Jose v. Anantba Bhat

CASES REFERRED: 1. ILR 1980 KAR 702 - Shivannappa v. Virupaxappa (Foll) 2. AIR 1984 Gujarat 145 - Shah Jitendra v. Lallubhai (do)

Mr. Udaya Holla for Appellants

Mr. G.S Visyeswara

The Judgment of the Court was delivered by

Chandrakantaraj Urs, J.:— This appeal by the indigent is directed against the judgment and decree dated 20-4-1985 in O.S No. 20 of 1981 on the file of the Civil Judge, Puttur, D.K The respondent in this appeal filed that suit inter alia stating that there was an agreement to sell as per Exhibit P-1 by which the defendant-appellant had agreed to convey to him the suit schedule property being agricultural land with buildings, kumki rights, right of way and water etc., that he had paid an advance of Rs. 13,000/- in two installments and had further agreed to pay a sum of Rs. 5,000/- on or before 30th April 1981 and take possession of the property and complete the transaction of sale within six months from the said date. He further stated that on 27-4-1981, he went to the house of the defendant to tender Rs. 5000/-, but did not find him in the house. Therefore, returned without paying the amount. He was accompanied by two of his friends. Similarly, he attempted to tender the amount on 30-4-1984 and went to the house of the defendant along with his friends, but did not find the defendant in the house. Therefore, he came back without tendering the amount as he was unable to do so. He received soon thereafter a Lawyer's notice dated 5-5-1981 got issued by the defendant stating that he had forfeited the sum of Rs. 13,000/- paid as advance towards the purchase of the suit schedule properties as time was the essence of the contract sad as he had failed to pay the sum of Rs. 7000/- being the balance consideration on or before 30-4-1981. He got a reply issued through his Lawyer and as the defendant did not make any attempt to convey the property receiving the balance consideration, he was compelled to file the suit for specific performance.

2. The defendant contended in his written statement that in the light of the failure of the plaintiff to pay the balance consideration on or before 30-4-1981 and in the meanwhile he having contracted to purchase some property in Kerala and having paid Rs. 13,000/- advance to the owner of that property, had been compelled to forfeit that amount of Rs. 13,000/- on account of the non-payment of the balance of consideration on or before 30-4-1981 and in the light of that there was no obligation on the part of the defendant to perform his part of the contract. It was also averred that by the conduct of the plaintiff, lie bad shown no willingness to perform his part of the contract under the suit agreement.

3. In the light of the pleadings as above in essence, the following issues were framed:

1. Whether the plaintiff proves that lie was always ready and willing to perform the suit agreement of sale dated 15-4-1981 and that the defendants evaded to perform their part of contract?

2. Whether the plaintiff proves that the defendants by evading to receive Rs. 5000/- part of sale consideration amount, failed to handover possession of the suit ‘A’ Schedule property?

3. Whether the plaintiff is entitled to claim possessory relief against the defendants on the strength of suit agreement of sale?

4. Whether the plaintiff proves that alternatively defendants are liable to refund Rs. 13,000/- advance money together with interest 15% per annum?

5. Whether the plaintiff proves that the defendants are liable for damages in a sum of Rs. 30001- on account of their breach of suit contract?

6. Whether the plaintiff is entitled to recover mesne profits from the defendants as claimed? If so, at what rate?

7. Whether the plaintiff is entitled to possesory relief as well as relief of specific performance of suit agreement for sale against the defendants?

8. Whether the defendants prove that time was the essence of suit contract?

9. Whether the defendants prove that the plaintiff committed breach of suit agreement of sale?

10. Whether the claims made by the plaintiff are excessive?

11. Whether the plaintiff is entitled to the relief of possession and specific performance or refund of the amount with interest and mesne profits as claimed?

12. What order as to costs?

13. What decree or order?

4. On account of Issue No. 8, which related to the question of maintainability of the suit itself that issue was taken up first and decided by the learned Judge. That issue was whether “time was the essence of contract.”

5. Having regard to the totality of the conduct of the parties and undisputed facts in regard to the execution of the agreement to sell as well as the receipt of Rs. 13,000/- by way of advance consideration, the Court rightly came to the conclusion, having regard to the contents of the documents and oral evidence that the time was not the essence of the contract. Having so held the Court proceeded to consider other issues and on the evidence led in regard to other issues came to the conclusion that the plaintiff was entitled to a decree for specific performance of the contract and directed execution of the deed of conveyance by the defendant and to receive balance of consideration.

6. In this Court, Shri Udaya Holla, learned Counsel for the appellant, has argued that the judgment and decree is liable to be set aside by this Court on the following grounds:

1. That the suit agreement to sell was hit by Section 23 of the Indian Contract Act in as much as the enforcement of the agreement would result in the breach of law, particularly the proviso to Section 79-A(1) of the Karnataka Land Reforms Act, 1961, and therefore, the Court could not and ought not to enforce it.

2 That the plaintiff had not proved that the time was not the essence of contract.

3. That the cost of damages of Rs. 1000/- awarded in the suit by the Court below was on no evidence at all and, therefore, that part of the decree atleast was liable to be set aside.

4. That the trial Court misdirected itself in appreciating the oral evidence on records and in coming to the conclusion that the plaintiff was entitled to the specific performance of the suit agreement as there was no evidence on the part of the plaintiff that he was ready and willing perform his part of the contract.

