Suresh Kejriwal Vs Hirabai

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1

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2025:CGHC:7979-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 346 of 2019

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Judgment Reserved On : 03.01.2025 Judgment Delivered On : 14.02.2025

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1 - Suresh Kejriwal S/o Late Basantlal Kejriwal Aged About 52 Years R/o 32/8, Nehru Nagar, Bhilai Nagar, Tehsil And District-Durg, Chhattisgarh, District : Durg, Chhattisgarh

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... Appellant/Plaintiff

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versus

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1(a) - Hirabai D/o Late Mangal Prasad Nirmalkar Aged About 30 Years R/o Santoshi Chowk, Basti, Ward No. 6, Jamul, Post And P.S. Jamul, Tehsil And District-Durg, Chhattisgarh, District : Durg, Chhattisgarh

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1(b) - Kapoor Nirmalkar S/o Late Mangal Prasad Nirmlakar Aged About 28 Years R/o Santoshi Chowk, Ward No. 6, Jamul, Post And P.S. Jamul, Tehsil And District- Durg, Chhattisgarh, District : Durg, Chhattisgarh

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1(c) - Gangeshwari Bai D/o Late Mangal Prasad Nirmlakar Aged About 24 Years R/o Santoshi Chowk, Ward No. 6, Jamul, Post And P.S. Jamul, Tehsil And District Durg, Chhattisgarh, District : Durg, Chhattisgarh

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1(d) - Pritam Kumar S/o Late Mangal Prasad Nirmlakar Aged About 21 Years R/o Santoshi Chowk, Ward No. 6, Jamul, Post And P.S. Jamul, Tehsil And District- Durg, Chhattisgarh, District : Durg, Chhattisgarh

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1(e) - Triveni Bai W/o Rikhilal Nirmalkar Aged About 30 Years R/o Santoshi Chowk, Ward No. 6, Jamul, Post And P.S. Jamul, Tehsil And District- Durg, Chhattisgarh, District : Durg, Chhattisgarh

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Digitally signed by BHUMIKA BHUMIKA ANGARE ANGARE Date: 2025.02.14 16:45:36 +0530

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2 - State Of Chhattisgarh Through District Collector, Durg, District-Durg, Chhattisgarh

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3 - Poornima Chandrakar W/o Chhattar Singh Chandrakar Aged About 40 Years R/o Village Jamul, Post And Police Station Jamul, Tehsil And DistrictDurg, Chhattisgarh, District : Durg, Chhattisgarh

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... Respondents/Defendants For Appellant/Plaintiff : Mr. Prasoon Agrawal, Advocate For Respondents/Defendants : Dr. Sourabh Kumar Pandey, Advocate No. 1(a) to 1(e) For State : Mr. Ankur Kashyap, Dy. Government Advocate

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Division Bench: Hon'ble Smt. Justice Rajani Dubey & Hon’ble Shri Justice Narendra Kumar Vyas

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CAV ORDER

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Per Narendra Kumar Vyas, Judge

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This First Appeal has been preferred by the appellant/plaintiff against the judgment and decree dated 11.03.2019 passed by 4^th Additional District Judge, Durg, District Durg in Civil Suit No. 1236729-A/2013 (Suresh Kejriwal v. Heerabai and others) by which suit filed by the plaintiff has been dismissed.

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The parties have been described as per their status before the Trial Court.

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The brief facts of the case are that an agreement dated 07.09.2011 was executed between the appellant/plaintiff and deceased Mangal Prasad Nirmalkar for sale of land bearing khasra No. 220/1 area 0.506 hectare and khasra No. 221 area 0.595 hectare situated at villageJamul Patwari Halka No. 13/18, Revenue Circle- Durg -1 Tehsil and District Durg for sale consideration of Rs. 6,00,000/- per acre which

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was not executed by the defendant therefore, the plaintiff has filed a civil suit for specific performance of contract before the learned Second Additional District Judge, Durg which was registered as Civil Suit No. 1236729A/2013 mainly contending that :-

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A. As per agreement dated 07.09.2011 the plaintiff has given an advance of Rs. 3,00,000/- to the defendant and the sale-deed was to be executed upto 12.12.2012 but it could not be materialized due to financial consideration up to March, 2012. Thereafter, the plaintiff has contacted the defendant No. 1 in the month of June, 2012 but he has not executed the sale deed on the pretext that his father is not well and also due to some personal difficulties. The defendant has also demanded money from the plaintiff and when plaintiff demanded his money he used to abuse him. It has also been contended that the deceased Rikhiram at the time of execution of the agreement has handed over the Rin Pustika to the plaintiff for execution of sale deed which was demanded by the defendants as they threatened the plaintiff that they will execute sale deed with other person. Thereafter, the plaintiff has sent a legal notice on 19.06.2012 for execution of sale deed but it has not been replied by defendants.

