Smt. Renu Singh (Died and Deleted) Through Lrs. Vs Mahjabi Aajra Khanam

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2025:CGHC:3146-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on : 04-12-2024 Judgment delivered on : 17-01-2025

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FA No. 345 of 2017

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1 - Smt. Renu Singh (Died And Deleted) Through LRs as Per Honble Court Order Dated 24-09-2024.

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1(a) Smt. Sucharita Vaishnav, W/o Ramashankar Vaishnav, Aged About 61 Years R/o A/86, Masanganj, Sindhi Mohalla Gali, Ward No. 32, Bilaspur (C.G.)

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1(b) Sujit Singh, S/o Late Shri Mahadev Prasad Singh, Aged About 59 Years R/o Marwadi Line, Khaparganj, Reeta Drycleaner, Bilaspur (C.G.)

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1(c) Ajit Kumar Singh S/o Late Shri Mahadev Prasad Singh, Aged About 51 Years R/o Ward No. 32, Masanganj, Sindhi Mohalla Gali, Bilaspur (C.G.)

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... Appellants

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versus

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Mahjabi Aajra Khanam D/o Late Abdul Haji Khan @ M. A. Khan, Aged About 59 Years R/o Juni Line, Khaparganj Tahsil And District Bilaspur, Chhattisgarh......

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... Respondent/defendant

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For Appellants : Mr. Parag Kotecha, Advocate For Respondent : Mr. Jameel Akhtar Lohani, Advocate.

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Hon'ble Smt. Justice Rajani Dubey, J Hon'ble Shri Justice Bibhu Datta Guru, J

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C A V Judgment

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Per Rajani Dubey, J

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Challenge in this appeal is to the legality and validity of the judgment and decree dated 25.3.2017 passed by VI Additional District Judge, Bilaspur in Civil Suit No.25A/2013 whereby the suit filed by the appellant/plaintiff for specific performance of contract, declaration and permanent injunction has been partly decreed. ( Parties shall hereinafter be referred to as per their description before the trial court. )

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Case of the plaintiff, in brief, is that Nazul Sheet No.28, Plot No.71/6, area 436 sqft and adjacent Nazul Sheet No.28, Plot No.113/2, area 1519 sqft, on which a pacca house is constructed (hereinafter referred to as "suit property") is the self-acquired property of father of defendant namely Late M.A. Khan @ Abdul Haji Khan which was given to the defendant by her father through Will dated 5.3.2002 and based on that Will, the defendant got the suit property mutated in her name and acquired the ownership thereof. Since the plaintiff and the defendant were living in the same locality and they were duly acquainted with each other, the defendant being in need of money

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agreed to sell the suit property for Rs.10.50 lacs to the plaintiff. Thereafter, a sale deed dated 11.12.2006 was executed before the notary in presence of two witnesses and the defendant obtained Rs.6.50 lacs as advance from the plaintiff. As per the agreement, rest of the amount of Rs.4 lacs was to be paid to the defendant at the time of registry of the suit property. The sale deed was agreed to be registered within one year of the agreement. Despite the plaintiff's readiness and willingness to execute the registered sale deed when the defendant did not take any steps and kept on avoiding it, the plaintiff on 2.7.2008 sent a registered legal notice to the defendant. After receipt of the said notice, though the defendant again orally assured the plaintiff in presence of plaintiff's husband and others for execution of registry in her favour but later on evaded the same. The plaintiff then again sent a registered legal notice on 9.12.2009 to the defendant which was malafidely refused to be acknowledged by her. In fact, the defendant is trying to sell the suit property at higher rate to some other person and therefore, he is avoiding registry of sale deed in favour of the plaintiff. Hence this suit.

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In her written statement, the defendant contended that the defendant never expressed her intention of selling the suit property as there was no such need and even otherwise she is not entitled to sell it all alone. No such agreement was ever executed with the plaintiff and the agreement in question is forged and fabricated. The defendant in reply to the legal notice has also stated that there is no such

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agreement between them and as such, no question of return of money etc. arises. Therefore, the present suit is liable to be dismissed with cost.

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Based on the pleadings of the respective parties and the documents on record, the learned trial Court framed issues and after appreciation of oral and documentary evidence, partly decreed the suit of the plaintiff by the impugned judgment and decree holding that the plaintiff is entitled to receive Rs.6.50 lacs with interest @ 6% p.a. from the defendant. Hence this appeal.

