Allowed

Manjeet Singh v. Charanjeet Kaur

Rajasthan HC14 Mar 2023CFA/245/2022

Case brief

AI extract

What is this about?

A first appeal against a decree for specific performance of an agreement to sell agricultural land. The High Court reversed the decree, holding that the plaintiff failed to prove payment of consideration and was not ready and willing, but granted a decree for Rs.2,00,000 admitted as a loan.

What did the court decide?

Suit for specific performance and injunction dismissed. Suit decreed for Rs.2,00,000 with interest at 12% per annum from date of suit till payment, failing which 18% per annum.

Manjeet Singh Vs Charanjeet Kaur — Specific Performance | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil First Appeal No. 245/2022

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Manjeet Singh S/o Shri Gurbaksh Singh Jatsikh, Aged About 48 Years, R/o 9 Y, Tehsil And Distt. Sriganganagar

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----Appellant

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Versus

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Charanjeet Kaur W/o Shri Indrajeet Singh Jatsikh, R/o Ward No. 11, Purani Abadai, Sriganganagar.

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----Respondent

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For Appellant(s) : Mr. A.K. Babel For Respondent(s) : Mr. R. Bhatnagar

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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14/03/2023

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The present first appeal has been preferred against the judgment and decree dated 23.03.2022 passed by the Additional District Judge No.2, Sriganganagar in Civil Original Suit No.06/2018 whereby the suit for specific performance of the contract and permanent injunction has been decreed.

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Brief facts of the case are as under:

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The plaintiff-respondent Charanjeet Kaur filed a suit for specific performance of contract dated 19.07.2017 executed in her favour by the defendant-appellant Manjeet Singh. It was averred in the plaint that the defendant had agreed to sell his agricultural land measuring 2.024 Hectares to the plaintiff for a consideration of Rs.9,55,000/-. An advance payment of Rs.9,00,000/- was received by the defendant on 20.08.2016 and a written ‘agreement to sell’ to the effect was executed on 19.07.2017. Vide the agreement, it was agreed that the sale deed would be

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executed and got registered in favour of the plaintiff by the defendant on 20.11.2017 and remaining consideration amount of Rs.55,000/- would be paid by the plaintiff to the defendant on the said date. The agreement was got registered on 20.07.2017.

¶20

It was further averred in the plaint that on the date fixed for execution of the sale deed i.e. 20.11.2017, the defendant sought a month’s more time to execute the same and on his request, the next date for execution of the registered sale deed was fixed for 10.12.2017. An endorsement to the effect was also made at the back of the agreement to sell. On 11.12.2017, the plaintiff went to the office of Sub-Registrar with complete documents and the remaining consideration amount with an intention to pay the same to the defendant and to get the sale deed registered in her favour but the defendant Manjeet Singh did not come to the office of the Sub-Registrar and therefore, the sale deed could not be executed and registered. Therefore, on the very next date i.e. 12.12.2017, a notice, calling upon the defendant to get the sale deed registered in her favour was served upon the defendant and when the same was not responded to, the present suit was instituted with a prayer for specific performance of the contract and also for an injunction to restrain the defendant from alienating the suit property.

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A written statement was filed by the defendant-Manjeet Singh and he categorically denied the receipt of the amount of Rs.9,00,000/- on 20.08.2016 qua consideration. It was the case of the defendant that the agreement to sell dated 19.07.2017 was a document for security purposes executed by him under duress. In fact, the defendant had taken an amount of Rs.2,00,000/- as loan

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from the plaintiff’s husband on a certain rate of interest and he continued to pay the interest per month on the said loan amount. But when he failed to repay the principal amount, he was forced by Inderjeet Singh, husband of the plaintiff to execute the ‘agreement to sell’ in his favour. It was only with an intention to gain some time to repay the loan amount that he executed the agreement to sell dated 19.07.2017 but in fact no such sale was ever intended by him. The same is evident even from the fact that both the witnesses to the document are the close relatives of the plaintiff herself.

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It was further submitted that on 20.11.2017 also, further time of one month was requested by the defendant for repayment of the loan amount and the same was agreed to by the plaintiff’s husband and therefore only, the endorsement of extending the date to 11.12.2017 was made. It was therefore prayed that the document dated 19.07.2017 and any sale in pursuance to the said document was never intended to be executed by the parties and it was just for security purposes. Therefore, the same cannot be ordered to be acted upon. The second ground submitted in the written statement was that the plaintiff was never ready and willing to perform her part of the contract and therefore also, no relief in her favour could be granted by the Court. A prayer for dismissal of the suit with the aforesaid submissions was made.

