w w w . L a w y e r S e r v i c e s . i n



Deepak Kapoor & Another v/s Satish Chandra Mathur & Others

    First Appeal No. 126 of 2015

    Decided On, 13 October 2020

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE LOK PAL SINGH

    For the Appellants: Piyush Garg, Advocate. For the Respondents: Yashpal Singh holding brief of Neeraj Garg, Ranjan Ghildiyal, Rajeshwar Singh, Kishore Rai, Advocates.



Judgment Text

1. Present First Appeal has been preferred by the appellants challenging the judgment and decree dated 31.08.2015, passed by Addl. District Judge 7th, Dehradun in O.S. no. 452 of 1994, Deepak Kapoor and another Vs Satish Chandra Mathur and others, whereby the trial court has dismissed the suit for the relief of specific performance of contract and passed a decree for refund of money amounting to Rs. 1,57,000/- along with interest at the rate of 6 per cent per annum thereon, which was paid by the plaintiffs to the defendant no. 1.

2. Facts leading to filing of present appeal are that Defendant no. 1 (respondent no. 1 herein) executed a registered agreement to sell dated 10.07.1991 in favour of the plaintiffs (appellants herein) in respect of land bearing khasra no. 531M, measuring 1456.76 sq. mt., situated at Village Jakhan, Pargana Central Doon, District Dehradun for a total sale consideration of Rs.8,00,000/-. An amount of Rs. 10,000/- was paid as advance. The defendant seller was to obtain permission under the Land Ceiling Act, as also Income Tax Clearance. The sale deed was to be executed by 10.01.1992. Allegedly a sum of Rs.92,000/- was paid to the defendant in the first week of August 1991 and a sum of Rs.55,000/- was paid on 16.08.1991. The time was extended upto 10.08.1992 on the request of the defendant. It is contended that the plaintiff was ever ready and willing to get the sale deed executed but the defendant committed default and failed to obtain the requisite clearances. It is further contended that the defendant assured the plaintiffs that he will hand over the property free from all encumbrances. However, the defendant no. 1, intentionally complicated the dispute with regard to passage of the property so that he may not have to execute the sale deed. It is alleged that the plaintiffs / appellants remained present in the office of the Sub Registrar, Dehadun on 10.01.1992 with sale consideration and amount for other expenses, but the defendant failed to appear and rather sought extension of time for which time was extended upto 10.08.1992. On 10.08.1992 too the plaintiffs remained present in the office of the Sub Registrar with sale consideration and amount for other expenses, but the defendant failed to appear. A notice dated 17.06.1994 was issued to the defendant to get the sale deed executed. The defendant gave no reply to the same. A telegram was sent by the plaintiff to the defendant no. 1 on 03.07.1994 calling upon him to complete all formalities and to execute the sale deed on 06.07.1994. Again on 06.07.1994, plaintiff remained present in the office of the Sub Registrar along with sale consideration, value of stamps and registration fee but the defendant did not turn up.

3. Feeing aggrieved, plaintiffs / appellants instituted suit, being O.S. no. 452 of 1994, Deepak Kapoor & another Vs Satish Chandra Mathur. During pendency of the suit, defendant no. 1 disclosed that he has executed two sale deeds, both dated 01.07.1997, and sold the property in two parts to Smt. Chandani Mathur and Sri Suresh Chandra Mathur. The said subsequent purchasers were impleaded as defendant nos. 2 and 3 in the suit. Defendant nos. 2 and 3 further sold the suit property to defendant nos. 4 and 5 respectively vide sale deed dated 09.07.2001. Defendant no. 4 further sold the property to defendant no. 6 vide sale deed dated 19.12.2003. The said defendants were impleaded in the suit and consequential amendments were made in the plaint.

