Bombay High Court
Bhagwan S/O Vithuji Lonare vs Damodhar S/O Jairam Sao on 26 March, 2026
2026:BHC-NAG:5045
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 07 OF 2016
Bhagwan S/o Vithuji Lonare (died)
Aged about 81 years, Occ : Retired,
R/o Opposite Sheetal Mangal
Karyalaya, Bachelor Road, Manas
Mandir Ward, Wardha,
Tah. & Distt. Wardha
Legal heirs of appellant :-
1) Vilas Bhagwan Lonare,
Aged about 62 years,
Occupation : Medical Practitioner, .. Appellant
R/o Near Jijamata High School, (Original Defendant)
Nalwadi, Wardha
2) Anil Bhagwan Lonare,
Aged about 57 years,
Occupation : Medical Practitioner,
R/o Near Priyadarshani College,
Rajnagar, New State Bank Colony,
Wardha
3) Madhuri Bhagwan Lonare,
Aged about 57 years,
Occupation : Service,
R/o Near Manas Mandir,
Batchelor road, Wardha
Versus
Damodhar S/o Jairam Sao,
Aged about 60 years, Occu : Retired,
R/o Plot No.82, Jaidurga Housing .. Respondent
Society Layout No.3, Manishnagar,
Somalwada, Nagpur
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Mr. Abhijeet Khare, Advocate for appellants.
Mr. Kotwal, Advocate for respondent.
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 05.01.2026
PRONOUNCED ON : 26.03.2026
JUDGMENT
(1) Heard finally with the consent of the learned counsel appearing for the parties.
(2) The present Second Appeal is filed by the original defendant being aggrieved by concurrent decrees for specific performance of contract passed against him. The suit property is a piece of land bearing Plot No.41 (old Plot No.36) admeasuring 2400 sq.ft. in Survey No.14/2 Rajendra Nagar Layout, Village Jaitala, Tahsil and District Nagpur. The defendant had entered into an agreement of sale dated 24/10/2000 with respect to the suit property with the plaintiff inter alia agreeing to sell the same for a consideration of Rs.2,64,000/-. Out of the sale consideration, the plaintiff has paid an amount of Rs.25,000/- to the defendant towards the earnest money on the date of agreement vide Cheque drawn on Central Bank of India. It was agreed between the parties that the balance sale consideration of Rs.2,39,000/- was to be paid on the date of execution of the sale deed. It was also agreed that the sale deed of the suit property would be executed and registered on or before 31/01/2001. Execution of the PAGE 2 OF 55
-- 3 -- SA 07.2016 (J) - 13.03.odt agreement, receipt of earnest money of Rs.25000/- and other terms and conditions of the agreement are not in dispute. The agreement of sale dated 24/10/2000 is duly proved and marked as Exh.33. English translation of three clauses which are relevant for the controversy involved in the present appeal are reproduced herein below.
In the event, the purchaser does not get the sale deed executed before 31/01/2001, this agreement shall be deemed to be cancelled and the purchaser will not have right to claim refund of earnest money.
The responsibility of making payment of Nazul Tax, Corporation Tax and any other loan or tax with respect to the aforesaid property will be on the vendor till date of sale and thereafter the said responsibility will be of the purchaser.
In the event it is not possible either for the seller or purchaser to complete the sale transaction due to any technical difficulty that may arise, the seller shall extend the time for execution of the sale deed in writing.
(3) It is the case of the plaintiff that although he was ready
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and willing to complete the sale transaction before the stipulated date, the defendant did not perform his part of contract, due to which the sale transaction could not be completed. The plaintiff contends that he had been to the office of concerned Sub Registrar at Nagpur for registration of the sale deed dated 31/01/2001, however, the defendant did not turn up.
(4) It will be pertinent to mention here that initially the plaintiff had filed complaint before the District Consumer Forum invoking the provisions of Consumer Protection Act, 1986, on 06/05/2001. The said complaint was allowed vide order dated 22/01/2002. The defendant challenged the said order by filing an appeal which was allowed vide order dated 01/12/2005. The complaint was dismissed on the issue of maintainability.
(5) Thereafter, the plaintiff filed a suit for specific performance of contract against the defendant bearing Special Civil Suit No.358/2006, which was renumbered as Regular Civil Suit No.977/2012. The learned trial Court passed a decree for specific performance of contract in favour of the plaintiff vide judgment and decree dated 28/04/2014.
(6) Being aggrieved by the said decree for specific
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performance of contract, the defendant preferred an appeal being Regular Civil Appeal No.255/2014. The appeal came to be dismissed vide judgment and decree dated 02/09/2015. It will be pertinent to mention here that the learned trial Court passed decree for specific performance of contract thereby directing the plaintiff to pay an amount of Rs.2,15,550/- to the defendant out of the outstanding sale consideration of Rs.2,39,000/- on the ground that the plaintiff had proved payment of sum of Rs.23,450/-, in addition to earnest amount, Rs.11,000/- towards property tax, Rs.5250/- towards electricity infrastructure charges and Rs.7200/- towards development charges. The learned first appellate Court held that the payment of aforesaid amount was not proved by the plaintiff and therefore, he was liable to pay balance sale consideration of Rs.2,39,000/- for execution of sale deed in his favour.
(7) Being aggrieved by these concurrent decrees, the present Second Appeal is filed by the original defendant. The parties will be referred as plaintiff and defendant in this judgment. (8) Vide order dated 27/03/2019 the appeal came to be admitted on following substantial questions of law :-
1. In the absence of relief seeking declaration that the termination of the suit agreement is illegal, was the suit for PAGE 5 OF 55
-- 6 -- SA 07.2016 (J) - 13.03.odt specific performance maintainable ?
2. Whether the courts below have applied the correct principle of law in considering the prayer for specific performance ?
3. Whether the finding concurrently recorded that the plaintiff was ready with consideration is based on "no evidence" ?
4. Whether the plaintiff was enitled to the benefit of Section 14 of the Indian Limitation Act ?
5. Whether the complaint preferred before the Consumer Forum was a civil proceeding pending in a court ?
(9) At the outset it needs to be recorded that the learned counsel for the appellant did not press the substantial questions of law at Sr.No.4 and 5 which pertain to Section 14 of the Limitation Act, 1963 and the nature of the dispute before the Consumer Forum. (10) Mr. Abhijeet Khare, learned counsel for the appellant contends that the plaintiff had miserably failed to establish that he was ready to perform his part of contract. He contends that whereas the word willingness in Section 16(c) of the Specific Relief Act implies desire, the word readiness refers to capacity of the plaintiff to perform his part of contract. He contends that in order to establish readiness, the plaintiff must essentially establish his financial capacity to make payment of the sale consideration in terms of the agreement by producing relevant documentary evidence. Mr.Khare, contends that admittedly no documentary evidence in the form of bank account PAGE 6 OF 55
-- 7 -- SA 07.2016 (J) - 13.03.odt statement/ passbook or other record is produced to demonstrate availability of funds as on 31/01/2001 i.e. date stipulated for execution and registration of the sale deed.
(11) Mr. Khare, learned counsel for the appellant contends that the learned Courts have committed manifest error of law in answering the issue of readiness and willingness in favour of the plaintiff merely by recording finding that the defendant had committed breach of agreement. He contends that even if defendant is found to be guilty of breach of agreement, decree for specific performance of contract cannot be granted unless readiness and willingness is duly established by the plaintiff. He has placed reliance in support of his contention on the judgment of the Hon'ble Supreme Court in the case of U.N.Krishnamurthy (since deceased) through LRs vs. A.M.Krishnamurthy, reported in (2023) 11 SCC 775. (12) He further placed reliance on judgment of the Hon'ble Supreme Court in Subhash Agrawal vs. Mahendra reported in 2026 SCC OnLine SC 1 where the Hon'ble Supreme Court found that although the defendant had failed to fulfill his contractual obligation relating to mutation and conversion of land, the plaintiff had also failed to prove readiness and willingness and in view of failure on the part of plaintiff to prove readiness and willingness, relief of specific PAGE 7 OF 55
-- 8 -- SA 07.2016 (J) - 13.03.odt performance was denied.
