Karnataka High Court
Gajanan S/O Chintamanisa Kabade vs Digambar S/O Jagannath Raykar on 1 June, 2012
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE I IIGI I COURT OF' KARNATAKA
CIRCUIT BENCH AT DIIARWAD
DATEI) TI uS THE 1 I)AY OF' JINE 2012
BEFORE
TIlE Il0\BLE MR3USTICE SIBHASH B. ADI
R. F.A. No.3
RFA No,J 2/20l0:
BETWEEN
Gajanan. S/o ('hintamai nsa Kabade,
Aged 42 years. 0cc: Business.
R/o Bakale Galli, Flubli.
APPELLANT
(BY SRI Heged. Neeralgi & Patil. Aiiant H. Hegdc. KS. Patil. Jeevan J.
Neeralgi, ADVS.)
AND
1, Digambar, S/o Jagannath Raykar,
Aged 39 vear. 0cc: Business.
R/o I 1A. Hastinapur Layout.
Berigeri Road, Hubli,
2 Smt. Geeta. W/o Digambar Raykar,
Age' 29 years, 0cc: Household.
R/o 1 1A. Hastinaptir Lavoul
Bengcri Road. Hubli.
3 Sail Sn sheela. W/ a (ii in i lingappa
Mahabalashett\, Aged 58 years
0cc, Flousewifi-'. H/n 5 1/42. 22 Main.
3 ( ross. Vijax anagar. Baiuiaior
I, Sitresli K. Piabliu,
e Major e I ro1cssion
R/o Plot No 29 Madhiira Lsia
Kesinvaptir. Hiib!i,
Dist Dhanvad
Sri Ma1*$; \X o1-vn V1\ iiiR
ri K ikarn It I \ K
R . K
.
rcl
I
ThIS RFA IS FILED U/S 96 OF ('PC AGAINST ThE JUDGMENT
AND DECREE DATED 26.07.2010 PASSED IN O.S.NO. 164/2007 ON
ThE FILE OF ThE PRL. SENIOR CML JUDGE, IIITBU. DECREEING
ThE SUIT FOR SPECIFIC PERFORMANCE OF CONTRA('T AND FOR
RECOVERY OF AMOUNT PAIl) AND DAMAGES AN!)
COMPENSATION.
RFA No.30971201Q:
BETWEEN
1. Diganihar.S/oJagannath Raykar.
Aged 40 years. 0cc: Business.
2. Smt. Geeta, W/o Digambar Raykar,
Age: 30 years. 0cc: Househokl WORK,
Both are R/o 1 1A, Hastinapur Layout
Bengeri Road, Ilubil.
APPELLANTS
(BY SRI Mahesh Wodeyar, ADVJ
AND
I. Gajanan. S/o Chintarnani a
Chintamanisa Kabade.
Aged 42 years. 0cc: BusIness.
R/o Bakale GalL Hubil.
2 Sint. Susheela. V/o Gurulingappa
Mahahalashettv Aged: 59 years.
0cc: Housewife. R/o 51/42. 22s1n1 Marn
3" Cross, Vijayanagar I3angalore
RESPONDT 14Th
(ffiSMHede Neeiilpi&PiuI Adi lorRI R' st-ned)
IIUSRI %ISIILEDU S%OF (PC 4GAI'iS1 THE.fl DGML%I
ND DFCRE1t DAEIED 2607 2010 PASSED IN C) S NO 164/200, 01.
THE FTLF OF TIlE PR! SFNIOR (WIt JI DCE m lilA DEC REF NC
11ff St'Il [OR Sl'F C IFI( PERFORMAN( 1. 01 (OVrRA 'F AND 1 OR
xl C O ERS i iF WI')( VI PAID \D D MA6FS V\D
THESE RFAs COMING ON FOR DICTATING JUDGMENT. THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are against the judgment and decree in O.S.No. 164/2007 dated 26'' July 2010 on the Iile of Principal Senior Civil Judge, Hubli,
2. RF.A.No.31 12/2010 is by the plaintilT.
RF.A.No.3097/2010 is by the defendant Nos. 1 and 2.
3. Parties will be referred to as per their ranking in the trial court.
4. Suit is one for specific performance of the agreement of sale dated 6.8.2005 executed by defendant Nos, 1 and 2 in favour of the plaintiff. The said suit has been partly decreed thteralla directing the defendant Nos. 1 and 2 to pay an amount of Rs.9.00000/ with interest @ 18% per annum from 6.8.2005 Le.. date of agreement till realization.
5. Plaintiff has flied the appeal against the rejection of decree for specific performance of the contract whereas, the defendant. Nos. I and 2 have filed the appeal, questioning the par ial deert. e dh eti ri tht in t o a Us 9 0 000 / H i y rr U .18% pa. from the date of agreement.
44
6. Case of the plaintiff as pleaded is that, the defendant Nos. 1 and 2 had informed the property brokers that the suit schedule properties bearing C'IS No.880-B, plot No.33 measuring 1500 sq.ft., (XIS No.880-B, plot No.32 measuring 1500 sq.ft. is available for sale. Hence. plaintiff approached the defendants with a view to purchase the suit schedule property. After negotiating with defendant Nos. 1 and 2, plaintiff offered to purchase the suit schedule property for Rs.8,00.000/-, accordingly, defendants received Rs.6,00,000/- as part consideration and executed the sale agreement The said sale agreement was duly registered before the Sub-Registrar's office. It was agreed that, balance of sale consideration of Rs.2.00,000/- should be paid before the Sub-Registrar on the date of execution of the registered sale deed. Three months' time was fixed for execution of registered sale deed. However, the plaintiff was short of funds to get the sale deed within the time stipulated under the said agreement. and was expecting large amount in short time, however, defendant Nos. 1 and 2 were unwilling to extend the time unless the plaintiff pays the balance amount of Rs.3.O0.000/- instead of Rs.2,00,000/- balance sale consideration. In view of the same, the said agreement was cancelled, the cancellation deed of agreement came to be executed on 18.1.2005. Defendants repaid Rs.6.00.000/ received as earnest money advanced under the agreement. The cancellation deed was also registered.
7. Though defendants I and 2 through brokers advertised the suit property for sale as there were no purchasers. in the meanwhile, the plaintiff received the amount which he was expecting, and was in a position to pay the sale considerat ion amount immediately, and ofYered to purchase the suit property, defendant Nos. 1 and 2 quoted very high price of Rs. 11 ,00,000/, however, the plaintiff agreed to purchase and accordingly, he entered into a fresh agreement of sale on 6.8.2005. and on the date of agreement, plaintiiY paid Rs.9,00,000/- as advance amount and the balance of Rs,2,00.000/- was to be paid at the time of the execution and registration of' the sale deed, Defendants 1 and 2 had agreed to execute the sale deed as and when the plaintiff call upon them to execute the sale deed, Plaintiff was ready and villiru.t to perform his part of contract.
