Delhi High Court
Mohan Madan vs Smt. Sheel Gulati on 19 August, 2015
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 357/2006
% 19th August, 2015
MOHAN MADAN ..... Plaintiff
Through: Mr. Avneesh Garg, Advocate
Versus
SMT. SHEEL GULATI ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The subject suit being decided by this judgment is a suit for specific performance filed by the plaintiff, Sh.Madan Mohan against the defendant, Smt. Sheel Gulati. Plaintiff seeks specific performance of the Receipt-cum-Agreement dated 5.10.2005 with respect to the property bearing no. BN-53, Shalimar Bagh (East), Delhi. The agreed total sale consideration was Rs.2.39 crores of which plaintiff claims that he paid a sum of Rs.25 lacs on the date of execution of the Agreement to Sell dated 5.10.2005. In terms of the Agreement to Sell, plaintiff had to pay further CS(OS) No. 357/2006 Page 1 of 22 sums of Rs.50 lacs upto 20.1.2006 and Rs.25 lacs upto 20.2.2006. The case of the plaintiff is that when he went to the defendant for making payment of these amounts, the defendant refused to accept the same and therefore the plaintiff is entitled to specific performance. Plaintiff pleads that he sent a Legal Notice dated 24.1.2006 to the defendant and thereafter filed the subject suit. Plaintiff also pleads that he has always been and is even today ready to perform his part of the contract and make the payments as per the agreed schedule.
2. Defendant has filed the written statement praying for dismissal of the suit on the ground that out of the amount of Rs.25 lacs which was paid under the Receipt-cum-Agreement dated 5.10.2005, a sum of Rs.10 lacs was paid by means of a cheque drawn of one Sh. Dharampal Malik in favour of the defendant, but, this cheque bounced on presentation. Defendant states that on bouncing of the cheque, the defendant through her lawyer got issued a Legal Notice dated 19.10.2005 mentioning about the factum of dishonour of cheque and asking the plaintiff to abide by the terms of the Agreement dated 5.10.2005 and which the plaintiff failed to do. The defendant denies that the plaintiff ever approached the defendant with either the amount of Rs.50 lacs as on 20.1.2006 or the further amount of Rs.25 lacs on 20.2.2006. CS(OS) No. 357/2006 Page 2 of 22 Defendant has denied that the plaintiff has always been or continues to be ready and willing to perform his part of the contract.
3. I may note that the plaintiff has not filed any replication to the written statement filed by the defendant, and this aspect is being noted because this aspect will have bearing on the decision of the suit.
4. In the suit, the following issues were framed on 12.8.2008:-
"1. Whether the plaintiff is entitled to the declaration, as prayed? OPP
2. Whether the plaintiff is entitled to specific performance of Agreement dated 5.10.2005? OPP
3. Did the plaintiff pay the earnest money to the defendant, as alleged? OPP
4. Relief."5. Issue Nos.1 to 3
All the three issues are taken up together because they are related to each other and will include discussion on the issue of whether under the Agreement dated 5.10.2005 out of the amount of Rs.25 lacs, an amount of Rs.10 lacs was paid by cheque which bounced, and also as to whether plaintiff is entitled to the relief of specific performance by the plaintiff showing that it is the defendant who has committed breach of CS(OS) No. 357/2006 Page 3 of 22 contract and the plaintiff has always been ready and willing to perform his part of the contract.
6. The first aspect to be examined is whether under the Agreement dated 5.10.2005, did the plaintiff pay the entire sum of Rs.25 lacs to the defendant in cash or whether the defendant was only paid Rs.15 lacs because the plaintiff had given a cheque of Rs.10 lacs which had bounced on presentation.
7(i). On behalf of the plaintiff, it is argued that the total amount of Rs.25 lacs was paid in cash on the date of execution of the Agreement dated 5.10.2005 and that this is acknowledged by the defendant in terms of the Agreement (Ex.P-1) itself, whereas, the case of the defendant is that the second original of the Agreement dated 5.10.2005, Ex.D-1, at its back side contains an endorsement that there is a cheque of Rs.10 lacs issued of one Sh. Dharampal Malik dated 4.10.2005 of Nainital Bank Limited bearing no. 518934.
