Specific performance: Agreement to sell – Execution of, by appellant-vendor in favour of respondent-vendee for a sale consideration – Payment of part consideration by the respondent and remaining amount was to be paid within three months – Appellant agreed to execute the sale deed after measuring the suit land – However, respondent did not supply the original sale deed as also the order of the tribunal that appellant is holding an excess land – Suit by respondent for decree for specific performance of the agreement to sell and in the alternative refund of advance of sale consideration with interest – Suit decreed by the trial court directing the appellant to execute a sale deed in favour of the respondent – Decree upheld by the High Court – On appeal, held: Courts below rightly held that it was the appellant who did not perform her part of the contract – Failure on the part of the respondent to demonstrate that he was having sufficient money with him to pay the balance sale consideration under the agreement by the date of his evidence not much of consequence – Even otherwise the respondent deposited the entire balance sale consideration as directed by the trial court – It cannot be said that the respondent was not ready and willing to perform his part of the contract – It is to be considered that as and when respondent was called upon to make the deposit, he deposited the amount to show his bonafides or not – Furthermore, appellant cannot be permitted to raise plea on hardship – Thus, the decree for specific performance of the agreement to sell by the courts below, upheld.
Dismissing the appeals, the Court
HELD: 1.1 On facts, till the land was measured and the final amount was arrived at, there was no obligation on the part of the vendee-plaintiff to deposit/pay the balance sale consideration. It is required to be considered along with the fact that all throughout the vendee was insisting that the original sale deed in favour of the vendor be given to the vendee and that the final certificate issued by the tribunal be shown and given to the vendee. It is an admitted position that copy of the sale deed was not given to the vendee. However, it was the case on behalf of the defendant-vendor that the plaintiff was informed that the original sale deed is produced in the court in the proceedings initiated by the YS predecessor-in-title and therefore, the vendee may get the copy from that court. Nothing is on record on which date the vendor delivered to the vendee the land ceiling papers. The land in question was subjected to the land ceiling proceedings. The vendor-defendant purchased the suit property by sale deed dated 6.10.1971 from YS the husband of the sister of the vendor. From the evidence, it appears that YS was also claiming the ownership over the land in question. Dispute was that YS executed the sale deed in favour of the defendant-vendor with a view to see that the land is not declared as excess land under the Land Ceiling Act. It has come on record that the tribunal held in favour of the vendor and the transaction in her favour was found to be bonafide. However, the said YS was also continued to claim the ownership which was not accepted by the land Tribunal. That is why, the vendee- plaintiff was insisting to deliver the land ceiling papers. The conduct on the part of the plaintiff-vendee to insist for the original sale deed in favour of the vendor and the delivery of the land ceiling papers was natural. Any prudent person who was to purchase the property would definitely insist for the title papers, so as to be satisfied that the title is clear. Before the trial court, the defendant did not produce any final order/certificate issued by the land tribunal, which came to be produced for the first time before the High Court along with the application for additional evidence under Order 41 Rule 27 CPC. The High Court permitted the appellant to produce the proceedings of the tribunal. The same came to be considered by the High Court. That on appreciation of evidence and considering the document Ex. B1-copy of a certified copy of the order of the Land Reforms Tribunal, the High Court has specifically observed that it cannot positively be said that the original of Ex. B1 was available with the vendor by the date of Ex. A1. Therefore, the High Court observed that the contention of the appellant that the respondent was shown the document relating to land ceiling clearance at the time of Ex. A1 cannot be believed or accepted. The said is the finding recorded on appreciation of evidence. Therefore, the trial court and the High Court specifically observed and held that the buyer insisted on the seller producing all the documents necessary for making out a complete chain of his/her title. [Para 10] [502-C-H; 503-A-E]
1.2 On conjoint reading of Ex. A1 and the reply to the notice by the defendant dated 14.04.1987 and the cross-examination of the defendant-vendor, both the trial court and the High Court rightly observed and held that it was the appellant-vendor that did not perform her part of the contract. Once, the finding is recorded that it was the appellant- vendor that did not perform her part of the contract, thereafter as rightly observed by the High Court, the failure on the part of the vendee to “demonstrate” that he was having sufficient money with him to pay the balance sale consideration under Ex. A1 by the date of his evidence is not much of consequence and the contention of the appellantvendor that the respondent- vendee was not ready and willing to perform his part of the contract cannot be believed or accepted. The said finding was confirmed by the High Court. Even otherwise, it is required to be noted that the plaintiff deposited the entire balance sale consideration as directed by the trial court within the extended period of time. As it was submitted on behalf of the defendant before the trial court that the plaintiff does not have any capacity to pay the balance sale consideration, to test his bonafides the trial court directed the plaintiff to deposit the balance sale consideration which the plaintiff did deposit. Merely because the said amount was deposited out of the fund/amount received by him by selling the property in the year 1993, by that itself cannot be presumed and/or inferred that at the time of execution of the agreement to sell and/or thereafter even at the time of the notice, the plaintiff was not having sufficient fund to pay the balance sale consideration. An agreement to sell is dated 30.12.1985 and the plaintiff was directed to deposit the amount in the year 1993. It is not expected from the plaintiff that he would continue to deposit the same with the bank all these years. What is required to be considered is as and when he is called upon to make the deposit, he has deposited the amount to show his bonafides or not? [Para 10] [503-F-H; 504-A-D]
1.3 The plea raised on behalf of the defendant-vendor on hardship to be caused if the decree of specific performance of the contract is passed against the vendor cannot be permitted to be raised now, when no such plea was raised in the written statement. [Para 11] [504-E-G]
A. Maria Angelena v. A.G. Balkis Bee AIR 2002 SC 2385 – relied on.
1.4 The judgment and decree passed by the trial court for specific performance of the agreement to sell confirmed by the High Court is upheld. [Para 13]
K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1 : [1997]
1 SCR 993 ; P.R.Deb and Associates v. Sunanda Roy (1996) 4 SCC 423 : [1996] 3 SCR 163 ; Padmakumari v. Dasayyan (2015) 8 SCC 695 : [2015] 5 SCR 56 – distinguished.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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