4. Defendant no. 1 filed his written statement and admitted the agreement. However, he denied subsequent receipt of amount and claimed his signatures to be forged on the receipts. It was stated that defendant no. 1 was not in India specifically in May, June, July and August 1991. The plaintiffs were informed by the Court vide order dated 01.05.1997 that defendant is residing in U.S.A. It was further averred that plaintiffs suppressed the order dated 01.05.1997 and played fraud upon the court and got issued the registered envelope on the old address and forged the signature of defendant. The contents of paragraph 3 of the plaint were denied as wrong and erroneous. It was stated that plaintiffs have neither paid a sum of Rs.92,000/- to the defendant in the first week of August 1991, nor Rs.55,000/- were paid on 16.08.1991. It was specifically denied that plaintiffs have ever paid a sum of Rs. 1,57,000/- to the defendant. It was stated that defendant has not received any such amount and has not issued any receipt for the same. The fact that plaintiffs were always ready and willing to perform their part of contract by paying the balance consideration and to get execute the sale deed was denied. It was stated that the parties have never extended the original period of contract as there was no occasion for the defendant to have extended the agreement when he was to get the whole sale consideration within six months. It is specifically averred that plaintiffs have no money with them and the defendant no. 1 was in dire need of money, therefore, he agreed to sell the property for an amount of Rs.8,00,000/-. The plaintiffs had only paid Rs. 10,000/- as advance. In so far payment of Rs.92,000/- and Rs.55,000/- is concerned, plaintiffs have not led any evidence to prove these receipts. It was also averred that the plaintiffs are property dealers and are brokers, who got no money with them as they did not want to purchase the property for themselves. They wanted to dupe the defendant by paying him advance of Rs. 10,000/- and thereafter search the prospective buyers and to earn profit out of the deal. Lastly it was stated that the plaintiffs themselves made a prayer for alternative relief, as such, the relief for specific performance of contract is not maintainable.

5. Defendant nos. 2 and 3 filed their written statements and denied most of the averments of the plaints. It was stated that they were purchasers of the property for value and came to know of the said suit for the first time when they received summons from the court after their impleadment as party respondents in the suit. It was specifically stated that the plaintiffs are property dealers and used to buy properties on lower rates and later on in order to earn illegal profit tend to harass the owners of the properties. Defendant nos. 4 and 5 also filed their separate written statements and denied most of the plaint averments and stated that they are bona fide purchasers of the property for value. Defendant no. 6 also filed her separate written statement and stated that she was never aware of the present suit or of any contract between the plaintiff and the defendant no. 1 and had purchased the property fora valuable consideration and thereafter has made substantial investment in development of it and as such no relief can be granted to the plaintiffs affecting the rights of the defendant no. 6.

6. The suit was initially decreed ex parte vide judgment and decree dated 09.08.2005. However, the decree was subsequently recalled and the suit was restored to its original number and heard afresh thereafter.

7. When, defendant nos. 1, 2 and 3 despite filing written statement did not turn up to attend the proceedings, the suit proceeded ex parte against them. Defendant no. 6 Smt. Madhu Tomar was examined as DW1 and defendant no. 5 Sushil Kumar was examined as DW2. None of the other defendants appeared as witnesses. Plaintiff no. 2 Sunil Pandhi examined himself as PW1.

8. In support of their contention, plaintiffs adduced original agreement to sell dated 10.07.1991 (Ext. 12); original receipt of Rs.92,000/-(Ext. 10); original receipt of Rs.55,000/- (Ext. 11); application of plaintiff for attendance dated 10.01.1992 (Ext. 19); receipt of office of Sub Registrar (Ext. 2); application for attendance showing date 10.08.1992 (Ext. 20); receipt of office of Sub Registrar (Ext. 3); application for attendance dated 10.08.1992 (Ext. 21); receipt of office of Sub Registrar (Ext. 4), application for attendance showing date 06.07.1994 (Ext. 22); application for attendance dated 06.07.1994 (Ext. 23); receipt of office of Sub Registrar (Ext. 5); notice of plaintiff dated 17.06.1994 (Ext. 17); receipt of post office dated 17.06.1994; receipt of courier dated 17.06.1994; attested copy of telegram notice of plaintiff dated 03.07.1994 (Ext. 6 to 9); attested copy of order of suit no. 327 / 84 (from list 70 C1); attested copy of order of suit no. 62/85; attested copy of civil appeal no. 25 / 86 suit no. 62/85; attested copy of judgment of civil appeal no. 25/86; Photocopy of sale deed dated 08.05.1980 in favour of defendant (from list 27 C1); bank certificate of defendant nos. 1 and 2 (from list 123 C1); newspaper Amar Ujala dated 27.10.2010 (from list 206 C1) and attested copy of sale deed dated 01.07.1997 (from list 93C1). Sunil Pandhi was examined as PW1.

