Gauri Shankar Prasad
& Ors. Vs. Brahma Nand Singh [2008] INSC 1091 (11 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1756 OF 2002 Gauri
Shankar Prasad and Ors. ...Appellants Versus Brahma Nand Singh ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Appellants'
Second appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (in
short the `Code') having been dismissed by the Jharkhand High Court, this
appeal has been filed. The Title Suit No.17/92-49/93 was decreed by the learned
Additional Munsif, Garhwa. The judgment and decree were upset by learned
District Judge, Palamau in Title Appeal No.10 of 1997. Second Appeal was filed
by the plaintiffs before the High Court.
2.
The
case of the plaintiffs-appellants is that the plaintiffs were in need of money,
hence, offered to mortgage their land detailed in Schedule D of the plaint with
condition to repurchase the same on consideration of Rs.36,600/- The
defendant-respondent, namely, Brahmanand Singh and one Dasrath Prasad Keshri
were willing to purchase jointly the land of Schedule D and, accordingly, the
plaintiffs executed a registered deed of sale dated 5.2.1986. The respondent
and Dasrath Prasad Keshri on the same day also executed a registered deed of
agreement and agreed to re-convey the purchased land to the plaintiffs on
payment of consideration money to them. It has been alleged that though the
deed of sale was executed by the plaintiffs-appellants in favour of the
respondent and Dasrath Prasad Keshri, they always remained in cultivating
possession of the lands, as described in schedule D of the plaint. It is also
alleged that the plaintiffs- appellants were in need of rs.15,000/-. The
respondent and Dasrath Prasad Keshari became ready to keep the land in
mortgage, but only after calculating the interest thereupon at the rate of 4
per cent for three years, the price was accordingly 2 fixed at Rs.36,600/-. It
is further alleged that the plaintiffs-- appellants in the first week of
January, 1989, repaid Rs.5,500/- to the respondent in presence of the witnesses
upon which he promised to re-convey the suit land, but even thereafter he did
not re-convey the land and extended time for execution of the deed of
re-conveyance Ultimately on l0.4.1992, Dasrath Prasad Keshri received
consideration money of his share i.e. Rs.18,300/- and executed the deed of sale
re-conveying half of the land of Schedule D in favour of the plaintiffs. It is
also claimed that the plaintiffs also requested the respondent to receive his
consideration money and to re-convey the schedule D land of his share but he
delayed the matter, whereupon the plaintiffs sent registered legal notice to
defendant No.l but even then the respondent failed to perform his part of
contract and hence, the plaintiffs filed the suit.
3.
The
respondent contested the suit and filed written statement alleging therein that
the deed of agreement contained a specific terms that if the plaintiffs paid
back the 3 consideration amount at any point of time within three years then
the respondent and Dasrath Prasad Keshri would re- convey the land of Schedule
'D' . It is also claimed that the plaintiffs remained in possession of the land
after execution of the sale deed. The plaintiffs-appellants had never been
willing to perform their part of contract nor they had paid money within the
stipulated period of three years as contained in the agreement. According to
him, the plaintiffs-appellants never paid any money to the defendant nor they
had requested for extension of time nor the defendant ever orally agreed to
extend the time. He has also denied that on 10.4.1992 the plaintiffs tendered
any consideration money nor there had been any such occasion till date and, as
such, the plaintiffs have lost their right of re-conveyance.
4.
Ten
issues were framed by the trial court and the witnesses were examined. After
having heard both the parties and considering the evidence on record, the trial
court decreed the suit in favour of the plaintiffs-appellants. The defendant-
respondent preferred appeal before the District Judge against 4 the judgment
and decree of the court below, who after hearing both sides and considering the
evidence on record, allowed the appeal after setting aside the judgment and
decree of the court below.
5.
The
appellate court framed the following points for consideration:- I. Whether the
suit of the plaintiffs is barred by law of Limitations? II. Whether the
plaintiffs-appellants were always ready and willing to perform their part of
contract as envisaged u/s 16(c) of the Specific Relief Act? III. Whether the
time was essence of contract? IV. Whether the plaintiffs-appellants are
entitled to get decree of specific performance of contract, as prayed for? V.
Whether the judgment in question is fit to be set aside? 5
6.
The
lower Appellate Court allowed the appeal by setting aside the judgment and
decree of the trial Court. The question which was formulated by the High Court
was as follows: "Whether the time was an essence of agreement (Ext.2) and
whether the plaintiffs/appellants were ready and willing to perform their part
of contract."
7.
