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TRINMURTHY CONSTRUCTIONS VERSUS SMT. VIJAYA LAKSHMI GADGIL

    CIVIL 8 Of 1989

    Decided On, 18 August 1992

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE G. RADHAKRISHNA RAO & THE HONOURABLE MR. JUSTICE MOTILAL B. NAIK

    For the Appearing Parties: Anantha Reddy, K.Pratap Reddy, Y.N.Lohita, Advocates.



Judgment Text

G. RADHAKRISHNA RAO, J.


( 1 ) THE plaintiff, M/s. Trimurthy Constructions, represented by its Partner, Omprakash Tibre-wala, is the appellant.


( 2 ) THE plaintiff's suit for specific performance of the contract of sale was dismissed by the Additional Chief Judge, City Civil Court, Hyderabad, by his judgment and decree dated 13/09/1988, passed in O. S. No. 311 of 1983 on his file.


( 3 ) THE case of the plaintiff-firm, in a nutshell, is as follows :-- In the first week of December, 1980 Qmprakashtibrewala, (who is examined as P. W. 1 in the lower Court), as a partner of the plaintiff-firm, approached the defendant, Smt. Vijaya Lakshmi Gadgil, D. W. 1 for the purchase of the plaint schedule property for the purpose of developing it in pursuit of the two objectives of the firm of construction of residential and commercial complexes and selling them. The negotiations were followed till 10-12-1980 on which day the defendant agreed orally to sell the plaint schedule property to the plaintiff-firm, and the plaintiff-firm agreed to purchase the same for a consideration of Rs. 6 lakhs. On the same day the defendant assured the plaintiff that the tenants, who were occupying the portions of the plaint schedule premises, will also vacate the premises within a period of six months. On the same day the defendant also handed over to P. W. 1 true copy of the registered sale deed in respect of the plaint schedule premises, executed in favour of her father-in-law Sri Vinayak Gadgil (which is marked as Ex. A. 2 and the English translated copy is marked as Ex. A. 3), along with a copy of the plan (Ex. A. 4) and a true copy of the gift deed (Ex. A. 5) executed by her father-in-law Vinayak Gadgil in her favour. The original of Ex. A. I sale deed was also attested by the husband of the defendant, who is examined as (D. W. 3 ). P. W. 1 has also paid an advance of Rs. 20,000. 00 to the defendant towards part consideration of the proposed sale. Thereafter, the matter was entrusted to M/s... Associates to survey the schedule premises who carried out the survey in the presence of the defendant during the period commencing from December, 1980 to 3rd week of February, 1981. The plaintiff paid Rs. 2,000. 00 to M/s... Associates, as per Ex. A. 6 receipt, and another sum of Rs. 2,000/ - on 28-7-1981, as per Ex. A, 7 receipt, towards their fee. Thereafter, in the month of May, 1981 a draft sale agreement was prepared and the same was corrected by the defendant's husband (D. W. 3 ). In the meanwhile the plaintiff got prepared plans and submitted the same with the signatures of the defendant and P. W. 1, to the Municipal Authority for sanction of permission for construction and they have also paid a sum of Rs. 2844. 20 to the Municipal Corporation of Hyderabad, as per Ex. A. 11 receipt. As it was expected that the approval of the plans would be secured soon, the defendant and her husband (D. W. 3) suggested that the execution of a formal agreement of sale may be skipped and a regular sale deed could be taken after the plans were approved. As the Municipal Corporation of Hyderabad demanded an unreasonable rate of fee, the plaintiff filed W. P. No. 4438/81 in this Court challenging the legality of the enhanced fee and obtained stay on 6/05/1981. On 9-6-1981 the Municipal Corporation returned the plans with some objections and the plaintiff submitted fresh application. Thereafter, the plaintiff advertised in the news papers about the proposed construction of the residential complex and also invited applications for recruitment of staff required in that connection. The plaintiff also paid Rs. 560. 00 as evidenced by Ex. A. 15 receipt, and another sum of Rs. 265. 00 as evidenced by Ex,a. 16 receipt, for the two advertisements published in Deccan Chronicle on 31-5-1981 and 26-6-1981 respectively. The plaintiff also applied for a telephone connection on 2-6-1981 and deposited a sum of Rs. 1,000. 00 on 4-6-1981 towards application fee as per Ex. A. 28 receipt. As required by the Municipal authority the plaintiff had secured two bank guarantees Exs. X. 6 and X. 7 for a total sum of Rs. 54,953. 80 in favour of the Municipal Corporation to meet the permit fee and drainage fee. The plaintiff also paid Rs. 1670. 67 to the Municipal Corporation towards HUDA fee, as per Ex. A. 19 receipt. Ultimately, on 7-8-1981, the plaintiff obtained sanction of the plans from the Municipal Corporation of Hyderabad and Ex. A. 22 is the plan sanctioned by the Corporation. But, having allowed the plaintiff to do all the above activities, the defendant, while dodging the matter on some pretext or other, finally on 16-8-1981, refused to execute the sale deed. Thereafter the plaintiff got issued a legal notice to the defendant on 24-8-1981, office copy of which is marked as Ex. A -. 23, asking the defendant to execute the sale deed for which the defendant gave a reply dated 16-9-1981 (Ex. A. 25) denying the contract of sale. It is stated by the plaintiff that because of the sky-rocketing of the prices of residential sites in Hyderabad, the defendant had chosen to resile from1 the contract of agreement of sale.


