A. Kabir, J.@mdashThis appeal is directed against the judgment and decree dated 12th September, 1990, passed by the learned Assistant District Judge, 3rd Court, Alipore, 24 Parganas, dismissing the plaintiffs suit for specific performance of contract and permanent injunction, being Title suit No. 8 of 1986, with a direction upon the defendant/respondent to refund to the plaintiff a sum of Rs. 46001/- along with statutory interest at the rate of 8% per annum, to be calculated from the date of acceptance of the amount till the date of payment by the defendant, within 60 days from the date of the judgment.
2. The case as made out in the plaint is that the defendant as the owner of the suit premises entered into an agreement with the plaintiff on 17th November, 1983, for sale of the suit property for a consideration of Rs. 1,01,000/-. The defendant received a sum of Rs. 5,001/- by way of earnest money on the same day and handed over the original Title Deed of the suit premises to the plaintiff and also delivered Khas possession of one room therein to the plaintiff who is still in possession of the same and is using the same for his own use and occupation, According to the plaintiff, the defendant received further payment of Rs. 22,000/- from the plaintiff on the very next day (18.11.83) for payment of arrear municipal rates and taxes and for obtaining income Tax Clearance Certificate.
3. The plaintiff, thereafter, investigated the defendant''s title to the suit property and also caused newspaper publication regarding sale of the property. In September, 1984, the plaintiff requested the defendant to complete the sale transaction after receiving the balance consideration amount, but the defendant declined to do so on the ground that he had not been able to procure the clearance certificate from the income Tax authorities and the municipal dues were yet to be paid.
4. On 2nd November, 1984, the plaintiff paid a further sum of Rs. 19,000/- to the defendant towards the balance consideration amount and the defendant promised to complete the sale at an early date,
5. According to the plaintiff, a draft conveyance was prepared by the plaintiff and on several occasions he requested the defendant to produce the corporation Tax Clearance Certificate and renewed sanction of the Building plain from the Calcutta Municipal Corporation. It is the plaintiffs further case that since the defendant deferred the matter on one plea or the other, the plaintiff was compelled to send legal notice to the defendant which were replied to, but the defendant failed and neglected to complete the sale of the suit property in the plaintiffs favour inspite of having received in all a sum of Rs. 46,001/- out of the total consideration amount.
6. The defendant contested the suit by filing written statement and his main contention was that the total consideration for the sale of the suit property was fixed at Rs. 2,01,000/- and not Rs. 1,01,000/- as contended by the plaintiff. The defendant also denied that he had received Rs. 22,000/- on 18th November, 1983, for payment of the Municipal rates and taxes or for procuring income Tax Clearance Certificate. The defendant also contended that the agreement for sale was valid for eleven months, but as the plaintiff failed to complete the sale within the said period, the agreement lapsed and was not capable of being enforced.
7. Holding that the plaintiff has no financial ability to purchase the property within the stipulated period and that he has avoided and deferred that final negotiation and had failed to discharge his onus beyond all reasonable doubt and that the contract between the parties has not been concluded and established in Court beyond doubt, the learned trial Court dismissed the suit upon holding further that no relief could be granted to the plaintiff under the Specific Relief Act for want of proper proof.
8. Appearing in support of the appeal, Mr. Sudhis Dasgupta submitted that in the face of the evidence on record, the learned trial Court erred in coming to a finding that the plaintiff/ appellant had failed to prove beyond all reasonable doubt that the price was actually settled at Rs. 1,01,000/-and not Rs. 2,01,000/-.
9. Mr. Dasgupta submitted that in the Agreement for sale executed between the parties (Exhibit 2) the consideration for the sale of the suit property was clearly mentioned as Rs. 1,01,000/- and not Rs. 2,01,000/-as claimed by the defendant. Referring to the evidence of PWI, Sherajuddin, who had introduced the plaintiff to the defendant, Mr. Dasgupta pointed out that it was categorically stated by the said witness that the consideration price was fixed at Rs. 1,0,1000/-. Mr. Dasgupta urged that from the evidence of Sherajuddin it would be clear that he has full knowledge of the negotiations resulting in the execution of the Agreement for Sale ( Exhibit 2) and payment of the earnest money and subsequent payments made by the plaintiff/appellant to the defendant/respondent.
