Personal Bars to Relief – Section 16 | Specific Relief Act



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2. Agreement of sale:

The respondent and his sister had each half share in the suit properties. Hence a mere failure to mention in the agree­ment that they had such share in the property would not entitle one to come to the conclusion that they did not have that share. When the prop­erty is owned jointly, unless it is shown to contrary, it has to be held that each one of the joint owners owns a moiety of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares. Secondly, the agree­ment of sale clearly mentions that respondent was entering into the agree­ment both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also the whole of the share of his sister in the property. Further in the agreement itself he had stated that he was responsible to get the sale-deed executed by his sister and that he would persuade her to do so. This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective ven­dors. In the circumstances when the absentee vendor, for some reason or the other, refused to accept the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share.

This is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it related to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as to contracting party, namely, the respondent is concerned. Under the agreement, he had con­tracted to sale whole of his property. The two contracts, viz. for the sale of his share and of his sister’s share were separate and were incorporated in one agreement.

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In the case of agreement of sale relating to immovable property, time is not the essence of the contract unless specifically provided to that effect.

3. Agreement to sale:

Where purchaser was not willing to pay part consideration unless some conditions foreign to the agreement are fulfilled it was held that he could not ask for the specific performance.

4. Agreement to sell:

Everybody concerned in the matter proceeded on the assumption that there were two houses, one occupied by defen­dants and another in the occupation of the tenants. The agreement men­tions the house in which the defendants were living as the subject matter of the agreement. The words ‘entire house’ cannot in any way militate against this fact.

It will only be the entire house in which the defendants were living. As we stated earlier, the plaintiff was aware of the fact that there was a portion of the premises which was referred to and understood as a separate house by all those concerned and which was in the occupation of the ten­ants. If the agreement was to include that portion also it was his duty to have it specifically mentioned in the agreement, riot having done so he has got to fail in his claim regarding that portion of the house.

5. Allowability of:

Where the amendment does not constitute addi­tion of a new cause of action, or does not raise a new case, but amounts to no more than addition to the facts already on the records, the amendment could be allowed even after the statutory period of limitation.

6. Amendment:

Question of delay is one of the considerations and not the sole consideration for accepting or refusing amendment. Delay it­self is per se no ground for refusing prayer for amendment unless the same was mala Fide and intended at delaying disposal of the proceeding. Where in a plaint for specific performance of a contract, the legal requirement of an averment of continuous readiness and willingness is substantially com­plied with there can be no objection to amend the plaint, to add the lan­guage of the statute to this averment.

7. Amendment of plaint:

The Supreme Court on aspects of pleadings in civil cases observed as follows:

“Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular cause of action must take.”

“It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings, and entirely new or inconsistent cause of action, amounting virtu­ally to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may be accrued in its favour due to lapse of time. But, mere failure to set out even as essential fact does not by itself constitutes a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as pay­ment of either any additional Court-fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of plead­ings.”

So what their Lordships of the Supreme Court intended to say was that defective pleadings should generally be allowed to be cured if the cause of action sought to be brought out by the amendment was not ab initio com­pletely absent. But, if the cause of action is not ab initio completely absent, defective pleadings may be permitted to be cured so as to constitute a cause of action where there was none and it is only when lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayer for amendment of pleadings.

8. Amendment of pleadings:

It is clear from foregoing summary of the main rule of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned neces­sary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.

9. Appeal:

In absence of good prima facie evidence, the inference raised by the Trial Court is unreasonable.

Where findings are recorded by lower Courts that the plaintiff was ready and willing to perform his part of contract and no plea of hardship is raised by the defendants and there was no issue framed that the plaintiff can be compensated in terms of money in lieu of decree of specific performance, such plea cannot be allowed to be raised for first time in appeal by way of special leave petition.

10. Ascertainment of:

Although in the case of sale of immovable prop­erty time is not the essence of the contract, it has to be ascertained whether under the terms of the contract, when the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time.

It observed that the specific performance of a contract will ordinarily be granted. Not­withstanding default in carrying out the contract within the specified period, if having regard nature of the property and surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immov­able property, it would normally be presumed that the time was not of the essence of the contract.

In that case the facts of the case were such that the time was held to be the essence of the contract. Those special features are not present in this case. Therefore, on the general principle of law laid down in these cases it has to be held in the present case that the time for the performance was not the essence of the contract and it could be per­formed in a reasonable time.

11. Averment:

In order to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the per­formance of which has been prevented or waived by defendant.

12. Burden of proof:

It was for the defendant to establish his claim that he obtained possession of the suit property by way of part performance of the contract as contained in the agreement to sell.

13. Cancellation of:

Where agreement of sale stipulate right of seller to refund amount of advance or earnest money if balance amount is not paid by purchaser within stipulated period of agreement and the purchaser fails to discharge such obligation agreement of sale stands cancelled. Seller having returned the earnest money amount received from purchaser and objected to the order of attachment by Commissioner in pursuance of de­cree of Court. Subsequently it was found that right to recover loan of pur­chaser was invalid. Meld, property of seller could not be validly attached in the Court process.

14. Cancellation of agreement:

The person seeking decree for spe­cific performance has to satisfy that Section 16 of the Specific Relief Act does not bar the grant of such a relief and the person against whom the decree is passed can show that the relief of specific performance cannot be granted in view of the provisions of Section 16 of the Specific Relief Act. Clause (c) of Section 16 postulates that the person seeking specific perfor­mance of the contract must file a suit where he must aver and prove that he has performed or has always been ready and willing to perform the essen­tial terms of the contract which are to be performed by him.

Moreover, in view of Article 54 of the Limitation Act, 1963, a suit for specific perfor­mance of contract has to be filed within three years of the date fixed for the performance or if no such date is fixed where plaintiff has notice that per­formance is refused. In the present case the appellant by his notice, had clearly indicated that he had cancelled the agreement and had forfeited the advance amount of Rs. 18,000/- deposited by the defendant.

By the said notice, it was clearly indicated that the appellant was no longer willing to perform the agreement to sell. In the circumstances, it was incumbent upon the defendant to have filed a suit for specific performance of the contract within a period of three years from the date of the said notice, and if such a suit had been filed by the defendant, it would have been open to the appel­lant to show that it was barred by the provision contained in Section 1 6 of the Specific Relief Act.

The defendant did not choose to adopt that course and remained content with defending the suit filled by the appellant for cancellation of the agreement to sale and for recovery of the possession of the property. Even if it is found that the appellant was not entitled to suc­ceed in the said suit and the said suit is liable to be dismissed, it would not entitle the defendant to obtain a decree for specific performance of the contract in those proceedings.

The High Court, with due respect, was not right in invoking its discre­tionary power under Order VII, Rule 7, C.P.C. to grant such a relief to the defendant. The said power conferred on the Court does not enable it to override the statutory limitations contained in Section 16 of the Specific Relief Act, 1963 and Section 54 of the Limitation Act, 1963 which preclude the grant of the relief of specific performance of a contract except within the period prescribed by the section.

15. Cancellation of contract:

Where there was provision in the agree­ment that in the case of non-payment of balance amount by the vendee after issuance of notice by vendor, the vendor shall have a right to refund the amount, contract stood cancelled.

16. Cause of action:

It is well-settled that in a suit for specific perfor­mance the plaintiff should allege that he is ready and willing to perform his part of the contract. It no such averment is made in the plaint and the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him, then it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action.

17. Ceiling law:

Where purchaser likely to ‘be in possession of land in excess of ceiling limit, specific performance of agreement to sell cannot be refused.

18. Claim:

In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of. lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was ‘holding over’ as a lease within the meaning of Section 116 of the Transfer of Property Act.

19. Claim of damages:

Where any person contracts to transfer for consideration any immovable property by writing, signed by him or on his behalf, from which the terms necessary to institute the transfer can be as­certained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to part of the contract, i.e., would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of the con­tract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise.

Even otherwise, in a suit for possession filed by the respondent, suc­cessor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. The High Court has pointed that he has not expressly pleaded this in the written statement.