( 4 ) THE case of the defendant briefly is as follows :-- The first objection taken by the defendant is that in the absence of filing of an extract of the plaintiff-firm's registration, P. W. 1 Omprakash Tibrewala is not entitled to act as the authorised agent of the plaintiffs firm and so the plant as presented with the signature of P. W. 1 is not according to law. The defendant denies the correctness of the boundaries given in the plaint and she has given the boundaries in her written statement. The defendant specifically denies that she agreed to sell the plaint schedule property to the plaintiff for a consideration of Rs, 6 lakhs. She also denies that she assured Omprakash Tibrewala (P. W. 1) for eviction of the tenants. There was no occasion for this defendant to give such assurance because neither negotiations were completed nor was any sale price agreed nor any agreement entered into between them. The defendant also denied that P. W. 1 paid Rs. 20,000/-to her as advance. In. A. No. 1505 of 1982, which was filed by the plaintiff, P. W. 1 admitted that the above said payment was in oral and in cash. The defendant told P. W. 1 that she has to construct three houses for her two sons and one daughter by selling a part of the suit schedule property and P. W. 1 may allot flats intended to be constructed in the suit schedule property on a plinth area of 3000 square feet to the defendant at the cost price without expecting any profits. On this suggestion of the defendant, P. W. 1 made a counter suggestion that unless he approached the Municipality with a plan of apartment complex in the suit schedule property and unless the Municipality sanctions the permission for apartment complex, he was unable to accept the suggestion made by the defendant. Therefore, P. W. 1 requested the defendant to sign on the apartment complex plan to be prepared by M/s... Associates and the defendant accordingly agreed to sign the plan. Under those circumstances, P. W. 1 procured the services of M/s... Associates. It has been specifically agreed that if the Municipality was to give sanction according to the Requirement of P. W. 1 then only the negotiations were to be concluded. The defendant is not personally aware of any corrections made by her husband in the alleged draft. The plaintiff failed to supply the copy of the alleged draft agreement in spite of demand through her lawyer-reply notice dated 10-9-1981. However, it is an admitted fact on the part of the plaintiff that there is no concluded contract of sale. In the absence of any concluded contract of sale, there was no question of the plaintiff or his agent signing the plans nor this defendant permitting or authorising its agent to submit the plan under the joint signatures. She denies knowledge about the writ petition filed by the plaintiff. After signing the plan to be submitted to the Municipality she received a lawyer notice dated 24-8-1981 issued from the office of Sri P, Babul Reddy, Advocate and a suitable reply has been given on 10-9-1981. This defendant did not authorise the plaintiff to give advertisements and apply for a telephone connection. The defendant stated that the plaintiff did not comply with the1 demand made by her in her reply notice for supply of documents referred to in the notice issued on behalf of the plaintiff. This defendant denies that there was any agreement of sale, either written or oral, between the plaintiff and the defendant agreeing to sell the plaint schedule property for a total consideration of Rs. 6,00,000. 00 nor has she received any advance of Rs. 20,000. 00. This defendant is not at all liable-to perform any of her alleged obligations. The defendant has stated that the valuation of Rs. 6 lakhs is' imaginary and incorrect. The defendant submits that the plaintiff is not entitled for the equitable and discretionary relief of a specific performance of the alleged oral agreement of sale. The defendant, therefore, requests that the suit has to be dismissed.


