IMPORTANT POINT
Suit for Specific Performance—Compliance of readiness and willingness has to be in spirit and substance and not in letter and form.

JUDGMENT

A.K. Rath, J.—This appeal at the instance of the defendant assails the confirming judgment of the learned Addl. Civil Judge (Senior Division), Puri in Title Appeal No.15/104 of 1994/1992.

2. Case of the plaintiff-respondent was that the defendant agreed to sell the suit property for a consideration of Rs.4,000/- to press his legal necessity. Defendant had executed an agreement to sell on 19.5.1987 in his favour on receipt of advance of Rs.2,167/-. It was agreed that the sale was to be executed within three months and fifteen days after receipt of the balance amount of Rs.1,833/-. Possession was delivered to him. He requested the defendant to receive the balance consideration and execute the sale deed, but the defendant maintained a sphinx like silence. He had sent balance consideration amount of Rs.1,833/- by money order and notice to the defendant to execute the sale deed after receipt of the amount. But then, the defendant did not execute the sale deed. With this factual scenario, he instituted the suit for specific performance of contract.

3. Defendant filed the written statement pleading that the agreement Ext.1 was executed as security loan of Rs.2,000/- returnable within three and half months. A further agreement was executed simultaneously on the same day to return the agreement after receipt of Rs.2,187/-.

4. On the inter se pleadings of the parties, learned trial court struck four issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the plaintiff was ready and willing to perform his part of the contract and accordingly directed the defendant to execute the sale deed within one month after receipt of the balance amount of Rs.1,833/-. Unsuccessful defendant filed appeal before the learned District Judge, Puri, which was subsequently transferred to the learned Addl. Civil Judge (Senior Division), Puri and re-numbered as Title Appeal No.15/104 of 1994/1992. The appeal was eventually dismissed.

5. The appeal was admitted on the substantial questions of law enumerated in Ground Nos. A, B and C of the appeal memo. The same are -

“A. Whether the requirement of Section 16(C) of the Specific Relief Act regarding readiness and willingness to perform the plaintiff-respondent’s part in the contract under Ext.1 have been satisfied in the absence of specific pleadings to this effect and specific statement that he is ready and willing even on the date of deposition as required under law.

B. Whether the contract under Ext.1 enforceable in law as time was the essence of contract as envisaged under Sec.55 of the Contract Act in view of

i) The specific time stipulation fixed in the agreement Ext.1.

ii) The execution of Ext.9 stipulating return of advanced money within the stipulated time with interest with no further stipulation for extension and payment of further interest;

iii) The defendant-appellant’s action in sending notices for return of the advanced money under Exts.A and C.

C) Whether the learned courts below were correct in decreeing the suit for specific performance of contract despite the statutory cautions prescribed u/s 20 of the Specific Relief Act as;

i) The terms of the contract Ext.1 gives an unfair advantage to the plaintiff-respondent over the defendant-appellant and it would involve great hardship unforeseen earlier;

ii) The contract under Ext.1 is inequitable and unconscionable being grossly under valued and the proper valuation would have ousted the pecuniary jurisdiction of the trial court.

iii) The contract under Ext.1 was executed as security for the loan which aspect has not been considered by the courts below.”

6. Heard Mr. Ramakanta Mohanty, learned Senior Advocate for the appellant and Mr. Ahsutosh Sahoo on behalf of Mr. S.K. Dash, learned counsel for the respondent.

7. Mr. Mohanty, learned Senior Advocate for the appellant argued with vehemence that there was no pleading that the plaintiff was/is ready and willing to perform his part o