Except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it.

Equally, when the transferee seeks to avail of Section 53-A to retain possession of the property which the he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract.

Part performance, as statutory right is conditioned upon the transferee’s continuous willingness to perform his part of the contract in terms covenanted there under. Thus the High Court is right in its conclusion that the appellant is not entitled to retain possession. However, since the appellant has remained in possession under the agreement of sale, the respon­dent is not entitled to claim any damages from him.

20. Compliance of:

So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16 (c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require spe­cific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one’s case for a relief.

Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by Counsel hence the aforesaid differ­ence of pleas which inevitably differ from one to the other.

Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form.

The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifi­cally requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea.

The lan­guage in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contact. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.

21. Comply with:

The Supreme Court on aspects of requirement to comply with the mandatory provisions of Section 16 (c) of the Specific Re­lief Act, observed as follows:

“…The plaintiff did not plead either in the plaint or at any subse­quent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defen­dant has not done so. He must further plead that ne has been and it still ready and willing to specifically perform his part of the agree­ment. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj v. D.L.F. Housing and Construction (Private) (Ltd.) and an­other, (Civil Appeal No 37/ 66, decided on 4.4.1968) (reported in 1968 (3) SCR 648) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.”

22. Consideration:

As far as the deposit of balance considering was concerned under Explanation (i) to Section 16 (c) of the Specific Relief Act, 1963, the appellant could wait for an order of the Court to do so. That is what he did, both the Trial Court and the first Appellate Court on a consid­eration of all the evidence,, therefore, rightly came to the conclusion that the appellant was ready and willing to perform his obligations under the agreement and was entitled to specific performance of it.

23. Considerations of:

In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one’s case for a relief. It is pointed out that in India most of the pleas are drafted by Counsel and hence they inevitably differ from one to the other; thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and sub­stance of the plea. It was observed:

“Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language ‘ is required to take such a plea. The language in Section 16 (c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of ‘readiness and willingness’ has to be in spirit and substance and not in letter and form.”

Where purchaser has deposited the consideration within the time al­lowed, non-payment of sufficient Court fee on the date of presenting of suit of specific performance was irrelevant consideration to deny the relief of specific performance.

24. Date fixed for the performance:

The phrase occurring in the third column of Article 113 of the Limitation Act, 1908 “the date fixed for the performance” must be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed.

25. Date is not fixed:

Referring to Article 54 of the Limitation Act, 1963 the Court took the view that the expression “date fixed” could mean either the date expressly fixed or the date that can be fixed with reference to a future event, which is certain to happen. If the date is to be ascertained depending upon an event which is not certain to happen, the first part of Article 54 would not be applicable, and in such an eventuality, it is only the latter part of Article 54 that could be invoked by treating it as a case in which no date had been fixed for performance and the limitation would be three years from the date when the plaintiff had notice that performance is refused.

This was a case where performance was due after the tenants in the property had been vacated. The Court took the view that since eviction of the tenants was an uncertain event, the time must be deemed to have run only from the date when the plaintiffs had notice that the performance had been refused by the defendants.

26. Deed of conveyance:

The Supreme Court, after finding that the sale-deed and the deed of reconveyance were parts of the same transac­tion, observed thus:

“It is true that equity relieves against penalties when the intention of the penalty is to secure payment of a sum of money or attainment of some other object, and when the event upon which the penalty is made payable can be adequately compensated by payment of inter­est or otherwise. Thus relief is granted in equity against penal sums made payable on breach of bonds, covenants and agreements for payment of money by installments, or for doing or omitting to do a particular act. But where under a contract conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner or at stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not relieve against a breach of the terms.”

27. Delay:

The aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property are as follows:

(i) Delay running beyond the period prescribed under the Limita­tion Act;

(ii) Delay in cases where though the suit is within the period of limi­tation, yet:

(a) Due to delay the third parties have acquired rights in the subject-matter of suit;

(b) In the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.

28. Delay in filing:

Date on which last notice was issued the suit was filed only after nine months and not after more than a year as noted by the High Court. Therefore, on the facts of this case the ground of delay cannot be invoked to deny relief to the plaintiff.

The following aspects of the delay in filing the suit are relevant to be considered in a case of specific performance of contract for sale of immov­able property:

(i) Delay running beyond the period prescribed under the Limita­tion Act;

(ii) Delay in case where though the suit is within the period of limita­tion, yet:

(a) Due to delay the third parties have acquired rights in the subject-matter of suit;

(b) In the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief.

29. Denial of:

The specific performance of the agreement cannot be denied to the plaintiff merely on the ground that there has been consider­able rise in prices of real estate’s during the period litigation remained pend­ing between the parties.

30. Determination:

Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions regarding pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent deviations from the course which litigation on particular case of action must take.

31. Discretionary relief—Grant of:

The defendant obtained posses­sion of the suit premises when he had paid a fraction of the sale consider­ation and since then the defendant and, after his death, the respondents have been enjoying the premises. Since the appellant has been deprived of the use of the property without having been paid the full amount of the sale consideration for the past 18 years, it is appropriate in the interest of jus­tice that suitable provision be made for the appellant by way of interim measures during the pendency of this litigation. It is, therefore, directed that the appellant be paid @ Rs. 500/- per month till the date of disposal of this appeal. This amount shall be paid by the respondents to the appellant, or may be deposited in the High Court, within a period of two months and if so deposited the appellant would be entitled to withdraw the same.

For the subsequent period while the appeal, thus remitted, is pending the in the High Court, the amount payable to the appellant may be fixed by the High Court keeping in view the facts and circumstances. The decree of the trial under appeal before the High Court will be stayed only upon fulfilment of the conditions as to payment of sum of Rs. 500/- per month, till the date of this judgment and continuing to pay such sums as the High Court may direct during the pendency of the appeal. The amount thus paid by the respondents to the appellant shall be taken into account by the High Court while passing the final order in the appeal.

32. Doctrine:

In order that the doctrine of part performance as con­tained in Section 53-A of the Transfer of Property Act may be invoked, it is necessary that the act of part performance must be such as not only to be referable to the contract of which part performance is alleged but to be referable to no other title.

33. Effect of:

In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.

In absence of agreement of sale specific performance was not granted to the plaintiff who paid mortgaged money in execution of deed in favour of defendant although defendant agreed to sell certain property in lieu of pay­ment against his mortgaged amount by plaintiff.

Where plaintiff had not performed their part of the agreement, there was no readiness and willingness on the part of the respondent/plaintiff.

34. Effect of delay:

Where in suit for specific performance of contract of sale of property, the vendee causing inordinate delay by avoiding per­forming her part of contract, refusal to grant decree of specific performance was affirmed.

35. Enforcement of:

A suit for specific performance of agreement to sell the property was filed and subsequently a fresh agreement of sale and the withdrawn of the earlier suit was made but the suit was not withdrawn instead the original suit was amended which results in the non-willingness and non-readiness to perform his part of agreement. Hence, the claim for specific performance of the Act cannot be enforced.

It is now well-settled that the provisions of Article 299 of the Constitu­tion which are mandatory in character require that a contract made in the exercise of the executive power of the Union or of a State must satisfy three conditions viz., (i) it must be expressed to be made by the President or by the Governor of the State, as the case may be; (ii) it must be executed on behalf of the President or the Governor, as the case may be, and (iii) its execution must be by such person and in such manner as the President or Governor may direct or authorise. Failure to comply with these conditions nullifies the contract and renders it void and unenforceable.

36. English principle—Applicability of:

Even where the Specific Re­lief Act applied the Courts have still applied those English principles of equity which were not expressly adopted in the Act, on the ground “that the Indian and the English requirements in this matter are the same”.

37. Entitlement:

The plaintiff failing to aver his readiness and willingness in the plaint is not entitled to equitable relief of specific performance.