10. Mr. Dasgupta also referred to the evidence of the plaintiff/appellant (PW 2) and pointed out that his testimony that the consideration had been fixed at Rs. 1,01,000/- and that certain payments, amounting to Rs. 46,001/-, has been paid by him to the defendant/respondent, stood unshaken.
11. Mr. Dasgupta submitted that the payment of the earnest money of Rs. 5,001/- and part payments made to the tune of Rs. 22,000/- on 18th November. 1983 and Rs. 19,000/- on 2nd November, 1984, were acknowledged by the defendant/respondent on the Agreement for sale itself and such payment had been witnessed by Shah Jamal Chand, Kazi Abdul Rouf, Anwar, and Habibur Rahaman, some of whom were closely related to the defendant/ respondent. Mr. Dasgupta pointed out that one of the witnesses of the Agreement for sale and the payment for sale and the payments made towards part payment of the consideration amount was Kazi Abdul Rouf who was the defendant''s own brother and one of the other witnesses, Shah Jamal Chand, was the defendant''s brother-in-law. Mr. Dasgupta also submitted that though it was stipulated in Clause 6 of the Agreement for sale that the sale was to be completed within eleven months from the date of the Agreement, the defendant accepted a sum of Rs. 19,000/- on 2nd November, 1984, beyond the said period of eleven months.
12. Mr. Dasgupta also referred to the evidence of PW3, Habibur Rahaman, who was also a witness to the Agreement for Sale (Exhibit 1). Mr. Dasgupta pointed out that the said witness also corroborated the case of the plaintiff/appellant that the consideration for sale of the suit premises was settled between the parties at Rs. 1,01,000/- and that the Agreement for sale had been executed by the defendant in his presence and that he too signed as witness on the said document and also witnessed the payment of earnest money of Rs. 5,001/- by the plaintiff/appellant to the defendant.
13. Mr. Dasgupta then urged that the entire approach of the learned trial Court in deciding the suit was erroneous. Mr. Dasgupta submitted that in the face of Exhibit 2, the learned trial Court had erred in coining to a finding that the plaintiff/appellant had failed to prove beyond all reasonable doubt that the sale price was'' actually settled at Rs. 1,01,000/- and not Rs. 2,01,000/-.
14. Mr. Dasgupta then submitted that the learned trial Court had also erred in arriving at a finding that u/s 16(C) of the Specific Relief Act, 1963, the plaintiff was required to prove beyond all reasonable doubt that he was all along ready and willing to perform the terms of the contract which were to be performed by him. Mr. Dasgupta submitted that the learned trial Court was wrong in holding that the plaintiff/appellant had failed to discharge his onus beyond all reasonable doubt and he was not, therefore, entitled to get any relief in the suit.
15. Mr. Dasgupta submitted that the standard of proof in a civil action was much less than in a criminal action. Mr. Dasgupta urged that in order to secure a conviction in a criminal trial the charges against the accused were required to be proved beyond all reasonable doubt, while in a civil action the existence of a fact would depend on the probability as to whether such fact existed. Mr. Dasgupta submitted that in the instant case sufficient evidence, both documentary and oral, had been led on behalf of the plaintiff/appellant in support of his case that the sale price had been fixed at Rs. 1,01,000/- and that the plaintiff/appellant was ready and willing to complete the sale. Mr. Dasgupta contended that the learned Court below was clearly wrong in holding that the plaintiff/appellant was required to prove his case beyond all reasonable, doubt,
16 On the question of standard of proof Mr. Dasgupta firstly referred to the decision of the Hon''ble Supreme Court in the case of
17. In respect of his aforesaid branch of submission Mr. Dasgupta lastly referred to the evidence of Shri Rama Nath Bose, defendant''s witness No. 2, a consulting engineer by profession, and pointed out that in the last part of ills deposition it, had been recorded that in his view Rs. 1 lakh is a reasonable price for the suit property, along with its structures at the relevant time.
18. Mr. Dasgupta next contended that the readiness and willingness provision contained in Section 16(c) of the Specific Relief Act did not mean that the purchaser had to be in perpetual readiness while the contract was in existence. The purchaser was required to show that he was ready and willing to perform his part of the contract and that he had the means to do so. Mr. Dasgupta submitted that the learned trial Court had committed an error of law in applying the standard of proof required in a criminal trial to the provisions of Section 16(c) of the aforesaid Act.
