N.K. Kapoor, J.
1. This is defendant's regular second appeal.
Plaintiff filed a suit for specific performance in respect of agreement dated 21.4.1982 alleged to have been executed by the defendant in respect of 1/4th share of the land measuring 223 Kanals 5 Marlas (as per calculation 224 Kanals 18 Marlas) situate in village Rattanheri at the rate of Rs. 26,000/- per acre. According to the plaintiff, as per agreement, a sum of Rs. 15,000/- was paid in advance and the suit land was to be registered in three separate sale deeds to be executed on 18.6.1982, 15.6.1983 and 15.6.1984. It was further agreed that the sum of Rs. 15,000/- given in advance was to be adjusted i.e. Rs. 5000/- in respect of each sale deed. The vendor agreed to clear the mortgage/any charge upon the land so that the same is free from any encumbrances. This was to be done before the execution of the first sale deed. It is the case of the plaintiff that the defendant failed to execute the sale deed on 18.6.1982 though the plaintiff was ready and willing to get the same executed as per agreement between the parties. The defendant when asked the plaintiff to get the sale deed executed made further demand of Rs. 45,000/- from the plaintiff so as to enable him to pay off the mortgage money, interest thereon etc. The plaintiff paid him Rs. 45,000/- on 22.6.1982 and in token of it the defendant executed a promissory note and a receipt in this regard. It is further the case of the plaintiff that he came present before the Sub Registrar with the remaining amount for execution of the sale deed as originally agreed but the defendant did not turn up. Hence the present suit.
2. The defendant in his written statement urged that, in fact, the plaintiff did not came present on the date fixed whereas the defendant remained present in the office of Sub Registrar, Samana, for execution of the sale deed. To prove his presence before the Sub Registrar, the defendant filed an application so that his presence be recorded. Payment of Rs. 15,000/- made to him on the basis of agreement was accepted. However, it was stated that the same stands forfeited as the defendant was ready and willing to perform his part of the contract but the plaintiff did not turn up on She date fixed. According to the defendant, time was the essence of the contract and this way the plaintiff committed breach of contract. Since the plaintiff was not ready with the money on 18.6.1982, the agreement no moresubsists.
3. On the pleadings of the parties, following issues were framed:-
1/ Whether the defendant executed pronote and receipt dt 22.6.1982 for Rs. 45,000/- in favour of the plaintiff and received this amount through him OPP
2/ whether the plaintiff had always been ready and willing and still ready and willing to perform his part of the agreement OPP
3/ Whether the defendant has been ready and willing to perform is part of the agreement OPD.
4/ Whether time is essence of the contract and the plaintiff committed breach of the same, if so its effect OPD
5/ Whether the plaintiff is entitled to specific performance of the agreement dt. 21.4.182 and possession of the suit land as alleged OPP
6/ Whether in the alternative plaintiff is entitled to recovery of Rs. 81,000/- as alleged and future interest at the rate of 12% per annum OPP
4. Issue No. 1,2,3 and 5 were taken up together. The trial Court on the basis of evidence decided issue No. 1 against the plaintiff. Issue No. 2 was decided in favour of the plaintiff and issue No. 3 was decided against the defendant. Issue No. 5 was decided in favour of the plaintiff. Issue No. 4 was decided against the defendant. Since suit was decreed for specific performance, alternative relief of recovery of the money was held to have become redundant. Accordingly, the trial Court decreed the suit of the plaintiff subject to his depositing the sale price of Rs. 1,67,731.25 within two months from the date of the order and on deposit of the sale price defendant to get the sale deeds executed in favour of the plaintiff.
5. Against the judgment and decree of the trial Court, the defendant filed appeal whereas the plaintiff filed cross-objections with regard to the finding of the trial Court in respect of issue No. 1. The lower appellate Court once again appraised the evidence in respect of contentious issues relating to the agreement, execution of the pronote and the receipt and also whether the amount paid vide the promissory note can be adjusted towards the sale price. The Court finally came to the conclusion that payment of Rs. 45,000/- vide pronote and receipt duly executed by defendant stands fully proved and that the plaintiff is entitled to adjust this amount towards the sale consideration. However, finding no ground to differ or vary with the findings of the trial Court holding that a valid agreement came into existence and that the plaintiff was ever ready and willing to get the sale deed executed and so while accepting the claim of the plaintiff, modified the judgment and decree of the trial Court to the extent that the amount of Rs. 45,000/- was taken as a part payment of sale consideration and so to be adjusted ultimately at the time of execution of the sale deed. Thus, the appeal as well as the. cross-objections were disposed of with the aforesaid modification.