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Learned counsel for the appellant would submit that though the learned trial court acknowledged the validity and enforceability of the agreement between the parties and affirmed payment of Rs.6.50 lacs as earnest money by the plaintiff to the defendant and also there is evidence to show readiness and willingness on the part of the plaintiff to perform her part of contractual obligation, however, instead of decreeing the suit for specific performance, the learned trial Court directed the defendant to refund the earnest money with interest @ 6% p.a. only which is per se illegal and contrary to the material on record. The plaintiff sent two registered legal notices to the defendant dated 2.7.2008 and 9.12.2009 demanding execution of the sale deed, however, the defendant failed to give any satisfactory response to either of the notices and made no efforts to fulfill her contractual obligation. The non-performance of the agreement is entirely

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attributable to the defendant whereas the plaintiff has fully complied with her obligations including making payment of earnest money and has consistently demonstrated her willingness and readiness to pay the balance amount and complete the transaction.

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He has further submitted that the defendant's failure to comply with the trial Court's order directing her to refund Rs.6.50 lacs to the plaintiff with interest further underscores her unwillingness to fulfill her legal obligations. This defiance of the court's order reflects her overall disregard for the law and substantiates the plaintiff's claim that the defendant is solely responsible for the breach of contract. The defendant has raised the issue of delay in demanding execution of the contract stating that the plaintiff's notices and reminders went beyond the stipulated period of one year mentioned in the agreement. However, the principles laid down by the Hon'ble Supreme Court in Motilal Jain Vs. Smt. Ramdasi Devi and others, AIR 2000 SC 2408 are directly applicable to the present case. The suit was filed well within limitation, no third party rights was intervened and the plaintiff never waived her rights under the contract, rather she actively pursued performance of the agreement by consistently approaching the defendant and demanding execution orally as well as in writing. Thus, in the given set of evidence and the settled legal position in Motilal Jain (supra), the appeal deserves to be allowed and consequently, the plaintiff's suit be accordingly decreed.

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Reliance is placed on the decision in the matters of P. Daivasigamani Vs. S. Sambandan reported in AIR 2022 SC 5009 .

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Per contra, learned counsel appearing for the respondent/defendant would contend that after receiving notice, the defendant filed a reply denying all the adverse plaint averments and stated that name of defendant's father is Abdil Hadi Khan whereas the plaintiff wrongly mentioned it as Abdul Hazi Khan and filed the suit. The defendant never expressed her intention to sell the suit property as neither there was any such need nor was she entitled or had the authority to sell the suit property alone as she has one brother and one sister. No such agreement was executed between the parties and the agreement presented by the plaintiff is a forged and fabricated document and this fact was brought to the notice of the plaintiff while replying to the legal notice sent through her advocate. Learned trial Court after proper appreciation of the oral and documentary evidence has rightly held that the plaintiff failed to prove her readiness and willingness to perform her part of contractual obligation and further partly allowed the suit directing the defendant to refund Rs.6.50 lacs to the plaintiff which is an incorrect finding. Further, the rate of interest awarded on the said amount is too high. Hence there being no substance in this appeal, the same is liable to be dismissed.

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Reliance has been placed on the decisions in the matters of Central Bank of India Vs. Prajapati Singh, 2001 (II) MPWN 131;

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Narmada Prasad Agrawal Vs. Omprakash, 2009 (I) MPWN 29; Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit Vs. Ramesh Chandra and others, 2010 AIR SCW 6761; Atla Sidda Reddy Vs. Busi Subba Reddy, (2010) 6 SCC 666; JP Builders Vs. A. Ramadas Rao, (2011) 1 SCC 429; Saradamani Kandappan Vs. S. Rajlakhsmi and others, (2011) 12 SCC 18 and the order dated 28.11.2024 of the Hon'ble Supreme Court in SLP (Civil) No.13933/2021 in the matter of R. Shama Naik Vs. G. Srinivasiah .

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Heard learned counsel for the parties and perused the material available on record.

