Karnataka High Court
K.K. Achayya (Since Deceased)By L.Rs vs Syed Mukthan on 25 March, 1998
Equivalent citations: 1998(4)KARLJ147
JUDGMENT
1. This appeal arises from the judgment and decree dated 6th October, 1987, delivered by IV Additional City Civil Judge, Bangalore in Original Suit No. 2243 of 1981, decreeing the plaintiffs suit for specific performance of contract as well as granting the decree for permanent injunction, directing the defendant not to sell or dispose of the suit property in any manner and also restraining him from interfering with the plaintiff's possession.
2. That the plaintiff's case, as per plaint allegations has been that originally on 18-10-1977, defendant had entered into an agreement to sell, in respect of plaint schedule property, for a sum of Rs. 1,35,000/-and that agreement was reduced into writing. According to the plaintiff's case, on 18-10-1977, plaintiff had made an advance payment of Rs. 25,000/- to the defendant-appellant and subsequently on 21-11-1977, plaintiff again paid and defendant received from him a sum of Rs. 25,000/-, towards sale price and executed the receipt. Plaintiffs Case is that an application was submitted by both the parties on 21-11-1977, to the competent authority, for grant of permission for sale of the schedule property and permission for sale had been granted. On 16-1-1978. plaintiff's case is that he paid and defendant received a further sum of Rs. 10,000/- and executed a receipt on stamp paper. Plaintiff's case is that defendant agreed to deliver the possession of the property within 3 months, but at the instance of defendant, the time was extended to 6 months for giving the vacant possession, as well as to clear the encumbrances on the property, as defendant had obtained loan from Syndicate Bank, by depositing the title deeds. So defendant agreed to discharge the said loan and obtain the documents of title deeds. Plaintiff's further case is that on 22-6-1978, another agreement was entered into between the plaintiff and the defendant whereunder the defendant delivered the possession of the suit property to the plaintiff and by the said agreement, defendant agreed to complete the transaction of sale as well as to execute sale deed within one month from the date of said agreement that is 22-6-1978. Plaintiff claimed to be in lawful possession of the property, in view of the above allegations. Plaintiff alleged in paragraph 8 of the plaint that the plaintiff has always been ready and willing to perform his part of the contract and that defendant has not delivered the documents of title to the plaintiff. It was stated in para 8 further that plaintiff learnt that the defendant had not discharged the loan due to the Syndicate Bank. Plaintiff's case is that he addressed a letter on 9-12-1980, to the defendant calling upon him to execute the sale deed and receive the balance within two weeks from the date of receipt of the said letter. Plaintiff alleged that defendant had obviously received the said letter and has caused a notice through his Advocate issued on 16-12-1980, putting forth false and untenable contentions and as such it appears the plaintiff alleged, that the defendant is not willing to perform his part of the contract and that defendant cannot unilaterally treat the contract as cancelled. Plaintiff claimed to be entitled to the relief of specific performance of contract of sale. In paragraph 10, plaintiff has again stated that he has always been ready and willing to perform his part of contract and infact to the knowledge of the defendant, plaintiff made necessary arrangements and obtained challans for purchasing the general stamp paper required for drawing the sale deed. In view of the defendant's conduct, plaintiff alleged, plaintiff had no alternative but to take the legal action and so filed the suit. The plaintiff claimed the reliefs, as mentioned above.
3. On notice being served, defendant-appellant filed the written statement. The defendant admitted that originally he had entered into an agreement on 18-10-1977 with the plaintiff to sell the schedule property to the plaintiff and by the time, the second agreement dated 22-6-1978 had been executed, a sum of Rs. 60,000/- was paid to him by the plaintiff towards the advance. Defendant asserted plaintiff had agreed to deposit the balance of sale consideration in the name of defendant in the Syndicate Bank, Wilson Garden Branch and to transfer the same at the time of completion of the sale and so the plaintiff was put in possession of the schedule property. Defendant asserted that defendant was ready and willing to clear the personal loans in Syndicate Bank and to perform his part of contract of sale of the property free from encumbrances. Defendant alleged that though defendant was ready and willing to complete the sale within the agreed time, the plaintiff went on postponing on one pretext or other since he was in possession of the property. Defendant's case is plaintiff failed to purchase the schedule property and to pay the balance sale consideration, and as such the agreement executed between the parties stood cancelled and the advance amount paid by the plaintiff had been forfeited as per agreement. Defendant further alleged that plaintiff's possession was unlawful and plaintiff is liable to pay the compensation. Defendant further alleged that the suit is time barred and not maintainable. It was further asserted that the suit in question was not maintainable and the plaintiff himself committed the breach of agreement by not depositing a sum of Rs. 75,000/- in the Syndicate Bank in defendant's name.
