Karnataka High Court
Mustaque Ahmed vs Mrs D M Shedden on 13 October, 2009
Bench: N.Kumar, C.R.Kumaraswamy
IN THE HIGH CGURT OF KARNATAKA AT BANG-AL'CjR'E'ej--- "'
DATED THIS THE 13*" DAY OF_Qr:TQBE--R',"'2'e}ij;V9'°*
PRESENT}r"7
THE HOE\i'BE_E MR. JU'STiCE KIJMTAAR
& ._ _
THE HON'BLE MR. JL__JSTICE_C.Rv.__KU.MARAS--WAl§{!v'Y
REGULAR FIRST A"P:"3EAL N:).;.7'O€3L?i'O0.0 (SR)
RFA CROE_3'.- |\\IO.3{3f2'C0':3 1mjR_FA '.708;'2o0o
In gap-FA !\i0.708[20_-_f§)_Q 5§f,:_;i ~ A' it A
BETWEEN:
Mr. Mustaque-.Ah«med
S/0 S. Abdui Samad, A'rcir'iiAte~cVt}'*.»t.
Aged about_61 years, Ar/a N'o..97'3,
Hayes Road'C~ross, Bangaiore M 25. :APPELLAN"r
'(By Sharma, Adv.)
'Mrs.D.iVi, érhededen W/0 Max Shedden, since dead,
'(a'}iVi.-.R;-.Ad*'rian M.K. Shedden J.R., aged 71 years,
«S/ojivlr. Adrian M.K. Shedden Jr.
' -R/_a'No.29, Stone Leigh Avenue,
V,B0rnia 3155, Victoria, Australia.
2. Mr. George Reginald Upson,
S/o Manoraj, major, r/a 139
Guildford Road, Bassendeen,
Western Australia 6054.
3. Miss Ellen Crystal Rose Mary
Mayee @ Upshon, major, ;
R/a No.1693, M.I.G. F-"lat, Austin Town, ,_
Bangalore -- 47.
4. Mrs. R. Navaneethem, W/o 3.R;R.'«--.l\_Vlaidti',-,_
6/1, Moyenville Road, Langford
Bangalore --~ 25. .':RlEn_S.POlV\fiDENTS
(By M/s. Indus Law Associates?Adys.;_F"or"=-_'f~l
GPA Holder for R2 & R1(a);.;' i ' " "
Sri R. Nataraj, Adv, for V _ v_ a
Sri Shyam Koundinuyia, Aldv.,fo[r R4)"
This appea_ln"is¥fiEieVd«.is/5§'§'9.6_ of CPC against the judgment
and decree §j--a:e«d V29,,oi2AI,;jV2oo-ofpassed in o.s. No.10617/84 by
the XXVEH Addln'.n'Clty CiyllA'a_nd..-"Sessions Judge, Bangalore partly
d§ec.reeing«.§;t:iiei'~suit fno'r'i--..rveli_ef,, of refund of money and disallowing
the reiaercr s'pfeC_infic,_performance of agreement of sale.
RFA'~C'R'OB i\ic§i§3o.}2Voo3 IN Rf-"A 708/2000:
_m~.._E§E'i'v\.f_\ViEEN'." ..
l\i'~!:i_'ssi E,l'ie,n Crystai Rose Mary
'Mayee @ Upshon, major,
____"P'resentfy residing at :CROSS OBJECTOR
R. Nataraj, Adv.)
AND:
1. Mr. Mustaque Ahmed B.Arch.
S/o S. Abdul Samad, Architect,
Aged about 61 years, r/a No.9/3,
Hayes Road Cross, Bangalore ~ 25.
2. Mrs.D.M. Shedden W/o Maxsheddenf.
major, r/a 29, Leonard Ciose,
Clayton South Victoria 3169,
Austraiia.
3. Mr. George Reginaid Upsvo'n~~,__ _
S/0 Manoraj, major, r/a 139 * '
Guiidforci Road, Bassendeen,
Western Austraiia 6054 "
4. Mrs. R. Navah.eeth_erh_,._*;'.W;'o _3fl.'R..R.-.,"l\iaivdu,.'W
6/1, Moyenvilie Fioad,"_i_ing'ford'=7.ifoyv'n.,.i* "
Banga|ore__--.__.,2_S';».__" ' :RESPONDEE\iTS
(By Sri Y.K.
This RFA "c,ruoib,is"'r:i"éi:i u,/:'ff_o'41 of CPC read with Rules 9 to
11 of Cha;;Jter...VI oi"-thie' KHC Ruies against the findings recorded
oh"issueiri..,,i':os..,r«;, '2._and l4"'m"o.s. No.10617/84 on the file or the
and Sessions Judge, Bangaiore answering
the sai~d:"iss'ueVs i.'r_i--..th,e"affirmative.
abpieai and cross objections are coming on for hearing
'1._'_'th_is'~id'ay, Kumar J., deiivered the foilowingw
ii'/.
EUDGMENT
This is a plaintiff's appeai against the judgment andwjdecree
of the Triai Court which declined to grant the relief.«..0f_A»
performance, granted the reiief of refund_.,9f""':'r\no.ne4yt"o~f__V7--.
Rs.1,25,000/- with interest at 12% p.:;i.""'fr_'o'rnV '1_T7.~11'O..:9'1.VV.til'l'V'the
date of payment.
2. 3" respondent .h:as,_ a crosslxobjection
No.30/O3 chaiienging the findirios her in the suit. Therefore, bo~'ti~g'«.T.r7i;éie arypea:-r5an'diicrossoébjection are taken up for consiiderationv ofby this common order.