(ii) Whereas the front portion of the Agreement dated 5.10.2005, and which has been prepared in two originals is identical, is admitted by both the parties, and is not in dispute, the dispute is with regard to the endorsement which appears on the back of the Agreement dated 5.10.2005 CS(OS) No. 357/2006 Page 4 of 22 filed by the defendant i.e the endorsement behind the document Ex.D-1. The endorsement with respect to the cheque at the backside of Ex. D-1 having been denied by the plaintiff, this portion was specifically put to the plaintiff in his cross-examination and has been marked/noted as Ex.PW1/D-1.
(iii) To decide this issue, as to whether an amount of Rs.10 lacs was paid by cheque out of the amount of Rs.25 lacs on 05.10.2005, the evidence of the witness Sh. Shailender Dahiya, Advocate who deposed on behalf of the defendant as DW-3 would be extremely relevant. Sh. Shailender Dahiya, Advocate deposed with respect to his sending of the Legal Notice dated 19.10.2005 to the plaintiff mentioning the factum of dishonour of cheque of Rs.10 lacs of Nainital Bank Limited and he filed the relevant UPC certificate and registered post receipt of the Legal Notice dated 19.10.2005 (marked as 'Mark Y' and 'Mark Z' respectively).
(iv) While on this aspect it will also be discussed as to whether the cheque of Sh. Dharampal Malik of Rs.10 lacs was or was not issued pursuant to the Agreement between the parties on 5.10.2005 or whether this cheque has no correlation to the subject transaction/Agreement dated 5.10.2005 because Sh. Dharampal Malik has no connection or correlation with the subject transaction.
CS(OS) No. 357/2006 Page 5 of 22
8. The entire deposition of DW-3, Sh. Shailender Dahiya, Advocate will have to be read with the pleading of the plaintiff with respect to the payment of Rs.10 lacs by cheque and therefore both the deposition and the relevant portion of the plaint are reproduced below:-
"Para 5 of the plaint
5. Plaintiff submits that notice dated 24.1.2006 was duly served upon the defendant and has been replied vide notice in reply dated 30.1.2006 sent on behalf of the defendant. Defendant though in her notice in reply, admitted her agreement to sell the property as also execution of agreement-cum-bayana receipt dated 5.10.2005 but claimed that the plaintiff had paid the earnest money of Rs.25,00,000/- in two parts namely Rs.15,00,000/- as cash and Rs.10,00,000/- vide cheque no.518934 dated 4.10.2005 drawn in favour of the defendant on Nainital Bank Ltd. However, since receipt dated 5.10.2005 had no mention of any cheque dated 4.10.2005, defendant claimed that the Property Dealer Shri Raju had written an undertaking of the plaintiff on the back of the agreement-cum-bayana receipt specifying handing over of the aforesaid cheque to the defendant. Interestingly, the cheque besides pre-dated than the agreement itself, is not issued by the plaintiff but has been issued from the account of one Shri Dharam Pal Malik who has no relation or connection with the plaintiff. Further there is no undertaking or anything written on the back of receipt dated 5.10.2005. Defendant, therefore, in her notice in reply claimed that since the cheque dated 4.10.2005 had bounced on presentation, she has also sent a notice dated 19.10.2005 to the plaintiff demanding payment of Rs.10,00,000/-. Plaintiff, however, has not received any such notice till date.CS(OS) No. 357/2006 Page 6 of 22
Statement of DW-3 CS(OS) 357/2006 Date:28.07.2014 STATEMENT OF DW-3: MR. SHAILENDER DAHIYA, S/O LATE RAN SINGH, AGED ABOUT-56 YEARS, R/O HOUSE NO.112, M.P. BLOCK, PITAM PURA, NEW DELHI-88 ON S.A. I am the summoned witness. The legal notice dated 19.10.2005 was issued by me to the plaintiff on behalf of defendant. The same is marked as Mark 'X'.
