After the SRA 16(c) Amendment: Why Pleading Readiness Still Matters

 The amendment to Section 16(c) of the Specific Relief Act, 1963, brought significant changes to the language concerning the plaintiff’s obligation to demonstrate readiness and willingness to perform the contract. Previously, the statute was explicit that a plaintiff "who fails to aver and prove" readiness and willingness would be barred from specific performance. However, the amendment omitted the phrase “who fails to aver and prove” and instead simply states “who fails to prove.” This subtle change has raised important legal questions about whether a plaintiff must still both plead (aver) and prove readiness and willingness, or whether proof alone suffices.

The Legal Position Post-Amendment

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Supreme Court: Specific Performance Suit Can't Be Decreed Based On Power Of Attorney Holder's Deposition About Plaintiff's Readiness & Willingness

 Having noticed the three judgments of this Court in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we are of the view that in view of Section 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the Plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the Plaintiff (principal). In other words, if the Power of Attorney Holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined. If a Plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. A Plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. The term 'readiness and willingness' refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness. {Para 12}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7840 of 2023

Decided On: 17.05.2024

Rajesh Kumar Vs. Anand Kumar and Ors.

Hon'ble Judges/Coram:

Pankaj Mithal and Prashant Kumar Mishra, JJ.

Author: Prashant Kumar Mishra, J.

Citation: 2024 INSC 444,MANU/SC/0459/2024.

Read full Judgment here: Click here.

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Whether Appellate court must remand the case if trial court has not framed issue on the point of readiness and willingness in suit for specific performance of contract?

4.1. Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the Plaintiff, the Trial Court has given the findings on the same and has non-suited the Plaintiff by observing that the Plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the Plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the Plaintiff. There must be a specific issue framed on readiness and willingness on the part of the Plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the Plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the Plaintiff to perform his part of the contract, more particularly, whether the Plaintiff was ready and willing to pay the full consideration and whether the Plaintiff was having sufficient funds and/or could have managed the balance sale consideration.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8050-8051 of 2022

Decided On: 09.11.2022

V.S. Ramakrishnan Vs. P.M. Muhammed Ali

Hon'ble Judges/Coram:

M.R. Shah and M.M. Sundresh, JJ.

Author: M.R. Shah, J.

Citation:  2022 INSC 1189, MANU/SC/1465/2022.

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Should the court grant specific performance of the contract to the plaintiff if his conduct is not free from blemish?

  In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum. {Para 41}

 In the Supreme Court of India

(Before D.Y. Chandrachud and A.S. Bopanna, JJ.)

Shenbagam Vs KK Rathinavel 

Civil Appeal No 150 of 2022

Decided on January 20, 2022

Citation: 2022 SCC OnLine SC 71

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Can the court decree suit for specific performance of the contract if the plaintiff shows readiness and willingness by filing an affidavit before the high court?

 It is required to be noted that as per the case of the original

plaintiff, the defendant was required to evict the tenants and hand over the physical and vacant possession at the time of execution of the sale deed on payment of full sale consideration. Even in the suit notice issued by the plaintiff, the plaintiff called upon the defendant to evict the tenants and thereafter execute the sale deed on payment of full consideration from the plaintiff. Even when we consider the pleadings and the averments in the plaint, it appears that the plaintiff was never willing to get the sale deed executed with tenants and/or as it is. It was the insistence on the part of the plaintiff to deliver the vacant possession after evicting the tenants. Therefore, on the basis of the pleadings in the plaint and on appreciation of evidence, the learned Trial Court held the issue of willingness against the plaintiff. However, before the High Court, the plaintiff filed an affidavit stating that he is now ready and willing to get the sale deed executed with respect to the property with tenants and unfortunately, the High Court relying upon the affidavit in the