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On basis of the pleadings of the parties, the learned trial

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Court framed the following five issues:-

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“ 10mHk; i{kdkjku ds vfHkopuksa ds vk/kkj ij bl izdj.k esa fuEufyf[kr fook|d fojfpr fd;s x;s %&

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1- vk;k izfroknh izfroknh us viuh d`f’k Hkwfe okds pd 2 lh cM+h iVokj {ks= iDdh Hkw&vfHkys[k fujh{kd {ks= fgUnqeydksV rglhy o ftyk Jhxaxkuxj dk [kkrk la[;k

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46@38 ¼eqrkfcd tekcanh lEor 2068&2071½ dk eqjCck uacj 9 dh dqy 6-145 gSDVs;j ugjh df’k Hkwfe esa ls 2-024 gSDVs;j ugjh df’k Hkwfe dks okfn;k dks fnukad 20-08-2016 dks dqy jde eqŒ 9]55]000@& ¼v{kjs ukS yk[k ipiu gtkj :i;s½ esa foØ; djrs gq;s reke jkf”k esa ls 9]00]000@& :i;s izkIr dj bdjkjukek fnukafdr 19-07-2017 dks okfn;k ds i{k esa fu’ikfnr fd;k \

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&& okfn;k

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2- vk;k okfn;k vius i{k esa izfroknh ds fo:) bdjkjukek fnukafdr 19-07-2017 dh fofufnZ’V vuqikyuk esa lafonk dh fMØh ikfjr djokrs gq;s U;k;ky; }kjk cS;ukek djokus dh vf/kdkjh gS \

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&& okfn;k

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3- vk;k okfn;k bdjkjukek fnukad 19-07-2017 dh “krksZa dh ikyuk esa fookfnr Hkwfe dk foØ;&i= vius i{k esa fu’ikfnr o iathd`r djokus ds fy, lnSo rS;kj o rRij jgh gS \

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&& okfn;k

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4- vk;k okfn;k izfroknh ds fo:) “kk”or O;kns”k bl vk”k; dk izkIr djus dh vf/kdkjh gS fd izfroknh mDr fookfnr Hkwfe dks vU; fdlh dks cspus ls fu’ksf/kr o vo:) jgs \ && okfn;k

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5- vuqrks’k \ ”

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The plaintiff got examined two witnesses, herself (PW-1) and one Gurjeet Singh (PW-2), who was the witness to the agreement to sell dated 19.07.2017. In support of her oral evidence, plaintiff got exhibited four documents. The defendant got examined himself only.

¶43

After hearing the parties, the learned Court below proceeded on to decree the suit in favour of the plaintiff and directed the defendant to get the sale deed executed in favour of the plaintiff after receiving the remaining consideration amount within a period of two months and further restrained the defendant from alienating the suit property. Aggrieved against the said judgment and decree dated 23.03.2022, the present regular appeal has been preferred.

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Learned counsel for the petitioner while making submission qua the findings of the learned trial Court on issue No.1, submitted that the same is totally contrary to the material available on record. Learned counsel submitted that the plaintiff failed miserably to prove on record the factum of the amount of Rs.9,00,000/- being given to the defendant on 20.08.2016 and therefore, when receipt of the consideration amount by the defendant was itself not proved, the agreement itself, of which specific performance was sought, was void. Hence, no specific performance of a void document could have been ordered for.

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Learned counsel further submitted that as per the version of the plaintiff the consideration amount of Rs.9,00,000/- was paid to the defendant by her husband and her husband did not come in the witness box. Therefore, in absence of examination of her husband, the complete alleged agreement vitiates and the factum of the payment of consideration amount cannot be said to be proved on record. Therefore, the finding as arrived at by the Court below being totally erroneous deserves to be set aside.

¶49

The second ground raised by learned counsel for the appellant is that the present was a suit for specific performance of the contract wherein the proof of readiness and willingness by the plaintiff was a sine qua non . In the present matter, the plaintiff has utterly failed to prove her readiness and willingness to perform her part of the contract and therefore on her failure to prove so, the defendant could not have been directed to perform his part of the contract, if any. Learned counsel submitted that it was the specific admission of the plaintiff herself that she did not have the remaining consideration amount of Rs.55,000/- on the

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date fixed for registration of the sale deed, which fact itself was sufficient to prove against her readiness and willingness.

