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1988 Supreme(Online)(Guj) 2
GUJARAT HIGH COURT
A, J
Rajya Tulsibhai Patel v. Benar Enterprise and Others
Suit No. 238 of 1984
In suits for specific performance, statutory language must be complied with substantially, allowing flexibility in pleading readiness and willingness to perform.
Headnote:(A) Specific Relief Act, 1963 - Section 16(c) - Requirement of readiness and willingness in suit for specific performance - Plaintiff claimed specific performance of contract but failed to aver readiness and willingness in plaint - Court held that substantial compliance with the statutory requirements suffices even if exact phraseology is absent. (Paras 3, 4, 8, and 9)
(B) Error in rejecting amendment - Court set aside trial court's order rejecting plaint for non-disclosure of cause of action due to technical grounds, emphasizing that rules of pleading should not be strictly construed in the interest of justice. (Paras 2, 7)
Facts of the case:
The plaintiff booked an industrial shed, paid part of the price, and faced breaches by defendants affecting contractual rights. He sought specific performance and damages due to the defendants' actions.
Findings of Court:
The absence of the phraseology required by law did not justify rejecting the plaint; the facts indicated readiness to perform the contract.
Issues: Whether the trial court erroneously rejected the plaint and amendment application due to non-averment of readiness and willingness.
Ratio Decidendi: Even without exact compliance with statutory language, the essence of readiness and willingness can be inferred from the plaint and relevant facts. Prior cases corroborate that substantial compliance must be recognized over mere technicalities.
Result: The appeal is allowed; the order rejecting the plaint is set aside.
| Table of Content |
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| 1. plaintiff's claim of specific performance based on contractual arrangement. (Para 1 , 2) |
| 2. arguments regarding rejection due to failure to state readiness. (Para 3) |
| 3. court’s interpretation and emphasis on substantial compliance over strict adherence to statutory language. (Para 4 , 5 , 6 , 7 , 8) |
| 4. court allowed appeal based on substantial compliance with statutory requirements. (Para 9) |
1. The appellant - plaintiff filed a Suit No. 238 of 1984 in the City Civil Court, Ahmedabad, for specific performance of the contract dated 15th Dec., 1980 and in the alternative for damages occasioned on account of breach of contract. The case set up in the plaint was that the first defendant, Messrs Banner Enterprise, a partnership firm, had floated a scheme for the construction and sale of industrial sheds on Final Plot No. 10 - E of Rakhial Town Planning Scheme No. 10. The plaintiff met the organisers of the scheme and after knowing the terms and conditions thereof, booked Shed No. 1 admeasuring 50 sq. yards for a price of Rs. 50,000/-, 70 per cent whereof was to be met through a loan to be arranged by the defendants. Accordingly, out of the total price of Rs. 50,000/-, a sum of Rs. 35,000/- was to be paid through Government loan and the balance of Rs. 15,000/- was to be paid by the plaintiff to the defendants, the organisers of the scheme. The plaintiff paid an amount of Rs. 9,000/- by four instalments, the first three dated 15th Dec., 1980 and the last dated 17th Jan. 1981 under separate receipts issued by the defendants. According to the plaintiff, the balance amount was to be paid after the commencement of the construction of the shed.
2. On 24th May 1981 the foundation stone was laid and thereafter the plaintiff made inquiries from time to time as to when the construction was to commence but he was given evasive replies. However, on 15th March 1982 he received a letter from defendant No. 6, Messrs Banner Industrial Estate Limited, informing him that he was enrolled as a shareholder of that firm. The plaintiff states that this was done without his consent. He further states that thereafter when an explanation was sought as to how such a change could be brought about without the consent of the shareholders of defendant No. 1, evasive replies were given and when he insisted on knowing when the construction would start, a substantial amount without receipt was demanded from him. The plaintiff and three other members objected to the same and inserted a public notice in a local daily through an advocate dated 24th Dec., 1982 to which defendant No. 1 gave a reply dated 27th Dec., 1982 which was countered by an explanation dated 1st Jan., 1983. The plaintiff contends that the first defendant had with a view to defeating the claim of the plaintiff and others introduced a change in the name of the firm and in order to protect his rights for claiming Shed No. 1 on payment of the balance amount under the contract, the suit in question was instituted. In para 8 of the plaint all these events have been stated as constituting the cause of action. In the relief clause, para 14(A), it is reiterated that out of the total amount of Rs. 50,000/-, Rs. 35,000/- were to be raised through Government loan and the balance of Rs. 15,000/- was to be paid by the plaintiff to the defendants towards which Rs. 9,000/- have already been paid. The plaintiff further stated in the relief clause that the defendants should be directed to receive the balance of Rs. 6,000/- and execute a sale deed in his favour for Shed No. 1 after arranging for a loan of Rs. 35,000/- which he was and is ready and willing to repay by reasonable instalments as may be fixed. On these averments the plaintiff claimed specific performance of the contract dated 15th Dec., 1980 and in the alternative damages for breach of contract amounting to Rs. 30,000/-.
3. During the pendency of the suit the plaintiff filed an application, Exhibit 53, seeking to amend the plaint with a view t