(13) He contends that the findings on readiness and willingness by the learned Courts are recorded in the absence of any evidence and therefore, warrant interference having regard to the limited scope of appeal under Section 100 of Code of Civil Procedure. He contends that the learned Court should have drawn adverse inference against plaintiff for not filing documentary evidence to establish availability of funds.
(14) Mr. Khare further contends that the learned Court erred in exercising discretion in granting relief of specific performance of the contract, inasmuch as the sale transaction was to be completed on 31.01.2001 and the suit was filed in the year 2005 by which time, the rates of property had increased tremendously and as such it was not equitable to grant relief of specific performance to the plaintiff. Mr. Khare, contends that the learned first appellate Court has erroneously rejected the contention by holding that rise in price of the properties is not factor to refuse relief of specific performance. To question the said finding learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of K.S. Vidyanandam and others vs. Vairavan reported in 1997 (3) SCC 1.
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(15) He submits that the fact that a short time limit of three
months was stipulated for the execution and registration of the sale deed would clearly imply that time was essence of the contract. His contention is that the learned Courts have erred in law in granting discretionary relief of specific performance although the suit was filed after an inordinately long period of around 5 years and 3 months from the date of stipulated for completing the sale transaction. (16) He further contends that plaintiff could not make payment for balance consideration and complete the sale transaction before the stipulated date on 31/01/2001. According to him, the consequence of failure is provided under the agreement itself and accordingly notice of termination of contract was issued by the defendant to the plaintiff.
(17) Placing reliance on the judgment of the Hon'ble Supreme Court in the case of I.S.Sikandar (Dead) by LRs vs. K.Subramani & others reported in 2013 (15) SCC 27 and R. Kundasamy (since dead) & others vs. T.R.K.Sarawathy & another reported in 2024 SCC OnLine SC 3377, the learned counsel contended that the suit itself was not maintainable in the absence of any challenge to the notice for termination of agreement.
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(18) He further contends that plaintiff created false record
regarding the issuance of letter dated 08/02/2001, and 07/04/2001. He contends that both these letters were allegedly issued Under Posting Certificate. His contention is that certificate of posting is doubted by the Hon'ble Supreme Court in the case of Shivkumar Vs. State of Haryana, reported in (1994) 4 SCC 445 and Gadakh Yashwantrao Kankarrao Vs. Balasaheb Vikhe Patil, reported in AIR 1994 SC 678 and ratio of the said judgments is misinterpreted by the learned First Appellate Court.
(19) Per contra, Mr. Kotwal, the learned Advocate for the respondent/plaintiff counters the contention arguing that issue of readiness and willingness is a question of fact and not question of law. He contends that this issue is answered by both the learned Courts on appreciation of evidence on record. He contends that re-appreciation of evidence is not permissible in a second appeal. His argument is that in order to establish readiness and willingness it is not necessary that plaintiff must all the while show that he was equipped with funds and that it is sufficient that the plaintiff establishes that he is a man of means who is financially capable to honor his financial commitment as per the agreement. He submits that over all conduct of the plaintiff is required to be seen in order to determine as to whether he was ready and willing to perform his part of contract.
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(20) Mr. Kotwal states that the plaintiff was present in the
office of concerned Sub-registrar on the date stipulated for execution and registration of sale deed alongwith requisite funds which is sufficient to establish his readiness and willingness. He argues that the fact of employment of plaintiff in a medical college is not in dispute. He draws attention to letter dated 08.02.2001 issued by plaintiff in view of the fact that defendant did not remain present for execution of sale deed on the stipulated date i.e. 31.01.2001. He refers to legal notice dated 28.03.2001 issued for specific performance. He also sates that immediately upon receipt of termination notice the plaintiff had issued letter dated 07.04.2001 disputing defendant's contention which again is a circumstance which indicates his readiness and willingness. Mr. Kotwal also asserts that complaint under Consumer Act was filed alsmost immediately in view of refusal which is a very strong circumstance to infer readiness and willingness. (21) As regards escalation, Mr. Kotwal argues that increase n prices of land is not a relevant consideration to refuse specific performance.
(22) As regards maintainability of the suit in the absence of prayer to challenge the termination notice, the contention is of two fold. Firstly he contends that the notice dated 29/03/2001 is not a PAGE 11 OF 55
-- 12 -- SA 07.2016 (J) - 13.03.odt notice for termination of contract. Referring to the notice, learned counsel for the defendant contends that, according to the defendant, the agreement stood terminated by virtue of the contents of the agreement and alleged breach on the part of the plaintiff to purchase property on or before 31/01/2001. He argues that even according to the defendant he did not cancel or terminate the agreement. Rather the case of the defendant is that the agreement stood canceled ipso facto on 31.01.2001 which was the last date for completion of sale transaction. In the light of aforesaid, Mr. Kotwal contends that the issue involved is with respect to interpretation of agreement i.e. whether it gets terminated as on 31.01.2001 as per clause 2 or still subsists as per clause 7 since defendant had not completed formalities required for registration of sale deed. Second contention is that since the agreement is not terminable, at the instance of defendant alone, it cannot be said that the agreement is determinable in nature as per Section 14(d) of the Specific Relief Act, 1963 and therefore, it is not necessary to challenge the termination notice.
(23) The learned counsel has placed reliance of the Hon'ble Supreme Court in the cases of Mrs. A. Kanthamani Vs. Mrs. Nasreen Ahmed, reported in AIR 2017 SC 1236, K.S.Manjunath vs. Moorasavirappa Muttanna Chennappa Batil, since deceased by his LRs and others reported in 2025 INSC 1298.
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(24) In order to answer the substantial questions of law, it will
be appropriate to refer to the respective pleadings. The plaintiff has
initially averred about the agreement of sale dated 24/10/2000 and the terms and conditions enumerated therein. The plaintiff states that he was all the while ready and willing to perform his part of contract in order to complete the sale transaction. The plaintiff has contended that he had issued public notice on 06/12/2000 after execution of the agreement and for due diligence and that he had paid an amount of Rs.23,450/- to the defendant towards property tax, electricity infrastructure charges and development charges and was ready and willing to pay balance sale transaction of Rs.2,15,550/- before the date stipulated for completing the sale transaction. The plaintiff has stated that the requisite amount was available with him and was lying in his bank account with Central Bank of India from where it was transferred to his account with a Credit Co-operative Society. The plaintiff has further stated he had been to the office of Sub Registrar at Nagpur on 31/01/2001 i.e. the date stipulated for execution and registration of the sale deed and waited there throughout the office working hours, however, the defendant did not turn up before the Sub Registrar. He has also stated that telephonic calls were made to the defendant asking him to come to the office of sub-registrar, however, the defendant avoided to talk. The plaintiff has stated that on 08.02.2001 he had issued a letter to the defendant in this regard and asked the defendant PAGE 13 OF 55
-- 14 -- SA 07.2016 (J) - 13.03.odt to honour the agreement and had also issued notice dated 28.01.2001 seeking enforcement of agreement. The plaint averments indicate that the plaintiff had received notice dated 29/03/2001 from the defendant regarding termination of contract. Plaintiff has also averred that he had issued a communication dated 09/04/2001 in response to the said notice. According to the plaintiff, the sale deed could not be executed since the defendant did not obtain No Objection Certificate (NOC) from the concerned departments before 31/01/2001. Perusal of para 15 of the plaint will indicate that according to the plaintiff, the defendant did not obtain NOC from Nagpur Improvement Trust (NIT), which was essential for registration of the sale deed. Thereafter, in paragraph 19 the plaintiff has stated that defendant deliberately avoided to obtain NOC from NIT, NMC and Janhit Grihnirman Sanstha, Nagpur and also did not update entries in the property card(akhiv patrika) intentionally and therefore, defendant did not attend the office of Sub Registrar, Nagpur on 31/01/2001.
