Judgment:
Dharmadhikari B.P., J.
1. By this Appeal under Section 96 of the Code of Civil Procedure, the original plaintiff challenges dismissal of his Special Civil Suit 184/1991 for specific performance by Civil Judge (Senior Division) Nagpur on 22/6/1992. Trial Court found that plaintiff could not prove that the present respondent/original defendant avoided to execute sale deed in his favour and also found him not entitled to alternate relief of refund of Rs. 93,650/- (Rs. Ninety Three Thousand Six Hundred and Fifty only.) with interest at 18%. It concluded that time was essence of contract and defendant established that plaintiff failed to get sale deed executed in his favour within stipulated period and hence the agreement stood cancelled and earnest amount stood forfeited.
2. Plaintiff stated that he and defendant entered into an agreement on 24/2/1988 for purchase and sale of six acres of land out of total land admeasuring 11.44 acres (4.03 Hectors) bearing Khasra No. 555, situated at Mouza Gondkhairi, P.H. No. 24, Tahsil Kalmeshwar, District Nagpur. Rate agreed was Rs. 35,100/- per acre i.e. total consideration amount settled was of Rs. 2,10,600/- (Rs. Two Lakh Ten Thousand Six Hundred only). He also pointed that Rs. 5000/- were paid as earnest on 24/2/1988 and also payments made by him from time to time to defendant totaling to Rs. 50,000/-. These basic facts are not in dispute between parties. He then stated that the land was to be demarcated after measurement on or before 15/4/1988 by defendant, but defendant failed to do so despite several requests by him. He further stated that he was ready and willing to pay the balance sale consideration but defendant avoided demarcation itself. Hence on 18/11/1988 he forwarded a legal notice/telegram calling for execution of sale-deed and its registration. As there was no response, he forwarded another notice dated 3/4/1990 which was received back with postal endorsement refused' and hence ultimately he filed the suit for specific performance, in the alternative with refund of earnest money, he also claimed interest at 18% on amount of Rs. 50,000/-, notice charges of Rs. 400/- and special damages of Rs. 20,000/-. Thus he claimed total amount of Rs. 93650/-in the alternative from defendant. In his written statement, present respondent accepted Agreement, service of notice dated 18/11/1988 and contended that sale deed was agreed to be executed on or before 24/11/1988 and in default agreement was to stand cancelled. He further stated that notice dated 18/11/1988 was replied by him on 22/11/1988 through his Advocate whereby he called upon plaintiff to remain present in the office of Sub-Registrar, Nagpur on 24/11/1988 with full balance amount and document to be executed. He further stated that through this reply plaintiff was also informed that if he did not attend as required, agreement would stand cancelled and amount of Rs. 50,000/- would stand forfeited. He further pointed out that plaintiff did not turn up for registration of sale deed and therefore he was not entitled to grant of decree of specific performance. Plaintiff ex- amined himself in support of his case while defendant examined himself. The Court below then heard oral arguments and delivered the impugned judgment and decree. Important issues decided by it are already narrated briefly above.
3. In this background I have heard Advocate Parchure for plaintiff/appellant and Advocate Shingane for defendant/respondent. Their contentions in short can be stated to be thus:
Appellant/plaintiff contends that there is inconsistency in application of mind by trial Court. Having recorded a finding that plaintiff was ready and willing to perform his part of contract, conclusion that defendant did not avoid to execute sale deed or to perform his part of agreement is being assailed as contradictory one and hence unsustainable. It is argued that service of reply notice dated 22/11/1988 calling upon plaintiff to remain present before Sub-Registrar for execution of sale deed is not at all established and hence on that account, alleged failure of plaintiff to obtain sale deed could not have been inferred. Even postal receipt in proof of having delivered to Post Office envelop with said notice dated 22/11/1988 has not been placed on record. As piece of six acres was not demarcated by defendant, its sale deed could not have been executed or registered. Obligation was upon defendant to separate and demarcate said six acres portion and also to obtain necessary clearance from income tax authorities and as he failed to do so, it was fault on part of defendant and hence decree for specific performance could not have been denied by trial Court. Defendant accepted amount of Rs. 15,000/- from plaintiff on 15/4/1988 by which date the property was to be demarcated. It is further stated that plaintiff was placed in possession of suit property and he paid substantial amount to defendant and was waiting for defendant to take steps to demarcate the property after having informed him of his obligations under the agreement. Defendant did not forward any reply & having waited for reasonable period, plaintiff issued him another notice which came to be refused and hence he filed suit. Advocate Parchure states that time was never the essence of contract and finding to that effect delivered by Court below is perverse. Burden has been wrongly shifted upon plaintiff and in law, defendant being owner, has to obtain income tax clearance. It is contended that there was no clause for forfeiture of earnest and still earnest money has been forfeited. It is further argued that there was even no notice of repudiation of agreement by defendant to plaintiff.