19. In support of his aforesaid contention Mr. Dasgupta relied on the views expressed in Pollock & Mulla''s "Indian Contract and Specific Relief Acts" (Eleventh Edition) at Page 1287, to the following effect:
"Readiness and willingness of a person seeking performance in a case where time is provided for performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfil his obligations and accept performance when the time for ''performance arrives. But it does not mean that he had command of the necessary money throughout the existence of the contract. But to prove readiness and willingness a purchaser has not necessarily to produce the money or vouch a concluded scheme for financing the transaction. Failure to find money or prove possession of money before time for performance cannot entitle the, vendor to refuse performance".
20. Mr. Dasgupta submitted that, in any event, as will appear from the plaint, the plaintiff/appellant was all along ready and willing to perform his part bf the contract and to complete the transaction on payment of the balance of the consideration amount, and he even sent legal notices through his learned advocate, Mr. N.M. Ansari, requesting the defendant, to complete the sale, but it was the defendant who chose not to do so. On the other hand, the defendant''s advocate. Mr. S.M. Hanif, replied on his behalf and asked for inspection of the Agreement for Sale and although such inspection was offered on 10th January, 1986, neither the defendant nor his advocate turned up to take such inspection at Mr. Ansari''s chamber.
21. Mr. Dasgupta submitted that in his deposition also the plaintiff asserted that he was all along ready and willing to complete the sale and he even sent a legal notice (Exhibit 7) on 11th December, 1985, to the defendant to execute the sale deed upon receiving the balance consideration amount and the same was replied to by the defendant''s learned advocate on 21st December, 1985, asking for inspection of the Agreement for Sale. As mentioned hereinbefore, such inspection was duly offered by letter dated 6th January, 1986 (Exhibit 7C,) but such offer was not availed of by the defendant/respondent. By the same letter the defendant was again called Upon to execute and register the Deed of Sale which the defendant failed to do.
22. Referring to the decision of the Hon''ble Supreme Court in Indira Kaur and Ors. v. Sheo Lal Kapoor [MR 1988 SC 1074) Mr. Dasgupta urged that since the plaintiff/appellant had indicated that he had the capacity to conclude the transaction at the agreed consideration of Rs. 1,01,000/-the learned Court below erred in holding that the plaintiff had failed to prove beyond all reasonable doubt that he was ready and willing to complete the sale and that he had the means to do so.
23. Mr. Dasgupta submitted that the entire approach of the learned trial Court was erroneous and the plaintiffs suit was liable to be decreed upon the judgment and decree of the trial Court being set aside.
24. Appearing for the defendant/respondent, Mr. Shyama Prasanna Roychowdhury submitted that the consideration for the sale had been settled between the parties at Rs. 2,01,000/- and not Rs. 1,01,000/- as indicated in the Agreement for Sale (Exhibit 2). Mr. Roychowdhury submitted that it would be seen from the draft Sale Agreement provided to the defendant and marked Exhibit ''A'' that the portion where the consideration was to be indicated had been kept blank, and, in fact, the figure Rs. 1,01,000/- had been subsequently inserted in the Agreement for Sale (Exhibit 2) without the knowledge of the defendant/respondent.
25. Mr. Roychowdhury submitted that the case as made out by the plaintiff/appellant in the plaint and in his oral evidence in support thereof, makes it very clear that the plaintiffs learned advocate, Shri N.M. Ansari, played a very vital and prominent role at the stage of negotiation and preparation and execution of the Agreement for sale (Exhibit 2) and yet he had not been examined as a witness on behalf of the plaintiff. Mr. Roychowdhury submitted that since the entire transaction up to the stage of execution of the Agreement for Sale and payment of earnest money and further amounts had been conducted in Mr. Ansari''s chamber, he was the best person to know what terms had been agreed upon by the parties and what had transpired when the sale price was inserted in the Agreement for Sale, and yet his evidence had been withheld by the plaintiff. Mr. Roychowdhury urged that withholding of the best evidence should give rise to an adverse presumption against the plaintiffs contention that the consideration amount for the sale had been settled at Rs. 1,01,000/-.