(25) The defendant has filed written statement opposing the suit. The contention of the defendant is that NOC of the Co-operative Society dated 05/12/1997 along with other documents such as layout map, sale deed dated 10/06/1963, revised sale deed dated 06/05/1989, property card(aakhiv patrika) were verified by the plaintiff at the time of execution of agreement and photo copies of the said PAGE 14 OF 55
-- 15 -- SA 07.2016 (J) - 13.03.odt documents were supplied to the plaintiff. As regards the NOC from NIT, the defendant had stated that there was no need of obtaining NOC from the NIT for completing the sale transaction. The contention of the defendant is that the plaintiff avoided to complete the sale transaction. The defendant also denied that the plaintiff was having sufficient money to complete the sale transaction as per the agreement. The defendant denied that the plaintiff was having the requisite amount in his bank account at the relevant time. The defendant also contends that he was present in the office of Sub Registrar on 31/01/2001. The defendant had stated that on 31/01/2001 he had come to Nagpur from Wardha and after making payment of NMC tax, he had remained present in that office of Sub Registrar at Mahakalkar Bhavan, Nagpur on 31/01/2001 during the office hours, however, since the plaintiff did not turn up, the sale transaction could not be completed. The defendant stated that NMC taxes, electricity infrastructure charges and development charges were paid by him from his own pocket and denied that plaintiff had paid the said amount to him.
(26) Based on the rival pleadings, the learned trial Court framed issues, upon which the parties led their respective evidence. The plaintiff examined himself and an attesting witness to the agreement. As against this, the defendant examined himself and closed his evidence.
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(27) The plaintiff reiterated the plaint averments in his
affidavit of examination in chief in paragraph 3 and stated that the defendant did not make payment of dues and also did not obtain requisite NOC. He has further stated that the defendant assured him that he will obtain NOC from NIT. The plaintiff has stated in paragraph 5 of the affidavit that he has paid an amount of Rs.23,450/- to the defendant at his residential house at Wardha and had requested him to execute sale deed on 31/01/2001. He states that he had asked the defendant to keep all the requisite documents including NOC from Society ready for execution and registration of sale deed. The plaintiff had reiterated his statement that requisite amount of Rs.2,15,550/- was lying in his bank account and subsequently it was transferred to his account with a Credit Co-operative Society. The plaintiff in paragraph 6 of the affidavit asserted that he was present in the office of concerned Sub Registrar along with balance consideration, as also an amount of Rs.60,000/- for payment of stamp duty and registration charges. The plaintiff has alleged that defendant did not turn up despite repeated telephone calls at his residence at Wardha. The plaintiff has further stated that he had issued a letter dated 08/02/2001 to the defendant by R.P.A.D. since the defendant did not turn up for execution of sale deed. He has stated that he had further issued a notice dated 28/03/2001 for specific performance of contract. The plaintiff had admitted receipt of notice dated 29/03/2001 by the PAGE 16 OF 55
-- 17 -- SA 07.2016 (J) - 13.03.odt defendant whereby agreement was sought to be terminated. The plaintiff has disputed the right of defendant to terminate the agreement and forfeit the amount. He states that notice issued by the defendant was supplied vide letter dated 07.04.2001. Thereafter, reference is made to the proceeding before Consumer Forum.
(28) Perusal of further examination in chief will demonstrate that letter dated 08/02/2001 (Exh.35) is not issued by registered post but Under Posting Certificate (UPC) (at Exh.36). As regards letter dated 07/04/2001, the said letter is at Exh.43. The postal receipt regarding dispatch by registered post or certificate of posting with respect to letter dated 07/04/2001 is not filed.
(29) In his cross-examination, questions were put disputing payment of Rs.23,450/-, presence of plaintiff in the office of Sub Registrar and availability of funds. The plaintiff denied the suggestion that amount of Rs.23,450/- was not paid by him to the defendant towards payment of NMC tax, electricity infrastructure charges and development charges. He stated that with respect to the electricity infrastructure charges and development charges the defendant had issued receipts for payment of the said amount. As regards amount of Rs.11,000/- alleged to be paid towards property tax, the plaintiff stated that defendant had issued photo copy of the receipt to him and its PAGE 17 OF 55
-- 18 -- SA 07.2016 (J) - 13.03.odt original was with the defendant. He admitted that copy of receipt of Rs.11,000/- was not filed on record. As regards his presence, although the plaintiff deposed that he had purchased a stamp paper in the office of Sub Registrar to show his presence in the said office on 31/01/2001, he admitted that he did not file the stamp paper on record to show his presence. Plaintiff stated that he was present in the office of Sub Registrar on 31/01/2001 with a cheque of Rs.2,15,550/- and along with cash amount in the sum of Rs.60,000/- for payment of stamp duty and registration charges. He had stated that the cash amount was withdrawn from his bank account and bank account of his wife and some money was gathered in cash from other individuals. He admitted that he did not file the bank account statement on record. He further admitted that he did not produce any document regarding withdrawal of Rs.60,000/- from the bank account. He further denied the suggestion that he was not having requisite amount to make payment of balance sale consideration. The plaintiff was unable to state the address of the office of Sub Registrar and could not confirm as to whether the office is located in Sakkardara area. He also stated that he was not aware as to whether the defendant was present in the office of Sub Registrar at Mahakalkar Bhavan, Nagpur.
(30) The other witness examined by the plaintiff is an
attesting witness to the agreement. His examination in chief is
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restricted to execution and attestation of an agreement. However, in his cross-examination he had stated that the plaintiff was serving in Medical College as Administrative Officer. This statement in the cross- examination is relied upon by the learned Court to draw inference regarding official capacity of plaintiff to perform his part of contract relating to payment of balance sale consideration. (31) The defendant entered the witness box and deposed on the lines of written statement. He reiterated the statement that NOC from NIT was not required for completing the sale transaction and further stated that copies of sale deeds, NOC by Society, property card and layout map were provided to the plaintiff after negotiation when the parties arrived at agreement with respect to the sale transaction. The defendant states that the documents were handed over to the plaintiff on 02/10/2000, itself when the terms of the proposed sale were finalized. The version of the defendant with respect to payment of Corporation tax is that since he was resident of Wardha, he had informed the plaintiff that he will come to Nagpur on 31/01/2001 and make payment of NMC taxes and after making payment of the same, he will come to the office of Sub Registrar for execution and registration of the sale deed. He has stated that the taxes are paid by him from his own pocket. He has also stated that dues of Society were cleared on 26/12/2000 and 16/01/2001. He has further stated that the PAGE 19 OF 55
-- 20 -- SA 07.2016 (J) - 13.03.odt rates of plots in the area had increased by multiple times. He stated that landline telephone connection was obtained by him on 06/12/2005 and its number was 255946. Thus, the defendant put blame squarely on the shoulder of the plaintiff.