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B. The plaintiff has also served notice though paper publication restraining the defendants to execute the sale deed on 23.06.2012. Then, the defendant No. 1 has told him that he will execute the sale deed in favour of the plaintiff upto 12.12.2012 as such there is no justification for publication of the notice in the newspaper tarnishing his reputation in the village, but he has not fulfilled his words and has not performed his part of contract which has necessitated the plaintiff to file the suit for specific performance of the contract. The plaintiff

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has also filed an application under Order 39 Rule 1 & 2 of the C.P.C. which was rejected by the learned trial Court.

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During pendency of the suit, son of original defendant expired and the present defendants have been arrayed as defendants to the case. The defendants have filed written statement denying the allegations made in the plaint mainly contending that they have not received any amount from the plaintiff and also denied regarding execution of any agreement between deceased and defendant and publication of notice was also denied. It is specifically denied that rin pustika is with the plaintiff and prayed for dismissal of the suit. It has also been contended that the plaintiff has not pleaded that he was ready and willing to perform his part of contract which is essential ingredient to succeed in the suit for specific performance of contract and thus would pray for dismissal of the suit.

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On pleadings of the parties and material on record, learned trial Court has framed two issues which read as under:

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1- D;k oknh ,oa fj[khjke ds e/; fnukad 07-09-2011 dks oknHkwfe [kljk uacj 220@1 jdck 0-506 gsDVs;j rFkk [kljk uacj 221 jdck 0-595 gsDVs;j Hkwfe dks fodz; djus ds laca/k esa bdjkjukek fu"ikfnr fd;k x;k Fkk\

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2- D;k oknh oknHkwfe dks mDr bdjkjukek ds vk/kj ij iathd`r fodz;i= fu"ikfnr djkus dk vuqrks"k dks ikus dk vf/kdkjh gS\

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The plaintiff to substantiate his case has exhibited agreement (Ex. P/1), rin pustika ( Ex.P/2), notice (Ex.P/3), paper publication (Ex.P/4) and examined Suresh Kejriwal as PW/1. The defendants have not examined any witness and they were proceeded ex-parte by the trial Court on 29.11.2018 and thereafter, the matter was fixed for ex-parte evidence. The learned trial Court vide impugned judgment and decree

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dismissed the suit by recording its finding that the plaintiff is unable to prove that he was ready and willing to his part of contract. The trial Court has also recorded its finding that plaintiff has sent the notice on June, 2012 still 6 months time was there and in the notice itself he has nowhere mentioned that where the defendant has to appear for specific performance of contract. The trial Court has also recorded its finding that the plaintiff is unable to prove that any agreement was executed on 07.09.2011 between the plaintiff and Mangal Das and in compliance of the agreement he has given any money to Mangal Das and Rikhiram. Accordingly, it is held that the plaintiff is not entitled to get decree of execution of sale deed. Consequently, it has dismissed the suit. Being aggrieved with this judgment and decree, the plaintiff has preferred this first appeal.

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Learned counsel for the appellant would submit that impugned judgment and decree dated 11.03.2019 is illegal, erroneous and contrary to law. He would further submit that learned trial Court has not appreciated the evidence of PW-01 i.e. the plaintiff Suresh Kejriwal himself in its correct perspective wherein he has stated that an agreement dated 07.09.2011 was entered by the parties and in consequence of it a sum of Rs. 2,00,000/- through cash and Rs. 1,00,000/- through cheque bearing No. 597369 dated 08.10.2011 was given by PW-01 to the defendant’s late father and grandfather. He would further submit that learned trial Court has not taken into consideration the readiness and willingness shown by the plaintiff for execution of the contract. The defendants have sold the suit property on 29.03.2014 to the respondent No. 3 during pendency of the suit which also shows their ill will. He would further submit that learned trial

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Court failed to appreciate the fact that the plaintiff had sent a notice dated 19.06.2012 through his lawyer and asked them to execute the sale deed in his favour which clearly demonstrates the readiness and willingness of the plaintiff. He would further submit that defendant till date has not made any effort to get the agreement declared as null and void which means that they have accepted the documents without any reservation and should have held that the agreement was executed between the parties. He would further submit that learned trial Court has failed to appreciate the agreement, the contents of the agreement and the endorsement on the back side of the agreement, which shows the acceptance of the agreement to sell the land and acceptance of amount of sale consideration. Thus, he would pray for allowing the appeal.

