Rajiv Narain Raina, J.@mdashThe defendants have preferred this second appeal against the concurrent findings of both the Courts below decreeing the suit for specific performance of an agreement to sell dated 7th March, 1990. The suit has been decreed with respect to land measuring 32K out of the total land measuring 48 Kanals. From the land holdings of 48K, 16 were owned by defendant No. 1, father of defendants No. 2 to 5. 16K each was owned by Prem Sagar-defendant No. 2 and defendants No. 3 to 5-Ramesh Chander, Jagmohan and Ravinder Kumar. The suit has been decreed. Jawala Dass-defendant No. 1 entered into an agreement to sell Ex. P1 with plaintiff Lalji on his own behalf as well as on behalf of his sons. The total sale consideration for the agricultural land was agreed at Rs. 39,000/- per acre. The total amount came to be Rs. 2,34,000/- of which Rs. 30,000/- was paid in advance as earnest money. The contracted date for execution and registration of the sale deed was fixed for 23rd May, 1990. It was extended on the request of Jawala Dass and Prem Sagar, father and one of his sons for 4th June, 1990. On the appointed date, Lalji awaited the defendants in the office of the Sub-Registrar but they did not turn up. Lalji served a legal notice on the defendants on 15th July, 1990 to come forward. The report of the postman is that the defendants were not found. Again on 16th August, 1990, a reminder legal notice was served, on which, the report says that there was refusal to accept the letter. Disputes arose and Lalji brought a suit in the civil court at Rohtak Sessions Division on 16th August, 1991 for possession by way of specific performance of contract of sale.
2. The suit was contested by all the defendants. They denied execution of the agreement to sell. They called it a forged and bogus document. A other plea taken was that the plaintiff was never willing and ready to perform his part of the contract and thus, the suit is not maintainable. The execution of the agreement to sell Ex. P1 and receipt for extension of time Ex. P2 have been duly proved by PW1-Inder Singh [attesting witness], PW4-Bhagwan Dass [attesting witness] and PW10 [plaintiff himself]. The signatures of the parties have also been duly proved by PW5 - R.P. Singh, Hand Writing and Fingers Print Expert vide his report Ex. PW5/1. The readiness and willingness on the part of Lalji has been duly proved by the Clerk of Sub-Registrar office that his presence was marked on the agreed contract date. The readiness and willingness of Lalji has also been proved by the Accountant produced from the State Bank of India as well as counterpart from the Haryana Keshtriya Gramin Bank who appeared as PW8 and PW9 respectively to prove the statement of account of Lalji Ex. P5 and P6 depicting that there were sufficient amounts in the account of the plaintiff for meeting the expenses for execution and registration of the sale deed. The warning notices served by Lalji on the defendants have been proved by PW11 Rajinder Singh, a Clerk of the counsel. Lalji stepped into the witness box as PW10 in support of the pleadings in the plaint.
3. In defence, Jawala Dass stepped into the witness box as DW1. He examined DW2 Haveli Ram, record-keeper of Sessions Court, Rohtak. The record relied upon was judicial record regarding a criminal complaint filed under Section 420 IPC by the defendants against Lalji for committing fraud on them. This was in complaint case No. 406 of 1990. The complaint was dismissed by JMIC, Rohtak on 23rd February, 1991. The defendants had committed no fraud on Lalji. Defendants No. 2 to 5 did not step into the witness box to deny the averments of the plaintiff in his plaint. The suit was partially decreed for 32 Kanals of land vide judgment and decree dated 28th November, 1996.
4. The Court of first appeal has affirmed; in the appeal carried by the losing party, the decree vide appellate judgment and decree dated 22nd September, 1998 and the suit for specific performance has been partly decreed. Resultantly, the decree has been restricted to cover the shares of D1 and D2, i.e., Jawala Dass and his son Prem Sagar. The remaining land has not been decreed as their owners did not sign up the sale agreement. It is for this reason alone that Lalji was unable to use the agreement to sell against those sons of Jawala Dass whose signatures neither appeared on the sale agreement Ex. P1 nor on the note regarding extension of time Ex. P3. It matters little that Jawala Dass and Prem Sagar had sought to act on behalf of the remaining sons as the act did not bind those who were not privy to the contract. To reiterate, Prem Sagar did not appear in the witness box to deny on oath that he had not signed Ex. P3 along with his father. The Court found in note Ex. P3 words duly recorded therein that Prem Sagar son of Jawala Dass was present and admitted that he had orally given the authority to his father-Jawala Dass to enter into an agreement of sale on his behalf in respect of his agricultural land. He agreed to be bound by the sale agreement. When he did not step into the witness box, the Court rightly drew an adverse inference against him. Therefore, it was reasoned that the agreement was binding on the rights of both Jawala Dass and his son Prem Sagar.