8. At the time of agreement.. the plaintiff did not issue any advertisement as, the defendant Nos. I and. 2 assured of the clear title to the suIt property. As the defdndants dela.yed the execution and registration of the sale deed, hence, pit I.nti.ff was '-a.
6'C forced to issue legal notice dated 10.3.2007, calling upon the defendants-i and 2 to execute the sale deed, however, the defendants-i and 2 caused a reply interalia denying the agreement and also claiming that the suit property has been already sold in favour of defendant No.3. It shook the conscious of the plaintilL to know that the defendant Nos. 1 and 2 have executed the sale deed dated 31.3.2006 in favour of defendant No.3 only for a sum of Rs.2.06,000/- and Rs.2,30,000/- under two separate sale deeds. It is also alleged that, the defendant No.3 was not a bonafide purchaser, as he has not made any enquiry. Hence, plaintiff alleged that, defendant Nos. 1 to 3 are Jointly responsible to execute the registered sale deed in his favour. Accordingly, he filed the present suit
9. Defendant Nos. 1 and 2 on appearance. ified their written statement, admitting that they are the owners of the suit schedule property, admitting that, they had executed an agreement of sale In favour of the plaintiff on 15.10.2004 for sale consideration of Rs.8,00,000/- and receipt of Rs.6,00,000/-, further admitting that the said sale agreement was cancelled by cancellation deed dated 18.1.2005. However, they denied the execution of the agreement dated 6.8.2005 and the receipt of Rs.9.00.000/- and in turn, It is specifically contended that.
(',At 7 plaintiff arid defendant Nos. 1 and 2 were well acquainted with each other. Defendants whenever they require money for their family necessity. they used to receive hand-loan from the plaintiff and repay honestly and sincerely. At the time of advancing hand-loan, the plaintiff used to obtain signatures on blank bond paper and blank cheques towards security for the amount paid to them. Defendants-i and 2 whenever they had borrowed money from the plaintiff, they had sincerely repaid the same. However, plaintiff by misusing the blank signed documents (bond papers) has created a false document styled as agreement of sale with an intention to cause wrongful loss of the defendant Nos. i and 2 for his wrongful gain and has filed false and vexatious suit against the defendants, They denied that. the plaintiff was always ready and willing to perform his part of contract. They also denied that, they have executed the alleged agreement of sale dated 6.8.2005.
10. The tria' court on the basis of ihe pleadings has framed the following issues:
I . Whether the Uluin (i/I proves thnt the delhndai Us-i and 2 agreed to sell the suit schedule properties 8 to him tar Rs.8.00.000/- and they have received I?s.6,00.000/- as part qJ consideration on 15.10.2004 and subsequently this agreement was cancelled by mutual consent on 18.1.2005 (hid the de/'ndant Nos. 1 and 2 repaid the arnow ii receit 'ed by them?
2. Whether the plaintfff proves that the dejendants again agreed to sell the suit schedule properties as men (toned in pardi 4 of the plaint arid they have executed new agreement on 6.8.2005 pertaining to the suit properties jbr a consideration of Rs. 11,00.000/- and theij have received Rs. 9,00,000/ on 6.8.2005?
-
3. Whether the plaintiff proves that he is ready and willing to perform his part of contract?
4. Whether the defendants 1 and 2 prove that the plain qff has created an agreement by misusing the blank signed documents as stated in the written statement?
5. Is the plaintif entitled fOr the relief of specific pebrmance qf contract as prayed?
OR IN THE ALTERNATIVE Whether the plaintiff is e,i(itled fOr re,thnd oJ cimounl paid by him as stated in the plaint and also for damages and compensation of Rs. 2,00.000/-?
6. What order or decree?
ii. Before the trial court, plaintiff got himself examined as PW--i, and got marked ExsP.i to P13. On the defendants' side, defendant o. I pt hiinselt examined as l)W I, i\o documents 9 4
12. The trial court on appreciation of the evidence on record held that the plaintiff has proved that the defendant Nos. 1 and 2 have agreed to sell the suit schedule property for consideration of Rs.8,00,000/- and had received Rs.6,00,000/- as part consideration under the sale agreement dated 15.10.2004. Subsequently. the said agreement was cancelled by mutual consent on 18.1.2005.
13. Plaintiff has proved that the defendants again entered into an agreement of sale of the suit schedule property as mentioned in paragraph-4 of the plaint and they have executed fresh agreement dated 6.8.2005 and have received Rs.9,00000/- as an advance amount.
14. Plaintiff has proved that. he is ready and willing to perform his part of contract.
15. However, the trial court held that, the defendant Nos. 1 and 2 have already sold the property to defendant No.3 and held that the plaintiff is not entitled for decree for specific performance, accordingly. held that the plaintiff is entitled for refund of earnest money with interest from the date of agreement till realization.
10
16. Srl.Anant RI-legde. learned Counsel appearing for the plaintiff submitted that. Insofar as Ex.P2, first registered agreement of sale dated 15.10.2004 and Ex.P3 - the cancellation deed of said agreement dated 18.1.2005 are not In dispute. Plaintiff has specifically pleaded that, he got the amount Immediately after the cancellation. Since the plaintiff had received amount Immediately after the cancellation of the earlier agreement apart from receipt of Rs.6,00,000/- under the cancellation of earlier agreement, he offered to purchase the suit property. The defendants, who were In search of buyer, they agreed to sell the property by entering Into freseh agreement of sale as per Ex.P1. To prove the agreement of sale, plaintiff got himself examined as PW- 1 and In his evidence, has stated that he received the amount after the cancellation of earlier agreement, and thereafter agreed to purchase the suit property for sale consideration of Rs. 11,00,000/- and paid Rs.9,00,000/- as advance amount and the remaining balance amount was to be paid at the time of registration of the sale deed.
17. Since the defendants-i and 2 had assured of the clear title to the suit property, he did not Issue any public notice. Though the plaintiff Insisted for publication of notice, but the 4,' II defendants objected to the same. Plaintiff was always ready and willing to perlorm his part of contract, however, the defendant Nos. 1 and 2 postponed the same. In turn, the defendant Nos. 1 and 2 in their reply alleged that they have sold the property to defendant No.3 on 31 .3.2006.
18. Learned Counsel submitted that. the sale deed in favour of defendant No.3 is executed after the sale agreement in favour of plaintiff, hence, the defendant No.3 is not a bonafide purchaser.