9. On the basis of pleadings of the parties, the trial court framed following issues:

i) Whether the defendant received an amount of Rs.92,000/- in the first week of August 1991 and an amount of Rs.55,000/- from the plaintiff in respect of agreement to sell entered into between them?

ii) Whether the plaintiffs have always been ready and willing and are still agree to execute the sale deed as per the conditions of agreement to sell?

iii) Whether on 10.07.1991, the defendant executed the agreement to sell in favour of the plaintiff for a consideration of Rs.8,00,000/- and got the same registered?

iv) Whether the defendant was justified in forfeiting the amount of advance paid by the plaintiff?

v) Whether the suit is barred by Sections 18, 20, 14(1) of the Specific Relief Act?

vi) Whether the plaintiff at the time of instituting the suit, mala fidely, did not pay sufficient court fee? If yes, its effect?

vii) Whether the suit filed by the plaintiff is barred?

viii) Whether, the plaintiff is entitled to receive Rs. 1,57,000/- along with interest at the rate of 2 per cent per month thereon from the defendant, in alternative?

ix) Relief?

x) Whether Section 52 of the Transfer of Property Act bars defendant nos. 2 and 3 from purchasing the property during the pendency of the suit? If yes, its effect?

xi) Whether the suit of the plaintiff is barred against defendant no. 6? If yes, its effect?

xii) Whether defendant no. 6 is bona fide purchaser on the basis of valuable consideration?

xiii) Whether the suit instituted by the plaintiff is barred by Sections 31 and 34 of the Specific Relief Act? If yes, its effect?

xiv) Whether the plaintiff has no sufficient cause against defendant nos. 4 and 5? If yes, its effect?

xv) Whether the suit is barred by Sections 208, 209 and 331 of the U.P.Z.A. & L.R. Act? If yes, its effect?

xvi) Whether defendant nos. 4 and 6 are bona fide purchasers? If yes, its effect?

10. The finding on issue no. (i) with regard to payment of subsequent amount to the defendant no. 1 was decided in favour of the plaintiffs. Issues no. (iii), (iv), (v), (vi), (vii), (viii), (xi), (xiii) and (xv) were also decided in favour of the plaintiffs. Issue no. (ii) was decided in favour of the defendant by holding that the plaintiffs have submitted their bank balance statement as on 07.01.2002, but not on the date of proposed execution of sale deed in pursuance of agreement. Issue no. (xii) has also been decided in favour of the defendant holding that the subsequent purchase is not hit by Section 52 of Transfer of Property Act. Issue no. (xiv) was partly decided in favour of plaintiffs. While deciding issue no. (xvi) it was held that defendant nos. 4 and 5 and bonafide purchasers for value. The trial court after recording the findings on the issues as aforesaid and having heard learned counsel for the plaintiffs and defendant nos. 4, 5 and 6, the trial court partly decreed the suit in favour of the plaintiffs (appellants herein) and against defendant no. 1 (respondent no. 1 herein). The suit in respect of rest of the defendants was dismissed. The trial court further directed defendant no. 1 to pay an amount of Rs. 1,57,000/- to the plaintiffs along with interest at the rate of 6% per annum thereon within a period of six months.

11. I have heard learned counsel for the parties and perused the material brought on record.

12. The sole point of determination to be considered by this Court is as under:

Whether the learned trial court erred in law in coming to the conclusion that the plaintiffs were not ready and willing to get the sale deed executed within the time stipulated and had no balance sale consideration to be paid to the defendant no. 1 from the very beginning?

