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1964 Supreme(Pat) 143
PATNA HIGH COURT
K.Ahmad, J.
Chandrabali Shah
Versus
Pritam Singh
Appeal From Appellate Decree No. 1005 of 1962 ;
Decided On : SEPTEMBER 29, 1964
A plaintiff in a suit for specific performance must allege, and if the fact has been traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of hearing to perform the contract on his part.
Headnote:
SPECIFIC PERFORMANCE - CONTRACT FOR SALE OF LAND - READINESS AND WILLINGNESS TO PERFORM - CONTINUOUS READINESS AND WILLINGNESS FROM DATE OF CONTRACT TO TIME OF HEARING - PLAINTIFF'S AVERMENT IN PLAINT - TRAVERSED BY DEFENDANT - NO ASCERTAINED FIXED CONSIDERATION - RATE PREVAILING IN MARKET - DIFFERENCE OVER RATE - CONFLICTING CONSTRUCTION OF TERMS OF CONTRACT - NO NON-BONA FIDE ATTEMPT TO MINIMISE OR EXAGGERATE OBLIGATION - WILLINGNESS EXPRESSED IN PLAINT FOR PAYMENT OF BALANCE - ALTERNATIVELY IN TERMS "AS THE COURT MAY DEEM PAYABLE FOR THE AGREED SALE" - NO RIGIDITY IN TERMS OF PLAINTIFF'S CALCULATION ALONE - CLAIM AS TO PAYMENT OF ADDITIONAL SUM - EFFECT OF BRINGING DOWN BALANCE OF CONSIDERATION - NO EVIDENCE OF PLAINTIFF'S INTENTION TO MAKE PAYMENT NOT ACCORDING TO CONTRACT AS IT STOOD - DISPUTE ABOUT ITEM OF PAYMENT - NO EFFECT ON WILLINGNESS EXPRESSED IN PLAINT - APPEAL DISMISSED.
Fact of the Case:
Plaintiff filed a suit for specific performance of a contract for the sale of 15 kathas of land. The defendant denied the existence of a concluded contract and claimed that the plaintiff had not paid the full consideration. The trial court dismissed the suit, but the lower appellate court decreed the suit in part, holding that there was a concluded contract on 3rd January 1959, and that the plaintiff was entitled to specific performance subject to payment of Rs. 8500.00 more to the defendant.
Finding of the Court:
The court found that there was a concluded contract between the parties on 3rd January 1959, but that there were omissions in the contract in regard to the time of sale and the price of land. The court also found that the plaintiff had paid only Rs. 1000.00 to the defendant towards the price of land and not Rs. 3,000/- as claimed by the plaintiff.
Issues: 1. Whether there was a concluded contract between the parties for the sale of the land in suit? 2. Whether the plaintiff had paid the full consideration for the land? 3. Whether the plaintiff was entitled to specific performance of the contract?
Ratio Decidendi: The court held that the plaintiff was entitled to specific performance of the contract, subject to payment of Rs. 8500.00 more to the defendant. The court reasoned that the plaintiff had expressed his willingness to pay the balance of the consideration money, as the court may deem payable for the agreed sale. The court also held that the plaintiff's claim as to the payment of an additional sum of Rs. 2,000.00 did not affect his willingness to perform his part of the contract as it stood.
Final Decision: The court dismissed the appeal, but in the circumstances of the case, there was no order for costs.
K.Ahmad, J.
1. This appeal is by the defendant. It arises out of a suit for specific performance of contract for sale in respect of 15 kathas of land out of municipal survey plot No. 2057/C bearing new municipal holding No. 1459 in the Municipality of Ranchi. The total area of this survey plot No. 2057/C is .82 acre. It appears that this plot was originally a ditch but recently it has now been all got filled up by the defendant who is its admitted owner. The defendant is at present a partner of Dhiman and Company along with one N. R. Dhiman. The case of the plaintiff is that there was a contract for sale made between the parties with respect to the aforesaid 15 kathas of land in two parts. The first part of the contract, according to the plaintiff was in respect of 10 kathas of the land, 5 kathas constituting the front portion and the other 5 kathas the back portion of the aforesaid plot.
This part of the contract is said to have been completed in December 1958. Therein the price of 5 kathas of the front portion is said to have been settled for Rs. 3250.00 that is at the rate of Rs. 650.00 per katha and that of the back portion of 5 kathas at Rs. 2,250/-, that is to say, at the rate of Rs. 450.00 per katha. According to the plaintiff, this part of the contract was negotiated on behalf of the defendant by N. R. Dhiman who is said to have on its conclusion received a sum of Rs. 500/-as earnest money for the same and thereafter to have sent to the plaintiff a telegram and a letter both dated 17th December, 1958, on behalf of the defendant in confirmation of it and further demanding therein the balance of Rs. 5000.00 along with the necessary registration cost for its final completion. At this the plaintiff is said to have gone to Ranchi ready for the completion of the sale deed but on arrival there he found that the ditch was not yet filled up as was undertaken by the defendant at the time of the contract. Therefore, the finalisation of the sale deed was for the time being postponed till the ditch was got completely filled up.
2. Thereafter, it is said the second part of the contract was concluded on the 3rd January, 1959, but this was done directly between the parties. Thereunder not only the first part of the contract was affirmed but also the rest of the 5 katha land in suit was agreed to be sold by the defendant to the plaintiff at the rate of Rs. 450.00 per katha. A further sum of Rs. 500.00 is also claimed to have been then paid by way of advance towards the total price of all these lands and in proof thereof there was a separate receipt as well granted on that very date. It is, however, said that as the work over the ditch was not progressing satisfactorily, there was a further sum of Rs. 2,000.00 paid by the plaintiff to the defendant sometime in February 1959 by way of advance towards the total consideration of the entire contract and this time it was clearly understood between the parties that the work over the ditch would be definitely completed by March and the contract thereafter finalised in April, 1960. Accordingly on 15-4-1960 the plaintiff is said to have gone to the defendant for the final execution of the sale deed. But now the defendant is said to have totally refused to do it unless the plaintiff was willing to increase the price of land to Rs. 1000/-per katha. This the plaintiff did not accept and thereafter on service of notice both on the defendant and N. R. Dhiman for the performance of their part of the contract, he instituted the present suit for the specific performance of the entire contract.
3. In answer to the suit, there were a number of picas raised by the defendant. In substance, the defence taken was that there was never any contract concluded between the parties for the sale of the lands in suit, and the talk that was there was still in a stage of negotiation. And even if there was any that was not enforceable in law inasmuch as the first part of the contract was entered into on behalf o