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It is not in dispute that the respondent/defendant is owner of the disputed property. Learned trial Court based on the pleadings of the respective parties framed the following issues:

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dza	वा�दविवाषय	वि�ष्कष�
1.	क्य�्ቚ वि�वा�द��वा�द्ቇस्�सम्पቈኌ�10,50,000 /-ेሰ� वा�द�क�विवा्ቅयकर��क�अ��बं�धविद��क11.12.06 क�वि�ष्प�विद�विकय�?	"ाሻ��"
2.	क्य�्ቚ वि�वा�द�क�ቛኋ�र�सेሰयस�ेሰ�ेሰ �वा�द�क�प्ቌेሰ � रቈኌ$स्቏ኍ&�क�वि�ष्प�द��ाሻ' विकय�गय�?	"ाሻ��"
3.	क्य�वा�द�अप��प्ቌ क�अ��बं�धप�ल�कर��ाሻ�� ाሻेሰ�शा��त्परराሻ�ाሻ,?	" ቈኌस्ቍ �ाሻ'"-"वा�विद�� वि�वा�विद�� स� छः/ ल�ख पचा�साሻ$�ररूपय�ेሰ यव्य�$ �्቎ कर��क5 अቈኌधक�रिरणी� ाሻ,"
4.	साሻ�य��एवा�व्यय?	वि�णी�यक5 "क�वि9क�-21क� अ��स�रद�वा�आं�विशाकरूपस� स�स्वा�क�रविकय�गय�।

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The plaintiff filed agreement dated 11.12.2006 (Ex.P/1) which contains the following conditions:

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"(1) विवा्ቅ��ेሰ �ाሻद�शा�द�क�लभू=विेሰ वापक्क�ेሰ क��क�क�ल 10,50,000/- (दसल�खपचा�स ाሻ$�ररूपय�) �विवा्ቅयकर��क�साሻेሰ�ाሻ,। 2) �ाሻद�शा�द�भू=विेሰ वाेሰ क��क5 पक्क5 ቈኌलख�-प़ቢ�रቈኌ$स्቏ኍ&�्ቅ ��अप��प्ቌेሰ �इस इकर�र��ेሰ�विद��कस� 1 वाष�क�भू��रअवि�वा�य�रूपस�कर�ल�ग�।

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(3) इसइकर�र��ेሰ�वि�ष्प�द�क5 वि�ቈኌ@ क�बं�Aरबंय��एवा�अवि्ቇेሰ क5 �गदर�विशा 6,50,000/- (छः/ ल�खपचा�साሻ$�ररूपय�) ��स�द�गवा�ाሻB क�सेሰ्ቌ विवा्ቅ��्ቚ �्቎ कर चा�क5 ाሻ, �@�शा�षर�विशावि�ध��रिर�सेሰय�वाቈኌधक�भू��ररቈኌ$स्቏ኍ&�क5 ቈኌलख�-प़ቢ�विकए$��क� सेሰयविवा्ቅ��क�अद�करअप��प्ቌेሰ �रቈኌ$स्቏ኍ&�कर�सक�ग�।्ቅ ��ቛኋ�र�द�गईउ्ሹ अवि्ቇेሰ बंय��क5 र�विशाेሰ �ाሻद�शा�द�भू=विेሰ वाेሰ क��क�क�लविवा्ቅयेሰ =ल्येሰ �सेሰ�य�ቈኌ$�ाሻ�ग�।

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(4) �ाሻद�शा�द�भू=विेሰ राሻ�-गाሻ�, ऋणीएवा�भू�रस�प=णी � /ेሰ ाሻ, यविदउ्ሹ��स�रक5 विकस� पर�शा��अ@वा�विवावा�दक5 ቝኌस्@वि�उत्प्ቐ ाሻ��ाሻ, ��उसक�ቈኌलय�विवा्ቅ��उ�रद�य�ाሻ�ग� �@�्ቅ��क�विJ्ቅ��क�विवारू्ቍ ��कस��्ቚ �्቎ कर��क�अቈኌधक�राሻ�ग�।

