Tara Chand Dubey (dead) by LRs. Vs. Ajit Kumar Mukherjee (dead) by LRs.
EmailAppeal: Civil Appeal Nos. 11558-11559 of 1995
Petitioner: Tara Chand Dubey (dead) by LRs.
Respondent: Ajit Kumar Mukherjee (dead) by LRs.
Apeal: Civil Appeal Nos. 11558-11559 of 1995
Judges: V.N. KHARE & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Mar 21, 2001
Head Note:
LIMITATION
Limitation Act, 1963
Section 5 – Registered sale deed dated 20.8.69 in lieu of loan – Same day loaner executing deed of reconvey-ance to reconvey same property within 5 years and to deliver vacant possession – Notice by loanee on 13.3.71 to execute the sale deed – Notice replied on 15.5.71 to execute the deed in first week of August, 1974 – Further notice by loanee on 12.8.74 to remain present in office of Sub-Registrar on 19.8.74, but loaner absent – Final refusal on 4.11.74 – Suit filed within 3 years from final refusal. Held, to be in time. (Para 3)
Specific Relief Act, 1963
Section 16(c) – “Ready and willing to perform his part of con-tract” – Connotation – Evidence showing plaintiff to be always ready and willing to perform his part of contract – Notice issued offering payment – Notice given to vendor to be present before Sub-Registrar on particular day – Concurrent findings by courts below. Held that converse finding by High Court that plaintiff was not ready and willing, is erroneous and is set aside. (Para 4)
JUDGEMENT:
ORDER
1. The predecessor-in-interest of the appellants herein were the owners of premises No. 86/12 situated in Kurmi Tola, Maqboolganj, Police Station Qaiserbagh, Lucknow. It appears that predecessor-in-interest of the plaintiffs took a sum of Rs. 7000/- as loan from the defendant-respondent. In lieu thereof, the predecessor-in-interest of the plaintiffs executed a registered sale deed on 20.8.1969 in respect of the said premises in favour of the re-spondent. On the same day, the respondent executed a registered deed of reconveyance agreeing to reconvey the property within five years and that he would deliver the vacant possession of the premises on the date of the execution of deed of reconveyance. On 13.3.1971, the predecessor-in-interest of the appellants sent a registered letter to the respondent calling upon him to execute the sale deed in their favour and to deliver the vacant posses-sion of the said premises after accepting the agreed sum of Rs. 7000/-. Notice further required the respondents to intimate the date and time when the sale deed is to be executed and regis-tered. It is not disputed that the said notice was received and acknowledged by the respondent. On 15.5.1971, the respondent in reply to the notice dated 13.3.1971 intimated the plaintiffs that the date for execution and registration of sale deed is solely at his discretion within the period of five years. However, it was intimated that he is prepared to execute the sale deed on any date in the first week of August, 1974. In between time, it appears that the transfer of immovable property was banned in the State of Uttar Pradesh w.e.f. July 15, 1972. On 12.8.1974, the plaintiffs sent a notice to the respondent for executing the sale deed as per reply dated 15.5.1974. The plaintiffs also sent a telegram to the respondent requesting him to comply with the terms of the agreement dated 20.8.1969. It is alleged that the plaintiffs, on 19.8.1974, remained present throughout in the office of the Sub-Registrar, Lucknow. However, the respondent did not turn up. Under these circumstances, the plaintiffs brought a suit for specific performance for agreement of sale of the property. A written statement was filed on behalf of the defend-ant-respondent wherein a plea was taken that the suit is barred by limitation. It was also pleaded that since the plaintiffs were not ready and willing to perform their part of the contract, they are not entitled to decree under Section 16(C) of the Specific Relief Act. The trial court, after considering the entire matter, came to the conclusion that the suit was brought within the period of limitation and further the plaintiffs were always ready and willing to perform their part of the contract. In view of the matter, the trial court decreed the suit. The said decree was affirmed by the first Appellate Court. However, the High Court, in the second appeal, set aside the judgment of the court below and dismissed the suit. It is against the said judgment, the plaintiffs are in appeal before us.