The legal notice is also signed by the defendant whose signature is at point 'A' and my signatures appears at point 'B' on each page. (Objected to by the counsel for plaintiff on the ground that the document is a photocopy and signature of the defendant and of the witness cannot be identify thereon). I have sent the said legal notice by regd. post and also UPC. The UPC certificate and postal receipt are marked Mark 'Y' & 'Z'.
xxxxxxx by Mr. V.K. Garg, ld. counsel for plaintiff I have issued the said legal notice only on the basis of what I was informed by the defendant.
Q. I put it to you that the notice which you have claimed to sent to the plaintiff was not received by the plaintiff. What do you have to say?
Ans. The plaintiff must have received the notice as the same was not returned to me.
Sd/- Sd/-
RO&AC K. VENUGOPAL (DHJS)
dsn Joint Registrar (Judicial)
Dated: 28.07.2014"
9(i). Before discussing in detail the aforesaid deposition and
pleading of the plaintiff in para 5 of the plaint, it needs to be noted (and I CS(OS) No. 357/2006 Page 7 of 22 have already stated this in the earlier part of this judgment) that plaintiff has for some strange reason chosen not to file any replication to the written statement filed by the defendant. In the written statement, the defendant has pleaded the categorical case that plaintiff out of the sum of Rs.25 lacs paid an amount of Rs.10 lacs by a cheque of Sh.Dharampal Malik and this cheque bounced on presentation.
(ii) In my opinion, non-filing of replication in a case such as the present will amount to deemed admission of the facts of the written statement with respect to the amount of Rs.10 lacs being paid by cheque out of the amount of Rs.25 lacs paid on 5.10.2005. Deemed admission will arise in view of Order VIII Rule 9 read with Order VIII Rule 5 and Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) and which provides that on non-filing of replication (technically called as an additional written statement and not replication in Order VIII Rule 9 CPC), the same will amount to deemed admission of the contents of the written statement filed by a defendant.
10. The fact that the cheque of Rs.10 lacs was indeed given on 5.10.2005 as part payment out of Rs.25 lacs also becomes clear from the Legal Notice dated 19.10.2005 issued by Sh. Shailender Dahiya, Advocate CS(OS) No. 357/2006 Page 8 of 22 and which is marked as Mark X. The corresponding UPC certificate and registered post receipt are marked as Mark Y and Mark Z respectively. These documents in my opinion, for the reasons given hereinafter are proved documents, and therefore I am exhibiting these documents as Ex.DX1, Ex.DX2 and Ex.DX3. These documents are proved documents and have to be exhibited because when we read the testimony of DW-3, Sh.Shailender Dahiya, Advocate, it is seen that DW-3 specifically deposes with respect to sending of the Legal Notice dated 19.10.2005 to the plaintiff and that the legal notice contained signatures of the Advocate as also of the defendant and in the cross-examination of this witness by the plaintiff there is no suggestion on behalf of the plaintiff that this Legal Notice, Ex.DX1 is not issued by the said Advocate, Sh. Shailender Dahiya and the only cross- examination is that plaintiff has not received the said legal notice. Also, there is no suggestion on behalf of the plaintiff that the Legal Notice, Ex.DX1 dated 19.10.2005 is a forged and fabricated document. It is also required to be noted that plaintiff in his cross-examination on 21.1.2011 when put a question with respect to this Legal Notice dated 19.10.2005 only stated that he does not remember whether he had received this Legal Notice dated 19.10.2005 and it is conceded that the address in the Legal Notice dated 19.10.2005 is the correct address of the plaintiff. Another reason for CS(OS) No. 357/2006 Page 9 of 22 exhibiting this legal notice is that this aspect is specifically mentioned by the defendant in her written statement in para 5, but as noted above, plaintiff has not filed replication and therefore this is an additional reason of holding issuing of Legal Notice by Sh. Shailender Dahiya, Advocate to the plaintiff Ex.DX1 dated 19.10.2005 as duly proved. For the selfsame reasons, the UPC certificate and registered post receipt would stand proved as Ex.DX2 and Ex.DX3, especially in the absence of any cross-examination with respect to these documents not being genuine documents or being forged and fabricated documents. Thus in view of all the aspects, the issuing of the Legal Notice dated 19.10.2005 by the defendant to the plaintiff will stand proved and the documents Ex.DX1 to Ex.DX3 are duly proved documents.
