Gulshan Lal vs Smt Peeran Bee

This appeal has been filed by the appellant/plaintiff under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated

30.11.1999 passed in Civil Suit No.159-A/95 by the IX Additional District Judge, Jabalpur whereby the appellant/plaintiff-’s suit for specific

performance of contract has been dismissed.

In brief the facts of the case are that the plaintiff-appellant entered into an agreement with the respondent-defendant on 25.11.1986 for purchase of

the land bearing khasra No.1207 and 1224, ad measuring 5.49 hectares, situated at Mouza Panagar, Nazool Block No.212, Patwari Halka No.13.

The consideration for the aforesaid purchase was Rs.1,08,000/-Â and in pursuance of which the plaintiff-appellant had also paid a sum of Rs.11,000/-

as earnest money to the defendant-respondent towards the aforesaid sale agreement.

In the aforesaid agreement it was agreed between the parties that the plaintiff-appellant would get the sale deed executed before 10.5.1987

after paying the balance amount of consideration either in one name or in separate names but, as averred in the plaint amongst other grounds that the

defendantrespondent failed to comply with her part of the agreement despite the fact that plaintiff-appellant was ready and willing to execute the sale

deed, a civil suit No.159-A/95 was filed by the plaintiff-appellant.

In the written statement, the defendant-respondent has opposed the averments made in the plaint as also the relief sought therein on the ground that

the plaintiff was never ready and willing to perform his part of the contract and he never had the amount of money required to execute the sale deed

and the contract was extended from time to time by the plaintiff only and on 30.9.1989 the contract was repudiated/cancelled by the plaintiff only. It

is also reiterated that the plaintiff-appellant had no money to execute the sale deed and to perform his part of the agreement which led him to cancel

the contract on 30.9.1989. It was further stated in the written statement that there was no condition in the contract that after the tenants are vacated

from the disputed premises, the sale deed would be executed. According to the defendant, there was no tenant in the disputed land and, in fact, there

was only one Kachha house on the disputed land which was constructed only to keep the agricultural implements/tools and the disputed land is lying

vacant since the date of the execution of the agreement. It is further contended in the written statement that if the plaintiffappellant had the requisite

money then he should have issued a proper registered notice to the defendant-respondent that he is ready and willing to execute the sale deed and for

this purpose the respondent-defendant shall keep herself present on such and such date before the Registrar of properties. It is further stated that in

respect of the disputed property no case of ceiling was pending although out of the aforesaid land only half acre land was under the Ceiling Act

which was already in the knowledge of the plaintiff and knowing fully well all these facts the plaintiff-appellant had entered into an agreement which

he himself was not able to honour. It is further stated that the plaintiff-appellant had informed the defendant-respondent that he had suffered huge loss

in the dairy business in which his 50 buffaloes have died due to ailment, hence he also requested the defendant-respondent to keep his 04 buffaloes for

a consideration of Rs.20,000/- and thus the defendant-respondent kept in her possession his 04 buffaloes with the understanding that as soon as the

plaintiff-appellant get the money he would get the buffaloes back by paying him the requisite amount and only because of this relation between the

parties, the defendant had paid a sum of Rs.20,000/- before Mahboob Beg and Munna @ Sarfaraz and purchased the said buffaloes which were

kept back by the defendant-respondent till 04 months but thereafter as the buffaloes did not produce the sufficient milk the defendant-respondent

called the plaintiff and asked him to keep his buffaloes back and also asked him to return the amount of Rs.20,000/- but on 30.9.1989 in the presence

of Mahboob Beg and Munna @ Sarfaraz, the plaintiff-appellant expressed his inability to remit the amount and that is why despite expiry of