2. Learned Counsel appearing for the appellants urged that the view taken by the High Court that the suit was barred by limitation and that the plaintiffs were not ready and willing to perform their part of the contract is patently erroneous. Learned Counsel further submitted that there is ample evidence on record to show that the plaintiffs were always ready and willing to perform their part of the contract. Therefore, the judgment deserves to be set aside. Learned Counsel appearing for the respondent reiterated the grounds on which the High Court allowed the appeal of the respondent. We have looked into the matter and found that the judgment of the High Court suffers from serious infirmity.
3. Coming on the question of limitation what we find is that in pursuance of notice dated 13.3.1971, the respondent sent a reply on 15.5.1971. Paragraph 7 of the said reply runs as follows:
“That as per terms of the agreement, I am ready to re-convey the property at your costs of registration and on payment of its sale price, on any date in the first week of August, 1974 which of course is before expiration of five years. Kindly notice the date of Execution and Registration of the sale deed being fixed from my side and do the needful for payment of sale price and regis-tration expenses. If you go early to the court unnecessarily on the basis of your misconceived notice or otherwise, I will be compelled to defend it and in that case, you will be saddled with my costs of litigation.
Please keep this reply safely, you may be required to produce it in court, if so needed.”
4. It is not disputed that the plaintiffs again sent notices dated 12.8.1974 informing the respondents to be present in the office of Sub-Registrar on 19.8.1974. It is also not disputed that the plaintiffs were present on 19.8.1974 in the office of the Sub-Registrar, but the respondent did not turn up. Finally on 4.11.1974, the respondent declined to execute the sale deed. The aforesaid facts show that the suit was filed within three years from the date of the refusal to execute the sale deed. In view of the matter, we find that the suit was filed well within time.
5. Coming to the next question as to whether the plaintiffs were ready and willing to perform their part of the contract, the plaintiffs, in the plaint, alleged that they are and they were always ready and willing to perform their part of the contract. The plaintiffs also appeared in the witness box and stated that they were always ready and willing to perform their part of the contract. The trial court as well as the First Appellate Court concurrently held that the plaintiffs were always ready and willing to perform their part of the contract. We have also looked into the evidence on record and found that the said find-ing of two courts below was based on ample evidence on record. We are, therefore, of the view that the High Court was not legally justified in holding that the plaintiffs were not ready and willing to perform their part of the contract.
6. In view of the aforesaid, these appeals deserve to succeed. We, therefore, set aside the judgment of the High Court under challenge and affirm the decree of the trial court with this modification that the respondents herein are called upon to execute the sale deed within a period of three months from the date of this order.
7. The appeals are allowed. There shall be no order as to costs.
1. The predecessor-in-interest of the appellants herein were the owners of premises No. 86/12 situated in Kurmi Tola, Maqboolganj, Police Station Qaiserbagh, Lucknow. It appears that predecessor-in-interest of the plaintiffs took a sum of Rs. 7000/- as loan from the defendant-respondent. In lieu thereof, the predecessor-in-interest of the plaintiffs executed a registered sale deed on 20.8.1969 in respect of the said premises in favour of the re-spondent. On the same day, the respondent executed a registered deed of reconveyance agreeing to reconvey the property within five years and that he would deliver the vacant possession of the premises on the date of the execution of deed of reconveyance. On 13.3.1971, the predecessor-in-interest of the appellants sent a registered letter to the respondent calling upon him to execute the sale deed in their favour and to deliver the vacant posses-sion of the said premises after accepting the agreed sum of Rs. 7000/-. Notice further required the respondents to intimate the date and time when the sale deed is to be executed and regis-tered. It is not disputed that the said notice was received and acknowledged by the respondent. On 15.5.1971, the respondent in reply to the notice dated 13.3.1971 intimated the plaintiffs that the date for execution and registration of sale deed is solely at his discretion within the period of five years. However, it was intimated that he is prepared to execute the sale deed on any date in the first week of August, 1974. In