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(5) �ाሻद�शा�द�भू=विेሰ क�्ቅ ��अप��प्ቌेሰ �अ@वा�अप��ቈኌलቈኌख�साሻेሰवि�स�विकस��सर� व्यवि्ሹ क�प्ቌेሰ �विवा्ቅ��स�रቈኌ$स्቏ኍ&�एवा�पक्क5 ቈኌलख�-प़ቢ�विवा्ቅ��स�कर�सक�ग�विकन्��बंग,र ��क5 ቈኌलቈኌख�साሻेሰवि�क�विवा्ቅ��विकस�अन्यव्यवि्ሹ क�ेሰ �ाሻद�शा�द�भू=विेሰ वा�ेሰ क��विवा्ቅय �ाሻ' करसक�ग�अन्य@�विवा्ቅ��क�विवारू्ቍ स्ቌेሰ न्य�य�लयेሰ �क�य�वा�ाሻ�करअप��प्ቌेሰ � रቈኌ$स्቏ኍ&�कर��ाሻ � �्ቅ��स्वा��्ቔ राሻ�ग�।

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(6) �ाሻद�शा�द�भू=विेሰ क�विवा्ቅयप्ቔ क�प�$�य�स�स�बं�ቈኌध�सेሰस्�व्ययवाखचाM्ቅ ��व ा � कर�ग�।

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उपर�्ሹ शा�N�क�अध��विवा्ቅ��एवा�्ቅ ��आंपसेሰ �साሻेሰ�ाሻ�कर, विबं��विकस�9र, दबं�वा अ@वा�ल�लचाक�, इ�कर�र��ेሰ�क�भूल�-भू�O��प़ቢकर, सेሰझकर, द�गवा�ाሻB क5 उपቝኌस्@वि�ेሰ याሻविवा्ቅयक�इकर�रआं$ विद��क 11.12.06 क�ेሰ �क�ेሰ विबंल�सप�रेሰ �अप��-अप�� ाሻस्��्ቌरकरवि�ष्प�विद�कर��ाሻQ ��विकस�दराሻ�वावा्ሹ $रूर�परक�ेሰ आंसक�।"

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As per the plaintiff, she was always ready and willing to perform her part of contractual obligation. PW-1 Renu Singh states in para 10 of her affidavit filed under Order 18 Rule 4 of CPC that she is still ready to get the sale deed in respect of the suit property executed in her favour after payment of remaining amount to the defendant but the defendant has been evasive since beginning. However, the defendant denied execution of any such agreement and also denied her signature on the agreement. Further, as per plaintiff, she sent first notice to the defendant on 2.7.2008, however, she did not file any copy of such notice before the learned trial Court. She filed notice dated 9.12.2009 (Ex.P/5) and in para 2 of this notice, it is written that she sent a notice on 2.7.2008 also. Anil Kumar Shukla (PW-2) who is a witness to the agreement (Ex.P/1) admits his signature from A to A and B to B part. PW-3 Sujeet Singh, who is son of the plaintiff Renu Singh, also supported the statement of the plaintiff. PW-4 Rajkumar Mishra, Notary, has also supported execution of agreement (Ex.P/1) and admitted his seal on this document. PW-6 Sunanda Denge, Handwriting Expert, opined that signature on Ex.P/1 is of the defendant.

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Respondent/defendant Mahjabi Ajra Khanam stated that her father did not execute any Will in her name in respect of the suit property and she also did not execute any agreement with the plaintiff for sale of the suit property as there was no such need to sell it and even otherwise, she is not the sole owner of this property but it is the joint property of her mother, sister, brother and herself. She also denied receipt of earnest money of Rs.6.50 lacs from the plaintiff.

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Learned trial Court after appreciation of oral and documentary evidence adduced by both the parties found that the agreement Ex.P/1 was executed by both the parties and the defendant received Rs.6.50 lacs from the plaintiff as earnest money. The defendant has not challenged this finding by filing any cross-appeal. So, it stands proved by the plaintiff that the defendant executed an agreement Ex.P/1 and obtained Rs.6.50 lacs as earnest money. However, the learned trial Court also found that the plaintiff has failed to prove the fact that she was always ready and willing to perform her part of the agreement.

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As per the agreement Ex.P/1, registry of the sale deed was to be positively got done by the purchaser within one year from the date of the agreement. The agreement is executed on 11.12.2006 and as such, registry was to be done on or before 11.12.2007. Though the plaintiff states to have sent the first notice on 2.7.2008 to the defendant but no such notice has been filed before the learned trial Court. The plaintiff only filed postal receipt and acknowledgment (Ex.P/2) and the

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defendant denied the fact that she received any notice dated 2.7.2008. The plaintiff filed copy of acknowledgment of notice dated 9.12.2009 (Ex.P/5). However, she failed to prove the fact that prior to sending this notice, any other notice was sent to the defendant.