30.8.1989 the plaintiff-appellant did not execute the sale deed which led to cancellation of the agreement itself by the plaintiff and the plaintiff-

appellant also said  that after adjusting the amount of Rs.11,000/- towards the agreement from the sale consideration of the buffaloes he

would pay a sum of Rs.9,000/- to the defendant within 15 days and during the aforesaid 15 days although the defendant returned the buffaloes to the

plaintiff-appellant but he did not pay the sum of Rs.9,000/-. It is further stated that no notice was ever served by the plaintiff-appellant to the

defendant and even if it was given after 31.8.1989 i.e. the date due as the last date to perform the agreement. On the basis of the averments made

between the parties, following issues were framed :

^^1& D;k oknh fookfnr lEifRr dk fodz; i= djkus ds fy;s fujUrj rRij vkSj rS;kj jgk gS\

2& D;k oknh us izfrQy dh jkf’k dk izca/k uk gksus ds dkj.k fnukad 30-9-89 dks vuqca/k fujLr djk fy;k\

3& D;k oknh fookfnr lEifRr dk fodz;i= izfroknh ls fu""ikfnr djkus dk vf/kdkjh gS\^^

None of the issues as framed by the learned Trial court were answered in favour of the plaintiff-appellant.

So far as the grounds raised in the appeal are concerned since the appellant has appeared in person and has not sought the assistance of any

advocate, the ground raised in the appeal are taken into consideration. In the grounds raised in the appeal, it is submitted that it was the defendant-

respondent who was not willing to execute the sale deed because of her own problem. It is further stated that the relief sought was in line with the

Specific Relief Act for equitable nature only and looking to the conduct of the defendant, the issues ought to have been answered in favour of the

plaintiff-appellant. It is further submitted by the plaintiff-appellant that the extension of agreement was made on account of the consent between the

parties and as such it cannot be said that the present suit should not have been filed by the plaintiff/appellant at the first place. 7. Counsel for the

defendant-respondent on the other hand has opposed the prayer.

I have heard the parties and perused the record carefully.

A bare perusal of the agreement reveals that it was executed on 25.11.1986 whereas on the basis of the same, the sale deed was to be executed on

or before 10th May, 1987. It was also stipulated that if within the time frame as aforesaid the registration is not done in that case the earnest money

shall be forfeited and the aggrieved parties may approach to the Court for specific performance of contract.

From the perusal of the aforesaid sale deed itself it is also revealed that on the back side of the same various endorsements have been made

demonstrating that from time to time the aforesaid agreement was extended and each of such endorsement has been signed by the defendant and was

last extended up to 31.8.1989 by Peeran Bee.

So far as the deposition of the plaintiff â€" Gulshan Lal is concerned, he has stated that the agreement between the parties was executed on

25.11.1986 for a consideration of Rs.1,08,000/for which Rs.11,000/- were also given in advance. He has further stated that when he went to the

defendant to get the sale deed registered, the defendant informed him that she would do it within a period of six months and hence the time to execute

the sale deed was extended from time to time which was signed by both the parties on the back side of the agreement. The aforesaid agreement was

extended up to 31.8.1989. He has further stated that earlier the defendant took an excuse that the tenant from the disputed property needs to be

vacated but subsequently told him that a ceiling case is also pending in respect of the land. Thus, finally a registered notice Ex.P/3 dated 5.10.1989

was issued to the defendant, the acknowledgment of which is Ex.P./4 but still the defendant did not execute the sale deed on one pretext or the other.

He has further stated that he always had the amount available with him to execute the sale deed but despite his readiness and willingness the

defendant did not execute the sale deed. He has further stated that he had money to execute the sale deed. He has also stated that even today he is

ready and willing to purchase the property. He has further stated that in the agreement there is no endorsement after 11.11.1987 regarding extension

of the same however he has stated that since there was no space left in the agreement for writing anything, hence the date for extension were

mentioned in the photocopy of the agreement. Although he has been asked that in the agreement (Ex.P/1) there was sufficient space for further

endorsement to which he has shown ignorance. He has also been asked as to how much amount he or his father had in the year 1986 to which also he

has feigned ignorance. How much income tax his father used to pay is also not mentioned. He has admitted that his main business is of dairy only.

