Allowed

Smt Chhagani Devi v. Banshi Lal

Rajasthan HC20 Aug 2019CFA/44/1985

Case brief

AI extract

What is this about?

Suit for specific performance where the entire consideration had been paid and part possession handed over. The trial court refused specific performance and ordered refund. The High Court held the plaintiff ready and willing and entitled to a decree of specific performance; the cross-appeal against the refund was dismissed.

What did the court decide?

Decree of specific performance of the agreement; appellant entitled to the remaining possession and to execution of the sale deed, on payment of stamp duty at the present DLC rates.

Smt Chhagani Devi Vs Banshi Lal — Specific Performance | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil First Appeal No. 64/1985

¶3

Banshi Lal s/o Shri Rikhabchand Oswal, r/o Laxmi Bazar, Barmer.

¶4

----Appellant

¶5

Versus

¶6

Smt. Chhagani Devi wd/o Shri Rana Mal, r/o Thakuraniyan Ki Gali, Pratap Ji Ki Pole, Barmer.

¶7

Shri Loon Karan s/o Shri Rana Mal through his legal representatives:

¶8

2/1 Kamla Devi w/o Loonkaran

¶9

2/2 Smt. Shankuntla d/o Loonkaran She become faint and left sociality so she is not treated as legal heir of expired person.

¶10

2/3 Dinesh Karan s/o Loonkaran

¶11

2/4 Suresh Karan s/o Loonkaran

¶12

2/5 Parmesh Karan s/o Loonkaran

¶13

all the legal representatives No.2/1 to 2/5 are residents of Thakuraniyan Ki Gali, Dhani Bazar, Barmer.

¶14

Smt. Sua Devi w/o Shri Hira Lal Oswal, r/o Thakuraniyan Ki Gali, Pratap Ji Ki Pole, Barmer.

¶15

Smt. Narmada w/o Shri Dharam Chand Oswal, r/o Thakuraniyan Ki Gali, Pratap Ji Ki Pole, Barmer.

¶16

Smt. Roopa w/o Shri Shanker Lal Oswal, r/o Dhapu Bazar, Zambaji Ki Gali, Barmer through his legal representatives

¶17

5/1 Abhimanyu @ Abhay Kumar s/o Shri Shanker Lal, r/o Jatiyo Ka Bas, Barmer.

¶18

5/2 Raju s/o Shri Shanker Lal, r/o c/o Rishab Ice Cream Store, Dariyaganj, Dhani Bazar, Barmer.

¶19

5/3 Sumitra w/o Late Shri Satish Kumar Bohra, r/o c/o Mewaram Satish Kumar Bohra, 649/12^th ‘C’ Road, Sardarpura, Jodhpur. 5/4 Manju w/o Shri Dinesh Kumar, r/o c/o Shri Dinesh Kumar s/o Shri Paras Mal Singhvi, r/o 3^rd Floor, Kelashs Apartment, Mahaveer Nagar Jaweri Road, Navasari (Gujarat).

¶20

----Respondent

¶21

Connected With

¶22

S.B. Civil First Appeal No. 44/1985

¶23

LRs of Smt. Chhagni Devi w/o Shri Rana Mal:

¶24

1/1 Smt. Sua Devi w/o Heeralal Oswal, r/o Jankra Ki Gali, Barmer.

¶25

1/2 Smt. Narmda w/o Dharmchand Oswal, r/o Thakurniya Ki Gali, Barmer.

¶26

(2 of 19)

¶27

[CFA-64/1985]

¶28

LRs of Shri Loonkaran s/o Shri Rana Mal:

¶29

2/1 Kamla Devi w/o Late Shri Loonkaran, aged about 60 years.

¶30

2/2 Suresh Karan Mehta s/o Late Shri Loonkaran, aged about 37 years

¶31

2/3 Dinesh Karan Mehta s/o Late Shri Loonkaran, aged about 36 years

¶32

2/4 Parmesh Karan Mehta s/o Late Shri Loonkaran, aged about 34 years.

¶33

All residents of Chhoti Dhani, Barmer.

¶34

----Appellant

¶35

Versus

¶36

Banshi Lal s/o Shri Rikhab Chand Oswal Badera, r/o Laxmi Bazar, Barmer.