13. Before further discussion it would be apt to reproduce paragraph nos. 12 and 18 of the plaint for the purpose of considering the fact whether the plaintiffs were ready and willing to perform their part of contract. Paragraph nos. 12 & 18 of the plaint, which are in Hindi, are excerpted hereunder followed by their English translation:

"12. That on 17.06.1994, the plaintiffs through their counsel Sri Jitendra Kumar issued a notice to the defendant no. 1 asking him to settle the dispute relating to the pathway expeditiously and thereafter execute the sale deed. Defendant no. 1 did not reply the said notice deliberately."

"18. That a decree of specific performance of contract be passed in favour of the plaintiffs directing the defendant no. 1 to comply with the terms and conditions of the agreement to sell, perform his part of the contract, solve the dispute of pathway over the property, seek permission of under the Ceiling Act, obtain clearance from the Income Tax Department, receive the balance sale consideration from the plaintiffs, execute the registered sale deed as specified in the schedule of property in favour of the plaintiffs and hand over the actual and vacant possession of the property to the plaintiffs."

14. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') speaks about 'personal bars to relief. It stipulates - Specific performance of a contract cannot be enforced in favour of a person -

(a) ......

(b) ......

(c) who fails to 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, other than terms the performance of which has been prevented or waived by the defendant.

15. Learned counsel for the appellants / plaintiffs vehemently argued that the plaintiff did the requisite compliance of Section 16(c) of the Act. He placed reliance on the following judgments in support of his contention:

i) Motilal Jain Vs Ramdasi Devi (Smt) and others, (2000) 6 SCC 420

ii) Guruswamy Nadar Vs P. Lakshmi Ammal (Dead) through LRs, (2008) 5 SCC 796

iii) Madhukar Nivrutti Jagtap & others Vs Smt. Pramilabai Chandulal Parandekar & others, 2019 SCC OnLine SC 1026

16. In the case of Motilal Jain (supra), their Lordships of Hon'ble Apex Court have held in paragraph nos. 7, 9, 10 and 11 as under:

"7. The other contention which found favour with the High Court, is that plaint averments do not show that the plaintiff was ready and willing to perform his part of the contract and at any rate there is no evidence on record to prove it. Mr. Choudhary developed that contention placing reliance on the decision of Ouseph Varghese Vs Joseph Aley, (1969) 2 SCC 539. In that 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 subsequent pleading and it was in that context that this Court pointed out that the pleading in specific performance should confirm to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure. That view was followed in Abdul Khader Rowther Vs P.K. Sara Bai (1989) 4 SCC 313.

9. That decision was relied upon by a three-Judge Bench of this Court in Syed Dastagir case6 wherein it was held that 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 that 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 so clearly indicate the readiness and willingness of the plaintiffs to fulfill his part of the obligation 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.

10. 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.8000 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 PW1 and PW2. 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.8000 to have the property conveyed in his favour.

11. We are not persuaded to accept the contention that the conduct of the plaintiff disentitles him to the relief of specific performance."

17. In view of principle of law laid down by the Hon'ble Apex Court in the Motilal Jain (supra) case it is true that if the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract, even if the averments are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract. But it is equally true that the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form. The readiness and willingness could not be treated as a straitjacket 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 is settled position in law that both the parties are bound to abide with the terms and conditions of the contract as it is and no further condition can be laid. Any condition imposed by the second party that on not satisfying a condition which is not part of the contract, the second party is not willing to perform his part of the contract would certainly lead to the conclusion that the second party is not willing to fulfill his part of the obligation under the contract.

18. In Guruswamy Nadar's (supra) case, Hon'ble Apex Court has held as under:

"9. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on03.05.1975 for specific performance of the agreement and the second sale took place on 05.05.1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section 19 of the Specific Relief Act read with Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale.

13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of the third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person this kind of transaction is to be checked. Otherwise, litigation will never come to an end.

14. Our attention was invited to a decision of this Court in R.K. Mohammed Ubaidullah Vs Hajee C. Abdul Wahab (2000) 6 SCC 402. In this case it was observed that a person who purchased the property should have made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In this case, the plaintiff filed the suit for specific performance of contract and during the pendency of the suit, rest of the defendants brought subsequent transaction of sale by the defendant in their favour claiming the title to the suit property on the ground that they were the bona fide purchasers for value without notice of prior agreements in favour of the plaintiff and they were also aware that the plaintiff was in possession of the suit property as a tenant for last several years and that they did not make any inquiry if the plaintiff had any further or other interest in the suit property on the date of execution of sale deed in their favour apart from that he was in possession of the property as a tenant. In that context Their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and the plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent has to be aware before he purchases the suit property.

