Prakashchand Parakh vs Shankerlal

D.R. Deshmukh, J.—In this second appeal, the unsuccessful defendant is aggrieved by the concurrent finding of both the Courts below whereby the judgment and decree dated 10-8-1985 in Civil Suit No. 12-A/1978 by the IInd Civil Judge Class-II, Raipur for specific performance of the contract was affirmed by the IIIrd Additional Judge to the Court of District Judge, Raipur in Civil Appeal No. 1-A/1993.

The following substantial questions of law arise for determination:

(1) Whether under the facts and in the circumstances of the case the respondents were entitled to a decree for specific performance even when they have not pleaded their readiness and willingness to perform their part of the contract and there was no proper evidence to support?

(2) Whether under the facts and in the circumstances of the case the Courts below were justified in holding that the agreement in dispute was to be acted upon and was not nominal as pleaded by the appellant/defendant?

Both the Courts below have that on 22-2-1964 Premchand Parakh, father of the appellant/defendant had agreed to sell the suit property shown by letters "A, B, C, D, E, F, G and H" to the respondent/plaintiff after receiving full consideration of Rs. 4,000/-. It was further held that the appellant/defendant was to execute the sale-deed in favour of the respondent/plaintiff after the suit property was released in Civil Suit No. 22-A/1968. It was further held that an amount of Rs. 5,500/- was due from the appellant/defendant to the respondent/plaintiff out of which while executing the agreement (Exh. P-1), dated 22-2-1964 an amount of Rs. 4,000/-was adjusted towards the sale consideration and for the remaining amount of Rs. 1,500/- the appellant/defendant accepted fresh liability in favour of the respondent/plaintiff by executing Exh. P-2. It is not disputed that the respondent/plaintiff was in possession of the suit property even prior to 22-2-1964.

Shri P. Diwakar, learned Senior Advocate with Shri Anup Majumdar, learned Counsel for the appellant/defendant argued that in the absence of pleading that the respondent/plaintiff was always ready and willing to perform his part of the contract the decree for specific performance of contract dated 22-2-1964 passed by the Trial Court and affirmed by the Lower Appellate Court is liable to be set aside. Reliance was placed on Roop Kunwar v. Roopnarayan 2007(3) M.P.H.T. 101 (CG) : 2007 (3) CGLJ 76 and Syed Dastagir Vs. T.R. Gopalakrishnasetty, . It was further argued that there was a discrepancy in the date of the agreement (Exh. P-1) inasmuch as in the agreement (Exh. P-1), dated 23-1-1964 has been typed whereas the document writer and the attesting witness had after putting their signature put the date 22-2-1964. Placing reliance on Para 11 of the testimony of the respondent/plaintiff, it was urged that the respondent/plaintiff did not have the financial capacity to pay Rs. 4,000/- as consideration for the suit property on 22-2-1964. It was further argued that in the agreement (Exh. P-1) the vendor had agreed to sell the suit property to the respondent/plaintiff after the legal clouds hovering over the suit property were cleaned. What were those legal complications was not mentioned in Exh. P-1. Thus, the agreement (Exh. P-1) is void for uncertainty and no consensus- ad-idem could be inferred therefrom. To substantiate this, it was further urged that the agreement (Exh. P-1) is not a bipartite agreement since it was not signed by the respondent/plaintiff. It was also argued that the fact that after the agreement dated 22-2-1964 (Exh. P-1) the respondent/plaintiff had for the first time served notice on the father of the appellant/defendant on 20-3-1969 vide Exh. P-3, left no room for any doubt that the respondent/plaintiff was not always ready and willing to perform his part of the contract.

On the other hand, Shri B.P. Sharma with Shri Ajit Singh, learned Counsel for the respondent/plaintiff argued that the language in Section 16(c) of the Specific Relief Act, 1963 (henceforth ''the Act'') does not require any specific phraseology and it should be culled out from the pleadings that the plaintiff has performed his part of the contract or was always willing to perform his part of the contract. Readiness and willingness has to be in spirit and substance and not in letter and form. Placing reliance on Syed Dastagir v. T.R. Gopalakrishna Setty (supra), it was urged that to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. It was argued that to rebut the testimony of the respondent/plaintiff the vendor Premchand Parakh or the appellant/defendant himself did not enter the witness-box or every reply to the notice dated 20-3-1969 of the respondent/plaintiff. It was further urged that the admission by the appellant/defendant in the written statement Para 5 clearly revealed that the legal clouds hovering over the suit property due to attachment were removed on 3-1-1969 due to a compromise decree having been passed and thereafter the respondent/plaintiff lost no time in giving notice vide Exh. P-3 on 20-3-1969 itself which the appellant/defendant did not even care to reply. It was further urged that notice (Exh. P-3) revealed that on the day when the respondent/plaintiff learnt that the legal clouds over the suit property had vanished, he gave the notice on the same day. This revealed the promptness of the respondent/plaintiff, who waited as per the condition of the agreement only till the legal complications were solved. The possession of the suit property was admittedly with the respondent/plaintiff. Both the Courts below have recorded a finding that an amount of Rs. 5,500/- was due from the father of the appellant/defendant to the respondent/plaintiff and out of the said amount a sum of Rs. 4,000/- was adjusted towards the sale consideration. In this manner, nothing remained to be performed on the part of the respondent/plaintiff excepting the very meager amount of registration charges to be paid. It was further contended that the receipt (Exh. P-2) executed by Premchand Parakh further lent support to the conclusion that Rs. 5,500/-were due on Premchand Parakh out of which after adjusting a sum of Rs. 4,000/-towards the sale consideration he wrote a receipt for the remaining amount of Rs. 1,500/-. Shri B.P. Sharma, learned Counsel for the respondent/plaintiff argued that both the Courts below have on proper appreciation of evidence, oral as well as documentary, decreed the suit in favour of the respondent/plaintiff and there was no material on the basis of which in second appeal a different conclusion could be reached that the agreement (Exh. P-1) was nominal and was not to be acted upon.