Respondent defendant states that if plaintiff was in possession, he could have got the property demarcated if there was no demarcation. It is contended that demarcation was done on 15/4/1988 itself and as plaintiff had no funds with him, he avoided to get sale deed executed. It is pointed out that plaintiff has paid Rs. 15,000/- as per agreement to defendant on said date. Advocate Shingane states that issuance of reply notice dated 22/11/1988 is accepted by Court below and same is not perverse. Even otherwise defendant had personally gone on morning of 24/11/1988 to the residence of plaintiff informing him to come to the office of Sub-Registrar for getting sale deed executed. He further states that plaintiff did not take any steps either to get property demarcated or enabling/calling upon defendant to obtain any clearance certificate from income tax department. Notice allegedly sent on 3/4/1990 was not tendered to defendant at all and its refusal by defendant has not been established. Suit has not been filed with due diligence. Learned Advocate argues that alleged justification evolved by plaintiff is by way of afterthought and trial Court has correctly concluded that time was essence of contract.
4. With the assistance of respective Counsel, I have also verified the records. Following points or issues arise for my determination in this Appeal:
(I) Whether trial Court is right in holding that time was essence of contract?
(II) Whether trial Court is right in concluding that plaintiff avoided to obtain sale deed?
(III) Whether order of trial Court dismissing the Suit of appellant/plaintiff requires any interference in this Appeal?
5. Trial Court framed as many as 8 issues. It has found that plaintiff has proved that he was ready and willing to perform his part of contract while answering issue No. 1. However it found that he could not establish that defendant avoided to execute sale deed in his favour vide issue No. 2. Issue No. 3-a framed by it is whether plaintiff is entitled to relief of specific performance by directing defendant to execute sale in his favour and issue No. 3-b is whether in default of defendant, plaintiff is entitled to have sale deed through Court. Both these issues are answered in negative by it. Issue No. 4 is in relation to alternative relief of claim of Rs. 93650/- by plaintiff and said prayer is rejected by trial Court. Vide issue No. 5 it has held that time was essence of contract. Issue No. 6 framed by it was whether defendant proved that plaintiff failed to have sale deed within stipulated period and hence agreement stood cancelled and earnest amount stood forfeited. This issue is answered in favour of defendant in affirmative by it. While answering issue No. 7 it has found that defendant is not entitled to compensatory costs. Last issue i.e. issue No. 8 is only formal one i.e. about order and decree.
6. Taking up issue or point No (1) above, it would first be beneficial to note the terms and conditions of agreement Exhibit 19 between parties. Document is having heading agreement of sale-deed. In its concluding portion also it is thrice referred to as 'this sale deed'. However, there is no dispute between parties that it is only an agreement for sale. Said unregistered document is drawn in hand writing in Hindi language on 24/2/1988. Apart from giving the total area of the property belonging to defendant it also mentions the rate per acre and that six acres of land out of total 11.44 acres is agreed to be sold by it. Which portion or part of entire larger area of 11.44 acres forms the subject-matter of agreement is not specified at all. It is not mentioned that parties will be putting in any bund or dhura in this large area either north-south or east-west and then area thus carved out on any particular side of such dhura or bund was to be sold or handed over to plaintiff. It is apparent that on one side at least of such portion to be sold there would be remaining part i.e. unsold portion of field of defendant. Hence remaining three boundaries could have been at least specified but that also has not been done. Thus which half portion (roughly) of the agricultural field constitutes Subject-matter of this agreement is not clear at all. Still agreement mentions that on 24/2/1988 possession of six acres is given to plaintiff. It also mentions that portion of six acres shall be got demarcated till 15/4/1988 either through Patwari or the Officer, and boundaries of portion sold shall be specified. It also stipulates that then the possession would be confirmed. Earlier it mentions that Rs. 5000/- are received by defendant on 24/2/1988. It also mentions amount of Rs. 5000/- as payable on 29/2/1988, Rs 15,000/- on 8/3/1988 and Rs. 15,000/- on 15/4/1988. Agreement further stipulates that if sale deed is not procured by plaintiff by 24/11/1988, the document would stand cancelled. It further states that if there is any default on part of defendant, plaintiff will be entitled to obtain sale deed unilaterally. Evidence on record does not show that defendant has issued any separate notice of cancellation or repudiation of this agreement to plaintiff. There is no clause which stipulates forfeiture of any amount in it and defendant has also not warned plaintiff about such forfeiture. Receipt of notice dated 18/11/1988 forwarded by plaintiff is accepted by defendant. Receipt of reply dated 22/11/1988 sent by defendant to this notice is being denied by plaintiff. Defendant states that he was present before Sub-Registrar for executing sale deed on 24/11/1988 which is being disputed by plaintiff. However none of the parties has taken any steps further in the matter and it is plaintiff who vide his legal notice dated 3/4/1990 i.e. Exhibit 23 has made grievance that defendant was negotiating for sale with third parties and called upon defendant to execute sale deed within 15 days. He has thereafter filed the suit on 25/2/1991. Thus defendant has after noticing the failure of plaintiff to remain present before Sub-Registrar for obtaining sale deed, has not issued any notice terminating the agreement or forfeiting the amounts deposited. Defendant claims that he did not receive any notice dated 3/4/1990. There is no special circumstances pointed out by defendant which required time to be made essence of contract. In this background I find it proper to refer to following judgment of Hon Apex Court.