6. Challenging the findings of the Courts below, the counsel for the appellant termed these to be wholly illegal and unwarranted on the facts of the present case. According to the counsel, the Courts below have erred in law in coming to the conclusion that the plaintiff was ready and willing to perform his part of the contract. Such a conclusion is not supported as per evidence. On the other hand, the cogent evidence led by the appellant to prove his presence before the Sub Registrar has been simply side tracked and that too for no justifiable reason. Similarly, the lower appellate Court erred in law in adjusting the amount of Rs. 45,000/- towards the sale price. There is not an iota of evidence on the basis of which it can be inferred that this amount was paid towards the sale consideration. Had it been so, the same would have formed part of the original agreement, the basis of the suit. According to the counsel, infact, there is no clear proof on record that the promissory note and the receipt bears the signatures of the defendant-appellant and in any case the same ought to have been construed as a separate transaction and for which the plaintiff could take appropriate steps for recovery of the same. So the judgment and decree of the lower appellate Court deserves to be set aside/modified on this ground alone.
7. Justifying the conclusion arrived at by the lower appellate Court, counsel for the respondent took support from the provision of Section 92 of the Indian Evidence Act (for short 'the Act') and argued that the payment made on the basis of pronote was, in fact, towards the original agreement, for specific purpose. This distinct separate agreement merely modifies the original agreement between the parties and so could be considered by the Court while construing the agreement. Since the defendant agreed to sell the suit land vide agreement dated 21.4.1982, this further payment of Rs. 45,000/- (though on the basis of pronote and receipt) was, in fact, as a part payment towards the sale price. Since the promissory note and the receipt stands duly proved, the adjustment of this amount towards the total sale consideration is not only just but most appropriate and so calls for no interference. Otherwise too, such amount is recoverable from the defendants so the plaintiff is legally entitled to deduct from the remaining sale consideration. To support his submissions, the counsel placed reliance upon the decision of the apex Court in case reported as Niranjan Kumar and Ors. v. Dhyan Singh and Anr., A.I.R. 1976 S.C. 24000; Champaran Jain v. Sripati Nath Dab, A.I.R. 1938 Calcutta 430; and Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. and Ors., A.I.R. 1946 Privy Council 97.
8. The execution of agreement dated 21.4.1982 stands proved on record. Vide this agreement, defendant agreed to sell his l/4th share in the land measuring 223 Kanals 5 Marlas (actually 224 Kanals 18 Marlas) at the rate of Rs. 26,000/- per acre. A sum of Rs. 15,000/- was paid to the defendant at the time of execution of the agreement. Three separate sale deeds were agreed to be executed between the parties i.e. in respect of 16 Kanals the sale deed was to be executed on 18.6.1982; of 19 Kanals 16 Marlas on 15.6.1983 and in respect of the remaining land on 15.6.1984. A sum of Rs. 15000/- already received was to be adjusted in respect of each sale deed. Both the parties agreed upto this stage. Thereafter, according to the plaintiff, he came present before the Sub Registrar for registration of the sale deed whereas the defendant did not turn up and when contacted he expressed his desire to have some money so as to clear the various encumbrances upon the land. According to the plaintiff, he further advanced a sum of Rs. 45,000/- to the defendant to pay off the mortgage amount, interest thereon and meet such other expenes. However, in lieu of the amount so advanced. Both the Courts on scrutinizing the evidence had come to a conclusion that whereas the plaintiff has been ever ready and willing to perform his part of the agreement, the defendant some-how did not turn up and so the sale deed could not be executed. The findings recorded by the Courts below are not vitiated in any manner. Otherwise too, this being a finding of fact calls for no interference in the regular second appeal.
