This appeal is directed against the Judgment and decree passed by the lower Court in O.S.No.254 of 1991 dated 17.08.1993 on the file of the Subordinate Judge, Tirupattur, North Arcot, Ambedkar District.
2.The plaintiff/R1 herein filed her plaint which would run thus:-
Originally, the suit property is a self acquired property by the first defendant. The plaintiff and the first defendant entered into an sale agreement dated 25.06.1990 for a sum of Rs.39,500/-. As per the said agreement, the first defendant received a sum of Rs.15,000/- as advance from the plaintiff and agreed to get the remaining amount of Rs.24,500/-. The first defendant agreed to vacate the tenant in the schedule mentioned property within a period of one year but he did not perform his part of the contract and therefore, the plaintiff approached the first defendant several times to return the advance amount. The second defendant had knowing fully well about the agreement existing in between the plaintiff and the first defendant purchased the schedule mentioned property and he cannot be considered as a bonafide purchaser for the value. The plaintiff was waiting for the first defendant to come and execute the sale deed on 02.09.1991 at the Sub Registrar Office and she had caused notice earlier during the last week of August 1991 to come and execute the sale deed but the first defendant had purposely even without vacating the tenant from the schedule mentioned property executed the sale deed in favour of the second defendant. Hence, she filed a suit against the defendants in O.S.No. 254 of 1991 for specific performance of agreement entered into between the Plaintiff and the first defendant on 25.06.1990 agreeing to sell the schedule mentioned property in favour of the first defendant for a sum of Rs.39,500/-.
3.The first defendant filed his written statement, which would run thus:-
It is true that the first defendant offered to sell the suit property and entered into an agreement. He offered to dispose of the property in order to meet certain urgent family necessities and to discharge certain debts as well as to arrange for his daughter's marriage. The plaintiff agreed to pay the balance within a year from the date of agreement. When he insisted upon the plaintiff to pay the balance and get the sale deed registered, she was not in a position to pay the balance and get the sale deed registered and she expressed her inability to pay the balance and get the sale deed registered. Therefore, he entered into an agreement with the second defendant in order to secure money to meet his urgent requirements. The plaintiff has lost all her rights under the agreement and also she forfeited the advance amount under the terms of agreement. She has never been ready and willing to perform her part of obligations under the agreement. Therefore the plaintiff is not entitled to specific performance of contract and the suit is vexatious.
4.The second defendant had filed his written statement, which would run as follows:-
The suit is not maintainable either in law or on facts. When the first defendant insisted upon the plaintiff to pay the balance of consideration as he was in urgent need of money to discharge certain family debts, she expressed her inability to pay the balance and she has given up her right under the agreement. He is a bonafide purchaser of the property for valuable consideration. The plaintiff did not perform her part of obligations under the agreement. The second defendant purchased the property only after the plaintiff relinquished her rights under the agreement. Therefore, the suit is liable to be dismissed.
5. The lower court after considering the submissions made by either side decreed the suit and directed the plaintiff to pay the balance of consideration within one week and directed the defendants 1 and 2 to execute the sale deed to the plaintiff within 3 months. Aggrieved against the said order, the second defendant approached this court and filed the present appeal.
6. The lower Court had considered the evidence of P.W.1 the Plaintiff, D.W.1 (the first defendant), D.W.2 (the second defendant) and D.W.3 (the third defendant) and also considered the documents produced by the plaintiff in Exs.A1 to A4 and Ex.C1 the Commissioner's report and Ex.C2 the sketch had come to the conclusion of decreeing the suit in favour of the plaintiff. The suit was filed by the plaintiff for specific performance of agreement entered into between the Plaintiff and the first defendant on 25.06.1990 agreeing to sell the schedule mentioned property in favour of the first defendant for a sum of Rs.39,500/-.
7. The lower Court had framed seven issues which are as follows and had accepted the case of the plaintiff and decreed the suit:-
" i) Whether the Plaintiff and the first Defendant jointly entered into the sale agreement dated 25.06.1990?
ii)Whether the plaintiff is entitled for specific performance?
iii) Whether the plaintiff had lost all her rights as per agreement?
iv) Whether the plaintiff had right to receive the advance amount?
v) Whether the case is maintainable?
vi) Whether the second defendant was a bonafide purchaser for value?
vii) To what other reliefs the plaintiff is entitled to?