3. _.For pu.r'poAseVé"of convenience, the parties are refeirred "toC'asj'itheyA are refelrred to in the original suit. of the plaintiff -- Mustaque Ahmed is VV'?'.,._defendant"s .1"'--Van'cif2 are the absolute owners of the immoveable
4. residential house bearing No.6 (Oid No.12) Mayo Hail V"ix."x.;l?<o.a'd,7:Lonoford Town, Bangalore which is more particularly de--«scrVi'bed in the schedule to the piaint and hereinafter referred Lx 'J1 to as the 'scheduied property'. Defendants 1 and V2'-.gare foreigners. They are permanent residents of Austrai.i.a.44'_'» defendant is the daughter of the 2"" defendant._Sh'e_is:f_a~ls.othey Dower of attorney hoider to both the was looking after their interests in_4India;--ArDAefend.a.nts 1 are sister and brother. The 3"" ciefe'nrd:ant,' byVvirtyijev-iofutihlefipowerV of attorney executed by ilnvlifhler favour, agreed to sell the scheduled to the plaintiff for a saie conside'rati.o.rl of lPia2ntiff paid an advance amount on the date of the agreement ealrnefsyt of which the defendants acknowiedgedv inthe' saie itself. The balance saie consideration ofL4FE's.y_S,OO;OC)'0/2"""was to be paid by the piaintiff to 'defe'i'i-d<ari.ts o--n&'or"'b«e'fo're the date of registration of the sale deeci..__to__i. in his favour. At the request of the V7.1!"~d*efendafnt_s, tl:e':p'l--ai'ntiff paid a sum of Rs.25,000/~ on 17.10.81 .._.l'_j':iie__l'reCeipt" which is acknowiedged by a separate receipt. a sum of Rs.1,2S,OOO/-- is paid under the agreement siaglvef A period of three months was prescribed for completing thellsaie transaction after obtaining the requisite permission from i// 6 the Foreign Exchange Regulation Act, 1973 as weii as the Urban Land (Ceiiing and Regulation) Act, 1976. According .t'c.,gthe piaintiff, the time is not the essence of contract treated as such. Plaintiff has been making defendants from time to time about In about May, 1983, when the pigaintiffhmet-._the he was informed by her that she ha's:oi*.'Y recieiyeid to hoid the property issued by Reseryfeigfldaiiigg offflfndiaxvand gave to the piaintiff a xerox copy in about Juiy, 1983, the pia~in':i«ff;Z'me:t__ the-:defe'nd--a--nt.___3fAto ascertain as to whether sheffhfiadir to set} from the RBI.
The 3'" defenda--nt plaintiff that she had better offers forggthe pfroperty...'-and wanted the plaintiff to rescind the agwreemefnt b.y:re'c.eivin'géVthefysum of Rs.1,2S,0O0/~ paid under the agreem_e_nt; informed the 3'" defendant that he was 9°'--Vnot agreeable. suggestion and insisted on the defendants ...f.f'.j'SD§'c~i.ficaiiy"performing the agreement. He aiso informed the that in the event of failure on the part of the "i'Vid'e.fe.nd5ants, he wouid be constrained to file a civii suit for specific 'performance of the agreement of sate.
5. When the plaintiff suspected that the 3*" d.efe'n.d'a--nt was trying to find purchasers willing to pay a ~ issued an advertisement in Deccan Heraid D_a'iVi"y""iii.ig..,§'g»p§,pe.;{ Bangaiore Edition, on 31.07.1984 for1'_'_'inforrn.at:on concerned that the defendants ha(i._a'g.reedf'to seli f't.hAe7._Sc-h.eduled * L' property to him. There was no resVpo.n'se_ tonthe "said pinblication from anyone. Therefore, legal notice on 6.8.84 Calling upon t_h'e_defendanfts.:to":~tp%rfor.n§"their obligation and execute the ready and wiiling to perform duly served on the defendants 3"' defendant sent a reply on 27.8.1984 reftisin-2.itVo the demand made in the notice sen&.€t."VVb";' the in the reply notice, it was co'nte.nd'e--d_Vthat.the"~--p_iaintiff had not paid Rs.1,00,000/-- and the only Rs.25,GOO/~. in fact the 3" defendant 7i__has--Vset 'her case explaining the circumstances under which .1 ..t'h'e:'s.,aid~i«agreement of sale came to be entered into. The V"ff'r..plaifr_iti'ff:sent a rejoinder on 13.9.1984 meeting ai! those hi"-gaiiegatlions made by the 3" defendant and reiterating the x/..
demand made in the earlier legal notice dated 6.8.1994.fi'--.gThe plaintiff contends that he has been diligent and and always been ready and willing to perfor_nj_»trje'ie'ss:entia:l_«VV' terms of the contract. He has offered:;:tomp:ay the consideration as provided in the agreernent'--of salv.e.".,a'nV'd it defendants who failed to Derform and offer in the plaint to pay baiianyce of 'f{s.'Zi,75,OOO/- After the 3" defendant on the date she executed the aygree-V;fi:ent'._of: the plaintiff, she had no valid 1 and 2, the plaintiff amended" para--11A contending that the 3"' to the plaintiff that she has the full agyuthoritfyi schedule property and the plaintiff bieylyievedythat representation of the 3" defendant and"iag'ije_ed. tc._Lenuter"_ji..nto a sale contract and the 3" defendant :1Vvvwillaving'made thfeflzepresentation and having further executed the
-i.f,f'_j'a-g.re'ement 'dated 1.10.1981 and further having received a part if-tiof-.t'rie consideration, is now estoped from contending and averments contrary thereto. In addition to it, the 3'"
°i§def.endant has been authorised by a duly drawn up power of 1 {} defendants 1 and 2 never gave any power of attorney in,'"fa,vour of the 3"' defendant. The alleged agreement_J4'i_s.':'_'d'ated' 1.10.1981. At that time, the 3" defendant V' attorney at ail. Hence any such agreerne»nt"whi'c_h existence do not create any rightgin favéoutoif the'.i;.l,al'ntiff.'=i,'.A'Tih'e=.L 3" defendant was not authori's'e,Tcl"» to it executye if such agreement. Therefore they:c~o_nte«n.d"V_ttri-ratuth-e,re isynio "agreement of sale between the plaintiff 2 which can be specifically enfQ~rcei¢1...Z'pY also contend that the said security document.
They cc>nte"n'd"fV piltiifntijift'iflnegyoftiated with M/s C.J. Seeth Construction--.§jo'mpanVy:'itjo._'ipiirchfase the property. Under the circumstances, a"i'f,_:'the,~. fyeg'o'tiation was finalised and the wereyto t'a'l<"e"place, the 3" defendant promised to as commission. For the security of the Vsaid commiss.ion;-affndocument was executed, not that the plaintiff *-7.j'jV»i°.a_s'-»paid any consideration for the agreement muchless the sum tséoif,xRVs.'1.,_OfC;,O00/--as mentioned in the agreement. Admittedly, transaction did not take place. Consequently, the V";"'a..greement became void. The plaintiff never paid any amount 9 attorney executed by the defendants 1 and 2 on 19.5.1983. Therefore the authority to transfer the suit scheduée..'jpr.o'_Dérty._ vests with the defendant No.3 and the auth_ority--...raa.s f._been completed by this act. In the meanwhile»:as«;tf'ie had soid the property to the 4"' dyefendantfwho ':ini'p!ead'edV"i~.' as a party and accordingiy plaint waVse».:a"rnended~.to"initroiducwe piea regarding the sale as contain*e_d It was contended that the sate in No.4 dated 25.9.1984 executed' ij'gf;ey..i§i'"ae ti_efen-dan'tAA::fii'o';3.forand on behalf of the defendants "The said sale is hit by breach of in vioiation of the provisions ofvviiofreign'8§<.cA.ha\n'gVe:"Fteguiations Act. Therefore the plaintiff filed theéffisuiyt for t'neVé"reIief of specific performance on
2.'j1°.9*-.1 9891 1 'H6.:1"ha,'AVfter_ii-th'e'"service of summons, the defendants 1 and have fiied pajointf written statement. They contend that the 1"
4:,defendar*:t,_gave a power of attorney in favour of the 3'"
V"ia."r..defe.ndantonly on 19.5.1983 and the 2" defendant gave the kt"-.__po=.ver"of attorney on 31.12.1981. Before the said Phriod, the EX"
specific performance of contract. Suit is misconceived and therefore they sought for dismissal of the suit.