9. Since the agreement stands proved (rather exhibited) the decree for specific performance granted by the Courts below is according to law. Thus, the sole point which needs some close examination is whether, the alleged amount of Rs. 45,000/- paid by the plaintiff to the defendant on the basis of promissory note can be taken to be as amount towards the sale consideration. According to the plaintiff, he is entitled to deduct this amount out of the sale prices and for this support has been sought from the proviso (4) to Section 92 of the Act. This contention is being strenuously repelled on the short ground that had this payment been towards the sale price, the same could easily be noted in the agreement itself. Otherwise too, in view of the written agreement, oral evidence changing the term of the written agreement is wholly impermissible. As per agreement dated 21.4.1982, the first sale was to be executed on 18.6.1982 According to the plaintiff defendant did not come present to get the sale deed executed but demanded some more money. So till this time as per version of the plaintiff, there was no much dispute between the parties except that the defendant needed some more money to clear the mortgage and meet other expenses. It is to meet this demand that a sum of Rs. 45,000/- is stated to have been given to the defendant on 22.6.1982. The promissory note and receipt is an independent document. This document docs not make mention of the agreement nor it records that this amount is being advanced towards the remaining sale consideration. In this view of the matter, it cannot be said that this was intended to modify the original agreement dated 21.4.1982.
10. Section 92 of the Act deals with the subject - Exclusion of evidence of oral agreement. According to Section 92 of the Act, when the terms any contract, grant or other disposition of property has been reduced in the form of a document, no evidence of any oral agreement or statement is to be admitted, as between the parties to any such instrument for the purpose of contradicting, varying, adding to, or subtracting from its terms. So this section specifically excludes the reception of any oral agreement which intends to vary, add or subtract the written terms of the agreement. So the version set up by the plaintiff that defendant verbally agreed that the amount shall be adjusted towards the sale consideration is not acceptable in view of this specific bar of Section 92 of the Act. Even proviso (4) to Section 92 of the Act is not attracted as per facts of the present case. Proviso (4) to Section 92 of the Act reads as under:-
'Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property,' may be proved except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.'
11. The promissory note and the receipt if independently construed does not give any indication that this has been created so as to modify an existing agreement between the parties. Rather to connect the promissory note to the agreement for the sale of the property, oral evidence has been led so as to make the amount shown to have been made to the defendant vide the promissory note as a further advance towards the sale consideration.
12. None of the decisions cited by the counsel for the respondent has any applicability as per facts of the present case. In Shankarlal Narayandas Mundade's case (supra) the Court held that an oral contract is valid and enforceable; but in such a case it is a question of construction whether the execution of the further written contract is a condition or terra of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. Except for the verbal assertion of the plaintiff, there is no evidence on record that the defendant at any time expressed his desire to have more towards the sale consideration. Even on facts, the defendant had been able to demonstrate that no such money was required. In Champaran Jain's case (supra), the Court was examining the proviso 2 to Section 92 of the Act whereas in the present case the defendant has placed reliance upon Proviso (4) to Section 92 of the Act. In Niranjan Kumar's case (supra), the Court was examining the case in the light of Sections 91 an 92(4) of the Act arid it was held that it was open to the appellate to lead evidence to show that there was apart from the rent note distinct separate agreement under which the terms of the original contract or grant were modified and that the partners of the firm, both before and after its re-composition were the real tenants of the shop. In the present case, the promissory note cannot be construed, to be sort of oral agreement varying or modifying the terms of the original agreement. The promissory note gives the distinct cause of action to recover the amount and so merely because there is another agreement between the parties, promissory note cannot be considered to have modified or varied the original agreement. This way the Additional District Judge grossly erred in law in treating this amount of Rs. 45,000/- towards the sale consideration.
13. Accordingly, while setting aside the judgment and decree of the Additional District Judge, affirm the judgment and decree of the trial Court, thus decreeing the suit of the plaintiff. The plaintiff is, however, given two months time to deposit the remaining sale consideration amount and on deposit of the same the defendant is to execute the sale deed failing which the plaintiff shall be at liberty to get the sale deed executed through the process of the Court. The other stipulations as given in the judgment of the trial Court shall remain intact. No order as to costs.