Andhra HC (Pre-Telangana)
Inti Veera Veni, W/O. Kasi ... vs Smt. Mahadasa Vara Lakshmi, Wife Of ... on 3 December, 2004
Equivalent citations: 2005(2)ALD219
JUDGMENT V.V.S. Rao, J.
1. The appellant herein is the plaintiff in O.S.No.27 of 1985 on the file of the Court of Subordinate Judge, Narsapur. She filed the suit for specific performance of agreement of sale dt.4.10.1983 under which first defendant agreed to sell the suit schedule property admeasuring Acs.0.121/2 or 605 Sq.yards in Palakol town of West Godavari District, for Rs.60,000/-. As per the terms of the agreement an amount of Rs.10,000/- was paid as advance. Out of balance sale consideration, first instalment of Rs.20,000/- had to be paid on or before 24.10.1983, and the balance amount of Rs.30,000/- on or before 31.1.1984 failing which the plaintiff is liable to pay interest at 18% per annum. First defendant agreed to execute sale deed after receiving sale consideration and in the event of first defendant not executing the sale deed, vendor is not liable to pay any interest. It was also agreed that first defendant would discharge the amount due to Tummalapalli Sattiraju, Managing Partner of Raja Tea Company, Kakinada, to whom, the suit schedule property was given as security.
2. It is the case of the plaintiff that she made attempts to pay amount of Rs.20,000/- on 24.10.1983 to first defendant through her husband, but she was informed that first defendant would accept the money after taking measurements of the plot. First defendant did not accept the payments when the plaintiff was ready to pay second instalment of Rs.30,000/-. Therefore, the plaintiff issued five notices through Lawyer demanding execution of sale deed after receiving balance of sale consideration of Rs.50,000/-, in vain. But, first defendant allegedly sold away the suit schedule land to second defendant and delivered possession to him with ulterior motive in collusion with second defendant. The plaintiff is ready and willing to perform her part of contract and therefore the suit for specific performance praying the Court to direct the first defendant to execute and register sale deed in favour of the plaintiff after receiving balance consideration and on default thereof, to permit the plaintiff to get the sale deed executed through Court and for possession. The plaintiff also alleged that when the plaintiff informed the first defendant that she would go to the Court, first defendant and her husband handed over possession to the plaintiff. But as there was dispute regarding the same, she also prayed for possession. First defendant filed a written statement denying plaint allegations. It was pleaded that the plaintiff was not ready with Rs.20,000/- on 24.10.1983, that the plaintiff failed to get ready with the money that she was not having any money with her necessary for registration fees and ancillary expenses and that plaintiff not ready and willing to perform her part of contract. The plaintiff instead of paying the money went on giving notices. First defendant in reply notices informed the plaintiff that time is essence of the contract and if she fails to pay the amount within the time stipulated in the notice, the agreement stands cancelled. The plaintiff did not comply with the request and therefore the agreement was cancelled and the property was sold to second defendant for a sum of Rs.80,000/-. After taking Rs.40,000/- second defendant on the date of agreement and Rs.5,000/- each on other dates, possession was also handed over to second defendant. Due to breach of contract committed by the plaintiff first defendant is put to loss though she got an opportunity to sell the property for an amount of Rs.1,00,000/-. It is also alleged that the first defendant has not committed any breach and it is only the plaintiff who is responsible for the cancellation of suit agreement. The first defendant is not liable to refund Rs.10,000/- as the same was forfeited after cancelling the agreement. First defendant also prayed for compensatory costs.
3. Second defendant also filed separate written statement, in effect, agreeing with the case of the first defendant insofar as the allegation of sale of suit schedule house site in favour of second defendant.
4. The trial Court framed the following issues.
1. Who committed breach of the agreement of sale dated 4.10.1983 ?
2. Whether time was essence of the contract ?
3. Whether possession of suit schedule land was delivered to plaintiff on 8.3.1984 ?
4. Whether the plaintiff is entitled to specific performance ?
5. Whether the plaintiff is not entitled to alternative relief of refund of advance of Rs.10,000/- ?
6. If so, whether the plaintiff is entitled to interest on the same ? If so at what rate ?
7. Whether the plaintiff is entitled to any damages for breach of contract ? If so, to what amount ?
8. Whether 1st defendant is entitled to compensatory costs ?
9. To what relief ?
5. In support of her case, the plaintiff examined her husband as P.W.1 and marked Exs.A.1 to A.12. Husband of first defendant was examined as D.W.1, and one Vallabhu Ravi is examined as D.W.2, though no documents are marked for the defendants. Ex.A.1 is agreement of sale dt.4.10.1983. Exs.A.2, A.5, and A.9 are notices issued on behalf of the plaintiff, and Exs.A.4 is reply given by defendant to Ex.A.2 notice. Similarly, A.6 and A.10 are the replies given by first defendant in response to notices of plaintiff Exs.A.5 and A.9.
