Madhya Pradesh High Court
Shri Laxmi Narayan S/O Ram Charan ... vs Brijlal (Deceased) Through L.Rs. Ravi ... on 4 September, 1997
Equivalent citations: 1999(2)MPLJ199
Author: Dipak Misra
Bench: A.K. Mathur, Dipak Misra
JUDGMENT Dipak Misra, J.
1. Correctness of the judgment passed in First Appeal No. 147/84 by a learned Single Judge of this Court reversing the judgment and decree passed by the learned Additional District Judge, Chhatarpur in C.S.No.2-A/83 wherein, the relief of specific performance was granted, is called in question by the plaintiff-appellant.
2. The present appellant instituted in C.S.No.2-A/83 for specific performance of contract on the basis of the document dated 11-3-1980 (Ex.P-1) executed by the original defendant, Brijlal, in favour of the plaintiff to sell his house for consideration of Rs. 50,000/-. According to the plaintiff a sum of Rs. 12,500/- was paid on the date of agreement and the balance of Rs. 37,500/- was agreed to be paid at the time of registration of the document. Requisite expenses for execution and registration of the sale-deed were to be borne by the purchaser. The sale-deed was to be registered on or before 14-4-1980. It was further averred in the plaint that on 16-4-1980 a portion of the suit house was delivered to the respondents after receiving a further amount of Rs. 1,000/- towards balance of sale-consideration which was required by the defendant to discharge a decretal debt. It was put forth by the plaintiff that the defendant avoided to execute the sale-deed though he was noticed to do so after receiving balance amount of sale consideration. It was pleaded by the plaintiff that he was ready and willing to pay sum of Rs. 37,500/- the balance of the sale-consideration, if payment of Rs. 1,000/- paid on 16-4-1980 was not accepted by the Court.
3. The defendant resisted the prayer by asserting that one of the material terms between the parties was about reconveyance of the property, if the sale consideration was repaid within five years from the date of sale but the defendant did not agree to incorporate this term in the sale-deed and, therefore, the sale-deed could not be executed. The alleged payment of Rs. 1,000/- on 16-4-1980 was controverted. It was also alleged that the plaintiff did not perform his part of his contract and, therefore, he was not entitled to a decree for specific performance.
4. The learned Additional District Judge who disposed of the suit did not believe the alleged payment of Rs. 1,000/- on 16-4-1980 but on consideration of the fact of readiness and willingness on the part of the plaintiff to pay the balance amount of sale-consideration and taking into consideration the other aspects he decreed the suit for specific performance. Being dissatisfied with the said judgment and decree the original defendant preferred the First Appeal.
5. Before the learned Single Judge it was contended that the time was the essence of contract and as the plaintiff had failed to get the sale-deed executed and registered within the stipulated time his right to claim specific performance stood extinguished. It was also canvassed before the learned Judge that the plaintiff had failed to prove his readiness and willingness to perform his part of the contract inasmuch as he had not proved the availability of adequate funds for payment of the balance amount of the sale consideration. The aforesaid contentions were resisted by the plaintiff respondent. It was highlighted by the defendant that the plaintiff had prayed for extension of time on 26-7-1984 before the court below for payment of the sale consideration and requisite expenses for execution of the sale-deed. The learned Single Judge negatived the contention that time was the essence of contract and came to hold that in absence of stipulation between the parties to treat the time was the essence of contract, the argument had no substance. He came to hold that the plaintiff had failed to prove his readiness and willingness as required under the law, and, therefore, he was not entitled to a decree for specific performance and, accordingly reversed the decree passed by the court below. As no alternative prayer for refund of Rs. 12,500/- was made by the plaintiff he directed the plaintiff to file an application for amendment of plaint in accordance with the proviso to Section 22(2) of the Specific Relief Act, 1963 (hereinafter referred to as the 'Act'). The costs to the tune of Rs. 6,306/- which was deposited by the defendant in the court below and withdrawn by the plaintiff, was directed to be refunded by the plaintiff. The said reversal is the cause of grievance of the plaintiff-appellant.