19. To prove the agreement of sale, learned Counsel relied on Ex.P1 and pointed out that, under this agreement. time was not treated as an essence of the contract. when a substantial sale consideration has been paid under the agreement. proof of ready and willingness does not become relevant. Even then, the plaintiff has issued the legal notice to defendants I and 2 within three years of the agreement and fIled the suit, as such, the plaintiff havin proved that he had parted Rs.9.00,000/- out of Es, ii ,00,000[ sale consideration arid having proved that he was ready a.nd willing to perform his part of cont.ract by issul.ng ]egai notice withiii three years from the date of adreemerit and 12 also filing a suit. And the agreement of sale as per Ex.P1 having been proved, the plaintilt has discharged his burden of proving the agreement of sale and also the ready and willingness on his parL This pleading proves that the signature on Ex.Pl is of the defendant Nos. 1 and 2 and they have adrriiuecl it. He further relied on the evidence of defendant No. I and pointed out that, even in the examinationinchief at para--9, defendant No.1 has stated that, plaintiff used to collect the signed blank cheques and stamp papers and green sheets, The pleadings and the evidence of the defendants 1 and 2 proves the signature on the Ex.P1. If this pleading and the evidence of the defendant No.1 is accepted, it proves that the defendants have signed the agreement. He further submitted that, the defendant Nos. 1 and 2 were searching for buyers to sell the suit property, as earlier both the defendants had entered into an agreement with the plaintjff as per Ex.P2, which was cancelled as per Ex. P3. Thus, the intention of the defendants- 1 and 2 to sell the suit property and entering into an agreement of sale as per ExP1 is but natural. The defendants-- and 2 havinL admitted the siLrIature on ExPi the transaction of agreement to sell is proved. 13 r
20. To prove that the plaintiff was ready and willing to perform his part of contract under the agreement, plaintiff had paid Rs.9,00,000/-. Further. balance.of consideration was only Rs.2,00,000/-, which was only a small amount. In the pleading as well as In the evidence, plaintiff has pleaded and averred that he was always ready and willing to perform his part of contract. Further, he has also stated that, he had ified Income-tax returns, showing the payment of Rs.9,00,000/- towards the advance sale consideration. Further, no time Is fixed under the agreement. Parties had never treated the time as essence of the contract. Plaintiff has ified the suit within three years of the date of the agreement. as such, his ready and willingness to perform his part of contract Is fully pleaded and proved.
21. He further submitted that, the case of the defendant Nos. 1 and 2 that the plaintiff was lending money to them has not been proved by the defendants by any cogent evidence. If the signature on the agreement Is admitted, to the contrary If there Is no evidence as to the money lending by the plaintiff, the agreement deemed to have been proved.
--t 14
22. To exercise the discretionary power, to order for refund of the advance amount. there must be an evidence led by the parties and court must give a finding that there exists standards to ascertain the act ual damage. only in such cases. in consideration of other circumstances, the Court. can exercise the discretionary power and not otherwise. In this case, there is no evidence on record as to how the damage could he calculated to invoke the provisions of Section 10 of the Specific Relief Act, to order for refund. He submitted thai. when the plaintiff has proved the agreement. ready and willingness arid there exists no standards to measure the damages, in such cases, the court is found to grant decree for specific performance. However, the trial court has failed to exercise the power vested in it and has committed an error in ordering refund of earnest money. He further submitted thai, the trial court, only on the ground that, the defenc1ants 1 and 2 have sold the suit property to the defendant No.3 has invoked the discretionary power to refuse the decree for specific performance of the contract, This f.inding is per se erroneous.
23. He relied on the ju.dgment reported in AIR 2005 SC 3503 an the mait or ol ANIGLASE YOHANNAN us RAMLATHA AND OTHERS to subm.it that, wh.n the plaintiff ha.s pleaded .in 15 his plaint that he is ready and willing to perform his part of contract and he had unblemished conduct and has enforced the contract immediately after expirv of the time. the decree for specific relief should not be denied He also relied on a judgment reported in AIR 2000 SC 2408 in the matter of MOTILAL JAIN -vs- SMT.RAMDASI DEW AND OTHERS in support of his contention that, he was always ready and willing to perform his part of contract, that in case of ready and willingness, there need not be a specific phraseolo' or language. it is the conduct of the party. Further, relied on another judgment of the Apex Court reported in AIR 2002 SC 2385 in the matter of AMARIA ANGELENA D.? AND OTHERS - vs A.G.BALKIS BEE. If no plea of specilic hardship, no issue is framed. plea cannot be entertained at the appellate stage. Ltarned Counsel strongly relied on two judgments viz, (ii AIR 1997 SC 463 in the matter of Panditrang Ganpat Tcmawade --vs Guiipat Bhairu Kadam and others &. (2) AIR 2000 SC 2408 (si tpra,1.
24. Ott the basis of th..se submissions, learned Counsel ibr the plaintiff submitted diat the udtincnt to the extent of denial of decr€.e fOr specific. perfo.rmanee is required to be set [I I i!i I Ii ji 17 LLt([f;H jIi5 1;r .' Rwj Km kin rIr't!'i I Jr MrS Ij itILI[t1I iIrLiIj;iiII I iI itiI 4 tIt5 17
26. It is the case of the plaintiff himself in the pleading as well as in the evidence that he had entered into an agreement with the defendant Nos. I and 2 as per Ex.P2 dated 15.10.2004. Now under Ex.P2, according to the plaintiff, sale consideration was fixed at Rs.8,00,000/ and it is also admitted by the plaintiff that, said agreement of sale was not materialized and plaintiff got a1e agreement cancelled as per Ex.P3 dated 18.1.2005. He relied on Ex.P3 and pointed out that, in Ex,P3 plaintiff has admitted that, he was unable to pay the balance sale consideration of Rs.2,00,000/ and at his volition, he got the agreement cancelled. The cancellation deed is dated 18.1.2005, between 18.1.2005 and 6.8.2005 that within seven months, plaintiff enters into an agreement of sale of the veiy same property for a consideration of Re, 11,00.000/ that is agreeing to pay three lakhs more. It is not in dispute that the plaintiff himself got cancelled the earlier agreement on the ground that, he is unable to pay the balance of Rs.2,00,000/ There is nothing on record to show how the plaintiff within seven months acquired the amount and why he aitreed to pay Re J 0000Q/ more, when he was unable to pay the balance of Re 2 000O0/ 11 mdv shone that the plaintiff has used the 18
4. signed blank stamp papers taken as security for the earlier transaction. to create the alleged agreement of sale.
27. The trial court has relied on alleged income-tax returns to hold that the plaintiff had paid Rs.900.000/-, but no such income tax returns were marked in the evidence. He referred to those returns, which are relied by the trial court and submitted that, even according to the returns filed for the year 2005-06, the plaintiff has shown his income at Rs. 1.23,405/-. As regard to the statements produced, payment of Rs.9,00,000/- he had not produced any evidence as to when the returns were filed, In turn, the saral form for filing the returns is dated 30th March 2007 i.e., after the sale deed was executed In favour of defendant No.3. The said form also does not show the payment of Rs.9.00,000/- to the defendant Nos. 1 and 2. The assets column, which relates to payment of Rs.9.00.000/-, is not supported by any returns.