4. On the basis of the pleadings of the parties, the Trial Court framed the following issues.-
1. Whether plaintiff proves that he was ready and willing to perform his part of the contract?
2. Whether defendant proves that he is not liable to execute the sale deed in view of the allegations in paras 4, 5 and 6 of the written statement?
3. Whether the suit is barred by time?
4. Whether plaintiff is entitled to specific performance of the contract?
5. Whether plaintiff is entitled to permanent injunction prayed for?
6. What decree or order?
The Trial Court also framed the following additional issues.-
1. Whether defendant proves that stipulation under the suit agreement that plaintiff should deposit Rs. 75,000/- under defendant's name in Syndicate Bank, Wilson Garden Branch is a condition precedent to enforce the performance of the contract?
2. If so, whether plaintiff has committed breach of such contract by the non-compliance of such a stipulation?
2(a) Whether the Syndicate Bank, Wilson Garden, is a necessary party to the suit?
2(b) If so, whether the suit is bad for non-joinder of necessary party?
5. On a consideration of the material on record, the Trial Court held that the plaintiff has proved that he was ready and willing to perform his part of contract. It further held that defendant failed to prove that he is not liable to execute the sale deed in view of allegations in paras 4, 5 and 6 of the written statement. The Trial Court held the suit to be within the time and held that the plaintiff is entitled to decree for specific performance of contract, as well as for decree for injunction as prayed for. The Trial Court held that defendant failed to prove that the stipulation under the suit agreement that plaintiff should deposit Rs. 75,000/- in the defendant's name in Syndicate Bank, Wilson Garden Branch, as a condition precedent to enforce the performance of contract and it held as such there was no question of plaintiff having committed any breach of contract due to non-compliance of such a stipulation. The Trial Court further held that neither the Syndicate Bank was a necessary party, nor was the suit bad for non-joinder of necessary parties. Having recorded these findings, the Trial Court decreed the plaintiffs suit, for the claim as made, with a direction to the defendant that is the present appellant to execute the sale deed in favour of the plaintiff-respondent, within 2 months from the date of receipt of Rs. 75,000/-, failing which the sale deed should be registered through the process of the Court and decreed the relief for injunction.
6. Having felt aggrieved from the judgment and decree of the Court below, the defendant has come up in appeal before this Court, under Section 96 of the Code of Civil Procedure, namely by filing Regular First Appeal.
7. I have heard Sri B.L. Acharya, Counsel for the appellant and Sri S.R. Krishna Kumar, an Advocate of this Court holding brief for Sri S.V. Raghavachar, learned Counsel for the respondent.
8. The sole and only point that has been urged in this case is that,-as per facts of the case, appearing on record,-the plaintiff-respondent has not been ready and willing to perform his part of contract from the date of the agreement dated 22-6-1978, till the date of the suit as well thereafter.
9. Learned Counsel for the appellant strenuously contended that in view of Section 16 of the Specific Relief Act, it is mandatory obligation of the plaintiff to allege and to prove that the plaintiff is and has always been ready and willing to perform his part of the contract. Learned Counsel contended that firstly plaintiff-respondent did not deposit a sum of Rs. 75,000/- in the Syndicate Bank, which was required to be deposited in that Bank by the plaintiff and was required to be transferred in the name of defendant-appellant. Secondly, the learned Counsel for the defendant-appellant contended that there is not the least material evidence to prove that the plaintiff-respondent was ready and willing to perform his part of contract. Plaintiff-respondent did not issue any notice, nor call upon the defendant-appellant to receive the cash balance and to execute the sale deed from the date of agreement till the date of the suit and it was asserted that notice dated 9-12-1980 is ante dated and it is after the receipt of defendant-appellant's notice dated 16-12-1980, the plaintiff is alleged to have issued letter dated 9-12-1980. Defendant asserted that he did not receive any such letter from the plaintiff and denied the plaint allegation and asserted that it was false.
