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2005 Supreme(MP) 1065
2006(3) JLJ 424
A.K. Mishra and U.C. Maheshwari, JJ.
Leeladhar Yadav v. Siddhartha Housing Cooperative Society
Ltd., Garha
First Appeal No.181 of 2004: against the judgment and decree of
District Judge, Jabalpur, passed in Civil Suit No. 11-A of 2002;
Decided on 21.10.2005.
Ravish Agrawal with Pranay Verma for appellant;
A.G. Dhande with Saurabh Tiwari for respondent.
Headnote:(1) Specific Relief Act, 1963 -- S. 16(c) -- suit for specific performance of sale -- plaintiff has to prove readiness and willingness to perform his part of obligations - plaintiff not having money to give defendant -- decree of sale cannot be passed in his favour.
An agreement was entered into by Siddhartha Housing Cooperative Society Ltd. (hereinafter referred to as "Cooperative Society") for purchasing of the land from Shri Leeladhar Yadav-defendant, at the rate of Rs. two lacs per acre, agreement was executed on 8.5.1996, an advance of Rs. one lac was paid to the defendant. ... The defendant was paid further sum of Rs. 10,000/- on 20.12.1997, Rs.5,000/- on 24.12.1999, Rs.10,000/- on 8.3.2000 and Rs.5,000/- on 28.12.2000. It was averred that defendant had agreed to level the land by Buldozer. Permission from Ceiling Authority was also to be obtained. Defendant shall intimate about the permission and within four months, defendant shall execute a sale-deed after receiving the balance consideration. Defendant did not obtain no objection certificate from Competent Authority (Ceiling). Jabalpur ... The plaintiff society has sufficient fund for execution of sale-deed. It was and is ready and willing to perform its part of contract, but the defendant is avoiding to perform his part of contract. [Para 2
Held : It was not open to learned District Judge to decree the suit for specific performance of contract of sale. Even the District Judge has found that Cooperative Society had no arrangement of money, but President was having the money, money of the President which was not of Co-operative Society could not be treated to be the fund of Cooperative Society as Society is distinct entity than an individual. Readiness and willingness of the Society, that is, of large number of persons forming the Society, was required to be seen and whether they had made any effort after entering into an agreement to purchase the property within reasonable proximity of time. No such evidence has been adduced, only the resolution has been placed on record authorizing the President to file the suit. It is nowhere mentioned in the resolution that Society had the money and the land was to be purchased for the benefit of various members not for the benefit of President in person. The defendant has clearly stated that value of the land was more than Rs. 3 lacs per acre and it is clear that after repeal of Urban Land Ceiling Act, price of land has escalated much more and plaintiff had no arrangement of money, thus, it would be iniquitous to order specific performance in favour of Cooperative society. AIR 1996 SC 116 and (2003)10 SCC 390 followed. [Paras 8 & 11
(2) Specific Relief Act, 1963 -- Ss.10 and 20 -- Limitation Act. 1963 -- Art. 54 -- suit for specific performance of sale of immovable property -- time not essence -- it should be performed within reasonable time -- steep rise in price is a relevant factor which may disentitle relief of specific performance in case of delay and laches. (1997)3 SCC 1 and (1993)1 SCC 519 followed. (2004)8 SCC 689 distinguished. (2002)5 SCC 481 discussed. [Paras 10 & 12
(3) Registration Act, 1908 -- S.33 -- Power of Attorney not registered -- holder of unregistered Power of Attorney cannot execute a registered sale-deed. (2003)10 SCC 390 followed. [Para 11
(4) Limitation Act, 1963 -- Art. 54 -- suit for specific performance -- limitation is three years from date of refusal -- continuous readiness and willingness from date of contract till hearing of suit has to be proved. 2005(1) MPWN 15 (SC) followed. [Para 15
(5) Specific Relief Act, 1963 -- Ss.16(c), 22 and 10 -- suit for specific performance of sale -- phenomenal increase in price during pendency of litigation -- Court may order payment of additional amount -- if full amount is paid by purchaser -- seller may be asked to perform his part if there is no delay or laches. (2002)8 SCC 146 and (2001)8 SCC 173 followed. [Para 16
