2001 Supreme(Cal) 293

High Court Of Calcutta
Altamas Kabir, Pranab Kumar Chattopadhyay
SK.ROUSHAN ALI ALIAS ANWAR - Appellant
Versus
KAJI ABDUL JALIL - Respondent
FIRST APPEAL 361  Of  1991
Decided On : 05/18/2001

The standard of proof required in a civil action is much less than in a criminal action. In a civil action, the existence of a fact would depend on the probability as to whether such fact existed.

Headnote:

SPECIFIC PERFORMANCE OF CONTRACT - SALE OF PROPERTY - CONSIDERATION - READINESS AND WILLINGNESS TO PERFORM - STANDARD OF PROOF - SPECIFIC RELIEF ACT, 1963, SECTION 16(C).

Fact of the Case:

Plaintiff and defendant entered into an agreement for sale of the suit property for Rs. 1,01,000/-. Plaintiff paid Rs. 5,001/- as earnest money and handed over the original Title Deed of the suit premises to the plaintiff. Plaintiff also paid further payment of Rs. 22,000/- for payment of arrear municipal rates and taxes and for obtaining Income Tax Clearance Certificate. Plaintiff investigated the defendant's title to the suit property and caused newspaper publication regarding sale of the property. Defendant declined to complete the sale transaction on the ground that he had not been able to procure the clearance certificate from the Income Tax authorities and the municipal dues were yet to be paid. Plaintiff paid a further sum of Rs. 19,000/- to the defendant towards the balance consideration amount and the defendant promised to complete the sale at an early date. Plaintiff sent legal notice to the defendant which were replied to, but the defendant failed and neglected to complete the sale of the suit property in the plaintiff's favour inspite of having received in all a sum of Rs. 46,001/- out of the total consideration amount. Defendant contested the suit by filing written statement and his main contention was that the total consideration for the sale of the suit property was fixed at Rs. 2,01,000/- and not Rs. 1,01,000/- as contended by the plaintiff.

Finding of the Court:

1. The plaintiff has proved that the sale price was actually settled at Rs. 1,01,000/- and not at Rs. 2,01,000/-. 2. The standard of proof applied by the learned Court below was erroneous and the learned Court below resorted to an erroneous approach in observing that under section 16 (c) of the Specific Relief Act the plaintiff was required to prove beyond all reasonable doubt that he was ready and willing to perform his part of the contract.

Issues: 1. Whether the sale price was actually settled at Rs. 1,01,000/- or Rs. 2,01,000/-? 2. Whether the plaintiff was ready and willing to perform his part of the contract?

Ratio Decidendi: 1. The Agreement for sale in its draft form and in its final form have both been exhibited in this case. While the original Agreement (exhibit 2) was produced by the plaintiff, the draft Agreement, which had been handed over to the defendant, was produced by the defendant and marked Exhibit 'a'. The former contains the sale price of Rs. 1,01,000/- said to have been agreed upon between the parties, while in the draft Agreement the said portion has been left blank. 2. The case of the defendant in his written statement is that the relevant portion of the Sale Agreement, where the sale price was to be mentioned had been kept blank and inspite of repeated assurances by the plaintiff/appellant that the same would be filled up to show the agreed sale price of Rs. 2,01,000/-, the blank portion was filed up by the plaintiff to show that the agreed sale price was not Rs. 2,01,000/- but Rs. 1,01,000/-. 3. In the written statement there is nothing to suggest that in the original Agreement for Sale (Exhibit 2) the sale price had been shown as Rs. 2,01,000/- and the same had been fraudulently tampered with to show the sale price was Rs. 1,01,000/- by substituting two of the pages of the original Agreement for Sale. 4. The defendant's failure to examine them as witnesses in support of the defence case, infact, gives rise to an adverse presumption against the defendant. 5. In the face of the evidence adduced on behalf of the plaintiff/appellant both oral and documentary, it is difficult to sustain the finding of the learned trial Court that the plaintiff had failed to prove that the sale price was actually settled at Rs. 1,01,000/- and not at Rs. 2,01,000/-. 6. The onus of proving that the state of affairs was different from what was apparent from the Agreement for Sale was on the defendant/respondent. In our view, the defendant has failed to discharge such onus. 7. Non-examination of Mr. Ansari may raise doubts, but that by itself would not be sufficient to disprove the evidence led by the plaintiff or prove the defendant's case that the sale price had been settled at Rs. 2,01,000/-. 8. Except for contending that the consideration amount had not been mentioned in the Agreement for Sale at the time of execution, the defendant has not led any supporting evidence in support of his claim that the sale price had been settled at Rs. 2,01,000/-. 9. The absence of the signatures of the parties to the Agreement in page 2 thereof may give rise to suspicion but the same is not sufficient to disprove the plaintiff's case. 10. As mentioned hereinbefore, the failure on the defendant's part to examine his own brother and brother-in-law, who were present during the negotiations and the preparation and execution of the Agreement for Sale, cuts at the root of the defendant's claim. 11. The standard of proof applied by the learned Court below was erroneous and the learned Court below resorted to an erroneous approach in observing that under section 16 (c) of the Specific Relief Act the plaintiff was required to prove beyond all reasonable doubt that he was ready and willing to perform his part of the contract. 12. There are sufficient materials on record to show that the plaintiff had made several efforts to conclude the sale and even caused legal notices to be sent to the defendant to accept the balance consideration and to execute a sale deed in his favour. 13. The learned trial Court had proceeded on the basis that the plaintiff did not have the means to complete that transaction for a sum of Rs. 2,01,000/-. Since we have held that the agreed sale price was Rs. 1,01,000/-, we are unable to agree with the observation of the learned trial Court that the plaintiff had no financial ability to purchase the property and that he avoided and deferred the final negotiation within the stipulated time and he ultimately came to the Court on a false pretext.

Final Decision: Appeal succeeds. The judgment and decree of the learned Court below is set aside and the plaintiff/appellant's suit for specific performance of contract in terms of the Agreement for sale dated 17th November, 1983, (Exhibit 2) stands decreed. The defendant/respondent is directed to execute and register a Deed of Sale in respect of the suit property in favour of the plaintiff/appellant upon receiving the balance consideration money on the settled price of Rs. 1,01,000/-, after deduction of the amounts already paid, within a month from date. In case of failure of the defendant/respondent to execute and register such sale deed, the Registrar General of this Court shall upon deposit with him by the plaintiff/appellant of the balance consideration amount, execute and register a Deed of Sale in favour of the plaintiff/appellant in respect of the suit property and the defendant/respondent shall be at liberty to withdraw and appropriate the sum so deposited with the learned Registrar General.