Madhya Pradesh High Court
Yogesh Kumar vs Subhash on 14 July, 2009
HIGH COURT OF MADHYA PRADESH AT JABALPUR
FIRST APPEAL NO.727/2005
Yogesh Kumar
- V/s -
Subhash and another
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Mrigendra Singh, Advocate, for the appellant.
Shri Prakash Bhave, learned Senior Counsel with Shri Bhanu
Pratap Yadav for respondent no.1
Shri Sudesh Verma, learned Govt. Advocate, for respondent
no.2.
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JUDGMENT
(22-07-2009) This is defendant appeal under Section 96 of the Code of Civil Procedure, challenging the judgment and decree for specific performance, granted by the learned Second Additional District Judge, Jabalpur, in Civil Suit No.96-A/2004, on 22-07-2005.
2. Plaintiff/respondent no.1 Subhash Kesharwani had filed the suit in question for specific performance of a written agreement dated 13-03-1995 (Ex.P-1),executed between the plaintiff and respondent Yogesh Kumar Awasthy. The agreement in question was in respect to agricultural land, bearing Khasra No. 65( Old No.49/3) measuring 0.83 hectares situated at Mouja Raigawan, Settlement No.398, Patwari Halka No.27, Tehsil and District Jabalpur.
3. According to the plaintiff, the agreement was for sale of the aforesaid property for a total consideration of Rs.3,00,000/- (Rupees Three Lacs) i.e. at the rate of 1,50,000/- (One Lac and Fifty Thousand) per acre. At the time of execution of the agreement, a sum of Rs.25,000/- (Rupees Twenty Five Thousand) was paid as advance by the plaintiff to the 2 defendant and it was further agreed to that the sale deed shall be executed on or before 30th of July, 1995. According to the agreement, the defendant was to obtain a 'No Objection Certificate' from the Town and Country Planning Department prior to the execution of the sale deed.
4. It was the case of the plaintiff before the trial court that after execution of the agreement even though the remaining amount was agreed to be paid at the time of execution of the sale deed but at the request of defendant the following amounts were paid by the plaintiff :
Rs.25,000/- on 13-04-1995 Rs.25,000/- on 28-04-1995 Rs. 5,000/- on 29-04-1995 Rs.10,000/- on 03-05-1995 Rs. 5,000/- on 16-05-1995 Accordingly, a total sum of Rs.95,000/- was paid as advance and towards part payment of the consideration. It is the case of the plaintiff that the defendant obtained 'No Objection Certificate' from the Town and Country Planning Department on 06-05-1995 and on the basis of the same on 16-05-1995, when the sum of Rs.5000/- was deposited by the plaintiff, possession and Rin Pustika were granted to the plaintiff, who started cultivating the land by sowing paddy on 12-06-1995. However, when the defendant was not executing the sale deed, notices were sent by the plaintiff on 16-6-1995 and again on 21-07-1995, requesting the defendant to execute the sale deed before 30-07-1995. It is stated even though the notice dated 21-07-1995 was received by the defendant on 27-04-1995, he did not execute the sale deed, instead served a notice to the plaintiff on 9-7-1995 through his minor daughter Ku.Roshni Awasthy claiming that the suit property is a joint family ancestral property and defendant Yogesh Kumar does not have any right to sell the same. Thereafter it is stated by the plaintiff that a legal notice was sent on 29-08-1995 pointing out that the defendant visited the plaintiff on 25-07-1995 for executing the sale deed , thereafter he waited in the office of the Sub Registrar on 27-07-1995 upto 3 P.M. but the plaintiff did not turn up, inspite of oral communication made. The defendant on these grounds submitted that now the agreement cannot be executed. The plaintiff served another notice dated 3 02-09-1995 requesting the defendant to attend the office of the Sub Registrar on 11-09-1995. However, when the defendant refused to execute the sale deed and perform this part of the obligation as per the agreement, suit in question was filed. It is further pointed out that after sending notice through his minor daughter the defendant also issued another public notice issued in Daily News Paper 'Deshbandhu' dated 14-06-1995 through his wife and son, informing the general public that the property is a joint family property and therefore, nobody should purchase it. On the basis of the aforesaid allegation, the plaint was filed and the prayer made was that the defendant was not performing his part of the agreement and intentionally was avoiding execution of the sale deed in accordance to the agreement and therefore the decree for specific performance was prayed for.
