Shivakant Prasad JUDGMENT
Jyotirmay Bhattacharya, J.
1. This First Appeal is directed against the judgment and decree dated 20th July, 2007 passed by the learned Civil Judge (Senior Division), 1st Court, Howrah in Title Suit No. 45 of 2003 at the instance of the plaintiff/appellant.
2. By the impugned judgment and decree, the plaintiff's suit for specific performance of contract was decreed in part. Relief for specific performance of contract prayed for by the plaintiff, was refused by the learned Trial Judge on the ground that the registered agreement for sale which was sought to be enforced by the plaintiff by the said suit was not signed by the plaintiff (the purchaser). The learned Trial Judge held that such a unilateral agreement for sale is incapable of enforcement through a suit for specific performance of contract. While coming to the said conclusion, the learned Trial Judge relied upon two decisions of the Hon'ble Madras High Court in the case of S.M. Gopal Chetty vs. Raman Alias Natesan & Ors. reported in MANU/TN/0069/1997 : AIR 1998 Madras 169 and in the case of P. Gajapathi Vs. Election Commission of India reported in AIR 2001 Madras 447.
3. However, the learned Trial Judge decided all other issues in favour of the plaintiff. The learned Trial Judge held that the defendant No. 1 is the owner of the suit property. The learned Trial Judge also held that execution of the deed of agreement for sale by the defendant No. 1 is also admitted by the defendant No. 1. Acceptance of the earnest money by the defendant No. 1 from the plaintiff was also held to be admitted by the defendant No. 1. In spite of such findings recorded by the learned Trial Judge in the impugned judgment, the learned Trial Judge did not allow the plaintiff's prayer for specific performance of contract as the contract was unilateral and according to the learned Trial Judge such a unilateral contract which was not signed by the plaintiff (purchaser) is incapable of enforcement through a suit for specific performance of contract. While coming to such conclusion the learned Trial Judge also held by relying upon the provision contained in Section 15 of the Specific Relief Act, 1963 that a contract can be enforced only by a party to the contract and since the plaintiff is not a party to the contract he cannot enforce the said contract.
4. Holding as such the relief for specific performance of contract prayed for by the plaintiff was refused. However, the learned Trial Judge was pleased to pass a decree for refund of earnest money, though such relief was not claimed by the plaintiff in the said suit.
5. It is pertinent to mention here that since the learned Trial Judge found that such a unilateral contract is incapable of enforcement by a suit for specific performance of contract, the learned Trial Judge, while refusing to grant the said relief did not consider the plaintiff's readiness and willingness to purchase the said suit property in terms of the provision contained in Section 16(c) of the Specific Relief Act.
6. Let us now consider the legality of such judgment of the learned Trial Court in this background.
7. Let us first of all consider the correctness of the finding of the learned Trial Judge as to enforceability of such a unilateral agreement for sale by a suit for specific performance of contract. It is true that a person who is not a party to the contract cannot enforce the contract to apply this principle in the suit for specific performance of contract, as to how a contract comes into existence and who can be described as parties to such contract. There are various modes of creation of contract. A contract may be concluded orally, a contract may be concluded by exchange of letters, a contract may be concluded by signing a document by the parties to the contract and exchange thereof between them. Each of such contracts is enforceable by a suit for specific performance of contract provided it is legal and is not opposed to the public policy. In our view, once the vendor executes such a contract containing the terms and conditions on which he agreed to transfer his property to the purchaser and the purchaser acting upon the said agreement pays the earnest money to the vendor for purchasing the suit property, such payment of earnest money to a vendor and acceptance thereof by the vendor amounts to conclusion of the contract between the parties.
8. The original registered agreement for sale which was admittedly executed by the defendant No. 1 (vendor) was received by the plaintiff from the office of the concerned Registrar. Receipt of the original document by the plaintiff from the office of the Registrar is also an instance of acceptance all the terms and conditions on which the vendor agreed to sale his property to the purchaser.
9. Thus, we have no hesitation to hold that here is the case where the contract was concluded between the plaintiff and defendant No. 1 and such contract, in our view, is capable of enforcement through a suit for specific performance of contract. We come to this conclusion by relying upon a decision of the Hon'ble Supreme Court in case of Aloka Bose Vs. Parmatma Devi & Ors. reported in MANU/SC/8475/2008 : (2009) 2 SCC 582 wherein it was held as follows:
"16. On the other hand, the observation in S.M. Gopal Chetty that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it."
10. Relying upon the said decision of the Hon'ble Supreme Court, we have no hesitation to hold that the agreement for sale which was sought to be enforced by the plaintiff through the said suit, is capable of enforcement through a decree of specific performance of contract.