Having considered the rival submissions, I have perused the record with utmost circumspection. I shall first deal with the substantial question of law No. (1). u/s 16(c) of the Act, specific performance of a contract cannot be enforced in favour of 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 terms the performance of which has been prevented or waived by the defendant.

In Syed Dastagir v. T.R. Gopalakrishna Setty (supra), the Apex Court succinctly dealt with the law of pleadings and the requirement of Section 16(c) of the Act. It was held as follows:

So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one''s case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by Counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.

In Motilal Jain Vs. Smt. Ramdasi Devi and Others, as also in Aniglase Yohannan Vs. Ramlatha and Others, , in Para 9 the three-Judges Bench decision of the Supreme Court in Syed Dastagir v. T.R. Gopalakrishna Setty (supra), was referred wherein the Apex Court observed as under:

It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.

The Apex Court further observed in Paragraphs 11 and 12 as under:

Lord Campbell in Cort v. Ambergate, Nottingham and Boston and Eastern Junction Rly. Co. (1851) 117 ER 1229 : 17 QB 127, observed that 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 it, had it not been renounced by the defendant.

The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.

In the present case, the respondent/plaintiff did not aver with mathematical precision the words "readiness and willingness" to perform his part of the contract yet the averments in the plaint as a whole alongwith the conduct of the respondent/plaintiff in promptly issuing the notice (Exh. P-3) no sooner he learnt that the legal complications over the suit property were sorted out clearly indicates the readiness and willingness of the plaintiff to fulfil his part of the contract which is the subject-matter of the suit. It is also to be noticed that the respondent/plaintiff was already in possession of the subject-matter of the suit and the entire consideration of Rs. 4,000/- had been paid to the late father of the appellant/defendant. In this view of the matter, there hardly remained anything on the part of the respondent/plaintiff to perform in the contract excepting the payment of registration charges. The fact that the respondent/plaintiff promptly served notice upon the appellant/defendant on 20-3-1969 and filed the suit soon thereafter on 23-6-1969 clearly shows his readiness and willingness of performing of the contract. In this fact situation, the absence of the specific averment of readiness and willingness with mathematical precision would not help the appellant/defendant in any manner. Father of the appellant/defendant had executed Exh. P-2 acknowledging that Rs. 1,500/- were due on him. He did not even care to reply to the notice (Exh. P-3) sent by the respondent/plaintiff and also did not care to enter the witness-box. None of the attesting witnesses or the scribe to Exh. P-1 were examined. Document (Exh. D-8) written by the scribe (deceased) is also of no avail to the appellant/defendant, who did not enter the witness-box so that he could be cross-examined on this issue. Even the present appellant/defendant did not enter the witness-box.

In view of the above discussion, I am of the considered opinion that readiness and willingness of the respondent/plaintiff in performing his part of the contract, though not in specific words can be culled out from the plaint and also from his conduct and the facts and circumstances of this case in which nothing remained to be performed by the respondent/plaintiff excepting the registration of the sale-deed because the respondent/plaintiff was already in possession of the suit property and had paid the entire consideration to the appellant/defendant. Substantial question of law No. (1) is accordingly answered that in the peculiar facts and circumstances of this case the absence of specific averment of readiness and willingness with mathematical precision in the plaint would not be sufficient to dislodge the finding recorded by both the Courts below that the respondent/plaintiff was always ready and willing to perform his part of the contract, based on proper appreciation of evidence, oral as well as documentary.

So far as the substantial question of law No. (2) is concerned, I am of the considered opinion that both the Courts below have appreciated the evidence, oral as well as documentary with objectivity and have rightly arrived at a conclusion that the agreement (Exh. P-1) was not nominal as pleaded by the appellant/defendant and was to be acted upon. The argument advanced by Shri P. Diwakar, learned Senior Advocate appearing on behalf of the appellant/defendant with reference to Paragraph 11 of the testimony of the respondent/plaintiff does not hold ground because the amount of Rs. 5,500/- was already in deposit with the father of the appellant/defendant and after adjusting a sum of Rs. 4,000/- towards consideration of the suit property the father of the appellant/defendant executed Exh. P-2 on the same day, i.e., 22-2-1964 acknowledging that Rs. 1,500/- were due to the respondent/plaintiff. Exh. D-7 also substantiates that late Premchand Parakh used to accept deposits in small amounts from the respondent/plaintiff. The amount of Rs. 1,500/-, which was due from late Premchand Parakh was settled in the year 1966 and the respondent/plaintiff had executed Exh. D-7 on 30-5-1966.

Even though the argument that Exh. P-1 does not bear the signature of the respondent/plaintiff does not help the appellant/defendant in any manner because the respondent/plaintiff is not disputing the document (Exh. P-1). On the other hand, his suit is founded on Exh. P-1. The respondent/plaintiff acting on the document (Exh. P-1), which was in his possession, gave notice vide Exh. P-3 to Premchand Parakh and founded the suit on the said document.

The conduct of Premchand Parakh, deceased father of the appellant/defendant in not even caring to reply to the notice (Exh. P-3) sent by the respondent/plaintiff and further in not entering the witness-box justifies the approach of both the Courts below in holding that the agreement (Exh. P-1) was not nominal and was to be acted upon. Substantial question of law No. (2) is accordingly answered in the affirmative.

In the result, both substantial questions of law are answered against the appellant/defendant. This appeal must, therefore, fail. Accordingly, the appeal is dismissed.