5. The defendant refuted the aforesaid contentions and pointed out that the plaintiff was not ready to perform his part of the agreement , he has not prepared the sale deed and kept the documents and finance ready even after Rin Pustika and 'No Objection Certificate' from the Govt. Department was submitted on 16-05-1995, when the defendant waited for the plaintiff in the office of the Sub Registrar on 27-07-1995 to execute the sale deed, he did not turn up and as the time for execution of the sale deed had expired on 30-07-1995, it is stated that now the agreement cannot be put to execution.
6. Accordingly the defendant resisted the claim of the appellant. On the basis of pleadings of the parties, following 5 issues were framed :
(i) Whether the plaintiff was always and presently is willing and ready to get the sale deed executed.?
(ii) Whether defendant failed in performing his part of contract within the stipulated period.?
(iii) Whether the defendant can be directed to execute the sale deed after payment of the remaining amount of sale consideration.?
(iv) Whether in event of the defendant's failure the plaintiff is entitled to get the sale deed executed through court after depositing the remaining amount of consideration.?4
(v) Whether the defendant is entitled to receive a sum of Rs.5000/- as c compensation from the plaintiff.?
7. In support of his contention, the plaintiff examined himself as PW-1, PW-2 Virendra Sharma and PW-3 Pramod Jain. He further filed 19 documents in support of his contention. The defendant examined himself as DW-1 and three other witnesses DW-2, Shailendra Pratap Singh as DW-3 and Dinesh Singh Thakur as DW-4. On the basis of evidence and material that came on record, the learned trial court found that the plaintiff was willing and ready to perform his part of the agreement. It was the defendant who had failed to perform his part of agreement, within the stipulated period and therefore, the suit for specific performance of the agreement was decreed. Challenging the aforesaid judgment and decree this appeal is filed under Section 96 of C.P.C.
8. Shri Mrigendra Singh, learned counsel for the appellant taking me through the statements of plaintiff PW-1 Subhash Chand , Branch Manager of the Bank (PW-2), Virendra Sharma and other witnesses available on record, tried to demonstrate that the plaintiff had only kept some money ready in the account of his wife, daughter and son, he was not having the money himself in his account and therefore, the finding recorded by the trial court that the plaintiff was ready with the money and willing to execute the sale deed is a perverse finding. It was further argued by him that under the agreement it was the plaintiff who was to prepare the sale deed and get it executed. The plaintiff at no point of time showed the same to be prepared or informed the defendant to come to the office of the Sub Registrar for execution of the sale deed, it is stated that time was the essence of contract and as the plaintiff has failed to perform his part of the agreement within the time stipulated i.e. on or before 30-07-1995, judgment and decree for specific performance is unsustainable. It is further argued by Shri Mrigendra Singh, learned counsel for the appellant that the learned court below has recorded a finding rejecting the claim of the defendant that he was present in the office of the Sub Registrar on 27-07-1995 on improper consideration of the evidence, at the same time the court below has accepted similar evidence given by the plaintiff to the effect that he was present alongwith his 5 witnesses in the office of the Sub Registrar on 02-09-1995 It is stated that different yardsticks were followed by the learned trial court in decreeing the suit, contending that the plaintiff has failed to prove that he was ready and willing to perform his part as per the agreement, no decree for specific performance could be passed. It was further stated that the time was essence of the contract and as the time period had lapsed before the plaintiff become ready to perform his part of the contract, the suit cannot be decreed. It was further stated that the plaintiff has failed to establish that he had sufficient amount to execute the contract, contending that requirement of Section 16-C of the Specific Relief Act is not complied with, learned counsel prays for allowing this appeal and interfering with the order of the court below. In support of his contention Shri Mrigendra Singh, learned counsel for the plaintiff has placed reliance on the following judgments :
1996(6) SCC 587 (Inder Mani and others Vs. Matheshwari Prasad and others) 2005(4) MPHT-441 (Leeladhar Yadav Vs. Siddhartha Housing Co-operative Society Ltd. Garha) AIR 1996 SC 2510 (Sukhbir Singh and others Vs. Brij Pal Singh and others) AIR 2003 SC 1391 Manjunath Anandappa Urf Shivappa Hansi Vs. Tammanasa and others)
9. Shri Prakash Bhave, learned senior counsel appearing for respondent no.1 refuted the aforesaid and submitted that time was not essence of the contract, the agreement in question was to be performed within a reasonable time and by taking me through the statement of PW-1 Subhash, PW-2 Virendra Sharma and PW-3 Pramod Jain and the statement of defendant DW-1 Yogesh Kumar,Shri Bhave, learned Senior Counsel tried to demonstrate before this court that the plaintiff was willing to perform his part of the agreement and the defendant by deliberately sending the notice through his minor daughter had tried to refuse performance of the agreement and by his conduct displayed his unwillingness to perform the contract, contending that the findings recorded by the court below is proper and based on due appreciation of the 6 evidence available on record, Shri Bhave, submits that no case is made out for interference into the matter.