first appeal considered that as now the plaintiff is ready and willing to purchase the property with tenants and get the sale deed executed with respect to the property in question with tenants, the High Court has allowed the appeal and decreed the suit for specific performance. The aforesaid procedure adopted by the High Court relying upon the affidavit in a First Appeal by which virtually without submitting any application for amendment of the plaint under Order VI Rule 17 CPC, the High Court as a First Appellate Court has taken on record the affidavit and as such relied upon the same. Such a procedure is untenable and unknown to law. First appeals are to be decided after following the procedure to be followed under the CPC. The affidavit, which was filed by the plaintiff and which has been relied upon by the High Court is just contrary to the pleadings in the plaint. As observed hereinabove, there were no pleadings in the plaint that he is ready and willing to purchase the property and get the sale deed executed of the property with tenants and

the specific pleadings were to hand over the peaceful and vacant

possession after getting the tenants evicted and to execute the sale deed. The proper procedure would have been for the plaintiff to move a proper application for amendment of the plaint in exercise of the power under Order VI Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order XLI CPC. However, straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law. Therefore, such a procedure adopted by the High Court is disapproved.{Para 8}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6014-6015 OF 2021

K. Karuppuraj Vs  M. Ganesan 

Author: M.R. SHAH, J.

Dated: OCTOBER 04, 2021

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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.

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How to ascertain that plaintiff is ready and willing to perform his part of the contract in a suit for specific performance of the contract?

The words 'ready and willing' imply that the Plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of performance. 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 contract, the court must take into consideration the conduct of the Plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the Defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready to perform his contract.

30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the Plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required Under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the Plaintiff-Respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records.

20. In the instant case, the Plaintiff has alleged that he was ready to pay Rs. 35,000/- to the Defendants and called upon them to execute the reconveyance deed. However, in para 11 of the plaint it is pleaded that the Plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the Plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the Plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the Plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement.

21. It is relevant to state here that before filing the suit, the Plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the Plaintiff was not to pay the amount as per the reconveyance agreement.

22. The deed of re-conveyance, contains a Clause for payment of interest on the consideration amount of Rs. 35,000/-. However, the Plaintiff has pleaded that there is no agreement to pay the interest. This shows that the Plaintiff was not ready to perform his part of the obligation as per the agreement. Further, the Plaintiff had mortgaged the property with the bank and the bank had obtained an award against the Plaintiff. When the suit property was put up for auction, the Defendants paid the entire amount to the bank which was payable by the Plaintiff under this award. This aspect also indicates the conduct of the Plaintiff.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8425 of 2009

Decided On: 07.02.2020

C.S. Venkatesh  Vs.  A.S.C. Murthy (D) by L.Rs. and Ors.

Hon'ble Judges/Coram:

S. Abdul Nazeer and Deepak Gupta, JJ.

Citation: (2020) 3 SCC 280,MANU/SC/0142/2020

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How to appreciate evidence when the defendant pleads that time was the essence of the contract for the sale of immovable property?

From a perusal of the papers, it is seen that though the defendants had stated that the sale deed had to be executed within a period of three months from the date of the agreement, they have not taken any steps to terminate the agreement on the expiry of the period given under the agreement. The defendant have also accepted the execution of the agreement of sale and their only grievances is that the plaintiff had not come forward to complete the sale within the agreed time. Therefore according to the plaintiff time was never contemplated as essence of the contract, further, it is the admitted fact that the defendants had not obtained the sale deed from the Tamil Nadu Slum Clearance Board on the date of the agreement which once again was a requirement for having the sale deed executed in favour of the plaintiff even if there is no stipulation to this effect. The right to convey the property would accrue to the defendants only upon receiving the sale deed from the Tamil Nadu Slum Clearance Board and therefore it can be safely concluded that time was never contemplated as a stipulation for the contract.

IN THE HIGH COURT OF MADRAS

A.S. No. 915 of 2009 and M.P. No. 1 of 2012

Decided On: 13.03.2019

S. Devi  Vs. V. Anburaj and Ors.

Hon'ble Judges/Coram:

P.T. Asha, J.