(32) In his cross-examination, he admitted that before 31/01/2001, he did not have the property card, NMC tax receipt and NOC of NMC, however, he stated that mutation of his name was done in the office of City Survey department before 31/01/2001 and that he had provided its copy to the plaintiff before 31/01/2001. However, he admitted that acknowledgment with respect to delivery of documents was not taken. During his cross-examination telephone directory was shown to him in which telephone No. 41468 was shown in the name of his son Mr.A.B.Lonare. He admitted the said document which was marked as Exh.70. He further admitted that telephone calls were received at his residential house on the said number. (33) The learned trial Court has decreed the suit holding that the plaintiff was all the while ready and willing to perform his part of contract and that sale transaction could not be completed since the defendant could not obtain NOC from the NMC. As regards the availability of funds with the plaintiff in order to establish readiness to complete the said transaction, the learned trial Court has observed that PAGE 20 OF 55
-- 21 -- SA 07.2016 (J) - 13.03.odt although the plaintiff could have filed relevant documents to show availability of funds he failed to do so. However, issue of readiness was answered in favour of plaintiff since he had pleaded that he was having requisite amount with him as on 31/01/2001. The said statement was accepted by the learned trial Court in view of issuance of public notice on 06/12/2000 (Exh.45) coupled with evidence of PW-2 who had stated in his cross-examination that plaintiff was in service as Administrative Officer at Medical College, Sevagram.
(34) The learned trial Court has also found the plaintiff's version regarding payment of Rs.23,450/-to the defendant for clearing the Corporation tax, electricity infrastructure charges and development charges to be more probable.
(35) As regards the stand of the defendant that NOC from NIT was not required, the learned trial Court has observed that the stand of the defendant that NMC taxes were paid by the defendant on 31/01/2001, implies that NOC from NMC was not obtained till 31/01/2001. The learned trial Court has not recorded any finding with respect to contention of defendant that No Objection Certificate (NOC) from NMC or NIT was not required. The learned Trial Court also recorded that the stand of defendant that he had obtained NOC from society on 05.12.1997 and had paid NMC property tax on 31.01.2001 PAGE 21 OF 55
-- 22 -- SA 07.2016 (J) - 13.03.odt indicated self contradiction. This finding does not appear to be proper because the defendant has stated about payment of charges of co- operative society which has no connection with NOC, if any, to be issued by NIT or NMC.
(36) As stated above, the learned First Appellate Court has confirmed the decree for specific performance of contract passed by the learned trial Court with modification that instead of amount of Rs.2,15,550/- the plaintiff was liable to pay an amount of Rs.2,39,000/-. The learned First Appellate Court has held that payment of Rs.23,450/- was not proved by plaintiff. Perusal of the findings recorded by the learned first appellate Court will indicate that it has accepted plaintiff's version that he was present in the office of Sub Registrar on 31/01/2001 and that the defendant was absent. The said findings are recorded placing reliance on communication dated 08/02/2001 issued by the plaintiff (Exhibit 35) and UPC (Exhibit 36) and cross-examination of the defendant relating to telephone number. The learned first appellate Court also recorded that after 31/01/2001 the defendant issued notice seeking termination of the agreement for the first time after a period of two months i.e. on 29/03/2001 and that prior to this date, there was no communication from the defendant to the plaintiff regarding failure on the part of plaintiff to complete transaction. The learned first appellate Court has also referred to PAGE 22 OF 55
-- 23 -- SA 07.2016 (J) - 13.03.odt affidavit of secretary of the Co-operative Society which was filed before the learned District Consumer Forum, wherein it was stated that NOC was handed over to the defendant on 10/02/2001. The learned first appellate Court has recorded that since the secretary has expired, he could not be examined as a witness. Perusal of the findings by the learned first appellate Court will demonstrate that findings with respect to readiness and willingness are recorded on the basis of conduct of parties. The learned First Appellate Court has held that the sale transaction could not be completed since defendant did not obtain NOC which was required for completion of the sale transaction. As to substantial questions of law Nos.2 and 3 :-
2. Whether the courts below have applied the correct principle of law in considering the prayer for specific performance ?
3. Whether the finding concurrently recorded that the plaintiff was ready with consideration is based on "no evidence ?
(37) Before dealing with the substantial questions of law it will be appropriate to refer to the judgments of the Hon'ble Supreme Court and this Court dealing with Section 16 (c) of the Specific Relief Act. Generally findings by Courts with respect to readiness and willingness will be findings of facts which are immune from challenge in a Second Appeal. However, in case, the findings are perverse or based on no PAGE 23 OF 55
-- 24 -- SA 07.2016 (J) - 13.03.odt evidence or inadmissible material, such findings can certainly be interfered with while entertaining appeal under Section 100 of the CPC. (38) In the case of N.P. Thirugnanam (D) By Lrs vs Dr. R. Jagan Mohan Rao & Ors reported in (1995) 5 SCC 115, wherein the Hon'ble Supreme Court has held that jurisdiction of a Civil Court to grant decree for specific performance is subject to fulfillment of mandate of Section 16(c) of the Specific Relief Act by the plaintiff. It is held that plaintiff must necessarily prove availability of funds even if defence in this regard is not raised by the defendant. The relevant observations of the Hon'ble Supreme Court are reproduced herein below:-
"5....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 PAGE 24 OF 55
-- 25 -- SA 07.2016 (J) - 13.03.odt 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 willing to perform his part of the contract."
(39) Hon'ble Supreme Court has also in the case of Ritu Saxena Vs. J. S. Grover, reported in (2019) 9 SCC 132 held that if the plaintiff fails to prove availability of funds to discharge the financial obligation under the contract, suit for specific performance of contract must necessarily fail. The plaintiff had entered into an agreement of sale to purchase the suit property for a sum of Rs.50,00,000/- and had paid amount of Rs.1,00,000/- on the date of agreement. The wife contended that annual income of plaintiff and her husband was around Rs.80,00,000/-. She also contended loan of Rs.30,00,000/- was sanctioned. The Hon'ble Supreme Court found that as against balance sale consideration of Rs.49,00,000/-, the plaintiff could prove availability of funds to the extent of Rs.30,00,000/- only. With respect to the contention that the plaintiff and her husband were earning Rs.80,00,000/- per anum approximately, the Hon'ble Supreme Court observed that there was no documentary evidence to support the contention regarding annual income of the plaintiff and her husband. It is held that the said statement referring two annual income could not PAGE 25 OF 55
-- 26 -- SA 07.2016 (J) - 13.03.odt be accepted in the absence of any documentary evidence. Accordingly, the Hon'ble Supreme Court held that burden of proving readiness was not discharged by the plaintiff. Relevant observations of the Hon'ble Supreme Court in paragraph 15 are reproduced for ready reference:-
"15. Coming to the facts of the present case, the sole document relied upon by the appellant to prove her readiness and willingness is the approval of loan on 30-7- 2004 by ICICI. Such approval was subject to two conditions viz. furnishing of income tax documents of the appellant and the property documents. M/s ICICI has sent an email on 12-5-2005 to the husband of the appellant requiring an agreement to sell on a stamp paper of Rs 50 to be executed between the parties, as per the legal opinion sought from the empanelled lawyer, without which ICICI will not be able to disburse the loan. Admittedly, no agreement was executed on stamp paper, therefore, the appellant could not avail loan of Rs 50 lakhs from ICICI. Independent of such loan, there is mere statement that the appellant and her husband have income of Rs 80 lakhs per anum unsupported by any documentary evidence. Such statement will be in the nature of ipse dixit of the appellant and/or her husband and is without any corroborating evidence. Such self-serving statements without any proof of financial resources cannot be relied upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant has not produced any income tax record or the bank statement in support of her plea of financial capacity so as to be ready and willing to perform the contract.