10. Taking me through the finding recorded by the trial court in the judgment and elaborately dealing with the evidence on record, learned Senior Counsel tried to demonstrate that each and every finding recorded by the trial court is based on due appreciation of the evidence that has come on record and therefore, the same does not warrant any interference. Contending that the plaintiff has proved that he was always willing to perform his part of the agreement and the requirements of Section 16(c ) of the Specific Relief At are complied with Shri Bhave sought for dismissal of this appeal. In support of his contention he invites attention of this court to the following judgments :
2004(1)MPLJ 502 ( Godavari Bai Vs. Pandit s/o Ramu and others) 2007(1) MPLJ 589 (Parmanand Soni and others Vs. Radhakrishna Dharmartha Pvt. Trust and others).
11. I have heard the learned counsel for the parties at length and perused the record. From the records, it is seen that the learned trial court after framing 5 issues as indicated hereinabove has taken note of the pleadings, documents available and the evidence adduced and has recorded a finding after considering the questions based on various principles laid down in the judgments referred to in the order. The agreement in question, specific performance of which is sought for is Ex.P-1 dated 13-03-1995. As per this agreement the parties agreed for sale of the land in question for a consideration at the rate of Rs.1,50,000/- per acre . Rs.25,000/- as advance was paid and the remaining amount was to be paid at the time of execution of the sale deed and registering it. The parties agreed for execution and registration of the sale deed by 30-07-1995. It was further agreed that the defendant shall hand over vacant possession at the time of registration of the sale and before registration, he shall obtain 'No Objection Certificate' and other documents from the Govt. Department. It was further agreed that for the purpose of passage to the ancestral property of the defendant certain area measuring 7 dismal shall be left.
712. During the course of hearing Shri Mrigendra Singh, learned counsel for the appellant tried to emphasize that the plaintiff was not willing to construct this passage and therefore there is non performance on his part on this count also.
13. The moot question that arises for consideration now in this appeal is as to whether plaintiff was willing to perform his part of the agreement and whether there was any default committed by him or default is committed by the defendant. Section 16-C of the Specific Relief Act 1963, which is relevant for deciding the appeal in question reads as under :
"16(C ). Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.- For the purpose of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court ;
(ii) the plaintiff must ever performance of, or "readiness" and "willingness" to perform, the contract according to its true construction."
This section provides that a person who is seeking specific performance of a contract should file a suit wherein he must aver and prove that he has performed or he was ready and willing to perform the essential term of the contract which are to be performed by him. The words 'ready' and 'willing' would imply that the plaintiff was prepared to carry out those responsibilities envisaged in the contract to the logical end so far as it relates to his performance. The Allahabad High Court in the case of Biaji Bahadur Vs. Shiv Kumar, AIR 1985, Allahabad 223 and the Delhi High Court in the case of Raj Rani Bhasin Vs. Kartar Singh Mehta, AIR 1975Del. 175 have evaluated the distinction between readiness and willingness and the principles underlying Section 16(c ) is also explained. According to the principles laid down in the aforesaid two 8 judgments, it is laid down that the 'willingness' is the mental process whereas 'readiness' is something to do with translating the willingness into action, it includes the necessary preparation for the purpose of action. Willingness is the mental process to do the act and readiness is the ultimate physical manifestration of the same.