28. Learned Counsel further relied on the evidence of plaintiff -- PW- 1 and pointed out from his evidence that. in the cross-examination. PW- I has admitted that. he had made entries in the accounts books for having paid the amount and he has got the ledger books of every year. lie is an income-tax 19 assessee, He knows that, any amount more than Rs2O,OOOL is received, it has to be paid by way of cheque. The plaintiff has admitted that he has made entries in the books and has no difficulty to produce it, However, plaintiff has not produced either the ledger books of accounts or the incometax returns or any document to support his plea that, he had made the payment of Rs.9,00,000/- under the agreement or he had shown such an amount in his books of accounts and having admitted that, he files the income tax returns, he has not produced the same in the evidence. Hence, the failure on the part of the plaintiff to produce relevant document in the evidence, clearly establishes that the plaintiff had not made any payment and even the unmarked incometax returns have come into existence only after the defendant Nos, 1 and 2 sold the suit schedule property to defendant No3 and they are created only after the sale deed was executed in favour of defendant No3 Le, just before 19 days of the filing of the suit, It only shows that the plaintiff after coming to know that the defendant Nos. 1 and 2 have sold the property in favour of defendai.t No3 by misusing the signature on the blank stamp paper, got the legal notice issued and ified the returns before tbe incometax authority to create. a. docurn.ent to suit his pleadings. 20
The trial court in its finding on the issue, as to whether the plaintiff has proved the agreement. only on the ground that. ExP1 is a typed copy, held that, it is acceptable. This finding is erroneous, just because the agreement is typed. it cannot be presumed to be proved.
Further, the trial court has relied on the returns of income-tax for the assessment years 2006-07. 2007-08 and 2008-09, but no such documents are produced in the evidence nor they were marked. Even otherwise, such documents have come into existence after the sale deed in favour of defendant No.3 and just before 19 days of the filing of the suit. The trial court, without looking into the nature and content of the said documents, without looking into whether such documents are admissible or not, and without they being part of evidence, further without there being any other evidence of proof ot payment of Rs,9.00.000/ still the trial court holds that the agreement arid payment is prov d which is not only ontran to lire tviden c hut also erroneous findin Learned ('ounsel further 'uhinitted that, the burden of pr vu g tl c gi merit ur p1 i tiff u the laintiff ha 21 0-A failed to prove the agreement, and alleged payment of advance amount.
33. He further submitted that, apart from this, the plaintiff Is required to prove that he was ready and willing to perform his part of contract. To support his contention, he relied on Ex.P1 and pointed out from page-2 last para wherein, It shows that the vendors wili come and execute the sale deed as and when the plaintiff calls upon them to execute the sale deed. This condition shows that, there was no obligation on the part of defendant Nos. 1 and 2 except executing the sale deed as and when the plaintiff call upon them. Nothing was required to be done by the defendant Nos.l and 2. It was only the plaintiff, who was required to perform his part of contract I.e.. to pay the balance of sale consideration and get the sale deed, however, at no point of time, the plaintiff had made any effort to call upon the defendants to execute the sale deed. Thus, It also shows that the plaintiff was never ready and willing to perform his part of contract, In turn, as an after thought after the sale deed was executed by the defendants-i and 2 to defendant No.3, he Issues the legal notice. He further submitted that, the plaintiff has neither proved the agreement nor proved that he was always ready and willing to perform his part of the contract.
33. Even otherwise also, the decree for specific perfonnance being discretionary relief when, the court finds existence of the agreement is doubtful, court finds that, by ranting the decree for specific performance of the contract, Would cause more damage to the defendar Nos. 1 and 2 rather than the plaintiff, the Court can refuse to rant the decree for specific performance and order for refund of earnest money paid under the agreement.
3 With the above submission, the learned Counsel for defendant Nos. 1 and 2 contended that, the finding of the trial court that there is an agreement is a perverse finding based on no evidence and the findings of the trial court that the earnest money by way of advance amount is paid, is not supported by any evidence. The trial court should not have looked into the documents, which were not marked, Hence, the entire findings of the trial court on the issue of prool of the aieement and ready and willingness being contrary to the evidence, hence, same is not sustainable in law. Therefore, he submitted that. the said partial decree passed n favour of the plain tiff is required to be set aside, 23 3S Learned Counsel appearing for the respondent No.4 submitted that, he is a bonafide purchaser, he had no knowledge of the earlier alleged agreement and as such, in such case if the decree is passed against him, it will cause great hardship and further, there is no relief sought against the defendant No.3 or respondent No.4 nor any issue is framed against them, as such, respondent No.4 did not file written statement and led the evidence.
3 C In the light of the above submissions, the points that arise for consideration in these appeals are:
1. Whether the trial court was justfied in rejecting the suitfor specic peiformance of the contract?
2. Whether the trial court was justified in directing the defendant Nos, 1 and 2 to refund the earnest money along with the interest?
3. To what relief?
37, The suit Is one for specific performance of contract. In order to enforce the contract there has to be lawful contract binding on both the•• parties enforceab.ie at the option of any one of the party. To constitute a lawful contract, an offer and accepts..nce coupled with free consent are the basic requirement 24 of an enforceable contract. The person who seeks specific performance of contract must allege and prove that there is breach of contract at the option of the other. Having regard to these requirements, the plaintiff, who has alleged the breach of contract, must prove the lawful binding contract between the parties. must prove the breach on the part of the defendants and must prove that he has performed or is always ready and willing to perform his part of the contract.
3. The plaintiff has stated in his evidence that he is well acquainted with defendant Nos. 1 and 2. Defendant Nos. 1 and 2 also admit that they are also acquainted with the plaintiff. l3oth the parties admit that they had entered into an agreement of sale as per Ex.R2. Both admit that the said agreement was also got cancelled, However, plaintiff, in his pleadings avers that the earlier contract was cancelled, as defendant Nos. 1 and 2 were unwilling to extend the time, unless plaintiff agrees to pay a sum of Rs.3 lakhs instead of Rs.2 lakhs i.e., Rs. I lakh more than e agreed amount under the contract.
However, to understand the case of the parties on the undisputed facts and circumstances of the case, better 25 p.
to refer to the documents. Ex.P.2 is dated 15.10.2004, it Is clear from the said document that, the defendant Nos. 1 and 2 agreed to sell the suit schedule property in favour of the plaintiff for a sale consideration of Rs.8 lakhs and as on the date of agreement plaintiff had made payment of Rs.6 lakhs. Defendant Nos. 1 and 2 have also admitted that they entered into an agreement of sale with the plaintiff as per Ex.P.2. Both the parties also admit that the said contract was cancelled by another registered cancellation deed-Ex.P.3 dated 18.0 1.2005. The plaintiff who has pleaded that the agreement as per Ex.P2 was cancelled as the defendant Nos. 1 and 2 demanded Rs.3 lakhs as against Rs.2 laths balance amount and they were unwilling to extend the time. Ex. P.3-cancellatIon deed, this cancellation deed shows that plaintiff, on account of his own personal difficulties, on account of his Inability and incapacity to pay Rs.2 laths, i.e., the balance consideration, for his own reason he got the contract cancelled. The reason for cancellation mentioned In the Ex.P3 Is extracted hereinbelow.
26
" ---- ---- -- --------- ---- -.---.- ------r -------- ---
1' _L.).( 1 ,))L'
--,- ,---- --i--.,.' ------ _._.4 _--s---- --'-S
--. -.'------.,-- -,----.-- --.---- -- ----- .--
'JAJ 'L)L) ...