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Therefore, mere fact that the bank has assessed the financial capacity of the appellant while granting loan earlier in respect of another property is not sufficient to discharge of proof of financial capacity in the facts of the present case to hold that the appellant was ready and willing to perform her part of the contract. Such is the finding recorded by both the courts below as well. "
(40) The findings by the learned Courts in favour of the plaintiffs are based merely on the alleged refusal on the part of defendant to perform his part of the contract. Both the Courts have put the blame for failure of the transaction at the footsteps of the defendant. In view of law laid down by the Hon'ble Supreme Court in the case of Man Kaur (Dead) vs. Hartar Singh Singha reported in (2010) 10 SCC 512, non-compliance of agreement by defendant cannot absolve the plaintiff from proving readiness and willingness. In the said case also a contention was raised by the plaintiff that defendant did not furnish NOC from relevant authorities for completion of sale transaction and therefore, question of proving readiness and willingness on the part of the plaintiff did not arise. The said contention was expressly rejected by the Hon'ble Supreme Court. Relevant observations in the said case are reproduced herein below for ready reference :-
"40.....There are two distinct issues. The first issue is the PAGE 27 OF 55
-- 28 -- SA 07.2016 (J) - 13.03.odt breach by the defendant - vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act. 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 the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not 'ready and willing' to perform his obligations."
PAGE 28 OF 55
-- 29 -- SA 07.2016 (J) - 13.03.odt (41) Similar view taken by this Court has in the case of Girish Vinodchandra Dhruva and ors. Vs. Neena Paresh Shah and anr. reported in (2023) SCC OnLine Bombay 1188. In this case, the parties had entered into an agreement for sale of property for an amount of Rs.41,75,000/-. Plaintiffs had paid amount of Rs.2,51,000/- towards earnest money and balance amount payable was Rs.39,24,000/-. This amount was to be paid by the plaintiff/purchaser to the defendant/vendor on or before 31/10/2005. In addition they were also required to pay stamp duty and registration charges. The sale deed was to be executed upon payment of balance sale consideration on or before 31.05.2005. The plaintiff had produced documentary evidence in the form of bank passbook to prove availability of sum of Rs.26,53,384/-. The plaintiffs contended that they had obtained loan of Rs.15,00,000/- from City Bank. However, documentary evidence was not produced with respect to sanction of loan. This Court held that since no explanation was offered for not producing the relevant documents with respect to the alleged loan on record, plaintiff had failed to prove readiness inasmuch as they could not establish availability of requisite funds to honour the agreement. This Court referred to the settled legal position that the plaintiffs were not required to carry the balance sale consideration all the while. However, it is held that it was incumbent on the plaintiffs to prove that they were equipped with sufficient funds to discharge their financial PAGE 29 OF 55
-- 30 -- SA 07.2016 (J) - 13.03.odt obligations under the contract. Following parameters for dealing with aspect of readiness and willingness are laid down in the said judgment:-
Paragraph 49:- Plaintiff must adduce evidence to show availability of funds to make payment as per the agreement. If he does not have sufficient funds with him he must lead evidence to show how funds were to be generated.
Paragraph 53:- Pleading of readiness in the absence of any evidence is not of any consequence. Bare assertion of income and resources is not of any relevance in the absence of supporting evidence such as bank records, bank statements, income certificate, appointment letter, etc. Paragraphs 54 to 58:- As against balance amount of Rs.39,24,000/-
and additional amount required for stamp duty and registration charges, plaintiff could prove availability of funds to the extent of Rs.26,53,384/- only. The plaintiff came with a case that loan of Rs.15,00,000/- was sanctioned, which he failed to prove. In view of aforesaid, it is held that plaintiff failed to establish readiness to perform his part of contract.
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Paragraphs 60 and 61:- It is held that mere averment that plaintiff was waiting with balance sale consideration in the office of Sub-
registrar is not sufficient to prove readiness and willingness unless there is evidence to show plaintiff had taken steps for completion of sale transaction such as preparing draft of sale deed, getting stamp duty determined etc. Presence of plaintiff in the office of Sub-registrar was disbelieved since evidence in the form of purchase of stamp paper was not produced.
Paragraphs 62 and 63:- Failure on the part of defendant to perform reciprocal obligation such as obtaining no objection certificate and no dues certificate cannot be a ground for plaintiff to justify non payment of balance consideration. Even in such case plaintiff will have to establish readiness and willingness. Reliance is placed on paragraph 40 of the judgment of Supreme Court in the case of Man Kaur (supra).
It is held that plaintiff is required to demonstrate readiness and willingness regardless of default by defendant.
(42) The learned advocate for the respondent/plaintiff has placed reliance on the judgment of the Hon'ble Supreme Court in the case of A. Kanthamani Vs. Nasreen Ahmed, reported in (2017) 4 SCC 654. In the said case, the agreement was entered into for an amount of Rs.3,47,000/- out of which a sum of Rs.2,00,000/- was paid PAGE 31 OF 55
-- 32 -- SA 07.2016 (J) - 13.03.odt by the plaintiff to the defendant prior to execution of the agreement.
For balance of Rs.1,47,500/- loan was obtained from LIC. In such circumstances, the Hon'ble Supreme Court has held that plaintiff had established readiness and willingness. In such fact situation the Hon'ble Supreme Court held that although it is necessary for plaintiff to prove that he was ready and willing to perform his part of the contract all throughout, it is not necessary for the plaintiff to establish that he was equipped with ready cash all throughout. It is held that readiness and willingness should be adjudged having regard to totality of circumstances and that he must establish that he is a man of means. In the said case also, the plaintiff had led positive evidence to establish availability of funds by availing loan from LIC.
(43) A broad overview of the judgments on Section 16 of the Specific Relief Act will indicate that there is unanimity of opinion that in order to succeed in a suit for specific performance of contract, plaintiff must necessarily prove readiness and willingness on his part all throughout. Readiness implies capability to discharge financial obligation and willingness means desire to purchase the property. As regards readiness, depending on the facts of each case issue of readiness and willingness is decided either insisting upon strict proof of availability of fund or only by considering conduct of plaintiff and having regard to other surrounding circumstances. Although it is held PAGE 32 OF 55
-- 33 -- SA 07.2016 (J) - 13.03.odt that plaintiff need not prove availability of funds all throughout, he must establish ability to generate funds to honour the schedule of payment in the agreement. It is clearly held that mere breach of agreement on the part of defendant or proof of fact that defendant did not abide by the agreement will not absolve, the plaintiff of this responsibility to prove readiness and willingness. Based on the amount paid viz-a-viz the total sale consideration, the Courts have generally insisted upon strict evidence with respect to availability of funds or have decided the issue of readiness and willingness broadly on the basis of conduct of plaintiff.
(44) In the case at hand, undisputedly, agreed sale consideration is Rs.2,64,000/-, as against which payment of earnest amount of Rs.25,000/- was paid by the plaintiff on the date of agreement. The said amount is less than 10% of the total sale consideration. The balance amount which is more than 90% of the agreed sale consideration was agreed to be paid on or before 31/01/2001. The entire transaction was agreed to be completed within a period of three months and one week. The plaintiff as mentioned above has stated that the requisite amount was lying in his bank account and was transferred to his bank account with a Credit Cooperative Society. The defendant has disputed the said statement in the written statement. The defendant also stated in the written PAGE 33 OF 55
-- 34 -- SA 07.2016 (J) - 13.03.odt statement that plaintiff did not have money to make payment of balance sale consideration. In this fact situation, in the considered opinion of this Court that it was necessary for the plaintiff to lead positive evidence with respect to availability of funds. This could be done by producing account statement or passbook of his bank account or account with Credit Co-operative Society. The plaintiff has not contended that he was to arrange funds from another source. He came with a positive case of availability of funds which were lying in the bank account and/or account of credit society. Despite this he did not produce the relevant documents on record. It will be pertinent to state that plaintiff had stated that he was present in the office of the Sub Registrar on 31/01/2001 with cheque in the sum of Rs.2,15,550/- which according to him was the balance sale consideration. It was also necessary for the plaintiff to produce bank account statement of his wife on record since, according to him, amount of Rs.60,000/- for payment of stamp duty, registration charges and other expenses was withdrawn from the bank account of wife.
