Badru vs A. Maruthachalam and Others

G. Rajasuria, J.—Animadverting upon the judgment and decree dated 30.6.2010 passed by the learned Additional District Sessions Judge,

Fast Track Court No. I, Coimbatore in O.S. No. 632 of 2007, the plaintiff has preferred this appeal. For convenience sake, the parties are

referred to here under according to their litigative status and ranking before the trial Court.

Compendiously and concisely, the germane facts absolutely necessary for the disposal of this appeal would run thus:

(i) The plaintiff filed the suit for specific performance seeking the following reliefs including the alternative relief:

- to pass a decree and judgment

a) directing the defendants to execute the sale deed in respect of the suit property in favour of the plaintiff on receiving the balance sale

consideration within a time to be stipulated by this Court and on their failure to do so, this Court may execute the sale deed on behalf of the

defendants.

(OR)

b) in the alternative directing the defendants to pay the plaintiff a sum of Rs. 2,50,000/- together with interest at the rate of 18% per annum from

the date of suit till date of realisation.

c) directing the defendants to pay cost of the suit.

(extracted as such)

(ii) The gist and kernel, the pith and marrow of the averments in the plaint would run thus:

Exhibit A-3, the agreement to sell emerged between the plaintiff on the one hand and D1 through her power agent/husband-D2, on the other hand;

whereby, the latter agreed to sell in favour of the former the property described in the schedule of the plaint for a total sale consideration of Rs.

12,50,000/- and a sum of Rs. 2,50,000/- was paid as advance by the proposed purchaser to the proposed seller. As per the terms and conditions

therein, the seller on or before 27.6.2007 should make arrangements in such a manner that they should be ready to sell the property in favour of

the plaintiff, on receipt of the remaining sale consideration. However, there was no positive step taken by the defendants in performing their part of

the contract. Whereupon, the plaintiff vide Exhibit A-5 notice dated 30.6.2007 called upon the defendants to come forward to execute the sale

deed. However, the defendants would claim to have sent the telegraphic notice on 2.7.2007 as though all along they had been ready and willing to

perform their part of the contract and they blamed the plaintiff for the alleged delay and unilaterally cancelled the said agreement to sell. Wherefore,

the plaintiff was constrained to file the suit for specific performance.

(iii) It so happened that R2/D2 filed the counter in I.A. No. 695 of 2007; thereafter, instead of filing the written statement, a memo was filed by D1

and D2 adopting the counter, as written statement; the gist and kernel of it would run thus:

Suppressing the material facts, the plaint was filed. In fact anterior to the suit agreement-Exhibit A-3, there emerged as many as three agreements

to sell as contained in Exhibits B-1, B-2 and B-3 between the same parties virtually, but with certain changes in the name of the purchasers. The

plaintiff was not ready and willing to perform her part of the contract and in fact, she was not having the financial wherewithal to purchase the

properties. In order to camouflage and conceal her own drawback and her inability to perform her part of the contract, she did choose to issue the

notice. The plaintiff did not approach the Court with clean hands and accordingly her prayer for specific performance should be dismissed and

ultimately, the suit also was to be dismissed.

(iv) The trial Court framed the relevant issues.

(v) Up went the trial, wherein the plaintiff examined herself as P.W. 1 along with P.Ws. 2 to 4 and marked Exhibits A-1 to A-9. On the

defendants'' side D2-examined himself as D.W. 1 along with D.W. 2 and marked Exhibits B-1 to B-8.

(vi) Ultimately, the trial Court dismissed the prayer of the plaintiff for specific performance; however, the suit was decreed ordering refund of the

advance amount with 18% interest per annum.

Being aggrieved by and dissatisfied with the judgment and decree of the trial Court in rejecting the prayer for specific performance, the plaintiff

has preferred this appeal on various grounds.