Citation: AIR 2020(NOC) 30 Mad

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Whether the plaintiff must plead readiness and willingness to perform contract even after specific relief amendment Act 2018?

 Section 16 of the Specific Relief Act, 1963 as amended with effect from 2018 provides that specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential term of the contract which was to be performed by him. Even though the words "who fails to aver." have been deleted from Section 16 vide the amendment of the year 2018 but I have in judgment dated 20th December, 2019 in CS(COMM.) No. 634/2019 titled Jasbir Singh Vs. Phoenix Arc Pvt. Ltd., held that since evidence can be led only on what is pleaded (as held in Transformative Learning Solutions Pvt. Ltd. Vs. Pawajot Kaur Baweja MANU/DE/2272/2019 and India Yamaha Motor Pvt. ltd. Vs. Seema Bhatia MANU/DE/2625/2019) and cannot be led on what is not pleaded, a plaintiff in a suit for specific performance, must plead facts to show performance by him of his part of the agreement and his readiness and willingness to perform the essential terms of the agreement, even if not expressly so, as was the law prior to the amendment.

IN THE HIGH COURT OF DELHI

CS (OS) 623/2019 and IA No. 16791/2019 (u/O XXXIX R-1&2 CPC)

Decided On: 17.01.2020

 Rajinder Prasad Aggarwal  Vs.  Anil Kumar Narang

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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When should the court not allow amendment of plaint at the appellate stage?

 So far as the proposition for amendment of the plaint is concerned, we are unable to find any illegality on the part of the First Appellate Court and the High Court in rejecting the prayer belatedly made by the Plaintiff. As noticed, the averment and proof on readiness and willingness to perform his part of the contract has been the threshold requirement for a Plaintiff who seeks the relief of specific performance. The principle that the requirement of such averment had not been a matter of form, applied equally to the proposition for amendment at the late stage whereby, the Plaintiff only attempted to somehow improve upon the form of the plaint and insert only the phraseology of his readiness and willingness. In such a suit for specific performance, the Court would be, and had always been, looking at the substance of the matter if the Plaintiff, by his conduct, has established that he is unquestionably standing with the contract and is not wanting in preparedness as also willingness to perform everything required of him before he could be granted a relief whereby, the performance of other part of the contract could be enjoined upon the Defendant. In the present case, the Plaintiff-Appellant had failed to aver and prove his readiness and willingness to perform his part of the contract. The Trial Court made a rather assumptive observation that he had proved such readiness and willingness. Thereafter, the Plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the Defendant. In the facts and circumstances of the present case, in our view, it was too late in the day for the Plaintiff to fill up such a lacuna in his case only at the appellate stage. In other words, the late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility in the present case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8199 of 2009

Decided On: 15.02.2019

 Mehboob-Ur-Rehman  Vs.  Ahsanul Ghani

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: 2020(2) MHLJ 58

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Whether it can be held that plaintiff was ready and willing to perform his part of contract if he fails to get sale deed executed through court?

On a detailed consideration of the evidence on record, the Courts below have come to the conclusion that the clauses in the Agreement have neither been amended nor varied. Merely because the Defendants were pursuing the application filed for permission before the L & DO, it cannot be said that the date fixed for performance of the Agreement stood extended. We agree with the findings of the Courts below that the suit ought to have been filed within three years from 31.03.1975 which was the date that was fixed by the Agreement. The submission made on behalf of the Plaintiffs that part II of Article 54 of the Schedule to the Limitation Act applies to this case and that the suit was filed within limitation as the refusal by the Defendants was only in the year 1987 is not acceptable. Moreover, the Plaintiffs have not performed their part of the Agreement within a reasonable period. As per the Agreement, the Plaintiffs were given the right to get the sale deed executed through the Court in case of failure on the part of the Defendants to execute the sale deed by 31.03.1975. The Plaintiffs filed the suit 12 years after the date fixed for performance. It is relevant to refer to the judgment of this Court in K.S. Vidyanadam v. Vairavan MANU/SC/0404/1997 : (1997) 3 SCC 1 wherein it was held as follows:

Even where time is not of the essence of the contract, the Plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property

12. The silence maintained by the Plaintiffs for about 12 years amounted to abandonment of the Agreement and we approve the finding in this regard made by the Trial Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2525 of 2019 

Decided On: 06.03.2019

 Urvashi Aggarwal Vs.Kushagr Ansal 

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How to appreciate evidence of readiness and willingness of plaintiff in suit for specific performance of contract?