26. Referring to the Agreement for Sale (Exhibit 2) Mr. Roy Chowdhury submitted that the said document itself would bear out the defendant''s contention that the sale price had been fixed at Rs. 2,01,000/- and that the figure indicating the sale price to be Rs. 1,01,000/- had been subsequently inserted without the knowledge of the defendant. Mr. Roychowdhury submitted that save and except for page 2 of the Agreement for Sale where the sale price had been indicated and page 3 where some of the important terms of the agreement had been set out, all the other pages of the agreement had been duly singed by the parties, which made it quite obvious that pages 2 and 3 of the Agreement for Sale as executed by the parties had been removed and substituted by those unsigned pages in the said Agreement at a date subsequent to the signing of the Agreement with the intention of asserting that the sale price had been settled not at Rs. 2,00,000/- but at Rs. 1,01,000/-.
27. Mr. Roychowdhury submitted that in the case of
28. Mr. Roychowdhury then referred to the oral evidence of Shri Rama Nath Bose, a panel engineer of the Court of the District and Sessions Judge. 24 Parganas, Alipore (South), who had been examined as witness No. 2 for the defendant and who had been entrusted by the defendant to inspect the suit premises and to make a valuation thereof. Mr. Roychowdhury pointed out that the said witness had mentioned in his report (Exhibit B) that the value of the property, comprising of the land and the structures erected thereupon and amenities connected therewith, would be Rs. 3,50,000/-. Mr. Roychowdhury submitted that the purported opinion of the said witness recorded at the end of his deposition that Rs. 1,01,000/- was a reasonable price for the suit property along with its structures, was obviously a case of erroneous recording and could not be read in isolation of the earlier part of the deposition and the report (Exhibit B) filed by the witness.
29. Mr. Roychowdhury urged that the Court would have to arrive at a finding as to what was the real agreement between the parties and the plaintiff would have to prove that he was ready and willing to perform the real agreement between the parties and not what appeared to have been agreed upon.
30. In support of his aforesaid submission, Mr. Roychowdhury referred to a Bench decision of the Patna High Court in
31. Mr. Roychowdhury also referred to two single Bench decisions of this Court in (1)
32. Reference was also made to two decisions of the Hon''ble Supreme Court in 1)
33. Mr. Roychowdhury submitted that it had also been held that grant of a decree for specific performance was a discretionary power of the Court and for exercise of such discretion the Court would have to be satisfied that the plaintiff was ready and willing to perform his part of the contract within a reasonable period.
34. Mr. Roychowdhury lastly referred to a Bench decision of this Court in
35. Mr. Roychowdhury urged that grant of a decree for specific performance was an equitable relief and the plaintiff must come to Court with clean hands to avail of such relief as had been held by the Orissa High Court in Khall Panigrahi''s case (supra). Mr. Roychowdhury submitted that since the sale price had been settled at Rs. 2,01,000/-, but the same had been tampered with in the agreement for sale (Exhibit 2), the learned Court below was justified in dismissing the suit and no interference was called for with the judgment and decree under appeal.
36. Replying to Mr. Roychowdhury''s submissions, Mr. Dasgupta submitted that once the Agreement for sale had been properly admitted into evidence its contents also stood admitted into evidence. It was not, therefore, available to the defendant to claim that what was said in the said agreement did not depict the actual state of affairs.
37. In support of his submission Mr. Dasgupta referred to the decision of the Hon''ble Supreme Court in the case of
38. Mr. Dasgupta also submitted that the defendant had not made out a case of fraud or misrepresentation before the learned trial Court and it was not open to him to make out such a case at the appellate stage.
39. In this connection Mr. Dasgupta, referred to a Bench decision of this Court in the case of Santosh Kumar Mitra and Anr. v. Snehalata Roy and Ors. (2000 CWN1938) where the Division Bench chose not to rely on the case sought to be made out that one of the heirs of the original tenant had not been made a party to the suit for eviction and the decree for eviction was, therefore, bad since neither in the written statements nor in the evidence had it been asserted that the said heir had ever expressed any right of tenancy in the suit premises after the death of the original tenant or after the death of her husband.