(45) It needs to be stated that the defendant had specifically denied contention of plaintiff regarding availability of money in the written statement and had further challenged financial capability of the plaintiff in his cross-examination. The plaintiff was aware about the stand taken by the defendant before entering the witness box and also PAGE 34 OF 55
-- 35 -- SA 07.2016 (J) - 13.03.odt before closing his evidence.
(46) Being aware about specific stand challenging availability of funds which was taken by the defendant, it was necessary for plaintiff to produce his bank account statement or statement of co- operative society on record and also account statement of his wife since amount for payment of stamp duty and registration charges etc., is stated to be withdrawn from the said account before allegedly remaining present in the office of sub-registrar on 31.01.2001. The learned Courts ought to have drawn adverse inference against the plaintiff for not producing the said evidence on record. (47) It will be appropriate to refer to the cross-examination of the plaintiff.
"On 31.01.2001 I had not prepared draft of sale deed or its franking."
"I have not produced any document on record to show that I withdraw some amount from my saving account and saving account of my wife. I have not filed cheque of Rs.2,15,550/- on record.
It is not true, on 31.01.2001 I had not withdrawn PAGE 35 OF 55
-- 36 -- SA 07.2016 (J) - 13.03.odt Rs.60,000/- cash and not accompanied the cheque of Rs.2,15,550/- to get executed the registered Sale Deed. It is not true, I have no money for payment of balance consideration amount and charges of stamp and registration fees. It is not true, I never went to office of Sub-
registrar, Nagpur on 31.01.2001."
"It is not true, as per agreement amount of Rs.2,39,000/- was balance against me on 31.01.2001. It is not true that payment amount of Rs.5,250/- on 16.12.2000, Rs.7,200/- on 16.01.2001 and Rs.11,297/- on 31.01.2001 paid by defendant of his own amount. I have not produced any document on record to show that I made payment on 26.12.2000, 16.01.2001 and 31.01.2001 on behalf of defendant."
"I had paid amount Rs.11,000/- to defendant on 17.01.01 for payment of corporation tax. To that effect the defendant issued photocopy of the receipt to me. Its original is with defendant. I have not filed the receipt of payment of PAGE 36 OF 55
-- 37 -- SA 07.2016 (J) - 13.03.odt Rs.11,000/- on record. I had paid Rs.5,250/- and Rs.7,200/- to the defendant on 16.12.2000. But, the defendant did not issued the receipt of payment of said amount to me."
"It is not true, I had no money to pay balance consideration amount of Rs.2,39,000/- to the defendant."
"It is not true, I am deposing false in my affidavit regarding I was ready with balance consideration amount of RS.2,15,115/- to pay the defendant which was kept in my saving account no.11255 with the Central Bank of India, Branch Sewagram, District Wardha."
(48) The extracted portion of cross-examination of plaintiff (supra) will clearly indicate that availability of fund was seriously disputed by the defendant in the cross-examination of plaintiff. The plaintiff also admitted that he had not produced any documentary evidence regarding availability of funds. The plaintiff was fully aware that he was required to produce documentary evidence on record to establish availability of funds. However he failed to do so.
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(49) Perusal of the findings by the learned trial Court will
indicate that it has expressly held that the plaintiff could have filed documentary evidence on record to prove that he was equipped with amount of balance sale consideration to discharge his financial obligation under the contract which the plaintiff failed to do so. (50) Having held so, the learned trial Court held that plaintiff had proved his readiness and willingness merely because he has issued due diligence notice on 06/12/2000 in view of evidence of PW-2, who is the attesting witness to the agreement, who has in cross-examination stated that plaintiff was working as Administrative Officer in Medical College. Apart from this, the learned trial Court has not recorded any finding with respect to readiness i.e. financial capability to perform his part of contract. It will be pertinent to state that although finding is recorded with respect to employment of the plaintiff there is no observation in the judgment with respect to quantum of his salary. The evidence of plaintiff and PW-2 are also silent with respect to his monthly salary.
(51) Similarly, the learned First Appellate court, has also not recorded direct finding regarding availability of funds with the plaintiff. while dealing with the aspect of readiness and willingness. The learned first appellate Court has referred to the legal principles relating to PAGE 38 OF 55
-- 39 -- SA 07.2016 (J) - 13.03.odt readiness and willingness under Section 16(c) of the Specific Relief Act. The learned first appellate Court while discussing the said aspect recorded that the plaintiff was present in the office of Sub Registrar on 31/01/2001 for registration of the sale deed whereas the defendant was absent. It is held that the defendant was unable to obtain NOC for completing the sale transaction and therefore he did not remain present in the office of Sub-registrar for registration of sale deed on 31/01/2001. Reference is also made to letter dated 08/02/2001 and notice dated 28/03/2001 issued by the plaintiff to the defendant for registration of the sale deed.
(52) Both the learned Courts have completely failed to take into consideration the portion of cross-examination of plaintiff extracted above. Both the learned Courts while appreciating the evidence have missed out to take into consideration the aforesaid aspects which have come on record during the cross-examination of the plaintiff. The portion extracted above will indicate that availability of funds was seriously disputed by the defendant and that the plaintiff was put to sufficient notice about the need to produce documentary evidence regarding availability of funds to prove his readiness. Despite this, the plaintiff failed to produce relevant documents. Both the learned Courts have erred in not drawing adverse inference against the plaintiff in this regard.
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-- 40 -- SA 07.2016 (J) - 13.03.odt
(53) In the facts of the present case, were less than 10% of
the total sale consideration was paid by the plaintiff, in my considered opinion it was necessary for the plaintiff to lead positive evidence with respect to availability of funds which he has failed to do. (54) It must also be stated that one unexhibited document, purporting to be a photocopy of two pages of passbook of the plaintiff with MGINS Employees Co-operative Credit Society Ltd., was found in the record. Although this document is not exhibited, attention of learned advocates was drawn to this document. This document is filed on record by the plaintiff as document No.15 with the list of documents at Exhibit-4.
(55) Mr. Kotwal, the learned Advocate for the plaintiff argued that the plaintiff had placed document on record to indicate his financial capability. He states that the document clearly reveals availability of funds to the extent of Rs.2,75,000/- in the account of plaintiff which is sufficient to prove his financial capability to discharge financial obligation of making payment to the defendant in terms of the agreement of sale. Mr. Kotwal contends that unfortunately due to mistake of the learned advocate appearing before the learned Trial Court the document could not be exhibited by producing the original thereof and proving the same during the course of trial. He contends PAGE 40 OF 55
-- 41 -- SA 07.2016 (J) - 13.03.odt that on such procedural aspects, litigants go by the advise of their advocates. He argues that in the light of other available evidence on record, this document should be taken into consideration, at least to draw inference that plaintiff had bonafide produced document on record to show his financial capability.
(56) However, Mr. Khare, learned advocate for defendant argues that the said document cannot be looked into since it is not proved and exhibited. He also argues that the document is a mere photocopy and even original of the alleged passbook is not produced on record. He further argues that the document, on the face of it does not appear to be a genuine document. He refers to three entries regarding accumulation of interest in the passbook and the corresponding entries with respect to balance amount. The contention of Mr. Khare is that although three credit entries of interest are recorded in the document, the balance amount in the account is shown as Rs.2,75,000/- only. He contends that there is a serous doubt with respect to veracity of the document, in as much as, the balance amount must increase with every credit entry regarding accumulation of interest. Mr. Khare contends that therefore this document was not referred to the plaintiff during the course of his examination-in-chief.
