Sikkim High Court: In a second appeal filed by the appellant challenging the decision of first Appellate Court (“District Judge”), East Sikkim, seeking specific performance of contract on part of the respondents, in reference to the transfer of a plot of land; the single-Judge Bench of Meenakshi Madan Rai, J.* held that the appellant had failed to display willingness to perform his part to the contract between him and the respondent, as mandated under Section 16 of the Specific Relief Act, 1963 (“SRA”). The Court also found that the appellant’s evidence and witnesses failed to prove the exchange of money for the transfer of the disputed property. The Court had also discussed the scope of a second appeal in civil cases, provided for in Section 100 of the Code of Civil Procedure, 1908 (“CPC”).
Background
The appellant filed a second appeal before the Court under the provisions of Section 100 read with Section 151 of the CPC, due to their dissatisfaction with the judgment of the first Appellate Court, that set aside the judgment of the District Judge.
The appellant had filed a suit for declaration and Specific Performance of Contract under Section 10 of the SRA against Respondent 1 and Respondent 2 , claiming that Respondent 1 had sold him three plots of land with the consent of his son-Respondent 2, at mutually agreed consideration of Rs. 12 lakhs. The appellant also claimed to have made an advance payment of Rs. 2.2 lakhs to Respondent 1, in the presence of witnesses.
Subsequently, a sale deed was executed between Respondent 1 and the appellant in the presence of two witnesses, one of whom was PW-6; relevant documents were submitted before the Registrar’s Office for the registration of the suit land in the appellant’s name. However, Respondent 2 raised objections towards the same.
The appellant, in the capacity of a plaintiff before the District Judge, sought a declaration that Respondent 1 was the owner of the suit land, and had executed the sale deed in the appellant’s favour; However, Respondent 2 opposed the claims. They stated that PW-6 had offered to loan an amount of Rs. 2.3 lakhs to the wife of Respondent 1 for the educational expenses of their daughter, and then approached them to sell the disputed land to him.
However, since the transfer of property of a tribal is barred (the Respondents are associated with a tribal community, and PW-6 was non-tribal), PW-6 sought to register the property in the name of the appellant. Following the execution of the sale deed, neither the possession nor interest in the disputed land was transferred to the appellant, and PW-6 had begun construction on it, despite the protest of the respondents.
The respondents brought a counterclaim before the Sub-Divisional Court (“Trial Court”), claiming that Respondent 1, being an illiterate person, was unaware that the property would be transferred in the appellant’s name instead of PW-6. The Trial Court upon the examination of the witnesses and the documentary evidence, decided in the appellant’s favour.
Aggrieved by this decision, the respondents appealed before the First Appellate Court, that set aside the Trial Court’s judgment, and held that the appellant was not entitled to the registration of the sale deed as PW-6 was the real purchaser. Therefore, the appellant brought the instant second appeal.
Court’s analysis and judgment
Section 100 CPC
While perusing the matter, the Court deemed it fit to examine the permissible parameters of considering a second appeal.
Section 100, CPC provides that a second appeal from a decree passed in appeal by a subordinate court, shall lie before the High Court, if the latter is satisfied that the matter involves a substantial question of law.
The Court referred to Roop Singh v. Ram Singh, (2000) 3 SCC 708, wherein it was held that Section 100 CPC does not confer any jurisdiction on the High Court to interfere with pure questions of fact.
The Court further referred to Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262, wherein it was observed that the High Court does have the jurisdiction to deal with a question of fact, if the same have an element of perversity in relation to justice.
Retracting to the discussion of the instant case, the Court reasoned that no sale transaction had been made between the appellant and Respondent 1, as proven by the appellant’s admissions that he only came to know about Respondent 1 and his wife after the institution of this case.
Section 16 SRA
The Court perused Section 16(c) of the SRA, wherein specific performance of a contract cannot be enforced in favour of a person who fails to prove their performance or a constant willingness to perform the respective essential terms of the contract, other than the terms whose performance has been prevented or waived by the defendant.
It was noted that a readiness and willingness of a plaintiff to perform their contractual obligations is a mandated essential for obtaining relief of specific performance.
The Court referred to the cases of Sandhya Rani Sarkar v. Sudha Rani Debi, (1978) 2 SCC 116, and UN Krishnamurthy v. AM Krishnamurthy, 2022 SCC OnLine SC 840, to substantiate their interpretation of the SRA provision stated above.
The Court further referred to Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512, wherein, the Supreme Court observed that despite the assumption of breach on the part of the defendant, the plaintiff must not fail to prove their readiness and willingness to perform the essential terms of contract required to be performed by them.
The Court considered the admitted evidence of the appellant wherein it was proved that he had not transferred the money to Respondent 1’s wife, but rather claimed to have paid instalments, whenever he was contacted by her. In fact, majority of his witnesses admitted that they had not witnessed the transfer of the sum of Rs. 2.2 lakhs by the appellant to Respondent 1’s wife.
Therefore, the Court was of the view that no money had changed hands for the alleged sale of the disputed land. Relying on UN Krishnamurthy (supra), the Court stated that even if assumptions were made to the same, the appellant failed to indicate his willingness to adhere to his obligations, that is, to show the availability of funds to make the payment. The appellant did not aver having sufficient funds, nor displayed any financing arrangement to enable the disbursement of the amount.
The Court thereby held that the appellant had failed to establish his willingness to pay the amount stipulated by the contract for the transaction between him and Respondent 1. The appeal was thereafter dismissed and disposed of.
[Tshering Dorjee Lepcha v. Chimbu Lepcha, 2024 SCC OnLine Sikk 32, decided on 30-05-2024]
*Judgment by: Justice Meenakshi Madan Rai
Advocates who appeared in this case :
For the appellant: B. Sharma, Senior Advocate, Safal Sharma
For the respondents: Dewen Sharma Luitel, Bhaichung Bhutia, SK Chettri, Government Advocate