The Trial Court and the First Appellate Court arrived at the finding of readiness and willingness on part of the Plaintiff solely on basis of a certificate produced by them from the Sub-Registrar confirming their presence before him on 30.04.1990 for execution. Apart from the same, no further evidence was led by the Plaintiff to demonstrate readiness and willingness including the continuous capacity for discharge of the balance consideration. The Plaintiff in its application before the Sub-Registrar stated that he had required Defendants 1 and 2 to be present for registration on 25.06.1990. No evidence whatsoever has been led by the Plaintiff in support of the same. We are of the considered opinion that in the circumstances the certificate from the office of the Sub-Registrar cannot be construed as conclusive evidence to non-suit Defendants 1 and 2. The findings to that effect are therefore held to be unsustainable. {Para 5}

8. The Trial Court decreed the suit on 01.06.1994 and granted time to the Plaintiff for deposit of the balance consideration within two months from 01.06.1994, i.e. by 31.07.1994. The Plaintiff offered no explanation whatsoever for the failure to comply the direction. After expiry of the time granted for deposit, on 02.08.1994 the Plaintiff filed an application before the Trial Court that in view of the pendency of the First Appeal preferred by Defendants, the time for deposit may be extended as otherwise the amount would lie in the bank without interest. On 02.08.1994 itself, the time for deposit was extended till disposal of the First Appeal. The Defendants' challenge to the ex-parte order was unsuccessful on technical grounds.

9. There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that in the facts and circumstances of the present case, the failure of the Plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning interest, are all but evidence of incapacity on part of the Plaintiff to perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal.

10. The grant of relief for specific performance Under Section 16(1)(c) of the Act is a discretionary and equitable relief. Under Section 16(1)(c), the Plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the Plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended Under Section 28 of the Act. But the mere extension of time for deposit does not absolve the Plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The Plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the Defendant did not preclude the Plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the Plaintiff. The Plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the Plaintiff in the facts and circumstances was not ready and willing to perform his obligations.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2837 of 2011

Decided On: 04.10.2019

 Ravi Setia  Vs.  Madan Lal 

Hon'ble Judges/Coram:

Navin Sinha and Indira Banerjee, JJ.

Citation: AIR 2019 SC 4791

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Whether readiness and willingness of plaintiff in suit for specific performance of contract can be inferred even if there is delay in filing of suit?

The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the Defendant. The High Court also erred in holding that despite having the necessary funds, the Plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the Plaintiff to state that he was not ready and willing. In India, it is well settled that the Rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the Plaintiff - See Mademsetty Satyanarayana v. G. Yelloji Rao and Ors. MANU/SC/0310/1964 : AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:

(7) Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a Court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay - the time lag depending upon circumstances - may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2420 of 2018

Decided On: 10.07.2019

R. Lakshmikantham Vs.  Devaraji

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Surya Kant, JJ.

