA No.4 of 2016

2024:CGHC:48758-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

Judgment reserved on 5-12-2024

¶7

Judgment delivered on 11-12-2024

¶8

FA No. 4 of 2016

¶9

(Arising out of judgment and decree dated 16-12-2015 passed by the District Judge, Janjgir-Champa in civil suit No.2-A of 2013)

¶10

Rajesh Agrawal S/o Buddhprakash Agrawal, Aged About 42 Years R/o Baloda, Police Station And Tahsil Baloda, District Janjgir-Champa, Chhattisgarh, Civil And Revenue District Janjgir-Champa, Chhattisgarh

¶11

... Appellant/Plaintiff

¶12

versus

¶13

Subodh Kumar Agrawal S/o Jagmohan Prasad Agrawal, Aged About 54 Years R/o Tatyapara Raipur, C/o Smt. Sunita Gupta, R/o Near Chudi Line Kamasipara Tatyapara Raipur, Police Station Azad Chowk, Tahsil And District Raipur, Chhattisgarh, Civil And Revenue District Raipur, Chhattisgarh,

¶14

State Of Chhattisgarh, Thorugh Collector, Janjgir-Champa, Police Station Janjgir, Tahsil And District Janjgir-Champa, Chhattisgarh, Civil And Revenue District Janjgir-Champa, Chhattisgarh

¶15

... Respondents/Defendants

¶16

For Appellant	:	Shri Ratnesh Kumar Agrawal, Advocate
For Respondent	No.1:	Ms Meena Shastri, Advocate
For Respondent No.2/State	:	Ms Nand Kumari Kashyap, Panel Lawyer
K GOWRI SANKARA RAO Digitally signed by K GOWRI SANKARA RAO Date: 2024.12.11 14:44:42 +0530	Hon' Hon'bl	ble Smt. Justice Rajani Dubey e Shri Justice Bibhu Datta Guru CAV Judgment

¶17

2 / 12

¶18

FA No.4 of 2016

¶19

Per Bibhu Datta Guru, J.

¶20

1. Challenge in this appeal is to the judgment and decree dated 16-12-2015 passed by the District Judge, Janjgir-Champa in civil suit No.2-A of 2013, whereby the suit filed by the appellant/plaintiff for specific performance was dismissed.

¶21

(a) Facts of the matter, shorn of all unnecessary details, are that the plaintiff preferred a suit pleading, inter alia , that the land bearing khasra No.3757/11 admeasuring 0.19 acres situated in village Baloda, Tahsil Baloda, District Janjgir-Champa (hereinafter referred to as ‘the suit land’) is owned by the defendant No.1. On 9-12-2011 the defendant No.1 agreed to sale the suit land to the plaintiff for a sale consideration of Rs.25.00 lacs and in respect of the said transaction, the plaintiff paid an amount of Rs.50,000/- as advance. It was agreed between both the parties that the remaining amount of Rs.24.50 lacs will be paid up to 15-2-2012 and defendant No.1 agreed to execute the sale deed. Despite the said fact, the defendant No.1 did not take any initiative for execution of the sale deed. The plaintiff further pleaded that on several occasions, he make contact with the defendant No.1, but he kept procrastinating on one or other pretext. When the defendant No.1 did not execute the sale deed within the stipulated time, the plaintiff sent a legal notice on 7-2-2012 through his Advocate. Despite receipt of the said legal notice, the defendant No.1 did not take any initiative to execute the sale deed.

¶22

(b) The plaintiff also pleaded in the suit that at the time of agreement the defendant No.1 told that total area of land is 0.19 acre, however, after

¶23

3 / 12

¶24

FA No.4 of 2016

¶25

the agreement it was came to the knowledge of the plaintiff that total area of the land was 0.11 acre, albeit it was agreed for 0.19 acre and, as such, the sale consideration will be Rs.14,47,368/-. If the defendant No.1 will execute the sale deed for 0.19 acres of land and provide possession of the same, then the plaintiff will make payment of Rs.24.50 lacs and if the sale deed will be executed for 0.11 acre land then the plaintiff will make payment of Rs.13,97,368/- i.e. rest part of the sale consideration and for that he was always ready and willing to perform his part of contract.

¶26

(c) The plaintiff preferred the civil suit for performance of contract on the part of the defendant No.1 and a decree be passed in favour of the plaintiff and against the defendant No.1 that by accepting Rs.24.50 lacs from the plaintiff, the defendant No.1 shall execute the sale deed for 0.19 acre of land and give possession of the land or to execute the sale deed for the actual land available on the spot i.e. 0.11 acre on receiving Rs.13,97,368/- and to give possession of the same to the plaintiff.