The defendant asserted that letter dated 9-12-1980 is a fictitious document, not sent to the defendant and is concocted one with ulterior motive. The appellant's Learned Counsel contended that plaintiff never paid the balance of the amount, namely Rs. 75,000/-, nor ever called upon the defendant to receive this sum of Rs. 75,000/-.
10. Infact defendant's case is that plaintiff should have deposited a sum of Rs. 75,000/- in the Syndicate Bank and should have called upon the plaintiff to execute the deed and transferred the amount in the name of the defendant-appellant. Learned Counsel for the defendant-appellant contended that thus really plaintiff failed to perform his part of the contract of depositing the amount in Syndicate Bank, within the time and has not been ready and willing to perform his part of the contract. As such the findings of the Court below on issue 1 are incorrect and the suit deserves to be dismissed on the ground that plaintiff-respondent has not been ready and willing to perform his part of the contract. The Trial Court acting illegally and erroneously decreed the plaintiff-respondent's suit.
11. These contentions of the defendant-appellant have hotly been contested by the plaintiff-respondent's Counsel. It has been contended on behalf of the respondent that the amount of Rs. 75,000/- could be deposited any time, it was not the essence of the contract. He contended that the amount had to be deposited only in the name of the plaintiff-respondent and thereafter it had to be transferred in the name of defendant-appellant, on the sale deed being executed. The plaintiff-respondent's Counsel contended that defendant was to clear encumbrances within one month and he had failed and he had no intention to clear the encumbrances. Plaintiff-respondent's Counsel contended that plaintiff has always been ready and willing to perform his part of the contract, even though he has not deposited a sum of Rs. 75,000/- in the Syndicate Bank, either in his name or in the name of the defendant but as the defendant-appellant has failed to perform his part of the contract, that is to execute the sale deed free from encumbrances, it is not open to the defendant-appellant to contend that the plaintiff has not been ready and willing to perform his part of the contract, as the plaintiff-respondent had been possessed of means to pay the balance of sale consideration and that at times told the defendant that he will pay the amount. Learned Counsel for the respondent contended as such the Trial Court did not commit any error of law or of fact, nor did commit any illegality in decreeing the plaintiff's suit, for the decree of specific performance of contract.
12. Before I proceed further, it appears just and proper to refer to Section 16 of the Specific Relief Act. Section 16 of the Specific Relief Act creates personal bars to reliefs. Section 16, particularly relevant portion thereof reads as under.-
"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person.-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(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 purposes 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 aver performance of, or readiness and willingness to perform, the contract according to its true construction".
13. A reading of the section per se reveals that Section 16 of the Act bars specific performance of contract or its enforcement in favour of the persons who come under clauses (a), (b) and (c). It says that specific performance cannot be enforced in favour of such persons. It denies them a right to get the relief of specific performance. It denies right of decree of specific performance in favour of a person, who violates the essential terms of the contract, that on his part remains to be performed. It provides that specific performance shall not be enforced in favour of a person who fails to aver and prove that either he has already performed his part of the contract or that he has been ready and willing to perform essential terms of the contract, which are yet to be performed by him. A reading of explanation (ii), per se reveals that the averment is a must to be made in the plaint and in addition to making averment that plaintiff is and has always been ready and willing to perform his part of the contract, the burden is on the plaintiff to prove positively that he is and has been ready and willing to perform his part of the contract. Initial burden to allege and prove the factum of readiness and willingness to perform his part of the contract by the plaintiff from the date of contract till the date of suit and its decision atleast is of the plaintiff and this burden is fastened on the plaintiff, so as to be entitled to get decree for specific performance of the contract. As observed by K. Jagannatha Shetty, J. in the case of Gurupadayya Shivayya Hiremath v Shivappa Basappa Gurammanavar, conduct of plaintiff should not be anything other than his readiness and willingness to perform his part of the contract. As observed by their Lordships of the Supreme Court in the case of His Holiness Acharya Swami Ganesh Dassji v Shri Sita Ram Thapar, the factum of readiness and willingness to perform plaintiff's 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. The conduct both during the contract and subsequent has to be looked into.
14. In the case of N.P. Thirugnanam (since deceased) by L.Rs. v Dr. R. Jagan Mohan Rao, in paragraph 5, their Lordships of the Supreme Court observed:
"5. .... Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail....".
So also in the case of Surya Narain Upadyaya v Ram Roop Pandey, has been the law laid down.