--.d..-... _.'
Jc D
,_J_ --'-- -----,..'---- -----.- ,-- -- '---- --'
I L L) U.
This recital in Ex.P3 proves beyond doubt that, the agreement at Ex.P2 was not cancelled, as defendant Nos. 1 and 2 did not agree to extend the time or demanded Rs.3 lakhs instead of Rs.2 lakhs. Further, there is no recital in Ex.P.2 that, in case of failure of the plaintiff to get the sale deed executed in three months the earnest money would be forfeited. Defendant Nos, 1 and 2 admit that the sale deed was to be executed in three months from the date of Ex.P.2. Reading of Ex.P.2 shows that defendant Nos, land 2 had agreed that they would execute the sale deed in three months. The terms of the areement under ltx.P.2 do not show that the plaintiff must get the sale (Iced registered in his favour within three months from the date of the agreement. But it is the defendant Nos. 1. and 2 shall execute the sale dcccl within three months. The said term reads as under:
---
( Lt I. Though this agreement-Ex.P.2 and Cancellation Deed--Ex.P,3 are not the subject matter of this suit, it. is not the contract which is sought to be enforced by the plaintifi in this suit, but issue No.1 has been framed by the trial court as regard to earlier agreement of sale Ex,P.2 and cancellation deed Ex.P.3. The issue framed by the trial court reads as under:
"Whether the plain tilT proves that the defendant Nos. 1 arid 2 agreed to sell the suit schedule property to him for Rs.8 lakhs and they have received Rs. 6 lak-hs cs part of consideration on 15.10.2004 and subsequently this agreement u'as cancelled by mutual consent on 18.01.2005 and the defrndant Nos, 1 and 2 repaid the amount received by them?"
a . Though it may riot have direct bearing on the specific performance of contract in this suit, but both the parties have pleaded on the basis of the earlier contract. Hence, to appreciate the conduct of the parties as to how they have conducted themselves, it would be useful to refer to the same. The cancellation of the earlier contract was not by consent, but was due to plaintiffs own violation. 28 The earlier contract under Ex.P2 and the cancellation Ex.P3 may also he relevant to appreciate the ease of the plaintiff under the present agreement Ex,Pl.
. Earlier when plaintili entered into contract on 15.10.2004 as per Ex.P.2, he not only got the agreement deed registered before the Sub Registrar, but also was very particular and got the agreement attested by two witnesses, signed by the scribe and the person who typed it. Even the cancellation deed Ex.P3 was also registered and was signed by witnesses, scribe and the person, who typed it with their addresses. This also shows that, the plaintiff was particular of meticulously following formality while entering into agreement.
4'. The plaintiff in his cvidenc states that he is a businessman, income tax assessec and keeps accounts May he being a businessman in order to ensure a valid and proper transaction he must have maintained the records Ha irig regard to this he must hae thought it fit h g I th agl( cmnt of sale also att sted and r(glstc u d 4 In th light of this I is approj ni itc refer o 29 on 18.01.2005, plaintiff got the sale agreement cancelled and the reason assigned by the plaintiff for cancellation was financial difficulties and his inabifity to pay the balance sale consideration of Rs.2 lakhs. The gap between cancellation of the registered agreement and subsequent agreement is lithe more than seven months. The case of the plaintiff is that, during this period, he got the money and entered into an agreement as at Ex.P. 1.
4L In the plaint, at para-4, the plaintiff avers that, the defendants through brokers advertised the sale of the suit property. since there Were no purchasers. and in the meanwhile, plaintiff also received the amount as he was expecting the same, accordingly, his financial position had improved. Even in the evidence also, he states that, after the cancellation of first agreement, he received the amount and was in a position to pay the amount Immediately. However, to support the same. though in the cross- examination a suggestion has been made as to whether he had maintained the accounts book, he admits that he has made entry in the accounts books regarding the amount 30 paid to the defendants, He has also stated that he had mentioned the same in the ledger book and he knows that any transaction above Rs2O,OOO/- has to be made by cheque, though the plaintiff admits that he has a ledger book and he has no difficulty to produce the ledger book, however, for the reasons best known to him, has not produced any document to support his plea that his financial position improved within seven months of the cancellation of the earlier agreement. The financial position of the plaintiff after the cancellation of earlier agreement becomes relevant, as the cancellation of earlier agreement as per Ex.P3 was due to the incapacity of plaintiff to pay balance of amount of Rs,2 lakhs. However, the plaintiff has not produced any evidence to prove that he had money to pay the sale consideration agreed under Ex,P 1.
47, Defendants in their written statement have stated that the plaintiff and defendant Nos. 1 and 2 were known to each other. Plaintiff used to lend money as and when the defendants were in need and the defendants used to repay the same promptly and for the purpose of security, plaintiff used to take the signatures of the defendants on blank cheques and blank stan.p paper. Defendant Nos. 1 and 2 admit. their signatures on Ex,PI, but. they deny execution of th.e agreement. 31
48. Even assuming that defendants 1 & 2 have stated that they have signed some blank paper but When the execution of the agreement is denied, to prove that, defendants have executed the agreement as per Ex. p1, the initial burden is on the plaintiff to show that the said document is duly executed by defendant Nos. 1 and 2. Mere marking of document in evidence does not b itself prove the transaction unless, the contents of the same are proved. To prove the Ex.Pl, plaintiff alone got himself examined as PW 1 and in his evidence, though he states that he has relevant documents viz., ledger books, income tax returns, but does not produce the same.
49. It may be relevant to mention that, earlier when the plaintiff entered into an agreement, as per Ex.P2, he not only got it attested, but signature of scribe, typist were also taken and also got the same registered.
50. The plaintiff, neither in the plaint nor in the evidence states as to why ExPJ was not even attested, no sunature of the scribe was obtained nor was registered, In law, it may not be necessary to register an aireement of sale, or attestation is necessary, but it became necessary In view of earlier agreeme.nt and cancellation as per ExsP2 and P3.
32
51. Further. the sale consideration under the earlier sale agreement as pci- ExP2dated 15lO2OO4 was only Rs.8 lakhs and the plaintiff had paid substantial amount, and there was no reason for the plaintiff to Let it uancclled. as then-' was no forfeiture clause. Terms did not show that there was any obligation on the part of the plaintiff. It is the defendant Nos. I and 2. who have agreed to execute sale deed in three months. Reading of Ex.P2 and P3, they do not show, that the time was the essence of the contract, it is also not the case of the plaintiff that the defendant Nos. 1 and 2 had issued any notice demanding balance amount, there was no threat of forfeiture of advance amount. There is no evidence to show that the plaintiff was compelled to get the earlier agreement cancelled nor any evidence as to why the earlier agreement was cancelled. When there was no compelliiig reason for cancellation of earlier agreement, and if the sale consideration was only Rs,8 lakhs out of whft h Rs6 lakhs was already paid. only because of Rs2 lakhs as to be paid it creates serious doubt as to why he cntered into fresh agi ement for high r aft ( orisideritioii of Ps. 11 Iakhs. that too with an agrc enKnt without attestation wit Iioii t r ist r. ici C u icc 11 ntio ol a ii n r reui tei ed ( iTflt-1 &ii -l11 ira -0 t-CIl1-flt hI a IIV I cj' 33 p doubt but also supports defendant Nos. 1 & 2's contentIon that plaintiff used to lend the money by taking the signature on blank paper. Plaintiff to support his case has not examined any other witness.