Citation:(2019) 8 SCC 62

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Necessary requirement for proving readiness and willingness in suit for specific performance of contract

 Coming to the facts of the present case, the sole document relied upon by the appellant to prove her readiness and willingness is the

approval of loan on July 30, 2004 by the ICICI. Such approval was

subject to two conditions, viz., furnishing of income tax documents

of the appellant and the property documents. M/s. ICICI has sent

an Email on May 12, 2005 to the husband of the appellant

requiring an Agreement to Sell on a stamp paper of Rs.50/- to be

executed between the parties, as per the legal opinion sought from

the empaneled lawyer, without which ICICI will not be able to

disburse the loan. Admittedly, no agreement was executed on

stamp paper, therefore, the appellant could not avail loan of Rs.50

lakhs from ICICI. Independent of such loan, there is mere

statement that appellant and her husband have income of Rs.80

lakhs per annum unsupported by any documentary evidence. Such

statement will be in the nature of ipsi dixit of the appellant and/or

her husband and is without any corroborating evidence. Such selfserving

statements without any proof of financial resources cannot

be relied upon to return a finding that the appellant was ready and

willing to perform her part of the contract. The appellant has not

produced any income tax record or the bank statement in support

of her plea of financial capacity so as to be ready and willing to

perform the contract. Therefore, mere fact that the bank has

assessed the financial capacity of the appellant while granting loan

earlier in respect of another property is not sufficient to discharge

of proof of financial capacity in the facts of the present case to hold

that the appellant was ready and willing to perform her part of the

contract. Such is the finding recorded by both the courts below as

well.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7268-7269 OF 2019

RITU SAXENA Vs  J.S. GROVER 

HEMANT GUPTA, J.

Dated:SEPTEMBER 17, 2019.

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Whether a party is entitled to get specific performance of contract if he fails to perform essential term of contract?

  As far as the present case is concerned, the vendor,
who was a lady received less than 20% of the sale consideration
but handed over the possession to the defendant, probably with
the hope that the dispute would be decided soon, or at least
within a year. Therefore, Clause 3 provided that if the case is
not decided within one year, then the second party shall pay to
the first party the customary rent for the land. It has been
urged by the respondents that the High Court rightly held that
this was not a reciprocal promise and had nothing to do with the
sale of the land. One cannot lose sight of the fact that the land
had been handed over to Bahadur Singh and he had agreed that
he would pay rent at the customary rate. Therefore, the
possession of the land was given to him only on this clearcut

understanding. This was, therefore, a reciprocal promise and
was an essential part of the agreement to sell.
10. Admittedly, Bahadur Singh did not even pay a penny as
rent till the date of filing of the suit. After such objection was
raised in the written statement, in replication filed by him, he
instead of offering to pay the rent, denied his liability to pay the
same. Even if we were to hold that this promise was not a
reciprocal promise, as far as the agreement to sell is concerned,
it would definitely mean that Bahadur Singh had failed to
perform his part of the contract. There can be no manner of
doubt that the payment of rent was an essential term of the
contract. Explanation (ii) to Section 16(c) clearly lays down that
the plaintiff must prove performance or readiness or willingness
to perform the contract according to its true construction. The
only construction which can be given to the contract in hand is
that Bahadur Singh was required to pay customary rent.
11. It has been urged that no date was fixed for payment of
rent. Tenancy can be monthly or yearly. At least after expiry of
one year, Bahadur Singh should have offered to pay the

customary rent to the vendor which could have been monthly or
yearly. But he could definitely not claim that he is not liable to
pay rent for 13 long years.
12. Learned counsel for the respondents urged that in case of
nonpayment
of rent the plaintiff was at liberty to file suit for
recovery of rent. We are not impressed with this argument. A
party cannot claim that though he may not perform his part of
the contract he is entitled to specific performance of the same.
13. Explanation (ii) to Section 16(c) of The Specific Relief Act
lays down that it is incumbent on the party, who wants to
enforce the specific performance of a contract, to aver and prove
that he has performed or has always been ready and willing to
perform the essential terms of the contract. This the plaintiff
miserably failed to do in so far as payment of rent is concerned.
14. A perusal of Section 20 of The Specific Relief Act clearly
indicates that the relief of specific performance is discretionary.
Merely because the plaintiff is legally right, the Court is not
bound to grant him the relief. True it is, that the Court while