(57) I have perused the document, although it is not
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-- 42 -- SA 07.2016 (J) - 13.03.odt
exhibited. I am in agreement with Mr. Khare that the document does not inspire confidence. There are three credit entries of interest in the passbook. However, there is no corresponding increase in the balance amount in the account corresponding to these credit entries. It is also true that the plaintiff did not file original of this document on record. It will not be safe to rely on this document even for limited purpose as contended by Mr. Kotwal. It will be pertinent to state that perusal of judgment by the learned Consumer Forum also does not indicate that this document was placed on record in the consumer case. (58) It is also relevant to note that the evidence of plaintiff is completely silent with respect to his monthly salary or income from other sources. There is no evidence to ascertain his income. Merely because he was working as Administrative Officer in a College that by itself will not mean that he had the means to make payment of balance sale consideration as per the agreement. The ratio in the case of P.Daivasigamani Vs. S. Sambandan reported in (2022) 14 SCC 793, is squarely applicable to the facts of the present case. In the said case, also merely on the basis of employment the contention was raised that readiness and willingness was proved, however, the Hon'ble Supreme Court rejected the contention since the documentary evidence in that regard was not produced. It will be pertinent to state that in the said case the plaintiffs had at least made averment about the PAGE 42 OF 55
-- 43 -- SA 07.2016 (J) - 13.03.odt annual income. In the case at hand, the plaint averments are completely silent with respect to annual income/salary of the plaintiff. A positive statement is made that funds were available in the account and account statement is not produced despite the fact that financial capability was specifically questioned in the written statement and also in the cross-examination. This is a fit case where adverse inference needs to be drawn against the plaintiff for nor producing documentary evidence in support of contentions with respect to availability of funds. The plaintiff has failed to prove his case of being ready to perform his part of the contract. The learned Courts have clearly erred in recording finding about the availability of funds i.e. readiness in favour of the plaintiff merely on the basis of correspondence made by him with respect to the sale transaction.
(59) The plaintiff's case as noted above, is specific that requisite amount was lying in the bank account from where it was transferred to his society account. Bank account statement is not produced on record. Photocopy of account of society is filed on record. Its original is not filed on record. The said document was not placed on record in the consumer case. The document as recorded above, is not free from suspicion. Likewise, even cheque of Rs.2,15,550/-, which the plaintiff was allegedly carrying to the office of sub-registrar is not filed. The plaintiff has also not made any statement with respect to his PAGE 43 OF 55
-- 44 -- SA 07.2016 (J) - 13.03.odt monthly salary. Thus, the present case is one of no evidence to prove readiness i.e., financial capability to perform his part of the contract by the plaintiff.
(60) The plaintiff contended that he had paid amount of Rs.23,450/- towards NMC taxes, electricity infrastructure charges and development charges. The defendant has denied receipt of the same. It is a case of word against word. In this context it must be stated that the defendant cannot lead negative evidence to prove that he did not receive the amount. It was for plaintiff to lead positive evidence that he had paid the amount. Perusal of evidence of plaintiff will demonstrate that according to him defendant did not issue receipt for development charges and electricity infrastructure charges. This implies that according to the plaintiff he paid this amount to the defendant who in turn paid the same to the society. However, in the consumer case, the plaintiff has filed affidavit of Secretary of society to contend that the amount was directly paid by the plaintiff to the society. Thus, there is an inherent contradiction in the case of plaintiff, in his evidence in the civil suit and in the consumer case.
(61) It will also be appropriate to refer to pleadings in paragraph 8 of the plaint. The plaintiff has stated that he has paid amount of Rs.11,000/- to defendant at Wardha in cash for payment of PAGE 44 OF 55
-- 45 -- SA 07.2016 (J) - 13.03.odt NMC taxes. He has stated in paragraph 5 of his examination-in-chief that amount of Rs.11,000/- was paid to defendant in cash at his residential house at Wardha for making payment of NMC taxes. In this regard it will be appropriate to refer to his cross-examination. The plaintiff has stated in paragraph 7 of cross-examination that amount of Rs.11,000/- was paid by him to defendant on 17.01.2001 and photocopy of tax receipt was given by defendant to him. It must be stated that undisputedly NMC tax was paid by defendant on 31.01.2001 i.e., the date stipulated for execution of sale deed. Admittedly, the plaintiff and defendant did not meet on 31.01.2001. It is also apparent that parties did not meet each other in person after 31.01.2001. Yet the plaintiff claims that photocopy of NMC tax receipt was given to him by the defendant. The version of plaintiff regarding payment of Rs.11,000/- to defendant for clearing NMC taxes is not acceptable.
(62) Perusal of pleadings and evidence of plaintiff will demonstrate that he had pleaded that he was ready and willing to pay balance amount of Rs.2,15,550/- to the defendant in order to obtain sale deed with respect to the suit property. The plaintiff claims that this amount was paid by him to the defendant and that the same was required to be deducted from the balance sale consideration of Rs.2,39,000/-. The plaintiff has not stated that he would be ready to PAGE 45 OF 55
-- 46 -- SA 07.2016 (J) - 13.03.odt pay the said amount of Rs.24,450/-, if payment of the same is not proved. The said amount is around 8.75% of the total agreed sale consideration. This also is a relevant factor which will demonstrate that the plaintiff has failed to make out a case of being ready and willing to perform his part of contract.
(63) The learned First Appellate Court has rightly disbelieved the evidence of plaintiff with respect to payment of Rs.24,450/-. However, the learned First Appellate Court has erred in decree for specific performance by directing the plaintiff to pay amount of Rs.2,39,000/- instead of Rs.2,15,550/- as claimed by him. In this regard, the learned First Appellate Court ought to have appreciated that this is not a case where the plaintiff has merely failed to prove payment of Rs.24,450/-. The material on record will rather indicate inconsistent stands taken by the plaintiff with respect to payment of said amount. This aspect should have been taken into consideration while dealing with appeal arising out of suit for specific performance, in the light of legal position that decree for specific performance is a matter of discretion of the Court and not right of the plaintiff. (64) The plaintiff contends that he was present in the office of sub-registrar throughout the day on 31/01/2001 for registration of sale deed. Perusal of plaint and examination in chief will demonstrate that PAGE 46 OF 55
-- 47 -- SA 07.2016 (J) - 13.03.odt he has not mentioned that he was present before which office of sub- registrar. The plaintiff has all throughout used the word 'concerned' sub-registrar. It it also necessary to state that questions in this regard were put to him in cross-examination where he could not specify the address of the sub-registrar office where he was allegedly present. This fact assumes significance since there were/are several offices of Sub- registrars at Nagpur situated at different addresses. Relevant portion of the cross-examination in this regard is extracted herein-below:-
"I do not know whether sub-registrar office is situated in the area of Tajbag, Sakkardara, Nagpur. I do not know whether defendant was present at Mahakalkar Bhawant Sub-registrar office on 31.01.2001 during office hours or not. It is not true, I never went in Sub-registrar office Nagpur because I was not having balance consideration of amount to get execute registered sale deed from defendant"
(65) All these aspects have completely skipped the attention of both the learned Courts. However, both the learned Courts have accepted the case of plaintiff that he was present in the office of Sub- registrar on 31.01.2001 for execution and registration of sale deed. The learned First Appellate Court ought to have appreciated that PAGE 47 OF 55
-- 48 -- SA 07.2016 (J) - 13.03.odt presence of plaintiff in the office of Sub-registrar on the relevant date was doubtful since the plaintiff admittedly did not prepare draft of the sale deed, did not state that parties had decided to remain present before which sub-registrar for execution and registration of sale deed, he could not state the address of sub-registrar office where he was present to establish his presence in the office of sub-registrar on 31.01.2001 as alleged by him.
