It is also significant to notice that despite introducing
condition, which was not agreed between the parties on
16.08.1980 neither the plaintiff himself was present nor PW-4
Keval Chand had even instructed his Advocate Jugraj Jain to
purchase the stamps for execution of sale deed, which two
aspects are necessary ingredients for the purpose of execution of
sale deed.
The fact that plaintiff got issued notice on
20.08.1980, which was immediately replied by the defendant on
25.08.1980 (Exhibit-4) specifically denying the contents of the
notice cannot be taken as a singular fact to show his readiness
and willingness in view of statement of Keval Chand insisting for
documents, which were not in power and possession of the
defendant and, regarding which, there was no agreement as PW-
5 Jugraj Jain has specifically admitted in the cross-examination
that the sale deed was to be executed based on the settlement
Parcha, which was available on 16.08.1980.
In view of the above, it cannot be said that the plaintiff
was ready and willing to perform his part of the contract. The
finding of the trial court that it was agreed between the parties
on 16.08.1980 that the documents would be produced within 2-3
days and on the said date the sale deed would be executed and
as it cannot be said that Keval Chand was not ready with the
money, he was not ready and willing to perform his part of the
contract. The said finding recorded by the trial court is wholly in
ignorance of the categorical statement in cross-examination by
PW-5, who of all the witnesses is the most independent witness
being an Advocate, produced by the plaintiff and being a privy to
the terms of agreement, having himself got the document
16
(Exhibit-1) drafted.
The further basis of the trial court on
account of so called availability of balance consideration with
Keval Chand is not sufficient for coming to the conclusion that he
was ready and willing to perform his part of the contract as it
has been found that the demand of 'other documents' was
introduction of a term, which was not agreed between the
parties and was clear reflection of fact that the plaintiff/Keval
Chand was not ready to complete the transaction in true spirit of
the terms agreed between the parties and, therefore, the finding
recorded by the trial court on issue No.1 being perverse is set
aside.
So far as the fact as to whether the time was essence of
the contract or not, the Constitution Bench of Hon'ble Supreme
Court in Smt. Chand Rani v. Smt. Kamal Rani : AIR 1993 SC
1742 laid down as under:-
“24. 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.”
However, in the facts of the case, the Hon'ble Supreme
Court came to the conclusion that if the purchaser was not
willing to make payment of amount within specified time without
fulfillment of some conditions, which was contrary to agreement,
the purchaser was not entitled to specific performance of
contract.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL FIRST APPEAL NO.42/1986
Mangal Singh
Vs.
Champa Lal
Date of Judgment
03rd February, 2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
This appeal is directed against judgment and decree dated
17.03.1986 passed by Additional District Judge, Bali, whereby,
the suit for specific performance filed by the respondent-plaintiff
has been decreed and it has been directed that plaintiff would
pay or deposit the balance consideration of Rs.26,000/- within a
period of two months, where after, the defendant would execute
the sale deed in favour of the plaintiff and hand over the
possession of the land.
When this appeal came up for admission, the same was
admitted on 12.05.1986 and it was ordered that the execution of
decree shall remain stayed. The interim order was confirmed on
25.08.1987 directing as under:-
“Heard on the stay application.
It is ordered that the amount of Rs.26,000/- which
had been deposited by the plaintiff-respondent in the
Court of Additional District Judge, Bali shall be deposited
by that Court in fixed deposit for a term of three years.
The operation of the decree of the trial court is
stayed till the decision of Civil First Appeal No.42 of
1986.”