¶37

----Respondent

¶38

For Appellant(s)	:	Mr. Banshi person.	Lal, appellant present in
For Respondent(s)	:	Mr. Manish Khatri	Shishodia with Mr. Anirudh

¶39

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

¶40

Judgment

¶41

Reserved on 06/08/2019

¶42

Pronounced on 20/08/2019

¶43

The plaintiff/appellant, who appears in person has preferred S.B. Civil First Appeal No.64/1985 assailing the judgment and decree dated 08.04.1985 passed by learned District Judge, Balotra, Camp Barmer, whereby his suit for specific performance of contract, and possession was refused and the amount of Rs.43,702/- was directed to be paid to the appellant/plaintiff.

¶44

The suit was preferred by the appellant for specific performance and possession of house, and in the alternative, to

¶45

(3 of 19)

¶46

[CFA-64/1985]

¶47

grant a sum of Rs.43,702/- alongwith interest, expenses and compensation.

¶48

Brief facts, stated in the plaint, are that the plaintiff/appellant has set up a case as tenant that he entered into an oral agreement with defendant-Chhagani Devi widow of Late Rana Mal and her son Loonkaran for purchase of the entire property belonging to Late Rana Mal, as detailed out in the plaint, on 25.05.1981. The said sale agreement was entered with the sanction of the other defendants and for a total consideration of Rs.40,000/-. It was also agreed that expenses required for the registration of sale of the property shall be borne by the plaintiff/appellant.

¶49

The appellant further reiterated what he has submitted in his plaint and stated before the court that he alongwith defendant No.2 had gone to Jodhpur and deposited a sum of Rs.3702/- by way of challan No.330 in favour of defendant No.2 for purchase of stamps for preparing the sale deed. Four stamp papers of Rs.3000/-, Rs.500/-, Rs.200/- and Rs.2/- respectively were issued by the Treasury and a sale deed was required to be executed on the said stamp papers.

¶50

On 22.06.1981, he handed over a cheque of Rs.40,000/- drawn on Bank of Rajasthan Limited, Barmer Branch to defendant No.1 Chhagani Devi who encashed the said cheque, and thereafter, handed over a receipt Exhibit-3 and iqrarnama (agreement) Exhibit-2, wherein she put her signatures and also mentioned that she had received the amount.

¶51

The execution of the sale deed was deferred on account of there being a theft in the family of the defendants, and thereafter, death of a close relative.

¶52

(4 of 19)

¶53

[CFA-64/1985]

¶54

He has stated that on 10.03.1982, he again approached the defendants for getting the agreement executed as per the sale draft, which was in possession of the respondents/defendants, but the same was not executed, and therefore, he filed the suit praying for issuing directions for getting the agreement executed. It was also alternatively prayed that if for any reasons, execution is not possible, the amount already paid be recovered from the respondents/defendants alongwith interest @ 15% per annum.

¶55

The defendant No.1-Chhagani Devi filed a separate written statement, while defendants No.2 and 3 Loonkaran and Sua Devi respectively filed a joint written statement. Against the other defendants, proceedings were undertaken ex parte.

¶56

In the written statement filed by Chhagani Devi, she denied of having received a cheque or having encashed any cheque of Rs.40,000/-, and of having entered into any kind of agreement with the plaintiff and gives a reason that she having been widowed on 04.11.1980 was required as per her customs to remain in the house for one year, and as her husband died on 04.11.1980, the alleged date mentioned by the plaintiff was only seven months thereafter and she therefore could not have gone out to encash the cheque and the averment was false and concocted.

¶57

She also denied of having any talking terms with the plaintiff against whom a case was already pending for eviction of one of the shops let out to him by her husband. However, she stated that the plaintiff had approached her offering her a sum of Rs.4,000/-, taking advantage of the fact that she was having stringent relations with her son Loonkaran, who was looking after the case relating to eviction and the plaintiff coaxed her to accept a cheque

¶58

(5 of 19)

¶59

[CFA-64/1985]

¶60

of Rs.4,000/- for the pending rent, although the amount due against him was Rs.5,000/-.

¶61

She stated that the cheque was not accepted and she demanded the amount in cash, whereupon the plaintiff asked her to accept the cheque and assured to get it encashed and hand over the amount to her, and believing him, she signed the bearer cheque which she handed over to the plaintiff, who wrongfully mentioned amount of Rs.40,000/- instead of Rs.4,000/- and himself withdrew the amount from his Bank and did not hand over any penny to her, and has committed a fraud. She stated that the value of the property was Rs.80,000/-.