(66) The learned Courts have placed reliance on letter dated 08.02.2001 (exhibit 35) issued by plaintiff to defendant. This letter though stated to be dispatched through registered post, the plaintiff has filed posting certificate (exhibit 36) on record with a view to prove dispatch of the said letter. The said letter is not sent by registered post although statement about letter being dispatched through registered post is made in the examination in chief. As regards, this letter dated 08.02.2001 which is stated to be issued under certificate of posting, although the certificate of posting is marked as Exhibit 36, the learned First Appellate Court ought not have accepted the contention of plaintiff regarding dispatch of the letter on 08.02.2001. The learned First Appellate Court has not taken into consideration the law laid down by the Hon'ble Supreme Court doubting veracity of certificates of posting in the cases of Shivkumar and ors. Vs. State of Haryana reported in (1994) 4 SCC 445 and Gadakhyashwantrao Kankarrao Vs. PAGE 48 OF 55
-- 49 -- SA 07.2016 (J) - 13.03.odt Balasaheb Vikhe Patil, reported in AIR 1994 SC 678 which were cited by the defendant during the course of hearing of the appeal. Both these judgments hold that it is not safe to rely on certificates of posting as postal seal can easily be obtained by any person at any time. The learned First Appellate Court has erred in law in disregarding the contention of the defendant with respect to the certificate of posting on the ground that it was an exhibited document. The learned Court failed to appreciate that exhibiting a document and its evidentiary value are two different aspects. Even if the certificate of posting is exhibited, the reliability thereof ought to have been considered by the learned First Appellate Court. It must however be stated that the plaintiff has also stated about issuance of notice for specific performance dated 28.03.2001. It must also be stated that the version of defendant with respect to telephonic calls is also not free from blemish. The defendant tried to contend that he did not have any telephonic connection on 31.01.2001, although he admitted in cross examination that it was then proved that the telephone connection was in the name of his son. (67) It will also be appropriate to state the plaintiff had stated that he had purchased a stamp paper from the office of sub-registrar on 31.01.2001. This statement is made obviously to establish presence in the office of sub-registrar on 31.01.2001 i.e., the scheduled date for execution of sale deed. In the cross-examination he admitted that PAGE 49 OF 55
-- 50 -- SA 07.2016 (J) - 13.03.odt stamp paper was not filed on record. However, perusal of judgment of consumer forum reveals that stamp paper was filed on record in the consumer case. The version of plaintiff about purchasing stamp paper can be accepted. However presence in the office of sub-registrar does not by itself prove his readiness to perform his part of contract. (68) It will again be appropriate to refer to judgment of this Court in the case of Girish Vinodchandra Dhruva where it is held that presence in the office of Sub-registrar cannot be held as a circumstance to infer readiness and willingness unless the plaintiff establishes that steps for completing the sale transaction such as preparation of draft sale deed, getting stamp duty ascertained etc., is done(paragraphs 60 and 61). The facts of the present case bear striking similarity with the aforesaid case. It needs to be reemphasized that in the case of Girish Dhruva as against balance consideration of Rs.39,24,000/-, plaintiff had proved availability of funds to the extent of Rs.26,53,384/-. The plaintiff in the said case failed to establish sanction of bank loan for the balance amount. The High Court held that readiness and willingness was not proved (paragraphs 54 to 58). In the present case, there is no evidence at all with respect to availability of any amount. The ratio of the said judgment will be applicable with greater force in the facts of the present case.
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(69) Both the learned Courts have held that the defendant
failed to discharge his contractual obligations of obtaining NOCs from NMC, NIT and the concerned co-operative society. However, positive finding with respect to need of such NOC is not recorded by either Court. Even otherwise in view of legal position as settled by Man kaur and Girish Vinodchandra Dhruva, breach of agreement or failure to discharge contractual obligations by the defendant will not absolve the plaintiff to prove readiness and willingness which, in the present case plaintiff has failed to do.
(70) It must be stated that the plaintiff had come up with a case that he had issued letter dated 08.02.2001 to the defendant since the defendant allegedly did not turn up for execution of sale deed in terms of the agreement. He also issued notice for specific performance on 28.03.2001. He filed consumer complaint in the year 2001 itself and shortly after the appeal preferred by the defendant was allowed by the learned State Commission, the plaintiff had filed the suit for specific performance of contract. Whereas, all these facts indicate plaintiff's eagerness, this evidence, when tested in the light of law laid down in the cases of Ritu Saxena, Man Kaur, P. Daivasigamani, Girish Dhruva and several other decisions on the point, leads to conclusion that plaintiff failed to prove readiness to perform his part of contract since he did not produce any documentary evidence to prove PAGE 51 OF 55
-- 52 -- SA 07.2016 (J) - 13.03.odt availability of funds, despite a very clear and specific challenge by the defendant with respect to availability of funds. (71) In view of the aforesaid it needs to be held that findings by both the learned Courts with respect to readiness, though concurrent, are not supported by any evidence on record. The substantial question of law No.3 with respect to readiness and willingness deserves to be answered against the plaintiff/respondent and in favour of the appellant/ defendant by holding that plaintiff has failed to prove his readiness to perform his part of contract. SUBSTANTIAL QUESTION OF LAW NO.1
1. In the absence of relief seeking declaration that the termination of the suit agreement is illegal, was the suit for specific performance maintainable ?
(72) The defendant claims that agreement dated 24.10.2000 is terminated by him vide notice dated 29.03.2001 and the suit is not maintainable on the ground that this termination notice is not challenged by the plaintiff. The three clauses in the agreement quoted above will demonstrate that the agreement by itself does not authorize any party to unilaterally terminate the same. Perusal of the notice dated 29.03.2001 issued by the defendant will also demonstrate that the defendant has not terminated the agreement, but has stated that PAGE 52 OF 55
-- 53 -- SA 07.2016 (J) - 13.03.odt the agreement stood terminated as per the terms and conditions incorporated therein. Thus, the case involves interpretation of the agreement. Since the defendant had not terminated the agreement the question which arises for consideration is not with respect to maintainability of the suit in the absence of challenge to termination. The question that arises is with respect to interpretation of agreement. Having regard to the clauses in the agreement and the contents of notice dated 29.03.2001, this Court is in agreement with Mr. Kotwal that the defendant has not terminated the agreement, but has provided his interpretation with respect to terms and conditions of the agreement to claim that, the same stood terminated on 31.01.2001. The stand taken by the defendant in the reply notice dated 11.04.2001, issued in response to plaintiff's notice for specific performance of contract is also the same. The substantial question of law, therefore does not arise for consideration in the facts of the present case. (73) Second Appeal is partly allowed in the following terms:-
I. Judgment and decree dated 02.09.2015 passed by the learned Ad-hoc District Judge 3 Nagpur in Regular Civil Appeal NO.255 of 2014 and judgment and decree dated 28.04.2014 passed by the learned 8th Joint Civil Judge, Junior Division, PAGE 53 OF 55
-- 54 -- SA 07.2016 (J) - 13.03.odt Nagpur in Regular Civil Suit No.977 of 2012 (old Special Civil Suit No.358 of 2006) are quashed and set aside.
II. Regular Civil Suit No.977 of 2012 (old Special Civil Suit No.358 of 2006) decided by the learned 8th Joint Civil Judge, Junior Division, Nagpur is partly allowed by directing the defendant/appellant herein to refund amount of Rs.25,000/- to the plaintiff/respondent herein with interest at the rate of 9% per anum from the date of agreement i.e., 24.10.2000 till the date of payment of the said amount.
III. Parties to bear their own costs. (74) At this stage, Mr. Kotwal, learned advocate for the
respondent states that the respondent intends to challenge this judgment before the Hon'ble Supreme Court. He prays that for some reasonable period the appellant/defendant should be restrained from alienating the suit property. Although the prayer is opposed, in the considered opinion of this Court, two concurrent decrees for specific performance of contract are reversed in the present Second Appeal and PAGE 54 OF 55
-- 55 -- SA 07.2016 (J) - 13.03.odt as such it will be appropriate to direct the appellant/defendant not to alienate the suit property and to maintain status-quo with respect to possession of the same till 30.06.2026.
[ ROHIT W. JOSHI, J. ] KOLHE/TANMAY PAGE 55 OF 55