6. On consideration of evidence on record, the trial Court recorded the following findings. (i) As per the agreement Ex.A.1 read with notices issued by first defendant Exs.A.4 and A.6, time is essence of the contract. The plaintiff failed to prove that she has been ready with the money on the due dates, but the first defendant refused to accept the money to avoid the agreement; (ii) The plaintiff committed breach of contract and the case of the plaintiff is a story invented for the purpose of the suit; (iii) The case of the first defendant as supported by evidence of D.W.1 is corroborated by D.W.2 and in spite of first defendant making efforts to get money, the plaintiff failed to perform her part of contract.
7. Learned counsel for the appellant/plaintiff Sri Y.Srinivasa Murthy submits that in the absence of express clause or implied conditions in Ex.A.1 suit agreement, it was not correct for the trial Court to record a finding that time is essence of the contract. Secondly, he would urge that even according to Ex.A.1, in the event of any breach on the part of the plaintiff in paying the sale consideration, first defendant cannot cancel the agreement and in such an event, the vendee is made liable to pay interest at 18% per annum on the sale consideration. Lastly he would urge that evidence of P.W.1 and the notices exchanged between vendor and vendee would support the case of the plaintiff that first defendant and her husband D.W.1 avoided to receive the payment so as to avoid contractual obligation. He placed strong reliance on Exs.A.2, A.4, A.5, A.6, A.9, A.10, and Exs.A.11 and A.12. P.W.1 who was looking after the affairs of the plaintiff had capacity as business man to mobilize the funds and inference has to be drawn that plaintiff was ready with the money, but it is the first defendant who avoided the sale agreement. The learned counsel also placed reliance on the decisions of the Supreme Court in Gomathinayagam Pillai v. Palaniswami Nadar, , Govind Prasad v. Hari Dutt, , and Arosan Enterprises Ltd. v. Union of India, AIR 1999 SC 3807.
8. After filing of the appeal, the suit schedule land was acquired in two separate land acquisition proceedings; in the first land acquisition Acs.0.10 of suit land was acquired in1996 and on the second occasion, balance of 0.21/2 land was acquired in the year 2000 and the amount of Rs.4,00,000/- lies in deposit with Land Acquisition Officer. Having regard to the subsequent event, the appellant has filed an application seeking amendment of the plaint seeking to add paragraph 17(a), 17(b), 17(c) and 17(d), as well as substitution of paragraph 20 as 20(a) and 20(b) (concerning prayer in the suit). This Court by order dt.8.7.2002 made in C.M.P.Nos.6719 of 2002 has allowed the amendments to be carried out. The plaintiff/appellant prays for a declaration that she is entitled to receive the compensation awarded by Land Acquisition Officer on acquisition of land which is the subject matter of agreement of sale Ex.A.1. Insofar as this aspect is concerned, learned counsel for the appellant placing reliance under Section 21 of the Specific Relief Act, 1963 (for short, the Act), would urge that the plaintiff is alone has right to claim compensation for the suit land which is now acquired. He placed reliance on Jagdish Singh v. Natthu Singh, .
9. Learned Senior Counsel Sri N.V.Suryanarayana Murthy appearing for first defendant submits that a reading of Ex.A.1 would itself would show that time is essence of the contract and the same was made further clear by the first defendant while issuing Ex.A.4 reply notice to Ex.A.2 notice, as well Ex.A.6 reply notice to Ex.A.5 notice of the plaintiff. According to the learned Senior Counsel, though in a contract for the sale of immovable property, there is a presumption against time being essence of the contract, such covenant may be inferred from the conduct of the parties and surrounding circumstances as well as covenants in the agreement of sale. In this case, terms of the contract as well as Exs.A.4 and A.6 notices would make time as essence of the contract and as the plaintiff failed to pay first instalment of Rs.20,000/- on or before 24.10.1983 and final instalment of Rs.30,000/- on or before 31.10.1984, first defendant duly cancelled the agreement and sold the property to second defendant. Therefore, in equity, the plaintiff is not entitled for specific performance of the contract of sale. Secondly he would contend that the plaintiff was never ready and willing to perform her part of contract and in the absence of any proof as required under Section 16(c) of the Act, the suit for the relief of specific performance would not be maintainable. Nextly he would submit that the plaintiff is not entitled for refund of the advance amount of compensation as the plaintiff alone is at fault by not adhering to time schedule for payment of sale consideration. Lastly he contends that relief of declaration in favour of the petitioner to claim land acquisition compensation may not be granted as the plaintiff is not seeking such relief in substitution of the specific performance of contract, but in lieu of such relief. He would urge that the plaintiff has abandoned the relief of specific performance in which event Section 21 of the Act has no application to the case. he placed reliance on Gomathinayagam Pillai v. Palaniswami Nadar (supra) and Chand Rani v. Kamal Rani, .