52. Even as regard to the financial position of the plaintiff. though he has not marked the income tax returns, but has produced the same before the trial court and the trial court has relied on such document to hold that the plaintiff has proved that he has made payment of Rs.9 lakhs under Ex.Pl. Even considering the said documents, which are not marked In the evidence, they only show that the plaintiff had made an application to the Income tax authorities for supply of returns fof the year 2006-07, 2007-08, 2008-09. However, he has produced only one Saral form to show that he had filed return for the year 2006-07. CertaInly, if this Saral form was filed during the financial year 2005-06, it has some relevance to the case of the plaintiff. But the date on which the Saral form is submitted to the Income tax authorities as shown on the form bears the date as 30th March 2007, that is after the defendants- 1 and 2 had executed a registered sale deed dated 31.03.2006 In favour for defendant No.3. Nearly after one year, plaintiff has 34 filed Saral form for the purpose of showing his assets and liabilities,
53. It is also pertinent to note at this stage that, as per Ex.P.3- the cancellation of registered agreement deed, it was agreed that in view of cancellation of agreement, defendant Nos. 1 and 2 were free to deal with the property in the manner they like and the plaintiff has no objection whatsoever, and admittedly after the defendants-i and 2 executed the sale deed in favour of defendant No.3 as per Exs.P4 and P5, plaintiff nearly one year thereafter files the income tax returns.
54. Exs,P.4 and 5 sale deeds have come into existence after more than one year of cancellation, In pursuance of the said registered sale deed, names of the purchasers have been entered in the property register on 1O,O42OO6 as per Ex,P, 12. When the plaintiff came to know that the third defendant has purchased the suit property and third respondent's name also came to be entered in the revenue record, the plaintiff has submitted the Saral form.
55. Not a single document is produced by the plaintiff to show that, befcre ale deed in fbvour of defendant No3, he had acted in pursuance of ExPi, it is only after the sale deed, .
35plaintiff files Saral form to show that he is an income tax assessee. Further, the same also does not prove his ease that he had received Rs.6 lakhs under the cancellation deed as per Ex.P3 and he had received amount thereafter or the payment of Rs,9 lakhs, Even Saral form discloses income of the plaintiff at Rs. 1,23,400/ out of which he had sought exemption of Rs.33, 1 14L towards payment of LIC. Though assets and liability are produced, signed by income tax authorities, it did not bear the date and in the said document also, towards assets Rs.9 lakhs is stated as advance amount paid towards purchase of land from defendant Nos. 1 and 2. This document admittedly has come into existence after the defendants 1 and 2 sold property to defendant No.3 and after the name of defendant No.3 was entered in the property register, it shows it is filed as an after thought.
56 Even assuming that the plaintiff had shown Rs 9 lakhs with him corresponding docum nts are not produced for the rele am period though h laims that he has do( uments 1h income tax returns ar not produced to shox& that suh an mount piid o lelendant Nos I and 2 Fx ept the orl id n( e ither th edgei xli u i nor 1h income ax fl( I )h f m 36 after cancellation of first agreement. Even otherwise, these documents are not marked in the evidence and the same could not have been relied by the trial court, however, the trial court, to hold that there is valid contract and plaintiff had made payment of Rs.9 lakhs, on issue no.2, the trial court gives finding as under:
"The plaintiff had no reason to create the agreement Ex.P. 1. Ex.P, 1 discloses that defendant Nos. 1 and 2 have received Rs.9 lakhs as earnest money and in view of cross examination of P. W. 1, the plaint ff had produced the certffied copies of the returns of income for the assessment year 2006-0 7, 2007-08 and 2008-09 and though these documents have not bee marked, but on perusal of these documents, it could be gathered that, while showing the statement of affairs as on 31.03.2006 the plaintiff had stated regarding the payment of Rs.9 lakhs to the defendant Nos. 1 and 2 as earnest money. Therefore, genuineness can be attached to Ex.P. 1 produced before this Court,"
57. This finding apparently is based on no evidence, This finding arrived by the trial court to hold that Ex.P. 1 is genuine document is based on no evidence, First of all, plaintiff has not prcduced the returns for the year 2006-07, 2007-08 and 2008-
09. The Saral form got marked in the evidence discloses that it is for the year 2006-07. What is omitted by the trial court is, this document has come into existence on 30032OO7. The. trial court has ig.nored the adm.itted material produced by plaintiff 37 himself to show that ExsJ',4 and 5 had already come into existence on 31 .O3.2OO6 itself. Ex,P, 13 the property extract shows that the name of the defendant No.3 was entered on Iff.04.2006, The trial court, ignoring the admitted evidence on record produced by the plaintiff and misreading even an admitted document, relying on such documents, which are not produced in the evidence, gives erroneous finding eontraiy to the evidence on record to hold that the agreement is genuine document and proved.
58. There Is one more reason assigned by the trial court to hold that the agreement Ex,P, 1 is proved. The trial court relies on the averments in the written statement and the cross- examination of D.W. I • the defendant No.1 admitted his signature on Ex,P, 1. The trial court draws an inference that the defendant No, I being a business man, he could not put signature on blank paper and observes that the signature of defendant Nos, I and 2 would not have been taken on blank paper as ExP I could not have been typed by taking signature on blank paper, as such, It holds that the agreement as per Fx P1 is proved as under
"Ex P 1 has been typed on the bond paper and one qreen sheet and no susptewn an b made eqarding typmq of the ontents Even after 38 signature, the first defendant had put the date of document and f at all the defendants have put the dale of document and f at all the defendants have put their signatures on the blank papers. then, they would not have put the dale. So mentioning of the date on rlie document reveals that the document was executed on a particular date with jull consent and it cannot be said that ii is a táhricated and concocted as contended by the deJèndants.
59. Defendant in his cross-examination has admitted that he had signed the blank paper. 1-lowever, reading of cross- examination of the defendant No.1 does not show that the defendant No.1 had put the date after signature. It is not known on what basis the trial court gives finding that defendant has put date after signature and even agreement Ex.P. 1 also does not indicate that the date was put after signature as 06.08.2005. The trial court has wrongly read the evidence of the DW- 1 and erroneously draws an inference against the DW 1.
