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1989 SCC OnLine All 426 : AIR 1990 All 65 : (1990) 1 ARC 33 :
(1990) 16 ALR (SUM 15) 11 : 1990 LACC 380
In the High Court of Allahabad
(BEFORE N.N. MITHAL AND G.D. DUBE, JJ.)
Bishambhar Nath Agarwal … Appellant;
Versus
Kishan Chand and others … Respondents.
First Appeal No. 260 of 1983
Decided on October 23, 1989
The Judgment of the Court was delivered by
G.D. DUBE, J.:— This appeal has been preferred against the
judgment and decree passed by Fourth Additional District Judge, Agra.
The lower Court has decreed the suit of the respondents for specific
performance of the contract. The defendant No. 1 has been directed to
execute a sale-deed within a period of three months after receiving the
amount of sale consideration and rent up to 31st October, 1974-1975
as is disclosed in the compromise entered into between the parties. The
defendant No. 1 was further directed to obtain permission from the
District Magistrate, if necessary. It was ordered that in case defendant
No. 1 failed to comply the decree, then the sale-deed would be
executed through Court at the cost of the appellant. It has also been
declared that after 31st October, 1975, the plaintiffs and defendants 2
to 6 are not required to pay rent or interest to defendant No. 1.
2. It is an admitted case between, the parties that the house in
dispute situated at Agra belonged to the plaintiffs. The sale-deed in
respect of this property was executed by the plaintiffs in favour of
defendant No. 1 on 25-4-1968. The plaintiff-respondents, however,
continued to reside in this house. They had agreed to pay rent. It was
contended on behalf of the plaintiff-respondents that they had made
improvements in the house. It was worth rupees two lacs in 1968. As
they were in need of money, they had approached defendant No. 1. The
defendant No. 1 had agreed to pay Rs. 20,000/-. The defendant No. 1
is a shrewd lawyer. He got the sale-deed executed on 25-4-1968 and
also as a security for his money advanced as a loan got a rent note
executed. There was no transfer of possession and the plaintiff-
respondents continued to be in possession. Later on the defendant No.
1 changed his mind and started asserting his ownership on the
property in dispute. Consequently plaintiffs had to file suit No. 293 of
1973 Kishan Chand v. Bishambhar Nath Agarwal in the Court of Civil
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favour of the financiers. It was, therefore, urged that from this very
term it was clear that the plaintiffs would not have been able to get Rs.
90,000/- at the time of sale, from Parma Nand Puri and Vishnu Ram
Nagar. It was, therefore, clear that the plaintiff had not the sufficient
money in his hands even on the date of execution of the said
agreement. This date was only three days before the expiry of the
period granted to the plaintiffs to pay the amount of consideration and
get the reconveyance executed.
20. In reply to the above contention, it was argued that the decision
of the High Court is to this effect that it is not at all necessary for the
purchaser to show the money to the seller. The case law relied upon by
respondents is Nathulal v. Phoolchand, (1969) 3 SCC 120 : AIR 1970
SC 546. In this case it was held that the purchaser need not produce
money or vouch a concluded scheme for financing the transaction.
21. It was pointed out that the appellant had sent a notice on 23rd
October, 1975 asking respondent No. 1 to execute a sale deed after
faking he necessary permission. He also stated that the had given a
telegram to defendant No. 1 on 29th of October, 1975. On 30th
October, 1975, he had purchased the necessary stamps for execution of
the deed. On the same day he went to Gwalior to meet the defendant
No. 1 who he had refused to meet. On 31st October, 1985, he had gone
to Sub-Registrar's office and an, application, was moved by plaintiff No.
1 Kailash Chand Agarwal at 10.00 a.m. before the Registrar that he was
present at the Sub-Registrar's Office. Another application was also
moved at 4.00 p.m. the same day before the Sub-Registrar stating that
the plaintiffs remained present at the Sub-Registrar's Office throughout
the day. It was, therefore, urged that all these go to show that the
plaintiffs were willing and ready to get the sale deed executed.
22. The above argument of the learned counsel for the respondents
is not at all tenable. If any agreement states that a particular act
relating to the furtherance of the contract was to be done in a particular
manner, then it should be done in that manner and it is not open to the
concerned parties to chalk out his own manner of performing his part of
contract. We may again advert to the contents of the compromise. It
would be better to get the relevant extract from the compromise. It is
as under.—
“B) That the mode of payment of above sum of Rs. 1,02,120/-
would be that the plaintiff can pay this amount at one time is one
instalment or in several instalments within the stipulated period but
no instalment can be less than the amount of Rs. 5,000/- (Rupees
Five thousand only) and such payment would be made by the
plaintiffs through a crossed account payee draft in favour of
defendant on any bank at Gwalior.”
23. The above quoted paragraph clearly speaks, that the payment
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31. Appeal allowed.
———
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