Shanti Devi vs Pritam Singh

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 30.11.2018 passed by learned District Judge, Solan, vide which the appeal filed by the appellant (defendant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to as in the same manner as they were referred before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before learned Trial Court for seeking specific performance of the Agreement dated 15.05.2010 regarding the half share of the land measuring 2 Bigha 2 Biswa bearing Khasra No.1227, comprised in Khata Khatauni No.266/273 situated in Village Bhud, Pargana Dharampur, Tehsil Baddi, District Solan, as per the copy of the Jamabandi for the year 2008-09. A consequential relief of permanent prohibitory injunction for restraining the defendant from alienating or encumbering the suit land in any manner, whatsoever till the execution and registration of the sale deed was also sought. It was pleaded that the defendant is the owner of the suit land. She entered into an agreement to sell the same to the plaintiff on 15.05.2010 at Nalagarh at the rate of Rs. 6,00,000/- per bigha for a total consideration of Rs. 6,30,000/-. She received Rs. 1,30,000/- from the plaintiff as earnest money. The balance amount was to be paid on or before 14.09.2010 at the time of the registration of the sale deed. The plaintiff remained present in the office of the Sub-Registrar, Baddi from 10:00 am till 5:00 pm with documents, remaining sale consideration of Rs. 5,00,000/- and expenses for execution and registration of the sale deed. However, the defendant did not visit the office of the Sub-Registrar to perform her part of the agreement. The defendant served a notice upon the plaintiff stating that she remained present in the office of the Sub-Registrar, Nalagarh; however, the plaintiff had not appeared before the Sub-Registrar. The plaintiff sent a reply stating that he remained present in the office of the Sub-Registrar,Baddi, where the sale deed was to be executed. He asked the defendant to be present in the office of Sub-Registrar Baddi on 20.10.2010 for the execution of the sale deed. However, the defendant did not appear. The plaintiff is ready and willing to perform his part of the contract. The defendant is threatening to alienate the suit land to some other person; hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement denying the contents of the plaint. However, it was admitted that the defendant had agreed to sell the suit land to the plaintiff for a sale consideration of Rs. 6,30,000/-. She also admitted that the plaintiff paid Rs. 1,30,000/- to her and the remaining amount of Rs. 5,00,000/- was to be paid to the defendant on or before 14.9.2010. She asserted that she was an illiterate and rustic lady.

She visited Nalagarh on 14.09.2010 for the execution of the sale deed; however, the plaintiff did not visit the office of the Sub- Registrar. The plaintiff never informed the defendant that she was to visit the office of Sub-Registrar, Baddi. The defendant duly served a notice upon the plaintiff. The plaintiff has not performed his part of the agreement, whereas, the defendant was ready and willing to perform her part of the agreement.

Therefore, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed. However, this replication was not signed by the plaintiff but only by his counsel.

Learned Trial Court framed the following issues on 14.06.2011:

Whether the plaintiff is ready and willing to perform the part of the agreement dated 15.05.2010, as alleged? …OPP

Whether the plaintiff is entitled for the specific performance of the agreement by way of decree of possession, as alleged? …OPP

Whether the plaintiff is entitled for the permanent prohibitory injunction, restraining the defendant from transferring and alienating the suit land, as alleged?...OPP

Whether the suit is not maintainable, as alleged?...OPD

Whether the plaintiff has no legally enforceable cause of action, as alleged?...OPD

Relief

The parties were called upon to produce the evidence and the plaintiff examined himself (PW- 1) and Bhag Singh (PW2). The defendant examined herself (DW -1) and Sohan Lal (DW-2).

Learned Trial Court held that the execution of the agreement and payment of Rs. 1,30,000/- were not disputed. It was also admitted that the sale deed was to be executed on 14.09.2010. The defendant stated that she remained present in the office of the Sub-Registrar on 14.9.2010. However, her presence at Nalagarh would not help her because she admitted that the sale deed was to be registered at Baddi, and she was required to be present in the office of the Sub-Registrar, Baddi. The plaintiff remained ready and willing to perform his part of the agreement. His statement that he had sufficient money with him was believable. The defendant did not remain present in the office of the Sub-Registrar, Baddi on 20.10.2010, where she was required to be present as per the notice sent by the plaintiff. The time was not the essence of the contract. There was no reason for denying the specific performance of the agreement to the plaintiff. Hence, the learned Trial Court answered Issues No.1 to 3 in affirmative, Issues No.4 and 5 in negative and decreed the suit of the plaintiff.

Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant filed an appeal before Learned District Judge, Solan. Learned First Appellate Court held that the agreement between the parties was not disputed. The plea of the plaintiff that he remained ready and willing to perform his part of the agreement was probable. The plaintiff remained present in the office of the Sub-Registrar, Baddi from 10:00 a.m. to 5:00 p.m. along with the necessary documents. The defendant did not visit the office of Sub-Registrar, Baddi. She even did not appear before the Sub-Registrar, Baddi on 20.10.2010, where she was asked to be present, as per the notice issued by the plaintiff. There was nothing on record to show that the plaintiff was not entitled to the specific performance of the contract; hence, the appeal was dismissed.

Being aggrieved from the judgment and decree passed by the learned Courts below, the present appeal has been filed asserting that the learned Courts below erred in properly appreciating the evidence led by the parties. The defendant was a rustic villager. She was present in the office of the Sub-Registrar, Nalagarh, where she was told to be present. The plaintiff did not appear in the office of the Sub-Registrar. The defendant required money as she was constructing the house. When the plaintiff did not appear in the office of the Sub-Registrar, the defendant forfeited the earnest money as per the terms and conditions of the agreement. The plaintiff was unable to arrange the balance amount of the consideration and his explanation that he was ready and willing to perform his part of the contract is not acceptable. Learned Courts below erred in granting the specific performance of the agreement.Therefore, it was prayed that the present appeal be allowed and judgment and decree passed by learned Courts below be set aside.

The appeal was admitted on the following substantial questions of law:

Whether the suit for specific performance was maintainable without seeking declaration regarding the invalidity of the forfeiture and repudiation of the contract.

Whether the learned Courts below had given perverse findings regarding the readiness and willingness to perform the contract and the time being the essence of the contract.

I have heard Sh.Romesh Verma learned Senior Counsel assisted by Sh.Sumit Sharma, learned counsel for the appellant-defendant and Ms.Ambika Kotwal, learned counsel for the respondent-plaintiff.

Sh.Romesh Verma learned Senior Counsel submitted that the defendant had forfeited the earnest money and cancelled the contract. This fact was specifically mentioned in the notice issued to the plaintiff. The receipt of the notice was not disputed by the plaintiff. The plaintiff could not have filed a Civil Suit seeking the specific performance of the contract without seeking a declaration regarding the invalidity of the forfeiture of the earnest money and cancellation of the contract. Learned Trial Court did not consider this aspect properly. The plaintiff was not ready and willing to perform his part of the contract. He never showed the availability of money with him. Hence, he prayed that the present appeal be allowed and judgment and decree passed by learned Courts below be set aside.

Ms. Ambika Kotwal, learned counsel for the respondent-plaintiff supported the judgment and decree passed by learned Courts below and submitted that no interference is required with the same. She took pains to take the Court through the evidence and pleadings of the parties and submitted that there is no infirmity in the findings recorded by learned Courts below that time was not the essence of the contract and the plaintiff was ready and willing to perform his part of the contract. Hence, she prayed that the appeal be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

Substantial Question of Law No. 1:-

It is undisputed that the defendant issued a notice (Ext.P-6) to the plaintiff through her counsel. The plaintiff even sent a reply (Ext. P-3) to the same. The plaintiff asserted in para 4 of the plaint that the defendant served a notice through her counsel upon the plaintiff and he immediately sent a reply to the same.

It was specifically mentioned in para 1 of the notice that the defendant was at liberty to forfeit the earnest money in case of failure to get the sale deed executed till 14.9.2010, and as per the terms and conditions of the agreement, the defendant had forfeited Rs. 1,30,000/- and she was free to sell the suit land to any other person. It was laid down by Hon’ble Supreme Court in IS Sikandar versus K. Subarmani (2013) 15 SCC 27: (2014) 4 SCC (Civ) 365: 2013 SCC OnLine SC 1136 that where the defendant had terminated the agreement and forfeited the earnest money, the plaintiff must seek a declaration regarding the invalidity of the termination of the agreement. In the absence of any such declaration, the civil suit for specific performance cannot be decreed. It was observed:

Since the plaintiff did not perform his part of the contract within the extended period in the legal notice referred to supra, the agreement of sale was terminated as per notice dated 28-3-1985 and thus, there is a termination of the agreement of sale between the plaintiff and Defendants 1-4 w.e.f. 10-4-1985.