60. As observed earlier, the plaintiff who sues tbr specific performance of contract must plead and prove that there is a valid, enforceable contract and must prove that there is breach of contract at the instance of the defendants. With regard to the first aspect of the matter that there is valid, lawfully enforceable contract, pleadings and oral evidence of plain tiff coupled with Ex. P. 1 arc Li ic only maierials on rocord. Plaimiff to jrovc that 39 there is valid, lawful contract, has averred in the plaint that brokers had advertised that the property of the defendants 1 and 2 was for sale and there were no purchasers. I lowever, neither the name of the broker is mentioned nor any broker has been examined. To prove further that the defendant Nos. 1 and 2 accepted the offer, except the admitted signature on Ex.P1, there is no other evidence.
61. As regard t.o ready and willingness:
As per Ex.P1, the total sale consideration is Rs. 11 lakhs and Rs.9 lakhs was paid. the balance of Rs.2 lakhs was to be paid by the plaintiff at the time of registration of the sale deed. The entire reading of Ex.P. 1 does not show that the defendant Nos. 1 and 2 have any obligation to perform except execution of sale deed, There is iothing on record to show that there is any breach committed by defendant Nos, 1 and 2. The terms of Ex.P. I reads as under:
d •• t,
dD . ,oo,oocco (d.o &t
..) r
Z3
40
62. This clause shows that defrndants will be present as and when the plaintiff calls upon them for execution and registration of the sale deed. Thus, this clause makes it clear that option was given to the plaintiff to get the sale deed executed in his favour, To allege the breach, the plaintiff in his pleadings has stated that, after the agreement he started making demands with defendants ftr execution of sale deed. In the plaint, he has stated that he was ever ready and willing to perform his part of the contract and he is even now ready and willing to perform his part of the contract by paying balance sale consideration, however, the defendants have delayed the execution and registration of the sale deed. As such, plaintiff was constrained to issue legal notice.
63. To appreciate the said contention, agreement Ex,P, I has come into existence on 06.0820O5 For the first time after the agreement, the plaintiff issues notice as per ExP6. ExP$ Is dated 1003 2007 and it was served on defendant No, I and 2 on 15 O32Q07 as per aelrnowledgments produced at Exi P 8 and 9. In Ex.P6 nowhere it is mentioned that the plaintiff had ever called upon the defendant Nos I and $ to execute the registered sale deed In his favour Not cveq in allegation that deft ndants ha'e faikd to perform their part of ontraet except 41 saying that plaintiff is ready and willing to perform his part of the contract. Absolutely there is no evidence to show that the defrndants had committed any breach of contract by delaying execution of sale deed.
64. Learned counsel for the plaintiff had contended that under Ex.P. 1. parties have not treated time as essence of contract. No doubt, in case of agreement of sale of an immovable property, normally time would not be the essence of contract. However, to appreciate the case of the plaintiff that he was ever ready and willing to perform his part of the contract, to appreciate that there was breach of contract ri the part of the defendant Nos. 1 and 2, it becomes relevant to notice as to how the plaintiff has conducted himself with agreement Ex.P. 1.
65. Section 16(c) of the Specific Relief Act requires, the person who alleges that there is breach of contract by another, to plead and prove that he was always ready and willing to perform his part of the contract and the defendant was not ready and willing to perform his part of contract. Pleading and proving does not require extraction of the provisions of Section 16(c). What is required is its compliance in spirit and substance
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of the requirement of provisions of Section 16(c) of Specific Relief Act. and not for formality of pleading.
66. In this case. thouih time is riot essence of the contract, but law requires that the plaintiff who seeks the enforcement of the specific performance of the contract, must be always ready and willing to perform his part of contract from the date of agreement and not that as and when he wants, he can get ready and seek for specific perftrmance of the contract. What is relevant is as to how the plaintiff conducted himself before the agreement and after the agreement.
67. In view of the same, as observed earlier, prior contract under Ex.P.2 and cancellation as per Ex.P.3 wherein the plaintiff being a business man, assessee of income tax and keeping account every year, and was meticulous and careful to get the agreement not only registered, but was duly attested by two witnesses, signed by the scribe and the person who typed it, but in the second agreement, riot one attesting witness signature is taken, nor even scribe name is mentioned, though in law may not be relevant, but to appreciate the conduct, to understand whei her plaini itt really intended to have the agreement, it flflWS relevaiiv 43
68. To plead and prove readiness and willingness, Section 16(c) of the Specific Relief Act does not require any specific phraseolor. Only plaintiff must aver that he has performed or always been and was willing to perform his part of the contract. The readiness and willingness must be in spirit and substance and not in letter and form. Person seeking benefit of specific performance of contract must manifest that his conduct is unblemished throughout, entitling him the specific relief.
69. In a suit for specific performance of agreement of sale, plaintiff must show that what steps he initiated in approaching the defendant for execution of the sale deed, Mere allegation that he was ready and willing to perform his part of the contract would not be sufficient. However, the testimony of the plaintiff that he was ready and willing to perform his part of the contract may become relevant, if the plaintiff had made deposit of the entire balance sale consideration as on the date of filing of the suit itself that may part take the character of readiness and willingness.
70, It is not only the pleading, but also conduct of the plai.ntiff, which becomes relevant. The readiness and wi.ilingness being two different things, readiness is one which shows 44 financial capacity of the plaintiff and willing is his mental attitude and his conduct to get the contract enforced.
71.. Having regard to the same. the first part of readiness. as I have already observed, having regard to the income tax. however, to reiterate the same again, the relevant dates and events are as under:
72. As per Ex.P.2 dated 15.10.2004 a registered agreement. plaintiff agreed to purchase same suit schedule property for Rs.8 lakhs i.e.. less than the sale consideration under Ex.P. 1. There is no forfeiture clause in Ex.P.2. There is no obligation on the part of the plaintiff in getting the sale deed. In turn, obligation was on the defendant Nos. 1 and 2 wherein they had agreed that they will execute the sale deed within three months, Time was not at all stipulated. Plaintiff as a prudent business man who had registered agreement in his favour for lesser sale consideration, hut he got cancelled the same by another registered cancellation deed. The recital of Ex.P. 3 as already stated shows that plaintiff. ibr his own diffcultes and for his own financial incapability, got the agreement cancelled. Thi.s document proves that, as on 18.01.2005 plaintiff was ii 1 .apthft o c o p ii R'-
45
73. The gap between registered agreement and Ex.P. 1 is around 7 months. To prove that he acquired money during this period to pay additional Rs3 lakhs taking that Rs.6 lakhs is received under cancellation dcccl. except averment in pleadings. there is iota of evidence as to how the I)laifltiti got the money or how he paid.
74. No doubt, signature of clelèndant Nos. 1 and 2 on Ex.P1 is admitted, but it is specific plea of defendant Nos. 1 and 2 that relationship between plaintiff and defendant Nos. I and 2 was cordial, they were well acquainted to each other and they had business transaction, they used to borrow money and return. Considering the earlier transaction of sale agreement and cancellation, it creates doubt as to whether there was truly an agreement of sale transaction. However, there is not evidence led by the plaintiff to show why the second agreement was entered into by cancelling earlier agreement.