8. On a careful perusal of the pleadings submitted by both the parties and the evidence adduced on either side and the Judgment and decree of the lower Court and the grounds raised in the appeal memo, I am of the opinion that the following points are necessary for the purpose of dismissal of this appeal:-
i)Whether the Plaintiff was all along ready and willing on his part to perform his part of the contract dated 25.06.1990?
ii) Whether the suit filed by the Plaintiff is liable to be dismissed for want of pleadings and proof in respect of readiness and willingness on the part of the plaintiff?
iii) Whether the appellant/second defendant was a bonafide purchaser for value and to what relief the parties are entitled to?
iv)To what relief the appellant is entitled to?
9. Heard Mr.A.K.Kumarasamy learned counsel for the appellant/Second Defendant and Mr.J.Saravanavel, learned counsel for the first respondent/Plaintiff.
10. The learned counsel for the appellant/D2 would submit in his arguments that the second defendant was a bonafide purchaser for value and he had purchased the property from the first defendant only on the assurance given by the plaintiff that she was not going to buy the schedule mentioned property from the first defendant and therefore, he purchased the said property from the first defendant. He would further submit in his arguments that the Plaintiff was not all along ready and willing on her part to purchase the property from the first defendant as per agreement of sale dated 25.06.1990 entered into between them. He would further submit that the Plaintiff did not plead that she was all along ready and willing to perform her part of contract by paying the remaining sum of Rs.24,500/- payable to the first defendant and get the sale deed executed from him and the said readiness and willingness should have also been proved congently by the plaintiff but she had miserably failed to plead and prove the sale. He would also submit that since the plaintiff was not willing to buy the schedule mentioned property from the first defendant as the first defendant was badly in need of money. He would also submit that there was talk of compromise in between the parties to return the advance received by the first defendant from the plaintiff and since the plaintiff was demanding enormous interest on the said amount, it could not be concluded. He would draw the attention of the Court to various decisions of our Supreme Court reported in
i)(1995) 5 SCC 115, N.P.THIRUGANANAM (DIED) V. DR.R.JAGAN MOHAN AND OTHERS
ii)(2000) 2 SCC 428, RAM AWADH V. ACHHAIBAR DUBEY
iii) (2002) 9 SCC 582, PUSHPARANI S.SUNDARAM V. PAULINE MANOMANI JAMES
iv) (2003) 10 SCC 390, MANJUNATH ANANDAPPA V. TAMMANASA
v) (2004) 7 SCC 251, PUKHRAJ D.JAIN AND OHTERS V.
G.GOPALAKRISHNA
vi) (2004) 8 SCC 689, SWARNAM RAMACHANDRAN (SMT) AND ANOTHER V. ARAVACODE CHAKUNGAL JAYAPALAN, to the Principle that the readiness and willingness on the part of the plaintiff should have been pleaded and proved as per the mandatory requirement envisaged in
Section 16(c) of the Specific Relief Act. He would also submit that the lower Court had not considered the said point and miserably failed to dismiss the relief of specific performance and to award the return of the advance amount to the plaintiff. He would also submit that the plaintiff did not even constructively plead the readiness and willingness to perform his part of the contract in the plaint nor did the plaintiff prove the same by way of adducing evidence. Therefore, the case of the plaintiff that he was ready and willing to perform his part of contract cannot be accepted and the relief of the specific performance ought to have been refused. He would therefore request the Court to allow the appeal and to pass suitable orders in the circumstances of the case to return the advance money, only.
11.The learned counsel for the first respondent/Plaintiff would submit in his arguments that the Plaintiff had proved her readiness and willingness to perform her part of the contract by adducing cogent evidence and was throughout ready to pay the said balance amount of Rs.24,500/- to the first defendant but it was the first defendant who had agreed to vacate the tenant in the schedule mentioned property within a period of one year who did not perform his part of the contract and therefore, the claim of the appellant/second defendant cannot be acceded to. He would also submit that the second defendant had knowing fully well about the agreement existing in between the plaintiff and the first defendant, purchased the schedule mentioned property and he cannot be considered as a bonafide purchaser for the value. He would further submit that the plaintiff was waiting for the first defendant to come and execute the sale deed on 02.09.1991 at the Sub Registrar Office and it could be proved by her attestation made in Ex.A4 registered mortgage in between the third parties on that date and she had caused notice earlier during the last week of August 1991 demanding the first defendant to come and execute the sale deed but the first defendant had wantonly, even without vacating the tenant from the schedule mentioned property, executed the sale deed in favour of the second defendant. The plaintiff had averred her readiness and willingness throughout the plaint and had also spoken to that effect and therefore, the Judgments referred to by the appellant's counsel are not applicable to the present case. He would also refer the judgment of the Hon'ble Supreme Court reported in (2005) 7 SCC 534, (ANIGLASE YOHANNAN V. RAMLATHA AND OTHERS) to the effect that the readiness and willingness which is mandatory to be pleaded in the plaint, when mentioned with essential facts it could be inferred from the averments made in the plaint. He would also submit that the said readiness and willingness was also proved by examining the plaintiff herself. Therefore, there is no infirmity in the judgment passed by the lower court and therefore, the appeal is to be dismissed.