14. In the present case according to the plaintiff he had performed his part of the agreement by paying advance of Rs.25,000/- and thereafter various on 13-04-1995, 28-04-1995, 29-04-1995, 03-05-1995 and 16-05-1995 respectively, even though as per the agreement no amount was to be paid. A perusal of the endorsement made in the agreement Ex-P-1 indicates that even though after payment of Rs.25,000/- no further amount was to be paid but various amounts are paid at portions marked E to E, F to F,, G to G, K to K and J to J in the agreement, the total amount so paid on various dated comes to Rs.65,000/-. It is, therefore, clear that after execution of the agreement on 13-03-1995 and upto 16-05-1995 the defendant had been receiving various amounts from the plaintiff in pursuance to the agreement and therefore, by this conduct parties had shown that the agreement was subsisting. The aforesaid facts are clear if the statement of plaintiff PW-1 Subhash alongwith the endorsement made in the back side of the agreement Ex.P-1 are taken note of. The defendant himself has made admission about receipt of Rs.5000/- on 16-05-1995 vide Ex.P-1 and then obtained the NOC from the Town and Country Planning Department on 6-5-1995 vide Ex.P-4. From the aforesaid evidence that have come on record, it is clear that till payment of Rs.95,000/-and upto 16-05-1995 both the parties were performing certain act in furtherance to the agreement. After 16-05-1995, records indicate that the plaintiff served a notice on the defendant vide Ex.P-8 on 19-06-1995 informing him that a total sum of Rs.95,000/- has been paid, he is willing to fulfill the remaining part of the contract and he therefore sought for execution of the sale deed. Even though this notice is sent vide registered post acknowledgment due, receipt of which is Ex.P-9, defendant has not responded to notice. Thereafter, another notice is sent vide Ex.P-11 on 21-07-1995 by the plaintiff to the defendant wherein again the plaintiff expressed his willingness to perform his part of the contract and requested 9 the defendant to execute the sale deed. This notice is received by the plaintiff on 24-07-1995 as is apparent from the acknowledgment Ex.P-13. Even after receipt of these two notices, it seems that the defendant did not take any action, he did not reply to the notice. On the contrary the plaintiff received a notice Ex.P-10 on 9-7-1995 from the daughter of the defendant Ku.Roshni Awasthy, a minor through her Advocate Shri A.K.Mishra, indicating that the sale cannot be executed as the property is a joint family property and the defendant has no right to sell the property. Apart from the aforesaid from the evidence of plaintiff PW-1 Subhash read alongwith statement of his witness PW-2 Shri Virendra Sharma, it would be seen that PW-2 was Manager of Syndicate Bank , Khoba Mandi Jabalpur and plaintiff's wife Smt. Meera Kesharwan, his daughter Ku. Sarika Kesharwani and son Abhishak Kesharwani had various accounts and deposits in the said bank and out of the deposit available in the accounts of these family members the plaintiffs had managed to raise a sum of Rs.2,47,467/-. From the statements of these witnesses, it is seen that upto 27-07-1995, the plaintiff has raised the aforesaid amount and he had sufficient funds to pay the remaining amount of consideration i.e. Rs. 2,05,000/- in furtherance to the agreement. The learned court below has found that by showing the availability of fund in the account of his wife, daughter and son who are staying with him and who are dependent on the plaintiff and by issuing notice Ex.P-8 and Ex.P-11 the plaintiff has shown his readiness and willingness to perform his part of the agreement.
15. Shri Mrigendra Singh, learned counsel for the appellant tried to rebut the aforesaid contentions and by pointing out that the amount was not lying in the account of the plaintiff, the amount was lying in the account of his dependents and as plaintiff had not given any date for appearance of the defendant to execute the sale deed or shown his intention to construct the passage, it was stated that he was not willing to perform his part of the agreement and therefore, specific performance cannot be claimed.