15. Let us proceed to examine the material on record.
16. In the plaint nodoubt, the allegation has been made that plaintiff has always been ready and willing to perform his part of contract. Defendant has not delivered the document of title to the plaintiff. It is learnt that defendant has not discharged the loan due to the Syndicate Bank. Plaintiff's further case is that the plaintiff has always been ready and willing to perform his part of the contract, but defendant has not discharged the loan. Mere bald allegation that the plaintiff has been ready and willing to perform his part of the contract is by itself not sufficient, The Court has to adjudge whether the said allegations stands proved.
17. That the perusal of the agreement dated 22-6-1978, per se reveals that the defendant had, as per agreement agreed to clear of his personal loans and to release the document and handover the said document to the purchaser for registration, within one month. Agreement further reveals that the purchaser had agreed and undertaken to deposit the balance amount of Rs. 75,000/-, in the Syndicate Bank, Wilson Garden Branch, in the purchaser's name and to transfer the said amount to the account of the seller at the time of registration. It is also provided that the money deposited will not be withdrawn till registration. The seller has undertaken to clear all accounts and the encumbrances if any, before the registration, and the necessary permission from the Urban Ceiling Authority and the 12 years encumbrance clearance certificate, as well as the income clearance certificate would be obtained and further had agreed to register the sale deed relating to the house within one month from the date of agreement in favour of the petitioner. No doubt possession has been handed over to and the purchaser had taken possession on 22nd June, 1978. The agreement clearly imposed an obligation on the purchaser to deposit a sum of Rs. 75,000/-, in the Syndicate Bank and said amount had to be transferred into the account of the seller that is the defendant at the time of registration. The clause further points out that the amount so deposited in the Bank namely Rs. 75,000/-, shall not be withdrawn till registration. The plaintiff-respondent's case has been that as the defendant did not clear all the encumbrances and loan etc., within 1 month, there was failure on the part of the defendant to perform his part of the contract. So plaintiff did deposit the said sum and the learned Counsel for the plaintiff-respondent had contended that the amount of Rs. 75,000/- could be deposited any time before registration. The clause reveals that purchaser had agreed to deposit Rs. 75,000/- which had to be transferred to the seller's account that is to the account of the defendant-appellant, at the time of registration. The clause further says that money deposited in the Syndicate Bank shall not be withdrawn till registration. A reading of the clause reveals that Rs. 75,000/- had to be deposited instantaneously, or within the reasonable time from the date of agreement. It may be said within the period of one month from the date of entering into agreement, as it was contemplated that the vendor, after getting the clearance from the encumbrances will hand over the same for registration of sale deed and the amount so deposited will be transferred into vendor's account, at the time of registration. So this reveals that before the stage of registration could be reached, the sum of Rs. 75,000/- was required under the agreement to be deposited by the plaintiff in the Syndicate Bank, may it be in his own name, with a rider on the right of the purchaser that is the plaintiff-respondent not to withdraw that amount. I read it so, because amount deposited in the name of the purchaser that is the plaintiff-respondent could not be withdrawn at all by the vendee as it would have been transferred in the name of the seller or vendor that is defendant-appellant. So this rider which has been put on the right of the purchaser, restraining him from withdrawing the amount so deposited with clear indication that the said amount had to be transferred to the name of vendor, clearly reveals that the deposit of Rs. 75,000/-, had to be made under the agreement by the purchaser that is the plaintiff-respondent at the earliest date and in every case before the time fixed for registration. There is no dispute that this amount of Rs. 75,000/- had not been deposited by the plaintiff-respondent, within the period of that one month nor prior to the filing of the suit for specific performance of contract. Here the conduct of the plaintiff has to be looked into and examined in the context of agreement dated 22-6-1978 and subsequent thereto.
18. P.W. 1-Syed Mukthan that is the plaintiff-respondent has deposed as the witness and has stated as per stipulation therein (Exh. P-7-agreement of 1978), we were to complete the sale transaction within one month from the date of Exh. P-7, as on the date of Exh. P-7, I was in balance of Rs. 75,000/- to be paid to the defendant. We agreed that I should deposit Rs. 75,000/- in Syndicate Bank, Wilson garden Branch in my name and that it must be transferred into the name of defendant at the time of registration. ..... I had agreed to deposit the amount in the Bank as stated above. I did not deposit Rs. 75,000/- within 1 month in the said Bank as stipulated.