7. The 3"" defendant filed an independent"w_rit:f:en statement reiterating the allegations made by t_heg'v:'d--eferidagnts and 2 in their written statement. She authority on the date of the agrreement--g.of-- salev.i--'or:v'recei:pt'°iof"g Rs.1,00,000/- under the agreemelntjof sale;._""*VBu.t'KE she has admitted the receipt of Rs.V2115';-000./joint"'i_?,'ii'Q..1981V'AAtoi/vards the rescinded contract. The because the saie between M/s rC{3't"g;ig.§3eth:3-.Con'3tru'ct:i:o'n'fornpany fell through as the said and that is a subject matter of separate proceueduihgvsxlin.'4O'fS..:':'_'lsio.10294/82. The plaintiff did not have.«f§'su.5',75,OC)G;i.--:Vatmany time, the said alleged agreement was e§<'ecuted'«.byy:'t--he defendant in good faith in view of the trans'a*:tio.n Vt'hatr-..tl'i;e's.plaintiff negotiated with the defendant's ".1-gfimother, and grand mother and the said relationship of
-.é.br*&'ng.,ingit--.about the said transaction failed and as such this V."-é"_.._Vag.r.eerr}e'n't was also never acted upon either by the plaintiff or i/ by the defendant. Therefore she sought for dismissal of the suit.
8. The 4"' defendant has filed his written...~state_rnent..g He contends under a registered sale deed dated__2:'5-...i9.'i98i%i, he has purchased a portion of the schednfleif defendant who is the General Power of Attorney hoI«éieArv"o'f tiile."1Si"g and 2"' defendants for a considera"t»i,on of R"'s~.._1','5§*,O(z)"Q/--H. The said portion of the scheduiepgropertyfylcorng'p'riyses avvcottage, car shed, open space behind the maginf'_biiiviid-ingif-fjneasuring East to West 79 feet 3 inch'es;g:.Vgi$i'orti1 to feet, entrance on the eastern sideilrne.a'suri'r;gf-E\l'ort'h~.i;o"=Sodth. 80 feet and East to West 13 feet 3 inches._ "She"'is"in possession and enjoyment of the propertyv from the of purchase. She has exercised her rights' effecting necessary khatha transfer and also to the portion purchased by her. The ".r_.4'V".Vdefen"dan"t:&V.pdrchased the said portion of the schedule 4: the alleged agreement to sell the scheduie the plaintiff by the 3" defendant became illegai and asfthe 3" defendant had no power or right to enter into an "V. agreement to sell or to sell the schedule property to anybody. Actually the disputed sale agreement was concluded-.1 on 1.10.1981, on which date the 3'" defendant was not attorney holder of the 15' and 2" defendants. d'e.fendarit_g became the power of attorney holder May--1983. The plaintiff was no.t_inter'e--st'ed in pLi.l.i'.c:h'asin'gA.the"=1 schedule property. Only in Aug'Li'st}51984, Vthe"'*pl.ain.t'é.ff caused legal notice to the 3"' defe:n'dy_ant_«;'inthe.»ipl.aintiffwshould have completed the sale transaction:_of"_'Vthe property by 30.9.1982, which ;.kl'E"~.[cl:,'5Ci n.otad~o;ne';~ 1-["Fh.e_V.74'" defendant has legally purcrhahsledi'~a_por:tiVon_ponder awlegal transaction and the registered salegdeeld 'for'co'n._sAi'de~ration. Hence the plaintiff has no right over the _:sai.d.F property. Therefore he sought for cl'isVrr':i--ssa'l'vs---of the suit.
._y§'u'E5s*eq'o'e'ntly an additional statement also came to VV*T__be filed th'egV4."lVdefendant denying all the allegations made in .1.:éfhe"V.a.nielin.gledVHplaint. The 4"' defendant also contended that the if"V-""..:co-nltltlfctofthe plaintiff also disentitles him in law for the grant of .12"»i._VAeq-oitlable relief of injunction. As there is no subsisting V. agreement of sale, the piaintiff is not entitled to the relief--.yand therefore he sought for dismissai of the suit. additionai written statement was filed by the 4"' d.efe'r1Vdah.t~. r T' l
10. On the aforesaid pleadings; the4T't;ri'a_l the following issues:
1) Whether the piaintiff'ufilproves"r. lathe defendant--3 had vaiid,General"'"pow'er'"'-o_f Attorney to enter into an agreement:_c*to"r_sVei:Ev irlnffapvour of the piaintiff? V
2) Wheti«i'e'r- that there was an agreempent" sellifi: 1§i"0';'*1§81 executed by defendant-3' attorney holder of defendants the plaintiff in respect of thesuit s4c'i':edul.e" property for a consideration of 6 'bf.-V"i!'D\E-5- 1. iakh was received by him as ea:rnes't that day and a sum of Rs.25,000/-
by the plaintiff?
V .V RECAST"ol\£*2"2.1.1994:
Vr'W.yhether'..;jiaintiff proves that there was an agreement " "'«tor.sel}; dated 1.10.1981 executed by defendant No.3 asgthe power of attorney hoider of defendants 1 and 2 "in his favour in respect of the schedule property for a K/, 16 total sale consideration of Rs.6 lakhs and whether""*.d plaintiff further proves that he paid a Rs.1,00,000/-- as an earnest money on 1.10.1961 i"
further whether he paid an additiona_!-~"'s1.1':rn:"of«A Rs.25,000/- on 17.10.1981 to the t;hird::defe'n_da'n*t?:
3) Whether the pEaintiff.»fVfu._tjther"r.pfovest.'Vthat:_hVe was always ready and willing "t'o:"perforrr'i~._h'i's-V-part of the contract under the va"g.reeme'nt'ttb' she:-If?
