Karnail Singh vs Kishan Singh and Others

S.D. Bajaj, J.—Vide agreement dated 28th Aug., 1975, Karnail Singh Defendant-Appellant agreed to sell his 10 killas 18 Marias of land comprised in Khewat No. 156/57, Khatauni Nos. 74-10, Rectangle No. 23, Killa Nos. 16/2 and 25, situated in village Gajju Gazi, Tehsil and District Gurdaspur to Kishan Singh Plaintiff-Respondent for Rs. 27,000 (Rupees twenty-seven thousand only) on or before 15th December, 1975. A sum of Rs. 10,000/-(Rupees ten thousand only) was obtained as advance while entering into the agreement and the balance was agreed to be paid before the Sub '' Registrar.

Vendor-Defendant-Appellant did nor execute the sale-deed in terms of the agreement dated 28th Aug., 1975. Plaintiff-Respondent Kishan Singh filed a suit for specific performance of the agreement dated 28th Aug., 1975, which was decreed by the learned Sub-Judge 1st Class, Gurdaspur, on 31st Jan., 1977. It would not be out of place to mention here that Defendant-Appellant Karnail Singh attempted selling the disputed lands to one Pam Singh before 15th Dec, 1975 Vigilant buyer in Plaintiff-Respondent Kishan Singh could thwart this attempt or the Defendant-Appellant by filing a suit for permanent injunction. Defendant-Appellant by filing a suit for permanent injunction. Defendant-Appellant has, however, done to during the pendency of the present R.F.A. in this Court, after depositing Rs. 10,000 (Rupees ten thousand only) allegedly received as advance in terms of the agreement of sale dated 28th Aug., 1975, and obtaining stay of the operation of the learned trial Court''s judgment, vide order dated 27th April, 1977, of this Court.

Defendant-Appellant has been asserting all through that he was paid Rs. 4,000 (Rupees four thousand only) as advance as against Rs. 10,000 (Rupees ten thousand only) claimed by the Plaintiff-Respondent and that it was the Plaintiff-Respondent who had not adhered to the terms of the agreement of sale and was never ready and willing to perform his part or the contract. It was, therefore, averred that the claim for specific performance of the agreement of sale was wrongly decreed by the learned trial Court in favour of the Plaintiff-Respondent.

Learned trial Court reached the conclusion that a sum of Rs. 10,000 (Rupees ten thousand only) was paid as advance and that the Plaintiff Respondent had all along been ready and willing to perform his part of the contract. On these premises, it decreed the suit for specific performance with costs observing that the Plaintiff-Respondent would be entitled to get the sale-deed of the land agreed to be sold, executed from Defendant-Appellant on payment of the balance amount of Rs. 17,000 (Rupees seventeen thousand only). Learned trial Court also held that Defendant-appellant was apprised of all the terms incorporated in the agreement of sale and was all along not willing to perform his part of the contract. In a nut shall, the finding of the learned trial Court was Jock, stock and barrel against the Defendant-appellant on all the four issues framed by it. Hence the R.F.A.

I has been urged by the learned Counsel for the Appellant that the Plaintiff-Respondent cleverly took the Defendant-appellant to a dead-writer of his choice, got the advance amount allegedly paid by him to Defendant-appellant, entered as Rs. 10,000 (Rupees ten thousand only) in place of Rs. 4,000 (Rupees four thousand only) actually paid; that the allegations made in the plaint did not meet the requirement of Section 16(c) of the Specific Relief Act, 1963; that Defendant Appellant was kept in the dark in regard to terms of the contract and that the learned trial Court wrongly formed the opinion regarding Defendant-appellant being not ready and willing to perform his part of the contract and therefore, its decision is based on wrong premises.

After going through the averments made in the plaint and evidence recorded by the learned trial Court, it becomes abundantly clear that there is no tangible, factual or legal basis for the argument advanced by the learned Counsel for Defendant-appellant. Section 16(c) of the Specific Relief Act, 1963, reads:

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.

Explanation.- For the purposes 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 aver performance of, or readiness and willingness to perform, the contract according to its true construction.

It would thus appear that Section 16(c) of the Specific Relief Act, 1963, therefore enacts that it would be a personal bar to the relief of specific performance in favour of a Plaintiff 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.