As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of the agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for the grant of decree for specific performance in respect of the suit schedule property on the basis of the agreement of sale and consequential relief of decree for a permanent injunction is not maintainable in law.

Therefore, we have to hold that the relief sought for by the plaintiff for the grant of decree for the specific performance of the execution of the sale deed in respect of the suit scheduled property in his favour on the basis of the non-existing agreement of sale is wholly unsustainable in law. Accordingly, Point (i) (see para 32.1) is answered in favour of Defendant 5 .

This judgment was followed by this Court in Arjun Singh versus SR Bawa 2015 SCC online HP 3279 and it was held:

“54. In addition to the aforesaid, once defendant No. 1 has returned the cheque, the contract, if any, would stand repudiated and in such circumstances, the suit seeking specific performance would not be maintainable and it was incumbent upon the plaintiff to have sought declaration to this effect as per the judgment passed by the Hon'ble Supreme Court in I.S. Sikandar (dead) by LRs v. K. Subramani (2013) 15 SCC 27 wherein it was held as under:

“17. The said legal contention was seriously contested on behalf of the 5th defendant justifying the finding and reasons recorded by the trial court on the above contentious issue No. 3 contending that the trial court on proper appreciation of pleadings and evidence on record has rightly answered in his favour and against the plaintiff. He has further contended that the reply notice dated 16.03.1985 which was issued by the plaintiff shows the delay and inconvenience caused by the plaintiff to the vendors of the 5th defendant. The vendors waited patiently by extending the time for registration of the sale deed in respect of the suit schedule property and the plaintiff was called upon by them to get the sale deed executed in his favour by paying the balance sale consideration, but he had avoided the same on one pretext or the other leading to the conclusion that he was not ready and willing to perform his part of contract and therefore they rescinded the contract and executed the sale deed dated 30.05.1985 in favour of the 5th defendant in respect of the suit schedule property.

In another decision in A. Maria Angelena v. A.G. Balkis Bee (2002) 9 SCC 597, this Court has made observations with reference to the plea that for grant of a decree for specific performance would result in serious hardship to the vendor or the subsequent purchaser and that the plaintiff should be compensated in terms of money must be taken at the earliest stage.”

A similar view was taken by the Hon’ble Supreme Court in Mohinder Kaur versus Sant Paul Singh(2019) 9 SCC 358 : (2019) 4 SCC (Civ) 415: 2019 SCC OnLine SC 1276 and it was held:

“8. The agreement was cancelled by the appellant on 1-9-1989 and the consideration already paid was confiscated under intimation to the respondent. The respondent never challenged the communication of cancellation. In Sikandar [I.S. Sikandar v. K. Subramani, (2013) 15 SCC 27 : (2014) 4 SCC (Civ) 365] it was observed as follows : (SCC p. 38, paras 37-38)

“37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of the agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for the grant of decree for specific performance in respect of the suit schedule property on the basis of an agreement of sale and consequential relief of decree for a permanent injunction is not maintainable in law.

Therefore, we have to hold that the relief sought for by the plaintiff for the grant of decree for the specific performance of execution of the sale deed in respect of the suit schedule property in his favour on the basis of the non- existing agreement of sale is wholly unsustainable in law.”

Therefore, in view of the binding precedent of the Hon’ble Supreme Court, it was necessary for the plaintiff to seek a declaration that cancellation of the agreement and forfeiture of the earnest money was bad in the absence of which the specific performance could not have been ordered.

The judgment of the Hon’ble Supreme Court in IS Sikandar (Supra) was cited before the learned Trial Court; however, the learned Trial Court distinguished the same by holding that the facts of the case were quite different from the facts of the present case. The judgment laid down is a pure principle of law independent of the facts and the same could not have been distinguished by saying that the facts were different. Thus, the learned Trial Court erred in not relying upon the judgment.

Therefore, the plaintiff could not have sought the specific performance of the contract without setting aside the cancellation of the agreement and forfeiture of the earnest money and learned Courts below erred in decreeing the suit; hence, his substantial question of law is answered accordingly.