11. It bears note that defendant in the Legal Notice dated 30.1.2006 exhibited as Ex.D-2 (also exhibited as Ex.DW1/4 with the registered post receipt and UPC certificate exhibited as Ex.D-3 and Ex.D-4 / Ex.DW1/5 and Ex.DW1/6) sent on her behalf to the Advocate of the plaintiff, Sh. Vijay Malik has specifically mentioned the factum of the cheque of Rs.10 lacs given under the Agreement dated 5.10.2005 and that the same had bounced. The plaintiff never replied to this notice, and I refuse to accept the argument on behalf of the plaintiff that plaintiff straightway thereafter filed the suit CS(OS) No. 357/2006 Page 10 of 22 and hence did not reply to this Legal Notice of the defendant dated 30.1.2006. Considering the seriousness of the contents of this notice, plaintiff was bound to send a reply to this Legal Notice and it is not enough answer that plaintiff instead chose to file the suit. This is all the more so because para 5 of the plaint itself is very ambiguous and I do not find in para 5 of the plaint a categorical statement which in so many words states that plaintiff never ever gave a cheque of Rs.10 lacs out of the initial payment amount of Rs.25 lacs. Para 5 of the plaint also does not categorically state that the plaintiff disputes that plaintiff did not receive any Legal Notice dated 19.10.2005. I have already reproduced above para 5 of the plaint and the aforesaid conclusions drawn by this Court become clear when we read that para 5 which para really and in fact only talks of the stand of the defendant without in any manner the categorical denial by the plaintiff of the same.
12(i). While on this aspect, I also have to decide the issue as to whether these documents Ex.DX1 to Ex.DX3 being not originals and being only photocopies, whether they cannot be read in evidence as they are not primary evidence. In this regard it may be noted that as per Section 63 of the Indian Evidence Act, 1872, these documents are secondary evidence because CS(OS) No. 357/2006 Page 11 of 22 a photocopy is a copy made from the original by a mechanical process which ensures the accuracy of the document.
(ii) The Advocate of the defendant would not have the original legal notice which was sent to the plaintiff but would only have a copy with him and thus there is sufficient reason for introduction of secondary evidence with regard to the Legal Notice, Ex.DX1. Also, by virtue of Section 65(a) of the Indian Evidence Act, 1872, the plaintiff was bound to file the original legal notice and which is another reason for allowing leading of secondary evidence. No doubt, the plaintiff has denied the receipt of this Legal Notice but I do not even accept the stand of the plaintiff that he has not received the Legal Notice dated 19.10.2005, Ex.DX1, inasmuch as, there is no dispute that the Legal Notice was sent to the plaintiff at the address which is the correct address of the plaintiff noting that the address in the Legal Notice, Ex.DX1 sent to the plaintiff is the same address which is the address of the plaintiff as per the memo of parties in the plaint. As per Section 27 of the General Clauses Act, 1897, once the legal notice is correctly sent to a proper address, and the address to which the Legal Notice, Ex.DX1 is sent is correct, is clear not only from the Legal Notice, Ex.DX1 but also from the related UPC certificate and registered post receipt, Ex.DX2 CS(OS) No. 357/2006 Page 12 of 22 and Ex.DX3 which gives the same address of the plaintiff, in my opinion, the legal notice would stand delivered to the plaintiff and it is not open to the plaintiff to argue that this legal notice was not delivered to the plaintiff. It is also noted that the plaintiff did not summon any witness from the postal department that the Legal Notice, Ex.DX1 was not received by the plaintiff, and the plaintiff thus in the facts of this case, has failed to discharge the onus which shifted on him with respect to the receipt of the Legal Notice, Ex.DX1. In the facts of this case it was upon the plaintiff to summon any person from the postal department or he could have filed a certificate from the postal department that the Legal Notice, Ex.DX1 dated 19.10.2005 was not received by the plaintiff, but the plaintiff has failed to adopt either of the two courses and hence having failed to discharge the onus upon him, it has to be held that the Legal Notice, Ex.DX1 dated 19.10.2005 was delivered to the plaintiff.
