Smt. Kalawati vs Dinesh Chandra Agrawal and Others

M.K. Mudgal, J.—The appellant/plaintiff has filed this appeal u/s 96 of the CPC being aggrieved by the judgment and decree dated 27.3.2000 passed by the Court of III Additional District Judge, Gwalior in Civil Suit No. 5A of 1999 whereby, the suit filed by the plaintiff Smt. Kalawati for specific performance of registered agreement to sell dated 21.5.1996 Ex. P/1 and for permanent injunction against the defendants was dismissed. In this appeal, the appellant is referred to as the ''plaintiff'' and the respondents as the ''defendants''. The admitted facts in this case are that the execution and contents of the registered agreement to sell dated 21.5.1996 Ex. P/1 are not disputed. The defendants/respondents issued a notice dated 19.10.1996 Ex. D/2 to the plaintiff requesting her for getting the sale deed executed in her favour. The said notice was replied by the plaintiff vide Ex. D/3 on 25.10.1996. Thereafter the counter reply dated 7.11.1996 Ex. D/4 was sent by the defendants to the plaintiff''s Advocate. The plaintiff gave a telegraphic message on 30.12.1996 Ex. P/2 to the defendant for execution of the sale deed which was also replied by the defendants on 3.1.1997 vide Ex. D/5 canceling the contract Ex. P/1. The notice dated 3.2.1997 Ex. D/6 was got issued by the plaintiff through her Advocate to the defendants for performance of the contract. The said notice was replied by the defendants vide Ex. D/7. The suit was filed by the plaintiff on 14.5.1999.

The facts, in brief, of the plaint are that on 21.5.1996, the defendants entered into an agreement to sell part of the house bearing No. 3/417 (old) and No. 37/1162 (New) shown in the map attached with the agreement situated in Ward No. 43 Khalasi Colony, Rane Ki Goth, Lashker (hereinafter referred to as the "disputed house") with the plaintiff for the consideration of Rs. 1,50,000/- out of which, Rs. 50,000/- was paid in advance and remaining amount of Rs. 1,00,000/- was to be paid at the time of registration of the sale deed, however, the plaintiff was already in possession of the disputed property as tenant. But in spite of sending telegraphic message and a notice by the plaintiff to the defendants, they were not ready to execute the registry of the said disputed house as per the agreement to sell Ex. P/1 in her favour and as there was possibility of the defendants selling the said house to third party, the suit for specific performance of agreement to sell and permanent injunction was filed on 14.5.1999 by the plaintiff against the defendants.

The defendants submitting his written statement have denied the facts stated in the plaint except the admitted facts of the case. It has been further stated that since the plaintiff was not ready and willing to perform the contract, she had never any funds to pay the remaining consideration and did not vacate the room and patore of the first floor and did not handover the possession of which, the plaintiff and her husband were in possession to Kanhaiyalal according to terms and conditions of the contract Ex. P/1. In spite of giving several notices, the plaintiff did not get the sale deed executed in her favour within stipulated time in the contract, hence, the sale deed could not have been executed in her favour. It has been further averred that the plaintiff was also not ready to pay remaining amount of Rs. 1 lac as per the agreement for getting the sale deed of the disputed house executed in her favour. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. The defendants have further pleaded in para 12 of his written statement that to avoid unnecessary litigation and consequent harassment of pursuing the litigation in the court of law, they are still ready and willing to execute the sale deed in favour of plaintiff according to the terms and conditions of the contract by 30.11.1999. If the plaintiff is really interested in getting the sale executed in her favour, she may get the contract to sale Ex. P/1 performed after payment of the remaining consideration along with the interest at the rate of 1.5% per month as agreed in the Ex. P/1. Nevertheless the plaintiff did not take any appropriate step in this regard. The instant suit is filed to get rid of the suit for eviction filed by the defendant against the plaintiff pertaining to the remaining part of the same property. Hence, prayed for dismissal of the suit.

After framing the five issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court partly decreed the suit of the plaintiff to the extent of refund of Rs. 50,000/- with interest at the rate of 18% per annum from the date of execution of agreement to sell but dismissed the suit filed by the plaintiff vide impugned judgment dated 27.3.2000 for specific performance of agreement to sell and permanent injunction holding that the plaintiff has utterly failed to prove that he was ready and willing to get the sale deed executed in her favour according to the contract Ex. P/1.

The following issues that arise for consideration in this appeal are that:

(I). Whether, the plaintiff was ready and willing for getting the sale deed according to the agreement to sell Ex. P/1 executed in her favour before filing of the suit?

(ii). Whether, the findings of the learned trial Court are based on proper appreciation of evidence?