Where purchaser was not willing to perform his part obligatory on the basis of terms and conditions of contract and did not make part payments within specified limits and parties intended to make time essence of con­tract, it was held that purchaser could not obtain specific performance of contract agreement provision.

In case of sale of immovable property although time is not presumed to be essence of contract yet failure of purchaser to make payments within stipulated time of 10 days the purchaser was not entitled to obtain specific performance Of contract.

38. Entitlement to:

In the instant case, ‘A’ agreed to purchase from R’ a lease hold plot. ‘R’ was not having lease of the land in his favour from the Government not was he in possession of the same. ‘R’, however, re­ceived earnest money pursuant to the agreement for sale which provided that the balance of consideration would be paid within a month at the time of the execution of the registered sale-deed. Under the agreement ‘R’ was under obligation to obtain permission and sanction from the Government before the transfer of lease hold plot. ‘R’ did take any steps to apply for the sanction from the Government.

‘A’ filed the suit for specific performance of the contract for sale. One of the contentions of the ‘R’ was that ‘A’ was not ready and willing to perform his part of the contract. This Court observed that readiness and willingness could not be treated as a strait-jacket for­mula and that had to be determined from the entirety of facts and circum­stances relevant to the intention and conduct of the party concerned.

It was held that in the absence of any material to show that ‘A’ at any stage was not ready and willing to perform his part of contract or that he did not have the necessary funds for payment when the sale-deed would be executed after the sanction was obtained. ‘A’ was entitled to a decree for specific performance of contract.

39. Error of law:

The payment by way of Bank draft is as good a payment as cash-in-hand. Thus, Courts below have not committed any mani­fest error of law to decree the suit for specific performance warranting inter­ference.

40. Essence of contract:

A bench of the five learned Judges in Chand Rani v. Kamal Rani, AIR 1993 SC 1742, held thus:

It is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that is to be performed in a reasonable time if the conditions are:

1. From the express terms of the contract;

2. From the nature of the property; and

3. From the surrounding circumstances, for example; the object of making the contract.”

The stipulation of a particular date by which the purchase price is to be paid would not necessarily result in an invalidation of the right of the pur­chaser if the payment was not effected by that date. So long as the pur­chaser is willing to make payment on or before the date which was pre­scribed or within a reasonable time, the ordinary presumption of time not being the essence of the contract for the sale of immovable property would not be displaced.

The property involved in the litigation being immovable one ordinarily the presumption would be that the time was not the essence of contract unless from the term of agreement and other surrounding facts and circum­stances it can be safely found that the parties intended the time to be the essence of contract.

Of the present case, we find that there was no jurisdiction in claiming, in the circumstances, to treat time as of the essence. At the outset, referring to the original agreement dated 18.2.1981; there is nothing in the express stipulation between the parties to show that the intention was to make the rights of the parties dependent upon the observance of the time limits. Prima facie, equity treats the importance of such time limits as being subor­dinate to the main purpose of the parties.

In the present case, it was submitted on behalf of the appellants that time to pay Rs. 75,000/- on or before 30.9.1981 was made the essence of the contract by notice dated 12.9.1981 as the respondent was a chronic defaulter. Court does not find any merit in this argument. In his evidence, the respondent asserted. In his evidence, the respondent asserted that when he paid Rs. 50,000/- on 31.3.1981, the appellants orally agreed to extend the time for payment of Rs. 75.000/- from 18.4.1981 to 30.9.1981; that at the time there was no agreement to make time the essence of the contract.

This assertion has not been rebuttal has been led by the appellants. Fur­ther, as rightly held by the Courts below, the conduct of the respondent was not a gross conduct so as to justify giving of notice making time of the essence of the contract. That on the contrary, time was extended by the appellants in furtherance of Clause (8) of the agreement up to 31.12.1981. In the circumstances, time was not of the essence.

Even where time was not of the essence of a contract, the plaintiff must perform his part of the contract within a reasonable time which should be determined by looking at all the surrounding circumstances including express terms of the contract and nature of the property.

41. Evidence of:

The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipu­lation as to time is not the essence of the contract.

42. Execution of sale-deed:

The facts of this case would amply dem­onstrate that the petitioner/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consider­ation in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract.

The essential term of the contract executing the sale-deed within the stipulated period. He did not perform his part of the contract within stipu­lated time. The High Court was right in refusing to enforce the contract. It being discretionary remedy, the High Court has exercised sound judicial discretion to negate the relief of specific performance of the contract.

43. Facts and circumstances:

The Supreme Court on aspects of re­quirement to grant relief observed as follows:

“11. When, concededly, the time was not of the essence of the con­tract, the appellant-plaintiff was required to approach the Court of law within a reasonable time. A Constitution Bench of this Hon’ble Court in Chand Rani v. Kamal Rani, 1993 (1) SCC 519, held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract the Court may infer that it is not be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of the making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.”

44. Findings of facts:

In this case, there is no proof that any attitude of the defendant towards the plaintiff was the cause for the plaintiff not being able to pay the amount to the defendant. The findings of fact arrived at by the Courts below that no effort has been made by the plaintiff to pay the sale consideration to the defendant are findings of fact, binding in sec­ond appeal.

45. Fixation of the period:

It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulations as to time the essence of the contract. When a contract relates to the sale of immovable property it will normally be presumed that the time is not the essence of the contract.

46. General rule:

In the matter of amendment of pleading, the general rule, no doubt, is that a party is not allowed by amendment to set up a new case on a new cause of action, particularly when a suit on the new case or cause of action is barred by time. But, it is also well-recognised that, where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment is allowed even after expiry of the statutory period of limitation.

The expression ’cause of action’ in the present context means a new claim made on a new basis constituted by new facts. The words ‘new case’ has been understood to mean ‘new set of ideas’. No amendment can be allowed to introduce a new set of ideas to prejudice of any right acquired by the opposite party by lapse of time.

47. Grant of:

A specific averment has been made by the appellant that as per conditions in the deed of agreement for sale, he is willing to pay fees which is required for the sale-deed, cost of registration and the balance amount of Rs. 3,200/-. The said averments clearly contain a statement about the readiness and willingness on the part of the appellant to perform his part of.

It must be held that the appellant has not only averred, but has also proved that he was ready and willing to perform his part of the contract under the agreement for sale. The Appellate Court and the High Court were, therefore, in error in holding that the appellant had failed to comply with the requirements of Section 16 (c) of the Specific Relief Act and the appel­lant must be held entitled to a decree for specific performance of the con­tract in the suit filed by him.

The possession of the land was delivered to the appellant in 1976 at the time of execution of the agreement for sale and he is in possession of the same and has enjoying the same since then. Having regard to the depreciation in the value of the rupee during this period. It appears that the appellant should be required to pay a sum of Rs. 16,000/ – in lieu of the balance amount of Rs. 3,200/- payable by him.

Therefore, the suit for specific performance filed by the appellant is decreed subject to the appellant depositing in the Trial Court a sum of Rs. 16,000/- along-with the stamp duty and registration charges for the execu­tion of the sale-deed within a period of one month.

The fact that respondents attended the Sub-Registrar’s office to have, the save-deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration.

It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, therefore, be clear that the Courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.

Grant of specific performance of a contract is the ordinary rule. Its denial should be only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.

In absence of the proof of an existing contract, suit for specific perfor­mance of the contract cannot be decreed.

In the circumstances of the case when specific performance could not be directed, instead compensation granted to the plaintiff.

The conduct of the appellants in not depositing the balance of sale consideration in spite of receiving notice and even after filing of the suit would disentitle them from obtaining a decree for specific performance of the contract from the Court.

No plea as to hardship if relief for specific performance is granted was raised by defendant-vendor in his written statement. No issue was framed that plaintiff-purchaser could be compensated in terms of money in lieu of decree for specific performance, held that plea cannot be entertained for first time in appeal by way of S. L. P., because concurrent finding that plaintiff was ready and willing to perform his part of contract had been recorded by lower Courts and there was no reason to interfere with the said findings.

