2009 Supreme(Bom) 1245

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE C.L. PANGARKAR
Prakash Ramkrishna Khadse & Others
Versus
Manikrao Ramaji Sonwane, Prop. Shri Kripa Housing Agency & Others
FIRST APPEAL NOS.690 & 732 OF 2007
Decided on : 22-09-2009

Headnote:Specific Relief Act, 1963 - Sections 14, 15 and 16 - Suit for specific performance of contract - A person raising false pleas for payment of considerations, cannot be said to be always ready to perform his part of contract. - In cases of immovable property time is sever essence of contract and once contract is broken there would never be question of plaintiff being ready or otherwise. He submits that the plaintiff was also therefore not bound to perform his part of the contract and make further payment.

       It would be necessary to look into readiness of the plaintiff as the subsequent purchaser steps into the shoes of the vendor and since such plea would have been available to the vendor, such a plea would also be available to the subsequent purchase. If the decision in Jawahar Lal Wadhwa’s case by Larger Bench is seen it would be clear that even when a party alleges wrong repudiation he has a choice to keep the contract alive till the time of performance and claim performance. But in that case he will also have to show his readiness and willingness to perform his part of the contract throughout or he has other choice of putting contract to an end and claim damages.

       Specific Relief Act, 1963 - Sections 14, 15 and 16 - Suit for specific performance of contract - Suit brought by a person not having privilege of contract and he therefore cannot enforce it at all. The suit is therefore bad and is liable to be rejected on this reason alone. - Agreement was with partnership firm but suit is brought by individual. The Judge of trial Court seems to have dealt with the question in a very slipshod manner. He no doubt accepts that plaintiff entered into agreement as partner and suit is filed as a proprietor. He says that on this technical ground relief cannot be refused to plaintiff. Indeed the concept in the mind of the Judge appears to be stranger. Suit itself is brought by a person not having privity of contract who cannot enforce it at all. The suit was therefore bad and was liable to be dismissed on this count alone.

       Specific Relief Act, 1963 - Sections 14, 15 and 16 - Suit for specific performance of contract - Where a person is willing and ready to perform his part of contract he has a choice to keep alive contract and claim performance - But he will be responsible to show his readiness and willingness to perform his part of contract throughout. - If the plaintiff wants to simply complain of breach, he should be prepared to have damages and not specific performance. For that the other option is readiness to performance the contract. Simply saying on oath that he is ready does not do. It must be established as a fact that all that is required to be performed under contract before a right to seek performance accrues must be performed. To conclude Court would say that the amount of Rs. 3,00,000/- is not paid though alleged to be paid, (2) the amount required to be paid every month is not paid and (3) there is no positive response to the defendants notice Ex. 48 calling upon the plaintiff to have a sale-deed. Court finds that plaintiff was not ready and willing the performance his part of the contract. In view of the fact that plaintiff raised a false plea of payment of Rs. 3,00,000/-, the discretion could not by used in any case in favour of the plaintiff.

       Specific Relief Act, 1963 - Sections 14, 15 and 16 - Suit for specific performance of contract - Witness admits that he maintains accounts, if he says genuinely, then it will be very easy for him to produce all account book and show all entries with full and final payments. - A person who raises false plea for the payment of consideration could not be said to be ever ready to perform his part of the contract. It is so held in a decision reported finding has not been upset by the High Court that the plea was false and was sought to be substantiated by producing a false and fabricated document makes the situation worse for Thawar Das. A person who falsely alleges to have paid Rs. 2,000 and also attempts at proving the plea at the stage of the trial cannot be said to have been ever ready and willing to pay Rs. 7,000 which under the contract it was his obligation to pay. The present one is not a case where a plea as to payment was raised bona fide but abandoned at or before the trial for inability to prove.

       Hindu Minority and Guardianship Act, 1956 - Sections 5 and 8 - Guardians and Wards Act, 1890, Sections 28 and 29 - Specific performance of contract - Suit for - Contract for sale of property - One of owners of property minor - Contract challenged - Suit decreed by trial Court - A guardian has no power to enter into a contract on behalf of minor - Contract void - Not enforceable. - Counsel for the appellant/defendants contend that there is no averment in the plaint that the contract was entered into by defendants 1 and 2 for the benefit of minor defendant No. 3 or that it will so benefit the minor. He submits that a guardian has no right to sell the property minor without obtaining permission of the District Judge and admittedly in this case the permission is not obtained. Vendor No. 2 was definitely a minor and is represented by natural guardian mother. The argument will have to be appreciated bearing in mind the provisions of Hindu Minority And Guardianship Act as well as Guardian and Wards Act. The suit property is admittedly the ancestral property of defendants 1 to 3 i.e. vendors of the plaintiff. Section 6 of the Hindu Minority and Guardianship Act says that in the absence of the father the minor shall be the guardian of the person and property of the minor excluding his undivided share in the joint family property. Section 8 speaks of powers of natural guardian in respect of separate property of the minor. Section 8 has no application to cases where the minor has an interest in Hindu undivided family.

