Sunday, 21 February 2021

Whether subsequent Purchaser Can Challenge Readiness & Willingness Of Plaintiff In A Specific Performance Suit?

 It must be stated here that the principles laid down in

Jugraj Singh and Another (supra) were not accepted by a larger

Bench of this Court. The relevant discussion in paragraph 6 in the

case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and

Another [(2000) 2 SCC428] was as under:

“6. The obligation imposed by Section 16 is upon the

court not to grant specific performance to a plaintiff

who has not met the requirements of clauses (a), (b)

and (c) thereof. A court may not, therefore, grant to a

plaintiff who has failed to aver and to prove that he

has performed or has always been ready and willing to

perform his part of the agreement the specific

performance whereof he seeks. There is, therefore, no

question of the plea being available to one defendant

and not to another. It is open to any defendant to

contend and establish that he mandatory requirement of

Section 16(c) has not been complied with and it is for

the court to determine whether it has or has not been

complied with and, depending upon its conclusion,

decree or decline to decree the suit. We are of the

view that the decision in Jugraj Singh case [(1995) 2

SCC 31] is erroneous.”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.543 OF 2021


KADUPUGOTLA VARALAKSHMI  Vs VUDAGIRI VENKATA RAO 

Dated: February 16, 2021.


Application for substitution is allowed.

Leave granted.

These appeals arise out of the judgment and order dated

20-04-2020 passed by the High Court of Andhra Pradesh at

Amravati in A.S. No. 531/2008.

Civil suit1 seeking specific performance of agreement

dated 09.10.2004 was dismissed by the Trial Court holding

inter alia that the plaintiff had failed to prove the

genuineness of the agreement dated 09.10.2004 and that the

appellant herein was a bonafide purchaser for consideration

without notice of said agreement dated 09.10.2004.

In paragraph 15 onwards of its judgment, the Trial

Court also noted certain facts touching upon the question of

1 O.S. No.209 of 2006 in the Court of Senior Civil Judge, Vizianagaram filed by

respondent no.1 in both appeals – Vudagiri Venkata Rao.


readiness and willingness on part of the plaintiff.

In the first appeal arising therefrom, the matter was

considered by the High Court under Point No.2, in paragraphs

70 to 76 of its judgment as under:

“POINT No.2:-

70. The evidence of the appellant as P.W.1 is that

he was ready and willing to perform his part of the

contract in terms of Ex.A1. Reasons are assigned

while discussing point No.1 that the appellant had

established that he was in a position to raise

necessary funds to perform his part of the contract

under Ex.A1. In Ex.A2 notice, he clearly stated that

he was ready and willing to perform his part of the

contract thereunder and called upon the 1st

respondent to perform his part of the contract upon

receiving balance sale consideration and to execute

a regular sale deed as well as to get it registered.

References to these circumstances are also made in

the plaint, though specific averments to the effect

that the appellant was always ready and willing to

perform his part of the contract are not brought out

in the plaint. Nonetheless the manner in which the

appellant expressed his readiness and willingness in

so many words in the plaint as well as in Ex.A2

notice clarify the situation and making out this

omission insignificant.

71.The nature of defence of denial of execution of

Ex.A1 set up by the 1st respondent, without referring

or denying that the appellant was always ready and

willing to perform his part of the contract is a

factor to be considered in this respect.

72. The learned counsel for the appellant placed

reliance in Narinderjit Singh vs. North Star Estate

Promoters Limited [(2012) 5 SCC 712 26] in this

respect. In given facts and circumstances, referring

to denial of agreement of sale set up as defence in

a suit for specific performance, it is observed in

this ruling that objection that the plaintiff is not

ready and willing to perform his part of the

contract under agreement for sale, cannot stand. It

was thus observed that the defendant could not have

raised a plea relating to want of readiness and

willingness on the part of the plaintiff to perform

his part of the contract.

73. Further reliance is placed by the learned


counsel for the appellant in this context in Silvey

and others vs. Arun Varghese and another[(2008) 11

SCC 45], apart from a judgment of Punjab & Haryana

High Court in Santa Singh v. Binder Singh and others

[2006 SCC OnLine P&H 442].

74. Contentions are also advanced on behalf of the

appellant, referring to the defence of 3rd

respondent, who is subsequent purchaser of the suit

property under Ex.B4 that she cannot raise such

objection. Reliance is placed in this context in M.