11. Let us now consider as to how far the plaintiff has satisfied the conditions as contained in Section 16(c) of the Specific Relief Act. Section 16(c) of the Specific Relief Act provides that in order to get a decree for specific performance of contract, the plaintiff is not only required to aver his readiness and willingness to purchase the suit property all throughout in his pleadings but he is also required to prove his readiness and willingness to perform his part of the obligations under the contract all throughout in course of trial of the suit.
12. Let us now consider as to how far the plaintiff succeeded in satisfying these conditions in the facts of the instant case.
13. On perusal of the plaint, we find that the plaintiff stated in his pleading that he was and/or is always ready and willing to perform his part of the contract. He has stated that he offered to pay the balance consideration money to the defendant No. 1 and requested him to execute the sale deed in his favour within the contractual period, but the defendant No. 1 refused to execute such deed of sale in favour of the plaintiff and as such, the plaintiff sent a lawyer's notice to the defendant No. 1 requesting him to execute a sale deed in favour of the plaintiff on acceptance of the balance consideration of money from the plaintiff.
14. The plaintiff has also denied the defendant's claim that the defendant did not execute the said agreement for sale consciously.
15. The defendant claimed that the defendant, in fact, did not agree to transfer the suit property in favour of the plaintiff. He further claimed that he accepted a sum of Rs. 1,00,000/- from the plaintiff on account of loan for repaying the bank loan which he had taken from the State Bank of India. In course of trial of the suit the defendant could not produce any material evidence before the Court to show that he took any loan from the State Bank of India by mortgaging the suit property. The State Bank of India was made a party to the suit as defendant No. 2. Though initially the State Bank of India appeared in the said suit but ultimately the bank did not contest the same. The learned Trial Judge after examining the evidence of the parities came to the conclusion that taking of the loan by the defendant No. 1 from the State Bank of India could not be proved by him. The learned Trial Judge also held that though the defendant No. 1 claimed that he mortgaged the suit property with the State Bank of India for taking loan from the said bank but the defendant No. 1 could not prove that the suit property was ever mortgaged by the defendant No. 1 with the State Bank of India for taking any loan from the said bank. We also concur with the findings of the learned Trial Judge that the defendant No. 1 is the owner of the suit property and the suit property was never mortgaged with the State Bank of India by the defendant No. 1
16. On examination of the evidence of the plaintiff, we find that the plaintiff has succeeded in proving that he was and/or is all throughout ready and willing to perform his part of the contract. Not only he has proved that he requested the defendant to execute the deed of sale on tender of the balance consideration money but he has also proved that he sent a lawyer's notice requesting the defendant No. 1 to execute the sale deed in favour of the plaintiff on acceptance of the balance consideration money. Thus, we have no hesitation to hold that the plaintiff succeeded in proving that he was ready and/or is willing to perform his part of the contract all throughout. As such, we do not find any reason to deny the relief which the plaintiff has claimed for specific performance of contract in the said suit.
17. However, we find that the agreement for sale was executed between the parties on 31st December, 2001. Thus, the litigation continues for about 16 years in different Courts. The valuation of the property has substantially been increased by this time. As such we feel that justice will not be subserved if we direct the defendant No. 1 to convey the suit property measuring about 6 1/4 satak of land in favour of the plaintiff at the price at which they agreed upon for completing the said transaction in the year 2001.
18. The defendant No. 1 in his written statement claimed that the valuation of the suit property will not be less than 15 lakhs. The valuation of the suit property as assessed by the Directorate, Registration and Stamp Revenue, Government of West Bengal which is produced by Mr. Banerjee in Court today shows that the valuation of the suit property will be about Rs. 16,04,163/-.
19. Thus, by relying upon the said assessment made by the Government department we direct the defendant No. 1 to execute and registering proper deed of conveyance in favour of the plaintiff for conveying his right title and interest in favour of the plaintiff within one month from the date of deposit of the balance consideration money i.e., Rs. 12,89,163.00 (Rs. 16,04,163.00 - Rs. 3,15,000.00) and such deposit should will be made by the plaintiff with the Court within a month from date. It is further directed that delivery of possession the suit property will be made by defendant No. 1 to the plaintiff simultaneously with the execution and registration of the said deed of sale. In case the defendant No. 1 fails and refuses to comply with this direction even after the plaintiff fulfils the conditions imposed upon him hereinabove the plaintiff will get this decree enforced through execution of the decree through Court.
20. Needless to mention here that in view of the decree passed by us hereinabove, the decree which was passed by the learned Trial Judge regarding refund of earnest money stands set aside.
21. Before concluding, we also like to mention here that even the decree which was passed by the learned Trial Court for refund of earnest money, was contrary to the provision of Section 22 of the Specific Relief Act, 1963 as no relief for refund of earnest money was prayed by the plaintiff in the suit. The said part of the decree of the learned Trial Judge is thus not retainable as it is contrary to the provision of Section 22 of the Specific Relief Act. This part of the decree is thus set aside.
22. The appeal is thus, disposed of.
23. The suit is thus, decreed with above directions.
24. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible,
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