1 IN THE HIGH COURT AT CALCUTTA [CIRCUIT BENCH AT PORT BLAIR] Present: The Hon’ble Justice Biswaroop Chowdhury S.A. 6 of 2025 Shri Nishant Arora VERSUS Shri J. Ranganathan For the petitioner: For the respondent: Mr. N.A. Khan, Adv. Mr. V.D. Siva Balan, Adv. Last Heard on: October 05, 2026 Judgment on: October 13, 2026 Biswaroop Chowdhury, J: The Appellant before this Court was a plaintiff in a suit for specific performance of contract and is aggrieved by the Judgment and Decree dated 17-09-2010 passed by Learned Civil Judge Senior Division Andaman District in Port Blair in O.S. No. 88 of 2011 by which the said suit was dismissed and the Judgment and Decree dated 24th July 2016 passed in Other Appeal No. 02 of 2016 by Learned Additional District Judge Andaman and Nicobar Island Port Blair. 2 The case of the appellant/plaintiff before the Learned Trial Court may be summed up thus:- 1. The Defendant by way of filing a Civil Suit Vide Other Suit No. 2 of 1994 prayed for specific performance of contract against Smt. Muthu Indira Sree Kumari and Sree Kumar being legal representatives who were substituted in respect of the portion of land measuring 300 sq. Mtr. Out of survey no-63/1 total area 8200 sq. mtr. situated at Haddo Village under Port Blair Tehsil District South Andaman being the suit property. 2. The application for execution of Decree being taken out by the intervention of the Court Sale deed in respect of the suit property was executed in favour of the Defendant as per order XXI Rule 34 of Code of Civil Procedure 1908. The defendant on the execution and registration of the sale deed in his favour acquired right title and interest over the suit Land. 3. The defendant as far back in the year 2007 came forward to sell the suit property to the plaintiff on a consideration amount of Rs. 20,000,00/- (Rupees twenty lakhs only) and such offer was accepted by the plaintiff and accordingly on 10-02-2007 a sale agreement was executed by and between the plaintiff and Defendant in presence of one Shri D. Ramnarayan, Advocate and Notary Public, Port Blair, Shri S.S. Arora and Shri Raj Kumar were the attesting witnesses to the said agreement. 4. Since the plaintiff has already paid a part amount of Rs. 200,000/- (Rupees two lakhs only) to the Defendant in the said agreement dated 3 10-02-2007 the defendant agreed to execute the sale deed in favour of the plaintiff after obtaining all necessary documents of the Title within two months from the date of obtaining sale permission. 5. Thereafter the plaintiff was made to understand that the Defendant has taken steps for obtaining sale permission and again on 19-10-2008 another agreement for sale referred to as ‘The second sale agreement’ for brevity and convenience in between the plaintiff and Defendant in respect of the suit property was executed. The plaintiff has in addition to Rs. 200,000/- (Rupees two lakhs only which he has paid to the Defendant in terms of the First Sale agreement has paid Rs. 400,000/- (Rupees four lakhs only) to the Defendant while executing the second sale agreement. The defendant in the second sale agreement has agreed that he would take all necessary steps for obtaining no due certificate from the Authorities, sale permission, valuation certificate as also non- encumbrance certificate in order to perform his part of contract but he did not keep his promise as no steps whatsoever has been taken by the Defendant in that regard. 6. The plaintiff after waiting for a considerable period when found that the Defendant is not interested to execute the sale deed in respect of suit property in his favour, he approached the Defendant personally on several occasion and tried to ascertain as to the reason for not executing the sale deed in respect of the suit property in his name. 4 7. The Defendant informed the plaintiff that he is ready to execute the sale deed provided the plaintiff pays a sum of Rs. 300,000/- in addition to Rs. 600,000/- which he has received on the strength of first and second sale agreement Defendant made a proposal to the plaintiff that he is ready to execute another sale agreement in favour of the plaintiff and accordingly on 17-09-2010 the Defendant hereinabove executed agreement for sale being the Third Sale Agreement. Plaintiff on the very date of execution of the third sale agreement paid a sum of Rs. 300,000/- to the plaintiff which he has acknowledged by receipt. 8. In total the plaintiff has paid a sum of Rs. 900,000/- (Rupees nine lakhs only) to the Defendant being the part of sale consideration amount out of total sale consideration of Rs. 200,000/- (Rupees twenty lakhs only) for purchase of the suit property. 9. In the third sale agreement also the Defendant has agreed that he would execute sale deed in respect of the suit property in favour of the plaintiff immediately after obtaining valuation certificate sale permission and non-encumbrance certificate from the Authorities concerned. 10. The Physical Possession of the suit property was not handed over to the plaintiff when first and second agreement dated 10-02-2007, and 19-10-2008 were executed in between the plaintiff and the Defendant but the Defendant only at the time of execution of third agreement handed over possession of the suit property to the plaintiff. It was agreed that the 5 plaintiff would develop the suit property within a period of six months from the date of execution of the third sale agreement. 