M.S.Investments, Madurai and others vs. V. Veerappan

and others [(2007) 9 SCC 660] . In para-6 of this

ruling, it is observed as under:

“6. Questioning the plea of readiness and

willingness is a concept relatable to an

agreement. After conveyance the question of

readiness and willingness is really not relevant.

Therefore, the provision of the specific Relief

Act, 1963 (in short “the Act”) is not

applicable.”

75. In Jugraj Singh and another vs. Labh Singh and

others[(1995) 2 SCC 31] in this respect it is observed

in para 5 referring to the celebrated judgment in

Gomathinayagam Pillai v. Palaniswami Nadar{AIR 1967 SC

868 ] as under:

“5. This Court in Gomathinayagam Pillai v.

Palaniswami Nadar quoting with approval Ardeshir

case (AIR 1928 PC 208) had held as follows:

“But the respondent has claimed a decree for

specific performance and it is for him to

establish that he was , since the date of the

contract, continuously ready and willing to

perform his part of the contract. If he failed to

do so, his claim for specific performance must

fail.”

That plea is specifically available to the vendor/

defendant. It is personal to him. The subsequent

purchasers have got only the right to defend their

purchase on the premise that they have no prior

knowledge of the agreement of sale with the

plaintiff. They are bona fide purchasers for

valuable consideration. Though they are necessary

parties to the suit, since any decree obtained by

the plaintiff would be binding on the subsequent

purchasers, the plea that the plaintiff must

always be ready and willing to perform his part of

the contract must be available only to the vendor

or his legal representatives, but not to the

subsequent purchasers....”

76. Therefore, in the light of the above legal position,

it is not open for the 3rd respondent to raise this plea.

Thus, on the material it has to be held that the appellant

did succeed in making out that he was ready and willing to

perform his part of the contract under Ex.A1 at all

material times against the 1st respondent. Thus, this point

is answered.”

Thus, the submissions advanced on behalf of the appellant i.e.

subsequent purchaser were not taken into account on the premise

that it would not be open to a subsequent purchaser to challenge

the readiness and willingness on part of the plaintiff. The High

Court had relied upon the decision of this Court rendered in

Jugraj Singh and Another vs. Labh Singh and Others [(1995) 2 SCC

31] to come to such conclusion.

It must be stated here that the principles laid down in

Jugraj Singh and Another (supra) were not accepted by a larger

Bench of this Court. The relevant discussion in paragraph 6 in the

case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and

Another [(2000) 2 SCC428] was as under:

“6. The obligation imposed by Section 16 is upon the

court not to grant specific performance to a plaintiff

who has not met the requirements of clauses (a), (b)

and (c) thereof. A court may not, therefore, grant to a

plaintiff who has failed to aver and to prove that he

has performed or has always been ready and willing to

perform his part of the agreement the specific

performance whereof he seeks. There is, therefore, no

question of the plea being available to one defendant

and not to another. It is open to any defendant to

contend and establish that he mandatory requirement of

Section 16(c) has not been complied with and it is for

the court to determine whether it has or has not been

complied with and, depending upon its conclusion,

decree or decline to decree the suit. We are of the

view that the decision in Jugraj Singh case [(1995) 2

SCC 31] is erroneous.”


Learned counsel appearing for the plaintiff - respondent

no.1 sought to support on facts the conclusion arrived by the

High Court on the issue of readiness and willingness.

However, the fact remains that the entire perspective with

which the matter was considered by the High Court was clearly

erroneous and as the observations made by the High Court in

paragraph 76 disclose, the High Court went on the footing that it

was not open to the appellant i.e. subsequent purchaser to raise

any submissions on the issue of readiness and willingness. Thus,

the judgment under challenge clearly fell in serious error.

We, therefore, deem it appropriate to set aside the

decision of the High Court and remit the matter for fresh

consideration on merits.

These appeals are, therefore, allowed, the judgment under

challenge is set aside and First Appeal being A.S. No.531 of 2008

is restored to the file of the High Court to be decided afresh on

merits.

No order as to costs.

……………………………J.

[UDAY UMESH LALIT]

……………………………J.

[INDIRA BANERJEE]

……………………………J.

[K.M. JOSEPH]

New Delhi;

February 16, 2021.


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