SAHIDA BIBI Vs. SK GOLAM MUHAMMAD

JUDGEMENT

(1.) On 14th May, 1971 a registered deed of agreement was made between the plaintiff-respondent and the defendant-appellant under which the defendant appellant contracted to sell Premises No. 9/1/C, Ekbalpur Lane measuring 3 cottahs 14 ohittaks 20 sq. ft. of land with structures standing thereon to the plaintiff-respondent at a price of Rs. 30,000/-. It is also admitted that at the time of the execution of the said agreement, the plaintiff-respondent had paid to the defendant-appellant a sum of Rs. 9,999/- by way of earnest money and part payment in terms of the said agreement. The learned subordinate Judge, 5th Court, Alipore has decreed the suit for specific performance of the said agreement of sale dated 14th May, 1971, inter alia, directing the defendant to execute and register the deed of conveyance in respect of the suit property in favour of the plaintiff on accepting the balance consideration of Rs. 20,001/-. The learned subordinate Judge has rejected the plaintiff-respondent's claim that on 18th June, 1971 he had paid to the defendant a further sum of Rs. 4,000/-towards part payment of the consideration money and, he was liable to pay Rs. 16,001 /-as the balance consideration.

(2.) Mr. Sudhis Das Gupta, learned advocate for the defendant-appellant, has not challenged the finding of the learned subordinate Judge that the aforesaid agreement dated 14th May, 1971 was not a loan transaction as claimed by the defendant in the trial Court and that the same was really an agreement for sale of the suit property. Mr. Das Gupta's only submission is that specific performance of the said contract cannot be enforced in favour of the plaintiff respondent because he had violated the essential terms of the contract by offering to pay Rs. 16,001/- instead of Rs. 20,001/- as the balance consideration money both before the institution of the instant suit and also thereafter. Secondly, the plaintiff's case on 18th June, 1971 he had paid a further sum of Rs. 4,000/- to the defendant, was found to be not true, therefore, it ought to be held that by offering Rupees 16,001/- and not the full amount of the balance consideration money, the plaintiff had failed to aver and prove that he had performed and had been always ready and willing to perform the essential terms of the contract which were to be performed by him. Mr. Das Gupta in support of his submission has relied upon the decisions reported in Manik Chandra Bhowmik v. Ahhoy Charan Gope, (1916) 24 Cal LJ 90 : (AIR 1917 Cal 283) and Nalini Nath Mitra v. Bepin Behari Das.

(3.) Unless and until the contrary is proved according to Expln. (i) of Section 10 of the Specific Relief Act, 1963, the Court shall presume that the breach of a contract to transfer immovable property cannot he adequately relieved by compensation in money. The plaintiff in a suit for specific performance of an agreement to sell an immovable property, can obtain a decree only by praying that there was a concluded contract and his relief was not barred by limitation. He cannot enforce specific performance when he has become incapable of performing or violates any essential term of the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with or in subversion of the relation intended to be established by the contract. His relief would be also barred when he fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant (vide Clauses (b) and (c) of Section 16 of the Specific Relief Act, 1963).