40. Reference was also made to another Bench decision of this Court in the case of Pratap Chandra Cope and Ors. v. Sarat Chandra Gangopadhyay and Ors. (33 CLJ 201) wherein on the question of burden of proof, Sir Asutosh Mookerjee, speaking for the Bench observed that the burden of proof lies upon the person who alleges that the apparent is not the real state of things and, although, circumstances of suspicion might exist, the Court should not decide upon mere suspicion but upon legal grounds established by evidence.
41. Mr. Dasgupta submitted that the learned Court below had erred in dismissing the suit and its judgment and decree impugned in the appeal was liable to be set aside and the suit was liable to be decreed for specific performance of contract.
42. Having carefully considered the submissions made on behalf of the respective parties we are unable to sustain the judgment and decree of the learned trial Court.
43. The Agreement for sale in its draft form and in its final form have both been exhibited in this case. While the original Agreement (exhibit 2) was produced by the plaintiff, the draft Agreement, which had been handed over to the defendant, was produced by the defendant and marked Exhibit ''A''. The former contains the sale price of Rs. 1,01,000/- said to have been agreed upon between the parties, while in the draft Agreement the said portion has been left blank.
44. The parties have made out their respective cases on the basis of the said two documents. While the plaintiff has contended that the sale price as agreed upon between the parties is what is indicated in the Agreement for. Sale and has also adduced oral evidence in support thereof, the defendant examined only himself and a valuer appointed by him to disprove the plaint case. Although, there were as many as five witnesses to the Agreement for Sale and one Kazi Abdul Rouf was the defendant''s own brother and another, Shah Jamal Chand, was his brother-in-law, who were present in the chamber of Mr. N.M. Ansari when the talks relating to the terms and conditions of the sale were conducted, the defendant did not examine them as witnesses on his behalf.
45. Instead, the defendant has at the appellate stage tried to make out a case of fraud purportedly practised by the plaintiff/appellant by allegedly substituting the pages of the Agreement for Sale where the sale price had been indicated. The case of the defendant in his written statement is that the relevant portion of the ''Sale Agreement, where the sale price was to be mentioned had been kept blank and inspite of repeated assurances by the plaintiff/appellant that the same would be filled up to show the agreed sale price of Rs. 2,01,000/-, the blank portion was filed up by the plaintiff to show that the agreed sale price was not Rs. 2,01,000/- but Rs. 1,01,000/-
46. In the written statement there is nothing to suggest that in the original Agreement for Sale (Exhibit 2) the sale price had been shown as Rs. 2,01,000/- and the same had been fraudulently tampered with to show the sale price was Rs. 1.01,000/- by substituting two of the pages of the original Agreement for Sale. The evidence of the defendant''s brother, Kazi Abdul Rouf and brother-in-law, Shah Jamal Chand, becomes both relevant and important as they could have thrown light on what had been agreed upon as the sale price by the parties. Of course, it is true that the plaintiff''s learned advocate, who played a vital role in the transaction and preparation of the Agreement for Sale and also conducted the suit on the plaintiffs behalf, could have also possibly removed the doubts-that have been raised, but, in our view, the defendant''s own brother and brother-in-law would have been more effective witnesses as in all probability they would have corroborated the defendant''s case. The defendant''s failure to examine them as witnesses in support of the defence case, infact, gives rise to an adverse presumption against the defendant.
47. Even during cross-examination of the plaintiff no suggestion was made that the pages of the Agreement for Sale had been fraudulently tampered with or substituted so as to show the agreed sale price to be Rs. 1,01,000/-. In fact, while deposing as DW1, the defendant stated that he had signed on the Agreement for Sale which had been typed on non-judicial stamp paper and the consideration amount was left blank therein. The case of substitution of a vital page of the Agreement for Sale has been made out for the first time at the time of hearing of the appeal.
48. In the face of the evidence adduced on behalf of the plaintiff/ appellant both oral and documentary, it is difficult to sustain the finding of the learned trial Court that the plaintiff had failed to prove that the sale price was actually settled at Rs. 1,01,000/- and not at Rs. 2,01,000/-. The approach of the learned trial Court that the plaintiff was required to prove beyond all reasonable doubt that the price was settled at Rs. 1,01,000/-is erroneous. The evidence adduced on behalf of the plaintiff clearly corroborates the plaintiffs case, that the sale price had been fixed at Rs. 1,01,000/-. On the other hand, except for the defendant''s assertion that the sale price had been settled at Rs. 2,01,000/-, there is no other evidence in support of such claim. The only factor, which appears to have weighed with the learned trial Court in arriving at the finding that the plaintiff had failed to prove his case that the sale price had been settled at Rs. 1,01,000/-. is the plaintiff''s failure to examine his learned advocate, Mr. N.M. Ansari, who had prepared the Agreement for Sale.