4) Whether the plpaintifflflftiplrtheiti'A~l.:pro~ves that defendants 1 'c.om§rnit:teT(f b.re'aLf_hVvvof"Vjthe terms of the contract?" ._ x_ H
5) Wheti=1.e:%:.. the it proves that she purchaseciiiiiv po'rt_Eon_ -iofivthe suit schedule property/"_«sin_ce sell the suit schedule property in'%f..ad\/:)ur 'tihedptaéintiff by the 3" defendant becanje' iélegal an_d"\'/0id"' the plaintiff proves that he is entitled tot-heSpeciificifiperformance of the agreement to sell dated In the alternative, whether the "plaintiffVis';.entitied for the refund of the earnest money Hoff Ris.,1 Lakh and the part of the sale consideration of r:s§;25+;'oo0/W? \/
7) Whether the plaintiff is entitied for interest the said amount. If so, at what rate?
8) What reliefs are the parties entitled in
9) What order and decree?
3 _ _ ,_
1) Whether the plaintiff that the defendiant No.3 had valid power att:o.rn:ey':.._to+'e.nter an agreement of sale in favodr_'of'"the (deleted as per order dated' 1 .. f
2) that the suit is not maiVn_tla¥.fFéibpi'e :iV'n;;::'_vietAi"of'AS"eict.iro_n531(3.) and Section 47(1)(a7_) of .Al5oreig_n:*.E><c:ha.n_geRegulations Act 1973 and sectioe-38(2)V"eAij~elffs--e§'t2n»n 9 of the Specific Reiief Act? dd ' A if \fv"theti--her thiemdefendant No.4 proves that the Lis::p'endense has no application as pleaded ih~.pa--ra iiiVo'f._ti'i;e'xAdditionai Written Statement? f4) f..\!\i}lt_ether defendant No.4 proves that the for grant of power of attorney is against i._Sectioh 13(1)(c) of Specific Relief Act and it cannot be h _'¢l_c_ted u Don?
,;,,,,,i,_ WVb'o\.<u. __ £8
5) Whether the 4"' Defendant proves that the suit is barred by time as on the date of the amendment sought for?
6) What decree or order?
Additionai issues framed on 22.1.1994
7) Whether defendant No.4 pi*o\}e'si.tAhaAt agreement is void--ab-initio and a non-e'st"i'fn iaw? s
8) Whether 4"' defendant p..ro'*;res thatth..ej'pia"i:ntiff is putting forth inconsistent vers.i.o:iis_ai~n_Vd ha's"ip.racti§:ed fraud on the Court and --re':nde;?_ede_hfim.sei.f'~u_nfit for any relief at the hands of this CoiJ,_Vr'tf?'_'V
11. Tithe"~piVaintiff':_ijV*.i_n'<._o'id.e'r to substantiate his claim examined _h_imseif" as and has produced 140 documents tuj'h'i'qe &aee':'n%3iark'eid asV'i:--:i>t;i'>: to P140, one 3.R.R. Naidu, husbande'_ofeit:h'eiV;4f" defendant was examined as DW--1 and he has :7.1ff'-~~produced.l34Vdocuments which are marked as Ex.Dl to D34. ._If'd;%i::«ae'e.gh the" defendants 1 to 3 fiied detailed written statement if'---V.cont'e'stin_g:§the claim, they did not choose to enter the witness 1'/.
£9
12. The trial Court on appreciation of the aforesaici-.eorai and documentary evidence on record, held that thei.p.i.a'i_Ant_i';'f'.;*has proved that the defendant No.3 had a vaiid GPA agreement to seil in favour of the p!ain;tiff.i::A'It..valso-I'Aheid_thVa't"the plaintiff has proved that there was an a'gAreement..".to:sell 1.10.1981 executed by defendant the~po'vv:er attorney holder of the defendants "plaintiff in respect of the suit _.f:¢f.Al_',a:v'ii__§.onsideration of Rs.6,00,000/-- and" iwas received as Earnest Money "on the date of the agreement paid on §7.10.1981 by the piaintiffvvytoggllthel It held that the suit of the plaintiff ismagintiai'naVb%e.'I- fi"".he"'iZourt also recorded a finding that ";»~,.iaini:tri:ff has"faiied"to""prove that he was ready and wiiling to perfio_rrn_.r.h'i£:::'part"oftthe contract. The suit is not barred by V"~iimitation44.:V Theflsallie deed in favour of the 4"' defendant is not 'r--l«l'.j'jvoid'-».as it "came into existence during the pendency of the and the validity of the safe deed depends on the the suit. While recording the finding on the question of vd>cT'r*eaVdiness and willingness, the trial Court relied on the judgment of the Apex Court reported in (1995)2 scc 31 and held th"a--tg the 4"' defendant being a purchaser has no right to regarding readiness and willingness on the part"of~.t.hef_i.'plainti'ff_gVii and such a defence is not available to FVu"rth'e'r-- when the 3'" defendant repudiated thereon-tractga--$.'e'al'ly jluly-1983 on the ground that they""ih.a.ve'bett'e.r fgofferflainfdwfshe is not willing to sell the prope;:if't~,/e_ to_~'t'h":et thevplaintiff kept mum all along. After a a year, the plaintiff got lssued;'*a";t;lJ:lbllc advertisement in the Deccan Herald issued a legal notice.
The suit ca;jT'le'Vft'g at the fag end. From these circurnstarlces; though the plaintiff has proved that the d.efendant_:com'miAt'ted""preach of the agreement, he has faJlfl.e'd that hefvvafsfyready and willing to perform his part of 't'l1_e'V'<d;.o'ntfa'cth aévnrddtherefore the plaintiff is not entitled to the "'-t"r'eilef of »s_pecl,fl.c:petformance. The plaintiff is only entitled to the "«f«3.j'jrfef__tVJ'n.d of nfioney paid. Therefore it declined to grant a decree for 1"-ifspecilflcperformance, but directed refund of the money paid "e%tJ"n.der__the agreement.