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In support of his submissions learned counsel relied upon the Apex Court judgments in Sukhwinder Singh Vs. Jagroop Singh & Anr.; AIR 2020 SC 4865 and Kalawati (D) Through LR’s & Ors. Vs. Rakesh Kumar & Ors.; AIR 2018 SC 960.

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Per contra, learned counsel for the respondent submitted that the execution of the agreement dated 19.07.2017 and the endorsement for extension of the time for execution of the sale deed were the facts admitted on record and therefore, in view of the admitted facts, the plaintiff had successfully discharged her burden. Learned counsel submitted that once the document dated 19.07.2017 was admitted, the contents thereof would also be deemed to be admitted and therefore, the receipt of the consideration amount of Rs.9,00,000/- being an admitted fact, cannot be disputed by the defendant. Learned counsel further submitted that had the agreement dated 19.07.2017 been a sham document, the defendant would not have agreed for registration of the said document and further for extension of time, in writing, to comply with the conditions of the said document. The factum of extension of date to 11.12.2017 for execution of the sale deed has also not been denied by the defendant and therefore, the finding as reached by the Court below on issue No.1 does not deserve any interference.

¶56

So far as the readiness and willingness of the plaintiff is concerned, learned counsel submitted that when the defendant himself admitted execution of the agreement dated 19.07.2017 and the extension of date for execution of the sale deed to

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11.12.2017, nothing remained to be proved further by the plaintiff and therefore, the readiness and willingness were implied. Learned counsel submitted that the plaintiff had, beyond reasonable doubt, proved on record that on 11.12.2017, she had in her possession the complete remaining consideration amount and was ready to pay the same to the defendant so that the sale deed could be executed in her favour. Therefore, the findings as reached by the Court are totally in consonance with the material available on record and the same deserve to be affirmed. In support of his submissions learned counsel relied upon the Apex Court judgments in P. Ramasubbamma Vs. V. Vijaylakshmi & Ors.; (2022) 7 SCC 384 and Leeladhar (D) Thr. Lrs. Vs. Vijay Kumar (D) Thr. Lrs. And Ors.; AIR 2019 SC 4652.

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In rejoinder, learned counsel for the appellant submitted that this is a specific case of admission vs. admission and the question would be-Which of the admission can be relied upon? As per the plaintiff, the ‘agreement to sell’ was an admitted document which was registered before the Registrar i.e. an admission of the defendant before the Registrar and on the other hand is the admission of the plaintiff before the Court that she did not have the remaining consideration amount on the date fixed for execution/registration of the sale deed. Learned counsel submitted that the admission of the plaintiff while deposing before the Court would be the one to be relied. The fact that the possession was not handed over to the plaintiff ever would also gain relevance in the given circumstances.

¶62

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

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The whole controversy in the present matter revolves around issue No.1- Whether the defendant after receiving an amount of Rs.9,00,000/- on 20.08.2016, executed the agreement to sell dated 19.07.2017 in favour of the plaintiff.

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Regarding the factum of receipt of an amount of Rs.9,00,000/- on 20.08.2016 by the defendant, evidence as led by the plaintiff is as under:-

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PW-1 plaintiff Charanjeet Kaur, in her affidavit deposed as

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under:-

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“ r;”kq)k reke jkf”k esa ls ¼izfroknh½ fedj@foØsrk us [kjhnnkj fedjk ls eq0 9]00]000@& :i, v[kjs ukS yk[k :i, fnukad 20&08&2016 dks izkIr dj fy;s Fks rFkk “ks’k jkf”k eq0 55]000@& :i, v[kjs ipiu gtkj :i, fedj ¼izfroknh½ fu;r fnukad 20&11&2017 dks [kjhnnkjk fedjk ls izkIr djds jftLVªh cS;ukek [kjhnnkjk fedjk vFkok [kjhnnkjk fedjk ftlds gd esa pkgsxh] rgjhj o rdehy djok nsxk rFkk fdlh izdkj ls vkuk dkuh ugha djsxkA ”

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In her cross-examination she stated as under:-