( 5 ) ON the above pleadings the lower Court has framed five issue-,. On behalf of the plaintiff P. Ws. 1 to 4 were examined and Exs. A. l to A. 33 were marked and on behalf of the defendant D. Ws. 1 to 3 were examined and Ex. B. 1 was marked. Exs. X. l to X. 10 and Ex. C. 1 were also marked during the examination of witnesses.


( 6 ) THE lower Court gave the following findings on the respective issues : Issue No. 1 :-- Whether the suit agreement is true, valid and binding? Issue No. 4 :-- Whether the plaintiff is entitled to specific performance of the suit agreement? These two issues were discussed together' and on issue No. 1 it was held that the suit agreement is not true, valid and binding on the defendant and on issue No. 4 it was held that the plaintiff is not entitled to specific performance of the suit agreement:-- Issue No, 2 :-- Whether the plaint is properly filed? On this issue the learned Judge found that the plaint is properly filed. Issue No. 3 :-- Whether the suit is properly valued and the Court fee paid is sufficient ? On this issue the learned Judge observed that in the light of the findings on issues Nos. 1 and 4, there is no necessity to consider this issue.


( 7 ) ULTIMATELY, the lower Court dismissed the suit of the plaintiff.


( 8 ) SRI K. Pratap Reddy, learned counsel appearing on behalf of the appellant-plaintiff contended that the evidence, both oral and documentary, adduced by the plaintiff, supports the case of the plaintiff that there is a concluded contract between the plaintiff and the defendant and that the defendant is bound to execute the sale deed.


( 9 ) ON the other hand, Mr. A. Anantha Reddy, learned counsel appearing on behalf of the defendant, has contended that there was no offer nor was there any acceptance, that no consideration was fixed between the parties, and that the documentary evidence adduced on behalf of the plaintiff hself shows that there was no concluded contract between the parties. It is also contended that the alleged payment of Rs. 20. 000. 00 is false and that amount was never paid, that there is no evidence to the effect that the plaintiff was ever in possession of Rs. 6 lakhs and that he was not having sufficient money at any time either on the date of the so called agreement or at the filing of the suit and that as the plaintiff has approached this Court with unclean hands and as the relief claimed is a discretionary relief, the trial Court, has correctly dismissed the suit and consequently this appeal has to be dismissed,