2
The facts in brief may be noticed thus: the plaintiff
Champa Lal filed a suit for specific performance on 17.09.1980
with the averments that the defendant Mangal Singh agreed to
sale his land situated in village Jadri, Tehsil Bali to him and
execute an agreement dated 03.07.1980 in his favour; his
brother and agent had entered into negotiations with the
defendant, which culminated into suit agreement and Rs.1,000/-
were paid to defendant and it was agreed to pay the balance
consideration of Rs.26,000/- on 15.08.1980 at the time of
registration; in case the plaintiff failed to pay the balance
amount by 15.08.1980, the advance payment of Rs.1,000/-
would stand forfeited and the defendant would not be bound by
the agreement; the plaintiff went to the house of the defendant
and to his shop on 14.08.1980 with the requisite amount, but
the son of the defendant informed that the defendant had gone
to Pali; the defendant met one Keval Chand at Falna on
16.08.1980 and they came to Bali and their Advocate Shri Jagraj
Jain demanded the passbook and previous sale deed, but the
defendant told that he would bring the document in a day or
two; as the defendant did not turn up for two days, Keval Chand,
one Hasti Mal and Manohar Singh, Advocate went to the house of
defendant with the balance consideration, who was not found
and, therefore, they went to Bali where the defendant met them;
the defendant refused to get the deed registered and, therefore,
a notice dated 20.08.1980 was sent to the defendant, to which,
a false reply was given and, therefore, the suit was being filed
seeking specific performance and it was prayed that decree for
specific performance be passed directing the defendant to
3
execute the sale deed and get it registered in plaintiff's favour; it
was claimed that plaintiff was ready and willing to perform his
part of the contract.
The
defendant
contested
the
suit
by
filing
written
statement; it was, inter alia, submitted that plaintiff failed to
perform contract at the stipulated time i.e. by 15.08.1980; it
was denied that plaintniff's brother Keval Chand and Hasti Mal
came to his house on 14.08.1980 with balance consideration of
Rs.26,000/-; he was ready and willing to execute the deed and
get it registered as per the agreement on 15.08.1980; as on
15.08.1980 there was a public holiday, he came to Bali on
16.08.1980 and plaintiff's brother Keval Chand also came there;
when he demanded Rs.26,000/- as per the agreement, the
plaintiff
tried
to
avoid
the
contract
and,
therefore,
the
registration of the deed could not take place though he was
present in the Court till 05:00 PM; the averments relating to
production of passbook and previous sale deed within a day or
two were denied; on the other hand, it was claimed that it was
made clear to the plaintiff's brother Keval Chand at the time of
agreement that the previous sale deed had been lost and the
plaintiff's brother and his advocate had already seen the Khatoni
and settlement Parcha, the fact about carrying the balance
consideration of Rs.26,000/- was denied; it was claimed that as
the time stipulated in the agreement had expired, he was no
longer bound by the contract and was prepared to return the
amount of Rs.1,000/-. Ultimately, it was prayed that the suit be
dismissed.
4
The trial court framed four issues:
(i)
Whether the plaintiff has been ready and
willing to purchase the suit land as per the
conditions of agreement dated 03.07.1980 and
he has not violated the agreement?
(ii)
Whether after 16.08.1980 the defendant
was not bound to execute the sale deed and
deliver possession in terms of the agreement?
(iii)
Whether
defendant
was
entitled
to
special cost of Rs.3,000/-?
(iv)
Relief.
The plaintiff produced five witnesses including himself and
defendant got examined in all two witnesses including himself
and certain documents were also produced.
After recording the evidence of the parties and hearing
arguments, the Additional District Judge, Bali came to the
conclusion that it was proved that the plaintiff was always ready
and willing to purchase the suit land in terms of the agreement
and he has not violated the agreement; the defendant has failed
to prove that after 16.08.1980 he was not bound to execute the
sale deed; the defendant was not entitled to special costs and
the suit was liable to be decreed and passed the directions as
noted hereinbefore.
It was submitted by learned counsel for the appellant that
the trial court fell in error in decreeing the suit filed by the
plaintiff as it is apparent from record that the plaintiff was not
ready and willing to perform his part of the contract; from the
statement of witnesses, more particularly, that of PW-5 Jugraj
Jain, Advocate it is apparent that the plaintiff tried to introduce
certain terms, which were not agreed between the parties, which
5
clearly shows that the plaintiff was not ready and willing to
perform his part of the contract.