On aspects of decree for specific performance, it has been held by Supreme Court as follows:

“6. It is true that grant of decree of specific performance has in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discre­tion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refus­ing decree of specific performance….”

The Supreme Court on aspects of grant of alternative remedy held as follows:

“73. While the remedy under Article 226 is extraordinary and is of Anglo-Saxon vintage, it is not a carbon copy of English processes Article 226 is a sparing surgery but the lancet operates where injus­tice suppurates. While traditional restraints like availability of alter­native remedy hold back the Court, and judicial power should not ordinarily rush in where the other two branches fear to tread, judi­cial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject be­longs to the Court’s province and the remedy is appropriate to the judicial process. There is a native hue about Article 226, without being anglophilic or anglophobic in attitude. Viewed from this juris­prudential perspective, we have to be cautious both in not overstep­ping as if Article 226 were as large as an appeal and not failing to intervence where a grave error has crept in. Moreover, we sit here in appeal over the High Court’s judgment. And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.”

48. Grant of injunction in suit for permanent injunction:

Although there is no time limit prescribed in the agreement for performance of the contract, in the written statement filed by the first defendant, he denies the liability to execute the sale deed in favour of the plaintiff herein. The written statement is filed on 7-10-1980. Therefore, three years from the denial the suit should have been filed. The plea that temporary injunction is granted would come to the aid of the plaintiff to exclude the period of limitation is untenable.

The temporary injunction was granted only against the first de­fendant, the plaintiff although a party as second defendant, no temporary injunction was granted against him from instituting a suit and he was not otherwise prevented from filing a suit against the first defendant for seeking enforcement of the agreement.

49. Ground of refusal:

The defendants, who is the owner of the property, had contributed for the laches, such laches will not be a ground to refuse the relief of specific performance to the plaintiff/agreement- holder.

50. Inference of:

A perusal of the plaint does clearly indicate the readi­ness and willingness of the plaintiff the only obligation which he had to comply with was payment of balance of consideration. It was stated that plaintiff demanded the defendant to receive the balance of consideration of Rs. 8,000/- and execute the sale-deed. The defendant was at other place at the time of notices and when he came back to his place the plaintiff filed the suit against him. There is no reason why he would not pay the balance or one-third consideration of Rs. 8,000/ – to have the property conveyed in his favour.

51. Justification of:

It is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refus­ing to decree the suit for specific performance, But granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretions to be exercised on sound principles. When the Court gets into equity jurisdiction it would be guided by justice, equity, good con­science and fairness to both the parties. Considered from this perspective, in view of the fact that the respondent himself had claimed alternative relief for i damages, the Courts would have been well justified in granting alterna­tive decree for damages, instead of ordering specific performance which would be unrealistic and unfair.

52. Legality of:

Documentary proof of funds to make payment of con­sideration was not produced by vendee. Vendor was in dire need of money on account of marriage of his daughter. Since, the time was essence of contract therefore specific performance of contract to sell the property was rightly refused.

Where essence in term of the contract is executing the sale-deed within the stipulated period and petitioner did not perform his part of the contract within stipulated time it was held that the High Court was right in refusing to enforce the contract.

Where the Courts have recorded concurrent findings of fact that the time was the essence of the contract and further the plaintiff-appellant has failed to prove his readiness and willingness to perform his part of the contract, it was held that the said concurrent findings of fact do not suffer from any legal infirmity.

53. Maintainability of:

In a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.

54. Mandatory in nature:

The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a per­sonal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be de­nied the relief.

Section 16 (c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde

that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Hoop Pandey and others, AIR 1994 SC 105, that the plaintiff had substanti­ated his plea.

When the factual background is considered in the light of principles set out above, the inevitable conclusion is that the judgments of the learned Single Judge and the Full Bench do not suffer from any infirmity to warrant interference.

55. Necessity of:

What the law contemplates is that when a person brings an action under a contract, he must disclose to the Court that he has not been guilty of breach of contract and that he has fulfilled all the material conditions of the contract and is also ready and willing to perform the other essential conditions of the contract.

What the law contemplates is that the plaintiff must disclose that he has hitherto performed his part of the con­tract and is ready and willing to perform the essential terms thereof which he has to perform for the enforcement of the contract. Once he has dis­closed this by pleading relevant facts, it would be futile to insist on form, that is, reproduction of the exact words of the statute.

All that is required is that the facts pleaded in the plaint and the other averments made therein disclose substantial compliance with the requirements of the law. If the facts pleaded disclose that the plaintiff has performed his part of the con­tract and if the averments show that he is ready and willing to perform the other conditions of the contract, that would constitute compliance with the requirements of the forms and the statute even if the exact phraseology is missing. To insist on a mechanical reproduction of the exact words would be to insist on form rather than substance.

Explanation (i) uses the words “it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. This speaks in negative term what is not essential for plaintiff to do. This is more in support of plaintiff that he need not tender to the defendant or deposit in Court any money but the plaintiff must as per Explanation (ii) at least aver readiness and willingness to per­form his part of the contract.

This does not mean that unless the Court directs the plaintiff cannot tender the amount to the defendant or deposit in the Court. Plaintiff can always tender the amount to the defendant or de­posit it in Court, towards performance of his obligation under the contract. Such tender rather exhibits willingness of the plaintiff to perform his part of the obligation. What is ‘not essential’ only means need not do but does not mean he cannot do so.

The Supreme Court held that, the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of obligation under the contract but by tendering total amount shows he has performed his part of the obligation. The Court also, construe such a plea to be a plea of “readiness and willingness” as required under Section 16 (c).

Where allottee of Government accommodation claiming agreement to sell with the Government but no document constituting contract between parties was produced it was held that decree of specific performance can­not be granted.

56. No date fixed—Effect of:

The agreement for sale of a property stated that the sale was to be executed after the attachment which the creditors had brought was raised. Noticing the fact that there was absence of any indication as to when the attachment would be raised, the Court treated it as a case in which no date was fixed for performance of the contract and, therefore, falling within the second part of Article 54 of the Limitation Act, 1963.

57. Object of:

While dealing with Order VI, Rule 17, C.P.C., the Su­preme Court held that:

“If amendment is refused, the plaintiffs have to bring another suit and the object of the rule for allowing amendment to the plaint is to avoid multiplicity of suits.”

58. Onus to plead:

The onus to plead and prove that time was the essence of the contract was on the person alleging it, thus given an oppor­tunity to the other side to adduce rebuttal evidence that time was not of essence. That when the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor pur­ports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract.

59. Oral contract:

In this case, the plaintiff pleaded an oral contract for sale of the suit property. The defendant denied the alleged oral agree­ment and pleaded a different agreement in regard to which the plaintiff neither amended his plaint nor filed subsequently pleading and it was in that context that this Court pointed out that the pleading in specific perfor­mance should conform to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure.

60. Payment of balance:

Where the plaintiff had shown his readiness and willingness to perform contract by paying all balance amount of consid­eration except Rs. 120/-, which he had deposited in Court, the provisions of Section 16 (c) is complied with.

61. Performance of contract:

No specific phraseology required by the language in Section 16 (c) to aver “readiness and willingness”. Total sale consideration except Rs. 120/- already paid averred in plaint. Specific plea of tender of Rs. 120/- in Court also taken. Pleading showing readiness and willingness. Tender of total amount showing that the obligation is per­formed. Therefore suit for specific performance of contract was decreed.

62. Period of limitation:

Expression ‘date’ occurring in Article 54 of Act, 1963 from which time begins to run is not suggestive of specific calen­dar date. Original agreement had ‘fixed date’ for performance. But, by subsequent letter defendant requested for postponing performance to fu­ture date without fixing any further date for performance. Plaintiffs by their act of forbearance and not insisting on performance forthwith accepted postponing performance. Time for performance stands extended. Case cov­ered by second part of Article 54. Plaintiffs has realised that there was refusal to perform, when they were forcibly evicted from the godown. There­fore, counting from this date of refusal the suit filed within 15 days was perfectly within period of limitation.