13(i). Now let us turn to the aspect whether Sh. Dharampal Malik's cheque of Rs.10 lacs was issued with respect to the subject Agreement to Sell. In my opinion, there is no reason to disbelieve the stand of the defendant that she accepted the cheque of Sh. Dharampal Malik on behalf of the plaintiff because she was asked to do so by the plaintiff and his property CS(OS) No. 357/2006 Page 13 of 22 dealer, Sh. Raju Pardesi. As per Section 2(d) of the Indian Contract Act, 1872, consideration need not flow only between the parties to a contract i.e the buyer may choose to pay the price or part thereof by not his own cheque but a cheque from someone else's account and that someone else is Sh. Dharampal Malik in this case. The seller of a property wants money/price of the property and there is no illegality if the seller receives part of the consideration from the buyer in terms of a cheque given by the buyer not from his own bank account but from the bank account of someone else namely Sh. Dharampal Malik. Defendant as DW-1 has specifically deposed that Sh. Dharampal Malik is not a stranger to the transaction but he is very much known to the plaintiff and the property dealer Sh. Raju Pardesi and that this becomes clear from the bank account opening form of Sh. Dharampal Malik in Nainital Bank Limited, proved and exhibited as Ex.DW4/2, which shows the telephone number of Sh. Dharampal Malik as 27041234, and as per the deposition of the defendant as DW-1, this telephone number is also the telephone number of Sh. Raju Pardesi. The plaintiff has not cross-examined the defendant with respect to this relevant part of the statement of DW-1 that the phone number being 27041234 is not the common telephone number of the property dealer Sh. Raju Pardesi and Sh. Dharampal Malik.
CS(OS) No. 357/2006 Page 14 of 22
(ii) Quite clearly therefore defendant had accepted the cheque of Rs.10 lacs of Nainital Bank Limited as part consideration out of the total amount of Rs.25 lacs on signing of the Agreement on 5.10.2005 and that this cheque bounced. The original cheque of Rs.10 lacs dated 4.10.2005 drawn by Sh. Dharampal Malik on the defendant, Smt. Sheel Gulati has been filed and proved by the defendant as Ex.DW1/2 and the connected dishonour of cheque memo dated 11.10.2005 of the Nainital Bank Limited is proved and exhibited as Ex.DW1/3.
14. In view of the above detailed discussion, in my opinion, it was therefore the plaintiff who was guilty of breach of contract right from the outset inasmuch as out of the amount of Rs.25 lacs, an amount of Rs.10 lacs was not paid as the cheque for this amount issued in favour of the defendant bounced on presentation. Therefore, it is held that it is the plaintiff who is guilty of breach of contract right from the outset by failing to pay the initial amount of Rs.25 lacs as envisaged under the Agreement dated 5.10.2005.