75, The contention of the learned counsel for the plaintiff was that when plaintiff had agreed to purchase the suit property for Rs. 11 lakhs, the very same property is sold to defendant No,3 at a meaner price of Rs, 481.OOO/. As far as purchaser is coucerned. whether he is a bonailde lLIrciSe1 or not. that ullI 46 not absolve the plaintiff from proving his case that there is valid contract binding defendant Nos. 1 and 2. Learned counsel had also contended, once signature is admitted, the contents are deemed to have been admitted. However, both in the pleadings and in the evidence, the defendants have denied the agreement of sale, in turn, it is the case of the defendants-i and 2 that, in a business transaction, whenever the defendants-i and 2 were in need of money, they used to borrow from the plaintiff, and plaintiff used to take the signature on blank stamp paper for security purpose. Looking into the earlier contract under ExP2, it supports the case of the defendants-i and 2. The decree for specific performance of contract, being discretionary relief, plaintiff is required to prove not only the contract, but also required to prove his readiness and willingness.
76. The Apex Court in the judgment reported in AIR 1999 S.C. 3029 in the case of Syed Dastagir Vs. T. R. Gopalakrishna Setty, has observed as follows:
"Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law qf one's case for a relief, Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a. plea. In India most .f the pleas are drqfted by counsels hence aforesaid dWerence qf pleas which 47 inevitably dffer from one to other, Thus, to gather true spirit behind ci plea it should be read as a whole. This does not distract one from peitnnin,q his obligations as required under a statute. But to test, whether he has pertbrmed his obligations one has to see the pith and substance of plea. Where a statute requires antj fact to he pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through dffrrent words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specfically require for a plea to be in any particular form. it can be in any form. No specUic phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perfrm his part of the contract. So the compliance of readiness and willingness" has to be in spirit and substance and not in letter and form.. So to insist for mechanical production of the exact words of an statute is to insist jôr the form rather than essence. So absence of form cannot dissolve an essence f already pleaded."
77. Apex Court has held that, it is not letter and form but it is spirit and substance of the pleadings, which prove the readiness and willingness. In what form the pleadings are stated is irrelevant. But the spirit behind the pleadings has to be appreciated. Merely because the contents of Section 16C verbatim have been extracted in the pleadings. it will not prove the readines.s and willingness.
48
78. The Apex Court in another decision reported in (2011)1 SCC 429 reported in J. P. Builders and another Vs. A. Ramadas and another, has held as follows:
"The words "ready" and willing in the Specific Relief Act. 1 963. Section 1 6 imply thai the person was prepared to carry out the terms of the contract.
The distinction between "readiness" and 'willinqness is that the former refers to financial capacity and the latter to the conduct qf the plaintiff wanting perfbrmance. Generally, readiness is backed by willingness.
79. It is well settled that even in the absence of specific plea by opposite party, it is the mandate of the statute that the plaintiff has to plead and prove by complying with Section 16(c) of the Specific Relief Act and when there is non-compliance of this stat utorv mandate, the Court is not bound to grant decree for specific performance of the contract, It is also clear that readiness and willingness to perform must be established throughout the relevant points of time.
80. If the material placed on record with specific assertion in the plaint, oral and documentary evidence as to the execution of the agreement, parhpavment of sale consideration, having sufficient cash and financial capacity to execute the sale deed, and banks statements as to the monies in fixed ueposiis. savings accou.nts, may also be held as plainti.ffs ret.diness and 49 willingness to perform his part of contract. However, bald statement in the plaint that the plaintilY is always ready and willing to pcrlhrm his part ol contract, unsupported by any evidence, cannot by itself prove his readiness or willingness. Willingness is a conduct and the plaintiff has o prove how he conducted himself all throughout from the date of agreement till the date of sale.
81. In this case, though the time is not the essence of the contract, that does not mean that the plaintiff need not show his readiness and willingness. He has not shown his readiness with the financial capacity and how he conducted himself before and after the agreement also becomes relevant. Till the defendants-i and 2 executed registered sale deed in favour of defendant No.3 and the name of the defendant No.3 was mutated in the property register, the plaintiff did not make any effort to enforce his alleged agreement.
82. Nearly one year thereafter. he issues a legal notice and ftw the first time on 10.3.2007 he claims that lie is ready and willing to perform his perform of contract Apart from the above, there was no obliation of whatsoever nature on the part of defendants i a rid 2 to comply with the terms of the aOreement.
•--: -
50
But the entire events only point out that the plaintiff was sitting on the fence with the blank stamp paper, when he came to know that the defendants 1 & 2 have executed the sale deed in favour of defendant No3, and one year thereafter he issues legal notice. This conduct does not show that the plaintiff, at any point of time, had made any communication with the defendant Nos. 1 & 2, of his readiness, or had made any demand for execution of the sale deed.
83. From the above discussion, it is clear that, the plaintiff has not proved that the Ex.P1 was an agreement of sale, and has not proved that, he was ready and willing to perform his part of contract.
84. The trial Court strangely without discussing the evidence on record, without referring to the admitted facts, on erroneous consideration has given a finding. Since the said findings are based on no evidence, same are perverse.
85. As to the question of 3rd defendant purchasing the property and thereafter selling the property, and the lesser consideration received by the defendant Nos .1 & 2 under ExP4 and Ex. P .5 has no relevance for the purpose of deciding the issue as to whether plaintiff proved Ex,P, I and his readiness 51 r and wiulngness. in turn, it proves that the defendants-i & 2 had not agreed to sell the suit property to the plaintiff, had the defendants-I & 2 agreed to sell the suit property to the plaintilt they would not have sold the same for lesser price. This only shows that there Is bonafide in the contention of the defendant Nos.i &2.
86. However, even assuming that the plaintiff had received Rs.6 lakhs under the cancellation deed as per Ex.P3, which is not disputed by the defendant Nos. 1 & 2, the learned counsel for the defendant Nos. 1 &2 had alternatively submitted that the plaintiff may be entitled for the refund of the amount, and submitted that, though the trial court has ordered for refund of the amount but has directed the defendant Nos. 1 & 2 to pay interest © 18% p.a. He submitted that. it is not a commercial transaction, and the trial court should not have imposed interest © 18%.
87. Though the transaction of agreement of sale is not proved, but during the course of the evidence, the defendants have admitted the signature on Ex.Pl and have admitted that between the plaintiff and defendants-i & 2, they have financial transaction of borrowing loan. Even Ex.P1 Is not treated as 52 agreement of sale, hut if there was a loan transaction and the trial court has also ordered for refund of money. I find that the said finding be confirmed with modification of rate of interest.
Accordingly I pass the following;
ORDER R.F.A.No.3 112/2010 filed by the plaintiff stands dismissed.
R.F.A.No.3097/20l0 flied by the defendants-i & 2 is partly allowed only to the extent of interest is concerned.
The defendant Nos. 1 & 2 to pay the amount as decreed by the trial court. hut the interest at the rate of 9% p.a. In all other respects. the judgment and decree of the trial court is confirmed.
Parties to bear their own cost in these appeals.
/ 'v1 KC 7' SUB