# Shrimati Ram Ratti & Ors v. Gorakh Prasad Dubey

- **Citation:** (2023) 1 ILRA 832
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Second Appeal No. 2396 of 1981
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrimati-ram-ratti-ors-v-gorakh-prasad-dubey-49192
- **Pages:** 6

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section 100, - Specific Relief Act, 1963 -
Sections 16(c), 20 & 20(2): - Plaintiff's
Second Appeal - challenging the Judgment &
decree passed by court below in Civil Appeals -
Suit for Specific performance of a contract for
sale - being aggrieved the findings of trial court,
both parties filed separate Appeals before first
appellate court - first appellate court set aside
the trial court judgment and decree in favour of
plaintiff-respondent - substantial question of law
-
law
on
unfair
advantage
in
specific
performance of contract is well settled - and
traced its origin from the principles of equity -
and - on second issue of 'the notice' - there is
no such notice on record whether plaintiff
respondent expressed his willingness to perform
his part of the promise - plaintiff-respondent
failed to aver and prove his notice to the
defendant-appellant to perform his part of
contract - the law in this regard is very well
settled
that
there
must
be
clear
and
unambiguous proof of notice as required under
the law - thus, both the grounds appeal
succeeds and is allowed - judgment of appellate
court is set aside - defendants shall return the
amount received - directions issued accordingly.
(Para - 8, 12, 13)

Second Appeal Allowed. (E-11)

List of Cases cited:

## Text

832 INDIAN LAW REPORTS ALLAHABAD SERIES
charges levelled against the appellants
under sections 452,323,504 and 506 IPC
and section 3(1)(r) and 3(1)(s) of the Act
are not made out against the appellants.

16. Accordingly, the appeal is
allowed and the proceedings of complaint
Case No. 242 of 2019 Smt. Prema alias
Ramguni Vs. Rakesh Singh and others) so
far as it relates to the appellants, under
sections 452,323,504 and 506 IPC and
section 3(1)(r) and 3(1)(s) of the Act,
pending in the court of Special Judge,
SC/ST Act, Sitapur and the impugned
summoning order dated 09.03.2021 passed
by the Special Judge, SC/ST Act, Sitapur
are hereby quashed.
----------
(2023) 1 ILRA 832
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Second Appeal No. 2396 of 1981

Shrimati Ram Ratti & Ors. ...Appellants
Versus
Gorakh Prasad Dubey ...Respondent

Counsel for the Appellants:
Sri V.B. Khare, Sri Ashok Kumar Shukla, Sri
Satendra Kumar Singh, Sri Suresh Chandra
Varma

Counsel for the Respondent:
Sri D.N. Misra, Sri Adya Prasad Tewari, Sri
C.B. Dhar Dubey, Sri P.P. Chaudhary

Civil Law - Civil Procedure Code, 1908 -
Section 100, - Specific Relief Act, 1963 -
Sections 16(c), 20 & 20(2): - Plaintiff's
Second Appeal - challenging the Judgment &
decree passed by court below in Civil Appeals -
Suit for Specific performance of a contract for
sale - being aggrieved the findings of trial court,
both parties filed separate Appeals before first
appellate court - first appellate court set aside
the trial court judgment and decree in favour of
plaintiff-respondent - substantial question of law
-
law
on
unfair
advantage
in
specific
performance of contract is well settled - and
traced its origin from the principles of equity -
and - on second issue of 'the notice' - there is
no such notice on record whether plaintiff
respondent expressed his willingness to perform
his part of the promise - plaintiff-respondent
failed to aver and prove his notice to the
defendant-appellant to perform his part of
contract - the law in this regard is very well
settled
that
there
must
be
clear
and
unambiguous proof of notice as required under
the law - thus, both the grounds appeal
succeeds and is allowed - judgment of appellate
court is set aside - defendants shall return the
amount received - directions issued accordingly.
(Para - 8, 12, 13)

Second Appeal Allowed. (E-11)

List of Cases cited:

1. A.C. Arulappan Vs Ahalya Naik, reported as
(2001) 6 SCC 600,

2. Ramesh ChandVs Asruddin, reported as
(2016) 1 SCC 653,

3. Manjunath Anandappa Urf Shivappa Hansi
Appellant VsTammanasa & ors., AIR 2003 SC
1391

4.
Umabai & anr.-Appellants Vs Nilkanth
Dhondiba
Chavan
(Dead)
by
Lrs.&
anr.
Respondents as reported in 2005 3 AWC 2948,

5. C.S. Venkatesh Vs A.S.C. Murthy (D) By Lrs.
& ors. as reported in 2020 3 SCC 280,

6. Sughar Singh Vs Hari Singh (Dead) Through
LRS. & ors.. as reported in 2021 AIR(SC) 5581,

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard counsels for the parties and
perused the record with their assistance.
1 All. Shrimati Ram Ratti & Ors. Vs. Gorakh Prasad Dubey
833

2. The appellants have approached
this Court challenging the judgment and
decree dated 04.07.1981 passed by the I
Additional District Judge, Gorakhpur in
Civil Appeal No. 28 of 1980 and Civil
Appeal No. 29 of 1980.

3. Both the appeals arise from a suit
for specific performance of a contract for
sale bearing Suit No. 62 of 1973, filed by
the respondent in this second appeal. The
suit was partly decreed and aggrieved by
the findings of the Trial Court, both parties
filed their separate appeals before the First
Appellate Court. First Appellate Court set
aside Trial Court's Judgment and decreed
the suit in favour of the plaintiffrespondent. Against the First Appellate
Court's judgment, the defendants in the
original suit have filed this second appeal.

4. Learned counsel for the appellants
submits that there are two substantial
questions of law involved in the present
second appeal, viz.,

(i) whether the judgment and
decree of the Appellate Court is legally
perverse?

(ii) whether the appellate court
has
wrongly
inferred
readiness
and
willingness on the part of plaintiffrespondents to perform his part of the
obligation to execute the sale deed in
absence of any evidence to show his
willingness?

5. With regard to the substantial
question of law number one, learned
counsel
for
the
defendant-appellant
contends that the first Appellate Court
wrongly interpreted evidence on record and
gave a finding contrary to the settled law of
non-execution of a sale deed on the ground
of unconscionable transaction and unfair
advantage. Counsel for the appellant refers
to points No. 2 and 3 of the judgment of the
Appellate Court where it agrees with the
view taken by the Trial Court, that the
market value of the property must be at
least Rs.30,000/-. Whereas, the agreement
to sell was for a consideration of
Rs.15,000/-. Counsel further argues that
both the Courts have considered the
admission of the plaintiff-respondent in his
oral statement, that the property had a
market value of Rs. 35,000/-, but the
Appellate Court in its judgment ignored the
said admission and ruled against the
contention
of
unfair
advantage
and
inadequacy of consideration taken by the
defendant-appellant.

6. Learned counsel for the plaintiffresondent contends that there is no
perversity in the First Appellate Court's
judgment
and
that
inadequacy
of
consideration is not a ground for nonexecution of the sale deed. He further adds
that the plea that the signature of the
defendant-appellant was forged is not
accepted by both the Courts. Counsel for
the plaintiff-respondent further avers that
defendant-respondent Bansraj has already
sold most of his property therefore it can be
inferred that he was in dire need of money
and the same reasoning has been given by
the First Appellate Court while refusing the
plea of unconscionability of the terms of
the agreement and undue advantage raised
by the defendant-appellant.

7. A perusal of the record shows that
plaintiff-respondent, Gorakh Prasad as
P.W.1, admitted the value of the property at
around Rs.35,000/- and both the Courts in
their judgments have valued it at no less
than Rs. 30,000. Appellate Court, while
reversing the finding of the Trial Court
regarding the unfair advantage to the
834 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff-respondent, has recorded that
defendant Bansraj has been selling his
other properties, and therefore, he must be
in dire need of money. Furthermore, both
the Courts have recorded that the sum of
Rs.5,000, paid at the time of execution of
the agreement to sell was to be used by the
defendant-appellant for some urgent repair
works on his property. Both of these
findings recorded by the Appellate Court
are in contradiction with each other. If the
defendant was in dire need of money and
he agreed to sell the property at less than
half the market value of the property, at
Rs.15,000/-, then why would defendant
Bansraj take only Rs.5,000 as advance, and
not take the entire consideration. Without
recording cogent reasons, the finding of
undue advantage recorded by the Trial
Court could not be reversed by the First
Appellate Court.