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On the other hand, learned counsel for the defendants would support the judgment and decree passed by the trial Court and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the record with utmost satisfaction.

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From the submission made by the parties, the points to be determined by this Court are:-

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Whether the finding recorded by the learned trial Court that the plaintiff was not ready and willing to perform his part of contract is legal and justified?

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Whether the finding of the learned trial Court that the plaintiff has not given any money to the defendants as no agreement was executed between the plaintiff and Mangal Das and Rikhiram, is legal and

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justified?

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Discussion on Point No. 1

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To appreciate the point No. 1 it is expedient for this Court to extract Section 16 of the Specific Performance Act, 1963 as stood prior to amendment.

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16. Personal bars to relief.—

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Specific performance of a contract cannot be enforced in favour of a person—(a)who would not be entitled to recover compensation for its breach; or

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(b)who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

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(c)who fails to aver and 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, other than terms the performance of which has been prevented or waived by the defendant.

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From the perusal of the Section 16 of the Act for decree of specific performance of a contract it is expedient for the plaintiff to plead and prove the readiness and willingness by adducing evidence to this effect. The readiness and willingness to execute agreement is subject to interpretation by the Hon’ble Supreme Court in various judgments which are as under :-

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A. Hon’ble the Supreme Court in case of C.S. Venkatesh Vs. A.S.C.

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Murthy [(2020) 3 SCC 280] , on consideration of various decisions culled out what is implied by the words “ready and willing” which reads as under:-

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“16. The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the

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plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.”

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B. Requisite pleadings and proof that are required of a plaintiff to succeed in a suit for specific performance are succinctly captured in recent judgment in case of U.N. Krishnamurthy Vs. A. M. Krishnamurthy [(2023) 11 SCC 775] wherein it has been held as under:-

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“24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of 25 adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.”

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For tracing an answer, one would necessarily have to bear in mind Sections 10, 16 and (unamended) Section 20 of the Act. Scanning of the evidence on records unmistakably points to the conclusion that the buyer was not ready and willing to have the terms agreed by and between the parties to be performed.

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C. Again the Hon’ble the Supreme Court in case of R. Shama Naik Vs.

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G. Srinivasiah, SLP (Civil) 13933 of 2021 dated 28.11.2021 Neutral Citation 2024 INSC 927 wherein it has been held in paragraph 8 to 13 as under:-

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“8. Section 16(c) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 01.10.2018) bars the relief of the specific performance of a contract in favour of a person who fails to aver

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readiness and willingness to perform his part of the contract.

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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 light of the above factual position and legal position the facts of the case have to be considered to examine whether the plaintiff was ready and willing to perform his part of contract. The plaintiff in his examination-in-chief by way of an affidavit as provided under Order 18 Rule 4 of the C.P.C. stated as under:

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^*5- eSa ‘kiFkdrkZ dks tkudkjh gqvk fd esjs lkFk of.kZr Hkwfe dk bdjkjukek lkSnk fd;k x;k gS] ftls fdlh vU; O;fDr ds ikl fcØh djus dk lkSnk fd;k tk jgk gS] eSa ‘kiFkdrkZ jftLVMZ uksfVl vius vf/koDrk ds ek/;e ls fnukad & 19-06-2012 dks Hkstk gw¡] ÁkIr gksu ds ckn tokc ugha fn;kA

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6- eSa ‘kiFkdrkZ of.kZr Hkwfe bdjkjukek ds vuqlkj dksbZ O;fDr [kjhn fcØh] Ø;&foØ; uk gks dgrs gq, nSfud lekpkj HkkLdj esa fnukad & 23-06-2012 dks Ádkf’kr djok;k gw¡