¶62

Defendant No.2 and 3 filed a joint written statement and Loonkaran also deposed before the court and denied the averments of the plaintiff and additionally mentioned that the plaintiff is a fraud and has been known to have befooled other persons.

¶63

He denied of there being any agreement to sell the entire property for a sum of Rs.40,000/-. Loonkaran explains the purchasing of stamps in his name stating that they were purchased for selling of an old house at Mohalla Hamirpura for a value of Rs.40,000/- to one Devi Chand, who accompanied him to the Bank and who had deposited a sum of Rs.3702/-, but later on the sale deed could not be executed on account of difference of opinion with his mother Chhagani Devi.

¶64

He also stated that the iqrarnama (agreement) signed by defendant No.1 was forged and did not bear her signatures and the value of the property was Rs.2,00,000/-.

¶65

The plaintiff in his rejoinder has also stated that in pursuance of the iqrarnama (agreement) entered between the

¶66

(6 of 19)

¶67

[CFA-64/1985]

¶68

parties, the plaintiff/appellant has already been handed over the possession of the shop, which was already in his possession and the suit is for specific performance of the agreement and possession of the remaining property.

¶69

As regards the custom, the appellant/plaintiff stated that custom stands broken as after death of Chhagani Devi’s husband, Loonkaran’s daughter was married, and therefore, Chhagani Devi could thereafter move around and go out of her house; she also had more than one bank account and could not be said to be illiterate, as alleged by defendant No.2.

¶70

On the basis of pleadings, eight issues were framed by the learned District Judge, Balotra Camp Barmer, as under:

¶71

“ ¼1½ vk;k izfroknhx.k laŒ 1 ,oa 2 us fnukad 25-5-81 fookfnr laifr foØ; djus dk :Œ 40]000&00 ds izfrQy isVs bdjkj fd;k vkSj mlh ds vuq:i rkŒ 3&6&81 dks fookfnr vuqca/k izfroknh laŒ 1 us fu"ikfnr fd;k \ ;fn ,slk gks rks D;k ,slk vuqca/k ,sls izfroknhx.k }kjk “ks’k lHkh izfroknhx.k dh lgefr o Kku ls fd;k x;k \ && oknh ¼2½ vk;k izfroknhx.k laŒ 1 us pSd ds tfj, fnŒ 22&6&81 dks :Œ 40]000&00 ,sls vuqca/k ds vuqlkj esa izkIr fd, \

¶72

&& oknh ¼3½ vk;k oknh ,sls vuqca/k fofufnZ’V ikyuk dks lnSo rRij o bPNqd jgk gS \ && oknh ¼4½ vk;k oknh fookfnr vuqca/k dh fofufnZ’V ikyuk dh fMØh ik ldrk gS \

¶73

¼5½ vk;k] fodYi esa] oknh : 43]702&00 dh fMØh] ekfQd nkok] ik ldrk gS \ && oknh ¼6½ D;k izfroknhx.k dksbZ fo”ks’k {kfriwjd jkf”k izkfIr ds vf/kdkjh gS\ gka rks fdl dnj \

¶74

¼7½ vk;k oknh izfroknhx.k ls fookfnr ,slh nksuksa nqdkuksa dk dCtk izkIr djus dk vf/kdkjh gS \

¶75

¼8½ vU; dksbZ vuqrks’k gks rks \ ”

¶76

The learned District Judge answered them in favour of the defendants/respondents so far as it relates to specific performance of the agreement, but held the appellant/plaintiff entitled to the

¶77

(7 of 19)

¶78

[CFA-64/1985]

¶79

relief of receiving the amount incurred by him of Rs.40,000/- and the stamp duty of Rs.3702/- and made the defendants liable to repay the same alongwith interest @ 6% per annum vide his judgment dated 08.04.1985.

¶80

Cross appeal being S.B. Civil First Appeal No.44/1985 (LRs of Smt. Chhagni Devi & Ors. Vs. Banshi Lal) was filed with regard to the findings of the trial court in relation to returning of the amount, as above.

¶81

During the pendency of suit, an application was moved by the defendant No.1 Chhagani Devi for getting the Iqrarnama (agreement) and her signatures verified by handwriting expert, which was rejected by the learned District Judge vide order dated 26.02.1985, against which S.B. Civil Revision Petition No.131/1985 was preferred before this Court, wherein this Court vide order dated 04.04.1985, set aside the order of learned District Judge so far as it rejected the application on the ground of failure to file name and address of the handwriting expert, and directed the court below to decide the application on merits.