19. Thus it is admitted position that the purchaser-plaintiff- respondent, did not comply with the first obligation under the agreement, to atleast deposit the said amount of Rs. 75,000/- in the Syndicate Bank in his own name, which amount had to be transferred at the time of registration in favour of the vendor that is the defendant-appellant. In his deposition he further states it is false to say that defendant approached him several times subsequent to Exh. P-7, requesting him to deposit the money in the Bank. Whether defendant-appellant approached the plaintiff asking him to deposit the money in the Bank or not, it is immaterial, but what is material is that the plaintiff did not perform his obligation to deposit that amount, as under the agreement the amount had to be deposited in the Syndicate Bank first and then to be transferred. He further states-"subsequnet to Exh. P-7, or one month thereafter immediately, I did not issue any notice to the defendant stating that I was ready and willing to pay Rs. 75,000/- to him and that he should get the sale deed registered".
20. My attention was invited to Exh. P-8 in order to assert that the plaintiff was ready and he was ready to purchase the stamp papers. In that context when I look to the statement and Exh. P-8, which is only a challan form which has been passed, there is nothing on record to indicate that the plaintiff-respondent did purchase the necessary stamp papers or informed the defendant-appellant that is the vendor that he was ready with the stamp papers for the purpose of purchase of the property and for getting the sale deed executed thereon. P.W. 1 states the date of challan (Exh. P-8 which is dated 25-9-1979, which was to purchase the stamp paper) I did not issue notice after taking Exh. P-8 intimating him that I was ready to purchase the stamp paper for the purpose of taking the sale deed. In the course of arguments of the respondent, it had been contended that the plaintiff-purchaser has issued the notice Exh. P-9 to the vendor and that should be taken as indicative of readiness and willingness on the part of the purchaser plaintiff-respondent to perform his part of contract, while defendant-appellant's Counsel contended that no such notice has been delivered or served on him, Exh. P-9 appears to be dated 9-12-1980. In the plaint, plaintiff alleged that plaintiff had sent the said letter dated 9-12-1980, calling upon the defendant to perform his part of contract and receive the balance and complete the transaction within 2 weeks of the receipt of the letter. He has averred that the said letter was also sent by Certificate of Posting. There is no allegation in the plaint that it was sent in any other manner, though expression "also" has been used. On Exh. P-9 there appears to have been got something typed as "by Registered Post Acknowledgement Due", though, in the plaint there is no such allegation that the said letter dated 8-12-1980 was sent under Registered A.D. Post or it was sent for service by ordinary post. Firstly it is to be taken note of that plaintiff-respondent had not filed the certificate of posting, under which the letter is alleged to have been posted, namely certificate of posting, which could show if it was sent by Certificate of Posting. The endorsement in red typing "By Registered Ack. Due" appears to be suspicious. If it had been sent by Registered Post A.D., and that endorsement by red typing was there at the time of the filing of the suit, why did not the plaintiff so state or allege in the plaint. It appears this endorsement sent by Registered Post A.D. is something subsequently incorporated and subsequent to the filing of the suit. Otherwise plaintiff would have also stated that it was sent by Registered Post A.D. No such copy of Certificate of Posting having been filed, there is no proof that it was sent by certificate of posting. Plaintiff-respondent has not also filed the copy of the receipt of the post office, issued while taking the registered delivery for service, nor has filed the acknowledgment due with which it purported to have been sent as per endorsement on Exh. P- 9, to indicate if notice was really sent by registered post on the date it purports to be. The plaintiff-respondent as P.W. 1 has deposed it is false to say that only after I received Exh. P-10, I have got up Exh. P-9 to create evidence. I have obtained the receipt from the post office for having sent Exh. P-9, by registered post. The receipt must be with me, because that is not given to my Advocate. Exh. P-9 which was sent to defendant was returned with the refusal endorsement. The cover with a refusal endorsement must be available in my house. P.W. 1 plaintiff-respondent as mentioned earlier has nowhere stated in the plaint that he sent Exh. P-9 by Registered A.D. post. Had he done so, he ought to have stated or alleged that he has sent Exh. P-9 letter dated 9-12-1980 by Registered Post. This conduct itself reveals that this theory of sending Exh. P-9 letter dated 9-12-1980, by registered post is the subsequent improvement attempted by the plaintiff-respondent. There is a further circumstance which dislodges the theory of sending Exh. P-9. If plaintiff-respondent-purchaser had sent Exh. P-9-Certificate of Posting, why he did not file the same. Even at the stage of evidence, he did not state nor depose that he sent Exh. P-9, under Certificate of Posting. He tried to improve that he sent it by Registered Post A.D. He admits to have obtained post office receipt received from post office, for having sent Exh. P-9 by Registered Post. He further admits that the receipt must be with him as the same has not been given by him to his Advocate. He further, admitted that envelope with "refusal endorsement" had been returned to him and that cover he admits must be available with him in his house. None of these documents have been produced by the plaintiff-respondent, which would have thrown light on the question whether he did really send letter dated 9-12-1980. No reason has been given as to why, when these documents have been available with the plaintiff-respondent, plaintiff-respondent did not place them on record of the Court and file those postal receipt and A.Ds., with notice and endorsements alleged.