5. The present appeal has been filed by Jawala Dass and his son Prem Sagar. The appellants wish to wriggle out of the agreement by imputing fraud practiced by the plaintiff on them while getting the alleged agreement to sell signed. They had filed a criminal complaint under Section 420 IPC against Lalji in the criminal court at Rohtak which failed with the dismissal of the complaint. It is argued that the contents of the complaint Ex. P3 were not taken into consideration while decreeing the suit of Lalji when this was a material circumstance to avoid the agreement as one obtained by fraud. The appellants say that there has been misreading of the jamabandi for the year 1990-91 by the Courts below. If Lalji had claimed alternative relief of recovery of Rs. 60,000/-, i.e., Rs. 30,000/- as earnest money and Rs. 30,000/- as damages, then the suit for specific performance could not have been automatically decreed since it was a discretionary relief and discretion should have been exercised judicially and in favour of the appellants. They urged that Lalji should be restricted to the alternative relief of recovery of money and nothing more.
6. Mr. Markan appearing for Lalji and Prem Sagar submits that in any event, specific performance cannot be enforced against Prem Sagar who did not sign the agreement to sell but only the receipt and, therefore, he cannot be said to be a party to the sale agreement and be bound by its terms. However, this aspect has been dealt with by the courts below and especially the court of first appeal and it found sufficient evidence on record to bind Prem Sagar to the sale agreement via the receipt which was not denied by agitation. Since he was present on the material date with his father Jawala Dass and agreed that he would be bound by the acts of his father in selling his share of the property, I find no reason to disbelieve the view expressed by the learned ADJ, Rohtak that there was sufficient link evidence to connect Prem Sagar with the sale agreement although he had not signed the agreement to sell.
7. When Prem Sagar did not step into the witness box to face cross-examination, then the Courts a quo were right in drawing an adverse inference against him and this act and conduct of Prem Sagar would amount to active approval of what his father was going to do towards sale of the property.
8. He would next submit that the suit was brought after a delay of about a year from the date of the last legal notice. When there was delay in filing the suit, there should have been pleadings by Lalji explaining why he approached the court late after about a year from the date of notice. There should be a pleaded case when the Court is approached late. It should not only be pleaded but deposed too as well.
9. Mr. Markan takes the Court to the personal bars to relief in Section 16 of the Specific Relief Act, 1963. Section 16 lays down that specific performance of a contract cannot be enforced in favour of a person who would not be entitled to recover compensation for its breach. On a reading of the three bars in Section 16 i.e. 16(a), (b) and (c), particularly the explanation for purposes of Section 16(c), I do not find that the delay in approaching the Court needs to be pleaded and explained so long as the suit was brought within the period of limitation prescribed for a suit for possession by way of specific performance in the Limitation Act, 1963.
10. Mr. Markan relies on
11. Learned counsel argues further that specific performance cannot be enforced in favour of a person who would not be entitled to recover compensation for its breach. Lalji could always take compensation as prayed for by him as an alternative relief. However, Section 16 of the Act is not a stand-alone provision of law and has to be read together with Section 20, which deals with discretion as to decreeing specific performance. When read together, the jurisdiction is albeit discretionary and the Court is not bound to grant relief merely because it is lawful to do so but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. The contract in this case in my opinion did not give the plaintiff an unfair advantage over the defendants. Neither is it pleaded in defence under Section 20(b) that granting specific relief would involve hardship on the defendants which they did not foresee whereas its non-performance would involve no such hardship on the plaintiff. Explanation 2 to Section 20 of the Act moors defence of hardship to be determined with reference to the circumstances existing at the time of the contract unless hardship has resulted from any act of the plaintiff subsequent to the contract which is not the case.
12. I do not think that in this case, it would be inequitable to enforce specific performance. When the basic ingredients entitling the plaintiff to a decree are present, then it would be wholly inequitable to deny a decree of specific performance. If Jawala Dass overstepped his authority and agreed to sell the total land of which he was not owner and only a part of which he was, then only his son Prem Sagar would remain bound, others not so, since there is nothing on record which would bind their rights over their respective properties which they did not agree to part with. An oral contract is also not to be read against the left out sons of Jawala Dass.
13. Next Mr. Markan argues on the strength of Section 12 of the SR Act. He submits that the Court shall not direct specific performance of a part of contract. Section 12 prescribes that part performance of a contract is not impermissible. Section 12(3) lays down that where a party to contract is unable to perform the whole of his part of it and the part which must have been left unperformed either forms a considerable part of the whole though admitting of compensation of money or does not admit of compensation in money, then he is not entitled to obtain a decree for specific performance; but the Court may at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform. Section 12(4) suitably answers the question posed by Mr. Markan when it provides that when a part of contract, which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.
