Time as Essence of Contract - Plaintiff's Failure to Prove Readiness and Willingness - Unjust Enrichment

JUDGMENT :

Goutam Bhaduri, J.

1. Challenge in this appeal is to the judgment and decree dated 4-5-2017 passed by the First Additional District Judge, Durg, in civil suit No.41-A/2009 whereby the suit for specific performance brought by the plaintiff/appellant was dismissed.

2. The facts, in brief, as pleaded by the plaintiff/appellant, are that the defendant No.1 owns land bearing khasra No.179 area 1.95 hectares situated at village Basin, PH No.11, R.I. Circle Durg-1, Tahsil & District Durg. The said land was agreed to be sold for a sum of Rs.10.00 lacs and on 16-1-2007 an amount of Rs.1,51,000/- was paid as an earnest money. Thereafter, an agreement was executed on 8-2-2007 in presence of the witnesses wherein it was agreed that the remaining amount of sale consideration would be paid at the time of execution of sale deed. The plaintiff pleaded that at the time of agreement, the defendant agreed to get the land demarcated and would show the original title deed i.e. land papers before the actual sale. The plaintiff further pleaded that he was always ready and willing to perform his part of contract by paying the rest part of sale consideration and to get the sale deed executed, but the defendant never agreed to it. The plaintiff also pleaded that subsequently he came to know that despite receiving Rs.1,51,000/- as an earnest money the defendant wanted to sale the land to someone else as such public notice was made in the newspaper on 15-10-2007 followed by a registered notice on 16-10-2007 to get the sale deed registered, but eventually the defendant failed, therefore, the suit was filed.

3. The case of the defendant No.1/respondent No.1 was that the agreement was executed with one Anil Gupta whereas the suit was filed by one Ashish Gupta and therefore, the service of notice to the defendant on behalf of Ashish Gupta was of no consequence. It was further pleaded that by putting whitener over the agreement name of the purchaser was changed as Ashish Gupta. On 14-9-2007 the defendant had sent a notice to Anil Gupta to get the sale deed registered but eventually the sale deed was not executed. Under the circumstances, the plaintiff herein i.e. Ashish Gupta is not entitled for decree of specific performance.

4. Learned Court below framed primarily six issues and found that the plaintiff has failed to prove his readiness and willingness and execute the sale deed and eventually dismissed the suit. Hence, this appeal.

5. (a) Mr. B.P. Singh, learned counsel appearing with Mr. Sudhansu Kumar Singh, learned counsel for the appellant, would submit that the conduct of the parties in the likewise cases would be of utmost important. He would further submit that the contents of the notice (Ex.P/2) would show that the defendant was called upon to execute his part of agreement, but he did not do so and the plaintiff was ready and willing to perform his part of contract. He would also submit that in the written statement before the Court entire execution of the agreement was denied, therefore, the defendant could not have taken the pleading that the plaintiff is not ready and willing to perform his part of contract. He would place reliance upon the decision rendered by the Supreme Court in Kadupugotla Varalakshmi v Vudagiri Venkata Rao & Others, 2021 SCC OnLine SC 365.

(b) Learned counsel for the appellant would next submit that on the one hand the defendant denied existence of agreement, but on the other hand the trial Court proved that the agreement was executed on 8-2-2007, therefore, it would be a contrary finding. Referring to the notice, he would submit that the contents of the same would demonstrate the fact that the plaintiff was ready and willing to execute his part of contract. Further referring to the decision of the Supreme Court in the matter of Silvey and Others v Arun Varghese and Another, (2008) 11 SCC 45 he would submit that when the false plea has been taken by the defendant about non-execution of the agreement then conduct of the p