¶82

However on 04.04.1985 itself, the arguments were heard by the trial court and the case was posted for final arguments on 05.04.1985; the case was finally heard on 05.04.1985 and was posted for pronouncement of judgment on 06.04.1985.

¶83

On 06.04.1985, the order passed by the High Court was placed before the trial court, and therefore, the judgment was kept in sealed cover and application for calling the handwriting expert was posted for 08.04.1985. On 08.04.1985, the application was heard and rejected, whereafter the judgment was pronounced.

¶84

I have gone through the record of the trial court and the evidence recorded therein.

¶85

(8 of 19)

¶86

[CFA-64/1985]

¶87

In support of his plaint, the plaintiff got six witnesses examined, including himself; while the defendants got ten witnesses examined, including themselves.

¶88

The appellant submits that PW-3 Durga Das has deposed that Iqrarnama (agreement) Ex.2 was signed by Chhagani Devi in his presence and the receipt Exhibit-3 was also signed in his presence.

¶89

He admits that he knows the entire family of Chhagani Devi, Loonkaran and his sisters. Thus, the appellant submits that the evidence of Durga Das cannot be doubted.

¶90

He also got the Sub Registrar, Barmer, Narpat Singh as PW-5 examined to show that the DLC rates at that relevant time were such that the valuation of the property was in proximity of the amount as decided in the agreement and the property could not be said to be of Rs.2,00,000/-.

¶91

The fact of the challan having been filed and stamps having been issued in name of Loonkaran for a sum of Rs.3702/- has been proved by PW-6 Dhanna Lal, who was Stamp Clerk of the Treasury, Jodhpur.

¶92

Banshi Lal reiterates in his statement the averments as made in the plaint and in his cross-examination, he denied of being a history-sheeter and also stated that in one case registered against him in 1975, he was acquitted, and in another case in 1975, he was discharged; while in one case registered by one Advocate under Sections 420 and 406 IPC, a compromise was arrived at and the matter was closed.

¶93

Banshilal has denied having set up the case fraudulently.

¶94

(9 of 19)

¶95

[CFA-64/1985]

¶96

One of the witnesses in support of defence are Chhagani Devi and Loonkaran, who have reiterated what they stated in their written statement.

¶97

In cross-examination, Chhagani Devi admits that she had deposited a sum of Rs.16,000/- on 13.12.1984 in Cooperative Bank, but denied of having accounts in State Bank of Bikaner & Jaipur, Rajasthan Bank and Cooperative Bank.

¶98

DW-2 Sumermal states that Banshilal had got a document of Iqrarnama (agreement) typed by him, and also the receipt was typed by him.

¶99

DW-4 Ratanlal a relative of Chhagani Devi states that the plaintiff had approached him to ask Chhagani Devi to sell the entire property to the plaintiff as there were unnecessary disputes going on.

¶100

DW-6 Devi Chand, while stating in his statement, mentions of having entered into an agreement for sale of property at Mohalla Hamipura and accompanying Loonkaran to Jodhpur for purchasing stamps. In cross-examination, he admits that no written agreement or document for sale were prepared, nor he has claimed the amount from Loonkaran, but states that he demands the amount of Rs.3702/- from Loonkaran.

¶101

Devi Chand is a close relative of Loonkaran being brother in law of his wife’s sister.

¶102

He also admits that a house which he wanted to purchase at Mohalla Hamirpura was never to shown to him nor he has seen any document relating to the property and there was no written agreement to sell.

¶103

Virdi Chand and Mangalilal, DW-8 and DW-9 respectively being relatives of defendants, stated that there has been no sale of any

¶104

(10 of 19)

¶105

[CFA-64/1985]

¶106

shop or property in the Laxmi Bazar, but asserted that the value of the shop should be around Rs.3,00,000 to Rs.4,00,000 in 1980.

¶107

Loonkaran/defendant no.2 states that the stamps were purchased for selling the property to Devi Chand. However, he admits that no agreement or document for sale were prepared and that Devi Chand was his known relative and that he was arrested at Jodhpur for smuggling whereafter he was acquitted, and also admitted theft of motor cycle.

¶108

In light of the evidence which has come on record, it is noticed that the statements of Devi Chand do not inspire confidence, as he does not give out any facts to show which house he wanted to purchase at Mohalla Hamirpura and he also feels ignorance to any agreement. Thus, it appears to be a story cooked up by Loonkaran to give an explanation relating to the sale of stamps papers in his name by the Treasury.