The learned counsel for the appellant/plaintiff placing reliance on the grounds of appeal, would pyramid his argument, which could succinctly and

precisely be set out thus:

a) Quite antithetical to the well established precedents governing specific performance suits, the trial Court simply found fault with the plaintiff as

though the plaintiff failed to deposit the remaining part of the sale consideration at the time of presentation of the plaint.

b) The law is well settled on that point to the effect that it is not a sine qua non for the plaintiff, who seeks specific performance to deposit the

remaining part of the sale consideration and it is sufficient if such plaintiff deposits the amount in Court consequent upon the direction given by the

Court.

c) The plaintiff was having enough financial capability to perform her part of the contract. But it was the defendants, who dilly-dallied and shilly-

shallied with the matter and under one pretext or other postponed the execution of the sale deed. Ultimately, the defendants issued the telegraphic

notice in order to pre-empt the plaintiff from asserting her right.

d) If at all the defendants were really having the genuine intention to sell the suit property, they could have very well come forward to get the

transaction fructified, but, on the other hand, unilaterally the agreement to sell was cancelled, which was totally antithetical to the well established

principles of law.

e) Time was not the essence of the contract as contained in Exhibit A-3 and within the period of four months itself, the suit came to be filed, which

indicates and exemplifies the plaintiffs earnestness in approaching the Court for specific performance, but the trial Court turned down such a prayer

unjustifiably.

Accordingly, he would pray for decreeing the suit for specific performance.

Per contra, in order to extirpate and pulverise, challenge and impugn the arguments as put forth on the side of the appellant/plaintiff, the learned

counsel for the respondents/defendants would advance his argument, the warp and woof of the same would run thus:

(i) The plaintiff is guilty of suppressing the material facts. In para No. 4 of the plaint, she went to the extent of parodying and portraying, depicting

and describing as though during the month of January 2007, D2 entreated and implored the plaintiff to enter into the agreement to sell with him for

the purpose of alienating the suit property.

(ii) Exhibits B-1, B-2 and B-3 would be a fitting answer to such falsity as found incorporated in para No. 4 of the plaint. The Court below

appropriately and appositely, correctly and legally taking into account the fact that the plaintiff failed and neglected to perform her part of the

contract, turned down the prayer for specific performance.

(iii) In the plaintiff''s notice also, there is no whisper about the fact that she was ready with the remaining sale consideration of Rs. 10 lakhs and it

was as silent as silence could be. In such a case, even by phantasmagorical thoughts, it cannot be described or labelled that the plaintiff was having

the financial ability to perform her part of the contract.

(iv) The Encumbrance Certificate admittedly was handed over by D2 to the plaintiff as acknowledged by her in para No. 7 of the plaint. In fact,

the plaintiff made hectic attempts to raise loan for the purpose of purchasing the suit property, but in her attempt, she failed. Whereupon, she raised

her accusative finger as against the defendants as though they were at fault. The trial Court did not hold simply that the non-deposit of the remaining

sale consideration was fatal but it gave a finding that the plaintiff did not prove her financial ability to perform her part of the contract.

As such, on solid grounds the trial Court rendered its judgment in dismissing the prayer of the plaintiff for specific performance, warranting no

interference in appeal. Accordingly, he would pray for the dismissal of the appeal.

The points for consideration are as under:

Whether in the wake of Exhibits B-1, B-2 and B-3, the case of the plaintiff as contained in para No. 4 could be held to be one lacking in good

faith?

Whether the absence of evidence adduced on the plaintiff side to prove her financial wherewithal during the period between 2.3.2007 the date

of agreement and 21.7.2007, the date of filing of the suit is fatal to the case of the plaintiff for specific performance?

Whether the plaintiff is ready and willing to perform her part of the contract?

Whether the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act?

Whether there is any perversity or illegality in the judgment and decree of the trial Court in holding that the plaintiff was not entitled to specific

performance?

All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another.

At the outset itself, I would like to extract here under the relevant portion of the plaint.

IV. The plaintiff respectfully submit that the 2nd defendant met the plaintiff on several occasions during the month of January and expressed his

desire to sell the suit property, the 2nd defendant had offered to sell the suit property to the plaintiff As he repeatedly met and requested her to buy

the suit property, the plaintiff informed him that first she would inspect the property and thereafter she would tell her intention.....

