K. Chekkunni vs Ahammed

P. Krishnamoorthy, J.—Plaintiff in a suit for specific performance of an agreement of sale is the Appellant. Plaintiff and Defendant entered into an agreement Ext. A-1, dated 13th August 1980 in which the Defendant agreed to sell to the Plaintiff 6 cents of land at the rate of Rs. 800 per cent. On the date of Ext. A-1 agreement, Plaintiff paid an advance of Rs. 501 and the sale was to be completed within 15th September 1980, after measuring and fixing the boundaries of the property by the Defendant. According to the Plaintiff, he went to the Defendant many times and demanded execution of the sale deed after receiving the balance sale consideration and also requested the Defendant to be present in the Sub Registrar''s Office on 15th September 1980 for executing the document. According to the Plaintiff, he was present in the Sub Registrar''s Office on that day, but the Defendant did not turn up. So, on 16th September 1980 the Plaintiff sent a lawyer notice Ext. A-2 to the Defendant, requesting him to execute the document within 10 days and stating that if it was not done, he will be compelled to file a suit. To the above notice the Defendant sent a reply notice Ext. A-3, dated 4th October 1980 stating that he was present in the Sub Registrar''s Office on the 15th, that the Plaintiff wanted a reduction in the price of the property from Rs. 800 to 400 and that it was due to the fault of the Plaintiff that the sale could not be effected. To Ext. A-3 notice the Plaintiff immediately thereafter sent Anr. lawyer notice Ext. A-4, dated 10th October 1980 stating that he was always ready and willing to pay the price as agreed to in Ext. A-1 and that he never wanted any reduction of the price. He reiterated in Ext. A-4 notice that he is willing to purchase the property for the price agreed to and requested the Defendant to be present in the Sub Registrar''s Office on 22nd October 1980. To the above notice the Defendant sent a reply Ext. A-5, dated 21st October 1980 stating that as the Plaintiff was not originally prepared to purchase the property for the price agreed to by him, the contract stands repudiated and that he is not prepared to execute the document. After receipt of this notice, the Plaintiff filed the present suit for specific performance of the agreement, alleging that the Defendant is bound to execute a sale deed of the plaint property in his favour in accordance with the provisions of Ext. A-1 agreement, on receipt of the balance of sale consideration.

The Defendant filed a written statement reiterating therein that the sale deed could not be executed as the Plaintiff wanted a reduction of the price, that it was due to the Plaintiff''s fault that the sale could not be effected in time and that he is not liable to execute any sale deed thereafter. The Defendant further pleaded that the Plaintiff was not ready and willing to perform his part of the contract in accordance with Ext. A-1 agreement and accordingly the suit is liable to be dismissed.

During the trial of the suit, the Plaintiff deposited the balance sale price payable by him under Ext. A-1 agreement, parties adduced evidence and the trial court accepting the case of the Plaintiff decreed the suit. But in appeal the lower appellate court held that the Plaintiff has not made the necessary allegations nor has he proved his readiness and willingness to perform the essential terms of the contract as provided for in Section 16(c) of the Specific Relief Act. Accordingly the appeal was allowed and the suit for specific performance was dismissed. Plaintiff has come up in appeal against the dismissal of his suit by the lower appellate court.

Thus, the question to be decided in this appeal is as to whether the Plaintiff has made the necessary averments and proof in regard to his readiness and willingness to perform the essential terms of the contract which is a pre-requisite for a decree for specific performance u/s 16(c) of the Specific Relief Act. The lower appellate court came to the conclusion that there are no proper allegations in the plaint regarding the readiness and willingness of the Plaintiff and that he has not proved the same. First of all. I shall consider the question as to whether there are necessary allegations in the plaint regarding that matter. Section 16(c) of the Specific Relief Act is to the following effect:

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

(a) ** **

(b) ** ** (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.

Forms 47 and 48 in Appendix A to the CPC give the form of a plaint in a su''t for specific performance. Counsel for the Appellant contended that it is not mandatory that there shall be a mechanical reproduction of the very words used in Section 16(c) or that the form mentioned in Forms 47 and 48 should be incorporated in the plaint as such. It is his contention that if on a reading of the plaint as a whole it is clear that the Plaintiff has alleged his readiness and willingness to perform his part of the contract, that will be sufficient compliance with Section 16(c) and the form prescribed in the Code of Civil Procedure.