14. It appears well settled law that justice demands partial enforcement of contract instead refusal of specific performance in its entirety [See
15. A word, however, would do with respect to delay in approaching the Court since Mr. Markan has not only vehemently argued this point but has cited case law in support of it. He refers to the decision of the Supreme Court in
"13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the term of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices, - according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
16. The delay was linked to rise in prices as ground to be considered for declining relief of specific performance. The suit property was a house in an urban area in Madras where prices fluctuations can be spectacular. The Court expanded the law and made it vendor friendly and more in tune with the times. The Court contrasted the old and the new market conditions and held : -
"Indeed, we are inclined to think that the rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case or urban immovable properties. It is high time, we do so. Learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specific six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent" All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit[s] for taking steps by one or the other party it must have some significance and that the said time-limit[s] cannot be ignored altogether on the ground that time has not been made the essence of the contract [relating to immovable properties]"
17. In the present case, we are not dealing with urban property. The subject matter is agricultural land. The suit agreement is an old one of March, 1990. The plaintiff did not sit doing nothing. When the defendants backed out from the deal on 4th June, 1990, he served a legal notice on 15th July, 1990 and followed it up with a second one on 16th August, 1990. This showed that he took diligent steps in protection of his rights. There was no delay. The suit was filed on 16th August, 1991. It was not pleaded by the defendants as in K.S. Vidyanandam [supra] that the land value had shot up within one year so drastically that specific performance should ordinarily be avoided. I do not think that bringing a suit after about a year of the notice should be read fatal to the cause of action by reason of delay and I am thus unable to accede to the argument of Mr. Markan that specific performance of contract should be denied altogether. The judgment in K.S. Vidyanandam [supra] is therefore distinguishable on facts.
18. In the present case, there are firm and sound findings based on documented record from the banks that Lalji was ready and willing to perform his part of contract and sufficient funds were available at his command. The true value of Ram Awadh''s case [supra] is in its ratio that the Supreme Court held that its earlier decision in
"5. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh''s case is erroneous."
19. The result of the decision is that the defence of readiness and willingness of the plaintiff to perform his part of the contract is available not only to the original vendor but also to the subsequent purchasers.
20. Two other decisions cited by Mr. Markan may be noticed which really do not help him in promoting the cause of his clients or make out a case for reconsideration. In Balkar Singh v. Mohabat Singh; 2003 (4) RCR (Civil) 404, the Learned Single Judge of this Court in second appeal dealt with the case of specific performance of part of contract with respect to joint property. The vendor''s father included the minor''s share of ancestral property in the agreement to sell. The title to minor share could not be transferred except by court decree or order and thus no sale could be made of the share of the minor, the title being defective in case passed. The Court took the view that the Civil Court can grant decree for specific performance against the vendor to the extent of his share on the payment of proportionate consideration. This case has been cited to save Prem Sagar to enable him to avoid the contract with respect to 16 Kanals of land and, therefore, as a last submission, Mr. Markan urges that only the share of Jawala Dass can pass to the vendee but not the share of his son Prem Sagar. This would have been the true position in law but for the evidence which has come on record that Prem Sagar affirmed, participated and agreed to sell his share in the ancestral land by signing the receipt in token of acknowledgement although he may not have signed the sale agreement. He made himself a privy to the sale transaction and inversely bound himself to the contract. The two property documents have been read together by the Courts below. To rope in Prem Sagar, I find nothing wrong or any material irregularity committed by the Courts below in harnessing two parcels of land and clubbing them together by estoppel though the term has not been used in the judgment of the courts below. Thus, Prem Sagar was estopped from taking a contrary stand. But he remained the wiser by not stepping into the witness box to depose on oath as to the circumstances in which he put his signatures on the receipt to wash his hands off it. Therefore, an adverse inference was drawn against him. I find nothing wrong in this. After all, he will take valuable consideration from sale of his land. The deal is not free or without consideration of disproportionate to size of land and market price of the same. Mr. Markan expounded his case re: Prem Sagar from yet another angle to urge that only a person privy to the contract is bound. Prem Sagar was not privy to the contract of an agreement of sale which undoubtedly he was not but the words in the receipt are strong indicators that he went along with his father in the deal.
21. For the foregoing reasons, I do not find any merit in this appeal which is ordered to be dismissed as no substantial questions of law arise for consideration of this Court on its second appeal side.