10. In this appeal, the three points that would arise for consideration are, (1) Whether under Ex.A.1 the parties intended time as essence of the contract ?
(2) Whether the plaintiff/appellant was ready and willing to perform her part of contract and first defendant was at fault ?
(3) Whether the plaintiff is entitled to seek declaration that she is entitled to receive compensation awarded by Land Acquisition Officer due to impossibility of performance of contract under Section 21 of the Specific Relief Act, 1963? In Re Point No.1
11. Ex.A.1, agreement of sale between plaintiff and first defendant is admitted. It contains, apart from usual covenants of sale, two important clauses. The first relates to the payment of sale consideration. While it mentioning that on the date of execution of Ex.A.1, the plaintiff paid advance amount of Rs.10,000/-, it is agreed by the parties that the plaintiff shall pay Rs.20,000/- on or before 24.10.1983 and balance of Rs.30,000/- on or before 31.1.1984. The first defendant also agreed to deliver possession of the suit site after receiving the entire sale consideration. There is a default clause as well to the effect that in the event of plaintiff committing default in paying sale consideration, she will pay the same with interest at 18% per annum from the date on which the sale consideration is payable, i.e., 24.10.1983 and 31.1.1984 and if the first defendant fails to execute sale deed, she is not to be burdened with any interest. There is no dispute with these clauses in the agreement of sale, Ex.A.1.
12. Time as essence of contract, is not specifically and explicitly made part of the contract of sale. While issuing reply notices in Exs.A.4 and A.6 first defendant while informing the plaintiff that she failed to pay the amount of sale consideration in spite of demands, mentioned that time is essence of the contract and if plaintiff fails to pay that, agreement would be cancelled. By subsequent notice Ex.A.10 first defendant cancelled the agreement of sale in accordance with Ex.A.1 and also informed that the property has been sold to the second defendant. These facts are also not denied. Learned Senior Counsel for the first defendant would contend that when the agreement contains schedule of payment of sale consideration, it is strictly binding on the vendor and an inference can always be drawn as to existence of implied condition making time as essence of the contract. He would also urge that what is implicit in the sale agreement Ex.A.1 was made it clear in Exs.A.4 and A.6 and therefore it is not a case of making the time essence of contract, but only clarifying the said clause.
13. In Gomathinayagam Pillai v. Palaniswami Nadar (supra), the decision on which both the learned counsel placed reliance, the Hon'ble Supreme Court referring to Section 55 of the Contract Act, 1872, while observing that fixation of the period within which the contract is to be performed, does not make the stipulation as to time of the essence of the contract, laid down as under.
...It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence.
14. Learned Senior Counsel for first defendant would rely on the above principle and submits that the intention to make time as essence of the contract has to be inferred from Exs.A.1, A.4 and A.6. He also relied on the following observations in Gomathinayagam Pillai (supra).
...It is true that appellants 1 and 2 badly in need of money, by they had secured Rs.3006 from the respondent and had presumably tied over their difficulties at least temporarily. There is no evidence that when the respondent did not advance the full consideration they made other arrangements for securing funds for their immediate needs. Intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not of the essence. In the present case there is no express stipulation, and the circumstances are not such as to indicate that it was the intention of the parties that time was intended to be of the essence of the contract. It is true that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that the default of compliance with the requisition the contract will be treated as cancelled.
