Suman Parmananddas Mundhada & others vs Saroj Screens Private Ltd. & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 340

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Patel H.D. Sambre W.M., JJ.
Suman Parmananddas Mundhada others.... Appellants.
Versus
Saroj Screens Private Ltd. others.... Respondents.
First Appeals Nos. 95 96 of 1980, decided on 25-7-1991.
Advocates appeared :
M.G. Bhangde, in F.A. No. 95/1980, for appellants in F.A. No. 96/1980, for respondent Nos. 2 3.
V.R. Manohar, for in F.A. Nos. 95, 96/1980, for respondent No. 1.
C.S. Kaptan F.A. No. 96/1980, for appellant.

Headnote:Section 16 (c) Explanation Clause (ii)-Suit for specific performance of contract-Plaintiff to aver and to prove his readiness and willingness to perform his part of contract from date of contract to time of bearing according to its true construction Readiness and willingness must be in relation to real agreement between parties.
       In instant case there was neither readiness nor willingness to implement contract in its true sense. Plaintiff not entitled to be granted specific performance-His suit liable to be dismissed.
       It is a settled law that in a suit for specific performance of an agreement the plaintiff has not only to aver that he is ready and willing to perform his part of the contract from the date of the contract to the time of hearing the suit, but he has also to prove the same if that averment is controverted. Failure to make such an averment and to prove it would bring with it the inevitable dismissal of the suit. Explanation to Section 16 (c) further lays down that the plaintiff should aver and prove his readiness and willingness to perform the contract according to its true construction. The emphasis is on the words according to its true construction". In other words, true meaning of the agreement is to be adhered to. There is no scope for the plaintiff to go beyond what is contained in the agreement while showing his readiness and willingness are also required to be judged on true and faithful construction of the agreement. Again that readiness and willingness must be in relation to the real agreement between the parties.
       In case it transpires that the real agreement is not what the plaintiff alleges and the willingness or readiness Which the plaintiff displayed was not in relation to the agreement, the plaintiff would be clearly within the mischief of the doctrine of readiness to or willingness to perform the contract and he will not be entitled to any relief.

JUDGMENT - PATEL H.D., J.:---The aforesaid two appeals arise from the judgment delivered by the Joint Civil Judge, Senior Division, Nagpur, on 28th day of April, 1980 in Special Civil Suit No. 96 of 1974 decreeing the plaintiff's claim by calling upon the original defendants Nos. 1(a) to 1(d) to execute a deed of assignment in favour of the original plaintiff upon their depositing Rs. 79,000/- within two months and assigning all their legal rights in the suit plot in favour of the original plaintiff. Upon execution of such assignment deed the original defendant No. 2 was directed by the decree to execute the lease deed for a period of 30 years on revised ground rent of Rs. 4,000/- per year commencing from 17th March, 1974 in conformity with the conditions noted in the original lease-deed (Exhibit 120). Appeal No. 95 of 1980 is filed by original defendants Nos. 1(a) to 1(d), whereas Appeal No. 96 of 1980 was filed by original defendant No. 2. Since both the appeals arise from a common judgment, they are being heard and disposed of also jointly by this judgment. The facts alleged in the plaint are as follows:

2. The plaintiff-Saroj Screens Private Ltd. is a private limited company having its registered office at Amravati. Shankarlal Laxminarayan Rathi is the Managing Director of the said company. It is in this capacity the plaint is signed and verified by him. The then Municipal Committee, Nagpur, had given a lease of Plot No. 5 in the Patwardhan Ground Layout for a period of 30 years' commencing from 17-3-1944 to the defendant No. 3 Seth Gopaldas Mohta vide indenture of lease dated 28-10-1944. The defendant No. 2 is the successor of the then Municipality of Nagpur. According to the plaintiff, the lease was in perpetuity renewable every 30 years.

3. The defendant No. 3 constructed a plinth on the aforesaid plot, hereinafter referred to as "the suit plot". Thereafter the defendant No. 3 leased out the suit plot to the plaintiff vide lease deed dated 10th September, 1947. As an initial deposit, a sum of Rs. 5,000/- was given by the plaintiff in terms of the said deed, which amount was either to be refunded on the expiry of the period of original lease, referred in the plaint as Head Lease, or to be adjusted towards rent of the last year of lease. The plaintiff was put in possession of the plot and they are in possession even today. A cinema house was constructed thereon. Rent was paid thereafter by the plaintiff. It was alleged in the plaint that the plaintiff had an option under the lease-deed to purchase all the rights of the defendant No. 3 which he acquired under the Head Lease with defendant No. 2 including the renewal of the lease and the right of the defendant No. 3 over the plinth and this was to be done during last year of the thirty years lease of defendant No. 2 on payment of Rs. 90,000/- when he had agreed to execute a deed of assignment or other assurance transferring all his rights in that property and establishing a privity of estate between the plaintiff and defendant No. 2.

4. Subsequently the defendant No. 3 and defendant No. 4 represented to the plaintiff that in a family partition the property in question was allotted to the defendant No. 4. Later the defendant No. 4 executed a deed of assignment in favour of the defendant No. 1 Parmanand Mundhada vide deed of assignment dated 12th August, 1960. Upon this transfer he accepted the rights of the plaintiff under indenture of lease dated 10th September, 1947 including the deposit amount of Rs. 5,000/-. The plaintiff had acknowledged the defendant No. 1 as his lessor and had paid rent till end of March 1975. The deed of assignment in favour of the defendant No. 1 also came to be registered with defendant No. 2.

5. By letter dated 15th January, 1973 the plaintiffs informed the defendant No. 1 that they are ready and willing to pay Rs. 90,000/- any time and acquire the rights of defendant No. 1 under the lease dated 28th October, 1944 including the right of renewal togeth

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