21. It is one of the trite principles of law of evidence that the documents which would have thrown light on the material question before the Court are admittedly shown to be in possession and custody of the party to a case and that if that party does not produce the same for perusal of the Court, without any rhyme or reason, then in such a case, adverse presumption has to be and should be drawn against the party in possession of those papers, documents or evidence. A party in possession of such document cannot be permitted to rely on sheer doctrine of burden of proof. It is the duty of the party to have produced such documents. Such a party cannot be allowed take shelter, under the garb of doctrine of burden of proof, though here in this case the burden did lie on the plaintiff to prove his conduct that he issued or sent letter dated 9-12-1980-Exh. P-9 to the defendant-appellant. He states that the Registered Post A.D., and the postal receipt and the envelope must be with him, but he has not produced it. No specific cause or reason has been given for the non production of the same, so following the principles laid down by the Privy Council and their Lordships of the Supreme Court, in the following cases, I am bound to raise this presumption against the plaintiff-respondent, that really the case of the plaintiff-respondent to the effect that the plaintiff-respondent had sent or addressed any such letter Exh. P-9 dated 9-12-1980, or he sent any such letter to the defendant-appellant the vendor is false. The material decisions on the point on which I rely are; in the case of T.S. Murugesam Pillai v M.D. Gnana Sambandha Pandara Sannadhi, and in the case of Hiralal and Others v Badkulal and Others, Atyam Veerraju and Others v Pechetti Venkanna and Others, Gopal Krishnaji Ketkar v Mohamed Haji Latif and Others, and in the case of S. Gopal Reddy v State of Andhra Pradesh.
22. Thus it appears that Exh. P-9 is nothing but a forged document, prepared for the purpose of the case. Plaintiff-respondent accepts and admits that defendant-appellant had issued notice dated December 16, 1980, which was sent by defendant-appellant's Counsel to the plaintiff-respondent. Exh. P-10, so far as is concerned, its receipt has been accepted by P.W. 1-the plaintiff-respondent. Plaintiff as P.W. 1 admits that, to Exh. P-10, he did not send any reply. P.W. 1 further admits and states, I have not issued any Lawyer's notice to the defendant, prior to the filing of the suit, expressing willingness and readiness to pay the balance and to take the sale deed. He only asserts that I had already written letter to defendant as per Exh. P-9. That theory of Exh. P-9 has been held to be false and incorrect and the document have been found to have been forged or prepared for the purpose of the case. It is admitted position that plaintiff-respondent did not either deposit the amount under the agreement within the time or subsequent thereto, till the date of filing of the suit. The position admitted comes out to be that plaintiff-respondent did not issue any notice calling upon the defendant-appellant to receive the payment and to execute the sale deed of the property concerned free from encumbrances, within the time prescribed as well as also prior to the filing of the suit.
23. The above circumstances, really support the defendant-appellant's case that no such letter as Exh. P-9 was sent or served on him. Learned Counsel for the appellant emphasised that the defendant-appellant had not discharged the encumbrances and it was also a failure on his part. A perusal of the deed does not indicate that depositing of Rs. 75,000/- in the Syndicate Bank was subject to the condition of defendant-appellant's discharging the encumbrances. No doubt the sale deed has to be executed and sale transaction has to be completed after discharging the encumbrances. But so far as the deposit of the money in the Syndicate Bank, even in the name of the plaintiff-respondent himself, had not been made subject to defendant-appellant's discharging his encumbrances. The amount deposited nodoubt would have continued in the name of the plaintiff-respondent and he would not have been entitled to withdraw that till the date of registration, but his duty was to make deposit within the stipulated period of 1 month, whether or not defendant-appellant had discharged the encumbrances which were existing on the property. If plaintiff would have performed his part of the contract, nodoubt, he could have sought and got the decree directing the defendant-appellant to execute the sale deed, after having discharged the encumbrances. So that cannot be said to be in any way entitling the plaintiff not to perform his part of the contract. Learned Counsel for the plaintiff-respondent submitted that plaintiff used to meet the defendant between Exh. P-7 and Exh. P-10 and was assuring the defendant that he would pay the balance of the sale price. He submitted that D.W. 1 has stated "plaintiff used to meet me in between Exh. P-7 and Exh. P-10 and was assuring me that he would pay him the balance of the sale price. He might have met him about 20 or 30 times.