( 10 ) THE first and the foremost aspect that has to be decided in this case is what exactly is the consideration which was agreed to between the paries. In the plaint it has been stated that the plaintiff agreed to purchase the plaint schedule premises for a sum of Rs. 6,00,000. 00. In the suit notice, office copy of which is marked as Ex. A. 23 dated 24-8-1981 it is mentioned that it was agreed to purchase the plaint schedule premises for a consideration of Rs. 6 lakhs. So the plaintiff, at. the earliest point of time, came forward with a plea that for the entire site the consideration is Rs. 6 lakhs. The defendant, in her reply notice dated IO-9-I981 (Ex. A. 25), has stated that the allegation that the defendant had agreed to sell her house bearing Municipal No. 3-4-371, Lingampally, Hyderabad to the plaintiff for a price of Rs. 6 lakhs is false, she sets up a plea that P. W. 1 had approached the defendant and stated that the building in her possession was suitable for constructing a complex but it was not certain whether the Corporation would give permission and if so for how many floors and that at that time itself the defendant indicated that she was not interested in selling the property and that if at all P. W. 1 insists, she would consider developing it after knowing the details of the scheme. It is also further stated in Ex. A. 25 that P. W. 1 had stated that the relevant law regarding permission was being amended and therefore the application for permission should be made immediately. In the written statement a definite case has been set up by the defendant stating that the amount of Rupees 6 lakhs is not the consideration but she entertained the idea of selling a portion of the property and constructing three houses for her two sons and one daughter or in the alternative if flats are intended to be constructed in the suit schedule property on a plinth area of 3000 square feet may be allotted to this defendant at the cost price without expecting any profit, for occupation of her children. It is further stated by the defendant in her written statement that even if Rs. 500. 00 is agreed per square yard, the sale consideration conies to Rs. 9 lakhs. The evidence of P W 1 on one side and the evidence of DWs 1 and 3 on the other side shows that there is no consensus between the parties with regard to the consideration agreed to be paid at the time of the transaction which is said to have taken place in December 1980. Under these circumstances the plea set up by the plaintiff that the agreed sale consideration was Rs. 6 lakhs, as mentioned in the suit notice and in the plaint, is absolutely false. Our view is fortified by the non-filling of the blanks in Ex. A. 8 draft sale agreement, which was got prepared by the plaintiff. In that draft agreement of sale in clause (1) the sale consideration amount is left blank. In the very same clause it is stated ". . . . . . . . . . constructing and handing over possession of an extent of 3000 sq. ft. plinth area of building which will be built as residential flat by the purchaser after dismantling area at the schedule property of the choice of the seller. " That means, the case set up by the defendant that she entertained an idea that she wants to have 3000 square feet plinth area of building must be correct.


( 11 ) ACCORDING to the plaintiff, in pursuance of the sale agreement, PW 1 paid an amount of Rs. 20,000. 00 to the defendant towards part consideration of the proposed sale, on 10-12-1980. PW 1 in his evidence deposed that when he paid Rs. 20,000. 00advance at their house, Veerender Kumar Dhoot and Chandra Prakash Tibrewal, defendant and her husband were present. DW 1 denied the presence of her husband (DW3) on that particular day. Veerender Kumar Dhoot is said to be the common friend for PW 1 and the defendant and he was present all through. That person died subsequently. The defendant has examined DW2, S. N, Srinivasa Rao, Officer working in the State Bank of Hyderabad to show that DW 3 was at Aurangabad on 9th and 10/12/1980 in connection with some interviews. DW'2 deposed that V. M. Gadgil (DW 3) was one of the members of the interview committee for promotion of officer in Junior Management Grade Scale-I during November and December 1980, that the State Bank of Hyderabad held interviews by its committee at Aurangabad on 9th and 10/12/1980, that DW3 was at Aurangabad on 9th and 10th December as a member of the committee and that he interviewed the employees at Aurangabad. DW2 has also produced the Attendance ; Register at Auranga. bad and Ex. A. 4 is the entry dated ft (h and 10/12/1980 in that register in which he signed as a member attending the committee meeting. The certificate issued by the Personal Manager to the defendant to the effect that DW3 attended interview committee meeting on 9th and 10/12/1980 at Aurangabad is marked as Ex. B. l. Sri K. Pratapreddy, learned counsel for the plaintiff contends that the non-production of T. A. and D. A. Bill presented by DW3 casts any amount of doubt as to whether DW 3 was at Aurangabad on those two days as alleged by the defendant. Though the T. A. Bill has not been produced, it may be seen that the evidence of DW2 coupled with Exs. B. l certificate and Ex. X-4 entry in the attendance register clearly shows that DW3 was at Aurangabad on those two days. Another clinching circumstance is that there is no evidence to show that PW I was having any money ready on 10-12-1980. No receipt is obtained by PW 1 for the alleged payment of Rs. 20,000. 00'to the defendant towards advance amount. He has admitted in his evidence that till 10 days prior to the agreement, he had no acquaintance with the defendant and her husband. Both the parties are highly educated. It is rather strange to notice that when there is no prior acquaintance with the defendant how PW 1 has parted with a huge sum of Rs. 20,000. 00 without obtaining a receipt. In the draft agreement Ex. A. 8, there is no mention about this amount of Rs, 20. 000/ - and as already stated the relevant columns are left blank. Had he paid the advance of Rs. 20,000/ - he would not have left the relevant portion blank. We have to see the status of parties, the nature of the transaction, the ability of the parties and other attendant circumstances to find out whether the payment of huge amount of Rs. 20,000. 00 without any receipt can be believed. After reading the evidence on record, and the omissions pointed out supra we are in entire agreement with the lower court that Rs. 20,000. 00 has not been paid by PW 1 to the defendant towards part consideration of the proposed sale.