Substantial question of law no.2:-

It was laid down by Hon’ble Supreme Court in Ramathal v. Maruthathal, (2018) 18 SCC 303: (2019) 2 SCC (Civ) 681: 2017 SCC OnLine SC 1100, that there is no presumption in the case of sale of immovable property that the time is an essence of contract. Even, in the cases, where there is a stipulation regarding the time, the Courts may infer that it has to be performed within a reasonable time. It was observed:

“18. As per the law laid down by this Court in respect of the sale of immovable property, there is no presumption as to time being the essence of the contract. Even when there is no stipulation the courts may infer that it has to be performed within a reasonable time taking into consideration the terms of the contract, the nature of the property and other surrounding circumstances. We feel that this proposition needs to be revisited in an appropriate case, as the value of an immovable property rate has been fluctuating in recent times.

At the cost of repetition, it should be noted that, whether the time is an essence of the contract would depend on the facts and circumstances of each case. In this case, after taking into consideration the terms of the contract, the conduct of the parties and other material placed before us, the contention of the seller that the time is the essence of the contract, is negated.

The learned Senior Counsel appearing for the seller contends that the specific performance being an equitable remedy, condition precedent of “readiness and willingness” has to be specifically pleaded and proved by the buyer for enforcement of the specific performance [referK. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597 : (2015) 1 SCC (Civ) 600] ]. She further submits that there are only vague averments in the pleading that the buyer was ready and willing to perform his part of the contract. There is no dispute with regard to the proposition that in a suit for specific performance burden is always on the plaintiff to aver and prove that they are always ready and willing to perform their part of the contract throughout. Section 16(c) of the Specific Relief Act mandates that not only there be a plea of readiness and willingness but it also has to be proved by acceptable evidence. The requirement of fulfilling the conditions under Section 16(c) of the Specific Relief Act, 1963, is a condition precedent for obtaining the relief of specific performance. Whereas in the instant case, the plaint as well as the documents available on record goes to show that it was specifically pleaded that the buyer was ready and willing to perform his part of the contract. Additionally, the evidence of PW 1 also proves readiness and willingness on the part of the buyer. In light of the aforesaid discussion, the contention of the learned Senior Counsel appearing on behalf of the seller is repelled as being meritless.”

In the present case, the agreement (Ext.P-1) provides that a sum of Rs. 1,30,000/- was paid as the earnest money and the remaining amount would be received by 14.09.2010. The defendant would be liable to execute the sale deed as per the directions of the purchaser. In case of failure to pay the money by the stipulated date, the earnest money would be forfeited.

The agreement does not provide any other penalty in case of default to execute the sale deed. It was laid down by the Hon’ble Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri,1977 (2) SCC 539, that the fixation of the period within which the contract is to be performed will not make the time an essence of the contract. There is a normal presumption that time is not the essence of a contract in the case of immovable property. It was observed:

“5. The first question that arises for consideration is whether time is of the essence of the contract. In order to determine this question it is necessary to set out the suit agreement which is marked as Ex. 23 at p. 137 of the papers. It runs as follows:

“Dear Pandit Govind Prasad Ji Chaturvedi,

Sir,

A litigation has been going on between you and us with respect to the Kothi of Bima Nagar, of which you are a tenant on behalf of us. The said dispute has been decided today through the mediation of Sri Shri Chand Doneriya, on the terms and conditions given below which shall be fully binding on you as well as us:

‘1. That you are agreeable to purchase our kothi of which you are a tenant and a transaction between you and us has been finally settled today; at Rs. 24,000 (rupees twenty-four thousand), with respect to the said kothi.

That you are paying us, at present, a sum of Rs. 4000 in cash, as earnest money, the receipt whereof has been acknowledged by us by affixing a revenue stamp at the foot of this letter, and that the remaining sum of Rs. 20,000 shall be paid by you to us at the time of registration.

That the expenses relating to registration and cost of stamps etc. shall be borne by you and we shall be entitled to get a sum of Rs. 24,000 (rupees twenty-four thousand) net.

That you must get the sale deed executed within two months i.e. upto May 24, 1964, and in case you do not get the sale deed registered within two months then the earnest money amounting to rupees four thousand, paid by you shall stand forfeited without serving any notice. But in case we in some way evade the execution of the sale deed, then you will be entitled to compel us to execute the sale deed legally and we shall be liable to pay the costs and damages incurred by you.