17. Similarly, in Jugraj Singh and another Vs Labh Singh and others, (1995) 2 SCC 31, it was also emphasized that the plea that the plaintiff was to prove that he was ready and willing to perform his part of the contract. 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 were not necessary parties to the suit. But in the present case, the second purchaser was a defendant in the suit and this plea was also considered by the learned Single Judge and it found that there was sufficient allegations made in the plaint that the plaintiff was ready and willing to perform her part of the contract. This aspect was dealt with by the learned Single Judge in his order dated 24.07.1990 and the learned Single Judge in para 8 held as follows:

"On the first of these submissions, I find that as against the definite plea in Para 7 of the plaint that the plaintiff has been and is still ready and willing specifically to perform the agreement on her part of which the 1st defendant has had notice. The only plea in the written statement of the 1st defendant is 'the allegation in Para 7 of the plaint that this defendant is aware of the contract is denied as false'. Thus, it is found that there is no denial at all of the plea that the plaintiff was ready and willing to perform her part of the contract. Likewise, the 2nd respondent also has not denied the said plea in his written statement. Further, to the specific averment in Para 5 of the plaint 'by the latter part of July 1974, the plaintiff informed the defendants of her readiness to complete the sale', there is no specific denial at all. There is only a vague and evasive denial by the 1st respondent as follows:

'The allegation contained in Para 5 of the plaint are frivolous and denied.'

Likewise, the 2nd respondent also has not specifically denied the abovesaid averment in the plaint."

Therefore, from this finding it is more than apparent that the plaintiff while filed the suit for specific performance of the contract was ready and willing to perform her part of contract. This argument was though not specifically argued before the Division Bench, the only question which was argued was whether the principle of lis pendens will be applicable or Section 19 of the Specific Relief Act will have overriding effect to which we have already answered. In the present case the principle of lis pendens will be applicable as the second sale has taken place after the filing of the suit. Therefore, the view taken by the Division Bench of the High Court is correct and we do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs.

19. In the case of Madhukar Nivrutti Jagtap (supra), their Lordships of Hon'ble Apex Court have held as under:

"39. When the agreements in question were for the sale of suit property, the plaintiffs were entitled to take up the action seeking specific performance. However, in order to succeed in their claim, the plaintiffs were required to aver and prove that they were always ready and willing to perform their part of the contract. As noticed, the trial court chose not to answer this question in view of its finding on the nature of transaction. The First Appellate Court though adverted to this question but answered the same against the plaintiffs, essentially for the reasons that they had failed to prove if before the stipulated date of execution of sale document, they were ready and willing to get the sale deed executed and there was no explanation as to why supplementary agreement was got executed. On this question, again, the High Court examined the record with reference to the law applicable and disapproved that finding of the First Appellate Court while observing that when as per the first agreement, the sale deed was to be executed by 23.03.1966, there was no occasion for any party to call upon the other for performance before that date. The High Court also found that the plaintiffs issued notice on 05.04.1966, calling upon defendant nos. 1 to 3 to execute the sale deed and, obviously, fresh negotiations were held thereafter and hence, the supplementary agreement was executed. The High Court found the approach of the Appellate Court erroneous and held that the plaintiffs had proved their readiness and willingness to perform their part of the contract.

43. The admission of plaintiff no. 3 that she was not possessed of sufficient funds cannot be read in isolation and it cannot be concluded that she was not possessed of sufficient means to pay the remaining sale consideration. Her statement is required to be visualized in the backdrop of the fact that her husband, plaintiff no. 1, had expired and she had succeeded to his estate. Her statement, with reference to her understanding of the matter, could only be interpreted to mean that at the given moment, she was not off-hand in possession of the money to make payment but such an expression in her statement cannot lead to the conclusion that making payment of the remaining sale consideration was beyond her capacity or that making payment of the remaining sale consideration was beyond her capacity or that she was not willing to perform her part of the contract. In the ultimate analysis, we are satisfied that the question of readiness and willingness on the part of the plaintiffs was approached by the First Appellate Court from an altogether wrong angle and was decided against the plaintiffs on irrelevant considerations.