E/it F»)
13. Aggrieved by the said Judgment and Decreefof.,the trial Court, the plaintiff is in appeal. ' 'V if
14. Sré Y.K. Narayana Sharma, appearing for the appellant assailing and Decree of the trial Court _r:o'ntende:d'~-.thatV.,'.."gh,ei recorded by the trial Court are contrfary"tothe"ana'tehi4ia«l.'1'on"record as well as contrary to then'statutoryvi':'p_royi.5;.ions--'contained in section-~2O of the Specific therefore it requires to be se_t"af,si-de.. contention, he contended that once:_u_t'h_eV a'gre:enfie.nt~of sale is held to be proved, under the terms 'of.Vthefrjjon.tr'a.ct';-.an' obligation was cast on the defendants 1 to" to ofbtaéin. thefrequisite permission for sale and oniy afteflsticiii perrxnissivon is obtained, three months therefrom th'e__Vp!aVi'n--.t._iff to"*--pay the balance sale consideration and take the sale".'-dee.Ci'.a'_"_ii,«.. Aidfmittedly, in this case no permission was Vfmobtained "sell the property by the 3" defendant. Plaintiff has ,1-..p'rociruc'edt-.,_.voluminous documentary evidence to show his V"*3."i..;fina'ncAi'al'mposition which clearly shows he was ready with the requhilsifte money at ali relevant point of time to perform his part 'V/..
of the contract. Mereiy because after the so called repu_d_i_ation of contract, neariy after one year he gave paper which was foiiowed by the iegai notice, it cannot that there is any deiay or iaches on the part performing his part of the contract. Diirryignigthe piaintiff was negotiating with the3.W"~.defen"d.ant.an.r;i on"? performance of the contract by th~eui..3_f?""d»efen'dant.. and mereiy because no documentary demonstrate the said fact, it cann.ot is no evidence especiaiiy when; "~f._o':,3 have not come to the witness Adrnittediy, the suit is in time. not or abandonment of the contract DY,thei"p'ia_i'nti.ff'; if there is a delay of one year, DY not a to deny the specific performance to the'pia!Vn.tii'f,_"=.Ti':ei~discretion to be exercised by the Court is the V7.VVi""-~~judiciaiidgiiscretionflwnhich is capabie of correction by the Appeiiate Non.e__ii3~of the factors enumerated in s:ib--seci:ion (2) of exists in this case and therefore both the findings on "i.VVt'i1e:V'qL;_éstion of readiness and wiiiingness to perform the contract Vfie.,T'a.s..Vweii as exercise of discretion under section--2D are iiiegai and i,,/ 24 want of funds and therefore, he went on dodging and the trial Court committed serious error in ignoring the said material and in holding that the plaintiff was ready to perform his pai't.fjo--f:'t--he contract. . V _ g
16. Per contra, learned counselfor'the.-'%4""'=clefendva.nt...%"' purchaser of portion of the schedule pr'o.perty.. the date the 3": defendant enteredlV_'i'ntzo sell schedule property to the plaintiffp,_;4_l:t:he_ had no authority at all. of attorneys produced in the casewarhe 'original has not seen the light of .,l"..T:h"os'e"documents do not bear the date on which uth_ey_werea In the averments made in pa.ragraphl;i1i'(a) of"t'~he___plaint the plaintiff admits that on the date»oVfi'--»t_he.,ag.reernent of sale, 3"' defendant had no power of vattor'n'e:y'-.atha'll."_"gangdwwlwtherefore subsequently power of attorney came tou"oe"rexecuted ratifying the earlier transaction. That he._contends after the repudiation of the contract by the 'A'~4'j~._3"5?de'fendant, the plaintiff did not move in the matter at all. For one long year, he kept quite. The said delay of one year is not properfy explained. Though time is not the essencge of the contract in case of immovabie property, having been entered into in 1981, with the property values have gone up considezrafply.' is "'r~_la'ff'CA]-if Rs.1,2S,OOO/- if at afl is paid andgstherefo-.re"'the discretion has rightly declined th"'e.,¢_r'eliefAlfloflwllspecificl performance. The exercise facts of the case is justified and do not He also canvassed that on;"'t't'a'e.g:yZgrodnda1thfiathel":w'a.s..:V:apurchaser of the schedule property, to cross--examine the plaintiff and willingness to perform theVV'pa'rt-- of Thus his valuable right was afso affectedr rest At'he"':trial Judge was not justified in Therefore he contends that seen frorfis.._a'hy is no merit in this appeal. Accordingly, it liabfe to be,di's"rhi'ssed.
Advocate appearing for defendants 1 and 2 V.'ix."1.._Vco«n.'f:e'n-dedffthat there was no valid power of attorney on the date tl*refWa'green'1ent came to be executed and therefore the [L/ :36 agreement in question is not enforceable and the trial Court was justified in dismissing the suit for specific performance.
18. From the aforesaid facts and the rival points that arise for consideration in this appeal arelais tindverlf '
1) Whether the 3'" defendant had :autho'rijt:'Y the date he executedV.r'ti';_e ag"i<ee'ment,»"of_r sale dated 1.10.1981 in favolurilof the p!,a_i'nti.f-1fs°Q as to bind defendants; and-2' V'
2) Whether the plaintiff'-l'yva's':'riead5r"a;nd'_'..willing to perform hi.s:;pa_rt cf th'e_"con:tr.aCt_V?V' '
3) V\l'het--h'er.Vtliiéj-~,:discret'i"o--n" exercised by the trial Cotirtini deemingitofgiant the relief of specific _perforn'1'a.nce».iis just and proper?
eeint final i in dispute between the parties that the L-.sc4hedti|e pitoperty belongs to the defendants 1 and 2, who are '._'_"siste_'r landibrother. 3"' defendant "is the daughter of the 2""
V' 'Vffdefendant. Defendants 1 and 2 are the permanent residents of .A_ustraiia. 3" defendant has executed an agreement of saie in R/.
favour of the plaintiff on 1.10.1981 who is an architect.' by profession. The consideration agreed upon is It is averred in the said agreement that a sum .. is paid in cash. It is aiso not in dispute a cash was paid by the piaintiff _to thgefri-3"' gdefevndanft 17.10.1981. The question is on the"ag:r'ee:me'nt of safe 1 frii ' Ddefendavntffvywas duly came to be executed, wr:et*h_er authorised. The piaintiff P12. Ex.P11 is the xerox copy to have been executed by 2&1 defendant in favour of the 3'" yet another xerox copy of the powerxofiattorneyaA.exfe'cu:t'eid..~-by the 15* defendant in favour of the 3rd defendant.' 'Both power of attorneys do not bear ir3ut'*£.r?eyxaremfexecuted in respect of the schedule prope,.rty_..aLrth:o--rising:the 3"' defendant to manage the properties 7L,,..a'nr:iuding._the seli. Though the date and month is not .._f./'.jrrV:'ent»i.oned, year is clearly mentioned as 1981. The stamp which the said power of attorney is executed is dated No evidence is adduced to show on what date Vfiicttheise documents came to executed. In the absence of any L//.