exercising its discretionary power is bound to exercise the same
on established judicial principles and in a reasonable manner.
Obviously, the discretion cannot be exercised in an arbitrary or
whimsical manner. Sub clause(c) of subsection
(2) of Section 20
provides that even if the contract is otherwise not voidable but
the circumstances make it inequitable to enforce specific
performance, the Court can refuse to grant such discretionary
relief. Explanation (2) to the Section provides that the hardship
has to be considered at the time of the contract, unless the
hardship is brought in by the action of the plaintiff.
15. In this case, Bahadur Singh having got possession of the
land in the year 1964 did not pay the rent for 13 long years and
even when he filed the replication in the year 1978, he denied
any liability to pay the customary rent. Therefore, in our opinion,
he did not act in a proper manner. Equity is totally against him.
In our considered view, he was not entitled to claim the
discretionary relief of specific performance of the agreement
having not performed his part of the contract even if that part is
held to be a distinct part of the agreement to sell. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7424-7425 OF 2011

SURINDER KAUR Vs  BAHADUR SINGH 

Deepak Gupta, J.
Dated:September 11, 2019

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Whether date fixed for performance of agreement can be extended if vendor is seeking permission from competent authority?

 There are essentially two points that arise for our
consideration in this case. The first relates to limitation. A
specific date i.e. 31.03.1975 was fixed for performance of
the Agreement, i.e. execution of the sale deed. As per
Article 54 of the Schedule to the Limitation Act, when a
date is fixed for performance of the contract, the period of
limitation is three years from such date. The cause of
action has arisen on 31.03.1975 and the suit ought to have
been filed within three years from that date. Admittedly,
the suit was filed only in the year 1987. However, the
submission of the Plaintiffs is that the date fixed for
performance of the Agreement stood extended by the
conduct of the parties. It was submitted that even after
31.03.1975, the Defendants were pursuing the application
filed for permission before the L&DO with the cooperation
of the Plaintiffs. The further submission of the Plaintiffs is
that without the permission of the L&DO, the sale deed
could not have been executed on 31.03.1975. Therefore,
the Plaintiffs submit that the date fixed by the agreement
for the execution of the sale deed stood extended. It is
settled law that the vendee cannot claim that the cause of
action for filing the suit has not arisen on the date fixed in

the contract on the ground that certain conditions in the
contract have not been complied with. (See: Fateh
Nagpal & Co. v. L.M. Nagpal1, Vishwa Nath Sharma
v. Shyam Shanker Goela2 and K. Raheja
Constructions Ltd. v. Alliance Ministries3).

Non - Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2525 of 2019

Urvashi Aggarwal  Vs Kushagr Ansal

L. NAGESWARA RAO, J.
Dated:March 06, 2019.
Citation: 2020(1) MHLJ 778

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Whether father of plaintiff can prove readiness and willingness on behalf of plaintiff?

As regards the aspect of readiness and willingness, which according to the learned Counsel for the appellant, the respondent No. 1 only personally could have deposed about, it has been held by the Hon'ble Supreme Court in the case of Man Kaur (dead) by LRs v. Hartar Singh Sangha (supra), as follows-

"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."

12. This is the position of law laid down by the Hon'ble Supreme Court with regard to who can give evidence in respect of transactions on the basis of personal knowledge. Paragraph 18(g) would clearly cover the case of respondent No. 1 in the facts of the present case. Here is a case where the father of respondent No. 1 had accompanied him on the crucial date when the transaction between the parties took place on 25.08.2001 and in that light it cannot be said that the evidence given by him as a Power of Attorney holder could not be looked into by the Court, while considering the prayer for decree of specific performance made by respondent No. 1.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 450 of 2017

Decided On: 16.04.2018

Tousif Ahmed  Vs.  Ferozkhan and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) MHLJ 914

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Whether fact is deemed to be admitted if it is not specifically denied?