The
lower Appellate Court considered the question as to whether the
plaintiffs-appellants had performed or had always been ready and willing to
perform the essential terms of the contract to be performed by him. The first
Appellate Court held that the plaintiffs never offered the consideration amount
within the period fixed by the contract. The other alleged vendee Dasrath was
examined in the Court below as PW-7. The High Court noted that there was no
material to show that the consideration amount was offered within the
stipulated period of three years. With these findings, the appeal was
dismissed.
8.
In
support of the appeal, learned counsel for the appellants submitted that the
co-vendee had accepted the money. The first Appellate Court and the High Court
should not have held that the suit was barred by time or that there was no
evidence for offering payment of the balance money.
9.
Learned
counsel for the respondent on the other hand supported the judgment and
submitted that the findings recorded by the first Appellate Court were arrived
at after analysing the evidence in great detail. Therefore, the Second Appeal
was really not competent.
10.
Coming
to the facts of the case it is to be noted that the evidence of PW-7 the
co-vendee clearly shows that no payment was made in his presence. His evidence
is to the following effect:
"After 3 years
Gauri Shankar did not return the whole amount but returned 5-7 thousand in
three instalments. How much in total he paid to me I do not remember. Like this
only 7 he paid money to B.N. Singh but the same was not paid in front of me.
That Gauri Shankar
Bind and other failed to return the money till the date of 5.2.1989 as per the
agreement said amount to me and B.N. Singh."
11.
The
evidence of PW-2 is also not of any assistance to the appellants. In his
evidence in paras 3 and 6 it has been stated as follows:
"Dashrath Saav
has returned the land to the petitioners when they have returned the money. But
B.N. Singh has not returned the land to the petitioner in spite of the fact
that they are ready to pay the money. The petitioners are also ready today to
return the money.
I have knowledge
about the negotiation about this land. I have no idea about the documents which
are prepared. No talks about sale of the land were held in front of me. The
paper are for the mortgage for the value of Rs.36,000/-."
12.
The
High Court has rightly observed that the trial Court has made a new case which
was not the case of the parties.
13.
Learned
counsel for the appellants fairly conceded that though the clinching evidence
about the payment in the presence of the witnesses may not be there, according
to him the evidence has been wrongly analysed by the first appellate court and
the High Court. This Court has in several cases held that if sale and agreement
to repurchase are embodied in separate documents, it cannot be a case of the
mortgage and in such cases relating to re-conveyance time is always the essence
of the contract. (See Chunchun Jha v. Ebadat Ali (AIR 1954 SC 345). In
Bismillah Begum (Smt.) v. Rahmatullah Khan (dead) by Lrs. (AIR 1998 SC 970)) it
was held as follows:
"We may also add
that in contracts relating to re-conveyance of property, time is always the
essence of the contract as laid down by the Federal Court in the case of
Shanmugam Pillai v. Analakshmi Ammal (AIR 1950 FC 38) and also laid down by
this Court in Caltex (India) Ltd. V. Bhagwan Devi Marodia (AIR 1969 SC 405).
The relevant passage in the judgment of this Court in Caltex (India) Ltd. At
page 407 in para 3 reads as follows:
"At common law
stipulations as to time in a contract giving an option for renewal of a lease
of land were considered to be the essence of the contract even if they were not
9 expressed to be so and were construed as conditions precedent.
Equity followed the
common law rule in respect of such contracts and did not regard the stipulation
as to time as not of the essence of the bargain. An option for the renewal of a
lease, or for the purchase or re-purchase of property must in all cases be
exercised strictly within the time limited for the purpose otherwise it will
lapse."
14.
In
Chunchun's case (supra) it was observed as follows:
"If the sale and
agreement to repurchase are embodied in separate documents, then the
transaction cannot be a mortgage, whether the documents, are contemporaneously
executed or not.
In the case of
agreement of re-purchase, the conditions of repurchase must be construed
strictly against the original vendor and the stipulation with regard to time of
performance of the agreement must be strictly complied with as the time must be
treated as being of the essence of the contract in the case of an agreement of reconveyance."
15.
The
High Court also noticed that the claim of the appellants that they paid the
consideration amount on 10
10.4.1992 is also of
no assistance because the period of limitation expired on 5.2.1992 and the suit
was filed on 23.5.1992. As rightly noted by the High Court, there was an
agreement for re-conveyance and there was specific stipulation for
re-conveyance of the land within a period of 3 years which was admittedly not
complied by the plaintiffs- appellants. It is to be noted that the question
formulated by the High Court, by no stretch of imagination, is a substantial
question of law.
16.
The
appeal is dismissed.
..............................J.
(Dr. ARIJIT PASAYAT)
.............................J.
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