28 evidence to the contrary and when the document do not bear the date and month of execution, the date on which the stamp___paper is purchased wouid give an indication of the date on document came into existence. If that consideration, 14.7.1981 is the day on..wh_ich t'he'vt"3~'5"'_';V"
was duty authorised by the defendantstl agreement of saie. In fact subsecju_e'ntiy have executed power of attorney dLJ,t!V'i1A"()ii."_iS'E!'_gigA(g t.h'e'd'.df€gnidant No.3 to execute the sale deed. V facts of this case, having regard to the ,__transa'ct'iifins."ie:ivi.tVerVed..:"into between the parties eveiviviipirioriitov and the reiationship that exists it cannot be accepted that the 3'" defendarntx had to enter into an agreement of o'f..thexpiVa'i'ntiff. In that view of the matter, the the trial Court on appreciation of the E*"'evidence..4__Von.record hoiding that the 3" defendant was duly ....i'_j'jga'utr.-»orised "to_d*enter into an agreement of sale and accordingiy 1"--.xsi*.e"uhas_ jientered into agreement cannot be found fault with. doénot find any error in the said finding recorded by the trial 1" «. ' Cou rt.
)"// 3') Point No.2:
20. In so far as readiness and willingness on theiV..pja»_r't=_of the plaintiff to perform his part of the contract is 1-
have the evidence of the plaintiff himse_l;f..re_c4ord_edlash/?lilli';:1_v.'_:.AV if on 17.10.1981, a sum of Rs.1,25,ooo/-lain cash balance consideration Payable Then' agreement of sale between theVAp___;S'E':,A-,ryt;es._VgAstipula.t.esJ?that the balance sale consideration '4bvfV':the--..pVurchaser to the vendor on or beforef-the d~a't'e'--o'fVregrisVtra.tion"'of the deed in respect of of the contract also provides for under the Foreign Exchange Regulation_Act --la""1_9:f/E',~..vasA'"wellas permission from the Urban Authorlitgfénd Income Tax Authorities. The agree.n*ie_inVt executed on 1.10.1981. When no specific lap'-~'time is p»r4escr,i-becij'..--under the agreement of sale, the same has to *-{fr}-e.___Vcompleteid__A'*within a reasonabie period. Clause--6 of the of sale provides that the sale will be completed '5w'i~t.hi_n__three months after ail the above permissions have been oibtained and after the purchaser is intimated in writing about }i//' \8' one year thereafter on 31.7.1984 an advertisement was i,/ 30 the said permissions having been received or within one year from the date of the agreement, whichever is later. The averments in the plaint itself discloses that no was obtained till E'/!ay»1983. In May-1983 the obtained only to hold the property andperrn'i..ssi.onllV"t'o_ sell? l property is yet to be obtained, Howe'=1er defendant made it clear that he intentio.n:"_:ofé'>selling the property to the plaintiff as='h._e ha,d"'betterV"of_fer. ""E3y'that time, roughly two years had lapsecld .;The-.evide,n'eé'.~»Q"n'_~__record discloses that the plaintiff_..proc:eedi§_ onftti-efiassguhniyjption that till the defendant perlrnission as stipulated in the agreement, done on its side. But still on 17.10.1981, he Similarly, there is nothing on feciordé that track of this agreement and he was in 'to_,u"ch.llwithritiizeadefendants to find out the efforts made by V"~"them permission from the appropriate authority. July»i9V_€i¥33 when 3'" defendant made known her intention if'---V.xa'nd"r.epud:i--ated the contract, the plaintiff did not take any steps "i.Vhto.&t:omlpel the performance of contract by the defendant. It is 'D given in Deccan Herald asserting the existence of the agreement of saie dated 1.10.1981 and caiiing upon the public no4t,.ton_:en_ter into any agreement of sale in respect of the Thereafter he got issued a legal notice on w_:a's'~ replied to on 27.8.1984, for which 13.9.1984 and subsequently on.»2-1.__..V9.1A98,_<i"the The suit filed_ is in time. The re the plaintiff was ready and willing to contract from the date of the agreement in support of his Contention thaVt§._.:vheA;;13;iias .ieaay"wit[is ithlellretjuisite funds, he has produced disclose that he was an incorriei tait is the assessment order for the year, w'her'e total income of the plaintiff was a'dVrT'i'i--ttéec}:..::é's3-1385.25,1918/V¥".'"""Vin the statement of total income for is shown that he realised a sum of Vl""'-i'Rs.6O,O0.(g)V/-- of the buiiding at No.22/1, Gundopanth .._.fjstr.__ee.t. In"E;i{1'.P22(a) statement, it is shown that he has paid a rRs.1,25,000/- towards advance for the scheduie "fVp'to;p_erty. Again the statement of total income for the income 'taxi purposes for the assessment year 1983-84 marked as EX/4 32 Ex.P23 shows he has sold a property at No.9, Ufsoor road Civii Station, Bangalore for a sum of Rs.89,010/-- and his share is Rs.44,50S/--. The statement of net wealth for we'a.It_h:"tax purposes for the year 1982~83 shows his Rs.8S,O47/--. The statement of tags purposes in respect of partnership firms Sons, in which he is a partner folrithe ass'es_smenvt shows his income as Rs.5,6D.t)/~ th.el'totai..year. He has also produced wealth as per Ex.P121 which discioses thetotal value' th'e«.:L:~rpperit.i,9V"at No.9/3, Hayes Road, Bahg"alsré;iilli.i:., 31.3.1980, which is fetching annual!'-ren't The income tax returns filed by hAe,r..wifet'4fo,rV Athe"ye'arvl'1..l982--83 at Ex.P91 shows her total I-é'n@co'me "iis."l:Rs.;'fi5,*6,1'O/hi.'"flhvough the petitioner has produced the 4VtVhe_i..payment of tax and returns, they do not "show the_'VactuaI:income of the plaintiff or his wife at the relevant "--i3-Ti,poiVn'»tAof tirnelii' A carefui perusal of these documents coupled Vow-ithhl.,,th.erl.--'admitted evidence of the plaintiff shows whatever '*Ep'rop,e_rty he had, he had sold and he had no more properties. properties belonging to his wife are in possession of the i// tenant which is fetching annual rent. The cumulative effect of all these documents together would show that they do not e\'/__idence the capacity of the plaintiff to raise a balance a.r:iiou«nVt"--VVof Rs.4,75,000/-- either on the date of agreement May-1983 when licence to hold the pro_pe.rt_y' wash' the 3" defendant or in 3uly--1983 when"the:'~.3"'_:--.gdefeiidjfavnf repudiated the contract or on 31KV.?";~l984A"tVl]€wH_ f'g_'avVe. paper'-if publication in Deccan Herald or on__.th'e._d'a_te of "they legal notice dated 6.8.1984 or on the"-V:date.g_téhefj on 29.9.1983. Though the plaintiff has av.e'rred:.":sp'ecif_i_cally..:that he was ready and contract and he has produced way of challans, statements filed, assessnnent" orders Afanvdlsflother documents, they do not indicate i:;a.pac.ity olftthetplaintiff to raise nearly Rs.4,75,000/.. at any" time to complete the sale transaction. :7pgf""--{infortuhately,.th:e':'trial Court was carried away by these
-._f.f'_j'd~o.ci;rnents it proceeded on the assumption that he was the of the property and he could raise the funds by selling 'rtho.:s'ev properties. A careful reading of those entries in the r'e.c.o'rds produced demonstrate whatever property he had, he R//.