Various High Courts (including our High Court) and the Supreme Court have considered and interpreted Section 16(c) of the Specific Relief Act. In Mani Amma and Ors. v. Kololichalil Choyi 1985 K.L.J. 246, a learned Single Judge of this Court, construing Section 16(c) of the Specific Relief Act, held as follows:

I think a strict compliance of the rules in CPC is not demanded in all cases. Substantial compliance with the rule alone can be insisted. I have to remember that procedural law is always intended to facilitate the course of substantive justice. It should not obstruct the course of real justice. The issue is limited to the point whether the Plaintiffs have averred in the plaint that they were/are ready and willing to do their part. The counsel for the Respondent relied on Forms 57/45 in Appendix A to the Code of Civil Procedure. These forms have to be understood with the provisions in Rule 3 of Order 6 CPC which says that the forms in, Appendix A when applicable, as nearly as may be, shall be used for all pleadings. A liberality of construction is explicit from the language used--as nearly as may be--provided the substance remains fulfilled. The substantive provision incorporated in Section 16(c) of the Specific Relief Act does not prescribe or insist a particular set of words to be employed to satisfy the requirements u/s 16(c) of the Specific Relief Act. It is not necessary for me to emphasise that Order 6, Rule 3 CPC is purely procedural. It is a rule of pleading and its object is to facilitate the cause of justice and it cannot be used for throwing out a good claim on a mere technicality. I would also say borrowing the words of Vivian Bose, J. in Kidar Lall Seal and Another Vs. Hari Lall Seal, that I would be slow to throw out a claim on a mere technicality of pleading when the substance of the controversy and the statutory requirements are revealed from the averments in the plaint and no prejudice is caused to the opposite side, however, clumsily or inartistically the plaint may be worded. Lord Campbell in Cort v. Ambergate etc. Railway Co. (1851) 117 E.R. 1225 (1236) : 17 Q.B. 127 observed as follows:

In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the Plaintiffs, and that they were disposed and able to complete if it had not been renounced by the Defendant.

In Krishnan Kesavan and Others Vs. Kochukunju Karunakaran, Anr. learned Single Judge of this Court also followed the same principles and held that the compliance with Section 16(c) of the Specific Relief Act need be only in spirit and substance and not in letter and form. It was further held that if the allegations taken as a whole would indicate that the Plaintiff was ready and willing to perform his part of the contract, that is sufficient compliance with Section 16(c) and the form prescribed in the Code of Civil Procedure. The very same view was taken by a learned Single Judge of this Court in Ramakrishna Panicker v. Krishna Pillai 1970 KLT 245. The aforesaid principle has been followed in Nambarukandi Marakkar Vs. Nallithodi Thavalaparambil Appu and Another, , Prag Datt Vs. Smt. Saraswati Devi and Another, , Rajya Tulsibhai Patel Vs. Benar Enterprise and Others, and Sant Lal v. Shyam Dhawan AIR 1986 Del 275. In Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and Others, , it was observed:

The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not. expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.

The same principle was laid down by the Supreme. Court in Rajbir Kaur and Another Vs. S. Chokesiri and Co., .

From the aforesaid decisions it is clear that it is not necessary that the Plaintiff should reproduce the exact words used in Section 16(c) of the Specific Relief Act or that the forms mentioned in the CPC should as such be followed. It is sufficient if on a reading of the whole plaint it is dear that the Plaintiff had alleged that he was always ready and willing to perform his part of the contract.