16. The aforesaid contentions of Shri Mrigendra Singh,learned counsel for the appellant has to evaluated in the light of the principles laid down by the Supreme Court in the case of Sukhbir Singh(supra) relied upon by Shri Bhave, learned counsel for respondent no.1, so also the principles 10 laid down in the case of Aniglase Yohannan Vs. Ramlatha and others, AIR 2005 SC 3503. In the aforesaid case the matter is so dealt with in paras 9 to 12 :
9. The requirements to be fulfilled for bringing in compliance of the Section 16(c) of the Act have been delineated by this Court in several judgments. Before dealing with the various judgments it is necessary to set out the factual position. The agreement for sale was executed on 15-2-1978 and the period during which the sale was to be completed was indicated to be six months. Undisputedly, immediately after the expiry of the six months period lawyer's notice was given calling upon the present appellant to execute the sale deed. It is also averred in the plaint that the plaintiff met the defendant several times and requested him to execute the sale deed. On finding inaction in his part, the suit was filed in September, 1978. This factual position has been highlighted in the plaint itself. Learned single Judge after noticing the factual position as reflected in the averments in the plaint came to hold that the plaint contains essential facts which lead to inference to plaintiffs readiness and willingness. Para 3 of the plaint indicates that the plaintiff was always ready to get the sale deed prepared after paying necessary consideration.
In para 4 of the plaint reference has been made to the lawyer's notice calling upon the defendant to execute the sale deed. In the said paragraph it has also been described as to how after the lawyer's notice was issued plaintiff met the defendant. In para 5 it is averred that defendant is bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defendant. It is also not in dispute that the balance amount of the agreed consideration was deposited in Court simultaneously to the filing of the suit. While examining the requirement of Section 16(c) this Court in Syed Dastagir v. T. R. Gopalakrishna Setty (1999 (6) SCC 337) noted as follows "So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, 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 of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be 11 only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific 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 perform 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 a mechanical production of the exact words of a statute, is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."
(Emphasis supplied) Again in Motilal Jain v. Ramdasi Devi (Smt.) and Ors. (2000 (6) SCC 420) it was noted as follows :
"The other contention which found favour with the High Court, is that plaint averments do not show that the plaintiff was ready and willing to perform his part of the contract and at any rate there is no evidence on record to prove it. Mr. Choudhary developed that contention placing reliance on the decision in Varghese case ((1969) 2 SCC 539). In that case, the plaintiff pleaded an oral contract for sale of the suit property. The defendant denied the alleged oral agreement and pleaded a different agreement in regard to which the plaintiff neither amended his plaint nor filed subsequent pleading and it was in that context that this Court pointed out that the pleading in specific performance should conform to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure. That view was followed in Abdul Khader case (1989) 4 SCC 313 :
(AIR 1990 SC 682)."
However, a different note was struck by this Court in Chandiok case (1970) 3 SCC 140 : (AIR 1971 SC 1238). In that case 'A' agreed to purchase from 'R' a leasehold plot. 'R' was not having lease of the land in his favour from the Government nor was he in possession of the same. 'R' however, received earnest money pursuant to the agreement for sale which provided that the balance of consideration would be paid within a month at the time of the execution of the registered sale deed. Under the agreement 'R' was under obligation to obtain permission and sanction from the Government before the transfer of leasehold plot. 'R' did not take any steps to apply for the sanction from the Government. 'A' filed the suit for specific performance of the contract for sale. One of the contentions of 'R' was that 'A' was not ready and willing to perform his part of the contract. This Court observed that readiness and willingness could not be treated as a strait-jacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. It was held that in the absence of any material to show that 'A' at any stage was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained, 'A' was entitled to a decree for specific performance of contract.
12That decision was relied upon by a three-Judge Bench of this Court in Syed Dastagir case (1999) 6 SCC 337) wherein it was held that in construing a plea in any pleading, 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 of one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed :
"Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any speific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform 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."
It is thus clear that an averment of readi ness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale."
10. Lord Campbell in Cork v. Ambergate etc. and Railway Co. (1851) 117 ER 1229 observed that in commonsense the meaning of such an averment of readiness and willingness must be that the non-comple- tion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it had it not been renounced by the defendant.
11. The basic principle behind Section 16(c) read with Explanation
(ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
12. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors. (AIR 1994 SC
105) that the plaintiff had substantiated his plea."