In : AIR1997SC1751 K.S. Vidyanadam v. Vairavan, wherein suit came to be filed almost 21.5 years after the agreement. Hon Tale Apex Court observes:
8. Section 55 of the Contract Act is in three parts. For our purpose it is enough to notice the first two which reads:
35. Effect of failure to perform at fixed time, in contract in which time is essential.-
When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do so any such thing at or before the specified time, the contract, or so much of it as has not been performed becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential. If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
9. Article 54 of the Limitation Act prescribes three years as the period within which a suit for specific performance can be filed. The period of three years is to be calculated from the date specified in the agreement for performance or in the absence of any such stipulation within three years from the date the performance was refused.
10. It has been consistently held by the Courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract the time-limits) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the Court by both Sections 10 and 20. As held by Constitution Bench of this Court in Chand Rani v. Kamal Rani : AIR1993SC1742 , 'it is clear that in the case of sale of immovable properly there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract'. In other words the Court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India it is well-known that their prices have been going up sharply over the last few decades -particularly after 1973. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15th of June, 1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The Trial Court has accepted the defendants' story whereas the High Court has accepted the plaintiffs story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months. The plaintiff should purchase the stamp papers and pay, the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981...induced the plaintiff to wake up after 21/2 years and demand specific performance.
11. Sri Sivasubramanium cited.... Except paying the small amount of Rs. 5,000/- (as against the total consideration of Rs. 60,000/-) the plaintiff did nothing until he issued the suit notice 21/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. Learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as nonexistent? All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).
In : [1967]1SCR227 Gomathinayagam Pillai v. Palaniswami Nadar. Hon'ble apex court has laid down that fixation of period within which contract is to be performed does not make stipulation as to time essence of contract. Nor default clause in contract by itself evidences intention to make time of essence. Time is of essence if parties intend it to be so and such an intention may be evidenced either by express stipulations or by circumstances which are sufficiently strong to displace ordinary presumption that in contract for sale of land stipulation as to time is not of essence. It is also observed that if time is not of essence originally, it can be made of essence even subsequently by serving notice on other party. Another case relied upon him is : [1977]2SCR877 Govinda Prasad Chaturvedi v. Hari Dutta Shastri. Hon'ble Apex Court in paragraph 5 has held that mere fixation of period in agreement does not make stipulation as to time the essence of contract. It has been observed that in case of a contract for sale of immovable property, normally time is not essence and intention of parties to treat time as essence of contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption. Clause number 4 of the agreement which provided for forfeiture without further notice of earnest money if sale deed was not obtained by purchaser within two months has been held not to make time essence of contract as language did not unmistakably reveal such intention. It is to be noted that in said matter, there was no such plea in written statement or in evidence of landowner before trial Court. Written statement only mentioned that appellant before Hon. Apex Court did not perform his part of contract within stipulated time and that contract thereafter did not subsist and the suit was consequently misconceived. In his written statement, present respondent/defendant denied not only case of plaintiff but stated that in spite of registered notice and telegraphic notice, he could not get sale deed executed and he never tendered the money. However in this case, defendant could not prove that he got the property demarcated on or before 15/4/1988 and also service of notice upon plaintiff to remain present before Sub-Registrar on 24/11/1988 to have sale deed executed in his favour. It has not been demonstrated by defendant by any other evidence that on account of certain special circumstances time was required to be made essence of contract. He did not repudiate the contract even after 24/11/1988 or communicate forfeiture. Even the conduct of defendant fails to show that time was essence. I therefore find that in present case, time was not the essence of contract and Court below erred in holding it to be so. Issue/Point number I above is thus answered in favour of present appellant and against respondent.