8. The law on unfair advantage in
specific performance of contract is well
settled and traces its origin from the
principles of equity and is incorporated in
Section 20 of the Specific Relief Act, 1963
(hereinafter referred to as the Act of 1963).
Suffice would be to refer to the judgment of
the Supreme Court in the case of A.C.
Arulappan v. Ahalya Naik, reported as
(2001) 6 SCC 600, where paragraph 15
reads;

"15.
Granting
of
specific
performance is an equitable relief, though
the same is now governed by the statutory
provisions of the Specific Relief Act, 1963.
These equitable principles are nicely
incorporated in Section 20 of the Act.
While granting a decree for specific
performance, these salutary guidelines shall
be in the forefront of the mind of the court.
The trial court, which had the added
advantage of recording the evidence and
seeing the demeanour of the witnesses,
considered the relevant facts and reached a
conclusion. The appellate court should not
have reversed that decision disregarding
these facts and, in our view, the appellate
court seriously flawed in its decision.
Therefore, we hold that the respondent is
not entitled to a decree of specific
performance of the contract."

9. Furthermore, the Appellate Court
while decreeing the specific performance in
favour of the plaintiff-respondant did not
adhere to the established judicial precedent
of being sound and reasonable and being
guided by the settled judicial principles.
The law is settled that no decree of specific
performance be granted because courts are
bound to do so, courts have ample
discretion while deciding whether they
should decree a suit for a specific
performance
or
not.
However,
such
discretion cannot be arbitrary and the same
has been reiterated in a plethora of
judgments by the Supreme Court. Suffice
would be to refer to the judgment of the
Supreme Court in the case of Ramesh
Chand v. Asruddin, reported as (2016) 1
SCC 653, where it has been held in
paragraph 8 that;

"8. Section 20 of the Specific
Relief Act, 1963, provides that the
jurisdiction to decree specific performance
is discretionary, and the court is not bound
to grant such relief merely because it is
lawful to do so. However, the discretion of
the court is not arbitrary but sound and
reasonable, guided by judicial principles.
Sub-section (2) of Section 20 of the Act
provides the three situations in which the
court may exercise discretion not to decree
specific performance. One such situation is
contained in clause (a) of sub-section (2) of
Section 20 which provides that where the
1 All. Shrimati Ram Ratti & Ors. Vs. Gorakh Prasad Dubey
835
terms of the contract or the conduct of the
parties at the time of entering into the
contract or the other circumstances under
which the contract was entered into are
such that the contract, though not voidable,
gives the plaintiff an unfair advantage over
the defendant, the decree of specific
performance need not be passed. It is
pertinent to mention here that in the present
case, though execution of the agreement
dated 21-6-2004 between the parties is
proved, but it is nowhere pleaded or proved
by the plaintiff that he got redeemed the
mortgaged land in favour of Defendant 2 in
terms
of
the
agreement,
nor
is
it
specifically pleaded that he was ready and
willing to get the property redeemed from
the mortgage."

10. With regard to question number
two learned Counsel for the defendantappellant submits that there was nothing on
record to show that his client ever received
any notice from the plaintiff-respondent
regarding his willingness to get the sale deed
executed on his payment of the remaining
Rs.10,000/-. He further contends that as per
Section 16(c) of the Act of 1963, averments
and proof of the plaintiff's willingness in
clear terms are a must. Merely saying that he
has issued a notice for the execution of sale
deed, without any proof filed in his suit for
specific performance, is not enough to
satisfy the requirements of Section 16(c) of
the Act of 1963. Counsel for the appellant
places reliance on two judgments of the
Supreme Court in the cases of Manjunath
Anandappa
Urf
Shivappa
Hansi
Appellant v. Tammanasa and Others
Respondents as reported in AIR 2003
Supreme Court 1391, and Umabai &
Anr.- Appellants v. Nilkanth Dhondiba
Chavan (Dead) by Lrs. and Anr.-
Respondents as reported in 2005 3 AWC
2948.