A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the Plaintiff to perform the contract. This includes his financial ability to pay the purchase price. But the more important question is whether he was willing to perform his part of the contract even if he had the financial capacity to do so. It is here that the Plaintiff�s conduct has to be properly scrutinized.

In the concluding part of paragraph 4 of the plaint, it is clearly stated:

The Plaintiff has always been and is still prepared to perform his part of the contract but Defendant No. 1 has breached the terms of the contract wilfully.

Again, as PW6, Kishan Singh Plaintiff-Respondent asserted, "I have been ready and willing and even now ready to get the sale deed executed". In cross-examination, in reply to a question put to him by the learned Counsel for Defendant-Appellant, the Plaintiff-Respondent stated that on 15th Dec, 1975, while going to the office of the Sub-Registrar, he had taken Rs. 17,000 (Rupees seventeen thousand only) along for payment to Defendant-Appellant. This is adequate compliance of the legal provisions obtaining in Section 16(c) of the Specific Relief Act, 1963.

Learned Counsel for Defendant-Appellant forcefully urged that, besides Rs. 17,000 (Rupees seventeen thousand only), the Plaintiff-Respondent should have also carried with him the money required for the purchase of stamp paper for execution of the sale-deed and the Plaintiff-Respondent having not made any assertion in this regard is to be regarded deficient in resources necessary for execution of the sale-deed. This argument is again without merit. Plaintiff-Respondent was never asked about the money required for purchase of stamp paper required for execution of the sale-deed. In its absence, it was unnecessary for him to assert that he had brought the money for this purpose as well on 15th Dec, 1975. The finding of the learned trial Court in regard to readiness and willingness of the Plaintiff-Respondent to perform his part of the contract is thus affirmed.

Secondly, besides being supported from the contents of the agreement of sale-deed dated 28th Aug., 1975, the allegations of payment of Rs. 10,000 (Rupees ten thousand only) as advanced by Plaintiff-Respondent to Defendant Appellant is also made out from the oral depositions of deed-writer Devi Dayal PW5 and the corroborative depositions of two attesting witnesses in Kasturi Lal PW3 and Ajit Singh PW4. Oral interested denial of the Defendant-Appellant Karnail Singh in this regard only creates oath against oath against Kishan Singh PW6 and, therefore, inspires little confidence. Finding recorded by the learned trial Court on issue No. 1 is also affirmed.

There is clear-cut evidence to show that Defendant-Appellant has been trying his level best to get rid of the land in suit after 28th Aug., 1975, and ultimately succeeded in doing so after 27th April, 1977, when this Court stayed operation of the assailed judgment of the learned trial Court and Defendant Appellant had deposited Rs. 10,000 (Rupees ten thousand only), for payment to Plaintiff-Respondent as refund of the advance money secured from him. Knowledge of the contents of Exhibit P3 on the part of Defendant-Appellant is evident from recitals in Exhibit Dl, certified copy of the application filed by Defendant-Appellant before Sub-Registrar, Gurdaspur, on 15th Dec, 1975. Interested omission on the part of Defendant-Appellant to state therein the amount of advance secured by him from Plaintiff-Respondent on 28th Aug., 1975, also speaks volumes against Defendant-Appellant on this score. Defendant-Appellant has, therefore, been evasively avoiding the execution of the sale-deed on all available pretexts in his eagerness to cash on greater amount of sale consideration from someone other than Plaintiff Respondent.

It was not put to deed-writer Devi Dayal PW5 that he was the choice of Plaintiff-Respondent or had indulged in foul play at his instance while stating in Exhibit P3 that Defendant-Appellant had secured from Plaintiff-Respondent a sum of Rs. 10,000 (Rupees ten thousand only) as advance as against actual payment of Rs. 4,000 (Rupees four thousand only). Both the attesting witnesses to sale-deed Exhibit P3 namely, Kasturi Lal PW3 and Ajit Singh PW4, have also stood by the deed-writer as also the Plaintiff-Respondent in this regard. There is thus no merit in the R.F.A. It is accordingly dismissed with costs. Counsel fee Assessed at Rs. 500 (Rupees five hundred only).