47. The third question as regards the sale transactions in favour of the present appellants (the subsequent purchasers) need not detain us longer, except to correct an error on the part of High Court where it is observed that such sale deeds are to be treated as illegal.

54. It is noticed that the High Court though proceeded to mould the relief in the manner that specific performance was granted on enhanced sale consideration and it was also directed that if the plaintiffs fail to make payment within two months, the present appellants (subsequent purchasers) would make payment of same amount to the plaintiffs so as to 'confirm their ownership over the suit land'. However, in regard to the crucial aspect of the matter, it appears that the High Court overlooked the other relevant provisions of the Act of 1963 and omitted to examine if the alternative mode of relief would meet the ends of justice.

20. The ratio of the judgments cited by learned counsel for the appellants is not applicable in the facts and circumstances of the present case as the plaintiffs / appellants did not aver and plead that they were always ready and willing to perform their part of the contract. The plaintiffs averred that at the time of execution of agreement to sell only an amount of Rs. 10,000/- was paid as advance to the defendant no. 1. In so far amount of Rs.92,000/- and Rs.55,000/- respectively paid by the plaintiffs to the defendant no. 1 in the first week of August 1991 and on 16.08.1991 is concerned, the plaintiffs have not adduced any evidence to prove these receipts. However, the trial court has considered the fact that the said amount has been paid to the defendant no. 1 without there being any cogent evidence adduced by the plaintiffs. Since the signatures were denied on these receipts by defendant no. 1 and without any supporting evidence that before whom the said amount was paid, the amount could not have been considered to be paid to defendant no. 1, but without there being any evidence, the trial court has recorded the finding that these amount has been paid. Neither any independent evidence nor any expert opinion in regard to the signatures of defendant no. 1 on these receipts, were proved.

21. Per contra, learned senior counsel appearing on behalf of the respondent nos. 4 and 5 placed reliance on the judgment rendered by Hon'ble Apex Court in N.P. Thirugnanam's, (1995) 5 SCC 115, case. Paragraph 5 of said judgment is relevant in the context of present case. The same is excerpted hereunder:

"5. 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 adumbrated 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 a 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 defendants. 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 the relief. If the plaintiff fails to either 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 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."

22. Further reliance has been placed on the judgment rendered by Hon'ble Apex Court in Sukhwinder Singh's, 2020 SCC OnLine SC 86 case. Relevant paragraph of the judgment is excerpted hereunder:

"10. Instead of arriving at an appropriate conclusion on that aspect, the trial court while answering the issues no. 1 and 2 has concluded that the amount of sale consideration has already been paid and the fact that the Civil Suit has been filed by the plaintiff are sufficient to establish that the plaintiff remained ready and willing to perform his part of the contract. On the other hand, it is noticed that what had been paid as on the date of filing the suit was only the earnest money and the balance amount was deposited only on 03.08.2007 after the suit was decreed at the first instance on 14.06.2007 and not as on the date of filing the suit. Hence the concurrent conclusion reached by all the three Courts is an apparent error, the correction of which is necessary. It is no doubt true that as on the date of decision for the second time after restoration, the amount had been deposited which is not the same as having deposited or paid prior to or at the time of filing the suit. Even if the amount had been deposited as on the date of filing the suit, the readiness and willingness with possession of the sale consideration as on 15.06.2004 was necessary to be proved, which has not been done. Hence, in our opinion the Courts below have not appropriately considered this aspect of the matter."

23. On perusal of the averments made in paragraph nos. 12 & 18 of the plaint it depict that the plaintiffs have not averred anywhere that they were always ready and willing to perform their part of contract as per the mandate of Section 16(c) of the Act. The word 'readiness' is missing in the plaint. What has been averred in the plaint is that defendant no. 1 be directed to comply with the terms and conditions of the agreement to sell and resolve the dispute of pathway. There was no condition in the agreement to sell that defendant no. 1 will resolve the dispute of pathway. Thus, the plaintiffs themselves have led a condition beyond the terms and conditions of the agreement to sell.