That we shall furnish you a guarantee of good title in respect of the property which is free and immune from all sorts of disputes.

That you shall be liable to pay the rent till the date you get the sale deed registered and you shall clear off all amounts due to us before registration.

That both the parties shall withdraw their respective cases or get the same dismissed and shall bear their own costs.

That neither party shall take any fresh legal steps during this period of two months by which any hindrance may be caused in the execution of our sale deed.

In confirmation of the agreement which has been made between you and me through this letter, you too have affixed your signature on this letter.

Yours,

Signature of Hari DuttShastri.

24-3-1964

Signature of Bhavbhooti Sharma.

24-3-1964

* * *

The relevant clause is clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto May 24, 1964, and in case the appellant did not get the sale deed registered within two months then the earnest money amounting to Rs. 4000 paid by the appellant shall stand forfeited without serving any notice. The clause further provides that in case the respondents in some way evade the execution of the sale deed then the appellant will be entitled to compel them to execute the sale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appellant. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to the sale of immovable property it will normally be presumed that time is not the essence of the contract. (Vide Gomathinavagam Pillai v. Pallaniswami Nadar [AIR 1967 SC 868 : (1967) 1 SCR 227, 233] ). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.

Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract. In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement while the respondents committed a breach of the contract. The respondents did not set up the plea that the time was of the essence of the contract. In para 32 of the written statement, all that was stated was that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not subsist and the suit is consequently misconceived. The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract. Neither is there any discussion in the judgment of the trial court regarding this point. The trial court after considering the evidence came to the conclusion that the appellant was always ready and willing to perform his part of the contract while the respondents were not. In the circumstances therefore the High Court was in error in setting as one of the points for determination whether time was of the essence of the contract. The High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the course of a litigation between the appellant and the respondents and in pursuance of the agreement the parties were directed to withdraw their cases and were directed further not to take fresh legal steps during the period of two months within which the sale deed was to be executed. On taking into account the circumstances of the case and the conduct of the parties of serving on each other notices, counter-notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence of the contract. We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage, it is sufficient to state that neither the terms of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract. In fact, according to the agreement, the sale deed ought to have been executed by May 24, but it is the admitted case that both parties consented to have the document registered on May 25. On the question whether time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondents in the trial court. Apart from the absence of pleadings, we do not find any basis for the plea of the respondents that the time was of the essence of the contract.” (Emphasis supplied)

The plaintiff sent a reply to the notice (Ext.P-6) asking her to be present on the premises of the office of the Sub-Registrar, Baddi on 20.10.2010 to execute the sale deed. This clearly shows that the parties never intended that the time was the essence of the agreement.

The Learned Trial Court also held that the time cannot be considered to be the essence of the contract in the present case. This finding is based upon the agreement and cannot be said to be perverse.

The plaintiff stated that he was ready and willing to perform his part of the contract. He stated that he remained present in the office of Sub-Registrar, Baddi on 14.9.2010 with the balance amount and the documents for executing the sale deed; however, the defendant did not turn up and the sale deed could not be executed. He stated in his cross - examination that he had not got his attendance marked before the Sub-Registrar. He had also not annexed the average price taken by him before 14.9.2010. He volunteered to say that this average sale cost is lying in his home and he had taken this average sale cost on 12.9.2010. The amount of Rs. 5,00,000/- was lying with him at home. He had sold the land and obtained Rs. 7,00,000/- as the sale price. He had not mentioned this fact in his Income Tax return. He denied that he did not appear before the Sub-Registrar on 14.9.2010.

The plaintiff has placed on record his affidavit (Ext.P-2) executed by him on 20.10.2010 saying that he was present in the office of Sub-Registrar w.e.f. 10:00 a.m. to 4:50 p.m. This affidavit was attested by Executive Magistrate, Baddi. The fact that the plaintiff relied upon the affidavit to show his presence on 20.10.2010 establishes that the plaintiff was aware of the fact that an affidavit has to be executed to establish the presence. He has explained that he is illiterate and no such affidavit was executed on 14.9.2010. It is difficult to believe this explanation. If he knew about the execution of the affidavit on 20.10.2010, it does not stand to reason that he would not have known about the execution of the affidavit on 14.09.2010.