11. Learned Counsel for the plaintiffrespondent contends that the Appellate
Court has rightly decided the issue of his
willingness to perform his part of the
contract, in his favour. He further adds that
in the suit for eviction and recovery of rent
by the defendant-appellant against the
plaintiff-respondent, he has taken a stand
that he is not a tenant and is willing to pay
the rest of the consideration and get the sale
deed executed in his favour. In reply to the
respondent's notice, it was the defendantappellant who refused to accept the
remaining sum and execute a sale deed in
the respondent's favour. Counsel for the
plaintiff-respondent further contends that
his willingness to perform his part of the
deal should be adjudged by taking into
consideration the conduct of the plaintiff
prior and subsequent to the filing of the suit
along with other attending circumstances
such as his stand in the subsequent suit for
eviction. Counsel for the respondent places
reliance upon the judgment of the Supreme
Court in the cases of C.S. Venkatesh vs.
A.S.C. Murthy (D) By Lrs. & Ors. as
reported in 2020 3 SCC 280, and Sughar
Singh vs. Hari Singh (Dead) Through
LRS. & ORS. as reported in 2021
AIR(SC) 5581.

12. A perusal of the Appellate Court
judgment on this issue shows that nowhere
it refers to "the notice" sent by the plaintiffrespondents. There is no such notice on
record. All it has considered is a letter
bearing paper no. 115/C marked as Ext. 2,
sent by the defendant-appellant refusing to
honour his part of the agreement to sell,
and repudiating any contract for sale
between him and the plaintiff-respondent. A
perusal of the letter itself does not reveal
whether it was in response to any notice
sent by the plaintiff-respondent, where the
plaintiff-respondent
has
expressed
his
836 INDIAN LAW REPORTS ALLAHABAD SERIES
willingness to perform his part of the
promise. Plaintiff-respondent has failed to
aver and prove his notice to the defendantappellant to perform his part of the
contract. The judgments in C.S. Venkatesh
(supra) and Sughar Singh(supra), relied
upon by the counsel for the plaintiffrespondent, also approve this view. The law
in this regard is very well settled that there
must be clear and unambiguous proof of a
notice as required under Section 16(c) of
the Act of 1963 and Forms 47 and 48 of
Appendix A of the CPC,1908. Suffice
would be to refer to the judgment of the
Supreme Court in the case of Manjunath
Anandappa (Supra), paragraphs 13,14
and 15 thus reads:

"13. Section 16(c) of the Specific
Relief Act reads thus:

"Specific
performance
of
a
contract cannot be enforced in favour of a
person--

***

who fails to aver and prove that
he has performed or has always been ready
and willing to perform the essential terms
of the contract which are to be performed
by him, other than terms the performance
of which has been prevented or waived by
the defendant."

14.
In
terms
of
the
aforementioned provision, it is incumbent
upon the plaintiff both to aver and prove
that he had all along been ready and willing
to perform the essential terms of contract
which were required to be performed by
him.

15. Forms 47 and 48 of Appendix
A of the Code of Civil Procedure prescribe
the manner in which such averments are
required to be made by the plaintiff.
Indisputably, the plaintiff has not made any
averment to that effect. He, as noticed
hereinbefore, merely contended that he
called
upon
Defendant
2
to
bring
Defendant 1 to execute a registered sale
deed. Apart from the fact that the date of
the purported demand has not been
disclosed, admittedly, no such demand was
made upon Defendant 1. We may notice, at
this juncture, that the plaintiff in his
evidence admitted that Defendant 1 had
revoked the power of attorney granted in
favour of Defendant 2. In his deposition, he
merely stated that such revocation took
place after the agreement for sale was
executed. If he was aware of the fact that
the power of attorney executed in favour of
Defendant 2 was revoked, the question of
any demand by him upon Defendant 2 to
bring Defendant 1 for execution of the
agreement for sale would not arise at all.
Furthermore, indisputably the said power
of attorney was not a registered one.
Defendant 2, therefore, could not execute a
registered deed of sale in his favour. The
demand, if any, for execution of the deed of
sale in terms of the agreement of sale could
have been, thus, made only upon Defendant
1, the owner of the property. The balance
consideration of Rs 10,000 also could have
been tendered only to Defendant 1. As
indicated hereinbefore, the purported notice
was issued only on 8-8-1984, that is, much
after the expiry of the period of three years,
within which the agreement of sale was
required to be acted upon."

