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1996 Supreme(Pat) 182
PATNA HIGH COURT
B.L.Yadav, J.
Munarma Devi Alias Manorama Devi
Versus
Gango Devi Alias Gangia Devi
Second Appeal No. 213 of 1987 ;
Decided On : MARCH 20, 1996
In a suit for specific performance of a contract, the plaintiff must make sufficient averments in the plaint about his or her readiness and willingness to perform his or her part of the contract and must serve a registered notice on the defendant through an advocate, indicating his or her willingness to pay the consideration amount.
Headnote:
SPECIFIC RELIEF ACT, 1963 - SECTION 16(C) - SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT - READINESS AND WILLINGNESS TO PERFORM - AVERMENTS IN PLAINT - SUFFICIENCY - INTERPRETATION.
Fact of the Case:
Plaintiff filed a suit for reconveyance of property transferred to the defendant under a conditional sale deed, alleging that she was ready and willing to perform her part of the contract by paying the consideration amount, but the defendant refused to accept the payment and execute the reconveyance deed. The trial court decreed the suit, but the lower appellate court reversed the decision and dismissed the suit.
Finding of the Court:
The court held that the suit was not strictly a suit for specific performance of the contract but rather a suit for reconveyance of the property, as the transaction was substantially a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act, 1882. The court found that the plaintiff had made sufficient averments in the plaint about her readiness and willingness to perform her part of the contract and had served a registered notice on the defendant through an advocate, indicating her willingness to pay the consideration amount. The court also found that the lower appellate court had erred in not considering the oral evidence of the plaintiff's witnesses, who had testified that the plaintiff had gone to the defendant's house to pay the consideration amount but was refused.
Issues: 1. Whether the suit was a suit for specific performance of the contract or a suit for reconveyance of the property. 2. Whether the plaintiff had made sufficient averments in the plaint about her readiness and willingness to perform her part of the contract. 3. Whether the plaintiff had served a registered notice on the defendant through an advocate, indicating her willingness to pay the consideration amount. 4. Whether the lower appellate court had erred in not considering the oral evidence of the plaintiff's witnesses.
Ratio Decidendi: 1. The nature of the transaction and the averments in the plaint determine the nature of the suit. 2. The plaintiff had made specific averments in the plaint about her readiness and willingness to perform her part of the contract and had served a registered notice on the defendant through an advocate, indicating her willingness to pay the consideration amount. 3. The lower appellate court had erred in not considering the oral evidence of the plaintiff's witnesses, who had testified that the plaintiff had gone to the defendant's house to pay the consideration amount but was refused.
Final Decision: The court allowed the second appeal, set aside the decree of the lower appellate court, and restored the decree of the trial court, decreeing the suit with costs throughout.
1. This is a plaintiffs second appeal in the suit for return of the property, transferred to the defendant under a transaction which was apparently a conditional sale dated 4-7-1979, of a mortgage by conditional sale.
2. The plaintiff or appellant filed the suit with the averment that she executed a conditional sale on 4-7-1979 for a sum of Rs. 5,000.00 (five thousand) in favour of defendants. The stipulation was that on payment of consideration of Rs. 5,000.00 the defendant would return back the property (in scheduleA) to her. She even though requested several times the defendant-respondent to take the amount of Rs. 5,000.00 and to execute the deed for reconveyance but they did not accept the money nor executed the sale deed in her favour. The plaintiff gave a registered notice through the advocate which was served on the defendant indicating that the plaintiff is ready and willing to perform her part of contract but the defendants did not perform their part of contract hence the amount was being deposited in the Court and the suit was filed.
3. The suit was contested by the defendants-respondents admitting the execution of the deed but the plaintiff never offered the said amount to defendants who were ready and willing to reconvey the property and that no notice of any advocate was served on the defendants. The suit was liable to be dismissed.
4. The trial Court by the judgment and decree dated 19-12-1985 decreed the suit directing the defendant to take the sale consideration deposited in Court and to execute the deed of reconveyance to the plaintiff within two months from the date of decree failing which the deed would be executed by the Court.
5. The defendant-respondent preferred an appeal before the lower appellate Court and the same has been allowed by the judgment and decree dated 10th of April, 1987 and the suit has been dismissed with costs. A cross-objection filed by the plaintiff in respect of mesne profits was also dismissed.
6. Learned counsel for the appellant Sri Devendra Kumar Sinha, contended that it was not strictly speaking a suit for Specific Performance of the Contract, rather it was a suit for reconveyance of the property in which the provision of Sec. 16(c) of the Specific Relief Act, 1963 (the Act for short) was not attracted. The transaction was substantially a mortgage by conditional sale as contemplated under Sec. 58(c) of the Transfer of Property Act, 1882 and in that view of the matter in case the plaintiff failed to pay the amount within five years the sale in favour of the defendant-respondents was to become absolute whereas on the condition that all such payment being made within the time stipulated the transaction was to become void. Even assuming the suit was for Specific Performance of Contract, nevertheless the conditions were specifically complied with the averment in respect of readiness and willingness was also made. The plaintiff has also offered the sale consideration to the defendants of the mortgage money as contemplated under the deed and registered notice was also served on the defendants, the amount was deposited in Court but defendants respondents did not accept. The substantial questions of law are involved and suit may be decreed. Reliance was placed on M/s. Ganesh Trading Co. V/s. Moji Ram, AIR 1978 SC 484, Bijai Bahadur V/s. Shiv Kumar, AIR 1985 All 223, Surya Narain Upadhyaya V/s. Ram Roop Pandey, AIR 1994 SC 105.
7. Counsel for the respondents Mrs. Seema Ali Khan, on the other hand effectively refuted the submissions of the learned counsel appearing for the appellant and urged that in a suit for Specific Performance of Contract there must be averment about the readiness and willingness of the plaintiff for payment of the balance consideration but in the plaint there as no specific averment to that effect and it was not a suit for reconveyance or a suit for redemption of the mortgage by conditional sale consequently the suit for Specific Performance was filed as requ