In the present case, it was only on 31.8.1995/1.9.1995 that the plain­tiffs realised that there was a refusal to performance, when they were forc­ibly evicted from the godown. It is only then that the plaintiffs had notice of refusal of performance. Counted from this date, the suit was filed within 15 days, and, therefore, was perfectly within the period of limitation.

63. Permissibility:

An amendment inserting the relevant averments under Section 16(c) of the Specific Relief Act does not change the cause of action and would be legally permissible exercise.

Assignment permissible in terms of the lease that the assignee is a representative in interest acquiring valid title to claim specific performance.

There is prohibition on transfer of property under Administration of Evacuee Property Act, 1950. Vendor becoming evacuee after transferring property but without executing deed of conveyance. Because of failure to obtain permission of Additional custodian to effect transfer, execution of decree for specific performance by execution of sale deed was held not permissible.

64. Phraseology or language:

In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and sci­ence but an expression through words to place fact and law of one’s case for a relief. It is pointed out that in India most of the pleas are drafted by Counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed that “Unless a statute specifi­cally requires a plea to be in any particular form, it can be in any form. Mo specific phraseology or language is required to take such a plea.

65. Plaint—Requirement:

Requirement of averment in plaint that plain­tiff is ready and willing to perform all obligations on his part. Although found in plaint but on facts it was found that the plaintiffs averment was not true. She did not make all the necessary payments under agreement. Thus, trial Court has committed legal error in granting decree. High Court too, erred in affirming that decree. Judgment and decree of both these Courts liable to set aside. Person making wrong averments in plaint is precluded from get­ting equitable relief.’

66. Pleadings:

A pleading in the plaint to the effect that the plaintiff is always ready and willing to perform his part of the contract is an empty formality.

The object of all laws is to give relief to a deserving party. To uphold the cause of justice mere technicalities must be shown of. It is true that if prejudice is caused to the other party due to defective pleadings, the party at fault should not be given the undue advantage. The following observa­tions of the Supreme Court are relevant:

“Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.”

In a suit for specific performance, it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement, neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas.

67. Pleadings and proof:

A plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing, of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the plaint as whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16 (c) of the Specific Relief Act may be held to have been complied with.

68. Plea is not sufficient:

The Supreme Court on aspects of plea regarding willingness and readiness to perform contract observed follows:

“5…… So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16 (c) of the Specific Relief Act. This requires not only such plea but also proof of the same, now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16 (c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.

6. Next and the only other circumstance relied upon is about the tendering of Rs. 5,000/-, which was made on 2.3.1982 which was even prior to grant of the exemption. Such small feeder to the ven­dor is quite often made to keep a vendor in good spirit. In this case the only other payment made by the plaintiff was Rs. 5,000/- at the time of execution of the agreement of sale. Thus, the total amount paid was insignificantly short of the balance amount for the execu­tion of the sale deed. Thus in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16 (c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but it has to be proved so. It is not in dispute that except for a plea there is no other evidence on record to prove the same except the two circumstance. It is true that mere absence of a plaintiff coming in the witness box by itself may not be a factor to conclude that he was not ready and willing in a given case as errone­ously concluded by the High Court

69. Powers of Court:

Court cannot exercise powers under Order VII, Rule 7 for directing plaintiff to execute sale-deed of property when no such relief was claimed. Powers under Order VII, Rule 7 cannot be exercised for overriding statutory limitation.

70. Proof of:

The continuous readiness and willingness at all stages from date of agreement till date of hearing of suit is needed to be proved. It has also been laid down that:

“Section 16 (c) of Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continu­ous readiness and willingness at all stages from the date of agree­ment till the date of hearing of suit need be proved. The substance of the matter and surrounding circumstances must be taken into consideration in adjudging readiness and willingness to perform the plaintiffs part of contract.”

In the absence of an averment in the plaint that the plaintiff is ready and willing to perform his part of the contract, there was no cause of action for the suit.

Requirement of “readiness and willingness to perform the essential term of contract” contained in Section 16 (c) is the essence of plaintiffs suit. If plaintiff fails to establish that he was always ready and willing to perform his part of contract then his suit was liable to be dismissed.

71. Question of:

Admittedly, no contract whatsoever has been en­tered into between the plaintiff and the Union of India in respect of the house in question. No formal contract is proved to have been executed in accordance with Article 299 of the Constitution between the Union of India and the plaintiff for sale of the house in question. In the absence of any such contract. Court fails to see how the plaintiff is entitled to a decree for specific performance against the Union of India. Furthermore, in the ab­sence of any contract between the appellant and the second respondent in respect of the house, no decree could have been passed in favour of the plaintiff for specific performance against the appellant.

In the absence of any enforceable contract, the High Court was clearly wrong in passing a decree for specific performance against the Union of India.

In agreement for sale of immovable property, time is not the essence of the contract unless specifically provided to that effect.

The key issue which is to be decided in this civil appeal is: whether time was the essence for payment of Rs. 75.000/- on or before 30.9.1981 and whether the said term was breached. This question does not depend only upon express stipulation made by the parties, but it also depends upon the intention of the parties, notwithstanding that a specific date was mentioned in the agreement, one has not only to look at the letter but also at the substance of the contract. Whether time is of essence is a question of fact and the real test is intention of the parties. It depends upon facts and circumstances of each case.

The Supreme Court on aspects of time being the essence of contract observed that:

“At common law stipulations as to time in a contract giving an op­tion for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. Equity followed the common law rule in respect of such contracts and did not regard the stipulation as to time as not of the essence of the bargain, the reason being that a renewal of a lease is a privilege and if the tenant wishes to claim the privilege he must do so strictly within the time limited for the purpose…A delay on the part of the lessee to apply for renewal arising by mere neglect on his part and which could have been avoided by reasonable diligence will not entitle him to claim renewal.”

Where there is a defect in the cause of action, the amendment applica­tion can be allowed to rectify the mistake but where there was no cause of action for the suit and a valuable right has accrued to the other side on account of efflux of time, the Court should ordinarily refuse the prayer for amendment.

72. Readiness:

There was no averment on the part of the plaintiff in the plain that he was ready to perform his part of the contract and accord­ing to their Lordships in the absence of such an averment it ought to be held that the plaintiff had no cause of action so far as the relief for specific performance was concerned.

73. Readiness and willingness:

An averment of readiness and willing­ness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obliga­tions under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and will­ingness of the plaintiff in a suit for specific performance of contract for sale.

The compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form”. It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale.

The Courts below have examined the evidence on record and have recorded the finding of fact that the respondent was in a position to raise the wherewithal for implementing the contract. However, on facts, it is clear that time to complete the sale was extended up to 31.12.1981. That notice terminating the contract was given by the appellants on 3.10.1981 and the respondent had instituted the suit on 2.12.1981 which indicates that respondent was eager to fulfil his part of the contract. That it is nobody’s case that post dated cheque had bounced. That there was no unreasonable delay in payment of consideration and, therefore, it cannot be said that the respondent was not ready and willing to perform his part of the contract.

The Court has obligation not to grant specific performance in absence of averment and proof of readiness and willingness to perform contract. Since, there was no question of availability of plea to one defendant and not to another consequently, any of the defendants can take such plea.

The continuous readiness and willingness is condition precedent to grant any relief of specific performance. If the plaintiff fails to either aver or prove the same, he must fail.

From the statements of the appellant and respondent as well as the averments contained in the plaint, it was held that the appellant has not only averred but has also proved that he was ready and willing to perform his part of the contract.

In contract for sale of immovable property there is stipulation that bal­ance payment shall be paid within 10 days only from the date of agreement to sell. But, there was failure to make payment in-spite of notice. Thus, there was no evidence to prove readiness and willingness hence, specific perfor­mance was rightly refused.

It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adnumbrated under Section 20 of the Specific Relief Act, 1963. Under Sec­tion 20, the Court is not bound to grant the relief just because there was valid agreement of sale.

Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be per­formed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and will­ingness on the part of the f plaintiff is a condition precedent to grant the relief of specific performance.

The trial Judge had pointed out that on an application filed by the defendants, a direction was given to the plaintiff to deposit the amount of Rs. 2,00,000/- or furnish Bank guarantee giving time. Me neither deposited the amount nor has given Bank guarantees. It was also found that the plain­tiff was dabbling in real estate business. He has house on hire-purchase agreement with the Ò.N. Housing Board. He paid only Rs. 7,750/ – up to 1980. A sum of Rs. 29,665/- was further payable. These circumstances were taken into consideration by the trial Judge as well as the Division Bench in concluding that the plaintiff was not ready and willing to perform his part of the contract.

Thus the finding is well-supported from the facts circumstances and being a finding of fact. There is no infirmity in the judgment warranting granting of leave. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attend­ing circumstances. The Court may infer from the facts and circumstances whether plaintiff was always ready and willing to perform his part of con­tract.

It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree.

It was for the plaintiff in a suit for specific performance to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail.

It was observed by Supreme Court that:

“Readiness and willingness cannot be treated as strait-jacket for­mula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.”

The observations of the Supreme Court, referred to above, make it clear that the requirement of Section 16 (c) and of Form 47 of Appendix A to Code of Civil Procedure, are not to be interpreted narrowly and in a hypertechnical manner. It is the substance of the matter which is of impor­tance. If from the averment made in the plaints and the surrounding cir­cumstances, it is established in substance that the plaintiff was ready and willing to perform his part of the contract and had remained ready and willing to perform the same throughout, it would not be proper to non-suit him on a verbal omission here or there.

The language in Section 16 (c) does not require any specific phraseol­ogy but only that the plaintiff must aver that he has performed or has al­ways been and is willing to perform his part of the contract. So the compli­ance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for mechanical product of the exact words of an statute is to insist for the form rather than essence. So absence of from cannot dissolve an essence if already pleaded.

Law is not in doubt and it is not a condition that the respondents should have ready cash with them, the fact that they attended the Sub-Registrar’s office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration.

It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, there­fore, be clear that the Courts below have appropriately exercised their dis­cretion for granting the relief of specific performance to the respondents on sound principles of law.

On 10.9.1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from 26.8.1971, the sum of Rs. 98,000/- was not paid; hence, the sum of Rs. 30,000/- stood forfeited.

The redemption of the mortgage would be done and the income-tax clearance also would be obtained after the pur­chase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs. 98,000/- which again was reiterated in the notice dated 16.9.1973, nothing would have been easier for the plaintiff than to pay the said sum.

Therefore, even as late as 24.9.1971 the plaintiff was never willing to make the payment of Rs. 98,000/-. In this connection, we have already seen the oral evidence. It shows there was no readiness and willingness.

Plaintiff must state in the plaint that he is and has always been ready and willing to perform the terms of his part of agreement. Failure to state and prove this fact gives power, to the Court to dismiss suit. Continuous readiness and willingness on the part of plaintiff is a condition precedent to grant of relief of specific performance. Court may infer from the facts and circumstances as to whether plaintiff is ready and always ready and willing to perform his part of agreement.

Plaintiff established that he has necessary money for payment on reconveyance. Mere fact that he could not produce pass-book of Bank is not enough for holding that he was not willing to perform his part of agree­ment. Hence, Supreme Court directed for reconveyance.

Plea of readiness and willingness for specific performance of contract is not available to subsequent purchasers.

Purchaser is not required to produce money or to vouch a concluded scheme for financing the transaction, to prove his readiness and willing­ness to perform the contract.

The question of readiness and willingness to pay the balance consider­ation money is not of much importance in view of the admitted factual position that the vendor had parted with possession of the property in favour of the purchaser even before expiry of the period stipulated in the agree­ment. In that view of the matter, no exception can be taken to the finding of the High Court that the plaintiff duly satisfied the requirement of law of readiness and willingness to perform her part of the contract.

Readiness and willingness to perform contract have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.

Section 16 of the Specific Relief Act, 1963 mandates the plaintiff to aver in the plaint and establish as a fact by evidence that he has always been ready and willing to perform his part of the contract. The failure thereof is fatal to maintain the suit and entails with its dismissal. It is seen that the appellant has specifically pleaded in his plaint that he has been ready and willing to perform his part of the contract. He also further stated that he was ready to deposit the balance consideration of Rs. 9,000/- and get the sale- deed executed and registered in his favour in terms of the contract. The High Court also found that the appellant had deposited Rs. 9,000/- within the time allowed by the Trial Court and the suit was decreed. That would clearly show that the appellant had the capacity to pay the balance con­sideration and he was always ready and willing to perform his part of the contract.

Though the decree for specific performance is a discretionary power, yet the Court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a Court of appeal. Therefore, the discretion should be properly exer­cised keeping in view the settled principles of law as envisaged in Section 20 of the Act.

This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific perfor­mance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the Trial Court as well as the first Appellate Court, namely the appellant has always been ready and willing to perform his part of the contract.

Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific perfor­mance.

This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant of the relief. If the plaintiff fails to rather aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along-with other attending circumstances.

The amount of consideration which he has to pay to the defendant must of necessity by proved to be available. Right from the date of execution (of the contract to sell) till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attend­ing circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.

Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages form the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiffs part of the contract.

The Supreme Court on aspects of plea regarding readiness and willing­ness to perform contract observed:

“That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are neces­sary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers. The plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal represen­tatives, but not to the subsequent purchasers.”

The substantive provision contained in Section 16 (c) does not insist upon a particular set of words to be used; the averment must in substance indicate the continuous readiness and willingness on the part of the person suing. The Form prescribed under Order VI, Rule 3 is procedural, it is a rule of pleading, this has for its object the advance of cause of justice and it is not intended to short circuit decision on merits. It is procedural, something designed to facilitate justice and further its end, not a penal enactment.

The two Judge Bench of Supreme Court taken into consideration the averments made by the plaintiff in the plaint and opined as follows:

“9……….. It is thus clear that an averment of readiness and willing­ness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject- matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.

In the instant case a perusal of paras 6 to 11 of the plaint does clearly indicate the readiness and willingness of the plaintiff. The only obligation which he had to comply with was payment of bal­ance of consideration. It was stated that he demanded the defen­dant to receive the balance of consideration of Rs. 8,000/- and ex­ecute the sale deed. The defendant was in Patna (Bihar) at the time of notices and when he came back to his place the plaintiff filed the suit against him. In support of his case, he adduced the evidence of PW 1 and PW 2. The plaintiff had parted with two-thirds of the con­sideration at the time of execution of Ext. 2. There is no reason why he would not pay the balance of one-third consideration of Rs. 8,000/ – to have the property conveyed in his favour.”

The Supreme Court on aspects of readiness and willingness to perform contract observed that:

“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever finds to pay the balance of consideration. Assum­ing that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale-deed to the defendant within 7 days of the execution of the agreement i.e. by 27.2.1975. The draft sale-deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as con­tracted and intended to be for the time which disentitles him as time is the essence of the contract.”

The High Court recorded findings to the effect that there were no spe­cific averments in the pleadings that the plaintiff was ready and willing to perform his part of the contract and also no evidence was adduced in this regard. The findings are contrary to the materials on record.

As noted by the first appellate Court in various paragraphs of the plaint, more particularly, paragraphs 18 and 22 specific averments regarding readiness and willing­ness of the plaintiff to perform his part of the contract have been made. Additionally, the plaintiff who was examined as PW 9 has categorically stated that he had gone to tender the money, that is the consideration, to the defendant who was not agreeable to return the sale deeds and therefore the only course left open to the plaintiff was to file a suit.

On this ground alone, the judgment of the High Court is vulnerable. Another factor which appears to have weighed with the High Court is that even though one month time was granted by the trial Court to the plaintiff to deposit a sum of Rs. 1500/-, this was not done.