It was emphasized that
nowhere in the agreement it was stipulated that the defendant
would produce the passbook and the previous sale deed and the
insistence on behalf of the plaintiff for the said documents and
his admitted absence on 16.08.1980 is a clear indication of
absence of readiness and willingness to perform his part of the
contract.
It was further submitted that a bare look at the
agreement would reveal that the plaintiff was required to make
payment of the balance consideration by 15.08.1980 and the
conduct of the plaintiff clearly shows that no efforts were made
to do the same and, therefore, the terms of the agreement were
violated by the plaintiff and, consequently, he was not entitled to
grant of decree for specific performance, which is essentially a
relief in equity.
Per contra, learned counsel for the respondent submitted
that the judgment passed by the trial court does not call for any
interference; it is apparent from the evidence led by the parties
that the plaintiff was always ready and willing to perform his part
of the contract and the very fact that notice Exhibit-2 was given
on 20.08.1980 itself clearly indicates he was ready and willing to
perform his part of the contract; it is proved on record that
plaintiff had approached the defendant on 16.08.1980 and
thereafter, however the sale deed was not executed; from the
tenor and conduct of the parties, it cannot be said that time was
essence of the contract.
Reliance was placed on judgments in Balasaheb Dayandeo
Naik v. Appasaheb Dattatraya Pawar : AIR 2008 SC 1205 and
6
Smt. Swarnam Ramachandra v. Aravacode Chakungal Jayapalan
: AIR 2000 Bombay 410 in support of the contentions.
I have considered the rival submissions.
The issues which arise for determination in this appeal is
whether the plaintiff can be said to be ready and willing to
perform his part of the contract and whether the time was
essence of the contract.
It would be appropriate to notice the relevant part of the
agreement dated 03.08.1980, which reads thus:-
“ज क आर ज मर ख तद र ह
शत शद
व खर द शद ह वह आर ज म आज आप
रपय
27,000) अखकर रपय सत ईस हज र म बच न रन
इ र र रत ह$% इस इ र र पठ मन आपस रपय 1000)
00 अखकर ए हज र आज र ड प प र ल,य ह व शष
र म रपय 26,000) अखकर छब स हज र रह ह स यह
र म आप मझ 15-8-80 त पद न र दग व म इस
जम न
बच न रजजस3 आप पक म सब रजजस3 र
ब,
य 4,य म रव द% ग व उस समय इस आर ज
बज सपद
र द% ग व अगर आप यह आर ज
शष र म त र ख 15-8-80 त अद नह % रग त म
यह आर ज आप
बच न रन
ल,य प बनद नह % ह$%
व पशग र म जबत समझ ज यग
रजजस3र
खच
स8 मप खच 4 व व , महनत न आप
तम म रहग । यह
आर ज पह, अनय क स
बच न, बखश श भ ग, व
रहन रख नह % ह। व इस प र स यह आर ज सब प र
भ र स मक ह। अगर इस आर ज पर क स प र
भ र ह ग त उस
तम म जजममव र मर रहग ।"
From the above it is apparent that the defendant had
claimed that he was tenant of the land and the same had been
purchased by him; the total consideration was Rs.27,000/-;
Rs.1,000/- was received as advance; the balance consideration
of Rs.26,000/- would be paid by 15.08.1980 and the defendant
would
execute
sale
deed
in his favour
in the office
of
Sub-Registrar, Bali and he would hand over the possession at
that time; if the balance of consideration was not paid by
15.08.1980, defendant would not be bound to sell the land to
7
the plaintiff and the advance amount shall be forfeited.
As noticed hereinbefore the plaintiff had claimed in the
plaint that the plaintiff's brother had approached the defendant
on 14.08.1980 but he was not available at his residence;
15.08.1980 was a public holiday; on 16.08.1980 plaintiff's
brother met defendant at Falna, when both of them went to the
counsel Jugraj Ji at Pali; the counsel demanded original passbook
and the previous sale deed, when defendant assured to bring it
within a day or two; after two days when the plaintiff met the
defendant, he refused to execute the sale deed; on 20.08.1980
notice was got issued to the plaintiff, to which, a reply dated
25.08.1980 was received and the suit was filed on 17.09.1980.