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“ ftl fnu fy[kk i<h gqbZ] ml fnu ¼ukS½ 9 yk[k :- dh jkf”k esjs }kjk izfroknh dks nh xbZ FkhA tks 9 ¼ukS½ yk[k :i;s dh jkf”k fy[kk i<h okys fnu nh xbZ og gekjs ?kj iM+h Fkh] tks tehu cspdj j[kh gqbZ FkhA ftl fnu izn”kZ&1 fy[kk x;k] mlh fnu gh lkjh “krsZ tehu foØ; dh r; gqbZ Fkh] vkSj mlh fnu jkf”k 9 ¼ukS½ yk[k :- nh xbZ FkhA ”

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Further in her cross-examination she stated as under:-

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“ izn”kZ&1 dh fy[kk i<h ds fnu esjs }kjk 9 ¼ukS½ yk[k :- dh jkf”k izfroknh dks eSaus ugha nh] cfYd esjs ifr ml fnu nqdku ij nsds vk, Fks] tks esjs lkeus ugha nh xbZA ml fnu ;kfu izn”kZ&1 okys fnu euthr flag gekjs ?kj vk;k Fkk] vkSj dgk fd eq>s 9 ¼ukS½ yk[k :- dh jkf”k pkfg,A fQj esjs ifr mls nqdku ij nsdj vk,A ”

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PW-2 Gurjeet Singh in his affidavit deposed as under:-

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“ euthr flag us bl ckr dks Lohdkj fd;k Fkk fd eSusa 9]00]000@& :i;s fnukad 20-08-2016 dks gh izkIr dj fy;s Fks rFkk “ks’k jkf”k 55]000@& :i;s fnukad 20-11-2017 dks izkIr djds ugjh d`f’k Hkwfe dh jftLVªh pj.kthr dkSj ds gd esa fu’ikfnr djok nsxkA ”

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In his cross-examination he admitted as under:- “ fnukad 19@7@17 dks okfn;k us vius ifr ls 9]00]000@& :i;s dh jkf”k ysdj izfroknh dks nh FkhA ”

¶81

A bare perusal of the above statements makes it clear that there are stark contradictions in the statements of the witnesses regarding the factum of payment of Rs.9,00,000/- to the defendant. The whole case of the plaintiff in the plaint was that the amount of Rs.9,00,000/- was received by the defendant in the year 2016 in advance and the ‘agreement to sell’ was executed on 19.07.2017 whereas in her cross-examination the plaintiff stated the amount to be given to the defendant on the date when the agreement to sell was executed. Further improving her version she stated that the amount was not given by her to the defendant but it was given by her husband and that too on the shop of the defendant. She specifically admitted that the said amount was not given by her husband to the defendant in front of her. PW-2 Gurjeet Singh, who is the brother-in-law of the plaintiff, stated in his evidence that the amount was given by the plaintiff to the defendant on 19.07.2017 which was taken by her from her husband as a loan. Overall reading of all the above statements proves the complete story of the plaintiff to be untrue. The plaintiff herself at one instance states the amount to be given to the defendant by herself and on the second instance states the same to be given by her husband and that too not in front of her. Most important aspect is that in her cross-examination, the plaintiff made a statement total contrary to that in the plaint. In her cross-examination she specifically stated more than twice that the amount was given to the defendant on the date when the

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agreement to sell was executed i.e. 19.11.2017. In the plaint and in the affidavit (chief examination), the said date has been mentioned to be 20.08.2016 and it had been pleaded that the consideration amount was paid in advance. Therefore, the factum of payment of Rs.9,00,000/- to the defendant qua the consideration for the ‘agreement to sell’ cannot be said to be proved on record. On the contrary, the case of the defendant proves to be more plausible one. The defence of the defendant that a loan was taken by him from the plaintiff is rather substantiated by the statements of PW-2 Gurjeet Singh who specifically admitted that on 20.11.2017, the defendant did not get the sale deed executed as on that date he promised to return the complete amount taken from the plaintiff and her husband. The witness further admitted that the plaintiff and her husband Inderjeet Singh were ready to accept the amount from the defendant if he paid/returned the same. PW-2 Gurjeet Singh deposed as under:-

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“ fnukad 20@11@17 dks euthr flag us dgk fd esjs pkpk th dukM+k ls vk jgs gS eSa vkidks iSls okfil dj nawxk vkSj blfy, mlus ml fnu jftLVªh ugha djokbZA fnukad 20@11@17 dks izfroknh us dgk fd ftrus iSls mlus bUnzthr o pj.kthr dkSj ls fy, gSa og lc okfil dj nsxkA okfn;k vkSj bUnzthr flag okfil iSls ysus ds fy, rS;kj FksA ”