This again is a finding contrary to the materials on record. There can be no quarrel with the proposition that in a suit for specific performance of the contract, the plaintiff must prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. But the finding that the plaintiff has not proved his capacity to perform his part of the contract as he was not even ready to deposit the money in terms of the trial Court’s order is factually wrong.

It appears that no such plea was raised by the defendant before the first appellate Court. In the memorandum of appeal filed before the High Court in the second appeal also, there was no such plea taken. On perusal of the records-, it appears that the deposit was made, that as well within one month time granted by the trial Court by its judgment and decree. Confusion appears to have arisen because notwithstanding the deposit, an

application, for extension of time was filed. The High Court should have ignored the application and should not have put any emphasis thereon as verification of the records would have revealed that the payment had been made. Even otherwise there was no such plea taken by the defendant (re­spondent herein) about the non deposit within time granted by the trial Court.

There is nothing on record to suggest that defendants have shown readi­ness and willingness to perform their part of the contract or that they have called upon the plaintiff to get the sale-deed executed in his favour to do the needful. Therefore, it cannot be said that the High Court erred in giving finding in favour of the plaintiff that he was ready and willing to perform his part of the contract.

To succeed in a suit for specific performance of a contract, plaintiff shall aver and prove that he has performed and has always been ready and willing to perform essential terms of contract which were to be performed by him other than, terms the performance of which has been prevented or waived by defendants.

To determine the question of readiness and willingness of the plaintiff to perform his part of the contract, the Court has to examine the conduct and positions of both the parties.

When the plaintiff fails to aver and to prove readiness and willingness to perform his part of agreement then relief under the Act cannot be granted to plaintiff.

Where averments were made substantially in accordance with the forms prescribed by the Court and financial capacity to pay the sale consideration was also proved by evidence the decree of specific performance was up­held.

Where the plaintiff was handing over the draft of documents to be executed, to the other party and also depositing money in the treasury for purchasing the stamps it was held that the plaintiff was ready and willing to perform his part of contract.

74. Readiness and willingness to—Effect of:

The plaintiff did not in­form the Court that he was ready and willing to accept the agreement pleaded by defendant or that he was willing to perform his part of the contract. The plaintiff did not plead in the plaint or at any subsequent stage that he was ready and willing to perform his part of the contract. The Supreme Court observed that a suit for specific performance has to conform to the require­ments prescribed in Forms 47 and 48 of the 1st Schedule in the Code of Civil Procedure and it is well-settled that in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation, the suit is not main­tainable.

75. Reasonable—Interpretation of:

The Supreme Court while inter­preting the word “reasonable” held as follows:

“Even where time is not of the essence of the contract, the plaintiff must perform this part of the contract, the plaintiff must perform this part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circum­stances including the express terms of the contract and the nature of the property.”

13. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned in called upon to act reasonably Knows or ought to know as to what was reasonable. It may be unrea­sonable to give an exact definition of the word “reasonable”. The reasons vanes in its conclusion according to idiosyn­crasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the cir­cumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is defined to mean:

“A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circum­stances will permit; so much time as is necessary under the circum­stances, conveniently to do what the contract requires should be done; some more protracted space than ‘directly’; such length of time as may fairly, and properly, and reasonably be allowed or re­quired, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.”

76. Refund earnest money:

Admittedly, since the notification under Section 4(1) of the Land Acquisition Act was already published, the ques­tion arises whether the appellant could get a sale-deed executed and in its absence whether he is entitled to obtain refund of earnest money paid under the agreement. On publication of notification under Section 4(1) of the Act, though it is not conclusive till declaration under Section 6 was published the owner of the land is interdicted to deal with the land as a free agent and to create encumbrances thereon or to deal with the land in any manner detrimental for public purpose.

Therefore, though notification un­der Section 4(1) is not conclusive, the owner of land is prevented from encumbering the land in that such encumbrance does not bind the Govern­ment. If ultimately, declaration under Section 6 is published and acquisi­tion is proceeded with, it would be conclusive evidence of public purpose and the Government is entitled to have the land acquired and take posses­sion free from all encumbrances. Any sale transaction or encumbrances created by the owner after the publication of notification under Section 4 (1) would, therefore, be void and does not bind the State.

In this case, declaration under Section 6 was published and so it was conclusive of public purpose and the land was acquired. The contract was, therefore, frustrated. Since one of the terms of the contract is to return the earnest money, in the event of acquisition being made by the State, the vendee-appellant is entitled under Section 33 of the Contract Act, as rightly and legally held by the Trial Court to seek refund of the earnest money.

77. Refund to grant a decree for specific performance of contract:

There is no iota of legal evidence on the record to prove that original plaintiff was always ready and willing to perform her part of the contract till the date of the institution of the suit. Viewed thus the learned Courts below have rightly refused to grant a decree of specific performance of contract in the facts and circumstances of this case.

78. Refusal of:

While the prayer for specific performance is refused, there will be a decree for payment of the mortgage money which really was intended to be a mode of application and appropriation of the sale price and was, in that sense, a part of the same transaction. It is appropriate that the petitioner should not be driven to separate suit to enforce the obliga­tions which must, in the circumstances of this case, be held to be a part of the same transaction.

Court, accordingly, direct that while there be a de­cree of dismissal of the suit for specific performance, there should how­ever, be a decree for the repayment of the monies paid on the assignment of the mortgage together with accrued interest thereon.

In this case, as the money so laid out is on mortgage the relief must take the form of a prelimi­nary decree for sale on mortgage with two years’ time to the respondents to deposit in the trial Court the mortgage money and accrued interest till date of deposit.

If the mortgage amount is not deposited within two years from today, the petitioner shall be entitled to seek a final decree to be made in the same suit in the trial Court, in furtherance of the preliminary decree we have now directed to be drawn up in the suit.

79. Renewal of lease:

So far as the cross suit for specific performance of agreement of renewal of lease filed by the lessee is concurrent, there are concurrent findings of all the Courts that the option for renewal was exer­cised after the expiry of the lease period. The option for renewal exercised was, therefore, contrary to terms of Clause (9) of the lease agreement. The clauses of renewal requiring fixation of terms and conditions for renewed period of lease mutually or in the alternative through village Mukhia and Panchas are uncertain and incapable of specific performance. After legal notice of renewal, the lessor did not send any positive reply and instead filed a suit for ejectment, therefore, there was no mutual consent for re­newal. The forum agreed to for deciding dispute was through local Mukhia and Panchas of the village. The renewal clauses of the agreement were vague and incapable of specific performance. The Mukhia and Panchas were not named in the agreement and the method of choosing either of the two forums was not specified.

The cross suit filed by the lessor for specific performance of the agree­ment of renewal was rightly dismissed throughout. The original period of lease expired on 19.7.1977 and the suit for ejectment on the ground of expiry of the lease was filed on 16.6.1978 which was well within the period of limitation and rightly decreed.

80. Requirement:

The readiness and willingness to perform contract has to be examined on the basis of entire facts and circumstances relevant to intention and conduct of plaintiff. Since, no straitjacket formula can be spelled out in this regard hence, pith and substance of pleadings is the relevant guideline because plaint is drafted by Counsel which differs from Counsel to Counsel. There can be no mathematical formula for it. Pleading in regard need not conform to forms 47 and 48 of First Schedule of Code.

A Court may not, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks.

There is, therefore no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16 (c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit.

Section 16 (c) of the Specific Relief Act, 1963 does not require any specific phraseology but the plaintiff must aver that he has performed or has always been ready and continues to be willing to perform his part of the contract and to insist on mechanical reproduction of the exact words of a statute would be to insist on the form rather than the essence. It is also no doubt true that the principle that readiness and willingness should be pleaded and proved cannot be treated as a straight-jacket formula, but it is to be determined from the entirety of the facts and circumstances the intention and also the conduct of the party concerned.

81. Right to lead:

In the matter of enforcement of the agreement or agreement of reconveyance, time is not always the essence of the contract unless the agreement specifically stipulates and there are special facts and circumstances in support thereof. It must be specifically pleaded and issue raised so that the other party has a right to lead evidence.