¶27

(d) The defendant No.1 submitted his written statement and denied the plaint averments. The defendant No.1 stated that he has never executed any agreement to sale the suit land and even he has not received any advance amount from the plaintiff. Apart from the said averments, the defendant No.1 make specific contention that the suit land is not an open land whereas it is a garden having valuable trees e.g. Mango, Mahuva, Aegle marmelos (बेल), etc. According to the defendant No.1, the plaintiff was doing the money lending business and the defendant No.1 took an amount of Rs.50,000/- from the plaintiff as loan for treatment of his wife

¶28

4 / 12

¶29

FA No.4 of 2016

¶30

Smt. Sunita Gupta and for the said transaction, the alleged agreement has been got executed. The defendant No.1, on several occasions, went to the house of plaintiff for repayment of the aforesaid loan amount, but the plaintiff did not meet him and surprisingly the plaintiff filed the civil suit with an ill intention.

¶31

The learned trial Court after appreciating the oral and documentary evidence, dismissed the suit observing that though it has been proved that the defendant No.1 executed an agreement to sale the land for a sale consideration of Rs.25.00 lacs and received Rs.50,000/- as advance from the plaintiff, but the plaintiff failed to prove that he was always ready and willing to perform his part of contract as per the agreement Ex.P/1. Thus, this appeal.

¶32

Learned counsel appearing for the plaintiff would submit that in respect of the readiness and willingness no issue was framed by the trial Court. According to him, the trial Court wrongly recorded a finding that the plaintiff failed to prove readiness and willingness to perform his part of contract, despite the fact he is always ready and willing to perform his part of contract. In support of his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of K. Nanjappa (dead) by Legal Representatives v R.A. Hameed alias Ameersab (dead) by Legal Representatives and Another¹ .

¶33

1. Learned counsel appearing for the defendant No.1, ex adverso , while supporting the impugned judgment and decree, would submit that the learned trial Court minutely appreciated the oral and documentary

¶34

1 (2016) 1 SCC 762

¶35

5 / 12

¶36

FA No.4 of 2016

¶37

evidence and has rightly passed the impugned judgment and decree and no interference is called for by this Court. Learned counsel would submit that the suit property itself was not properly described in the agreement as to whether it is 0.19 acre or 0.11 acre and for the unidentifiable property no sale deed could be executed. He would submit that unless the property in question for which the relief has been sought for is identifiable no decree can be granted in respect of the same. To buttress his contention, learned counsel would place reliance upon the decisions rendered by the Supreme Court in the matters of Nahar Singh v Harnak Singh and Others² , J. Samuel and Others v Gattu Mahesh and Others³ , Padmakumari and Others v Dasayyan and Others⁴ and Satish Kumar v

¶38

Karan Singh and Another⁵ .

¶39

1. We have heard learned counsel appearing for the parties and perused the record.

¶40

1. It is evident from the record of learned trial Court that the plaintiff had filed a suit for specific performance in pursuance of the agreement Ex.P/1. The main contention of the plaintiff is that no specific issue with regard to readiness and willingness was framed by the learned trial Court while adjudicating the suit whereas the defendant No.1 in his written statement denied the factum of execution of agreement and stated that he has never executed any such agreement in respect of the suit land.

¶41

2 (1996) 6 SCC 699

¶42

3 (2012) 2 SCC 300

¶43

4 (2015) 8 SCC 695

¶44

5 (2016) 4 SCC 352

¶45

6 / 12

¶46

FA No.4 of 2016

¶47

1. While dealing with the issue of readiness and willingness in performance of contract, the Supreme Court in the matter of Kamal Kumar v Premlata Joshi & Ors.⁶ held thus at para 7 :-

¶48

It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of relief of specific performance, are :

¶49

7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.

¶50

7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.

¶51

7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;

¶52

7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;

¶53

Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.

¶54

1. Further, in the matter of Shenbagam and Ors. Vs. KK Rathinavel⁷ the

¶55

Supreme Court held thus at paras 27, 28, 29, 33 and 35 :

¶56

The trial court decreed the suit for specific performance in favour of the respondent. The trial court only framed the following two issues:

¶57

"1. Whether the plaintiff [is entitled] for the relief of specific performance?

¶58

To what other reliefs?"

