At, High Court of Rajasthan
By, THE HON'BLE JUSTICE ARUN MADAN
Mahesh Sharma, Mahesh Gupta
1. This appeal has been heard finally at the admission stage itself. Since the parties are duly represented by their counsel.
2. The background in the context of which the present appeal has been filed briefly stated is that the appellant-plaintiffs (hereinafter to be referred to as "plaintiffs") instituted a civil suit before Civil Judge (J.D.), Baran titled Ram Karan and others v. Govind Lal vide Civil Suit No. 157/81 (125/92) on the allegations that the plaintiffs and defendant No. 1 Govind Lal and his mother late Smt. Ram Kawari Bai had jointly executed an agreement for sale of the agricultural land falling in Khasra Nos. 274 measuring 26 bighas 18 biswas in village Ghorigaon, Tehsil Mangrol, District Baran in consideration of Rs. 5000/-, hence a lawful contract came into force between the parties w.e.f. 24-4-1966. This fact is also borne out from the certified copy of the aforesaid agreement which has been shown to this Court during the course of hearing of this appeal by the learned counsel for the appellants. It was further contended in the plaint that after the death of mother of defendant No.
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1 Govind Lal, the plaintiffs had served a notice upon the defendants through their counsel on 1-9-1981 to get the sale agreement registered and for specific performance of the contract, since the respondent had wilfully and for reasons best known to him had failed to execute the sale-deed notwithstanding having received the consideration of Rs. 5000/- in lieu of the sale of the aforesaid land but had mala fide intention of not passing over the legal title to the plaintiff, since evidently he was waiting for acceleration of the price of land and his intention had changed which resulted in filing of the aforesaid suit for specific performance by the plaintiffs. It is noteworthy to mention that prior to the institution of the suit for specific performance by the plaintiff, the respondent with mala fide and ulterior motive had also filed a suit for recovery of possession of the land in question from the plaintiffs, since obviously he had no intention to execute the sale-deed. In a suit for specific performance instituted on the basis of a duly executed agreement to sell, the basic requirement of law which the Civil Court at the first instance should appreciate is the intention of the party vendor who had sold the land and received full consideration in lieu of the said sale and also as to whether he has any intention to pass on a lawful and valid title to the vendee i.e. buyer and this aspect is also to be seen on the basis of the evidence adduced during trial by either party to the case. In this case it is an admitted fact that the agreement to sell was lawfully executed between the parties on 24-4-1966 and what has to be seen is the conduct of the vendor, i.e., seller after the execution of the agreement of sale. Rather from the evidence on the record and also the pleadings of the parties it is fully borne out that the respondent had absolutely no intention to execute the sale-deed in favour of the appellant notwithstanding having received full sale consideration, since otherwise nothing would have impelled him to institute a suit for recovery of possession of that very land to which earlier he was willing party for sale. The conduct of the respondent in my view deserves to be highly deprecated and this deplorable conduct which vitiates the very letter and spirit of the agreement to sell, since the appellant at no stage had expressed his unwillingness to get the sale-deed lawfully executed before the Registrar of Properties. This fact is also borne out from the notice which the appellant served on the respondent through his counsel after having waited all through during the period 24-4-1966 to 19-6-1981 when the legal notice was served and thereafter having received no positive reply from the respondent he ultimately filed a suit for specific performance of the aforesaid agreement in the Civil Court as on 13-11-1981.
3. From the perusal of para 10 of the written statement filed by respondent before the trial Court it is revealed that the respondent had made an averment that the land is ancestral and belongs to undivided Hindu family and was not meant for benefit of the family. It had further been averred that Ram Kuwari Bai, defendant No. 2, had no authority vested in her to enter into agreement of sale with the appellants for the aforesaid land and even if any such agreement had been entered into between the parties it shall have no consequential effect upon the rights of the parties.