15. In my opinion, plaintiff has also miserably failed to prove his readiness and willingness to perform the contract. Readiness and willingness has not been proved by the plaintiff either on the due dates of performance being 20.1.2006 or 20.2.2006 when the amounts of Rs.50 lacs CS(OS) No. 357/2006 Page 15 of 22 and Rs.25 lacs were to be paid by the plaintiff to the defendant, but also, the plaintiff has failed to prove readiness and willingness by showing that he had with him at all relevant times the balance amount of Rs.2.14 crores (assuming that even Rs.25 lacs was paid on 5.10.2005). Readiness and willingness no doubt is not to be proved by showing actual liquid moneys, however, plaintiff/proposed buyer must show that he has the capacity to pay the balance consideration. Capacity to pay is shown by the plaintiff either by having moneys in his bank account or in accounts of his family members which would be available to him or the plaintiff is shown to be a person of means owning properties for payment of the balance consideration of Rs.2.14 crores, however in the present case, except self-serving ipse dixit of plaintiff being ready and willing and having capacity to pay, not a single piece of paper has been filed to show that plaintiff at any point of time from January, 2006 till filing of the suit (and even thereafter) owned properties or had moneys in his bank account totaling to a sum of Rs.2.14 crores for payment of the balance sale consideration. In my opinion, a mere self- serving ipse dixit cannot be held to be discharge of onus of proof with respect to a very important issue of readiness and willingness which is required to be proved by a proposed buyer in terms of Section 16(c) of the Specific Relief Act, 1963. I must finally note that plaintiff was cross- CS(OS) No. 357/2006 Page 16 of 22 examined as to whether he has filed his income tax return for the years 2005 and 2006 in the court and the plaintiff had to concede that he had not filed his income tax return of these years. Filing income tax return was necessary to show that plaintiff is in his income tax return or in any public record had demonstrated that he had an amount of Rs.2.14 crores to pay the balance sale consideration and that he paid a sum of Rs.25 lacs to the defendant under the subject Agreement to Sell, and once the plaintiff fails to file his income tax return, this is another aspect which would go against the plaintiff with respect to the plaintiff having not paid a sum of Rs.25 lacs to the defendant on 5.10.2005 or having means to pay the balance sale consideration. Accordingly, plaintiff clearly has failed to prove his readiness and willingness and has therefore failed to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963.
16(i). Counsel for the plaintiff on the aspect of readiness and willingness has placed reliance upon the judgment of the Supreme Court in the case of Narinderjit Singh Vs. North Star Estate Promoters Limited (2012) 5 SCC 712 to argue that the plaintiff need not have ready moneys available with him to prove readiness and willingness, and for which purpose plaintiff relies upon paras 19 and 20 of this judgment. It is however CS(OS) No. 357/2006 Page 17 of 22 noted that not only these paras 19 and 20 of this judgment go against the plaintiff but in this judgment there is a subsequent para 22 which categorically goes against the plaintiff. In the judgment of the Supreme Court in the case of Narinderjit Singh (supra), readiness and willingness was proved by no less than a bank draft which was made by a proposed buyer/plaintiff and in such circumstances readiness and willingness was held to be proved. The Supreme Court has observed that readiness and willingness is a factual issue to be proved and factual issues whether proved or not depend upon facts of each case and applying this ratio surely once the plaintiff has miserably failed to lead any evidence with respect to his bank accounts or properties, plaintiff in the present case has clearly failed to discharge the onus of proving of his readiness and willingness.
(ii) Reproduced below are the paras 19, 20 and 22 of the judgment of the Supreme Court in the case of Narinderjit Singh (supra):-
"19. The learned Single Judge also considered the issue of readiness and willingness of the Respondent to perform its part of the agreement and observed:
"The factum of readiness and willingness to perform the Plaintiff's part of the contract is to be adjudged with the conduct of the parties and the attending circumstances. In the present case, it may be noticed that according to the terms and conditions of the agreement in question, the Plaintiff- Respondent was to make a payment of Rs. 9,00,000/- to the Appellant on 23-11-1996 and on receipt of the aforesaid payment, the Appellant was to allow the CS(OS) No. 357/2006 Page 18 of 22 Plaintiff-Respondent to carry out the development activities. However, it has been established on record that the Appellant refused to receive the aforesaid amount of Rs. 9,00,000/- on 23- 11-1996. There is no evidence on record that the Appellant ever allowed the Plaintiff- Respondent to carry out development activities in the land in question. Thus, thereafter, there was no occasion for the Plaintiff-Respondent to further perform its part of the contract on subsequent dates as argued. Still there is no evidence on record placed by the Appellant to prove the fact that the Plaintiff- Respondent was not ready to get the sale deed executed on subsequent dates as per the terms and conditions of the agreement in question. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness, may be meant the capacity of the Plaintiff to perform the contract which includes his financial position to pay the purchase price whereas determining the willingness to perform his part of the contract, the conduct of the parties has to be scrutinized. In the present case, there is no evidence placed on record to show that the Plaintiff-Respondent was not having the capacity to pay the purchase price for execution of the subsequent sale deeds. The Plaintiff-Respondent had demonstrated his willingness to pay Rs. 9,00,000/- on 23-11-1996 by placing on record the demand draft of Rs. 9,00,000/- in favour of the Appellant. However, as noticed above, since the Appellant refused to accept the same, the Plaintiff-Respondent was prevented from performing its part of the agreement by offering money for execution of the sale deeds on subsequent dates."