The real bone of contention between the parties is that
when on 16.08.1980 the plaintiff's brother and defendant met at
Advocate Jugraj Jain's place/office for the purpose of execution
of sale deed, the plaintiff's brother demanded original passbook
and the previous sale deed, while the version of the plaintiff is
that the defendant stated that he would produce the same within
two days, the defendant stated that the agreement did not
envisage production of the said documents and the said
documents were demanded only with a view to violate the terms
of the agreement, wherein, the plaintiff was required to pay the
balance consideration of Rs.26,000/- by 15.08.1980.
A scanning of the evidence led by the parties reveals that
PW-1 Champa Lal plaintiff stated that he was not present when
the agreement was entered into and as to the terms he had no
personal knowledge.
The notice dated 20.08.1980 from the
Advocate was got issued by his brother and that he did not know
8
Mangal Singh.
PW-2 Hasti Mal stated that the agreement was executed in
his presence and he was one of the witness to the said
agreement. On 14.08.1980 he alongwith plaintiff's brother Keval
Chand went to defendant's village where he was not present. In
cross-examination, the said witness admitted that it was agreed
between
the
consideration
parties
was
that
not
if
paid,
by
15.08.1980,
then
agreement
the
shall
balance
stand
cancelled; on 16.08.1980 the sale deed could not be registered
because the defendant had not brought complete papers and,
thereafter the defendant refused to execute the sale deed.
However, on further cross-examination, he stated that he had
not visited Bali on 16.08.1980, which fact clearly indicates that
his statement about as to what transpired on 16.08.1980 is not
based on his personal knowledge.
PW-3 Manohar Singh, inter alia, stated that he was not
present when the agreement was executed.
The plaintiff had
demanded original documents on 16.08.1980 when defendant
stated that he has Parcha only and does not have other
documents, while other documents were required and the
defendant stated that he will bring the other documents.
Stamps were not purchased for execution of sale deed.
PW-4 Keval Chand is the person, who had in fact
negotiated the agreement on behalf of his brother – plaintiff and
was involved in the so called attempts to get the sale deed
executed.
The said witness stated that on 16.08.1980 Mangal
Singh defendant had brought one Parcha only and he (PW-4)
stated that the previous sale deed and other documents were
9
necessary otherwise sale deed cannot be executed. When
Mangal Singh stated that he does not have the documents and
he would bring the same after two days and get it registered;
Jugraj Jain, Advocate said that bring the documents. On
18.08.1980 Mangal Singh refused to execute the sale deed. In
cross-examination the said witness stated that at the time of
execution of agreement, he was not fully satisfied about the land
as even at that time there was only a settlement Parcha
and
Mangal Singh had said that he would bring the papers after
registration. He further stated that on 16.08.1980 Mangal Singh
was going to Bali for registration purpose and was ready to
register the document. The documents were not complete and
Mangal Singh refused to execute the sale deed on 18.08.1980
stating that he does not want to sell the land.
The significant
part of the cross-examination, which has implication reads thus:-
“....बबन
गज त
म जम न खर दन
म%ग,लस%ह
पस
जम न खर दन
तय र ह$% मगर
गज त ह न पर । पशन:-
ई नह % ह क@र भ आप जम न खर दन
तय र ह य नह ? उतर:- बबन स%त ष
स%तष
तय र ह य नह ? उतर
म व मर व
,
र व।...."