¶59

6 (2019) 3 SCC 704

¶60

7 2022 SCC OnLine SC 71

¶61

7 / 12

¶62

FA No.4 of 2016

¶63

No issue on readiness and willingness was framed by the trial court. The trial court analysed the notice issued by the appellants and held that the appellants made no demand from the respondent to discharge the mortgage liability. Thus, the appellants' plea that the respondent-plaintiff had to pay the loan and only thereafter, could the appellants execute the sale deed was rejected. The court also accepted the respondent's argument that the advance amount of Rs. 10,000 was paid to discharge the mortgage. Further, the trial court observed that the documents submitted by the respondent indicate that he had sufficient means to purchase the suit property. The judgment of the trial court was upheld by the first appellate court and, in a second appeal, by the High Court.

¶64

All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed to frame an issue on whether the respondent- plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to indicate his willingness to perform the contract. The trial court merely adverted to "document produced on behalf of the plaintiff and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails to analyse the terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant.

¶65

XXX 31. XXX 32. XXX

¶66

We shall now advert to the respondent's conduct throughout the sale transaction. The respondent has failed to provide any documents or communication which would indicate that he called upon the appellants to perform their obligations or discharge the mortgage within the time period stipulated in the contract. Even after the expiry of the six months, the respondent did not reach out to the appellants. It is only in response to the appellants' legal notice that the

¶67

8 / 12

¶68

FA No.4 of 2016

¶69

respondent demanded performance of their obligations. Merely averring that he was waiting with the balance consideration and believed that the appellants would clear the encumbrance is insufficient to prove that the respondent-plaintiff was willing to perform his obligations under the contract.

¶70

34. XXX

¶71

The 'readiness' of the respondent to perform his obligations refers to whether he was financially capable of paying the balance consideration. Both the trial court and the first appellate court have observed that the respondent was ready to pay the balance consideration as (1) he was paying income tax since 1988 and (ii) his bank passbooks indicate that he had sufficient funds. The payment of income tax by itself does not show that the respondent had sufficient resources to pay for the suit property. Moreover, the bank passbooks submitted in evidence by the respondent were for accounts opened on 11 March 1992 and July 1994, that is, after the expiry of the period written in the contract. The first appellate court despite noting this, has chosen to hold that the respondent was ready and willing to perform the agreement. The respondent however did not lead any evidence to indicate that in the year 1990 he had the money to pay the balance consideration. The first appellate court shifted the burden on the appellants to prove that the respondent-plaintiff was incapable of paying the balance consideration. It is an established principle of law that the plaintiff must prove that he is ready and willing to perform the contract. The burden lies on the plaintiff. The respondent has not led any evidence that he was ready or willing to perform his obligations under the agreement.

¶72

10) Again the Supreme Court in the matter of V.S. Ramakrishnan v P.M.

¶73

Muhammed Ali⁸ held thus at para 8 :

¶74

“8. Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the plaintiff, the Trial Court has given the findings on the same and has nonsuited the plaintiff by observing that the plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific

¶75

8 2022 SCC OnLine SC 1545

¶76

9 / 12

¶77

FA No.4 of 2016

¶78

issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the plaintiff to perform his part of the contract, more particularly, whether the plaintiff was ready and willing to pay the full consideration and whether the plaintiff was having sufficient funds and/or could have managed the balance sale consideration.”

¶79

11) Very recently, the Supreme Court in the matter of Pydi Ramana @ Ramulu v Devarasety Manmadha Rao⁹ held thus at para 14 :

¶80

There is a distinction between the terms 'readiness' and 'willingness'. 'Readiness' is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. 'Willingness' is the conduct of the party. In the instant case, even according to the concurrent findings recorded by the courts below, it would emerge that the plaintiff had been able to successfully prove the sale agreement dated 07.06.1993 Ex.A1 on which date Rs. 2,005/- was paid by the plaintiff to the defendant. The evidence on record tendered by plaintiff came to be accepted by all the courts and judgments of courts below would also indicate that further amount towards sales consideration in a sum of Rs. 17,000/- was paid by plaintiff to defendant on 23.06.1993 and same-was-endorsed by him. As per the recital in the agreements, the defendant was required to get the suit land surveyed and as such the total consideration was agreed to be settled after such survey. On the one hand, the plaintiff contends that defendant never got surveyed the suit land. On the other hand pleadings and evidence of plaintiff is silent on steps taken by the plaintiff as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any

¶81

9 2024 SCC OnLine SC 1688

¶82

10 / 12

¶83

FA No.4 of 2016

¶84

demand made by him for the land being surveyed by defendant. No witnesses have been examined on behalf of the plaintiff to establish that at any point of time there has been demand made by the plaintiff with the defendant by calling upon him to get the suit land surveyed as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 3 years from the date of agreement Ex.A.1 namely on 30.05.1996 legal notice (Ex.A3) was got issued or in other words plaintiff was silent for a period of 3 years in enforcing of the agreement of sale. It is for this specific reason the trial court while rejecting the prayer for decree of specific performance has recorded a categorical finding to the following effect:

¶85

The terms of the agreement xxx the period of one year. The plaintiff got issued a legal notice on 30.05.1996 ΕΧ.Α.3 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for two years after the expiry of one year period. The plaintiff vendee did nothing to act in furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested in finalizing the deal and showing his readiness and willingness to perform the essential terms of the agreement. Though the suit was filed within the period of limitation, it is not sufficient. In assessing the question of readiness and willingness of the party to perform his part of the contract. It is highly essential to take into account the long unexplained silence and inaction on the part of the plaintiff.