15. The above legal position was reconsidered in Chand Rani v. Kamal Rani (supra) by a Constitution Bench of the Supreme Court. The facts therein show that on the date of execution of the agreement for sale of house and house-plot, the vendee paid Rs.30,000/- by way of earnest money and agreed to pay Rs.98,000/- within ten days of execution of the agreement and balance of Rs.50,000/- at the time of registration of sale deed dt.31.10.1971. It was also agreed that if vendee failed to pay sale consideration, the earnest money stands forfeited in favour of vendor. The vendee filed suit alleging that the vendor failed to perform her part of the contract. In defense, the vendor alleged that the vendee failed to pay the amount within a period of ten days from the date of execution of the agreement which was the essence of the contract and that the vendee never tendered balance of sale consideration and therefore she cannot claim specific performance. The trial Judge came to the conclusion that time was not essence of the contract and that plaintiff Chand Rani was ready and willing to perform her part of contract. Against the judgment and decree of the trial Court ordering specific performance, an appeal came to be filed before High Court of Delhi. A Division Bench of High Court of Delhi held that non-payment of sale consideration by Chand Rani before the agreed date would enable the defendant to treat it as breach of contract, that the request of the plaintiff to obtain income tax clearance certificate and redemption of the property before payment of balance of sale consideration would amount to varying terms of the contract and that the transaction failed due to non-payment of sale consideration. While reversing the decree of the trial Court for specific performance, however, the High Court granted relief of refund of earnest money to the plaintiff. When the matter came before Supreme Court while granting leave, learned Judges thought it fit that the position of law decided by the Supreme Court earlier deserves reconsideration and that is why the matter was placed before the Constitution Bench of five Judges.
16. The Constitution Bench of the Supreme Court in Chand Rani (supra) considered two questions, namely, whether time is essence of the contract and whether the plaintiff was ready and willing to perform the contract. Insofar as the first question is concerned, after referring to Gomathinayagam Pillai v. Palaniswami Nadar (supra), Govind Prasad v. Hari Dutt (supra), Hind Construction Contractors v. State of Maharashtra, , and Smt. Indira Kaur v. Shri Sheo Lal Kapoor, , the Constitution Bench laid down as under.
17. From an analysis of the above case law, it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the object of making the contract.
18. The Supreme Court considered the sale agreement between vendor and vendee and having regard to "payment schedule clause", especially the words "within a period of ten days only", the Court came to the conclusion that time was made essence of the contract. It was held that though as a general proposition of law time is not the essence of the contract, in the case of sale of immovable property, yet the purpose intended to make time as essence of the contract under clause (i) of the suit agreement.
19. Applying the above case to the facts of the present appeal - which are almost similar; I am of the considered opinion that Ex.A.1 agreement in this case stipulates that balance of Rs.20,000/- has to be paid before 24.10.1983 and another amount of Rs.30,000/- has to be paid before 31.1.1984. The term used in Ex.A.1 which is in Telugu is that the first defendant has to pay Rs.20,000/- before (Telugu word " ") 24th October, 1983. Similar term is used with regard to balance of Rs.30,000/- as well. In the considered opinion of this Court, the words used would make time essence of the contract notwithstanding the fact that the delay would attract payment of interest at 18% per annum. Under Exs.A.4 and A.6 also first defendant made it clear that time is essence of the contract. In Ex.A.4, first defendant demanded plaintiff for payment within three days from the date of receipt of Ex.A.4, and balance amount on or before 24.1.1984. In Ex.A.6 again fist defendant demanded plaintiff to pay Rs.20,000/-within three days from the date of receipt of Ex.A.6. These circumstances, especially notices exchanged between parties read with Ex.A.1 leave no doubt that time is essence of the contract and the learned trial Judge was correct in coming to such conclusion that plaintiff committed breach of contract in payment of sale consideration. This point is answered accordingly.
In Re Point No.2
20. The plaintiff relied on evidence of P.W.1 and notices exchanged between parties, Exs.A.2, A.4, A.6, A.9 and A.10 to prove that she has been always ready and willing to perform her part of contract, but it is only the first defendant who avoided the transaction. Reliance is also placed as well on Exs.A.11 and A.12 entries in the State Bank of India Pass Book for Account No.P3648 which is in the name of P.W.1. On the contrary, first defendant relied on evidence of D.Ws.1 and 2 as well as notices exchanged between parties.
21. The relief of specific performance of contract is in the realm of equity and is purely within the discretion of the Court. That being the position, the person approaching the Court for specific enforcement of contract has to plead and prove that he/she has performed his/her part of contract and/or is always ready and willing to perform his/her part of the contract. This principle is entrenched in Section 16(c) of the Act. This has been interpreted by the Courts as requiring the plaintiff vendee in a case of sale of immovable property not only to prove that he is ready and willing to perform the contract, but must prove that as stipulated in the agreement of sale, vendee had always been ready and wiling to perform his/her part of contract. Mere pleadings and mere evidence of having money or other paraphernalia would not be sufficient compliance with Section 16(c) of the Act. A reference may be made to decision of Supreme Court in Jugraj Singh v. Raj Singh, AIR 1995 SC 945, wherein the principle was laid down as under. Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff's part of the contract.