The learned counsel for the appellant/plaintiff submitted that the plaintiff was always ready and willing to perform the contract and getting the sale deed executed in her favour. In this regard, telegraphic notice dated 30.12.1996 was given to the defendants stating that she was ready to carry out the contract Ex. P/1 nevertheless the defendants did not execute the sale deed. The counsel further pleaded that the findings recorded by the trial court being not based on proper reasonings and being perverse to the recorded evidence deserve to be set-aside and the suit be decreed in favour of the plaintiff.

Controverting the submissions made on behalf of the appellant, the learned counsel for the respondents strenuously argued that the plaintiff has utterly failed to have proved that she had been ready and willing for getting the sale deed executed in her favour as no step was carried out by the plaintiff for performance of the contract as per terms and conditions of the Ex. P/1 wherein, the maximum period of five months for execution of sale deed was agreed between the parties however, the plaintiff did not get the sale deed executed because, she had no money for payment of remaining consideration as stated by her in the reply dated 25.10.1996 Ex. D/3 therein, she has averred for payment of only of Rs. 20,000/- on the said date and reaming consideration to be paid in December, 1996. The counsel further pleaded that in the month of December, 1996 the plaintiff did not make any attempt to get the sale deed executed and fail to perform on her part as per agreement Ex. P/1. The counsel further pleaded that defendants had made a request to the plaintiff for getting the sale deed executed as per the agreement Ex. P/1 as pleaded in para 12 of the written statement, however, the plaintiff did not pay any heed to carry out the execution of the agreement. Thus, the learned trial court has not committed any error in dismissing the suit after considering the recorded evidence.

To bolster his submissions, the learned counsel for the respondents has cited following judgments:

Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, , His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, and Gyaneshwar Vs. Smt. Moongabai @ Muneshwaribai and Another, .

Heard the arguments of both the parties and perused the record.

The Hon''ble Apex Court in Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, has held as under:

Under section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same.

Further in the case of His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, the Hon''ble Apex Court has held that there is a distinction 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 which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized.

In Gyaneshwar Vs. Smt. Moongabai @ Muneshwaribai and Another, , this Court has held as under:

The readiness and willingness for the purpose of seeking a decree for specific performance implies monetary potential to pay the consideration and mental preparedness to perform the part under the contract. The plaintiff/appellant having failed to discharge this burden is not entitled to a decree for specific performance in view of the Apex Court decision reported as N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, . The Hon''ble Supreme Court of India has held in the case (supra):--

It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercise according to settled principles of law and not arbitrary as adumbrated u/s 20 of the Specific Relief Act, 1963 (for short "the Act"). u/s 20, the Court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that 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 along with 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 ready and was always ready and wiling to perform his part of contract.

The same view has been reiterated by this Court in Leeladhar Yadav Vs. Siddhartha Housing Co-operative Society Ltd., .

In the instant case, the execution and contents of the agreement to sale dated 21.5.1996 Ex. P/1 are not in dispute. The plaintiff Kalawati Bai has admitted in this regard in para 2 and 7 of her statement. On perusal of the contract Ex. P/1, the following terms and conditions were agreed upon between the plaintiff and the defendants for the performance of the said contract as under:

(i). Consideration of Rs. 1,50,000/- for sale of the disputed property was fixed initially out of which, a sum of Rs. 50,000/- was paid in advance to the defendants;

(ii). The rest of the amount i.e. Rs. 1,00,000/- was to be paid to the defendant with in two months failing which, period of total five months was agreed upon for execution of the sale deed along with the interest at the rate of 1.5% per month for the extended period of three months;

(iii). It was also agreed upon between the parties, that the vacant possession of one room and patore on the first floor would be given by the plaintiff and her husband to Kanhaiyalal before execution of the sale deed;

(iv). Expenses of the sale deed shall be borne by the plaintiff;

(v). It was also agreed by the plaintiff/purchaser that the ventilators and windows in the disputed property which are opened towards the defendants'' remaining property would be closed by the purchaser at her own cost before execution of the sale deed.