Counsel for the Respondent relied on the decisions in Ouseph Varghese Vs. Joseph Aley and Others, , Prem Raj v. D.L.F.H. & C. Ltd. AIR 1968 S.C.C. 1355, Ardeshir v. Flora Sassoon AIR 1928 P.C. 208, Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, Prabhakaran v. Bhawani 1974 KLT 115, Govindan v. Ulahannan 1987 (2) KLT 513 and Abdul Khader Rowther v. Sara Bai, 1989(43) ELT797(SC) , wherein Section 16(c) of the Specific Relief Act was considered. On going through those decisions, I do not find that any different principle was laid down, but on the construction of the pleadings in the respective cases their Lordships came to the conclusion that there is no sufficient compliance with Section 16(c) or the forms mentioned in the Code of Civil Procedure. In Abdul Khader Rowther v. Sara Bai, 1989(43) ELT797(SC) , it was held that the Plaintiff has to aver the readiness and willingness in order to get a decree for specific performance. But construing the allegations in the plaint in that case, the High Court held that there has not been a faint attempt to conform to the forms (Forms 47 and 48) in the CPC and it was accepted by their Lordships of the Supreme Court. In Ouseph Varghese Vs. Joseph Aley and Others, , the suit was for specific performance of an agreement and the Defendant set up a different agreement in the written statement. The High Court passed a decree on the basis of the agreement set up by the Defendant and it was in that context that their Lordships stated that the Plaintiff had not made any allegation to show that he was ready and willing to perform his part of the contract which the Defendant alleged. In Prem Raj Vs. D.L.F. Housing and Construction Pvt. Ltd. and Another, the case of the Plaintiff was that the agreement was not binding on him at all and in that context their Lordships observed that the Plaintiff was not ready and willing to perform his part of the contract. In AIR 1928 P.C. 208, their Lordships only held that the Plaintiff in such a suit has to allege and prove his readiness and willingness to perform his part of the contract from the time of contract to the date of trial of the suit. In 1974 KLT 115, construing the plaint, this Court held that even a liberal construction will not supply the inherent lacuna of non-compliance with Section 16(c) of the Specific Relief Act. In 1987 (2) KLT 513, a learned Single Judge of this Court considered the decision in 1985 K.L.J. 246 and on the pleadings in that case came to the conclusion that there was no sufficient averment in accordance with law. All the aforesaid decisions are based on the allegations in the plaint in those cases and I do not understand those decisions as taking a view different from that taken in 1985 K.L.J. 246 or in AIR 1988 Ker 107. In R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, , it was held that readiness and willingness cannot be treat id as a strait jacket formula and has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.

In the light of the aforesaid decisions, I am clearly of the opinion that what is to be looked into is the substance of the plaint and on a reading of the plaint as a whole if it is clear that the Plaintiff has expressed that he was ready and willing to perform his part of the contract, that is sufficient compliance with Section 16(c) of the Specific Relief Act.

In the light of the aforesaid principles, now I shall consider the allegations in the plaint. Paragraph 1 of the plaint gives the details regarding the agreement between the parties. Paragraph 2 states that the Plaintiff approached the Defendant on 6th September 1980 and demanded execution of the document, but the Defendant did not yield. Paragraph 3 states that he sent a lawyer notice on 16th September 1980 expressing his willingness to pay the balance amount due under Ext. A-1 agreement. Paragraph 4 further says that on 10th October 1980 the Plaintiff again sent a lawyer notice intimating the Defendant that he is prepared to pay the price at Rs. 800 per cent, as agreed to in the agreement, and that he is prepared to pay the balance amount due and further requesting the Defendant to be present in the Sub Registrar''s Office oft 22nd October 1980 for executing the document. Paragraph 4 is categoric that the Plaintiff had intimated the Defendant that he is ready and willing to perform his part of the contract by paying the balance price at the rate of Rs. 300 per cent as agreed to between the parties. It is pertinent to note that under Ext. A-1 agreement the only matter that is to be performed by the Plaintiff was to pay the balance price as agreed upon. That he has expressly stated in paragraph 4 of the plaint. In paragraph 5 of the plaint the Plaintiff further says that the Defendant may be directed to execute the sale deed as agreed to between the parties by receiving the balance amount of Rs. 4299 which he was ready to deposit in court. All these averments make it abundantly clear and definite that the Plaintiff was ready and willing to perform his part of the contract always. On a reading of the plaint as a whole, I have no doubt in my mind that the necessary averments as contemplated u/s 16(c) of the Specific Relief Act are present in the plaint and the lower appellate court erred in holding that there are no sufficient allegations.