( 12 ) THE next aspect of the matter we have to consider is whether there is any concluded contract between the plaintiff and the defendant. The defendant has pleaded in her written statement and also deposed in her evidence as DW 1 that she wanted to retain 3000 square feet for construction of houses for her two sons and one daughter, at the cost price without any profit. PW 1 has deposed in his evidence that the defendant agreed to sell the property for Rs. '6,00,000. 00 and speaks nothing about the conditions. But the evidence of the defendant shows that she agreed to sell the suit property with a condition that the defendant should be provided with three flats at construction price to her children. The statement of the defendant gains support from Ex. A. 8 draft agreement prepared by the plaintiff. In most of the clauses of Ex. A. 8 draft sale deed there is a mention about the 3000 square feet plinth area, as spoken to by the defendant in her evidence. The defendant has only offered to sell the property subject to the condition of constructing flats for her children in 3000 square feet plinth area at cost price without any profit. There is no evidence on record to show that the plaintiff has accepted the condition proposed by the defendant. There is no mention about this condition either in Ex. A. 23 suit notice issued by the plaintiff or in the plaint. The case of the defendant is that the contract was not concluded and it was left at the slage where she has offered to sell the property subject to the aforesaid conditions. DW 1 in her evidence has clearly stated that she agreed to sell the land if three flats from out of the proposed constructions are given to her, that PW 1 on hearing her offer and suggestions wanted some time to think over the matter, and thereafter the offer was not finalised. The acts done by the plaintiff, viz. , conducting survey through.. Associates payment Rs. 2,000/ -under each of the receipts Exs. A. 6 and A. ? and making some payments to the Municipality, giving advertisement in the newspapers are done by him on his own account without any concluded contract between the parties. The defendant is not expected to know how much area will be available immediately after obtaining permission. We cannot expect the defendant to know that a particular area will be sanctioned basing on the rule position. So it is only after obtaining permission from the Municipal Corporation it will be known how many flats will be permitted. It cannot be said that oft mere submission of the plans signed by the defendant there is a concluded contract between the parties. They are self-serving documents. Unless and until the plans are approved, the parties are not in a position to agree for the contract. The contention of the plaintiff that since PW 1 knows the area that is available and he knows the municipal laws being builders it cannot be said that without any concluded contract he has proceeded to apply to the Municipal Authorities for sanction. There is no doubt with regard to the knowledge about the plinth area that can be-available for a particular site. In this connection it is necessary to refer to clause (2) of the draft agreement Ex. A. 8. It is in the following terms; ?the purchaser will construct building in the schedule property as multi-storied complex comprising of independent flats but the purchaser will take prior approval of the plan of the flats from the seller to enable the seller to choose the flats of the total plinth area of 3000 square feet in the building proposed to be constructed by the purchaser as a part of the sale consideration in addition to cash amount. "from the evidence on record coupled with Ex. A. 8 draft agreement it is clear that the defendant wants to retain 3000 square feet plinth area with flats constructed thereon for cost price without any profit. The contention of the defendant that unless and until definite area for construction is available after the municipal permissions obtained she is not in a position to make up her mind to sell the land appears to be correct.


