HADUPANI SABATO Vs. GANTA RATNAM

JUDGEMENT

(1.) The plaintiff in a suit for specific performance of contract is the appellant. The case of the plaintiff is that the defendant executed ah agreement (Ext. I) on 9-12-1963 agreeing to sell Ac. 0.99 cents of land situated in village Goelundi in Berhampur Town for a sum of Rs. 19.800/- at the rate of Rs. 200/- per cent of land and took an advance of Rs. 500/-. In the agreement, it was stipulated that the defendant would get the land measured in presence of the plaintiff within 2 months and 15 days from the date of the agreement and execute and register a sale deed and deliver possession of the property to- the plaintiff within that period of 2 months and 15 days. In case of failure to get the land measured in presence of the plaintiff and to execute the sale deed the defendant would refund the advance amount of Rs. 500/-along with Rupees 6,000/- as damages and also execute and register the sale deed. If within the stipulated period the plaintiff fails to carry out his part of the contract, then he had also to pay Rs. 6,000/- as damages to the defendant and purchase the land at the stipulated price. But in spite of repeated requests by the plaintiff, the defendant postponed the execution of the sale deed on some plea or other, although the plaintiff offered the balance consideration money. Some time thereafter, the plaintiff came to know that the defendant left for some other place along with her husband. Plaintiff then made enquiries to find out the address of the defendant in order to complete the transaction, but in spite of his best effort, he failed to get the correct address of the defendant. From local enquiry the plaintiff got information that the defendant would be available at Rourkela, as her husband was serving there. Plaintiff sent three registered letters to the defendant through his advocate, but all the letters came returned without being served. Some time later, the plaintiff learnt that the defendant had come to Berhampur and therefore he went to her place, but the defendant remained inside the house and avoided to talk to the plaintiff. As the plaintiff failed to contact the defendant, he sent another registered letter to the defendant on 11-2-67, but the said letter came back with the endorsement that the addressee refused to accept the letter. It is averred that the plaintiff has been keeping the balance consideration money ready at hand with the hope that the defendant would perform her part of the contract, but the defendant is avoiding to perform her part of the contract. The plaintiff has claimed damages to a tune of Rs. 6,000 and for execution of the sale deed.

(2.) The case of the defendant is as follows:- She has denied the receipt of an advance of Rs. 500/- from the plaintiff and to have agreed to sell the suit land to the plaintiff. She states that she does not know the plaintiff and has neither seen him nor negotiated anything with him for any sale deed. One Narasingh Panigrahi falsely represented to her that Government would take possession of all the lands for the construction of the Medical and Engineering Colleges as well as Hospital and other quarters and it would be very difficult for the defendant to go to various offices and courts to Ret the compensation money. Besides, the compensation that would be paid would be very low. To avoid all these troubles, she had to show that she had either sold the land or agreed to sell the same to someone, so that the transferee or the conractee would pursue the matter and get good compensation and pay the same to the plaintiff. The said Narasingh Panigrahi did not allow any time to her for taking any advice or cool thinking. Her husband was absent and at that time Narasingh Panigrahi secured two outsiders and the scribe, who likewise made all sorts of ' misrepresentation to her colluding with Narasingh Panigrahi and got an agreement scribed in Oriya. She does not know reading or writing in Oriya and without letting her know the contents of the document, her signature was taken thereon. At the time of obtaining her signature, she was orally informed that the payment of Rs. 500/- as advance, as written in the document was meant to give an impact of genuineness to the transaction, although she was really not paid the amount. The plaintiff is a man of no means and the allegations relating to notices are totally false. The defendant was residing with her husband at Berhampur in the police staff quarters for nearly eight months from the alleged date of the agreement, from there they went to Chatrapur and from Chatrapur her husband went to Panposh and Rourkela but she was all along residing at Kama Palli at Berhampur. The story that the defendant's whereabouts could not be known, is manipulated. The plaintiff did not go to measure the land in presence of the defendant and he had no money in hand. The plaintiff also did not get the stamp paper and never asked the defendant to execute and register the sale deed. In fact the defendant attended the Sub-Registrar's office when the period of 2 months and 15 days was going to expire, but neither the plaintiff nor Shri Narasingh Panigrahi came to that office. Before expiry of 2 months and 15 (Jays the defendant sent a registered notice to Narasingh Panigrahi complaining about his laches and default. It is alleged that Narasingh Panigrahi had taken away the title deeds 'from the defendant and had not returned the same. After the registered notice by the defendant, Narasingh Panigrahi did not send a reply, but instead sent a man to threaten the defendant with action. Defendant never agreed to pay the damage of Rs. 6,000/-and the plaintiff has not suffered any damage. It is further averred that the alleged agreement is vitiated with fraud and misrepresentation and is never valid or binding on the defendant and as such, cannot be enforced. The defendant treated the alleged agreement as invalid and cancelled and negotiated for sale of the said land for Rupees 50,000/- and the plaintiff having come to know of this has filed the suit and he is not entitled to the specific performance of the contract.

(3.) The trial court has held that the defendant out of her own free will entered into the contract and executed Ext. 1 with full knowledge of the terms embodied therein and that an advance of Rupees 500/-had been paid by the plaintiff to the defendant who agreed to sell the suit property. The defendant did not fail to perform her part of the contract. The agreement Ext. 1 is enforceable and binding on the parties in spite of the delay in its performance. The damages contemplated under Ext. 1 would not mitigate or substitute the relief for specific performance. The consideration for the sale of the land under Ext. 1 cannot be said to be a bad bargain. The allegation of fraud said to have been practised by Narasingh Panigrahi (P. W. 3) hats been negatived. The plea of the defendant that she did not refuse to receive the registered notices sent by the plaintiff cannot be accepted. The defendant failed to discharge the onus in establishing that the plaintiff had abandoned the contract and the delay in coming to Court will not stand in the way of specific performance of contract. Time was not of the essence of the contract, but ultimately it is held that the plaintiff is not entitled to decree for specific performance of the contract, inasmuch as he was not willing to perform his part of the contract one or two days before the expiry of the period of two months and fifteen days as agreed in the contract.