12. I have given anxious thoughts to the arguments advanced on either side. The points 1 and 2 which are to be decided in this appeal could be disposed together. The admitted case of both sides are that the plaintiff and the first defendant had entered into an agreement of sale on 25.06.1990 in respect of the suit property that the first defendant agreeing to sell to the plaintiff for a sum of Rs.39,500/- and had received a sum of Rs.15,000/- as advance on that day and to pay the remaining sum of Rs.24,500/- at the time of registering the sale deed and the tenant who was in occupation of the said property should be vacated within a period of one year and the plaintiff had to pay the remaining sum of Rs.24,500/- and to get the sale deed registered. The said sale agreement was produced by the Plaintiff as Ex.A1. It would go to show that the period for execution of the sale deed has been mentioned as follows:-
" kPjp U:gha;fs; 24.500 ,Ugj;jp ehd;fhapuj;J IE}W) fpua gj;jpuk; vGjp hp$p!;jh; bra;a[k;nghJ (mjhtJ ,e;j brhj;jpy; thliff;F FoapUe;JtUk; egh; fhyp bra;J vd; RthjPdk; tpl;l cld; mjhtJ xU tUr fhyj;jpw;Fs; ) bgw;Wbfhs;Stjhf xd;W ,yf;fkpl;lth; rk;kjpj;Js;shh;/"
13. Therefore, we could understand that the tenant was to be vacated and the payment of Rs.24,500/- to be made at the tune of registration within a period of one year as fixed by the parties in the said agreement. It was argued on the side of the appellant that the lower court had wrongly come to the conclusion that the period of one year would start only after the tenant vacating the schedule mentioned property. We could see through the evidence adduced on either side that notice calling the first defendant to execute the sale deed was caused by the plaintiff on 22.08.1991 in Ex.A2. In the said notice, the Plaintiff had demanded the execution of the sale deed from the first defendant after receiving the sum of Rs.24,500/- from her as he had not vacated the tenant within a period of one year. There is no dispute regarding the fact that the suit property was subsequently sold by the first defendant in favour of the second defendant on 02.09.1991 and the tenant was not vacated till such time and the tenant was subsequently vacated by the second defendant himself. The evidence of the plaintiff as well as the second defendant would amply prove the same. Therefore, it is not correct to say that the one year period has been fixed in between the parties only after the first defendant vacating the tenant from the suit property. It is evident from the evidence of the plaintiff that she was waiting in the Sub Registrar Office to get the sale deed executed even without the first defendant vacating the tenant. All these circumstances would go to show that the period fixed in between the parties for execution of sale deed, was one year from the date of agreement i.e., 25.06.1990 and within the said time, the first defendant should vacate the tenant from the suit property and get the sale deed executed after paying money. Therefore, the sale deed should have been got executed in between the parties within a period of one year notwithstanding that the tenant vacating the suit property. However, the time fixed in between the parties is not essential part of the contract to claim specific performance before the court of law as the law of limitation permitting the plaintiff to file the suit within 3 years after the lapse of the said one year period calculated from the date of agreement.
14. Now, the point for consideration is whether the plaintiff was all along ready and willing to perform her part of the contract from the date of agreement till the date of filing of the suit. It is patent that the plaintiff has not specifically pleaded that she was always ready and willing to perform her part of contract from the date of agreement till the date of filing of the suit. However, she had spoken in her evidence that she was ready and willing to perform her part of the contract and was waiting at the Sub Registrar Office on 02.09.1991 as mentioned in her notice dated 23.08.1991 (Ex.A2). Whether this will suffice the requirement under
Section 16 (c) of the Specific Relief Act. According to the submissions made by the learned counsel for the plaintiff/first respondent, the plaintiff had pleaded her readiness and willingness with essential facts throughout in the plaint and therefore, there is no necessity of pleading specifically as required under
Section 16 (c) of the Specific Relief Act.
15. Reliance made by the learned counsel for the plaintiff/first respondent in (2005) 7 SCC 534 made in a case between ANIGLASE YOHANNAN V. RAMLATHA AND OTHERS would lead as follows:-
"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."