¶109

Exhibit-2 bears the signatures of Chhagani Devi marked from A to B and Exhibit-3 again bears signatures of Chhagani Devi marked from A to B.

¶110

The documents mention of handing over of possession of the shop and promise of handing over possession of the remaining property at the time of execution of the sale deed.

¶111

From the statement of Chhagani Devi, it is apparent that she has entered into some agreement with the plaintiff/appellant, who had come to her house, but submits that the agreement was only for receiving the rent of Rs.4000/-, although the cheque mentions a sum of Rs.40,000/-, which is in number as well as words. The same was a bearer cheque on the basis of which amount has been withdrawn from the Bank.

¶112

(11 of 19) [CFA-64/1985]

¶113

While comparing the signatures of Chhagani Devi on Exhibits 1, 2 and 3 as well as her signatures on the various affidavits filed before this court and the written statement, this Court finds that there is a quite a similarity of handwriting and therefore, the action of the learned trial Judge in refusing to get the handwriting expert examined at the end of the trial is found to be correct.

¶114

Power under Section 165 of the Evidence Act was not required to be exercised in view of Section 73 of the Evidence Act by the trial court, nor this Court finds it necessary to do so.

¶115

Thus, this Court finds that the plaintiff has been able to prove that he had entered into an agreement for purchase of the property belonging to Chhagani Devi and her son Loonkaran and the entire family members.

¶116

The statement of Ratanlal DW-4 further shows that the appellant/plaintiff had been approaching to buy the property so as to solve the dispute.

¶117

The fact of agreement having been entered into is also proved from the statement of Sumermal DW-2 who states that an Iqrarnama (agreement) and receipt were typed by him. Thus, the existence of documents Exhibits 2 and 3 is proved.

¶118

The contention of the respondent’s counsel that because the handwriting expert was not allowed to be examined, a presumption should be drawn of the signatures being forged, is found to be without any basis in view of the aforesaid findings. It is also noticed that the court had given ample opportunity to the defendants to produce handwriting expert on their own but they failed to do so. Therefore, this Court does not find any error in the action of the learned Judge in refusing to call the handwriting expert.

¶119

(12 of 19)

¶120

[CFA-64/1985]

¶121

Thus, the finding arrived at by the trial court of the defendants having received a sum of Rs.40,000/- by cheque offered to them by the plaintiff and which has been encashed by them, and also of having purchased the stamp papers worth Rs.3702/- for which expenses were borne by the plaintiff, is found to be correct.

¶122

As regards the under valuation of the property, it may be a case where the valuation of the property may be higher, but it is not uncommon to find a case where parties agree to enter into an agreement for a lower amount when there is some dispute pending in any court of law and in order to buy peace.

¶123

Thus, in the backdrop that a suit was pending with regard to eviction and the evidence of Ratan Lal of the tenant offering for purchase of property and the proven fact of stamp duty papers being purchased for a sale of property worth Rs.40,000/-, the claim of the plaintiff/appellant is found to be correct that the property was agreed to be sold for a sum of Rs.40,000; encashment of Rs.40,000/- is also found to be made out.

¶124

A need for selling of property is also apparent from the conduct and statement of Loonkaran (defendant No.2) DW-5 when he states that he went alongwith Devi Chand to purchase stamps. It cannot be believed that Devi Chand would after having purchased stamps worth Rs.3702/- has not taken any further action for getting the sale deed executed of the so called house at Mohalla Hamirpura, and thus, it is apparent that Devi Chand has given a false statement, as he is found to be a close relative of the defendants.

¶125

Story of Chhagani Devi of handing over the cheque to the plaintiff for getting it encashed cannot be said to be believed as the plaintiff was not having so good relations with Chhagani

¶126

(13 of 19)

¶127

[CFA-64/1985]

¶128

Devi that she would believe of the plaintiff giving her cash amount after obtaining her signatures on the bearer cheque.

¶129

The story of the cheque amount being Rs.4000/- and not Rs.40,000/- is also difficult to believe as the cheque bears both words as well as numericals.

¶130

Learned counsel appearing for the defendants/respondents submitted in their own appeal being S.B. Civil First Appeal No.44/1985 that the order passed by the learned Judge was erroneous on the various issues.

¶131

He has submitted that the evidence of the defendants was reliable and trustworthy and could not have been ousted by the learned District Judge.