The most significant witness is PW-5 Jugraj Jain, Advocate,
who prepared the agreement (Exhibit-1) and before whom the
entire episode of 16.08.1980 is said to have happened. The said
witness stated that Exhibit-1 agreement was drafted by him;
when the document was executed the defendant had brought
settlement Parcha; he had not brought Jamabandi and passbook;
there was no previous sale deed. When they came for getting
the document registered, again settlement Parcha was brought
and the previous sale deed, passbook and Jamabandi were not
10
brought. In cross-examination, he admitted that it was agreed
that sale deed would be executed based on the documents
brought by him. On 16.08.1980 the defendant had gone to him
and stated that he was ready to get the sale deed registered and
was sitting in the Court till 05:00 PM; on the said date Keval
Chand had also come. The expenses of registration and stamps
were to be borne by Champa Lal; Keval Chand did not tell him to
purchase stamps; Mangal Singh never refused to execute the
sale deed. It is indicated in the agreement
that if the
consideration is not paid by 15.08.1980 the seller would not be
bound to sell the land. Keval Chand never told him that he was
ready to execute the sale deed. Champa Lal plaintiff never met
him.
DW-1 defendant Mangal Singh stated that till 15.08.1980
Champa Lal never visited him, on 14.08.1980 also Keval Chand
did not meet him; on 16.08.1980 he had reached Bali to meet
Advocate Jugraj Jain at 10:00 AM. Keval Chand was not ready
for execution of sale deed and insisted on production of the
previous sale deed; on 03.07.1980 he had specifically told Keval
Chand that the old sale deed has been lost and it was agreed to
register the document based on settlement Parcha.
In cross-
examination he stated that the previous sale deed was already
lost when the agreement was executed. He denied that he had
told Keval Chand that as he has not brought the papers, he will
bring the papers and get the sale deed executed.
He also
indicated in the cross-examination that as he required money he
has sold the land to other person and, therefore, there was no
question of selling the same to Keval Chand.
11
DW-2 Javer Chand, who is clerk of the Advocate Jugraj
Jain and one of the witnesses to the agreement stated that
Mangal Singh had brought settlement Parcha and the agreement
was executed based on the said document; on 16.08.1980
Mangal Singh had come and he was prepared to get the
document registered and stated that payment be made to him;
he was prepared to execute the sale deed, however, Keval
Chand was dragging his feet, he did not see any money with
Keval Chand.
From the above statements it is apparent that the
agreement to sale was executed based on the settlement Parcha
and on 16.08.1980 when the defendant and plaintiff's brother
met in the presence of Advocate Jugraj Jain, Keval Chand
insisted for other documents, which documents apparently were
not available with Mangal Singh. However, the Advocate PW-5
Jugraj Jain, who is plaintiff's witness clearly admitted that the
sale deed was to be executed based on the documents brought
by the defendant i.e. the settlement Parcha and defendant
Mangal Singh was available in Court till 05:00 PM and Keval
Chand did not tell the Advocate to purchase stamps for
execution of sale deed. Mangal Singh never refused to execute
the sale deed. The insistence of the plaintiff regarding the 'other
documents' is also apparent from the averments in the plaint
and statement of Keval Chand, a portion whereof has been
quoted hereinbefore, wherein, he has specifically stated that
even on the date of his statement he was not prepared to
purchase the land without the documents sought by him.
The
demand of the documents is also fortified from the notice dated
12
20.08.1980 (Exhibit-2), wherein, it was indicated that the
Advocate Jugraj Jain demanded the documents, which were not
produced by the defendant.
From the statement of the parties, it is quite significant
that the agreement was executed based on the settlement
Parcha and there is no mention of production of documents at
the time of registration of sale deed in the agreement (Exhibit-
1).
The readiness and willingness of parties has to be judged
based on the terms of the agreement and not as to what
necessarily follows in practise.
The
statements
of
the
parties
and
the
facts
and
circumstances discussed above clearly indicate that the plaintiff
and/or his brother Keval Chand (PW-4) wanted to introduce
certain terms, which were not agreed between the parties and
was/were not ready to complete the transaction in true spirit of
the terms agreed between the parties.
