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IN THE HIGH COURT OF ORISSA, CUTTACK
K.R. MOHAPATRA, J.
Smt. Pinky Pradhan – Appellant
Versus
Pratap Kishore Das and Others – Respondents
R.F.A. No. 132 of 2010
Decided On : 20-04-2016
specific performance - contract - Specific Relief Act, 1963 - Section 20, Section 22 - Section 27(1)(b) - AIR 1999 SC 1341, AIR 2006 SC 2172, AIR 1979 SC 1241, AIR 1972 Ori. 235, AIR 1972 SC 1520, AIR 1964 SC 880, AIR 1976 SC 1414 - The court exercised its discretion under Section 20 of the Specific Relief Act, 1963 and found that the plaintiff failed to prove readiness and willingness to perform her part of the contract, thus denying the relief of specific performance. The court also granted the relief of refund of consideration amount, although not specifically claimed by the plaintiff, and remitted the matter to the trial court for the plaintiff to amend the plaint for the relief under Section 22(1)(b) of the Act.
Fact of the Case:
The plaintiff filed a suit for specific performance of contract and permanent injunction against the defendant No. 1 for breach of an agreement for sale of two properties. The defendant No. 1 contended that the plaintiff remained silent after the agreement, failed to pay the balance consideration, and did not take steps for registration and execution of the sale deed. The defendant No. 2, a subsequent purchaser, contended that the suit was not maintainable, and he was a bona fide purchaser for value of the property.
Finding of the Court:
The court found that the plaintiff failed to prove readiness and willingness to perform her part of the contract, thus denying the relief of specific performance. The court also granted the relief of refund of consideration amount, although not specifically claimed by the plaintiff, and remitted the matter to the trial court for the plaintiff to amend the plaint for the relief under Section 22(1)(b) of the Act.
Issues: The issues included the maintainability of the suit, cause of action, limitation, jurisdiction of the court, validity and enforceability of the agreement for sale, entitlement for execution and registration of a sale deed, entitlement for permanent injunction, and other reliefs under law.
Ratio Decidendi: The court exercised its discretion under Section 20 of the Specific Relief Act, 1963 and found that the plaintiff failed to prove readiness and willingness to perform her part of the contract, thus denying the relief of specific performance. The court also granted the relief of refund of consideration amount, although not specifically claimed by the plaintiff, and remitted the matter to the trial court for the plaintiff to amend the plaint for the relief under Section 22(1)(b) of the Act.
Final Decision: The court denied the relief of specific performance, granted the relief of refund of consideration amount, and remitted the matter to the trial court for the plaintiff to amend the plaint for the relief under Section 22(1)(b) of the Act.
JUDGMENT :
K.R. Mohapatra, J.
1. The unsuccessful plaintiff in CS No. 431 of 2007(1) has filed this appeal assailing the judgment and decree dated 18.02.2010 and 04.03.2010 respectively passed by the learned Civil Judge (Senior Division) 1st Court, Cuttack. The suit was filed for specific performance of contract and for permanent injunction.
2. The plaint case in brief reveals that the suit property more fully described in the plaint schedule appertaining to Khata No. 326/212, plot No. 2/2205 to an extent of Ac.0.04 decimal out of Ac.0.26 decimal situated at Mouza: Bidyadharpur (Cuttack Sadar), now Bidanasi in the district of Cuttack (Lot No. 1) and land appertaining to Khata No. 474/60, plot No. 516/1726 to an extent of Ac.1.00 decimal situated in Mouza: Patia in new capital, Bhubaneswar now Chandrasekharpur in the district of Khurda (Lot No. 2). Defendant No. 1 was the owner of the suit property. He entered into an agreement with the plaintiff (Ext.3) for sale of the suit land (Lot Nos. 1 and 2) on 02.12.2005 for a consideration of Rs.1,35,00,000/- out of which the defendant No. 1 received an amount of Rs.3,00,000/- towards part consideration as advance on the date of agreement. It was also agreed between them that the sale deed would be executed upon receipt of the balance consideration. Subsequently, the plaintiff paid further part consideration of Rs.2.50 lakh and defendant No. 1 gave an endorsement to that effect acknowledging receipt of the money (Ext.3/a). The plaintiff being ready with rest consideration amount approached the defendant No. 1 on 20.06.2006, but the defendant No. 1 deferred the matter. After some days, the defendant No. 1 expressed that he was ready only to sell the lands situated at Bhubaneswar (Lot No. 2) and demanded the entire consideration money for the same. The plaintiff thereafter tried her best to contact the defendant No. 1 and convince him for sale of the land at Cuttack and Bhubaneswar but failed. Left with no other option, she issued a lawyer’s notice on 22.09.2007 to defendant No. 1 (Ext.4) expressing her readiness and willingness to execute the sale deed on payment of the balance consideration amount. A few days after, plaintiff received the reply from defendant No. 1 (Ext.6) through his lawyer intimating that he had already executed a nominal sale deed in favour of defendant No. 2. The defendant No. 1, however, is ready to sell his Bhubaneswar property to the plaintiff on payment of the entire consideration money as agreed upon taking consent of defendant No. 2. Since the defendant No. 1 committed breach of contract and did not act upon the agreement under Ext.3, the suit was filed for the aforesaid relief.
3. Defendant No. 1 admitting execution of Ext.3 in his written statement contended that after execution of the agreement for sale, the plaintiff remained silent. She also failed to pay the balance consideration amount within the stipulated period and did not take any step for registration and execution of the sale deed. The defendant No. 1 being in requirement and in urgent need of money executed a nominal sale deed in favour of defendant No. 2 in respect of the property at Bhubaneswar on receipt of Rs.5.00 lakh towards consideration. He further contended that in reply to the legal notice of the plaintiff, the defendant No. 1 had clearly expressed his willingness to execute the sale deed with consent of defendant No. 2 on receipt of the balance consideration money in respect of Bhubaneswar property, but the plaintiff didn’t show any interest or responded to the same. Thus, he contended that the suit is liable to be dismissed.
Defendant No. 2 resisted the claim of the plaintiff by filing written statement. He contended that the suit was not maintainable in absence of any of enforceable legal right, lack of jurisdiction of the Court and being barred by limitation. He further contended that Ext.3 is a forged and fabricated document. He is a bona fide purchaser for value of the suit schedule p
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