(extracted as such)

Exhibits B-1 to B-3 would contain the following descriptions:

It is therefore crystal clear that the seller happened to be D1 only but the name of the purchasers got changed and they all belong to the family of

the plaintiff. It is therefore crystal clear that at the instance of the plaintiff''s family members, such agreements to sell as contained in Exhibits B-1 to

B-3 emerged and ultimately at the instance of the plaintiff only, Exhibit A-3 emerged on 2.3.2007. Exhibit B-3 was very much covering the subject

matter of this suit. In such a case, there is no knowing of the fact as to what actually propelled and impelled the plaintiff to aver in para No. 4 as

though it was D2, who was head over ears in entreating and imploring the plaintiff to enter into such an agreement to sell with D2, the husband of

D1. Wherefore, it is crystal clear that the averments in para No. 4 of the plaint were false and mendacious statements consciously uttered out by

the plaintiff, which would disentitle her from claiming specific performance.

At this juncture, I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:

(i) Jugraj Singh and another Vs. Labh Singh and others,

(ii) His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar,

Following the same, this Court in the judgment in Yesudass (died) and Others Vs. Henry Victor, Priyadharshini and Grace Yesudass, has held

thus:

The factum of readiness and willingness to perform part of the contract is to be adjudged with reference to the conduct of the parties and the

attending circumstance. The Court must infer from the facts and circumstance whether the plaintiff and third defendant were always ready and

willing to perform their part of the contract. The facts of this case would amply demonstrate that the plaintiff and third defendant were not ready

nor had the capacity to perform their part of the contract as they have no financial capability to pay the consideration in cash as contracted and

intended to bite for the time, which disentitles them as time is the essence of the contract. Continuous readiness and willingness at all stages from

the date of agreements till the date of hearing of the suit must be proved.

(emphasis supplied)

A mere running of the eye over those precedents would unambiguously and unequivocally, pellucidly and palpably, highlight and spotlight the fact

that a person who seeks specific performance should come with clean hands. It is not only that while seeking equitable relief, the following maxims

are applicable. ""He who seeks equity must do equity and he who comes to equity must come with clean hands"", but even in respect of the plaintiff,

who seeks specific performance the same principles are to be pressed into service. He should all the more have clean hands for the purpose of

seeking the relief of specific performance. But, in this case, the plaintiff exposed herself by her false statement in para No. 4 of the plaint as

extracted supra.

The learned counsel for the plaintiff/appellant would place reliance on the decision of this Court in Rathinam Chettiar Vs. Embar Naidu and

another, however, my mind is reminiscent and redolent of the following decisions:

(i) Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, certain excerpts from it would run thus:

This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action

to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by

persons enumerated in Section 16 of the Act. 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 the terms the performance of which has been prevented

or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if

the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to

be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific

performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which

need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not

correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh

was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case, there is a clear

breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and

registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific

performance, even if he proves breach by the defendant, as he was not ""ready and willing"" to perform his obligations.

(ii) J.P. Builders and Another Vs. A. Ramadas Rao and Another, would run thus:

It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply

with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific

performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the

relevant points of time. ""Readiness and willingness"" to perform the part of the contract has to be determined/ascertained from the conduct of the

parties.

The decision cited on the side of the appellant/plaintiff in Rathinam Chettiar v. Embar Naidu and Another (supra) case is no more good law on

the point of delay in view of the latest developments in law. Albeit the plaintiff is not enjoined to deposit the remaining part of the sale consideration

at the time of filing the suit, yet it is the bounden duty of the plaintiff to establish and show up that ever since the date of the agreement to sell, he or

she was financially sound and that he or she had the financial wherewithal to perform his/her part of the contract. But in this case, the evidence is

conspicuous of its missing on that aspect. If the financial status of the plaintiff is an admitted one, then the matter would be different. Here,

specifically the defendant challenged and impugned the financial wherewithal of the plaintiff. Over and above that it is also glaringly and pellucidly

clear that the plaintiff''s family members entered into as many as three agreements to sell and none of those agreements could be performed by

them.