The further question to be considered is as to whether the Plaintiff has proved that he was ready and willing to perform his part of the contract. As stated above, the only part which the Plaintiff had to perform was to pay the balance price of Rs. 4,299 to the Defendant. Under Ext. A-1 agreement, the sale had to be completed within 15th September 1980 and in, the case of sale of immovable property it is well settled that the time is not the essence of the contract. The Plaintiff has given evidence that he requested the Defendant to execute the document within the time but that he refused. Both the Plaintiff and the Defendant adduced evidence in support of their case that both of them were present in the Sub Registrar''s Office on 15th September 1980. They also denied the presence of each other in the Sub Registrar''s Office. But it is not very relevant to enter a finding on that question as from the evidence I am satisfied that the Plaintiff was always ready and willing to perform his part of the contract. Ext. A-2 is the notice sent by the Plaintiff through a lawyer on 16th September 1980 in which he had stated regarding the agreement and also informed the Defendant that he was present on 15th September 1980 In the Sub Registrar''s Office; the notice further requested the Defendant to execute the sale deed after receiving the balance sale price. To that notice the Defendant sent Ext. A-3 reply, dated 4th October 1980 stating that he was present in the Sub Registrar''s Office from 9 a.m. to 5 p.m. on 15th September 1980. He further alleged that the sale deed could not be executed as the Plaintiff wanted a reduction of the price from Rs. 800 to Rs. 600 per cent. Plaintiff as P.W. 1 denied the above fact and stated that he was always ready and willing to pay Rs. 800 per cent as agreed to between them. But the evidence of D.W. 2, a witness examined by the Defendant, would show that it was the Defendant who wanted more price and it was not as if the Plaintiff demanded a reduction of the price. D.W. 2 in his evidence has stated that the Defendant wanted an enhanced price. From the evidence of D.W. 2 it is clear that it was the Defendant who wanted to resile from the contract and not the Plaintiff. The subsequent conduct of the Plaintiff would also show that he was ready and willing to perform his part of the contract. Immediately on receipt of Ext. A-3 notice, he sent Anr. notice Ext. A-4, dated 10th October 1980 stating that he was always ready to pay Rs. 800 per cent and that he never demanded any reduction in price. He further reiterated in Ext. A-4 notice that he is prepared to take a sale deed at the rate of Rs. 800 per cent and requested the Defendant to be present in the Sub Registrar''s Office on 22nd October 1980. To that the Defendant sent Ext. A-5 reply notice, dated 21st. October 1980 reiterating the stand taken by him that the Plaintiff wanted a reduction in price and as the Plaintiff was not prepared, to act in accordance with the terms of Ext. A-1, the contract stands rescinded and that the Defendant is not prepared to execute the document as requested by the Plaintiff. The suit was filed on 29th October 1980 and the balance amount payable by the Plaintiff was deposited by him before the trial of the suit started. From these facts it is abundantly clear that the Plaintiff was always'' ready and willing to perform his part of the contract which, as stated earlier, is only to pay the balance amount of Rs. 4,299. The lower appellate court has found against the case of the Plaintiff of his readiness and willingness on the sole ground that he, as P.W. 1, stated that he had only Rs. 4,299 with him when he went to the Sub Registrar''s Office. Admittedly, the amount payable to the Defendant was only that much. That he had with him. The lower appellate court, from the aforesaid statement of the Plaintiff, came to the conclusion that the Plaintiff had to meet the expenses for registration and stamp paper and that he was not in possession of the amount for the same. On a reading of the whole evidence of P.W. 1 it can be seen that the Plaintiff had enough funds with him to purchase the stamp paper also. In re-examination he has categorically stated that he intended to purchase the stamp paper after the Defendant''s arrival at the Sub Registrar''s Office. The mere fact that he stated that he had Rs. 4,299 with him is not sufficient to hold that the Plaintiff was not prepared to take a sale deed. The balance sale consideration payable by him was Rs. 4,299 and he only stated that the above amount was with him to be paid to the Defendant, if the document is executed. The successive notices sent by him and the evidence of P.W. 1 would categorically show that ha was always ready and willing to perform his. part of the contract and the lower appellate court committed an error of law in dismissing the Plaintiff''s suit on the ground that he was not ready and willing to perform his part of the contract.

In the result, I set aside the judgment and decree of the lower appellate court and restore the decree passed by the trial court. The parties will bear their costs.