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7- eSa ‘kiFkdrkZ ekg uoacj 2012 esa eaxy Álkn ls feyus ij crk;k fd firk fj[khjke dk LoxZokl gks x;k gS] QkSrh la’kks/ku djkdj vkids ikl fcØh dh xbZ Hkwfe dh jftLVªh dj nawxk] oknh laisfrd Hkkouk j[kus ls Lohdkj dj fy;k vkSj le; O;rhr gksus yxsA

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8- eSa ‘kiFkdrkZ of.kZr Hkwfe dh jftLVªh ds fy, ges’kk Rrijrk ls vius drZO;ksa dks fuHkkrs gq, vk;k gw¡ ijarq Áfroknhx.kksa us esjs lkFk Ny&diV] nwjHkhla/kh djrs gq, esjs ikl lkSnk fcØh Hkwfe dks Jherh iwf.kZek paækdj ifr

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Jh NÙkj flag paækdj ds ikl 29-03-2014 okn yacku ds nkSjku fcØh fd;k gS] tks ‘kwU; gSA

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9- eSa ‘kiFkdrkZ nkok fderh 15]60]500@& :i;k ‘kCnksa esa iaæg yk[k lkB gtkj ikap lkS :i;k okLrs lafonk dk fof’k”V vuqikyu djkdj c;ukek djk ikus dk okn is’k fd;k gw¡ tks ;g ‘kiFk i= dks Hkh vax ekuk tkosaxkA^*

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From the bare perusal of the evidence of the plaintiff it is quite vivid that very bald statements were made. The plaintiff has nowhere stated for purchase of the property that he has the financial position or amount of sale consideration available with him. Nothing has been brought on record to establish such essential ingredient to obtain the decree of specific performance of contract. The learned trial Court on the basis of the evidence also recorded its finding that from 12.12.2011 to June, 2012 what attempts he has made to execute the sale deed whether he has offered the money to the defendants. The trial Court has also recorded its finding that in the evidence the plaintiff has also not given the time and place for execution of sale deed which clearly demonstrates that plaintiff was not ready and willing to perform his part of contract. Thus, the finding recorded by the learned trial Court so far as non-showing of readiness and willingness by the plaintiff does not suffer from perversity or illegality which warrants interference by this Court. Accordingly the point No. 1 framed by this Court is answered against the plaintiff.

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Discussion on Point No. 2

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To ascertain Point No. 2 the evidence and documents placed on record have to be considered. The plaintiff in his evidence has exhibited Agreement (Ex.P/1) duly wherein it has been mentioned that Rs. 3,00,000/- has been paid and below the agreement it has been written

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in the handwriting that Rs. 2,00,000/- has been received and in the agreement cheque No. 597369 dated 08.10.2011 amounting to Rs. 1,00,000/- has also been mentioned. The defendants have not crossexamined this witness as they were proceeded ex-parte before the trial Court. Thus, the evidence adduced by the plaintiff remains unrebutted. As such, the factum of agreement and receiving of the money by Rikhiram and Mangal Prasad cannot be denied. Thus, the finding of the learned trial Court that the agreement was not proved and fact of receiving of money by Rikhiram and Mangal Prasad suffers from perversity which is liable to be set aside by this Court. It is pertinent to mention here that the defendant No. 7 has filed written statement wherein she has stated that Rikhiram has taken Rs. 1,00,000/- by way of loan which he has returned to the plaintiff it means the factum of receiving of Rs. 1,00,000/- is not disputed therefore, defendant should have proved the fact of retaining the money by Rikhiram as burden lies upon defendant No. 7. The defendants No. 1 to 6 have also filed written statement wherein they have denied the factum of receiving Rs.2,00,000/- or Rs.1,00,000/-through cheques as it is incumbent upon them to prove this fact as this fact is within their knowledge only but they have chosen not to lead any evidence to rebut the same. Thus, the finding of the learned trial Court suffers from illegality and perversity and without any evidence adduced by the defendants, as such, the Point No. 2 is answered in favour of the plaintiff. The learned trial Court ignoring that the plaintiff has discharged his burden by examining himself but the defendants have not discharged their burden by examining their witnesses still committed illegality in dismissing the suit in its entirety.