¶86

Plaintiff must perform his part of the contract within reasonable time. There was total inaction on the part of the plaintiff for 2 12 years which was not consistent with the terms of agreement. From 6.6.94 to 30.5.96 i.e., for a period of 23 months, plaintiff sat quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of one year, within which he was expected to urge the defendant-vendor to get measurements of land and fix the sale price and to tender the balance amount and call upon the defendants to execute sale deed and deliver possession of the property.

¶87

As rightly pointed out by the trial court, the respondentplaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards 'willingness' of the plaintiff to perform his part of the

¶88

11 / 12

¶89

FA No.4 of 2016

¶90

contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:

¶91

a. Plaintiff got issued legal notice nearly after two years after the expiry of one year period as prescribed in the agreement.

¶92

b. Plaintiff has not brought anything on record to prove that he contacted the Defendant after the expiry of one year period and was interested in finalising the deed.

¶93

c. There was total inaction of the Plaintiff from 06/06/1994 (expiry of one year period) to 30/05/1996 (Date of issuance of legal notice) d. Suit was filed on 09/06/1997 i.e. after a period of more than one year from the date of issuing of legal notice. Sald delay has not been sufficiently explained by the Plaintiff.

¶94

The continuous readiness and willingness is a condition precedent to grant the relief of specific performance. The trial Court has rightly held that plaintiff has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. As such the High Court and the First Appellate Court had erred in holding that plaintiff had proved his readiness and willingness.

¶95

1. In view of the aforesaid law laid down by the Supreme Court, it is crystal

¶96

clear that the learned trial Court ought to have framed issue with regard to readiness and willingness but without framing such issue dismissed the suit. According to the guidelines of the Supreme Court, the object and purpose of framing issue is so that the parties to the suit can lead the specific evidence on the same but the learned trial Court without framing specific issue dismissed the suit, which is not at all sustainable in the eyes of law. Thus, the findings recorded by the learned trial Court, in the opinion of this Court, are not in accordance with law and not according to the facts and circumstances of the case.

¶97

12 / 12

¶98

FA No.4 of 2016

¶99

1. Applying the ratio laid down by the Supreme Court in the aforesaid decisions and for the reasons stated hereinabove, the appeal is allowed. The impugned judgment and decree dated 16-12-2015 is set aside. The matter is remitted back to the trial Court concerned to decide the suit in accordance with law and on merits. The learned trial Court is directed to frame specific issue on the question of readiness and willingness; the parties be permitted to lead evidence on readiness and willingness; and thereafter, the learned trial Court to decide the suit on merits and on the basis of the evidence that may be led. The aforesaid exercise be completed by the trial Court on remand as early as possible, with cooperation of the parties to the suit, preferably within a period of six months from the date of receipt of copy of this judgment. Both the parties are directed to appear before the trial Court on 24-2-2025.

¶100

1. Registry shall forthwith send back the original record to the concerned trial Court.

¶101

1. It is made clear that this Court has not expressed any opinion on the merits of the case and the trial Court shall decide the same, on its own merits, strictly in accordance with law, without treating any observation made in this order, as opinion on the merits of the case.

¶102

1. The appeal is accordingly allowed to the aforesaid extent. There shall be no order as to cost(s).

¶103

Sd/Sd/-

¶104

(Rajani Dubey) (Bibhu Datta Guru) Judge Judge

¶105

Gowri

Rajesh Agrawal v. Subodh Kumar Agrawal

Case brief

What is this about?

What did the court decide?

Rajesh Agrawal v. Subodh Kumar Agrawal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Dinesh Kumar Dhritlahre Vs the State of Chhattisgarh

Surendra Sharma Vs Smt. Priyanka Sharma

S. R. Health Care Services Private Limited, Vs Dr. Sheetal Yadav

Shri Ram Sevak Vs Devkibai

Mahendra Yadav Vs State of Chhattisgarh

Krishna Kumar Kahaar, Vs Dashoda Bai Dhivar