7. In so far as we are required to deal with the first ground urged, we are satisfied that the matter is concluded and covered by the decision rendered by this Court in the case of Shivannappa Sidramappa Prantur v. Virupaxappa Allappa Bagi . ILR 1980 KAR 702.. Almost identical argument fell for consideration before the learned Judges. There, what was pleaded was that the agreement to sell stated to be in force in the decree obtained related to a sale in favour of a non-agriculturist prohibited by Section 80 of the Land Reforms Act. After examining several decided cases not only of this Court, but also of other High Courts and the Supreme Court, the Division Bench came to the conclusion that in a suit for specific performance the only question for consideration by the Court was whether there was a valid agreement to sell agricultural lands and whether it was enforceable and it was a fit case for granting decree of specific performance. They ruled as such having regard to the fact that the prohibition was not total inasmuch as the proviso to Section 80 of the Land Reforms Act enabled the Assistant Commissioner or other Officer authorised by the State Government to give permission to non-agriculturists to purchase the land. In other words enforcement of such agreement to sell would not in itself be an illegality unless action contemplated under the Land Reforms Act in terms of Sections 82 and 83 actually takes place. In otherwords the ratio decidendi of that case is that until it has to be determined by the prescribed authority under the Land Reforms Act that a sale is void or declared to be void the question of the Civil Court not entertaining suit for specific performance speculating the result of proceedings under Section 83 of the Act, would not be proper and, therefore, the only course was to enforce the contract. That, in our view is sufficent answer. The same is more or less the view of the High Court of Gujarat in a Full Bench decision in the case of Shah Jitendra Nanalal v. Lallubhai Ishwarbai . AIR 1984 Gujarat 145.. In that case it has been held that there was nothing prohibiting a decree being passed for specific performance, with of course, such alternative remedies as may be called for in a situation where that decree may become in-operative. The decree for specific performance way be made conditional on the exemption under Section 20(1)(a) or (b) operating.

8. In that case what was questioned was whether agreement to sell without the exemption being granted under Section 20 of the Urban Land Ceiling Act, would be an enforceable agreement because no exemption had been obtained. An earlier Division Bench decision of that Court which had taken the view that, such a contract was not enforceable was distinguished by the Full Bench in Shah Jitendra Nanalal's ease.

9. Therefore, we have independently examined the scope of Section 79-A(1) of the Karnataka Land Reforms Act. Under sub-Section (3) thereof acquisition by a person who has assured income of Rs. 12,009/- or more per annum from sources other than agriculture would not be entitled to sustain such acquisition and as such the acquisition would be null and void. Though sub-sections (3) and (1) read together do convey that impression, such acquisition is not ipso facto null and void. It will become void, only when action is initiated suo moto or on the complaint of others as provided under Section 82 of the said Act and after enquiry being held by the specified officer under Section 83 of the Act if a declaration to that effect is made. Therefore, the Civil Court which is not competent to determine in terms of Section 132 of the Land Reforms Act that question as to the illegality or legality of such a transaction cannot create a bar for itself to enforce the contract on the plausible result on such enquiry under Section 83 of the Land Reforms Act.

10. We therefore find no substance in the argument of Shri Udaya Holla, learned Counsel appearing for the appellant.

11. We have been carefully taken through the Judgment of the trial Court. Issue No. 8 is not only based on the appreciation of oral evidence, but also on the terms of the suit agreement which leaves no room for doubt or confusion in the mind that time was not the essence of contract. In fact the intention of the parties to the agreement as we can wake out from the contents thereof as summarised by the learned trial Judge is that the urgency was on the part of the plaintiff to take possession of suit schedule properties on April 30, 1981, paying major part of the balance of consideration. The sale deed was to be executed within six months therefrom. Therefore, it is clear that time was not the essence of contract except in regard to the payment of Rs. 5000/- agreed to be paid on or before April 30, 1981. The Lower Court has inclined to believe the version put forward by the plaintiff and supported by the evidence of himself and his friends who had accompanied him to the house on 27.4.1981 and 30.4.1981 Therefore, we do not find any substance in the argument of Sri Udaya Holla, that there was no willingness on the part of the plaintiff to perform his obligation as plaintiff established his attempts to tender the amount of Rs. 5000/- on 27-4-1981 and on 30-4-1981.

12. It was next contended that the plaintiff had not proved his readiness and willingness to perform the contract and, therefore, the trial Court ought to have not decreed the suit. We are of the view that it is not a well-founded argument. For the reasons already given in regard to time being the essence of contract, the conduct of the parties taken as a whole and the evidence adduced leads us to believe that the real burden of proof that the plaintiff was not willing to perform the contract was on the defendant. He seems to have been in undue haste in causing a notice to be issued as per Exhibit D-2 claiming forfeiture of the advance paid to him and the loss which he fad incurred by entering into another transaction with somebody in Kerala. That the loss of Rs. 13,000/- was not proved nor pleaded by the defendant. It would appear rather strange to place reliance on the story when it is admitted before us that the other party who was available in Kerala was not examined as a witness for the defendant. The fact that the attestors to that agreement were examined is not at all relevant. If the best evidence available to the defendant was not put-forward then be alone must accept the blame. The best evidence was that of the executant of the agreement. In any event no attempt was made to prove forfeiture of Rs. 13,000/- said to have been paid under that agreement. Nor has defendant-appellant placed any material with reference to any resistance put up by him to save that forfeiture one may reasonably discard that story. Therefore, the Court was correct in coming to the conclusion having regard to the conduct of the parties and the pleadings of the plaintiff that the plaintiff was ready and willing to perform his part of the contract.

13. Lastly, the award of damages is based on the oral evidence of the plaintiff and his two friends who had visited on April 30, 1981 to the house of defendant, which fact has been accepted by the trial Court. Therefore, it is not open to the defendant to contend that there was no evidence at all for awarding the damages.

14. Therefore, we see no reason to interfere with the conclusions reached and the judgment and decree rendered by the trial Court. We therefore reject this appeal, notwithstanding the fact that the appellant is adjudged by this Court an indigent person.