Moreover, in the present case, there is no specific denial to the averments made by the Respondent in the plaint that, the Respondent was always ready and willing to perform its part of the contract. This fact is taken note of by both the Courts below and it was therefore, held that in the absence of specific denial in the written statement about the fact pleaded in the plaint amounts to admission and admitted facts need not be proved.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 66 and 67 of 2003

Decided On: 08.08.2018

Madhavrao Ramchandra More  Vs.  Rajendra Sahakari Griha Nirman Sanstha Maryadeet and Ors.

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Whether agreement of sale executed by karta is binding on member of joint family even if it is not executed for legal necessity?

It is submitted by learned counsel for these Defendants that, admittedly the suit property is the ancestral joint family property of Defendant No. 1, therefore Defendant Nos. 2 and 3 are having coparcenary rights therein. They were minor when the agreements were executed. Hence, the burden was upon the Respondent to prove that these agreements were executed for legal necessity. However, no such case is made out or proved. Hence, these agreements cannot be binding on the shares of these defendants. To support this submission, the reliance is placed by learned counsel for these Appellants on the judgment of the Division Bench of this Court in the case of Shrikant Trimbakrao Begade & Ors. V/s. Natthu Maroti Shivarkar (Dead) Through LRs. & Ors. MANU/MH/0520/2017 : 2017(4) Mh.L.J. 590, wherein relying upon Section 243 and 244 of the Hindu Law (Mulla), it was held that, "the burden to prove the legal necessity is always on the purchaser of the joint family property". Here, in the case, according to learned counsel for the Appellants, as no such enquiry was made by the Respondent before purchase of the property to prove the existence of legal necessity for Defendant No. 1 to sell the suit land, the agreements of sale cannot be binding on the share of Defendant Nos. 2 and 3 and also on the share of Defendant No. 4.

61. However, in my considered opinion, this contention is also devoid of merits because, as per the legal position, the transactions entered into by the karta of the Hindu Joint Family are binding on the undivided share of the minors as well as other members of the family, not only when they are executed for the legal necessity but also for the benefit of joint family Here, in the case, on account of these agreements of sale executed by Defendant No. 1 with Respondent, Defendant No. 1 can save the surplus land held by the joint family from the clutches of ULC Act. The entire joint family is thus benefited by this transaction. Hence, these transactions bind not only Defendant No. 1 but also Defendant Nos. 2, 3 and 4, who are benefited thereby.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 66 and 67 of 2003

Decided On: 08.08.2018

Madhavrao Ramchandra More  Vs.  Rajendra Sahakari Griha Nirman Sanstha Maryadeet and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation:2019(1)MhLJ 419

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Whether grand son can be legal heir of defendant if his sons are alive?

 As far as the necessity of appointing the guardian ad litem for minor defendants is concerned, as held in Ram Chandra Vs. Man Singh MANU/SC/0352/1967 : AIR 1968 SC 954, decree passed against a minor without appointment of guardian is nullity and void. But in the present case it is found that the minor heirs were not at all legal heirs of deceased Dhavji. The Sale Deed and agreement to sell were executed by Dhavji. On his death his class-I heirs would be legal heirs. He was survived by two sons Baban and Sabaji and one daughter Muktabai defendant Nos. 1 to 3. They are the respondents. Defendants 4,5,6,7,8 and 9 are grandsons of Dhavji and sons of either defendant No. 2-Baban Dhavji or defendant No. 3-Sabaji Dhavji. It cannot be disputed that when the sons are alive the grandsons cannot be the class one legal heirs of the deceased. It was a mistake to include defendant Nos. 4 to 9 in the suit and their presence was not at all essential and therefore, it is not relevant whether guardian ad-litem was appointed or not for defendant Nos. 8 and 9 who were minor. Hence, non appointment of guardian ad-litem will not affect the judgment and decree passed by first Appellate Court. 

IN THE HIGH COURT OF BOMBAY

Second Appeal Nos. 165, 152 of 2016, Civil Application Nos. 276 and 361 of 2016

Decided On: 24.08.2018

Sabaji Dhavji Dhore Vs. Baburao Raghuji Kare

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(1) MHLJ 183

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