13. From the aforesaid, it is clear that
the plaintiff did not give any notice to the
defendants of the execution of the sale deed
as is required under the law. Thus, on both
the grounds the present appeal succeeds
and is allowed. The judgment of the
appellate Court is set aside. The suit of the
plaintiff for specific performance fails. The
defendants shall return the amount received
by them under the agreement to sell to the
plaintiff along with interest at the rate of
1 All. U.P.S.R.T.C. Vs. Smt. Meghkaur & Anr.
837
6% p.a., within a period of three months
from today.

14. With the aforesaid, the appeal
stands allowed.
----------
(2023) 1 ILRA 837
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 46 of 2013

U.P.S.R.T.C. ...Appellant
Versus
Smt. Meghkaur & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Sanjeev Kumar Yadav

Counsel for the Opposite Parties:
Sri Nigamendra Shukla, Sri Suresh Bahadur
Singh, Sri Jahangir Haider

Civil Law - Motor Vehicles Act, 1988 -
Section - 173, - UP Motor Vehicles Rules,
1998
-
Rule
220-A(3)(i),
-
Civil
Procedure Code, 1908 - Order 41, Rule
33 - : - Insurer's appeal - against award on
two issues - quantum of compensation &
contributory negligence - deceased was died
in motor accident - in which a rash &
negligent driving of UPSRT bus hit the
deceased when he was driving a bicycle - on
the issue of contributory negligence, court
fixed the sole liability of incident upon UPSRT
- and - on the issue of quantum of
compensation, by reversing finding of learned
tribunal on the issue of Income, future
prospects & conventional heads in the light of
judgment of Hon'ble Apex court rendered in
case of Pranay Sethi's, Urmilla Shukla's, Sarla
Verma's, - impugned award is modified -
directions
issued
accordingly
-
Appeal
disposed of. (Para - 24, 25, 30, 33, 34, 36,
38, 42, 44)
Appeal disposed of. (E-11)

List of Cases cited:

1. Jitendra Kimshankar Trivedi & ors. Vs Kasam
Daud Kumbhar & ors. (2015) 4 SCC 237,

2. Arun Kumar Agarwal & anr. Vs National
Insurance Co. Ltd. & ors. (2010) 9 SCC 218,

3. Mahant Dhangir & anr. Vs Madan Mohan &
ors. (AIR 1988 SC 54),

4. Delhi Electric Supply Undertaking Vs Basanti
Devi (AIR 2000 SC 43),

5. National Insurance Co. Ltd. Vs Smt. Vidyawati
Devi & ors. (FAFO No.2389/2016 decided on
27.07.2016),

6. New India Assurance Co. Ltd. Vs Smt. Suman
Mishra & ors. (2019 (5) ADJ 669),

7. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., (2017 (16) SCC 680),

8. New India Assurance Co. Ltd. Vs Urmilla
Shukla & ors. (2021 SSC Online SC 822),

9. Smt. Sarla Verma & ors. Vs Delhi Transport
Corp. & anr. (2009 (6) SCC 121).

(Delivered by Hon'ble Ajay Bhanot, J.)

I. Introduction

1. This first appeal from order arises
out of the judgment and award dated
29.9.2012 passed by the learned Motor
Accident Claims Tribunal/learned District
and Sessions Judge, Court No.4, Ghaziabad
in Motor Accident Claim Petition No.261
of 2011 (Smt. Meghkaur and another v.
U.P.State Road Transport Corporation.

2. The first appeal from order has
been filed by the U.P. State Road Transport
Corporation contesting its liability to pay
and also the quantum of compensation