Back
2018 Supreme(All) 649
ALLAHABAD HIGH COURT
BEFORE : SIDDHARTH, J.
RATAN LAL ....Appellant
Versus
OM PRAKASH AND OTHERS ....Respondents
(Second Appeal No. 3121 of 1984, decided on 7th May, 2018)
Counsel :
Rama Goel, Ashok Bhatnagar, K.K. Dubey, Pt. Sudamaji Sandilya, Ram Kishore Pandey, Rama Nand Gupta and Vivekji Sandilya for the Appellant; Vikram D. Chauhan, Anuj Mandhyan, B.R.J. Pandey, K.K. Tiwari, Smt. Rama Goel, P.N. Saxena, S.S. Mishra and Smt. Shashi Tandon for the Respondents.
Headnote:(A) Specific Relief Act, 1963—Section 16(c)—Specific Performance—Readiness and willingness to perform—Pleading and proof—Agreement to sell—Plaintiff never brought on record dates when he requested defendant to get sale-deed executed—Nor date whereon he directed defendant to be present before Registrar for purpose of execution of sale-deed—There is no evidence to prove that on which date he appeared before Registrar’s Office and got his attendance registered—Plaintiff only filed copy of receipt of registered post and receipt of acknowledgement duly signed by defendant—Copy of notice sent by plaintiff to defendant requesting him to execute sale-deed by appearing before Registrar on a particular date was never filed in Suit—Plaintiff not stating about having necessary finances all through for purpose of getting sale-deed executed after paying balance sale consideration to defendant—Held suit liable to be dismissed on ground that requirements of Section 16(c) were not met. [Paras 16, 17 and 18]
(B) Specific Relief Act, 1963—Sections 16, 9—Specific Performance—Suit for—Limitation—Held merely on limitations of dates mentioned in contract, suit of plaintiff cannot be thrown out—In instant case parties agreed that till last day of month terms of agreement would have to be complied—This does not mean that after last day mentioned in agreement, contract stands terminated—Cause of action will start only when contract was not honored by either of parties—Hence time limit mentioned in agreement did not bar filing of suit by plaintiff. [Paras 22]
Result; Appeal Allowed.
Hon’ble Siddharth, J.—Heard Sri Ram Kishore Pandey, Advocate, assisted by Sri Ashok Bhatnagar, learned counsel for the appellant and Sri P. N. Saxena, Sr. Advocate, assisted by Sri K. K. Tewari, learned counsel for the respondents.
2. This is defendant’s Second Appeal against the Judgment and Decree dated 19.10.1984, passed by Ist Additional District Judge, Jhansi in Civil Appeal No. 194 of 1980, dismissing the Appeal and confirming the Judgment and Decree dated 2.8.1980 passed by Munsif Magistrate, Ist Class (Court No. 8), Jhansi in Original Suit No. 113/1979 (Sri Om Prakash v. Sri Ratan Lal).
3. The plaintiff, Om Prakash, instituted an Original Suit No. 113 of 1979, praying for a decree of Specific Performance of Contract dated 11.12.1972 on the ground that the defendant, Ratan Lal entered into an Agreement to Sale dated 11.12.1972 regarding H.No. 11/57, Sadar Bazar, Panna Lal Ka Hata, Jhansi; that at that time the registrations were closed, therefore it was agreed that as soon as the registration will start, defendant will execute a sale-deed in favour of the plaintiff; that the Agreement to Sale was for a consideration of Rs. 4,000/- and the plaintiff paid Rs. 2,000/- as advance and remaining amount of Rs. 2000/- was agreed to be paid to the defendant at the time of execution of sale-deed; that the expenses for registration of the sale-deed were required to be borne by the plaintiff; that there was condition that the defendant shall execute the sale-deed within 1 month from the date, the registration starts; that after registration started the plaintiff requested the defendant to execute the sale-deed but he avoided the same on various pretexts; that the plaintiff as a last resort gave notice dated 11.9.1978 to the defendant but he did not execute the sale-deed and hence the suit was instituted.
4. The defendant’s case is that since there was a condition in the sale-deed that the sale-deed shall be executed within 1 month of the opening of registration of the sale-deed and that time has expired, therefore the agreement is not binding on the defendant; that there was another condition in the agreement that in case the Vendor does not executes sale-deed in favour of the Vendee then he can get the sale-deed registered by force and if the Vendee does not gets the sale-deed executed then the advance sale consideration shall be forfeited by the Vendor; that because the property belongs to joint family therefore the younger brother of the defendant is also co-owner of the same and therefore, the suit of the plaintiff deserves to be dismissed.
5. On the basis of the pleadings of the parties, the following issues were framed by the learned Trial Court,
(1). Whether the plaintiff was always ready and willing to purchase the House but the defendant did not fulfill his promise?
(2). Whether the suit is barred by time?
(3). Any other relief ?
Issue No. 1 was decided in favour of the plaintiff holding that time was not the essence of Contract and since the plaintiff gave the notice, paper No. 19-C to the defendant, he was ready and willing to get the sale-deed registered and since the defendant never replied to the notice, despite receipt of the same, his defence cannot be accepted.
Issue No. 2 was also decided in favour of plaintiff holding that there is 3 years period provided for instituting the suit for Specific Performance of Contract. After the registration of the sale-deed started in April, 1977, the sale-deed was to be executed within 1 month i.e., upto May, 1977, therefore, the suit could have been filed from June, 1977 to 1980 any time. Because the suit was instituted on 13.1.1978, therefore, it is within time and not barred by time.
Issue No. 3 was decided by the trial Court holding that the plaintiff is entitled to relief claimed and decreed the suit by the Judgment and Decree dated 2.8.1980.
6. The defendant preferred a Civil Appeal No. 194 of 1980 before the lower appellate Court which was dismissed by the Judgment