Thus in some and substance, the fact which is positively established from the deposition of the plaintiff himself is that he has not brought on recordÂ

any document to show that he was ready with the requisite amount for execution of the sale deed, no document has been filed on record to

demonstrate his financial capacity to honour his part of the contract.

In this regard, reference is also made to the decision rendered by the Apex Court in the case of J.P. Builders and another vs Ramadas Rao and

another, (2011) 1 SCC 429 wherein the Apex Court, while elucidating the difference between the readiness and willingness in a case for specific

performance of contract, in para 20 to 27 has held as under :

“20. Section 16(c) of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that :

“16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person -

(a) who would not be entitled to recovercompensation for its breach; or

(b) who has become incapable ofperforming, 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 acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) 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.

Explanation.- For the purposes of clause (c),-

(i) where a contract involves thepayment 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 aver performanceof, or readiness and willingness to perform, the contract according to its true construction.

Among the three clauses, we are more concerned about clause (c). ""Readiness and willingness"" is enshrined in clause (c) which was not present

in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that the

person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract

which are to be performed by him.

The words ""ready"" and ""willing"" imply that the person was prepared to carry out the terms of the contact. The distinction between ""readiness"" and

willingness"" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is

backed by willingness.

In N.P. Thirugnanam vs. Dr. R. JaganMohan Rao at SCCÂ Â para 5, this Court held: (SCC pp.117-18)

5. .....Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented

or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific

performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If

the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract,

the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances.

The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till

date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his

readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending

circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the

contract.

In P.D’Souza vs Shondrilo Naidu this Court observed: (SCC p.654, paras 19 and 21)

It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of

contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No

strait-jacket formula can be laid down in this behalf. ... ..

21. ...The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether

the defendant did everything which was required of him to be done in terms of the agreement for sale.

Section 16(c)Â of the Specific Relief Act, 1963 mandates ""readiness and willingness"" on the part of the plaintiff and it is a condition precedent for

obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous

readiness and willingness"" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.

It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal that ""readiness and willingness"" cannot be treated as a

straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party

concerned.

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

Section 16(c) of the Specific Relief Act and when there is noncompliance 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.â€​

(emphasis supplied)

Thus testing the facts of the present case to the ratio of the aforesaid judgment, it was mandatory on the part of the plaintiff to prove that he was

ready and willing to perform his part of the contract and for that he was required to prove the same by placing the documents on record. Taking

into account the examination-in-chief of the plaintiff, this Court is also of the considered opinion that the plaintiff has miserably failed to prove his

readiness to execute the sale deed because the amount of consideration which he was to pay to the defendant has not been proved to be available to

him.

The record of this appeal also reveals that the appellant has filed number of documents during the pendency of this appeal with a view to

corroborate the statements before the trial Court that he was ready and willing to perform his part of the contract and for which sufficient means

were also available with him to execute the sale deed. In this regard the appellant has filed IA No.9459/2014, IA No.13592/2014 and IA No.587/2015,

which are the applications for taking additional documents on record.

This Court has gone through all the aforesaid applications and the documents filed therein and is of the opinion that from none of the documents it

can be inferred that when the agreement was in existence, the appellant had means to execute the same and as such even taking the aforesaid

documents on record, this Court is of the considered opinion that the appellant has miserably failed to prove that he had sufficient means to execute

the aforesaid agreement. That apart, the reasons for filing the aforesaid applications for bringing additional documents on record at such belated stage

are also not satisfactory hence also the aforesaid applications IA No.9459/2014, IA No.13592/2014 and IA No.587/2015 being devoid of merits are

hereby dismissed.

In the result, in the considered opinion of this Court, no fault can be found with the judgment and decree dated 30.11.1999 passed in Civil Suit

No.159-A/95 by the IX Additional District Judge, Jabalpur hence the same is hereby affirmed and the appeal stands dismissed.