6. Mr. T. C. Naik, learned counsel for the appellant, assailing the aforesaid judgment has contended that the learned Single Judge has clearly fallen into error by holding that the plaintiff had failed to prove his readiness and willingness as enjoined in law. He has urged with vehemence that the appellate Judge has not properly construed the pleadings of the plaintiff and has erroneously drawn adverse inference because the plaintiff had put forth that if eventually payment of Rs. 1,000/- was not accepted he was prepared to pay the entire sum, for this no adverse inference could have been drawn to arrive at the conclusion that the plaintiff was not ready and willing to perform his part of the contract. It is further submitted by Mr. Naik that the learned Single Judge has given undue emphasis on the extension prayed for by the plaintiff to deposit the amount in the court below and has incorrectly invoked the power under Section 28(1) of the Act for rescission of the contract.
Mr. Rakesh Jain, learned counsel for the respondents, refuting the submissions of the learned counsel for the appellant, has proponed that the findings of the learned Single Judge with regard to the absence of readiness and willingness on the part of the plaintiff is based on cogent and acceptable reasonings on proper appreciation of facts and on due consideration of the obtaining circumstances and therefore, no fault can be found with his conclusion. Mr. Jain has also highlighted the conduct of the plaintiff in not depositing the amount within the stipulated time and seeking extension to comply with the Court's order, to further his contention that it is a clear proof of absence of readiness and willingness warranting rescission of the contract.
7. Considering the essence of the rival submissions raised at the Bar the sole question that falls for determination is whether the learned Single Judge was justified in his conclusion with regard to absence of readiness and willingness on the part of the plaintiff to perform his part of the contract. On a survey of facts we find it is not disputed that Rs. 12,500/- was paid on the date of the agreement and the balance sum of Rs. 37,500/- was payable subsequently on the date of registration of the document. The learned Single Judge has taken exception to the offer made by the plaintiff to pay Rs. 36,500/- and the fact of non-mention in the two notices (Ex.P-4 and Ex.P-8) to the effect that if the defendant disputed the receipt of amount of Rs. 1,000/-on 16-4-1980, he (the plaintiff) was ready and willing to pay the total sum as stipulated in the agreement. While sending the notices the plaintiff has clearly asserted that he had given Rs. 1,000/- as requested by the defendant. It would have been contrary to the normal human conduct to suggest that if the defendant disputed the payment of said amount, the plaintiff would make good of the amount in entirety. We are of the considered view that the exception taken on this score is not justified. We have not been able to persuade ourselves to accept this finding of the learned Single Judge. We also notice that the averment in the plaint is to the effect that the plaintiff was always ready and willing and is still ready and willing to perform his part of the contract by paying Rs. 36,500/-, alternatively whole amount if the Court ultimately reached the conclusion that the payment of Rs. 1,000/- was not proved. The learned Single Judge has taken this as a conditional offer and thereby has drawn the conclusion that the averment, would not constitute complete readiness and willingness as enjoined under Section 16(l)(c) of the Specific Relief Act. This conclusion of the learned Single Judge does not appear to be correct inasmuch as the offer in question was not a conditional one. In fact, the plaintiff from the very beginning made it clear that if the Court did not accept the payment of Rs. 1,000/- he was ready and willing to pay the whole sum. This being the positive averment in the plaint, we are of the considered view that the analysis of the learned Single Judge in this regard is vulnerable.