11. The plaintiff was and/or is willing and ready to perform his part of contract in terms of all the three agreements being dated 10-02-2007, 19-10-2008, and 17-09-2010 but the Defendant with some male-fide intention is not taking effective steps for the purpose of selling and/or alienating and/or transferring and/or disposing the suit property in favour of the plaintiff that too after receiving the substantial part of sale consideration amount of Rs. 900,000/- from the plaintiff. 12. The plaintiff has learnt from reliable sources that the Defendant is negotiating with the third party in order to sell the suit property. 13. Ultimately the Defendant has shown his actual colour who on 08- 03-2011 through his Learned Advocate Shri K. Vijay Kumar issued a legal notice wherein and wherunder he has in a very clandestine manner tried to demonstrate to the plaintiff that he is not ready and willing to execute and register the sale deed. The Defendant/Respondent contested the case by filing written statement. ISSUES were framed and evidence was adduced. Learned Trial Judge by Judgment and Decree dated 30th December 2015 was pleased to dispose the Other Suit No-88 of 2011 filed by the plaintiff/Appellant by observing as follows:- 6 ‘Since the mutation was not effected and it is a pre-condition that the property which is to be sold should be recorded in the name of the vendor, could not be made possible in this suit. Therefore the defendant was prevented from executing and registering the sale deed in respect of the suit property by operation of law, which is beyond his control. Therefore the agreement dated 17-09-2010 was frustrated and it was impossible to carry out. Considering all these aspects I am of the view that since the contract between the parties has been frustrated due to rejection of the mutation of the suit property in the name of the defendant the agreement of sale become impossible of performance and hence the plaintiff is entitled only to the refund of consideration together with the interest. In the present suit it is admitted fact that the plaintiff has paid Rs. 900,000/- to the defendant on the date of completion of the last agreement dated 17-09-2010. From the cross-examination of the defendant it appears that he still did not appears that he still did not refund the same to the plaintiff. C.F. paid is correct. Hence it Ordered that the suit be and the same is decreed in part on contest but without cost. 7 The prayer for specific performance of contract of the suit property against the defendant in terms of agreement dated 17-09-2010 is dismissed on contest. The plaintiff is entitled to get a decree of refund of earnest money of Rs. 900,000/- from the defendant alongwith the interest at the rate of 6% per annum from the date of execution of last agreement dated 17-09-2010. The defendant is hereby directed to pay the aforesaid amount to the plaintiff within 30 days from the date of this judgment failing which the plaintiff is at liberty to put the decree in execution.’ The plaintiff/Appellant being aggrieved by the Judgment and Decree passed by the Learned Trial Court preferred an Appeal being other Appeal No- 2/2016. By Judgment dated 24th July 2020. Learned Additional District Judge Andaman and Nicobar Island Port Blair was pleased to dismiss the other Appeal No-2/2016 by observing as follows:- ‘In the above situation where there is no clear title in favour of defendant and in pendency of numererous litigation I don’t find the Court can pass any direction upon the respondent to execute the deed of sale in respect of suit property in favour of plaintiff even though the plaintiff is ready to pay the balance amount of consideration. The trial court has rightly refused the prayer seeking such decree of specific performance of contract so prayed for and has judiciously exercised his discretion as provided u/s-20 of the specific relief Act 1963 by directing the defendant to refund the earnest money of Rs. 900,000/- 8 along with interest of 6% from the date of execution of the agreement till the final realization. I don’t find that the appellant will be prejudiced in any manner as he was well aware of the fact that the land is yet to be mutated in the name of the respondent at the time when they enter into the agreement for sale, he seems to have taken calculative risk while entering into the agreement where provision was laid down for refund of earnest money along with bank interest in case the respondent fails to acquire title over the property. The respondent being intended seller had not suppressed any material fact which required to be in the knowledge of the purchaser. The defendant had also made bona fide attempt to get the land mutated in his favour and there is no malice on his part towards performance of terms of agreement. Accordingly I find that in the present case it would be highly unreasonable for the Court to direct specific performance although the contract is binding at law. I find no reason in interfering with the Decree and Judgment under challenge. Accordingly the present appeal fails.’ The Appellant/plaintiff being aggrieved by the Judgment and Decree passed by the First Appellate Court has come up with the instant 2nd Appeal. The Hon’ble Division Bench by Order dated 08/11/2024 was pleased to admit the appeal and formulate the following questions of Law. 9 a) Admittedly when the defendant purchased the property from the legal heirs of one N. Raghawan Pillai under orders of a Civil Court and conveyances were executed through the Nazir, of the Court could the two Courts below have held that the defendant did not have clear title of the property to enter into an agreement for sale with the appellant? b) Could a decree for specific performance be declined merely because the property was not mutated in favour of the defendant/respondent although the said defendant/respondent was holding a valid conveyance in respect of the suit property? c) Have the two Courts below ignored the fact that mutation of the property in favour of the defendant has been ordered by the single and Division Benches of this Court in writ petitions and miscellaneous appeals. d) Have the two Courts below failed to appreciate that the valid conveyance is the actual evidence of title of property of the defendant and absence of mutation if any can be remedied by other means? e) Would refund of money made in agreement for sale simpliciter be an effective alternative remedy to specific performance without considering the value of the land in question appreciating since after execution of the agreement of sale? Heard Learned Advocate for the appellant/plaintiff and Learned Advocate for the respondent/defendant. Perused the judgments of Learned Trial Court and First Appellate Court and the materials on record. 10 Learned Advocate for the appellant submits that under Section 20 of Specific Relief Act the Plaintiff/Appellant is entitled to decree for specific performance of Contract. Learned Advocate further submits that the title being in favour of defendant by deed of conveyance mutation cannot be ground to refuse specific performance of contract. Learned Advocate draws attention to the notice under Rule 135(3) to the former holders of suit land from whom the suit property was purchased and submits that application for mutation was made by the defendant/appellant, thus there was no ground to refuse decree for specific performance of contract. Learned Advocate also submits that the Judgments passed by both the Learned Courts are liable to be set aside. Learned Advocate for the Respondent/Defendant submits that the Appellant/plaintiff did not perform his part as per the contract thus specific performance of contract cannot be directed. Learned Advocate further submits that clause 3 of the agreement contained a provision that the defendant shall get the sale deed registered in his name through Court and in case of his failure to obtain sale deed in his favour he shall return the said amount to the purchaser. Thus as per the said provision earnest money can be returned. Learned Advocate also submits that no prayer for permission to sale is made thus no specific performance can be directed. Before proceeding to decide on the issue it is necessary to consider Section 10, section 11, Section 14, and Section 16 of the Specific Relief Act 1963. 11 As per Section 10 of the Act specific performance of a contract shall be enforced by the Court subject to the provision in Sub-Section 2 of Section 14, and Section 16. Section 11. Cases in which specific performance of contract connected with trust enforceable-1) Except as otherwise provided in this Act Specific performance of a contract shall be enforced when the act agreed to be done is in performance wholly or partly of a trust. 2) A contract made by a trustee in excess of his powers in breach of trust cannot be specifically enforced. S-14- The following contracts cannot be specifically enforced namely:- a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20. b) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise; c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms and; d) a contract which in its nature determinable. S-16. Personal bars to relief-specific performance of a contract cannot be enforced in favour of a person. a) who has substituted performance of contract under Section 20; or 12 b) who has become incapable of performing or violates any essential term of, the contract that on his part remains to be performed or acts in fraud of the contract or wilfully act at variance with or in subversion of the relation intended to be established by the contract; or c) [who fails to 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. Explanation-For the purpose of clause (C)- i) where a contract involves the payment of money it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. ii) The plaintiff [must prove] performance of or readiness and willingness to perform the contract according to its true construction. Upon perusal of the letter dated 08-03-2011 issued by the Learned Advocate of the Respondent upon the appellant expressing inability of the appellant to execute sale deed due to non-mutation of his name and the decision of the Learned Courts of refusing decree of specific performance due to non-mutation the main question to be decided in this appeal, is whether mutation is necessary to sell an immoveable property. 13 Upon perusal of the cross examination of D.W. 1-it appears that D.W. 1 the defendant herein to the question of necessity of mutation replied that it was his view. The question put and the answer given is quoted as follows:- ‘a: From whom you came to know that for the purpose of sale of suit land it was required to be mutated in your name?’ ‘it is my view that for the purpose of selling of suit land it is required to be mutated in my name. It is my own decision to apply for sale permission before the Dy Commissioner’ Thus it will appear that the defendant could not show any specific provision under which property obtained by execution of a decree of specific performance of contract of sale cannot be sold without the name being mutated before the Local Authority and without permission of the Administrative Authority. The Decree obtained by the Defendant for specific performance was not challenged in any Court of law and was executed and reached its finality. Upon obtaining the suit property in execution of a decree the defendant/respondent could not satisfy the Court under which provisions of law permission to sell is required. The agreement entered into between the plaintiff and Defendant contained a condition that the defendant has already filed execution case and shall get the sale deed registered in his name and in case of failure to obtain sale deed he shall return the amount to the purchaser. There is no condition in the agreement that amount will be returned if name is not mutated or sale permission not obtained. Moreover at the time of obtaining 14 decree in specific performance of contract the names of the vendors/Judgment Debtor was not mutated nor was any permission for sale obtained. The Tehsildar Port Blair in his order dated 28/06/2010 on the mutation application of the defendant observed as follows:- ‘The matter to the extent that it pertains to mutation is admittedly within the purview of Court. The relief sought by the petitioner is mutation of land in his favour to the extent of 300 sq. Mtrs. Comprised in sy No.63/1 total area 8200 Sq. Mtrs upon the strength of deed registered through the intervention of Court. In the instant matter the sale deed was registered by the Nazir of the Hon’ble District Court on behalf of the Judgment debtors namely Smt. Chellamma Anna widow of late Raghavan Pillai, Rathimani Amma, D/O-Late Reghavan Pillai Muthu Indira W/o-Thankappan Pillai C. Kumari D/o- Raghavan Pillai. However it may be pertinent to mention here that the said land as per the report of the patwari of the Halka, bearing S4. No-63/1 situated at Haddo stands recorded in the name of Subash Dweep colonization Multipurpose society Ltd. presently.’ Thus the Tehsildar did not dispute the execution and registration of sale Deed by Nazir of District Court for which defendant respondent sought mutation. Neither the said decree is in challenge before any Court. But the prayer for mutation was refused as the judgment debtors are not the recorded tenants. 15 Tenant as per Regulation 2(29) Andaman and Nicobar Islands Land Revenue and Land Reform Regulation Act 1966 means the person by whom land revenue is or but for a contract express or implied would be payble but does not include a sub-tenant. Thus recorded tenant means those tenants whose names appear in the Government Records for payment of Land revenue. Thus mutation may be effected in accordance with the rules. But mere mutation is not the document of title of any property. As the suit land obtained by the Defendant by execution of decree and the same not challenged in any Court, although name of the defendant is not mutated does not go to show that/defendant/respondent is not having title of suit property by virtue of execution of decree of specific performance. As the defendant is having title to the suit property and enjoying the same he cannot avoid his obligation of executing sale deed in terms of agreement for sale between himself and the appellant. Moreover the defendant could not show that the case falls within exception of Section 14, Section 16, and Section 11(2) of the Specific Relief Act 1963. Further the defendant could not show that there is restrain order by any Competent Court or Authority restraining such transfer. Thus the plaintiffs are entitled to a decree of specific performance of Contract, and refund of money cannot be alternative relief. 16 Thus the question of law formulates in (a), (b), (d), and (e) are answered in favour of the appellant plaintiff entitling him to a decree for specific performance. The question no-(e) is not answered in favour of appellants as the appellant could not show any document that Single Bench and Division Bench of this Court directed mutation in favour of defendant although issue with regard to mutation was challenged in writ proceedings. As the issue of mutation is challenged in writ proceedings no observation is made on that aspect as law will take its own course. Hence this Appeal SA-6/2025 stands allowed. Judgment and Decree dated 30-10-2015 passed in Other suit No-88 of 2011 by the Learned Civil Judge (Senior Division) South Andaman District Port Blair and Judgment and Decree dated 24-07-2020 passed in other Appeal No. 02 of 2016 by the learned Additional District Judge Andaman and Nicobar Island Port Blair are set aside. The Appellant/Plaintiff does get a decree against the Defendant/Respondent. The Defendant/Respondent is directed to execute and register the Sale Deed forthwith in favour of the appellant of the suit property on Appellant paying the balance consideration amount. The Appellant/plaintiff shall pay the balance consideration amount within 3 weeks. On making such payment, Execution and Registration of Sale Deed be made forthwith. In default of execution of Sale Deed by Respondent/Defendant, plaintiff Appellant will be entitled to put the decree into execution. 17 The Decree be drawn up in accordance with law. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Biswaroop Chowdhury, J.)