24. Mr. Rajeshwar Singh, learned counsel for respondent no. 6 vehemently argued that neither the plaintiffs have pleaded that they were always ready and willing to purchase the suit property nor were they having the balance sale consideration with them. Learned counsel further argued that the plaintiffs themselves have admitted in paragraphs 12 and 18 of the plaint that unless the dispute of pathway is resolved they are not ready to purchase the suit property. Suffice to say that the plaintiffs are not ready and willing to purchase the suit property which disentitle them for any relief. It is also argued that in such circumstances the trial court should not have passed the decree of refund of money in favour of the plaintiffs. It is contended that raising such a condition in the plaint itself disentitle the plaintiffs for the relief of specific performance of contract. The plaintiffs could not prove that they were having balance sale consideration with them from t

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he very inception. 25. In the agreement to sell it has been mentioned that, in case, the second party fails to perform his part of contract, the first party will have right to forfeit the earnest money or advance. On perusal of the averments made in paragraph no. 12 of the plaint and having considered the ratio of the judgments cited above, this Court is of the view that the plaintiffs have not averred that they were always ready and willing to perform their part of the contract and were having sufficient sale consideration from the very beginning. In evidence, nothing has been brought on record to suggest that the plaintiffs were having the balance sale consideration with them. While granting the decree of specific performance, the court cannot change the terms and conditions of the agreement. 26. The relief of specific performance is an equitable remedy. The trial court having considered the fact that the plaintiffs failed to prove their readiness and willingness that they were always ready and willing to perform their part of the contract, as also the fact that they does not have sufficient balance sale consideration, instead of granting the decree of specific relief has granted the decree of recovery of money in their favour by moulding the relief. 27. On scrutiny of the pleadings and evidence adduced by the parties, this Court is of the firm view that neither the plaintiffs have pleaded the averment as per the mandate of Section 16(c) of the Act nor has any evidence been led that they were always ready and willing to perform their part of contract or they had balance sale consideration to be paid to defendant no. 1 from the very beginning. Since the plaintiffs only paid Rs. 10,000/- as advance against total sale consideration of Rs.8,00,000/- which is a meager amount. In so far as the balance amount allegedly paid by the plaintiffs is concerned, the plaintiffs have not proved this fact. This Court is the last court on facts & law and is of the firm view that the receipts for an amount of Rs.92,000/- and Rs.55,000/- have not been proved by the plaintiffs. Further, the plaintiffs themselves have put a condition in the plaint beyond the agreement to sell that unless the dispute of pathway is resolved they are not willing to purchase the suit property that is why they have sought an alternative relief of recovery of money which has been granted by the trial court. A person cannot blow hot and cold in a single breath. Since the plaintiffs themselves were not ready and willing to purchase the suit property, they cannot blame that the defendant failed to perform his part of contract. There was a specific clause in the agreement to sell that if the plaintiffs could not get the sale deed executed by paying the balance sale consideration within the time stipulated, the defendant no. 1 would be at liberty to forfeit the earnest money. However, the advance money has not been forfeited by defendant no.1. 28. Plaintiffs have utterly failed to prove by pleading or by adducing evidence that they were always ready and willing to purchase the suit property and they have the balance sale consideration with them. Plaintiffs have imposed a condition in the plaint that the defendant no. 1 has to resolve the dispute of pathway, such condition has been led beyond the terms of agreement, which itself disentitle the plaintiffs for the relief of specific performance of contract, more particularly, when the plaintiffs themselves have prayed for alternative relief of refund of money. The point of determination is answered in negative holding that the trial court did not commit any error of fact or law in dismissing the suit for specific performance of contract and in granting the alternative relief for refund of money. 29. In view of the foregoing discussions, the first appeal is devoid of merit and is liable to be dismissed. The same is hereby dismissed. 30. In the facts and circumstances of the case there will be no order as to costs.
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