¶87

He further stated as under:-

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“ euthr flag okfn;k ,oa mlds ifr ls jkf”k;ka ysrk jgrk Fkk ysfdu eq>s ;s ugha irk dh og jkf”k m/kkj ysrk Fkk ;k dksbZ lkeku j[kdj ys tkrk FkkA ”

¶89

The above statements makes it clear that some loan amount was taken by the defendant from the plaintiff and her husband and the same was not repaid by the defendant to them. On the

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promise to repay the complete amount back, the plaintiff extended the time for execution of the sale deed.

¶94

The learned trial Court has although taken into consideration the discrepancies in the statement of the plaintiff regarding the date of payment of the amount of Rs.9,00,000/-, the date of execution of the document Ex.-1 and the dates fixed for registration but proceeded on to ignore the same on the ground that the plaintiff was an illiterate female and such discrepancies in her statements are natural. The said findings of the learned Court cannot be upheld as, in the specific opinion of this Court, in view of the above analysis, the plaintiff has utterly failed to prove the factum of payment of Rs.9,00,000/- to the defendant as consideration and has failed to discharge her burden. Therefore, the finding qua issue No.1 is hereby set aside and the issue is decided against the plaintiff.

¶95

Regarding issue No.3 as framed by the Court below regarding the readiness and willingness of the plaintiff to get the agreement executed and sale deed registered in her favour, the Court below has reached to a specific finding that as the contents of the agreement dated 19.07.2017 and the time extension for registration of the document till 10.12.2017 are admitted on record, the averments of the plaintiff that she was present at the office of the Sub-Registrar with the remaining consideration amount of Rs.55,000/- cannot be disbelieved. Further when the defendant did not produce himself in the office of Sub-Registrar on 11.12.2017, notice dated 12.12.2017 was served on him on the very next date which showed the clear intention of the plaintiff to pay the remaining consideration amount and get the sale deed

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registered in her favour. The learned Court further held that the acceptance of the receipt of the notice Ex.-3 and no response thereof by the defendant were sufficient to prove that the defendant was not willing to perform his part of the contract whereas the plaintiff was.

¶100

Before adverting into the facts of the present case on Issue No.3, the reiteration of basic principles of law as settled by the Hon’ble Apex Court qua “readiness and willingness” would be of utmost relevance. In J.P. Builders and Anr. Vs. A. Ramdas Rao and Anr.; (2011) 1 SCC 429 , the Hon’ble Apex Court held as under:-

¶101

“22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. 23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao at SCC para 5, this Court held:

¶102

“5. ...Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. 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 the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract.”

¶107

Keeping in view the above principles of law, an analysis of the evidence available on record qua “readiness and willingness” would be relevant. The statements of the plaintiff regarding her capacity to pay and availability of the consideration amount are as under:-

¶108

“esjs ikl viuh futh vk; dk dksbZ L=ksr ugh gSA”

¶109

“bdjkjukek fy[kus ds ¼nks½ 2 o’kZ ckn rd ¼fipiu½ 55000@& dh jkf”k /khjs&2 dekbZ ds iSls cpkdj o fj”rsnkjksa ls ysdj rS;kj fd;s FksA eSus 55000@& ¼fipiu gtkj½ ls 2&4 gtkj :- dh jkf”k rS;kj dh FkhA vkSj dksbZ iSlk esjs ikl ugha FkkA”

¶110

She further stated in her cross-examination as under:-

¶111

“fookfnr d`f’k Hkwfe 2 yk[k ¼nks½ : izfr ch?kk ds fglkc ls [kjhn dh xbZ FkhA”

¶112

A perusal of the above statements shows that the plaintiff specifically admitted that after the date of the execution of the

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agreement to sell, she continuously saved and collected an amount of Rs.55,000/- in period of two years from the said date. Admittedly, the agreement to sell was executed on 19.07.2017 and the date fixed for the execution and registration of the sale deed was 20.11.2017. Meaning thereby the date fixed for execution of the sale deed was after a period of four months from the execution of the agreement to sell. Admittedly, the plaintiff did not have the amount of Rs.55,000/-, that is the remaining consideration amount, on that date as, as per her version only the said amount was collected within a period of two years from the date of agreement to sell. Further, the plaintiff stated that the land was agreed to be purchased at the rate of Rs.2,00,000/- per bigha and the land to be purchased was admittedly 8 Bighas. Then how the agreement for 8 bighas of land @Rs.2,00,000/- per bigha was entered into for an amount of Rs.9,50,000/- is also not clear on record.