(6) Specific Relief Act, 1963 -- S.22 -- suit for specific performance -- earnest money cannot be forfeited merely by publication of notice of cancellation of agreement -- plaintiff entitled to return of earnest money. 1963 JLJ 263 relied on. [Para 17
¼1½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 16¼x½ && foØ; ds fofufnZ"V ikyu ds fy, okn && oknh }kjk ck/;rkvksa ds vius Hkkx dk ikyu djus dh rS;kjh rFkk jtkeanh lkfcr djuk gksrh gS && oknh ds ikl izfroknh dks nsus ds fy, /ku ugha mlds i{k esa foØ; dh fMØh ikfjr ugha dh tk ldrhA
fl)kFkZ gkmflax lgdkjh lkslkbVh fy- }kjk Jh yhyk/kj ;kno izfroknh ls :- nks yk[k izfr ,dM+ dh nj ls Hkwfe Ø; djus ds fy, djkj fd;k x;k] djkj 8-5-1996 dks fu"ikfnr fd;k x;k] izfroknh dks :- ,d yk[k vf/knk; fn;k x;kA ---- izfroknh dks 20-12-1997 dks :-10]000@&] 24-12-1999 dks :-5]000@&] 8-3-2000 dks :-10]000@& rFkk 28-12-2000 dks :-5]000@& vfrfjDr jkf‘k nh xbZA ;g izdFku fd;k x;k fd izfroknh us cqyMkstj ls Hkwfe lery djus dk djkj fd;kA vf/kdre lhek izkf/kdkjh ls vuqKk Hkh izkIr djuk FkhA izfroknh vuqKk ds laca/k esa lwpuk nsxk rFkk pkj ekl ds Hkhrj] ‘ks"k izfrQy izkIr djus ds i‘pkr~ foØ;&foys[k fu"ikfnr djsxkA izfroknh us l{ke izkf/kdkjh ¼vf/kdre lhek½] tcyiqj ls fujkis{k izek.ki= izkIr ugha fd;kA ---- foØ;&foys[k ds fu"iknu ds fy, oknh@lkslkbVh ds ikl i;kZIr fuf/k gSA og lafonk ds vius Hkkx dk ikyu djus ds fy, rS;kj vkSj jtkean Fkh vkSj gS] fdarq izfroknh lafonk ds vius Hkkx dk ikyu djus ls cp jgk gSA ¼iSjk 2
vfHkfu/kkZfjr % fo}ku ftyk U;k;k/kh‘k foØ; ds fofufnZ"V ikyu ds fy, okn fMØh ugha dj ldrk FkkA ftyk U;k;k/kh‘k us Hkh ik;k fd lgdkjh lkslkbVh ds ikl /ku dh O;oLFkk ugha Fkh fdarq v/;{k ds ikl /ku Fkk] v/;{k dk /ku tks fd lgdkjh lkslkbVh dk ugha Fkk mls lgdkjh lkslkbVh dh fuf/k ugha ekuk tk ldrk Fkk D;ksafd lkslkbVh dk O;fDr ls lqfHkUu vfLrRo gSA lkslkbVh] vFkkZr~] lkslkbVh cukus okys O;fDr;ksa dh vf/kd la[;k dh rS;kjh vkSj jtkeanh ns[kyh tkuk visf{kr Fkh rFkk D;k mUgksaus djkj djus ds i‘pkr~ laifÙk le; ds ;qfDr;qDr lkehI; esa Ø; djus dk iz;kl fd;kA ,slk dksbZ lk{; izLrqr ugha fd;k x;k gS] ek= vfHkys[k ij v/;{k dks okn Qkby djus ds fy, izkf/kd`r djrs gq, ladYi j[kk x;k gSA ladYi esa dgha Hkh mfYyf[kr ugha gS fd lkslkbVh ds ikl /ku Fkk rFkk Hkwfe fofHkUu lnL;ksa ds Qk;ns ds fy, Ø; dh tkuk Fkh O;fDrxr :i ls v/;{k ds Qk;ns ds fy, ughaA izfroknh us Li"Vr% dFku fd;k gS fd Hkwfe dk ewY; :-3 yk[k izfr ,dM+ ls vf/kd Fkk rFkk ;g Li"V gS fd uxj Hkwfe vf/kdre lhek vf/kfu;e ds fujlu ds i‘pkr~] Hkwfe dh dher vf/kd c<+ xbZ gS rFkk oknh ds ikl /ku dk dksbZ izca/k ugha Fkk] vr%] lgdkjh lkslkbVh ds i{k esa fofufnZ"V vuqikyu vkns‘k djuk vU;k; gksxkA , vkb vkj 1996 ,l lh 116 rFkk ¼2003½10 ,l lh lh 390 vuqlfjrA ¼iSjk 8 ,oa 11
¼2½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 10 rFkk 20 && ifjlhek vf/kfu;e] 1963 && vuq-54 && LFkkoj laifÙk ds foØ; ds fofufnZ"V ikyu ds fy, okn && le; vR;ko‘;d ‘krZ ugha && ;qfDr;qDr le; ds Hkhrj ikyu gksuk pkfg, && dher esa vR;f/kd o`f) ,d lqlaxr dkjd gS ftlls foyac rFkk vfrfoyac dh n‘kk esa fofufnZ"V ikyu ds vuqrks"k dks fugZfdr djsxkA ¼1997½3 ,l lh lh 1 rFkk ¼1993½1 ,l lh lh 519 vuqlfjrA ¼2004½8 ,l lh lh 689 izHksfnrA ¼2002½5 ,l lh lh 481 foosfprA ¼iSjk 10 ,oa 12
¼3½ jftLVªhdj.k vf/kfu;e] 1908 && /kkjk 33 && eq[rkjukek jftLVªhd`r ugha && vjftLVªhd`r eq[rkjukes dk /kkjd jftLVªhd`r foØ;&foys[k fu"ikfnr ugha dj ldrkA ¼2003½10 ,l lh lh 390 vuqlfjrA ¼iSjk 11
¼4½ ifjlhek vf/kfu;e] 1963 && vuq-54 && fofufnZ"V ikyu ds fy, okn && ifjlhek bUdkj dh rkjh[k ls rhu o"kZ gS && lafonk dh rkjh[k ls okn dh lquokbZ rd lrr rS;kjh vkSj jtkeanh lkfcr dh tkuk gksrh gSA ¼2005½1 e-iz- ohDyh uksV~l 15 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 15
¼5½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 16¼x½] 22 rFkk 10 && foØ; ds fofufnZ"V ikyu ds fy, okn && eqdn~nesckth ds yacu ds nkSjku dher esa izrh;eku o`f) && U;k;ky; vfrfjDr jde ds lank; dk vkns‘k ns ldrk gS && ;fn Øsrk }kjk iwjh jde lank; dh tkrh gS && foØsrk ls vius Hkkx ds ikyu ds fy, dgk tk ldrk gS ;fn dksbZ foyac vFkok vfrfoyac ugha gSA ¼2002½8 ,l lh lh 146 rFkk ¼2001½8 ,l lh lh 173 vuqlfjrA ¼iSjk 16