34 had already sold and by which he could not raise funds and hence he would find it difficult to raise Rs.4,v75'.,QO.Q/--. Admittedly, he had not kept any money in the _ From the partnership firm in which he was a_.p-a.rt':nevr;~::heA getting an income of hardly relevant point of time. This is all.=th_e evi"den"ceV to show that he had the capacity they do not support his case. Apart_.'ffrom'_V:thylgsy. come forward with any other material for ryaisin-g to pay the balance sale con_side'r'atior'ly a_gree_4d=_t'C""'b'e paid under the agreement.:v:f'THhVa'ti* arranged for stamp duty and registraftion'-fee; not eager to complete the sale trans.a,ctiont:" aforevsaid material on record clearly thatufrornfttfthtettidate of the agreement of sale till the daté,..on_l. is filed, the plaintiff was not having "'-V"r*leduisiteygfund-s~ t_ot.--pferform his part of the contract. The very fact .l../..:f'€vl'l«a2VtI"'€$/8f} after repudiation in July 1983, he slept over the matter .l,on'g year, before he gave paper advertisement shows his "e.V%u'n.wi'l_li_ngness to perform his part of the contract also. Though trial Court has referred to the documentary evidence in l/ r'ei:juisi§te funds to perform his part of the contract. coming to the conclusion that the same would sh.o"w his readiness to perform his part of the contract, unfor't.ctnaVteEl:§rV;~the trial Court did not look into the contents of the if particuiar the document pertaining to pei"iod._friom:_':
to the date of the legal notice. _Frorri 4thAe"--incorh'e.;.tAa'x"re'tu'i~ns;=, wealth tax returns and the statemielnt of"acc'ou'nts*_produced during this period shows 'p..l'_aintifff"tiid;not~.h.ave reiquisite funds or the capacity to raise funds to of the contract under the agreerhe~i1't'ofj'sale., :;
21. learned counsel for the appellant document produced before the Court forthe plelriod fro'mi"1.s98'i till the date of the suit by itself no'i:.jEi:ndAilcatve.Atheposition of the balance sale consideration in 't4h"ei.:p_u-rchaser, the properties owned by him and wife,..4'theVfi.$<:e:d'deposits in their names, the profession which
--«.l7.j'jVth_e'y.are Ca:-rjing on and other attendant's circumstances, would «"--.V.xc'l--ea*rly.estabiish that atleast he had the capacity to raise the l/ 36
22. We have carefuliy gone through the records produced in the case in particuiar, the income tax retvui'h_s'.and the weaith tax returns at the reievant point of H of both the husband and wife was around Rs.2'[%T.,£i':'Oc:C}/V~: ., annum. As is clear from the IncomeZia);:.4F§.et\i;c,T]'i;;{"
piaintiff was a partner having 4OV%.4_i.n his income derived from the around Rs.7-400/--. The statement's;::4_._?f:;t_ngd5::ih'efo're.__'t,,h'e._gCourt shows the piaintiff did raised a__ioan be from his brothers out of wri'i¢'rj;i:;.§iop:é2big»; he Rs.1,25,000/-- and subsequentfiytyimftwan}_ite?nVs _'o'f.44,:'_'the property were sold. The considerationde~rive*d_'frornf"that«was not sufficient to pay the balance corisider'at_i'on....'--Hiaving regard to the extent of the haV|'ance"co:ns,i"dera.tion payabae, the income derived from both the hus'b_ahdtf, the properties owned by them speaks that vf""'-they were noVt.c_a:pa.b|e of raising the requisite funds from those ...fif'.j'jwh_a't. is meritiiaoned in the statement of accounts. That is the the plaintiff did not evince any interest in the "t.Vip'e.rfor_mance of the contract and did not move his iittie finger after repudiation of the contract nearly for a period of one i//..
37 year. Only when the defendant entered into an agreeme'nt.gwith others to seli the DroDertY, to staii the sale of the immediately suit is fiied. Under these regard to the legal position, the Section 16 of the Specific Reiief and"th:e'i.evide,'n'.ceon we are satisfied that the plaintiff wasa"i-.e_ardy7noiigawaiaiiing to perform his part of the of the trial Court that he was part of the contract till the reley~;ra?ijyZt' by the legal evidence on record .;and' do no't7.'i;ia.l'i'----fo'r any interference.
23. :"The 'fli']a(ajvi'al'iC:J"S:r4Ci.F_r.'fh,C""1Zl'I':3i' Court that the purchaser is not entitled to urglevrthataathlef' paiaintiff was not ready and witling to perform ..!i{isu part of 'therflcorntract based on the Judgment of the Apex C«ourt.,:is«_notacorrect. The trial Court has relied on the Judg'n~..e'n--ti'of"'th"e._/tape} Court in JUGRA3 SINGH vs LAB?-i SINGH re,oVortedR"in. SCC, 31 wherein it was heid the piea of _A:reaV.di,n'ess_aand wiliingness is specificaliy avaiiabie to the vendor. personal to him. The subsequent purchasers have got only tl'ier"ri'ght to defend their purchase on the premise when they it/r 39 seeks. There is, therefore, no question of the plea " a being availabie to one defendant and not to anothre"r,_"'«--._ It is open to any defendant to contend and esta«bliSh.__* , ' that the mandatory requirement of Seci:ion":-16(,c){"= has not been complied with and it is for the__cou.rt~.to , determine whether it has or has _n.o.t__been conipE»ied with and, depending upon its conciusiéon,'<de1cr*ee"or.__ decline to decree the suit". '
25. In the light of the afor'esai»d proVr'io_u'nceme,nt of the Apex Court, the findings of.t'h'e,_tria'l Court inthis regard is wholly illegal.