His statement that he had Rs. 7,00,000/- from the sale deed is also not corroborated by any evidence. He admitted that the sale was not shown in the Income Tax return. The sale was effected in the year 2007 and he has not given any explanation as to why he had retained the amount in his home for three years.

The plaintiff stated that he had taken the average cost on 12.9.2010; however, he had not filed the same. He was asked this question in the cross-examination, even then, he did not file any application for additional evidence to place such an average cost on record to show that the plaintiff had taken all the steps to get the sale deed registered on 14.9.2010.

The plaintiff did not deposit the amount before the learned Trial Court or the Appellate Court. The learned First Appellate Court dismissed the appeal on 30.11.2018. The defendant filed an appeal before this Court; however, no application for the stay of the execution of the judgment passed by the learned First Appellate Court was filed. Around 5 years have elapsed since the passing of the decree and it is not shown that the plaintiff had taken any steps to get the sale deed executed. These circumstances make it doubtful that the plaintiff remained ready and willing to perform his part of the agreement.

It was laid down by the Hon’ble Supreme Court in C.S. Venkatesh v. A.S.C. Murthy(2020) 3 SCC 280: (2020) 2 SCC (Civ) 90: 2020 SCC OnLine SC 143, that the plaintiff has to show that he was prepared to carry out those parts of the contract to their logical end as depended upon his performance. The plaintiff has to prove that he had the requisite amount and he had taken all the steps for the execution of the sale deed. It was observed:

“16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. 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 along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of the decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.

In N.P. Thirugnanam v. R. Jagan Mohan, (1995) 5 SCC 115, it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of 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 to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.

In Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5)

“5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about the willingness or readiness of the plaintiff? This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.”

Similar view has been taken by this Court in Manjunath Anandappa v. Tammanasa, (2003) 10 SCC 390 and Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251].

The judgment of this Court in Umabai v. NilkanthDhondibaChavan, (2005) 6 SCC 243 is almost similar to the case at hand where the plaintiff had filed a suit for specific performance of the agreement to re-convey property. The plea of the plaintiff was that the transaction was one of mortgage and the sale stood redeemed the plaintiff was discharged from the debt and he was ready to pay the defendant the amount for the property only in the alternative that the plea of mortgage was not accepted by the Court, would show that his readiness was conditional. The plaintiff did not have any income and could not raise the amount required for the repurchase of the property. In the totality of the circumstances, it was held that the plaintiff was not ready and willing to perform the contract. The conditions laid for the specific performance of the contract are in para 30, which is as under: (SCC p. 256)

“30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the respondent-plaintiffs were all along and still are ready and willing to perform their part of the contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the respondent-plaintiffs must be judged having regard to the entirety of the pleadings as also the evidence brought on record.”

The plaintiff examined Bhag Singh (PW-2) to prove that he was present in the office of the Sub-Registrar with the necessary expenses and documents. However, Bhag Singh also admitted that no application was filed before the Sub-Registrar on that date. He stated that he remained present in the office of Tehsildar for 2 hours but the plaintiff remained there till evening. He visited the office of the Sub-Registrar in the evening. He had also accompanied the plaintiff to the office of the Sub-Registrar on 20.10.2010, on which date the attendance was marked. He admitted that he is a property dealer.

The cross-examination of this witness shows that he is a property dealer and he would be aware of the process of the registration. He has not stated that he told the plaintiff to get the affidavit executed on 14.09.2010. He stated that the plaintiff had average cost but there is no corroboration to this fact. Patwari, who had issued the average cost was not examined and the average cost was not filed. Therefore, his testimony cannot be relied upon.

Therefore, the plaintiff has failed to establish that he had requisite funds with him on 14.9.2010 or he remained present in the office of the Sub-Registrar on that day with the necessary documents to get the sale deed executed. Both the learned Courts below did not advert to the circumstances, which would have lent corroboration to the testimony of the plaintiff and his witnesses and relied upon the statements on oath regarding this fact.

Thus, the conclusions drawn by learned Courts below that the plaintiff was ready and willing to perform his part of the contract are not based upon evidence; hence, this substantial question of law is answered accordingly.

Final Order:

In view of the above, the present appeal is allowed and judgments and decrees passed by learned Courts below are ordered to be set aside and the suit of the plaintiff is ordered to be dismissed. Pending applications are disposed of