The said dictum would guide us to the fact that if the plaintiff has pleaded the essential facts as to the readiness and willingness to perform her part of the contract by the plaintiff and had complied with the same that is sufficient statutory requirement of
Section 16 (c) of the Specific Relief Act.
16. Regarding the Judgment cited by the learned counsel for the appellant/second defendant, we could see the principles laid down by all the said judgments are to the effect that the mandatory requirement under
section 16 (c) of the Specific Relief Act is essential in a suit for specific performance. The relevant passage as mentioned in the judgment of our Apex Court reported in (2003) 10 SCC 390, MANJUNATH ARANTHAPPA VS. TAMMANASA, paragraph No.27 would run as follows:-
"27. The decisions of this Court, therefore, leave no manner of doubt that 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 by the plaintiff as a 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."
As per the aforesaid judgment, the pleading and proof as per
Section 16 (c) of the Specific Relief Act is essential and in certain exceptional cases, it can be culled out from reading the whole averment in the plaint and the evidence adduced by the plaintiff for the purpose of complying with the requirement of
Section 16 (c) of the Specific Relief Act. Now, we have to see whether the plaintiff had complied with
Section 16 (c) of the Specific Relief Act as per the dictum of our Apex Court. The plaintiff was examined as P.W.1. She had spoken in her evidence that she had paid a sum of Rs.15,000/- as advance on the date of agreement of sale i.e., on 25.06.1990 and the balance amount of Rs.24,500/- have been paid on the date of registration of the sale deed and the first defendant had agreed to vacate the tenant within a period of one year and on vacating the tenant, the balance amount should have been paid and the sale deed should have been executed. She would also speak that the first defendant did not vacate the tenant and had also not agreed to execute the sale deed even without vacating the tenant. She also issued notice Ex.A2 after sending the fact that the first defendant had planned to sell the property to the second defendant and she was waiting at the Sub Registrar's Office with money and the first defendant did not execute the sale deed in her favour but sold the property in favour of the second defendant on the same date. She was telling that she was having the balance amount from the date of agreement. So far as the plaint averments are concerned, she would aver in paragraph No.5 that she was ready with Rs.24,500/- and approached the first defendant on several occasions but he did not execute the sale deed in her favour but sold the property in favour of the second defendant. It is also admitted by the plaintiff that the first defendant had replied on 31.08.1991 which is marked as Ex.A3. Ex.A3 would go to show that the plaintiff was not in a position to pay the balance amount and get the sale deed registered and she also expressed her inability to pay the balance and get the sale deed registered. When it has been contended by the first defendant that he was not able to pay the balance sum of Rs.24,900/-, the plaintiff ought to have evidenced her ability to pay the said amount either by depositing the said amount in her account on the said date of sale viz., 02.09.1991 or by taking a demand draft in favour of the first defendant. It is also admitted by P.W.1 that she was present at Sub Registrar Office on Ambur on 02.09.1991 but she had not purchased any stamp papers for the purpose of preparing the sale deed. It is an admitted fact that the plaintiff should bear the cost, get the sale deed registered. Ex.A4 is the mortgage deed in between the third parties in which the plaintiff attested on 02.09.1991. The said document is produced by the plaintiff to show her presence at the Sub Registrar Office Ambur on 02.09.1991. The plaintiff was also witnessing the execution of the sale deed by the first defendant in favour of the second defendant could at least file her objection before the Sub Registrar protesting to register the sale deed in favour of the second defendant. She did not do so. It was also an admission made by the plaintiff in her evidence that she had not issued any notice to the first defendant within a period of one year that she was ready with balance money to get the sale deed registered. She had also accepted in her evidence that she had issued notice only after knowing that the first defendant had proposed to sell the suit property in favour of the second defendant. She had also admitted that the second defendant inspected the suit property before purchase. These evidence of the plaintiff and her demand made thereon would go to show that she was not ready with balance money of Rs.24,900/- during the period of one year fixed in between the parties for execution of the sale deed and even thereafter. The pleading and the evidence of the plaintiff are varied in these aspect. Apart from that, the plaintiff in order to show her readiness and willingness should have made her objections by producing the agreement before the Sub Registrar in order to show her presence instead of attesting other persons documents. As per evidence, the first defendant was said to have badly in need of money. If really the plaintiff was ready to pay the balance amount on 02.09.1991, he would have executed the sale deed in favour of the plaintiff herself but he was not paid with the balance money of Rs.24,900/- by the plaintiff and therefore, the agreement entered into between the plaintiff and the first defendant was not honoured. The omission to have the stamp papers ready on hand for the execution of sale deed and the failure to show that she was possessed money in hand on that day i.e., on 02.09.1991 would go long way to show that she was not ready even on 02.09.1991 to which date she had called the first defendant to execute the sale deed in her favour. Therefore, this case cannot be considered as an exceptional case in which the readiness and willingness were constructively pleaded and proved. Therefore there is no otherway except to find that the plaintiff had miserably failed to comply with the requirement as mentioned under
Section 16 (c) of the Specific Relief Act. Accordingly it cannot be considered as an exceptional case as referred in the Judgment of the Apex Court viz., (2003) 10 SCC 390 (MANJUNATH ANANDAPPA V. TAMMANASA), to exempt from pleading and proving specifically under
Section 16 (c) of the Specific Relief Act. Therefore, the plaintiff is found failed to show her readiness and willingness to perform her part of the contract as per the agreement dated 25.06.1990. It is also found that the plaintiff did not comply with the requirements of
Section 16 (c) of the Specific Relief Act by failing to aver and prove the readiness and willingness on her part as per its requirement.