(Emphasis supplied) The averments made by the plaintiff in the plaint and his conduct indicate that he was ready with the money which was available in the 13 Bank account as is established from the evidence of PW-2 Virendra Sharma and was willing to perform his part of the contract. This is sufficient compliance of Section 16-C. It is not necessary for the plaintiff to further aver that he has made a demand upon the defendant to execute the sale deed on a particular day. This principal can be seen from the judgment of Punjab and Haryana High Court in the case of Harbakhsh Singh Gill and others Vs. Ram Rattan and others, AIR 1988 P. & H. 60, wherein the learned court has dealt with the matter in the following manner:
"8. ------- In these circumstances , the averment of the plaintiff that he was willing and ready to perform his part of the agreement and was still prepared to do so, was sufficient compliance with the provisions of S.16(c ) and it was not incumbent upon him to further aver that he had made a demand upon the defendant to execute the sale deed on a particular date and to show that he had the money to offer to him on that particular date. The Explanation to the said CI. (c ) has further made it clear that it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money where a contract involves its payment except when so directed by the Court..." (Emphasis supplied) Further the question of readiness and willingness of a party to perform his part of the contract is dealt with by Division Bench of this court in the case of Mulla Badruddin Vs.Master Tufail Ahmed, AIR 1963 MP 31 in the following manner :
"14. The next point that was urged is that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract from the time of the agreement up to the institution of the suit; and , therefore, the relief of specific performance could not be granted to him. The appellant relied on some observations made in Alakhram V. Kulwantin Bai, AIR 1950 Nag 238. it would be seen that the plaintiff clearly averred in the plaint that he was ready and willing to perform his part of the contract. Before the institution of the suit, he made payment of te arrears of rent and tax amounting to Rs.7544/- and Rs.273/- on behalf of the defendant. Theses acts are only consistent with the intention of the plaintiff to fulfil his part of 14 evidence showing that at any time the plaintiff was not willing or had refused to perform his part of the contract. In (S) AIR 1957 Andh-Pra. 307 (supra), it has been observed that in a suit for specific performance of the contract of sale of land, it need not be stated in so many words that the plaintiff (purchaser) was continuously ready and willing to perform the contract. It is enough if it is made clear in the recitals in the plaint that he was so willing. In this connection the following observations made in Arjuna Mudaliar v. Lakshmi Ammal, AIR 1949 Mad. 265 are pertinent :
".... The averment that the plaintiff had no objection to perform the contract in accordance with the decision of the Court was a sufficient averment of his readiness and willingness to perform his part of the contract."
In the case reported in Bank of India Vs. J. A. H. Chinoy, AIR 1950 PC 90, in the context of the plaintiff being ready and willing to perform his part of the contract though it was stated by plaintiff No.1 that he was buying for himself and that he had no sufficient ready money to meet the price and that no arrangements had been made for finding it at the time of repudiation but when it was further made clear that he was in a position to arrange the payment of requisite amount, it was observed by their Lordships :
"But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached."