8. On a perusal of the judgment it is noticed that the learned Judge has taken into consideration the conduct of the plaintiff in not depositing the amount as directed by the learned trial Judge and on such consideration has come to the conclusion that there was absence of readiness and willingness on the part of the plaintiff. The trial Court had directed to pay the amount of Rs. 37,500/- and the requisite expenses for stamp duty and registration charges within a period of six months from the date of the decree i.e. on or before 27-7-1984. This Court in the First Appeal granted interim stay on 10-8-1984 which was made absolute by order dated 9-4-1985. The learned Judge has taken the view that as there was no prohibition to deposit the amount the plaintiff could have deposited the amount. He has also observed that there was no order postponing the date fixed by the Court below for payment of the amount in question. The learned Single Judge has observed that as the plaintiff did not deposit the amount within the time stipulated, a case for rescission of the decree had arisen. We notice that the plaintiff had filed an application on 26-7-1984 for extension of time for payment of the sale consideration. It was also submitted before the learned Single Judge that after the stay order was passed the plaintiff did not deposit the amount but offered the same to the defendant on 29-7-1991 and on the next date of hearing of the appeal. The learned Single Judge has observed that the stay order passed by this Court did not prohibit the plaintiff from depositing the amount as per the direction of the trial Court. On a perusal of the stay order passed on 10-8-1984 we find this Court directed that if the decree was not executed by then it would remain stayed subject to depositing of the costs/Once there was stay of execution of the decree it is not expected that the plaintiff would deposit the amount in question. Quite apart from this an application for extension was filed, as contended by the defendant appellant one day before the expiry of the time granted by the Court below. Nothing was brought on record before the learned Single Judge that the said application was rejected by the Court below. The same could not have been dealt with because of the stay order passed by this Court. Ignoring this aspect the learned Single Judge referred to Section 28(1) and came to hold that a case for rescission of the decree had arisen and the Appellate Court was entitled to rescind the decree.
9. It is to be borne in mind that readiness and willingness has to be determined on consideration of the facts in entirety and the circumstances which are relevant for the same. In the case of N.P. Thirugnanam v. R. Jaganmohan Rao (Dr.), (1995) 5 SCC 115, the Apex Court held thus :-
"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."
In the said case the Apex Court held that the plaintiff was dabbling in real estate business without means to purchase the property and his non-depositing of the consideration amount in compliance with the order of the trial Court, disentitled him to obtain the equitable relief. We have referred to the aforesaid decision as the principles enunciated therein, make it plain as day that the entire gamut of facts are to be taken into consideration to appreciate the factum or readiness and willingness on the part of the plaintiff. In the case at hand, the trial Court on appreciation of the relevant facts and the evidence, has come to the conclusion that the plaintiff was ready and willing to perform his part of the contract. The learned Single Judge has taken exception to the fact that the plaintiff made a conditional offer and, therefore, it cannot be said that he was ready and willing. This, we have already indicated, is not the correct approach as the plaintiff in actuality had not made a conditional offer but had clearly stated that he had made some payment and if that was not accepted he was ready and willing to pay entire sum. In any case, that does not mar the case of the plaintiff as such an averment would not give rise to absence of readiness and willingness.
The exception taken for not depositing within the time granted by the learned Single Judge, requires close scrutiny. To appreciate the conclusion reached by him it is essential to refer to Section 28(1) of the Specific Relief Act, which reads as follows :-
"28(1) wherein, in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require."
On a fair reading of the said provision it is apparent that the Court can extend the period for payment of the purchase money for other sum. The plaintiff, as submitted by the defendant, had filed an application for extension of time. As stated, the provision envisages the vendor also is entitled to apply to have the contract rescinded because of default of the party. In the case at hand, the defendant had not filed any application for rescission of the contract. At this juncture, we may refer to the decision rendered in the case of K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, AIR 1980 SC 512, wherein, the Apex Court held that the final end of law is justice, and accordingly, at the stage of appeal before the Supreme Court extended the time to make the deposit.
Recently, in the case of Yasoda v. K. Nagarjun, (1996) 11 SCC 228 the Apex Court has reiterated that the Court has power to enlarge the time and the Court can exercise the discretion in this regard.
In view of the aforesaid analysis, we are of the considered opinion that there was no justification to rely upon the provision under Section 28(1) to set aside the judgment and decree passed by the learned trial Judge.
10. Consequently, we conclude and hold that the reversal of the judgment and decree of the Court below on both counts by the learned Single Judge is not sustainable and accordingly, we set aside the decree passed by the learned Single Judge and direct restoration of the same passed by the learned trial Judge. It is further directed that the plaintiff-appellant shall deposit the balance sum of consideration before the Court below within six weeks from today, failing which the contract shall stand automatically rescinded.
11. Resultantly, the appeal is allowed. However, in the facts and circumstances of the case, the parties shall bear their respective costs for this appeal.