¼6½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 22 && fofufnZ"V ikyu ds fy, okn && ek= djkj ds jn~ndj.k ds lwpuk dk izdk‘ku dj ds vfxze /ku leiâr ugha fd;k tk ldrk && oknh vfxze /ku okfil ikus dk gdnkj gSA 1963 ts ,y ts 263 voyafcrA ¼iSjk 17
Mishra, J. -
1. This appeal has been preferred by the defendant aggrieved by judgment and decree dated 21st November, 2003 by which learned District Judge, Jabalpur, has decreed the Suit No. 11-A/2002 directing the specific performance of contract of sale.
2. In short the plaintiff's case, as averred in the plaint, shows that defendant owned 2.588 hectare of land comprised in Survey No. 189/6 situated at Mouza Baitala, an agreement was entered into by Siddhartha Housing Cooperative Society Ltd. (hereinafter referred to as "Cooperative Society") for purchasing of the land from Shri Leeladhar Yadav-defendant, at the rate of Rs. two lacs per acre, agreement was executed on 8.5.1996, an advance of Rs.one lac was paid to the defendant, by mistake Survey No. 189/6 was wrongly typed as Survey No. 181/6. The defendant was paid further sum of Rs.10,000/- on 20.12.1997, Rs.5,000/- on 24.12.1999, Rs.10,000/- on 8.3.2000 and Rs.5,000/- on 28.12.2000. It was averred that defendant had agreed to level the land by Buldozer. Permission from Ceiling Authority was also to be obtained. Defendant shall intimate about the permission and within four months, defendant shall execute a sale-deed after receiving the balance consideration. Defendant did not obtain no objection certificate from Competent Authority (Ceiling), Jabalpur. The plaintiff served the defendant with a notice dated 3rd June, 1997 which was received by the defendant on 7.6.1997, no reply was given, the Ceiling Act was repealed by the State Government in March 2000. Thereafter the President of the plaintiff-society orally requested to execute the sale-deed in favour of plaintiff-society, but the defendant avoided to execute the sale-deed on one pretext or the other. The plaintiff society has sufficient fund for execution of sale-deed. It was and is ready and willing to perform its part of contract, but the defendant is avoiding to perform his part of on tract. Plaintiff served the defendant with a notice dated 17th July, 2002 to execute the sale-deed. Notice was received back with the remark that recipient has died, thereafter a telegraphic notice was sent on 21.7.2002, no reply was received, plaintiff got the notices published in newspapers Navbharat and Dainik Bhaskar, Jabalpur, dated 18th September, 2002. The defendant published a notice in daily newspaper Dainik Bhaskar dated 25.9.2002 that notice published by the plaintiff was false and it was mentioned that advance given by the Society stood forfeited. Hence, suit was filed for specific performance of contract of sale, plaint was presented on 11.10.2002.
3. In the written statement filed by defendant it was contended that land is situated adjoining to the road, price was settled at Rs.2 lacs per acre, out of Rs.12 lacs only a sum of Rs.1 lac was given. The defendant was in a position to execute the sale-deed immediately, but the plaintiff had no money to get the sale-deed executed and wanted time to collect the funds, aforesaid land was not at all involved in any ceiling case, as they had no arrangement of funds, it was mentioned in the agreement that permission of Ceiling Authority has to be obtained, there was no dispute about the measurement, levelling of the land was got done within a period of one month, within four months next thereafter sale-deed was not got executed as there were no arrangement of funds with the Society, number was incorrectly mentioned in the agreement, however, that is of no consequence. Against the settled terms, only Rs.30,000/- was paid on different dates subsequently. Plaintiff was not ready to purchase the land nor willing to perform its part of the contract, value of the land was much more. Defendant agreed because he required money for treatment of his mother. Real value was more than Rs.3 lacs per acre, agreement has already come to an end, as there was failure on part of plaintiff to carry out its obligation, there is no subsisting cause of action against the defendant. Suit is barred