On the defendants'' side, it has been very clearly established and proved that it was because of the plaintiff''s family members, as many as the

four agreements to sell emerged. Absolutely, there is no reason much less plausible reason forthcoming on the side of the plaintiff or her family

members for not honouring the earlier three agreements to sell. In such a case, the trial Court au fait with law and au courant with facts, correctly

rejected the prayer of the plaintiff for specific performance. Scarcely could it be claimed that it is not a common or garden principle that whenever

the plaintiff who seeks specific performance files the suit he should also file an application for deposit of the amount representing the remaining part

of the sale consideration with lodgment schedule. It is entirely different whether the plaintiff is actually depositing the amount or not after getting the

order from the Court, but in order to show the bona fides, the plaintiffs are normally filing such an application before the Court and it is for the

Court either to pass orders immediately on the application or defer it till adjudication in the main suit. But in this case, there is no itsy-bitsy evidence

on the part of the plaintiff to indicate and exemplify that she was having the intention to tender the amount. As such, the finding of the lower Court

on that aspect cannot be found fault with or looked askance at.

A bare perusal of the agreement Exhibit A-3 would contain the following recitals:

A mere running of the eye over the aforesaid excerpt would unambiguously and unequivocally highlight and spotlight the fact that as per the

agreement, the plaintiff was enjoined to deposit the remaining part of the sale consideration at the time of filing of the suit. But, in this case,

admittedly, the plaintiff has not chosen even to file any application for making such deposit.

By way of highlighting the aforesaid law point, the Division Bench judgment of this Court in Arunachala Mudaliar Vs. Jayalakshmi Ammal and

V.R. Rajasekharan, could fruitfully be cited and certain excerpts from it would run thus:

25....The plaintiff has not deposited the amount that she should have deposited as per Exhibit A-7 before filing the suit for specific performance.

The defendant had raised the plea that the deposit was not made and it would show the plaintiff''s lack of bona fides. In spite of that the plaintiff not

only does not deposit the amount before filing the suit, but P.W. 1, the plaintiff''s husband glibly says in his evidence that he has deposited the

amount. The plaint does not even refer to any readiness or willingness to deposit and the suit notice claimed to have been issued has not been

proved to have been issued. In the particular circumstance of the case and in view of the specific recitals regarding the deposit the plaintiff cannot

be content with citing the explanation to Section 16(c) of the Act without proving his readiness and willingness clearly and beyond doubt.

(emphasis supplied)

Wherefore, the ipsissima verba of Sections 16 and 20 of the Specific Relief Act clearly supports the case of the defendants and not the case of

the plaintiff. The plaintiff, in order to assert her right to specific relief should have satisfied the Court about her readiness to perform her part of the

contract throughout and also her subsisting financial ability, but under both those counts, she miserably failed.

On balance, Point No. 1 is decided to the effect that in the wake of Exhibits B-1, B-2 and B-3, the case of the plaintiff as contained in para

No. 4 is held to be one lacking in good faith.

Point No. 2 is decided to the effect that the absence of evidence adduced on the plaintiff side to prove her financial wherewithal during the period

between 2.3.2007 and 21.7.2007, is fatal to the case of the plaintiff''s suit for specific performance.

Point No. 3 is decided to the effect that the plaintiff was not ready and willing to perform her part of the contract.

Point No. 4 is decided to the effect that the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act.

Point No. 5 is decided to the effect that there is no perversity or illegality in the judgment and decree of the trial Court in holding that the plaintiff

was not entitled to specific performance.

Accordingly, this appeal is dismissed. However, the trial Court in the interest of justice decreed the suit by ordering refund of the advance amount

paid by the plaintiff with interest at the rate of 18% per annum, warranting no interference in this appeal. No costs. Consequently, the connected

miscellaneous petitions are closed.