The requirement of readiness and willingness has been
dealt with by Hon'ble Supreme Court in M/s J.P. Builders & Anr.
v. A. Ramadas Rao & Anr. : JT 2010 (12) SC 588, wherein, it
was observed and held as under:-
“Readiness and Willingness
8. Section 16(c) of the Specific Relief Act, 1963 provides
for personal bars to relief. This provision states that
specific performance of a contract cannot be enforced in
favour of a person,
a) who would not be entitled
compensation for its breach; or
to
recover
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
13
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.
8.1 Among the three sub-sections, we are more
concerned about sub-section (c). “Readiness and
willingness” is enshrined in clause (c) which was not
present in the old Act of 1877. However, it was later
inserted with the recommendations of the 9th Law
Commission's report. This clause provides that the
person seeking specific performance must prove that he
has performed or has been ready and willing to perform
the essential terms of the contract which are to be
performed by him.
9.
The words “ready” and “willing” imply that the
person was prepared to carry out the terms of the
contact. The distinction between “readiness” and
“willingness” is that the former refers to financial capacity
and the latter to the conduct of the plaintiff wanting
performance. Generally, readiness is backed by
willingness.
10. In N.P. Thirugnanam v. Dr. R. Jagan Mohan
Rao & Ors. [JT 1995 (5) SC 553 : 1995 (5) SCC 115] at
para 5, this Court held:
“.....Section 16(c) of the Act envisages that
plaintiff must plead and prove that he had
performed or has always been ready and willing
to perform the essential terms of the contract
which are to be performed by him, other than
those terms the performance of which has been
prevented or waived by the defendant. The
continuous readiness and willingness on the part
of the plaintiff is a condition precedent to grant
the
relief
of
specific
performance.
This
circumstance is material and relevant and is
required to be considered by the court while
granting or refusing to grant the relief. If the
plaintiff fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff is
ready and willing to perform his part of the
contract, the court must take into consideration
the conduct of the plaintiff prior and subsequent
to the filing of the suit alongwith other attending
circumstances. The amount of consideration
14
which he has to pay to the defendant must of
necessity be proved to be available. Right from
the date of the execution till date of the decree
he must prove that he is ready and has always
been willing to perform his part of the contract.
As stated, the factum of his readiness and
willingness to perform his part of the contract is
to be adjudged with reference to the conduct of
the party and the attending circumstances. The
court may infer from the facts and circumstances
whether the plaintiff was always ready and willing
to perform his part of the contract.”
11. In P.D'Souza v. Shondrilo Naidu [JT 2004 (6)
SC 126 : 2004 (6) SCC 649] paras 19 and 21, this Court
observed:
“It is indisputable that in a suit for specific
performance of contract the plaintiff must
establish his readiness and willingness to
perform his part of contract. The question as to
whether the onus was discharged by the plaintiff
or not will depend upon the facts and
circumstance of each case. No strait-jacket
formula can be laid down in this behalf.... The
readiness and willingness on the part of the
plaintiff to perform his part of contract would
also depend upon the question as to whether the
defendant did everything which was required of
him to be done in terms of the agreement for
sale.”
12. Section 16(c) of the Specific Relief Act, 1963
mandates “readiness and willingness” on the part of the
plaintiff and it is a condition precedent for obtaining relief
of grant of specific performance. It is also clear that in a
suit for specific performance, the plaintiff must allege and
prove a continuous “readiness and willingness” to
perform the contract on his part from the date of the
contract. The onus is on the plaintiff. It has been rightly
considered by this Court in R.C. Chandiok & Anr. v. Chuni
Lal Sabharwal & Ors [1970 (3) SCC 140] that “readiness
and willingness” cannot be treated as a straight jacket
formula. This has to be determined from the entirety of
the facts and circumstances relevant to the intention and
conduct of the party concerned. It is settled law that
even in the absence of specific plea by the opposite
party, it is the mandate of the statute that plaintiff has to
comply with Section 16(c) of the Specific Relief Act and
when there is non-compliance with this statutory
mandate, the Court is not bound to grant specific
performance and is left with no other alternative but to
dismiss the suit. It is also clear that readiness to perform
must be established throughout the relevant points of
time. “Readiness and willingness” to perform the part of
the contract has to be determined ascertained from the
conduct of the parties.”