26. Thou_g.h§~..,, preferred any cross appeal__Q,rl"a;):7.ép.;;i:eVai».,_cii§;';engriinggiithe finding of the trial Court regardi.ng--. his part of the contract, it is settled the u.'l4t'in1at:eud.ecree was in his favour, when specific perforirnance 'i~ir.a,sWde:r:iined and he had not challenged the decree:insofarvas.,p"ayment of money is concerned, he cannot be expected'--..to "cross objection or an appeal. In an appeal Vkzgfiled by th"e.p"lVaint'i.ff, it is open to the defendant to urge that the 4: .,f'i'nd',i'n,g's'recorded against him are not correct and it is in that V""V."i..,conli:--e${'t:,'learned counsel for the 4"' defendant pointed out that L// 4%) the evidence on record do not establish the readiness and wiliingness on the part of the plaintiff in performing the cont_ract. POINT N03:
27. In fact, the trial Court after recordingthelfindiing thati». the plaintiff was not willing to perforn'i.y_v'his-~part'*oféitlheélcointracty aiso declined to exercise the discretion fiVni.Vfavour.'of relying on Section 20 of the Specifijc"i«if<:eiief tirial Court has held even after repudia'ti_or*i: of.:tli--eg»ilcongtractif i)y the 3"
defendant in 3U'\/ 198.3, th€vP~!a.ll_itiff n'o'ti.ta"i§e"ininimtJm action to enforce the coiitiVi=vact.Kf'f.i3"'?':ldefendafntVmade their intention very clear by saying thats'h_e.:h'a.d"better offers and requested the npiaintiff torescinud t:he..a'grAeenient. As the plaintiff kept quite for ip:ea'r.l.y& l.,o'.ng~il.A.\/ear iiptcsl 31.7.1984, when a publication was given "i%e-raji.d, the triai Court was of the view that delay f'""~"'v--.rould d».iysentii-tievf'éitnie plaintiff from getting the reiief of specific _._.l'.fjVperforrnance.,_3 Therefore, exercising its power under Section 20 "Co? the trial Court declined to exercise. its discretion in the specific performance.
41
28. Section 20 is attracted to a case only whenthe plaintiff who comes to the Court for relief of specific proves the agreement, his readiness and his part of the contract, and requests to discretion in his favour in granting. the specific the agreement is not proved, if rea'diii,:n'ess not' established as required undeiv.,Sec_ti'on'V'i'o,:Vtii.e quiestioni of Court declining to exercise its discrgehoin performance wouid not arise. be dismissed on the ground ofinohipro'v'i--iig4"":it'h.e'i--rifiandatory requirements as contemplatetl the trial Court recorded a finding that the"piairi'tVl,VffFQva_s"h.oit~~:v\i'iEling to perform his part of the contract, on that g:rovti.n'--diialoin'e the suit of the plaintiff should liiVc"V3V\'/'e., i,.disrhissedV.i"The question of the Court declining to exerc_isee.tfiie,::d».E,scretio_jin under Section 20 would not arise nor the Vi"~'i='eiief couir_i be on the ground of delay and Eaches. it is in _._,i/.j'this'~context teamed counsel for the appeilanit submitted that 47-risub¥s_ect_ioh (2) of Section 20 provides for circumstances under Court wouid be justified in declining to grant the Viiimfs-pecific performance and a careful perusal of the aforesaid k/at if"--.xtlie"rnat,te'f and was preventing the defendant from enjoying the L/, iJroD,eir5tv-
44 after obtaining the requisite permission, for three years the plaintiff has slept over the matter and the permission_.._i_5 not obtained. Plaintiff is an Architect by profession. Thej'priog:pe'rty which is sought to be purchased is a house property':situaVted'liri_""a prirrie iocality in a city like Bangalore-Iwh-ere o.f;the 2 property increases considerably overzfia repudiation of the contract by the 3.vir:":"'~resDo'riden.t,: 'f_or"~-nea'r:y one"
year the plaintiff did not mi-dye his-"'iit.tle l'i-nger in"enforcing the contract. Absolutely no efforts' arei*v'*oLn'-.the part of the plaintiff who is anJedigucateijiwiiman, gim:A.rchit'iec't in assisting the defendant permission as admittedly defendants residents of Australia, 3*"
defendant_,. the d"ar1.§htéi:~ ifs'-afyxoung lady who lacks experience. vt"h:esd~.,i:cir'cu'mstan'cés, we are satisfied that the plaintiff after agreement, as he did not possess the '*'r«equisite.__Vbai_ance'..--consideration to pay the money and was not ..ff;w~i_!__ii'ifig to p'evrform his part of the contract, kept quite, slept over $5
32. It is also contended that the Court should take note of the conduct of the defendants also in weighing the egu'iht'i'e,s in this case and that during the one year period, it u that the plaintiff was persuading the 3" defendantif.to:'A--.pe.rfolrn'a~...94° her part of the contract and there waszlno the 3" defendant and therefore, -it caVn.n_'o't plaintiff was sleeping over the It isltrueigtheflcionduct of everyone before the Court consideration for weighing the equities, But,..in,:"_a., performance, when statutorily'Vt.he«:;1ipliaintiff ii,s""re:_o5u_ired"*to satisfy the Court about his perform his part of the contract, inu"decidir:g_"'.'tAh'e»l'sVa_i'd«:'i~mandatory requirement, it is unnecessary ,toloo_l{ into lt'hei"'conduct of the respondents. The "S.t.,a"CV"'b€5fi""'his own legs. If, he is not able to corhply,_iwith::"t.helrn_a_:.:datory requirements, merely because the "l"~"'condu<:t»._o__Vf th.e.de'feVndant is not fair, he is not entitled to a decree *ffjvforls.pecific"performance. In order to substantiate the contention 1"'wV'tl'*l€,:l.'t'VV.tl'i€_iiialfltlff was not sleeping over the matter for one year, n-oiyavcrieptable evidence is placed on record by the plaintiff. In the agreement is dated 1.10.1981, the suit is filed on i/