( 13 ) THE next contention raised is that the plaintiff has applied for a phone connection for the suit premises but no permission of DW 1 has been taken or PW 1 has intimated to the authorities concerned that he has obtained permission of the owner to install the phone. Without the knowledge and without the consent of DW 1 the plaintiff had applied for permission. Therefore, it does not follow that in pursuance of a concluded contract he has applied for the same. He has also relied upon the two advertisements made in Deccan Chronical about the proposal of the construction of the residential complex on the suit schedule premises and inviting applications for recruitment of the staff required for the project. There is no mention that there is a concluded contract between the parties, that a particular number of persons are required for taking up the project. Since PW 1 is a business man he thought of obtaining all the necessary things done even prior to the completion of the contract so that the work can be expedited.


( 14 ) THE next contention that has been raised on behalf of the plaintiff is that the defendant allowed M/s... Associates to survey the schedule premises which leads to the presumption that there was a concluded agreement between the parties. The case of the defendant is that when she expressed to have 3000 square feet plinth area to be constructed by fiats for her children, PW 1 made a counter suggestion to the effect that unless he approached the Municipality with a plan of apartments complex in the suit schedule site and unless the Municipality sanctions permission, he was unable to accept the suggestion made by the defendant. In that connection PW 1 requested the defendant to sign on the plans to be prepared by M/s... Associates and thus the services of M/s... Associates were utilised to survey the suit schedule premises. In those circumstances it cannot be construed that the defendant is a consenting party to the survey operations conducted by M/s... Associates and that there is a valid and concluded contract. Filing of a writ petition by the plaintiff when the Municipal Corporation demanded an unreasonable rate of fee is sought to be taken advantage by the plaintiff to show that the defendant has agreed for the contract. It may be noted that the defendant is not a party to that writ petition. There was no indication that the plaintiff has informed the defendant about the writ petition. Mere filing of a writ challenging the enhancement of rates of fee does not mean that the defendant has given consent. This circumstance also is of no help to the plaintiff. For the very same reasons thei signing of plans by the defendant is of no consequence.


( 15 ) IT is contended that there was an understanding that the tenants who were occupying the portions of the schedule mentioned premises will be evicted within six months. It may be noted that the defendant expressed her desire that after seeing the plans she wants to choose certain flats for her children. In the circumstances it has to be presumed that to have proper atmosphere to be created at a future date the parties have-agreed to have vacant possession of the premises. For that the tenants are agreed to be evicted. From this it does not mean that there is any concluded contract between the parties. Only if there is a concluded contract all this will come into play. PW I deposed in his evidence that the defendant assured that the tenants in the outhouse will be evicted within six months. It does not mean that making an attempt to evict the tenants cannot be a circumstance to show that there is already a concluded contract.


( 16 ) THE plaintiff also examined one Syam Sundar Pasari, as PW4, who is no way connected with the defendant. He deposed that on one day DW3 came to Matrusri apartment and enquired about the society which maintains the apartments. While talking he said that he was in need of residential flat since he was going to sell away his house. He also took his telephone number. In his cross-examination PW4 admitted that he does not deal with leasing out of the flats in the apartments, and that DW3 was not known to him. The evidence of PW 4 does not help the case of the plaintiff in any manner.