24. Learned Counsel contended that plaintiff-respondent was really ready and willing to perform his part of the contract and get the sale deed executed, but the defendant-appellant had failed to perform his part of getting the property free from encumbrances by discharging the loan. Therefore, it cannot be said that the plaintiff-respondent was not ready and willing to perform his part of the contract and the Trial Court was justified in recording the finding in favour of the plaintiff-respondent. The question of giving assurance is not very material to pay the money or to deposit the money. Agreement required him to deposit that amount and he failed to deposit. He did never offer the defendant-appellant or called upon the defendant-appellant to execute the sale deed free from encumbrances and did not inform him that he had deposited balance of the amount in the Bank to the tune of Rs. 75,000/-, nor that he was ready to pay that amount and get the sale deed. Giving of assurances time immemorial not acting in accordance with the requirements of the contract and forging the documents, changing the case from plaint allegations to the evidence stage and even not depositing that amount in the Court when filing the suit, particularly in the present circumstances of the case and again seeking two months time to deposit that amount, really reveals that the plaintiff-respondent was not ready and willing to perform his part of the contract, in terms of contract. He did not discharge his obligation as per contract and he was not willing and ready to perform his part of the contract. His further contention is that the vendor has not discharged his encumbrances.
25. Really all these reveals that the plaintiff-respondent had not been ready and willing to perform his part of the contract and in such circumstances, in my opinion the finding recorded by the Court below in favour of the plaintiff-respondent that he was ready and willing to perform his part of the contract is erroneous and vitiated in law and deserves to be set aside. In view of the provisions of Section 16(c) of the Specific Relief Act, in my opinion, the Court should not have passed the decree for specific performance of contract in favour of the plaintiff-respondent. As the Section 16(c) of the Act, very clearly provides that specific performance cannot be enforced in favour of a person who fails to aver and to prove that he has performed or has always been ready and willing to perform the essential terms of contract which were to be performed by him, other than the performance of which has been prevented or waived by the defendant. There is no case that plaintiff asked the defendant not to deposit the amount or in any manner prevented him from complying with the terms of the contract. Considered in this context, in my opinion, the Trial Court decree is erroneous in law and when I so opine, I find support from the view expressed in the case of Smt. Chand Rani (deceased) by L.Rs v Smt. Kamal Rani (deceased) by L.Rs.
Thus considered in my opinion, the present appeal deserves to be allowed. The decree granted by the Court below has to be set aside or to be modified. Plaintiff-respondent is not entitled to the reliefs claimed in the decree. Plaintiff may be said to be entitled to the return of Rs. 60,000/- which he has paid as advance, but with no interest as the plaintiff has been in use of the land or the property-the subject-matter of the agreement, the possession of which he has to return to the defendant-appellant, while getting back the money at the earliest.
Thus in view of the above, the defendant's appeal is allowed. The Trial Court's decree, decreeing the plaintiff's claim for decree for specific performance of contract to sell and for injunction etc., is hereby set aside and modified decree is being passed, directing the defendant-appellant to refund and return within three months the sum of Rs. 60,000/- (Rupees sixty thousand) to the plaintiff-respondent, who shall handover the vacant possession of the suit property in the schedule attached to the plaint, to the defendant-appellant, within three months from today.
The amount of advance money if plaintiff respondent avoids or refuses to accept and take the same, may be deposited in the Trial Court by the defendant-appellant, with a request to the Trial Court to enforce and execute this Court's decree given to plaintiff, to hand over the vacant possession of land to defendant-appellant.
Thus, subject to the above observations the appeal is allowed. The judgment and decree of the Court below is hereby set aside. No costs. Parties to bear their own costs respectively of this Court.