¶132

It was further submitted that the court ought to have compared the signatures of Chhagani Devi on Exhibit-1, Exhibit-2 and Exhibit-3 inter se as well as her own signatures for its own satisfaction and the finding ought to have been given by him. The learned Judge has also failed to examine the handwriting expert who was present in the court on the day, or in the alternative, the matter ought to have been sent for examination before the other handwriting expert by exercising power under Section 165 of the Evidence Act.

¶133

The averment on part of the respondents/defendants that the valuation of the property was Rs.2,00,000/-, is found to be without any basis, merely because some witnesses on their behalf have stated that the property in the said Laxmi Bazar would be worth in lakhs. It is also noticed that there is no property available for sale in that market, and thus, it is an assessment of an individual.

¶134

(14 of 19)

¶135

[CFA-64/1985]

¶136

A court would not assess valuation on which a sale agreement may have been entered into. There may be several circumstances in which two parties may enter into a contract for sale of a property at a lower value than market value. This usually happens when there is a dispute already going on relating to the property. Admittedly, a suit was pending with regard to eviction and in that circumstances, the tenant offered for purchasing of the property which was accepted by the widow.

¶137

It is difficult to fathom the reasons which may have arisen at that relevant time for entering into an agreement at a price, which later on the vendors may think to be on the lower side. However, there is no action found to have been taken on their part for withdrawing from the agreement.

¶138

Learned counsel appearing for the defendants/respondents has further argued that there is no averment in the plaint mentioning that the plaintiff was ready and willing to perform his part of the contract, which is a condition precedent to the maintainability of suit and in absence of such an averment, the suit ought to have been dismissed as the plaint did not disclose the cause of action. Learned counsel relies on Dhanbhai Vs. Pherozshah, reported

¶139

in RLW 1970 Raj. 594; Sita Ram & Ors. Vs. Radhey Shyam, reported in (2007) 14 SCC 415 and; A.K. Lakshmipathy (D) & Ors. Vs. Rai Saheb Pannalal H. Lahoti Charitable Trust & Ors., AIR 2010 SC 577 , in support of the aforesaid submission. 19. The question which requires to be examined is whether the plaintiff/appellant was ready and willing to perform his part of the contract which is an essential feature for any suit for specific performance as part of its cause of action.

¶140

(15 of 19)

¶141

[CFA-64/1985]

¶142

The averments made in the plaint go to show that the plaintiff/appellant has already performed his part of the contract and his prayer in the plaint is that despite of having paid the entire amount of Rs.40000/as decided, the respondents/defendants did not perform their part of the contract of getting the sale deed executed.

¶143

The readiness and willingness of the plaintiff/appellant for performing his part of the contract can be also assessed from the fact that Rs.40,000/- has been already paid and part of the possession has also been received. In such facts and circumstances, there was no occasion for mentioning in the plaint of the appellant/plaintiff being ready and willing to perform his part of the contract since the same has already been performed and it was only on part of the defendants to get the sale deed executed and hand over the possession.

¶144

Thus, the submission of learned counsel, in light of the judgments noted above, fails.

¶145

Next question which arises for consideration is as to what relief should be granted.

¶146

In Devalsab (Dead) by LRs. Vs. Ibrahimsab F. Karajagi & Anr., reported in AIR 2005 SC 1940 , the question arose whether relief of specific performance could be given or not after the amount has been received. The Apex Court has held as under:-

¶147

“7. Learned counsel for the plaintiff-appellant submitted that in fact exercise of discretionary relief in favour of Defendant No.2 is not correct as this kind of discretion if exercised in favour of Defendant No.2 then it is likely to lay down a bad precedent. This will give premium to unethical transaction and a bona fide

¶148

(16 of 19)

¶149

[CFA-64/1985]