82. Specific averment:

Mr. Parekh relied on an order of a learned Single Judge of the Court dated 6-11-2006 in Appeal from Order No. 1109 of 2005, Shri Gaurishankar Goverdhandas Todi vs. M/s Evershine Homes Pvt. Ltd. and Anr. and in particular to the following observations in para­graph 4 thereof:—

“In order to get an injunction, the respondent No. 1 must plead and show that requirements of section 16(c) of the Specific Relief Act are complied i.e. he is and always was ready and willing to perform his part of the contract i.e. to pay Rs. 9 crores. Learned counsel for the respondent No. 1 was unable to point out specific averment made in the plaint about his readiness and willingness to perform his part of the agreement. He however submitted that in the applica­tion for interim injunction the respondent No. 1 has made an averment of his readiness and willingness and if necessary such an averment would be made in the plaint by an amendment. In order to show his readiness and willingness, respondent No. 1 should be required to deposit in this Court the entire amount of the consi­deration. That is also necessary to protect the interest of the appel­lant against any loss of arising out of any fall in the price of the property as well as loss of interest. In my view, the injunction should have been conditional upon such deposit of the amount in the Court.

I do not read the judgment as laying down any general proposition as contended on behalf of the defendants. The order was passed in the facts and circumstances of that case. It is pertinent to note that in that case readiness and willingness, the pleading and proof whereof is a mandatory requirement under section 16(c) of the Specific Relief Act, was not even pleaded in the plaint.’

83. Specific performance:

The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a per­sonal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be de­nied the relief.

Section 16 (c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract.

In the suit for specific performance the Court was not concerned with whether any consideration had been paid under the original sale-deed ex­ecuted by the appellant in favour of the respondent.

It was only that one averment required in law to be made in a plaint in a suit for specific performance in view of the provisions of subsection (c) of Section 16 of the Specific Relief Act was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing an injustice to the respondent on that ac­count arose. Thus the learned Judge was in error in rejecting the amend­ment application of the appellant.

Obtaining a decree and acquiring the ‘status as a co-owner during pen­dency of a suit for specific performance, was not obtaining, by assignment or creation or by devolution of an interest. The respondent was neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit so as to render an effective and complete adjudication of the dispute invoked in the suit. Therefore, Order XXII, Rule 10, C.P.C., has no applica­tion to the case.

84. Specific performance of agreement to sell:

The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his con­duct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.

Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract.

The trial Court and the first appellate Court recorded categorical find­ings that there was prohibition on the registration of the sale deed at the relevant point of time and, therefore, only agreement of sale was executed. Interestingly the High Court found that the decree passed was not execut­able as the defendant No. 1 had died and the legal heirs were not brought on record.

There was no issue framed in that regard and even no question of law was formulated in the second appeal. The trial Court and the first appellate Court recorded findings of fact that there was collusion between defendant No. 1 and defendant Hos. 2 & 3. That being so factual findings were recorded that the defendant Hos. 2 and 3 had knowledge about the agreement with the plaintiff.

85. Specific performance of contract:

Where the original agreement had a “fixed date” for performance, but by the subsequent letter the defen­dants made a request for postponing the performance to a future date with­out fixing any further date for performance. This was accepted by the plain­tiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Indian Contract Act, 1872 provides that every promisee may extend time for the performance of the contract. Such an agreement to extend need not neces­sarily be reduced to writing, but may be proved by oral evidence or in some cases, even by evidence of conduct including forbearance on the part of the other party.

Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of the plaintiffs. What was originally covered by the first part of Article 54, now fell within the purview of the second part of the Article.

The plaintiffs realised that there was a refusal to performance, when they were forcibly evicted from the godown. It is only then that the plaintiffs had notice of refusal of performance. Counted from this date, the suit was filed within 15 days, and, therefore, was perfectly within the period of limi­tation.

Basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plain they should not be denied the relief.

Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract.

No question was even formulated regarding the correctness or other­wise of the findings of facts recorded by the trial Court. The High Court has also not discussed as to in what way the requirement of Section 16(c) re­garding the proof of readiness and willingness of the plaintiff to perform his part of the contract was fulfilled.

Therefore, the judgment of the High Court suffers from serious infir­mities it suffers from the vice of exercise of jurisdiction which did not vest in the High Court under the law. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves re-appreciation of evidence.

High Court has not even discussed any evidence. No basic finding of fact recorded by the Courts below has been reversed much less any ‘reason assigned for taking a view contrary to that taken by the Courts below. The finding on the question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset. It is statutorily provided by Section 16(l) (c) of the Act that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has been prevented or waived by the defendant.

86. Specific performance—Decree for:

A person seeking specific per­formance of the contact must file a suit wherein he must aver and prove that he has performed or has been ready and willing to perform the essen­tial terms of the contract which are to be performed by him.

87. Sustainability of:

Finding recorded by High Court on question whether or not time was essence of contract without considering law laid down by Supreme Court not sustainable.

In the instant case the terms of contract were that plaintiff should pay part of consideration within a specified payment. Such payment not made within that time. Requirement of Section 16 (c) thus not complied with. Therefore, decree for specific performance cannot be allowed to stand.

Where in a suit for specific performance of agreement the question was whether time is essence of contract or not and the High Court recorded finding without considering the law laid down by Constitution Bench of the Supreme Court in Chand Rani v. Kamal Rani, AIR 1993 SC 1742, the finding cannot be sustained.

88. Unwillingness:

The clause relating to payment of various amounts under the contract including the sum of Rs. 4 lakhs states that the time is of the essence. Moreover, the appellant has made payment of Rs. 4 lakhs within a period of seven days from the date of notice, of the essence of the contract pointing out that the circumstances which require payment of Rs. 4 lakhs within a reasonable time. As the respondent did not comply and was unwilling and/ or unable to comply with this term of the agreement, he cannot be considered as ready and willing to perform his part of the con­tract.

In the present .case, the right of the appellant to purchase suitable residential accommodation is seriously affected by non-payment of Rs. 4 lakhs within a reasonable time. The respondent had failed to comply with the term of the agreement relating to payment of this amount. In these circumstances, in any case, a decree for specific performance cannot be granted as it would be unfair and unreasonable to do so. The High Court, therefore, was not right in setting aside the judgment and order of the Trial Court.

89. Valid and enforceable contract:

Suit for specific performance of contract not to be decreed unless there exists a valid and enforceable con­tract between the parties.

90. Validity of:

In sale of immovable property, purchase price was presented by Bank Draft instead of cash payment which would be legal tender hence refusal to accept Bank Draft amounts to breach of essential terms of contract by seller. Therefore, payment by Bank Draft was held valid.

91. Variation of rent:

The variation of rent reserved by a registered lease-deed must be made by another registered instrument.

92. Willingness:

Averments made by plaintiff about his willingness and readiness to perform his part in plaint and deposited balance amount of consideration on his part to be paid to defendant but failed to pay proper Court-fees. Court could not validly draw inference about incapacity of plain­tiff to pay balance consideration to defendant and refuse specific perfor­mance sought by plaintiff.

It is incumbent upon the plaintiff both to aver and prove that he had all along ready and willing to perform the essential terms of contract which were required to be performed by him.

The averment of readiness and willingness must continue upto the date of decree. In the absence of such an averment the cause of action for claiming specific performance is not there.

The subsequent purchasers have got only the right to defend their pur­chase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consid­eration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal repre­sentatives, but not to the subsequent purchasers. The High Court, there­fore, was right in rejecting the petitioners’ contention and rightly did not accept the plea.

The Supreme Court on aspects of readiness and willingness to perform contract observed as follows:

“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be property scrutinised

Their Lordships further observed:

“The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and willing to perform his part of contract.”

93. Withdrawal of suit:

Where condition regarding withdrawal of the suit was a condition precedent therefore, when the appellants did not with­draw the suit, they could not be said to be ready and willing to perform their part of the agreement.

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