IMPORTANT POINT
The trial Court rightly dismissed the suit for specific performance on grounds that plaintiff had not complied with requirement of law laid down under Section 16(c) of Specific Relief Act, 1963 and that conduct of plaintiff did not entitle him to grant of discretionary relief in favour of the plaintiff.

Headnote:(i) Specific Relief Act, 1963-Section 16(c)-Suit for specific performance-Plaintiff neither pleading that he was ready and willing to perform his part of the bargain nor substantially complied it-Whether entitled to enforce contract by specific performance? (No)-Case law reviewed.
       Held : The decisions of this Court, therefore, leave no manner of doubt that a Plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the Plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with. (Para 27)
       Having regard to the facts and circumstances of the case and keeping in view the decisions of this Court, as referred to hereinbefore, we are of the opinion that the plaintiff cannot be said to have even substantially complied with the requirements of law. (Para 28)
       (ii) Specific Relief Act, 1963-Section 20-Suit for specific performance filed after six years of agreement to sell-No material to prove that he asked for execution of sale deed-Whether entitled to discretionary relief of specific performance? (No).
       Held : There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on records to show that he had ever asked defendant No. 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief. (Para 30)
       (iii) Civil Procedure Code, 1908-Section 100-Second Appeal-High Court setting aside concurrent finding on the exercise of discretionary jurisdiction by Courts below without finding that it was exercised on any wrong legal principle-Whether correct? (No)-Appeal allowed.
       Held : Yet again, both the trial court and the first appellate court refused to exercise their discretionary jurisdictions in favour of the plaintiff. The High Court, in our opinion, should not have interfered therewith without arriving at a finding that the discretion has been exercised by the Courts below on wrong legal principle. (Para 33)
       For the foregoing reasons, we are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. This appeal is allowed with costs. Counsel s fee assessed at Rs.5,000/-. (Paras 39 & 40)

Judgement Key Points

Facts of the Case:

Defendant No. 1 was the owner of the suit property bearing No. C.T.S. No. 1921/A of Gadag Betageri City Municipal area. (!)
Defendant No. 2 was the constituted attorney of Defendant No. 1. (!)
On or about 1-10-1978, Defendant No. 2 entered into an agreement for sale of the suit property with the plaintiff for a total consideration of Rs. 30,000/-, out of which Rs. 20,000/- was paid as advance, and the plaintiff was allegedly put in possession. (!)
The sale deed was to be executed within 3 years from the date of the agreement upon payment of the balance Rs. 10,000/- by the plaintiff.[1000077710001]
Defendant No. 3 (appellant) purchased the suit property from Defendant No. 1 by a registered sale deed dated 15.5.1984 for Rs. 50,000/-.[1000077710001]
On or about 15.5.1984, the plaintiff made an enquiry at the C.T.S. Office and learned of the sale to Defendant No. 3.[1000077710001]
The plaintiff served a notice dated 8.8.1984 on Defendant Nos. 1 and 2 demanding specific performance of the agreement dated 1.10.1978.[1000077710001] (!) (!)
The notice to Defendant No. 1 returned unclaimed, and Defendant No. 2 did not reply. (!) [1000077710003]
The plaintiff stated the cause of action arose on 8.8.1984 upon service of the notice and the defendants' failure to execute the sale deed. (!)
In the plaint, the plaintiff alleged he demanded Defendant No. 2 to bring Defendant No. 1 to execute the sale deed after receiving the balance consideration, but Defendant No. 2 postponed it. (!)
The plaint contained no specific averment that the plaintiff was ready and willing to perform his part of the contract.[1000077710002] (!)
The suit was filed almost six years after the agreement to sell.[1000077710029][1000077710011]
No material was placed on record showing the plaintiff ever asked Defendant No. 1 (the owner) to execute the sale deed or tendered the balance consideration within the 3-year period or at any point prior to the notice.[1000077710011][1000077710014][1000077710029]
In evidence, the plaintiff stated he was ready to pay the balance Rs. 10,000/- even on the date of deposition.[1000077710015]
The trial court dismissed the suit, finding no averment or proof of readiness and willingness under Section 16(c) of the Specific Relief Act, and that the plaintiff's conduct did not entitle him to discretionary relief; the first appellate court agreed.[1000077710004]
In the plaintiff's second appeal, the High Court reversed the findings, holding the readiness and willingness issue did not arise as Defendant Nos. 1 and 2 did not contest, and found Defendant No. 3 not a bona fide purchaser for value due to lack of his examination as a witness.[1000077710005]