       Specific Relief Act, 1963 - Sections 10 and 12 - Suit for specific performance of agreement for sale of land - Property belongs to partnership firm - Suit brought in individual name - Not in name of partnership firm - By a person having no privity of contract - Suit bad in law - Not maintainable. - The suit is admittedly brought in individual name and not in the name of the partnership firm at all. Now if the agreement was with partnership firm and the suit is brought in personal capacity, it is a suit brought in the name of the wrong plaintiff and by a person having no privity of contract.

       The fact however remains and is clear from evidence that agreement was with partnership firm but suit is brought by individual. The learned Judge of trial Court seems to have dealt with the question in a very slipshod manner. He no doubt accepts that plaintiff entered into an agreement as partner and suit is filed as a proprietor. He says that on this technical ground relief cannot be refused to plaintiff. Indeed the concept in the mind of the learned Judge appears to be strange. Suit itself is brought by a person not having privity of contract who cannot enforce it at all. The suit was therefore bad and was liable to be dismissed on this Count alone.

       Specific Relief Act, 1963 - Sections 10 and 13 - Suit for specific performance of contract - Decreed by trial Court - Appeal against - Plaintiff agreed to pay amount at an agreed rate - Paid a part of consideration - Balance to be paid in instalments - Paid some amounts by cheques - Receipt of some payments disputed by defendants - Plaintiffs reluctance to pay amounts on given dates and not accounting for payment of entire amount shows that he is not ready and willing to perform his part of contract - Judgment and decree of trial Court set aside - Suit dismissed - Appeal allowed. - The agreement of sale Ex. 35 says that the contract is to be concluded and sale deed executed within 1-1/2 year from the date of contract i.e. 17.5.2001. The period of 1-1/2 year comes to an end by 18.11.2002 plaintiff i.e. the purchaser had agreed to pay every three months some amount to the seller i.e. defendants 1 to 3. It is not disputed that plaintiff did not pay any amount as agreed after the dispute arose over the sale of two acres of land. It is seen that plaintiff has failed to established payment of Rs. 88, 010/- and Rs. 1,09,000/-. He had also not paid any amount which he was supposed to pay every three months. Reluctance of the plaintiff to perform his part of the contract is evident from two more facts. The first that, he issued notice informing the public that he has a contract with defendants and that the defendants are reluctant to execute the sale deed This notice is Ex. 44 and is issued on 3.7.2001, i.e. the day after refusal of defendants 1 to 3 to register the sale deed due to the non supply of receipts with regard to the payment. He says in the said notice that he intends to take legal action against defendants 1 to 3. Surprisingly after this notice the plaintiff does not take any action. He neither pays the amount nor informs the defendants 1 to 3 to perform the contract nor does he institute a suit immediately He just keeps quiet. Defendants 1 to 3 issue notice Ex. 48 the notice first on 15.11.2001, calling upon the plaintiff to be ready to take sale deed and pay money. Until that date i.e. from 3.7.2001 to 16.11.2002, there is no notice to defendants by plaintiff nor he fileds a suit nor does he send or pay money to the defendants. Even in reply to this notice of defendants the plaintiff does not respond positively. He says in reply that there is a breach of contract and he is taking action against the defendants under Section 420 Indian Penal Code. He does not say a word about his readiness to perform his part of the contract at all and on the other hand gives a threat of criminal action. Further in this reply to the notice dated 16.11.2002, he positively says he paid Rs. 2,30,000/- only. Thus his plea of having paid Rs. 3,00,000/- prior to 2.11.2001 was patently false. All this conduct of plaintiff certainly goes to show that he was not at all ready to perform. A party has to all the while show his willingness to perform the contract. If plaintiff would have been really ready to take the sale deed he would have reached positively to the notice Ex. 48. Court have no hesitation in concluding that plaintiff was not ready to perform the contract.

       Much ado was made of the plea of defendants that plaintiff and defendants 4 and 5 were known to each other closely and plaintiff introduced defendants 4 and 5 to defendants 1 to 3 which ultimately laid to execution of sale deed in favour of defendants 4 and 5 on 13.7.2001. This may or may not be true. That does not turn the table either way. Ultimately as held in Jawahar Lal Wadhwa’s case the plaintiff must prove his readiness and not merely complain of breach. Supreme Court has said that if the plaintiff wants to simply complain of breach, he should be prepared to have damages and not specific performance. For that the other option is readiness to perform the contract simply saying on oath that he is ready does not do. It must be established as a fact that all that is acquired to be performed under contract before a right to seek performance accrues must be performed. To conclude Court would say that the amount of Rs. 3,00,000 is not paid though alleged to be paid (2) the amount required to be paid every month is not paid and (3) there is no positive response to the defendants notice Ex. 48 calling upon the plaintiff to have a sale deed. Courts find that plaintiff was not ready and willing to perform his part of the contract. In view of the fact that plaintiff raised a false plea of payment of Rs. 3,00,000/- the discretion could not be used in any case in favour of the plaintiff.

       In view of Court findings proceed to allow both the appeals and set aside the judgment and decree passed by the trial Court. The suit is dismissed with costs.