4. The aforesaid averment has surprisingly been made by that very individual who is signatory to the aforesaid agreement to sell which was lawfully entered into between the parties way back on 24-4-1966 and at such a belated stage there is a sweeping change in her mind and intention to have woken up from the slumber and she consequently thought of walking away from her responsibilities towards the appellant as regards the agreement of sale which though was executed by the appellant in her favour. If such is the conduct and attitude of the parties then no citizen in my view, will feel safe to enter into transactions involving monetary considerations by which the legal obligations of the parties are depending upon for their lawful enforcement or compliance. It is precisely for this reason that the legislature in its wisdom had rightly thought of introducing the legislation i.e., the Specific Relief Act (Act No. 47 of 1963) with a view to safeguard the rights, title and interest of those parties who may enter into genuine transactions for enforcing their rights by executing the sale agreement on the basis of duly executed contract of sale. From the perusal of aims and objects of the said legislation it is apparent from the preamble of the Act "to define and amend the law relating to certain kinds of specific reliefs". The Act is founded on the principle of equitable jurisprudence and on the maxim "that he too had committed inequity shall not have equity". The remedies for the non-performance of a duty enforceable by law are either compensatory or specific i.e., specific enforcement of lawful agreement duly executed between the parties and acted upon. While compensatory remedy comes by way of award of damages. As regards the specific remedy is concerned it is to be enforced by directing the defaulting party to do or forbear the very thing which he is bound to do or forbear and in the case of disobedience, by imprisonment or attachment of his property or both. We have to bear in mind the above background of the legislature in the aforesaid legislation was enacted solely with a view to safeguard the rights, title and interests of the innocent parties who get involved in the acts of betrayal by the defaulting parties such as the respondents in the present case. It is a matter of surprise that the salient aspect of the matter had not been gone into either by the trial Court or by the first appellate Court and concurrent findings of fact have been recorded and drawn on illogical presumption and conclusions have been arrived at by the learned Civil Judge without examining either the salient aspects of the clauses of the agreement in question nor the binding effect of the corresponding legal obligations which the respondent was bound to perform qua the appellant-plaintiffs in lawful discharge of his duties.
5. As regards the question of limitation and maintainability of the suit, learned counsel for the respondents during the course of hearing, vehemently contended at the bar that the suit for specific performance giving rise to the present appeal was hopelessly barred by limitation inasmuch as while the agreement was executed as on 24-4-1966, the suit was instituted on 13-11-1981. While Article 54 of the stipulates three years as the date fixed for performance, or if no such date is fixed when the plaintiff has notice that performance is refused. In the instant case in my humble opinion the limitation of three years would not be applicable since there was no clause in the agreement stipulating the time for execution of the sale-deed being the essence of the contract, hence the limitation of three years for the purpose of institution of a suit of such nature would not be relevant and the only logical conclusion as regards the period of limitation of three years would be the date from the accrual of cause of action which in the instant case should obviously be construed as the date when the notice for justice demand was served on the respondent by the plaintiffs i.e. 19-6-1981 while the suit was filed on 13-11-1981. Hence the suit is obviously within the period of limitation and the trial Court has already recorded a well reasoned finding in this regard which has been upheld by the first appellate Court of the Addl. District Judge, Baran vide impugned order, dated 3rd August, 1994.
6. Learned counsel for the respondents in support of his proposition has placed reliance upon the judgment of the Apex Court in the matter of K. S. Vidyanadam v. Vairavan,1997 AIR(SC) 1751. I have examined the ratio of the said decision and in my view the same is neither attracted nor is applicable to this case.
7. Since delay is attributed to the conduct of the respondent-defendant himself which has been responsible for the same in having wilfully avoided the execution of the sale deed though he was signatory to the agreement of sale and after having received the full sale consideration has avoided to do so. In this context it is relevant to mention Section 10 of the which mandates the following situation in which the specific performance of an agreement may be enforced :
"Sec. 10- Cases in which specific performance of contract enforceable- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced --
(b) When the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief."*
8. In the instant case since there exists no standard for ascertaining the actual damages caused by the non-performance of the act agreed to be done between the parties and the act agreed to be done is of such a nature that compensation by way of damages would not be a substitute to the execution of the sale-deed. I deem it appropriate to direct the respondents to enforce the specific performance of the agreement dated 24-4-1966 by executing a sale-deed in respect of the land falling in Khasra No. 274 measuring 26 bighas and 18 biswas. The parties are directed to appear before the Registrar of Properties, District Baran where the aforesaid land is situated positively within a period of 90 days from the date of receipt of certified copy of this order failing which the Registrar of Properties, Baran is directed to get the sale-deed lawfully executed between the parties within a period of 30 days thereafter in accordance with law. It is further directed that necessary expenditure towards stamp duty shall be borne by the appellants. There will be no order as to costs. The appeal is allowed and stands accordingly disposed of.