15
It is also significant to notice that despite introducing
condition, which was not agreed between the parties on
16.08.1980 neither the plaintiff himself was present nor PW-4
Keval Chand had even instructed his Advocate Jugraj Jain to
purchase the stamps for execution of sale deed, which two
aspects are necessary ingredients for the purpose of execution of
sale deed.
The fact that plaintiff got issued notice on
20.08.1980, which was immediately replied by the defendant on
25.08.1980 (Exhibit-4) specifically denying the contents of the
notice cannot be taken as a singular fact to show his readiness
and willingness in view of statement of Keval Chand insisting for
documents, which were not in power and possession of the
defendant and, regarding which, there was no agreement as PW-
5 Jugraj Jain has specifically admitted in the cross-examination
that the sale deed was to be executed based on the settlement
Parcha, which was available on 16.08.1980.
In view of the above, it cannot be said that the plaintiff
was ready and willing to perform his part of the contract. The
finding of the trial court that it was agreed between the parties
on 16.08.1980 that the documents would be produced within 2-3
days and on the said date the sale deed would be executed and
as it cannot be said that Keval Chand was not ready with the
money, he was not ready and willing to perform his part of the
contract. The said finding recorded by the trial court is wholly in
ignorance of the categorical statement in cross-examination by
PW-5, who of all the witnesses is the most independent witness
being an Advocate, produced by the plaintiff and being a privy to
the terms of agreement, having himself got the document
16
(Exhibit-1) drafted.
The further basis of the trial court on
account of so called availability of balance consideration with
Keval Chand is not sufficient for coming to the conclusion that he
was ready and willing to perform his part of the contract as it
has been found that the demand of 'other documents' was
introduction of a term, which was not agreed between the
parties and was clear reflection of fact that the plaintiff/Keval
Chand was not ready to complete the transaction in true spirit of
the terms agreed between the parties and, therefore, the finding
recorded by the trial court on issue No.1 being perverse is set
aside.
So far as the fact as to whether the time was essence of
the contract or not, the Constitution Bench of Hon'ble Supreme
Court in Smt. Chand Rani v. Smt. Kamal Rani : AIR 1993 SC
1742 laid down as under:-
“24. 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.”
However, in the facts of the case, the Hon'ble Supreme
Court came to the conclusion that if the purchaser was not
willing to make payment of amount within specified time without
fulfillment of some conditions, which was contrary to agreement,
the purchaser was not entitled to specific performance of
contract.
Balasaheb
The said judgment has been followed in the case of
Dayandeo
Naik
(supra)
and
Smt.
Swarnam
17
Ramachandra
(supra)
cited
by
learned
counsel
for
the
respondent.
In the present case, though 15.08.1980 was indicated as
the date by which the payment was required to be made by the
plaintiff, the fact that a meeting took place on 16.08.1980 and
the notice was sent on 20.08.1980 by the plaintiff shows that,
even if, the time was essence of the contract, it cannot be said
that in the present case there is any reason to come to a
conclusion that as the consideration was not paid by 15.08.1980
the agreement came to an end, therefore, the finding on issue
No.2
recorded
by
the trial
court does not call
for
any
interference.
In view of the above discussion, the judgment and decree
passed by the trial court cannot be sustained and the same is,
therefore, reversed and set aside. The suit filed by the plaintiff
for specific performance of agreement dated 03.07.1980 is
dismissed. As the plaintiff has not made any prayer for refund of
deposit of Rs.1,000/- in the plaint, in view of the bar created by
Section 22 (2) of the Specific Relief Act, 1963 the said relief
cannot be granted to the plaintiff. The amount, if any, deposited
by the plaintiff as noticed in order dated 25.08.1987 (supra) and
placed in fixed deposit by the trial court shall be refunded back
to the plaintiff alongwith the interest earned on the said fixed
deposit within a period of three weeks.
The appeal is allowed in the above terms. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
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