Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 373

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDIRA BANERJEE, K.M. JOSEPH, JJ.
KADUPUGOTLA VARALAKSHMI - APPELLANTS
VERSUS
VUDAGIRI VENKATA RAO & ORS. - RESPONDENTS
CIVIL APPEAL NO.543 OF 2021(ARISING OUT OF SLP (C) NO(S).9175 OF 2020, WITH CIVIL APPEAL NO.544 OF 2021 (ARISING OUT OF SLP (C) NO(S) 1944 OF 2021
Decided On : 16-02-2021

Advocate Appeared:
For the Appellant :Mr. A. Ramalingeswara Rao, Ms. E. R. Sumathy, Ms. S. Spandana Reddy, Mr. Raavi Yogesh Venkata, Ms. Snigdha Singh, Mr. Saurabh Ahluwalia, Advocates
For the Respondent:Mr. G. Ramakrishna Prasad, Mr. Suyodhan Byrapaneni, Ms.Filza Moonis, Mr. A. Ramalingeswara Rao, Ms. E. R. Sumathy, Ms. S. Spandana Reddy, Advocate

IMPORTANT POINT
Court may not 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 agreement specific performance whereof he seeks.

Headnote:
Specific Relief Act, 1963 – Section 16(c) – Agreement to Sell – Suit for Specific Performance – Court may not 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 agreement specific performance whereof he seeks – There is no question of plea being available to one defendant and not to another – It is open to any defendant to contend and establish that mandatory requirement of Section 16(c) has not been complied with and it is for Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree suit – Decision of High Court set aside and matter remitted for fresh consideration on merits. (Paras 8 and 11)
Facts of the case:
Present 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 that the plaintiff had failed to prove genuineness of the agreement dated 09.10.2004 and that appellant herein was a bonafide purchaser for consideration without notice of said agreement dated 09.10.2004.
Findings of Court:
Entire perspective with which the matter was considered by the High Court was clearly erroneous and as observations made by the High Court in paragraph 76 disclose, 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, judgment under challenge clearly fell in serious error.
Result : Appeals allowed.

ORDER :

1. Application for substitution is allowed.

2. Leave granted.

3. 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.

4. Civil suit¹[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.] 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.

5. In paragraph 15 onwards of its judgment, the Trial Court also noted certain facts touching upon the question of readiness and willingness on part of the plaintiff.

6. 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:

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

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2021 Supreme(SC) 373

IMPORTANT POINTCourt may not 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 agreement specific performance whereof he seeks.

Cases Referred (2)

IMPORTANT POINT
Court may not 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 agreement specific performance whereof he seeks.