Looking into the aforesaid terms and conditions, it has to be considered whether the plaintiff had been ready and willing to perform the contract? In order to prove her case, the plaintiff filed her statement under Order 18 Rule 4 of the CPC stating the facts as pleaded in the plaint. The contract for agreement to sell Ex. P/1 was executed on 21.5.1996. As per para 2 of the Ex. P/1, the sale deed was initially to be executed within two months i.e. from 21.5.1996 to 21.7.1996 but the plaintiff did not make any efforts for the execution of the sale deed within this period. Further, the maximum time period decided was to be five months i.e. up to 21.10.1996 for the execution of the sale deed, however, even till the expiry of the said period, the plaintiff did not take any step in this regard. On the contrary issuing the notice dated 19.10.1996 Ex. D/2 the defendants requested the plaintiff for performance of the contract Ex. P/1 and getting the sale deed executed in her favour after due payment of the remaining consideration as per terms and conditions of the contract. Admittedly, the said notice was replied by the plaintiff vide dated 25.10.1996 Ex. D/3 stating that she would pay a part of consideration Rs. 20,000/- only and the remaining amount would be paid by December, 1996. It is evident here from Ex. D/3 that the plaintiff had no arrangement for payment of the remaining consideration. Further, in response to the notice Ex. D/3, the defendants sending a counter reply on 7.11.1996 Ex. D/4 to the plaintiff informed that the plaintiff had neither carried out the execution of the sale deed nor performed the contract on her part as a result of this lapse on the part of the plaintiff, the agreement has been canceled.

It is on the record that the plaintiff sent a telegram Ex. P/2 dated 30.12.1996 to the defendants in this connection showing her willingness and readiness for performance of the contract. The said telegram was sent after the expiry of the period set out in the agreement and cancellation of the contract. Moreover, the plaintiff did not come forward with a specific date for performance of the contract. The aforesaid facts strongly reveals that the plaintiff was not at all willing to perform the contract and she has even admitted in para 8 of her statement that the possession of the room along with patore was not handed over to Kanhaiyalal as per terms and conditions of the contract Ex. P/1. Besides, she has further admitted in para 9 that the ventilators and windows were not closed by her as per the contract Ex. P/1. It has also become clear that the plaintiff remained fully indifferent to what she was expected to perform on her part.

The plaintiff got the notice dated 3.2.1997 Ex. D/6 issued through her Advocate against the defendants. The said notice was replied by the defendants vide Ex. D/7. This makes it clear that the plaintiff on her part was simply playing for the time instead of performing the contract by sending notices. It is pertinent to mention here that the conduct of the plaintiff has not been found fair enough for the performance of the contract as she did not file the suit for specific performance of the contract soon after receiving the notice dated 7.11.1996 Ex. D/4 for cancellation of the said contract Ex. P/1. If she had been really prompt for the execution of the sale deed, she would have immediately filed the suit instead of waiting till the extinction of the period prescribed for the performance of the contract i.e. three years as the plaintiff has filed the suit on 14.5.1999 just a week before the expiry of the limitation for filing the suit for specific performance of contract Ex. P/1.

It has been further observed that the plaintiff was not at all willing and ready for getting the sale deed executed in her favour as the defendants have emphatically offered her an option of execution of the sale deed and performance of contract by filing written statement dated 15.11.1999 whereby, it has been pleaded in para 12 that they were ready to execute the sale deed by 30.11.1999 as per terms and conditions of the agreement Ex. P/1. In spite of this, the plaintiff did not take any step for performance of the contract and no explanation in this regard has been given by the plaintiff in her evidence as to why she did not get the sale deed executed in her favour. This attitude on the part of the plaintiff leads to the conclusion that neither she had sufficient funds for payment of remaining consideration nor was she ready and willing for performance of the contract. Besides, in this connection, no document has been produced on record by the plaintiff in her evidence showing that she had sufficient fund for execution of the sale deed.

The learned trial Court after considering the recorded evidence in para 8 to 10 of the impugned judgment has held that the plaintiff had not been ready and willing for the performance of the contract whereas, the defendants were not at fault. Eventually, no lapse has been found in the findings of the learned trial Court warranting interference by this Court.

The relief of specific performance is a discretionary one. In the case of Satya Jain (D) Thr. L.Rs. and Others Vs. Anis Ahmed Rushdie (D) Thr. L.Rs. and Others, , the Hon''ble Supreme Court has held as under:

The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. Efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. If efflux of time and rise in prices are to be read as a bar to the grant of a decree of specific performance it would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From, another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given a case, may even be the market price as on date of the order of the final Court.

On close scrutiny of the said facts and recorded evidence, this Court comes to the conclusion that the learned trial Court exercising the discretion dismissing the suit for specific performance of the contract for execution of the sale deed and ordering for the refund of the advance money Rs. 50,000/- along with interest at the rate of 18% per annum has committed no error in passing the decree. Therefore, no interference is hereby required in the impugned judgment and decree.

Thus, affirming the findings recorded by the learned trial Court being based on proper appreciation of the recorded evidence and proper consideration of the facts, the appeal having no merit and substance, is hereby dismissed. The cost of this appeal shall be borne by the appellant to the respondents. The decree be drawn up accordingly.