Specific Performance: No adverse inference can be drawn, if plaintiff is not called upon to produce passbook either by defendant or by Court.
Unless the plaintiff was called upon to produce the passbook either by the defendant or, the Court orders him to do so, no adverse inference can be drawn.
A
Division Bench of the Supreme Court of India comprising of Justice M.R. Shah and Justice B.V.
Nagarathna, gave complete justice to the
plaintiff/appellant in the present case by quashing and setting aside the impugned
judgment and order of the High Court of
Karnataka at Kalaburagi Bench and
restoring the judgment and decree of the Trial Court wherein it had ordered for
specific performance of agreement to sell.
The Bench reiterated to the views of Trial Court about
readiness and willingness to perform part of contract by the
plaintiff/appellant.
The
reason which made the High Court to set aside the judgment and decree is that
the plaintiff has not proved that he had the cash and/or amount or sufficient funds/means to pay the
balance sale consideration, as passbook and/or bank accounts was produced. The
plaintiff was not ready and willing to perform his part of contract.
Fact
is that the defendant/respondent executed a sell deed in favour of
plaintiff/appellant fir a consideration of
Rs. 12,74,000 in March 2007. Rs 3
lakhs were paid as earnest money for which the receipt was also issued by
respondent. After 8 months, the appellant issued a legal notice asking the
defendant to receive the balance sale consideration and execute the sale deed.
But the defendant denied the execution of agreement to sell. Thereafter the buyer,
the plaintiff/appellant filed a suit for
specific performance in February 2008. The argued that the plaintiff was not
ready to perform his part of the contract. The plaintiff led evidence by
examining witnesses on his readiness and willingness to perform his part of the
contract. It was recorded that plaintiff went with cash to the seller but the
seller did not accept the same.
The
Trial Court decreed the suit for specific performance on the basis of the
evidences led by plaintiff. Pursuant to the decree the plaintiff deposited the
balance amount of 9,74,000 in the Trial Court.
The defendant/seller approached the High Court by way of appeal where the High
Court set aside the judgment and decree of Trial Court. So therefore the
appellant/plaintiff, being aggrieved by the judgement approached to the Supreme
Court with the present appeal.
The
Hon’ble Supreme Court heard the submissions of their respective counsels.
The
learned counsel of appellant vehemently mentioned the erred judgment of the
High Court for reversing the findings of the Trial Court on readiness and
willingness of the appellant. The Trial Court recorded the findings on the
appreciation of entire evidence put forth by the appellant and that findings
were not required to be interfered by the High Court.
The
counsel also submitted that right from the beginning, the appellant was willing to perform his part of
the contract which is evident from averment made in the plaint and the
appellant also deposited the balance consideration before the learned Trial Court.
The
learned counsel for appellant relied on the decision of Indira Kumar and Ors. vs. Sheo Lal
Kapoor (1988) 2 SCC 488 wherein it was held that no adverse
interference can be drawn against the plaintiff as to whether he had the means to
pay the balance consideration on the
grounds of non-production of passbook, accounts or other documentary evidence.
The
counsel also referred the recent case of Beemaneni Maha Lakhsmi vs. Gangumalla Appa
Rao (2019) 6 SCC 233, where it was observed and held by Supreme Court
that failure on the part of the vendee to ‘demonstrate’ that he was having
sufficient money with him to pay the balance sale consideration by the date of his
evidence is not of much consequence.
In
Ramrati
Kuer vs. Dwarika Prasad Singh (1967)1 SCR 153, it was observed and held
by Supreme Court that in the absence of a specific prayer asking for the party
to produce accounts and their subsequent failure to do so, no adverse inference
could be drawn.
The
leaned counsel for respondent also submitted that the High has not erred in
reversing the judgment and decree of Trial Court and that the cogent reason has been assigned by the that the plaintiff has not demonstrated or
led evidence that he had sufficient means/funds/cash to pay the balance sale
consideration.
The
counsel relied upon the recent decision in the case of U.N. Krishnamurthy vs. A.M.
Krishnamurthy (2022), where the Court held that
the Respondent/plaintiff may have been willing to perform his part of the
contract, it however appears that he was not ready with funds and was possibly
trying to buy time to discharge his part of the contract.
The
Supreme Court also agreed with the learned counsel of appellant and the cases
referred by him. The Hon’ble Court viewed, the High Court could not have drawn
adverse inference and that the High Court has seriously erred in reversing the
judgment of Trial Court on readiness and willingness.
The
Court reiterated to the law laid down in the Indira Kumar’s case and Ramrati
Kuer’s case wherein it observed and held that unless the plaintiff was
called upon to produce the passbook either by the defendant or, the Court
orders him to do so, no adverse inference can be drawn.
Therefore
the judgment and order of the High Court was quashed and set aside as being
unsustainable.
However
for the ends of justice to both the parties, the Hon’ble Court directed the
appellant to pay a further sum of Rs. 10
lakhs towards sale consideration. The defendant/respondent/seller was also
permitted to withdraw the deposited amount in the Trial Court, in the year 2011, with the interest accrued there
from and also directed the seller to execute the sale deed in favour of the
plaintiff/appellant. The Court ordered for no costs.
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