between time, it appears that the transfer of immovable property was banned in the State of Uttar Pradesh w.e.f. July 15, 1972. On 12.8.1974, the plaintiffs sent a notice to the respondent for executing the sale deed as per reply dated 15.5.1974. The plaintiffs also sent a telegram to the respondent requesting him to comply with the terms of the agreement dated 20.8.1969. It is alleged that the plaintiffs, on 19.8.1974, remained present throughout in the office of the Sub-Registrar, Lucknow. However, the respondent did not turn up. Under these circumstances, the plaintiffs brought a suit for specific performance for agreement of sale of the property. A written statement was filed on behalf of the defend-ant-respondent wherein a plea was taken that the suit is barred by limitation. It was also pleaded that since the plaintiffs were not ready and willing to perform their part of the contract, they are not entitled to decree under Section 16(C) of the Specific Relief Act. The trial court, after considering the entire matter, came to the conclusion that the suit was brought within the period of limitation and further the plaintiffs were always ready and willing to perform their part of the contract. In view of the matter, the trial court decreed the suit. The said decree was affirmed by the first Appellate Court. However, the High Court, in the second appeal, set aside the judgment of the court below and dismissed the suit. It is against the said judgment, the plaintiffs are in appeal before us.
2. Learned Counsel appearing for the appellants urged that the view taken by the High Court that the suit was barred by limitation and that the plaintiffs were not ready and willing to perform their part of the contract is patently erroneous. Learned Counsel further submitted that there is ample evidence on record to show that the plaintiffs were always ready and willing to perform their part of the contract. Therefore, the judgment deserves to be set aside. Learned Counsel appearing for the respondent reiterated the grounds on which the High Court allowed the appeal of the respondent. We have looked into the matter and found that the judgment of the High Court suffers from serious infirmity.
3. Coming on the question of limitation what we find is that in pursuance of notice dated 13.3.1971, the respondent sent a reply on 15.5.1971. Paragraph 7 of the said reply runs as follows:
“That as per terms of the agreement, I am ready to re-convey the property at your costs of registration and on payment of its sale price, on any date in the first week of August, 1974 which of course is before expiration of five years. Kindly notice the date of Execution and Registration of the sale deed being fixed from my side and do the needful for payment of sale price and regis-tration expenses. If you go early to the court unnecessarily on the basis of your misconceived notice or otherwise, I will be compelled to defend it and in that case, you will be saddled with my costs of litigation.
Please keep this reply safely, you may be required to produce it in court, if so needed.”
4. It is not disputed that the plaintiffs again sent notices dated 12.8.1974 informing the respondents to be present in the office of Sub-Registrar on 19.8.1974. It is also not disputed that the plaintiffs were present on 19.8.1974 in the office of the Sub-Registrar, but the respondent did not turn up. Finally on 4.11.1974, the respondent declined to execute the sale deed. The aforesaid facts show that the suit was filed within three years from the date of the refusal to execute the sale deed. In view of the matter, we find that the suit was filed well within time.
5. Coming to the next question as to whether the plaintiffs were ready and willing to perform their part of the contract, the plaintiffs, in the plaint, alleged that they are and they were always ready and willing to perform their part of the contract. The plaintiffs also appeared in the witness box and stated that they were always ready and willing to perform their part of the contract. The trial court as well as the First Appellate Court concurrently held that the plaintiffs were always ready and willing to perform their part of the contract. We have also looked into the evidence on record and found that the said find-ing of two courts below was based on ample evidence on record. We are, therefore, of the view that the High Court was not legally justified in holding that the plaintiffs were not ready and willing to perform their part of the contract.
6. In view of the aforesaid, these appeals deserve to succeed. We, therefore, set aside the judgment of the High Court under challenge and affirm the decree of the trial court with this modification that the respondents herein are called upon to execute the sale deed within a period of three months from the date of this order.
7. The appeals are allowed. There shall be no order as to costs.