17. As regards the claim of the second defendant/appellant that he was the bonafide purchaser for value is concerned, the evidence would go to show that he knew about the earlier agreement and on the consent of the plaintiff only, he had purchased the property from the first defendant. He had purchased the property on 02.09.1991 from the first defendant knowing full well that the agreement for sale Ex.A1 was in existence in between the plaintiff and the first defendant. Except the oral evidence that the plaintiff was a consenting party to the said sale deed in between D1 and D2 no document produced to show the consent of the plaintiff. The documents produced by the plaintiff in Ex.A2 and Ex.A3 would go to show that there was some dispute in execution of sale deed in between the plaintiff and the first defendant. We have already found that the plaintiff was not ready with money to get the sale deed registered in her favour on 02.09.1991 as mentioned in Ex.A2 and Ex.A3. The plaintiff had lost her right to get the sale deed executed as she was not ready and willing to perform her part of the contract, the sale deed executed by the first defendant in favour of the second defendant could be valid otherwise, but not as a bonafide purchaser.
18. Admittedly, the plaintiff had paid a sum of Rs.15,000/- to the first defendant as advance on 25.06.1990. The said amount was admittedly with the first defendant from the date of agreement. It has been found that the plaintiff is not entitled for specific performance of the contract. Therefore, it has become obligatory on the part of the first defendant to return the said amount to the plaintiff. However, the lower court had decreed the suit for specific performance and therefore, it had not passed any order regarding the advance amount. Since the decree passed in favour of the plaintiff is found not sustainable and set aside by it has become necessary for this Court to pass an order of refund of the said amount of Rs.15,000/- by the first defendant to the plaintiff with subsequent interest. Since the said amount was payable on the date of sale in favour of the second defendant executed by the first defendant, the said amount with accrued interest shall be paid by the first defendant with a charge created over the suit property. Therefore, the plaintiff is entitled to have the refund of advance of Rs.15,000/- with interest at 9% p.a. on and from 02.09.1991 till the date of decree and thereafter, with subsequent interest. The suit property shall be held as charge for the due payment of the decree amount. These points are decided accordingly.
19. Point No.3:- For the foregoing discussions, the appeal is allowed and the decree for specific performance passed by the lower Court is set aside and consequently, the decree for payment for a sum of Rs.15,000/- with interest at 9% p.a. from 02.09.1991 till the date of decree and thereafter with subsequent interest on Rs.15,000/- shall be paid by the first defendant to the plaintiff with proportionate cost in the suit. In the circumstances, there is no order as to cost in the appeal.
20. In fine, the appeal is allowed and the decree for specific performance passed by the learned Subordinate Judge, Tirupattur in O.S.No.254 of 1991 is set aside and consequently, the decree for payment for a sum of Rs.15,000/- with interest at 9% p.a. from 02.09.1991 till the date of decree and thereafter with subsequent interest on Rs.15,000/- shall be paid by the first defendant to the plaintiff with proportionate cost in the suit. In the circumstances, there is no order as to cost in the appeal.
06.01.2009 Index :Yes/No Internet :Yes/No vri To The Subordinate Judge, Tirupattur, North Arcot Ambedkar District.
V.PERIYA KARUPPIAH,J.
Vri PRE DELIVERY JUDGMENT IN A.S.Nos.867 of 1993 06.01.2009 PRE DELIVERY JUDGMENT MADE IN A.S.Nos.867 of 1993 TO THE HONOURABLE MR.JUSTICE V.PERIYAKARUPPIAH Most Respectfully submitted by (V.RAJESWARI) P.A. To Honble Judges