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High Court Of Himachal Pradesh
KAMLESH SHARMA,SURINDER SARUP
SHRI KRISHAN SWARUP BHATNAGAR - Appellant
Versus
CHANDER MOHAN REWAL - Respondent
First Appeal No. 115 of 1998 and C.M.P. No. 298 of 1998
Decided On : 08/18/1999
SPECIFIC PERFORMANCE OF CONTRACT - SALE OF PROPERTY - AGREEMENT - CONSTRUCTION - INTERPRETATION - SECTION 16(C) OF THE SPECIFIC RELIEF ACT - READINESS AND WILLINGNESS TO PERFORM THE CONTRACT - ESSENTIAL TERMS OF THE CONTRACT - REPUDIATION OF CONTRACT - SECTION 20 OF THE SPECIFIC RELIEF ACT - DISCRETION OF THE COURT - CIRCUMSTANCES TO BE CONSIDERED.
Fact of the Case:
The plaintiff filed a suit for specific performance of the contract dated 25-8-1993 against the defendant, who is the owner of the suit property, for the sale of the suit property for Rs. 4 lacs. The defendant contested the claim of the plaintiff by asserting that he had offered the suit property for sale in two parts for a total consideration of Rs. 7 lacs and that he had never agreed to sell the suit property for a consideration of Rs. 4 lacs. The defendant also pleaded that the agreement dated 25-8-1993 was not a concluded and binding contract and it stood superseded and cancelled by the agreement dated 27-8-1993.
Finding of the Court:
The Court held that the agreement dated 25-8-1993 was a concluded and binding contract and it was not superseded by the agreement dated 27-8-1993. The Court also held that the defendant had repudiated the contract and the plaintiff was absolved from proving that he was ready and willing to perform his part of the contract. The Court further held that the decree for specific performance of the contract was rightly granted in favour of the plaintiff.
Issues: 1. Whether the property in dispute was agreed to be sold for an amount of Rs. 4 lacs pursuant to document in writing dated 25th of August, 1993 as alleged? 2. Whether earlier agreement dated 25th of August, 1993 was superseded by the subsequent agreement dated August, 27, 1993 and the property in question was agreed to be sold for an amount of Rs. 7 lacs as contended in the written statement of defendant No. 1 ? 3. Whether an amount of Rs. 30,000/- was paid to defendant No. 1 as advance towards the price settled by the plaintiff on 25th of August, 1993 as alleged, through defendant No. 2 ? 4. Whether the plaintiff is entitled to the specific performance of the contract in question ? If so, to what extent and on what terms 5. Whether alterations in the subsequent agreement dated 27-8-1993, were allegedly incorporated by mutual consent of the parties with respect to the sale of the property in dispute. If so, its effect?
Ratio Decidendi: 1. The Court held that the agreement dated 25-8-1993 was a concluded and binding contract and it was not superseded by the agreement dated 27-8-1993. The Court relied on the fact that the agreement dated 25-8-1993 was duly signed by the defendant and the cuttings made therein are admittedly in his handwriting and also initialled by him wherein the sale consideration is mentioned as Rs. 4 lacs out of which a sum of Rs. 30,000/- is said to have been received by the defendant and the balance consideration remains to be Rs.3,70,000/-. 2. The Court also held that the defendant had repudiated the contract and the plaintiff was absolved from proving that he was ready and willing to perform his part of the contract. The Court relied on the fact that the defendant had refused to accept the notices requiring him to execute the sale deed and get it registered by 26-10-1993 as per the terms of the agreement dated 25-8-1993. 3. The Court further held that the decree for specific performance of the contract was rightly granted in favour of the plaintiff. The Court relied on the fact that the plaintiff had been ready and willing to perform his part of the contract and had been in possession of requisite sale consideration in the entire month of October, 1993 and thereafter as well.
Final Decision: The appeal was dismissed with costs. The impugned decree and judgment dated 23-3-1998 passed by District Judge, Shimla was affirmed.
Kamlesh Sharma, J. :- Appellant is the defendant, whereas, respondent No. 1 is the plaintiff and respondent No. 2 is defendant No. 2 and they will be referred to as such in this judgment. This appeal at the instance of the defendant is against the decree and judgment dated 23-3-1998 passed by District Judge, Shimla whereby the suit of the plaintiff was decreed for specific performance of the contract dated 25-8-1993 against the defendant, who is directed to execute the sale deed in respect of the suit property in favour of the plaintiff on his paying a sum of Rs. 3,70,000/- on account of balance sale consideration. The suit property is a house and adjoining vacant land bearing Khasra numbers 131, 132 and 133 situate in Estate Andheri, Summer Hill, Shimla. Initially the suit was instituted in the High Court but later on it was transferred to the Court of District Judge when the pecuniary limit of the said Court was increased from Rs. 2 lacs to Rs. 5 lacs.
2. The facts in brief, as pleaded in the plaint, are that the defendant who is owner of the suit property, had got published and circulated hand bills through property dealer defendant No. 2 offering sale of the suit property for Rs. 3,50,000/-, in response to which the plaintiff contacted defendant No. 2 and after inspecting the suit property, entered into sale agreement for consideration of Rs. 4 lacs on 25-8-1993 and paid a sum of Rs. 30,000/- as advance money besides Rs. 2,000/- as commission/service charges of defendant No. 2. The balance amount of Rs. 3,70,000/- was agreed to be paid at the time of execution of the sale deed, which was to be executed on 26-10-1993 as per the terms of the agreement. Thereafter, after obtaining permission from the Government on 14-10-1993 to purchase the suit property as required under Section 118 of the H.P. Tenancy and Land Reforms Act (hereinafter called the Act). The plaintiff sent a registered letter to the defendant requiring him to obtain necessary certificate under the Income-tax Act but he refused to accept the said registered letter and informed defendant No. 2 that he was not interested in selling the suit property, who in turn further informed the plaintiff the intention of the defendant.
3. In these circumstances, the plaintiff gave legal notice by registered post to defendant No. 1 on 22-10-1993, which was also refused as per endorsement of the Postal Authorities, and attended the Office of the Registrar, Shimla to make himself available to the defendant for the execution and registration of the sale deed but the defendant did not turn up. Thereafter, the present suit was filed by the plaintiff for specific performance of the agreement dated 25-8-1993 requiring the defendant to execute the sale deed in respect of the suit property in favour of the plaintiff and in the alternative for damages. In para 8 of the plaint it is specifically averred that the plaintiff has always been willing and is still willing to perform his part of the contract to pay the balance amount of sale consideration i.e. Rupees 3,70,000/- to the defendant, but it seems that the defendant is not interested in performing his part of the contract as he has refused to abide by the terms of the agreement dated 25-8-1993.
4. The defendants filed separate written statements. Defendant No. 2 in his written statement admitted the claim of the plaintiff. It is specifically stated in para 4 of his written statement that, "The defendant No. 1 has mischievously tried to utilise the so-called agreement dated 27th August, 1993 for wriggling out from the agreement dated 25th August, 1993. " It is also stated in para 6 that, "defendant No. 1 had orally expressed his inability to perform his part of the contract. "
5. On the other hand, the defendant in his written statement has contested the claim of the plaintiff by asserting that he had offered the suit property for sale in two parts for total consideration of Rs. 7 lacs through defendant No.
2. According to him h
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