JUDGMENT

S.B. Sinha, J.-Defendant No. 3 is the appellant herein. Defendant No.1 is admittedly the owner of the property in suit. Defendant No.2 is the constituted attorney of Defendant No.1, who, on or about 1-10-1978 is said to have entered into an agreement for sale with the Plaintiff in respect of the suit property bearing No. C.T.S. No. 1921/A of Gadag Betageri City Municipal area for a total consideration of Rs. 30,000/- out of which a sum of Rs. 20,000/- was allegedly paid as advance. In terms of the said agreement, the plaintiff allegedly was put in possession of the suit property.

2. The Deed of sale, pursuant to the said agreement was to be executed within 3 years from the date thereof on payment of the balance sum of Rs.10,000/-. Defendant No. 3, the appellant herein, purchased the suit property by reason of a registered deed of sale dated 15.5.1984 for valuable consideration of Rs. 50,000/-. The plaintiff on or about 15.5.1984 admittedly made an enquiry in the C.T.S. Office to obtain the C.T.S. extract of the suit property, when he came to learn that the defendant already executed a registered sale deed in respect of the suit property in favour of the appellant whereupon he served a notice dated 8.8.1984 upon Defendant Nos. 1 and 2 demanding specific performance of the said agreement of sale dated 1.10.1978. As regards cause of action, in the Plaint it was stated:

"The cause of action to this suit arose on 8.8.1984 when the plaintiff got served the notice to the defendants demanding specific performance of agreement of sale dated 1.10.1978 and when the defendants failed to execute the sale deed in favour of the plaintiff."

3. It is not in dispute that the plaintiff in his plaint did not make any averment as regard his readiness and willingness to perform his part of the contract as is mandatorily required in terms of Section 16(c) of the Specific Relief Act 1963. He merely alleged:

"After the said agreement of sale, the Plaintiff demanded the Defendant No. 2 to bring the Defendant No. 1 and to execute a registered sale deed both together after receiving the balance of sale consideration. But Defendant No. 2 went on postponing the same by one or the other reasons. At last this Plaintiff demanded Defendant Nos.1 and 2 by giving notice. Even though the Defendant No. 2 has received the notice, he has not replied anything. The notice sent to the Defendant No. 1 returned unclaimed. Inspite of the notice, Defendant No. 1 and 2 failed to execute the registered sale deed in respect of the suit property in favour of the Plaintiff."

4. No notice admittedly was served on Defendant No. 1, the owner of the property.

5. The learned trial judge dismissed the suit holding inter alia that the plaintiff having not averred his readiness and willingness to perform his part of contract in the plaint, he is not entitled to a decree for specific performance of contract. The learned trial judge further, having regard to the conduct of the plaintiff, refused to grant the discretionary relief in favour of the plaintiff. The First Appellate on an appeal from the said judgment agreed with the said findings.

6. In the second appeal filed by the plaintiff, the High Court, however, reversed the said findings. Therein, the only substantial question of law which was framed was as regards the readiness and willingness on the part of the plaintiff to perform his part of contract. The High Court answered the said question merely stating: "The question of law that was framed was regarding the willingness and readiness on the part of the plaintiff to perform his part of the contract. But that question does not arise for consideration for simple reason that Defendants 1 & 2 did not contest the case. It, however, entered into the question as to whether the appellant herein was a bonafide purchaser for value. The said question was answered in the negative solely on the ground that the appellant did not examine himself in the suit."

7. Mr. Mahale, the learned c

Click Here to Read the rest of this document

2003 Supreme(SC) 334

Cases Referred (14)