49. The onus of proving that the state of affairs was different from what was apparent from the Agreement for. Sale was on the defendant/respondent. In our view, the defendant has failed to discharge such onus. Non-examination of Mr. Ansari may raise doubts, but that by itself would not be sufficient to disprove the evidence led by the plaintiff or prove the defendant''s case that the sale price had been settled at Rs. 2,01,000/-. Except for contending that the consideration amount had not been mentioned in the Agreement for Sale at the time of execution, the defendant has not led any supporting evidence in support of his claim that the sale price had been settled at Rs. 2,01,000/-. The absence of the signatures of the parties to the Agreement in page 2 thereof may give rise to suspicion but the same is not sufficient to disprove the plaintiff''s case. As mentioned hereinbefore, the failure on the defendant''s part to examine his own brother and brother-in-law, who were present during the negotiations and the preparation and execution of the Agreement for Sale, cuts at the root of the defendant''s claim.
50. We are therefore, inclined to accept the plaintiffs version that the sale price had beep settled at Rs. 1,01,000/-.
51. On the question of plaintiffs readiness and willingness to complete the sale, we are inclined to agree with Mr. Dasgupta that the standard of proof applied by the learned Court below was erroneous and the learned Court below resorted to an erroneous approach in observing that u/s 16(c) of the Specific Relief Act the plaintiff was required to prove beyond all reasonable doubt that he was ready and willing to perform his part of the contract. There are sufficient materials on record to show that the plaintiff had made several efforts to conclude the sale and even caused legal notices to be sent to the defendant to accept the balance consideration and to execute a sale deed in his favour. The learned trial Court had proceeded on the basis that the plaintiff did not have the means to complete that transaction for a sum of Rs. 2,01,000/-. Since we have held that the agreed sale price was Rs. 1,01,000/-, we are unable to agree with the observation of the learned trial Court that the plaintiff had no financial ability to purchase the property and that he avoided and deferred the final negotiation within the stipulated time and he ultimately came to the Court on a false pretext. In cross-examination, the plaintiff categorically stated that he was in a position to complete the sale transaction at the agreed price of Rs. 1,01,000/- in 1983.
52. Mr. Roychowdhury did not seriously urge the ground relating to completion of, the sale transaction within eleven months from the date of execution of the Agreement for Sale. In any event, such a ground would not be available to the defendant who accepted a sum of Rs. 19,000/-from the plaintiff/appellant on 2nd November. 1934, beyond the said period of eleven months, towards part payment of the sale price, as will appear from the Agreement of Sale (Exhibit 2) itself.
53. In view of our aforesaid findings this appeal succeeds. The judgment and decree of the learned Court below is set aside and the plaintiff/ appellant''s suit for specific performance of contract in terms of the Agreement for sale dated 17th November, 1983, (Exhibit 2) stands decreed. The defendant/respondent is directed to execute and register a Deed of Sale in respect of the suit properly in favour of the plaintiff/appellant upon receiving the balance consideration money on the settled price of Rs. 1,01,000/-, after deduction of the amounts already paid, within a month from date. In case of failure of the defendant/respondent to execute and register such sale deed, the Registrar General of this Court shall upon deposit with him by the plaintiff/appellant of the balance consideration amount, execute and register a Deed of Sale in favour of the plaintiff/appellant in respect of the suit property and the defendant/respondent shall be at liberty to withdraw and appropriate the sum so deposited with the learned Registrar General.
54. Immediately upon execution and registration of the Deed of Sale, the defendant/respondent and/of the Registrar General or his authorised representative shall deliver possession of the suit property to the plaintiff/ appellant or to his duly authorised agent.
In the facts of this case, each, party shall bear his own cost in the appeal.
If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities.
P.K. Chattopadhyay, J.
55. I agree.
56. Appeal succeeds