¶150

purchaser will be left high and dry. Learned counsel for the defendants submitted that it is true that Section 20 of the Specific Relief Act is a discretionary remedy that is not always necessary to grant a decree for specific relief if it appears to be inequitable and causes hardship to the other side. But looking to the facts of the present case we are of opinion that it will be unfair and inequitable not to grant a decree for specific relief in favour of the plaintiff-appellant herein because he is a bona fide purchaser and he has done everything which is possible, that he has purchased the stamp paper and was ready and willing to perform his part of the contract, that he went along with Defendant No.1 to the Sub-Registrar's Office for registration but some how Defendant No.1 sneaked away from that place as he had already entered into another agreement to sell the present premises, so much so that a sham suit was got filed by Defendant No.2 against Defendant No.1 and on the same day a compromise decree was obtained. These facts go to show that there is not much equity left in favour of Defendant No.2 as it appears that the suit by Defendant No.2 was a pre-arranged affair with connivance with Defendant No.1. Otherwise the suit would not have been filed on the same day and a compromise decree would not have been obtained the very same day. This shows that there was a preconceived agreement between Defendant Nos.1 & 2 in order to cheat the plaintiff- appellant herein. Therefore, we are of opinion that the discretionary power exercised by learned Single Judge of the High Court was not correct. In fact, it appears that Defendant No.2 has purchased the litigation and therefore, there is no equity in his favour. ”

¶151

In P.C. Varghese Vs. Devaki Amma Balambika Devi & Ors., reported in (2005) 8 SCC 486 , the Apex Court held that

¶152

(17 of 19)

¶153

[CFA-64/1985]

¶154

alternate plea of refund of earnest amount would not have any effect or cannot be considered as a bar to claim a decree for specific performance of contract.

¶155

One of the argument relating to the contract being originally an oral contract, and cannot therefore be performed would not keep this Court for much discussion.

¶156

It is settled that Section 53A of the Transfer of Property Act requires that there should be a contract in writing signed by the transferor or on his behalf, from which terms necessary to constitute the transfer can be ascertained with reasonable certainty; and secondly, that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already continues in possession in part performance of the contract and has done something in furtherance of the contract.

¶157

The Section nowhere provides that the contract in writing must be brought into existence at the time of original contract. Thus, even if originally a contract was oral, but subsequently reduced to writing signed by the transferor in which all terms have been brought out, it can certainly be used for purpose of Section 53A of the Transfer of Property Act, as held in Maung Ohn Vs. Maung Po Kwe, reported in AIR 1938 Rang. 356 .

¶158

In light of the aforesaid judgments, the case in hand is examined and this Court finds that as per the agreement entered between the parties, the entire amount against the agreement was already paid. Part performance of the agreement was also completed as possession of the shop which was earlier rented to the plaintiff/appellant, was handed over.

¶159

(18 of 19)

¶160

[CFA-64/1985]

¶161

Thus, after the part of the contract has already been complied with, in a suit for specific performance if the alternate prayer is considered for refund of the amount in terms of Section 21(5) of the Specific Relief Act, it would amount to directing the plaintiff/appellant to hand over back the possession of the shop which is with him in terms of the agreement.

¶162

As the entire consideration amount is already with the defendant/respondent, therefore, the provisions of Section 21(5) of the Specific Relief Act would not apply in the facts and circumstances of this case and judgment passed by the trial court directing for refund of the amount of Rs.43,702/- alongwith interest @ 6% per annum was not in accordance with law.

¶163

The suit for specific performance of the agreement was required to be allowed and the remaining property was required to be handed over to the plaintiff/appellant.

¶164

In view of the findings arrived at hereinabove that the defendants have actually received the amount of Rs.40,000/upon encashing of the cheque and a sum of Rs.3702/- as is apparent from Ex.2, the contentions raised by appellants/defendants in S.B. Civil First Appeal No.44/1985 (LRs of Chhagni Devi & Ors. Vs. Banshi Lal), are rejected.

¶165

Accordingly, it is held that the appellant/plaintiff is entitled to a decree of specific performance of the agreement as entered in between him and the defendants, and the plaintiff would be entitled to receive the remaining possession of the property as detailed in the plaint and mentioned in the Iqrarnama (agreement) and also entitled to get the sale deed executed in his favour. The plaintiff/appellant shall be required to pay the stamp

¶166

(19 of 19)

¶167

[CFA-64/1985]

¶168

duty of the property as per the present DLC rates of the property for the purpose of registration of the sale deed.

¶169

Thus, in view of the above, the appeal (S.B. Civil First Appeal No.64/1985) preferred by Banshilal is allowed and appeal (S.B. Civil First Appeal No.44/1985) filed by LRs of Smt. Chhagani Devi is dismissed. The record of trial court is directed to be sent back forthwith. All pending applications stand disposed of.

¶170

(SANJEEV PRAKASH SHARMA),J

¶171

SKant/-

Smt Chhagani Devi v. Banshi Lal

Case brief

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Smt Chhagani Devi v. Banshi Lal

Case brief

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What the court decided

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