¶117

In Vijay Kumar’s case (supra), while dealing with similar facts, the Hon’ble Apex Court specifically held that the party praying for specific performance of a contract has to prove on record the availability of balance sale consideration on the date when it was required to be paid.

¶118

In Sukhvinder Singh’s case (supra), the Hon’ble Apex Court held as under:-

¶119

“The suit being the one for specific performance of the contract on payment of the balance sale consideration, the readiness and willingness was required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted.

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……………Even if the amount had been deposited as on the date of filing the suit, the readiness and willingness with possession of the sale consideration as on 5.6.2004 was necessary to be proved, which has not been done. Hence, in our opinion the Courts below have not appropriately considered this aspect of the matter.”

¶124

In Kalavati’s case (supra) while elaborately dealing with the aspect of readiness and willingness the Hon’ble Apex Court observed as under:-

¶125

“In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526 this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in paragraph 2 of the Report:

¶126

“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised...… The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer

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from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.””

¶131

In view of the above ratio as laid down by the Hon’ble Apex Court and upon an analysis of the facts of the present appeal, this Court is of the clear opinion that the plaintiff was not in position to pay the balance consideration to the defendant on 12.11.2017 and therefore by necessary implication, it must be held that she was neither ready nor willing to perform her part of the contract. The finding of the Court below on Issue No.3 therefore, cannot be upheld and the same is set aside.

¶132

As finding on issue No.1 has been reversed by this Court, issue No.2, as a necessary corollary, is also decided against the plaintiff as in view of the finding on issue No.1, the plaintiff cannot be held entitled to get the specific performance of the agreement dated 19.07.2017 in her favour. Consequently, the finding on issue No.4 also cannot be upheld and the same is reversed. As the plaintiff has not been held entitled for specific performance of the agreement, she cannot also be held entitled for an injunction in her favour so as to restrain the defendant from alienating the property.

¶133

So far as the judgment of P. Ramasubbamma (supra) relied upon by learned counsel for the respondents is concerned,

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that was a case wherein the execution of the agreement as well as the payment of the substantial amount under the agreement was admitted by the vendor. On the basis of the said admission the Hon’ble Apex Court held that once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration, no further evidence or proof was required. The said ratio would not apply to the present matter as herein, the defendant specifically denied the receipt of any sale consideration under the agreement in question. Moreover, herein is a case where the plaintiff has miserably failed even to prove the payment of the said sale consideration.

¶138

Although, the finding on all the issues has been reversed by this Court, the Court cannot loose sight of the fact that it was an admitted case of the defendant that he had taken a loan of Rs.2,00,000/- from the plaintiff’s husband and the same remained unpaid.

¶139

True it is that no amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues. But then, as held in J.P. Builders’s case (supra) it is the duty of the Court to mould the relief so as to render substantial justice to the parties.

¶140

Although no prayer in alternate, for recovery of the amount of Rs.2,00,000/- has been made by the plaintiff in the present suit, but as the same is a fact admitted by the defendant, in order to render substantial justice, the said relief deserves to be granted to the plaintiff.

¶141

In view of the above analysis on all the issues, this Court does not find any ground to affirm the judgment as passed by the

(18 of 18)

[2023/RJJD/007386]

[CFA-245/2022]

learned trial Court and the same is therefore reversed. The judgment and dated 23.03.2022 is hereby set aside and the suit of the plaintiff qua the relief of specific performance of contract and permanent injunction is dismissed. However, the suit is decreed in favour of the plaintiff for an amount of Rs.2,00,000/with interest @12% per annum from the date of filing of the suit till the date of payment. The defendant is directed to pay the said amount to the plaintiff within a period of two months failing which the same would carry an interest @18% per annum.

¶146

The appeal is accordingly disposed of.

¶147

The stay petition and all pending applications also stand disposed of.

¶148

(REKHA BORANA),J

¶149

71-AbhishekS/-

Manjeet Singh v. Charanjeet Kaur

Case brief

What is this about?

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Manjeet Singh v. Charanjeet Kaur

Case brief

What is this about?

What did the court decide?

What the court decided

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