The lower Court considered the point in detailed and advanced cogent reasons for its conclusions. We find nothing to defer from these conclusions. In the light of the observations made above, and considering the total lack in defence evidence challenging the readiness and willingness of the plaintiff to perform the contract, we are of the view that Alakhram's case AIR 1950 Nag. 238, (supra), has no application to the facts of the present case. The facts of that 15 case are clearly distinguishable. This objection raised by the appellant has no merit and is therefore, overruled." If the judgments relied upon by the parties and the principles laid down in these cases decided by the Supreme Court, the M.P. High Court and the Punjab & Haryana High Court are taken note of, it is clear that the question of readiness and willingness to perform the contract by the plaintiff has to be gathered from the conduct and the pleadings. In the present case the conduct of the plaintiff indicates that he had arranged the fund which was available in the Bank Account and had issued notice to the defendant to execute the agreement. The defendant kept quite and it was only after some time that he sent a notice to the plaintiff on 29-08-1996 making the allegation that he was present in the office of the Sub Registrar on 27-07-1995 to execute the agreement but the plaintiff was not present. This contention of the plaintiff is rejected by the trial court because the conduct of the defendant does not indicate that he had done so. It is held by the trial court that if the defendant was ready to go to the office of Sub Registrar on 27-07-1995 to execute the agreement then he should have responded to the notice and pointed out these facts before 31-07-1995 instead he got a notice issued though his minor daughter on 19-07-1995 and thereby exhibited a conduct which indicated his non willingness to perform his part of the contract. Even though Shri Mrigendera Singh, learned counsel for the appellant tried to emphasize that the finding given by the learned trial court, holding the sending of notice by the defendant through his minor daughter and paper publication of the notice to be indicative of defendant intention not to perform the contract to be a perverse and illegal finding. This court is of the considered view that the said finding is not a perverse or illegal finding and the conclusion drawn by the trial court in this regard cannot be termed as perverse or illegal. In fact the same is a reasonable finding. Appellant's conduct in keeping quite when the notices were issued to him to execute the sale deed and sending the objection through his daughter and thereafter coming out with a false case of being present in the Registrar's Office is nothing but a adverse conduct on the part of the defendant showing that he was never willing to perform his part of the agreement and for the same the excuse or the 16 method he had devised was to have objections raised through his children. The allegation of not constructing the passage or not coming to the office of Registrar on 27-05-2007 by the plaintiff are after thought. All these allegations made by the defendant are not supported by cogent and documentary evidence, they are only supported by oral evidence and in discarding the same it cannot be said that the learned trial court has committed error by disbelieving the same.
17. As far as the time being essence of the contract is concerned, it is well settled principle of law that in case of contract for sale of immovable property time is not ordinarily essence of the contract. It is to be seen as to whether the time has been made as essence by specific implication in the contract and as to whether the parties intended to perform the contract within the stipulated period. A party, that is the buyer who has not committed any fundamental breach but by his conduct has tried to perform his part of the agreement within the time stipulated cannot be punished on the ground that the time is essence of the contract.
18. On analyzing the evidence that have come on record it would be seen that as per the agreement the appellant was required to pay a sum of Rs. 2,05,000/-. On 27-07-1995 he had with him a sum of Rs.2,47,467/-. It is clear that this amount was kept ready by him for giving to the defendant for execution of the award. It is further seen from the record that initially the suit was decreed ex-parte vide judgment dated 07-08-2000 and the entire amount of Rs. 2,05,000/- was deposited by the appellant on 9-10-2000 i.e. within the period of 2 months. The appellant by sending two notices Ex.P-8 and Ex.P-11 has made his intention clear expressing his willingness to execute the agreement. On the contrary the respondent upto 30th of July 1995 did not response to the request made by the plaintiff vide notice Ex.P-8 and P-11 instead his daughter a minor girl challenged the agreement on various grounds. After filing this objection the minor daughter has kept quite over the matter and has not even filed any application in the proceedings challenging the agreement . It is therefore, clear that the daughter was an instrument by the defendant to stall the performance of the agreement. That apart the wife and the son who got the paper publication Ex.P-18 published on 04-09-1995 have also not 17 taken any proceedings to challenge the agreement. It is therefore, clear that the defendant through his wife and children was trying to somehow prevent the performance of the agreement.
19. During the course of hearing Shri Mrigendra Singh, learned counsel for the appellant tried to emphasize that the plaintiff has not complied with the requirement of making averments in the pleadings in accordance to the statutory requirement contemplated under Appexdix -A, Forms 47 and 48 and that he had not taken step for constructing the approach road to the ancestral property as agreed in para-4 of the agreement.
20. As far as construction of the approach road is concerned, agreement does not indicate that this was a condition preceded for performance of the agreement. A perusal of this Clause indicate that performance of this condition could be done only after sale deed was executed and the possession handed over to the plaintiff. That being so this cannot be a ground for holding that the plaintiff had not performed his part of the agreement. As far as question of non submission of the pleadings and making averments accordance to the requirement of Form Nos. 47 and 48 is concerned, the only requirement under law is that the plaintiff must plead that he has been and still ready and willing to perform his part of the agreement. No particular language and phraseology need to be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 of Appexdix-1 prescribed under Order VI, Rule 3 of the Code of Civil Procedure is not imperative as held in the following cases :
Ramesh Chandra Chandiok Vs. Chuni Lal Sabharwal, AIR 1971 SC 1238 Abdul Khader Rowther Vs. P.K. Sara Bai, AIR 1990 SC 682 Manohar Lal Vs. Rajeshwari Devi, AIR 1977 All. 36 Dhian Singh Vs. Tara Chand, AIR 1984 All. 4.