22. In Chand Rani v. Kamal Rani (supra) the Supreme Court reiterated that the question whether plaintiff was ready and willing to perform his part of contract has to be determined with reference to evidence including notices which were exchanged between the parties. The husband of the plaintiff was examined P.W.1. He is the lone witness, who deposed plaintiff's case. Apart from reiterating what all is alleged in the plaint, P.W.1 furthered deposed that before the due date his father-in-law brought Rs.20,000/- and that when he and plaintiff approached the first defendant and her husband they refused to accept the payment whereafter he issued Ex.A.2 notice on 16.11.1983. Another surprising element introduced in the witness box is statement of P.W.1 that he deposited the amount of Rs.20,000/- in S.B.I Account No.P3648 on 14.11.1983. The entries in the pass book are marked as Exs.A.11 and A.12. Exs.A.2, A.5 and A.9 are notices issued on behalf of the plaintiff. The evidence of P.W.1 is not corroborated by any independent witness and therefore much importance or credibility cannot be attached to P.W.1. He consistently deposed that plaintiff and P.W.1 regularly requested first defendant and D.W.1 to accept the payment, handover possession and registered sale deed. According to P.W.1, when first defendant executed agreement Ex.A.1, Kakula Narasimha Rao, in whose house first defendant is residing with D.W.1, was present. Nothing, therefore, prevented plaintiff and P.W.1 to request said Narsimha Rao to intervene in the matter. This was not done. It is the case of the P.W.1 that his father-in-law brought money in a sum of Rs.20,000/- on 23.10.1983, and when he tried to pay the same to first defendant, she refused to accept the payment and therefore he deposited the amount in the bank vide entry Ex.A.11. The father-in-law is not examined and Kakula Narasimha Rao, who was present at the time when P.W.1 requested first defendant to accept the payment is not examined. If really the case of the plaintiff was true, nothing prevented her to summon her father as well as Kakula Narasimha Rao to depose in corroboration of her version. Insofar as the documentary evidence is concerned, except notices exchanged between plaintiff and first defendant, there are no other documents.
23. In Exs.A.2, A.5 and A.9, the plaintiff informed the first defendant that she is ready and willing to perform her part of contract and that when the amount of Rs.20,000/- was made ready on 24.10.1983 and tendered to first defendant, D.W.1 requested to cooperate to take measurements of the site. These notices were properly replied to by first defendant. Curiously, in none of the notices issued by the plaintiff, allegation that her father brought the money or allegation that amount is deposited in the bank are not mentioned. Whatever be the reason, plaintiff did not instruct her Lawyer on these aspects. A perusal of State Bank of India Pass Book Account No.P.3648 also does not support the plaintiff that she has been ready and willing to perform her part of contract. Ex.A.1 uses the words "24.10.1983" (on or before 24.10.1983), and second installment is to be paid "31.1.1984 " (on or before 31.1.1984), by paying of Rs.20,000/- and Rs.30,000/- respectively. A Vendee who comes to the Court alleging that he/she has always been ready to perform his/her part of contract, means "always ready" and not after due date. If the agreement provides time schedule and the amount is not paid, any allegation made by the plaintiff that after expiry of the period, the amount is made ready, is no answer to satisfy the requirement of law. P.W.1 opened S.B.I. Savings Account No.P.3648 on 28.3.1980. A perusal of the entire passbook would show that the same was operated from 28.3.1980 to 24.10.1991 irregularly. P.W.1 was examined on and after 15.11.1991. The last date for payment of Rs.20,000/- is 24.10.1983. But, P.W.1 deposited the amount of Rs.20,000/- on 14.11.1983 and another amount of Rs.20,000/- was deposited on 12.1.1984. In between these two dates, there are no withdrawals. But, P.W.1 withdrew Rs.15,000/- on 20.8.1994 and Rs.20,000/- on 4.9.1985. A reasonable inference therefore can be drawn that as on 24.10.1983 as well as 31.1.1984 the plaintiff or her husband were not having adequate amount to perform the plaintiff's part of the contract. Therefore, the allegation made by the first defendant in her written statement stands proved that plaintiff was never ready with balance of sale consideration on the respective dates agreed upon on which the dates the amount has to be paid. Exs.A.11 and A.12 entries therefore do not in any manner support the case of the plaintiff that she was ready and willing to perform her part of contract. The evidence adduced on behalf of first defendant, however, supports the case of the vendor. D.W.1 is husband of first defendant. He also attested Ex.A.1 agreement. While deposing the execution of the agreement and the terms thereof, he further stated on oath that due to pressure of debts payable by him and first defendant both of them went to the house of plaintiff on 20.10.1983 requesting to pay Rs.20,000/- as per terms of Ex.A.1 when plaintiff replied that she has not received the amount due to her and she wanted time. Again on 23.10.1983 D.W.1 went to the house of plaintiff, but the amount was not paid. On both the occasions P.W.1 was also present. On 24.10.1983, the last date for payment of Rs.20,000/-, D.W.1 went to the house of plaintiff along with Kakula Narasimha Rao, Vallabhu Ravi, Kurella Satyakesavarao, Duggina Satyanarayana.