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The learned counsel for the defendants have contended that the plaintiff has nowhere prayed for refund of the earnest amount, therefore, he cannot claim relief of refund, as such, even if this Court set aside the finding on issue No. 2 still the earnest money is not entitled to be refunded. This submission was vehemently objected by the learned counsel for the plaintiff and would submit that even if this specific relief has not been prayed for by the plaintiff still this Court can mold the relief as the plaintiff has prayed for any other relief. He would further submit that forfeiture of earnest money will amount to unjust enrichment and the defendants have not stated in their written statement that they have forfeited the earnest money on account of violation of the terms of the agreement, as such also, the plaintiff is entitled to receive back the advance amount.

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Considering the submissions made by the parties, it is quite vivid that the plaintiff has neither specifically pleaded in the prayer clause of the plaint nor any amendment application has been filed in the appellate stage to amend the pleading, therefore, in view of bar contained Section 22 of the Specific Performance Act, he is not entitled to relief of refund. Section 22 of the Specific Performance Act reads as under :-

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22. Power to grant relief for possession, partition, refund

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of earnest money, etc.—

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(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for—

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(a)possession, or partition and separate possession, of the property, in addition to such performance; or

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(b)any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

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(2)No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

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(3)The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.

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Section 22 of the Specific Performance Act was subject matter of consideration before the Hon’ble Supreme Court in case of Desh Raj & Ors. versus Rohtash Singh { 2022 LiveLaw (SC) 1026 } wherein Hon’ble Supreme Court has held as under :-

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C.3 WHETHER RESPONDENT WAS ENTITLED TO RECOVERY OF EARNEST MONEY?

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The final aspect of this dispute is with respect to the relief granted by the courts below to the Respondent in the form of recovery of earnest money with requisite interest. However, before inquesting into this issue we must take note of the following relevant clauses of the Sale Agreements - “1. That it has been decided that date of execution of this agreement to sell is 16.08.2004 [Sixteen August Two Thousand Four].

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x-x-x-

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That if the Second Party is not able to execute the sale deed on the prescribed date then the First Party will be entitled to confiscate the earnest money” [Emphasis Applied]

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Firstly, we may refer to Section 22 of the Specific Relief Act of 1963 (hereinafter,‘SRA Act’) which provides that any person suing for the specific performance of the contract for the transfer of property may ask for - (a) possession or partition and separate possession of the property in addition of such performance OR (b) such person may seek any other relief to which he is entitled to “including the refund of any earnest money or deposit paid or made by him” in case

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his claim for specific performance is refused. However, subSection (2) thereof puts a caveat that the abovementioned reliefs shall not be granted by the court unless “it has been specifically claimed”. The proviso to subSection (2) further says that even if such relief was not specifically claimed in the plaint, it is the discretion of the Court to permit the plaintiff to amend the plaint “at any stage of the proceedings” and allow him to include the claim for refund of the earnest money or deposit paid. The relevant part of the provision of SRA Act reads as follows -

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Power to grant relief for possession, partition, refund of earnest money, etc.—

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(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--

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(a) possession, or partition and separate possession, of the property in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

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(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed:

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Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

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(Emphasis Applied) On a plain reading of the above reproduced provision, we have no reason to doubt that the plaintiff in his suit for specific performance of a contact is not only entitled to seek specific performance of the contract for the transfer of immovable property but he can also seek

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alternative relief(s) including the refund of any earnest money, provided that such a relief has been specifically incorporated in the plaint. The court, however, has been vested with wide judicial discretion to permit the plaintiff to amend the plaint even at a later stage of the proceedings and seek the alternative relief of refund of the earnest money. The litmus test appears to be that unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money.

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On the basis of evidence and material on record, learned trial Court has recorded its finding that the plaintiff is unable to prove that he was ready and willing to perform his part of contract by rendering money or placing on record any evidence that the amount which is required for registration of sale deed was available with him. In absence of such material placed by the plaintiff, learned trial Court has rightly held that the plaintiff was unable to perform his part of contract and accordingly, it has rightly dismissed the suit which cannot said to be suffered from perversity warranting any interference by this Court. As such, instant First Appeal deserves to be dismissed. Accordingly, the first appeal is dismissed. No order as to costs.

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A decree be drawn up accordingly.

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Sd/Sd/(Rajani Dubey) (Narendra Kumar Vyas) Judge Judge

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Bhumika

Suresh Kejriwal v. Hirabai

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Suresh Kejriwal v. Hirabai

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