Krishnan Kesavan Vs. Kochukunju Karunakaran, AIR 1988 Ker. 107 It has been held in the case of Rajya Tulsibhai Patel Vs. Benar Enterprise, AIR 1988, Guj.. 42 and by the Supreme Court in the case of Motilal Jain Vs. Ramdasi Devi, AIR 2000 SC 2408 that it is sufficient if 18 the averments in substance indicate the continuous readiness and willingness on the part of the person suing to perform his part of the contract, it is settled principle of law that if the pleadings are sufficient to indicate the intention of the plaintiff and the fact that he was ready to perform his part of the contract mere omission to mention certain other things is not to be construed to mean that the pleadings and averments made are not in accordance to the requirement of Section 16(c ). It is in the backdrop of these principles that the conduct of the parties has to be analyzed in the present case.
21. At this stage it would be appropriate to take into account all the judgments relied upon by the learned counsel for the parties. In the case of Parmanand Soni(supra) relied upon by Shri Bhave, learned counsel for the respondent no.1, the same principle with regard to readiness and willingness as indicated herein in above is laid down and the judgments on the question are considered. Similarly in the case of Harbakhsh Singh Gill(Supra), the Punjab and Haryana High Court has reiterated the same Principal. The observations made by the Punjab & Haryana High Court in para-8 of the aforesaid judgment which is relevant is also reproduced in para 14 hereinabove. Again in the case of Godavari Bai(supra) another Division Bench has followed the same principle. If the readiness and willingness as expressed by the appellant in the present case are analyzed in the backdrop of law laid down in the cases referred to by Shri Bhave, it would be seen that the same fulfills the requirement of law with regard to the readiness and willingness of the appellant to perform his part of the contract.
22. As far as judgment relied upon by Shri Mrigendra Singh is concerned in the case of Manjunath Anandappa Urf Shivappa Hansi(supra), the Supreme Court has taken note of the question of readiness and willingness of the plaintiff in the said case and after evaluating it on the backdrop of the principles that is laid down as indicated hereinabove, has held that plaintiff was not ready and willing, but only a bare statement was made, the preparation and willingness by the plaintiff was not proved. It was in that background this fact that specific performance was refused. The said case does not help the 19 appellant. As far as law laid down in the case of Sukhbir Singh (supra) is concerned the said case deals with the particular set of circumstances where the plaintiff could not prove that endorsement made by the Sub Registrar with regard to willingness is not properly proved.
23. Similarly, I have gone through the other judgments relied upon by Shri Mrigendra Singh and find that all the aforesaid judgments follow the principles laid down as discussed hereinabove, and in those cases specific performance was refused finding the plaintiff to have not established his willingness to perform the part of agreement which is to be undertaken by the plaintiff, each case had to be decided on the basis of the facts that come on record.
24. Once a analysis of the facts and circumstances which are existing in the present case in the backdrop of the principle that emerges from a combined reading of various judgments as indicated herein above, it is clear that in the present case that plaintiff has by his conduct and preparation made by him proved that he was ready and willing to perform his part of the agreement and the defendant in the facts and circumstances of the case somehow tried to wriggle out of the agreement. That being so, this court is of the considered view that the learned trial court after appreciating the totality of the circumstances and after evaluating the evidence that have come on record has recorded a reasonable and proper finding which is in accordance to the principles laid down in the various cases with regard to essential condition necessary to be fulfilled on the part of the plaintiff to seek specific performance of agreement. The finding being just and reasonable, the same does not warrant any interference in this appeal.
25. Accordingly, finding no merit in the appeal warranting interference, the judgment and decree passed by the trial court is affirmed and the appeal is dismissed without any order so as to costs, so far as this appeal is concerned.
( RAJENDRA MENON ) JUDGE hsp/-