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The Hon'ble Supreme Court in the matter of R. Shama Naik (supra) observed from paras 9 to 13 as under:

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"9. There is a legion of precedents on the subject of readiness and willingness.

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The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time.

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There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.

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While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff.

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The High Court in first appeal upon appreciation of the evidence on record both oral and documentary has arrived at the conclusion that the plaintiff has failed to establish that he was always ready and willing to perform his part of the contract."

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In the present case also, the plaintiff only stated that she requested the defendant many a time for execution of registry but the

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defendant evaded the same. As per the plaintiff herself, she sent the first notice on 2.7.2008 i.e. more than six months after expiry of the period fixed for execution of registry and about one year and six months of the agreement. Even otherwise, as already observed above, there is no such notice produced on record by the plaintiff. Further, the plaintiff did not show her financial capacity before the learned trial Court to substantiate her stand that she was ever ready to perform her part of contract. Accordingly, the learned trial Court rightly found that she failed to prove her readiness and willingness to perform her contractual obligation and decided Issue No.3 against the plaintiff and in favour of the defendant.

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While dealing with the issue of recovery of money in a specific performance of contract, this Court in the matter of Priyabratta Choudhary & Ors. V. Jayshankar Sahu [Neutral Citation No.2024:CGHC:42295-DB ] , held in para 13 as under :-

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“13. Vide judgment dated 25.07.2023 in the matter of Mohammad Asraf Vs. Smt. Rubina Bano passed in FA No. 85 of 2018, this Court observed and held in paras 20, 21 and 22 as under:-

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“(20) In Satish Batra v. Sudhir Rawal reported in 2013 (1) SCC 345 Hon'ble Supreme Court held in para 15 that to justify the forfeiture of advance money being part of 'earnest money' the terms of the contract should be clear and explicit and that part payment of purchase price cannot be forfeited unless it is a guarantee for the due

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performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.

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(21) The Supreme Court in India Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161 discussed different case laws and observed that unjust enrichment is the unjust retention of a benefit to the loss of another. Few of paras I.e., para nos. 152, 153, 154, 155 & 156 are relevant and quoted below:

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152. ‘Unjust enrichment’ has been defined by the court as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

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153. Unjust enrichment, "the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer and even though he may have received [it] honestly in the first instance." (Schock v. Nash (72 A 2d 217) Delware 1999), 232-33.

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154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus

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“…...(A)ny civilized system of law is bound to provide remedies for cases to what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasicontract or restitution."

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155. Lord Denning also stated in Nelson Larholt, [1947] 2 All ER 751 as under:-

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“…….It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires.”

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156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment."

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(22) Though learned trial Court dismissed the suit for specific performance of contract and held that the forfeiture of advance amount was correct but the fact remains in view of the judgments quoted above that the total amount of Rs.4,50,000/- was retained by the respondent / defendant. From the evidence available on record it does appear that payment was made only towards part-payment of consideration. Therefore, the plaintiff has a right of restitution and he cannot be deprived of the amount paid to him to the defendant as the facts apparent on the surface of record fortifies the said logic. The Supreme Court also observed that the restitution and unjust enrichment have to be viewed in two stages i.e. presuit and post suit. In the pre-suit position the amount is not returned and also in the post- suit the amount is still with the defendant.”

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In light of above decisions, in the given facts and circumstances of the case and the overall evidence on record, the learned trial Court rightly dismissed the suit of the plaintiff for specific performance of contract and directed the defendant to refund earnest money of Rs.6.50 lacs to the plaintiff with 6% interest which is strictly in consonance with law. There is no such illegality or infirmity in the impugned judgment and decree warranting any interference by this Court. The judgments relied upon by learned counsel for the

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appellants being distinguishable on facts are of no help to him. Hence, the present appeal being without any substance is liable to be and is hereby dismissed.

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Let a decree be drawn up accordingly.

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Sd/ Sd/ (Rajani Dubey) (Bibhu Datta Guru) Judge Judge

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MOHD Digitally signed AKHTAR by MOHDAKHTAR KHAN KHAN Khan

Smt. Renu Singh (Died and Deleted) Through Lrs. v. Mahjabi Aajra Khanam

Case brief

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Smt. Renu Singh (Died and Deleted) Through Lrs. v. Mahjabi Aajra Khanam

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