1981 Supreme(MP) 360

U. N. Bhachawat, J.
Hafiz Habibur Rehman v. Haji Ali Mohd.
S. A. No. 66 of 1975 (J); Decided on 3-7-1981.

Headnote:(1) Specific Relief Act, 1963-S. 16 (c)-suit for specific performance of contract-plaintiff has to plead his readiness and willingness to perform this part-this can also be inferred from material facts pleaded in plaint.

        (2) Transfer of Property Act, 1882-S. 55 (1) (d) and Stamp Act, 1899-S. 45 (d)-stamp for execution of conveyance-vendee is under obligation to supply in absence of contract to the contrary.

        (3) Legal maxims-sin qua non-applicability in suit for specific performance.

       

        Learned counsel for the appellant raised two contentions while as ailing the judgment of the lower appellate Court

        (i) that as neither there is any averment of readiness and willingness made in the :plaint as required under section 16 (c) of tile Specific Relief Act, nor there is any proof about that and therefore, the suit should be dismissed only on this ground.

        (ii) that alleged contract Ex. P-I is unconscienable as the contract price of Rs. 850/- is low: un disputably the prevalent price at the relevant time was Rs. 500/- to 800/- per acre and therefore, discretion should be exercised in refusing this specific performance of the contract.

        Held: It cannot be gainsaid that in view of the mandatory provisions contained in section 16 (c) of the Specific Relief Act, 1963, the plaintiff has to allege that he has always been ready and wilting to perform his part of the contract and this legal position has not been disputed by the 1earnd counsel for the appellant also.

        It is true that even if the plaintiff does not mention the specific words that he was ready and willing to perform his part of the contract, but pleads all the material facts from which the averment of readiness and willingness can be made OUI, it would be a compliance with the fore quoted provisions, but in the instant case, as would be indicated hereafter from the facts pleaded; averment of the required readiness and willingness. of the plaintiff can not be constitured.

        At this stage it would be pertinent to point out in the light of provisions contained in section 55 (1) (d) of the Transfer of Property Act and section 45 (d) of the Indian Stamp Act, when there is no contract to the contrary, it is for vendee to bear the expenses of the proper stamp for the conveyance and tender the same for the execution to the defendant. This being a statutory obligation, in the absence of an agreement to the contrary, it form an essential term of the contract for sale. See First Appeal No. 205 of 1976 (Hemraj v. Vishnu Prasad Dubey), decided on 29-5-1980.

        In the instant case, no contract to the contrary has been pleaded nor it has b"n so submitted and, in my view, rightly, during the course of the argument by the learned counsel for the plaintiff respondent. In the plaint admittedly plaintiffs have not specifically pleaded that they were interalia ready and willing to bear the expenses for the purchase of the proper stamps for the deed of conveyance or that they were ready and willing to officer the draft conveyance for execution, nor the plaintiffs have made a general averment of their readiness and willingness to perform their part of the contract. In the instant case, the plaintiffs have only pleaded that they required the defendant to complete the sale only on accepting Rs. 200/- the balance of contract price. The averments contained in Paragraphs 5 & 6 of the plaint which have been relied upon by the learned counsel for the respondent go to show that the plaintiff was only to pay Rs. 200/- the balance of the price of the contract and nothing beyond that. To the same effect is the notice Ex. D-3. On the perusal of the evidence also it is not obtainable that at any stage the plaintiff had offered to bear the expenses of the stamps for conveyance and or was willing to bear the same or had offered or was willing to offer draft conveyance for execution for the defendant.

        In the light of the foregoing discussion it is clear that the plaintiff niether pleaded the required readiness and willingness to perform his part of the contract nor proved the same. This is sin qua non for obtaining decree for specific performance.