24. The last mentioned two persons are related to D.W.1. First defendant and her husband were staying in the house of Kakula Narasimha Rao. Even this time, the plaintiff did not pay the amount and requested more time. But thereafter, the plaintiff or P.W.1 never made any attempts to pay part of the consideration. Instead of paying the amount, the plaintiff issued Ex.A.2 notice which was duly replied to by Ex.A.4 informing that first defendant has no objection to receive the payment with interest. To prove this case, Vallabhu Ravi is examined as D.W.2 who corroborates the evidence of D.W.1. He is an independent witness known to plaintiff, P.W.1 as well as first defendant and D.W.1. He deposed that P.W.1 was having shop known as Kangan Hall in Annapurna Theatre Complex and D.W.2 used to sit in the shop. He further deposed that on 24.10.1983, D.W.1 came to his house and informed that P.W.1 promised to pay the amount of Rs.20,000/- on that day and that at 4.00 p.m. he, D.W.1, Kurella Kesava Rao and Duggina Satyanarayana went to the shop of P.W.1. But, instead of paying the amount, P.W.1 informed that he cannot pay till twenty days as they could not procure money. Admittedly, the affairs of the plaintiff are taken care of by her husband P.W.1. The Evidence D.W.2, therefore show that the plaintiff was never ready and willing to perform her part of the contract. As held by the Supreme Court in Jugraj Singh v. Raj Singh (supra) plaintiff seeking enforcement of contract of sale must always be ready and willing to perform her part of contract and mere proof of readiness at or about filing of the suit or after filing of the suit would not entitle such plaintiff for the relief. In Chand Rani v. Kamal Rani (supra) as pointed out by the learned Senior Counsel, the facts therein are almost similar to the facts on hand. There were exchange of notices between vendor and vendee with regard to payment of second instalment of sale consideration. After receiving notice/notices, the vendee did not pay the amount. What is the inference to be drawn from those circumstances was observed by the Supreme Court as under.
The next question is whether the plaintiff was ready and willing? The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. On 10.9.1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from 26.8.71, the sum of Rs.98,000/- was not paid; hence, the sum of Rs.30,000/- stood forfeited. The redemption of the mortgage would be done and the income-tax clearance also would be obtained after the purchase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs.98,000/- which again was reiterated in the notice dated 16.9.73, nothing would have been easier for the plaintiff than to pay the said sum.
25. When first defendant issued Ex.A.4 reply notice, if really plaintiff was willing to perform her part of the contract, it would have been easier for her or P.W.1 to pay the amount. Having not done so even after issue of notice, plaintiff cannot legitimately contend that she has been ready and willing to perform her part of the contract, especially when there is no independent evidence except evidence of P.W.1, who is husband of plaintiff dealing with the sale transaction. Therefore, this Court holds that the plaintiff was never ready and willing to perform her part of contract and therefore she is not entitled for specific performance of the contract. The point is answered accordingly against appellant and in favour of first respondent.
In Re Point No.3.
26. As noticed supra the land was acquired during the pendency of the appeal before this Court and therefore the plaintiff has amended the relief portion and supporting paragraphs in the plaint. The submission of the learned Senior Counsel is that as the relief of specific performance is abandoned mere relief of compensation cannot be granted by this Court. In view of the findings of this Court on first two points which are held against plaintiff/appellant, this Court is not inclined to decide the question which is in the realm of interpretation of Section 21 of the Act. The question whether relief of compensation under Section 21 of the Act has to be claimed as an alternative to specific performance of contract, is left open to be decided in appropriate case.
27. Accordingly, the appeal is dismissed with costs.