( 17 ) THE plan of the proposed constructions was approved by the Municipal Corporation on 7-8-1981. Ex. A. 23 registered notice was issued on 24-8-1981. Between the date of approval of the plan by the Municipal Corporation and the date of issuance of the registered notice there is a gap of 17 days. According to the plaintiff, during these 17 days the defendant has not agreed to register the sale deed. When the plaintiff has not expressed his willingness to give the three flats as suggested by the defendant when in Ex. A. 8 draft agreement prepared by the plaintiff himself the columns regarding consideration are left blank and when there is no concluded contract between the parties, it cannot be said that there was any refusal on the part of the defendant. It appears to our mind that after the permission is obtained from the Municipal Corporation the defendant might have expressed that she wants to take 3000 square feet plinth area constructed by flats and the plaintiff taking advantage of the fact that no mention of the amount is made in any of the documents, might have tried to play on her and now he has come forward with a plea that the defendant agreed to sell the suit premises for a consideration of Rs. 6 lakhs. When the consideration is not correct and when the condition of the defendant that she wants to have 3 flats on 3000 square feet plinth area has not been acted upon, we feel that there is no question of default. Ultimately the terms have not been finally concluded between the parties even after the approval of plan on 7-8-1981 which resulted in not having a concluded contract between the parties. When there is no concluded contract between the parties, the question of specific performance does not arise. When a party has approached the court with unclean hands, the discretionary relief cannot be granted in a case of this nature.


( 18 ) SRI K. Pratapreddy, learned counsel for the plaintiff has relied upon the decision of the Supreme Court reported in K. Sriramulu v. Aswatha Narayana, AIR 1968 SC 1028 and contended that mere omission to settle mode of payment does not affect the completeness of contract. That judgment cannot be taken aid by the plaintiff because as was held in the very same judgment the question depends upon the intention

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of the parties and the special circumstances of each particular case. In the case on hand apart from the non-settlement of mode of payment, the consideration for the sale transaction has not been finalised. The time of completion of the sale transaction has not been fixed. The suggestion made by the defendant with regard to retention of 3000 square feet plinth area has not been finalised. In those circumstances the decision cited by the learned counsel for the plaintiff, referred to supra, will not be of any help to find that there was already a concluded contract. ( 19 ) IT is contended by Mr. A. Anantha Reddy, learned counsel for the defendant that under S. 16 (c) (ii) of the Specific Relief Act, 1963 the plaintiff must aver performance of or readiness and willingness to perform the contract according to its true construction, and that mere statement also is not sufficient and there must be proof. PW 1 has admitted in his evidence that he had no ready cash for payment of the balance of consideration of Rs. 5,80,000. 00 but he could have raised that amount at any moment. No credible evidence has been let in to show that on 10-12-1980 he was having Rs. 20,000. 00 and subsequently also he was having money, to pay the consideration of Rs. 6 lakhs, as alleged. In a suit for specific performance the plaintiff should aver and prove his readiness to perform his part of the contract from the date of the contract up to the date of the hearing. The readiness should be to perform the contract as it actually was and not merely as alleged by the plaintiff. The plaintiff should show his continuous readiness to perform the contract from the date of the contract. There is no evidence on record adduced on behalf of the plaintiff to show that he was ready and willing to perform the contract. However, as we are holding that there is no concluded contract between the plaintiff and the defendant, the question of readiness by the plaintiff pales into insignificance. ( 20 ) IN view of the above discussion we hold that there is no concluded agreement between the plaintiff and the defendant, that no payment was made on lo-12-J980by PW 1 to the defendant towards part payment of the alleged sale consideration; that in fact no sale consideration was settled between the parties that though there is an offer from the side of the defendant to sell the plaint schedule property subject to the condition of giving her :three flats of 1000 square feet plinth area each 3000 square feet plinth area in all) for her children, at the cost price without expecting any profit, there was no specific acceptance by the defendant and that the plaintiff has failed to prove their readiness and willingness to perform their part of the contract in strict compliance with S. 16 (c) of the Specific Relief Act. Consequently we confirm the finding of the lower court that the suit agreement is not true, valid and binding and that the plaintiff is not entitled to specific performance of the suit agreement. ( 21 ) IN the result we hold that the plaintiffs appeal fails and is, therefore, dismissed. In the circumstances, there will be no order as to costs. ( 22 ) APPEAL dismissed.
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