20. In our view, the concurrent findings recorded by the trial Court and the lower appellate Court on the issues of execution of the agreement by the Appellant's father and the Respondent's readiness and willingness to perform its part of the agreement were based on correct evaluation of the pleadings and evidence of the parties and the learned Single Judge of the High Court did not commit any error by refusing to upset those findings. The argument of the learned senior Counsel for the Appellant that in the absence of specific pleading about continued readiness and willingness of the Respondent to perform its part of the agreement and availability of funds necessary for payment of the sale consideration, the High Court should have set aside the concurrent finding recorded by the Courts below sounds attractive but on a careful scrutiny of the record we do not find any valid ground to entertain the same.
CS(OS) No. 357/2006 Page 19 of 22
xxxxx
22. In N.P. Thirugnanam v. R. Jagan Mohan Rao: (1995) 5 SCC 115, the Court found that the Appellant was dabbling in real estate transaction without means to purchase the property and observed:
(SCC pp.117-18, para 5) "5....Section 16(c) of the Act envisages that Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the Defendant. The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the Plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the Plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the Defendant must of necessity be proved to be available.
Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready and willing to perform his part of the contract."
(underlining added)
(iii) In the above reproduced para 22 of the judgment in the case of Narinderjit Singh (supra), the Supreme Court has relied upon its earlier judgment in the case of N. P. Thirugnanam Vs. R. Jagan Mohan Rao (1995) 5 SCC 115 [para 5 of which judgment has been reproduced in para CS(OS) No. 357/2006 Page 20 of 22 22 of the judgment in the case of Narinderjit Singh (supra)] and this para makes it more than abundantly clear that amount of consideration which a buyer must pay to the seller must be necessarily proved to be available and only on proof of which readiness and willingness would stand established.
(iv) In my opinion, therefore the judgment of Narinderjit Singh's case (supra) relied upon by the plaintiff in fact goes against the plaintiff inasmuch as there is no dispute to the legal proposition that proof of readiness and willingness depends upon facts of each case, but, as stated above plaintiff in this case has clearly failed to discharge the onus upon him of his always being and continuing to be ready and willing to perform his part of the contract.
17. In view of the above, issue nos.1 to 3 are hence decided against the plaintiff and in favour of the defendant.
18. I may note that this suit is of 2006 vintage. Plaintiff has by means of the present suit put the property of the defendant under litigation for about 10 years. The plaintiff was even successful in obtaining an interim injunction against the defendant with respect to not selling of the property vide Order of a learned Single Judge of this Court dated 4.4.2006. Facts of the case demonstrate that the plaintiff is a speculator who had no moneys CS(OS) No. 357/2006 Page 21 of 22 with him and by virtue of wanting to entangle the defendant in litigation, plaintiff has sought to make illegal gains. Accordingly, in my opinion, defendant will be entitled to actual costs in terms of the observations made hereinafter.
Relief
19. In view of the above, the suit of the plaintiff for specific performance is dismissed. Defendant will be entitled to actual costs being the amounts spent by the defendant in this litigation including the payments made by the defendant to her lawyers. Let the defendant file an affidavit stating the costs incurred by the defendant with respect to the present litigation including payments made to her lawyers, and such amounts as stated in the affidavit will be the costs awarded against the plaintiff and in favour of the defendant. Alongwith the affidavit, certificate of fees of the lawyers with respect to the fees which the defendant has paid be filed so that the same can be taken as costs in terms of the present directions. Decree sheet be prepared.
AUGUST 19, 2015 VALMIKI J. MEHTA, J.
Ne/nn
CS(OS) No. 357/2006 Page 22 of 22