7. Coming to issue number (II), written agreement between parties demonstrates that the potion to be sold by defendant & to be purchased by plaintiff was not specified. It is not even roughly stated that portion on any particular side or direction was agreed to be sold. The stipulation of possession mentioned therein is therefore not very significant. Mention of area as 6 acres can not be construed as area floating over entire 11.44 acres and anchoring itself anywhere. It is not an agreement to sell joint or undivided share. If this is taken as a lacuna, parties have not even in oral evidence made any effort to specify any particular portion. There is no evidence lead to point out which particular part of entire field is placed in alleged possession of plaintiff. Defendant in his evidence states that he got the demarcation done on 15/4/1988 and he has also given name of revenue officer i.e. Patwari as Shri Bhiwgade who prepared the map after demarcation. He also expressed his readiness to examine him as his witness. All this has come in his cross examination. The plaintiff has blamed defendant for not carrying out demarcation and hence, according to him sale-deed could not be executed. Agreement required plaintiff to pay Rs. 15,000/- on 15/4/1988. It also required demarcation to be done by defendant by 15/4/1988. Plaintiff claims to have paid this amount and defendant accepts its receipt in his cross examination on 15/4/1988. Plaintiff in his cross-examination in paragraph 5 accepts that he was present on spot on 15/4/1988, however he denies any demarcation on that day. Without demarcation, agreement Exhibit 19 could not have been related to any particular division of entire field belonging to defendant. Without demarcation, property to be purchased by plaintiff could not have been identified and hence, plaintiff could not have claimed sale deed or even any decree for specific performance. Though in his examination-in-chief, plaintiff has made grievance about demarcation and though in Plaint he mentions failure to demarcate even after 15/4/1988, this grievance does not find mention in his legal notice dated 18/11/1988 at Exhibit 20. Said notice only states that in first week of November 1988 when plaintiff approached defendant for fixing the date of sale deed, defendant informed him about some measurements done by Government Officers and some acquisition proceedings. He therefore called upon defendant to certify that no acquisition proceedings were pending and land was free from all disputes. He also stated that he would verify correctness or otherwise of such declaration by defendant. He has on 24/11/1988 forwarded a telegram vide Exhibit 21 which again makes grievance about demarcation done by government department for land acquisition. Thus there is no grievance at all about defendant not getting land demarcated before 15/4/1988 as per agreement. On the contrary evidence of plaintiff on oath shows that he paid amount of Rs. 6000/- to defendanton 9/4/1988, Rs. 10500/- on 10/6/1988 and Rs. 5000/- on 28/7/1988. He does not claim to have paid any amount on 15/4/1988 at least in chief. Other dates and figures of payment deposed to by him in examination-in- chief are again at variance with schedule mentioned in agreement Exhibit 19. In plaint also, no such payment on 15/4/1988 is disclosed. Needless to mention that as defendant has accepted receipt of payment on 15/4/1988, it is not necessary to delve into more depths in this respect. But importance of exercises scheduled on 15/4/1988 as per agreement cannot be forgotten in peculiar facts here and hence, subsequent 2 payments by plaintiff to defendant thereafter also assume importance. Non mention of alleged failure to demarcate in his legal notice Exhibit 20 is therefore significant. There is no evidence again of any land acquisition proceedings by plaintiff. Tenor of his legal notice reveals that he was ready to obtain sale deed even in alleged absence of demarcation. As per agreement procedure for sale deed was to be completed on or before 24/11/1988. Apart from issuing a vague notice on 18/11/1988, plaintiff has not done anything. Even if it is presumed that defendant did not reply to his legal notice, it was incumbent for him to point out that he made inquiries about alleged demarcation by Government Officers for land acquisition and substantiate his stand and bona fides in legal notice Exhibit 20. He has not done anything till 3/4/1990 when he issued legal notice calling upon defendant to execute sale deed within 15 days. Defendant states that he has not refused to receive any such notice. It is not his case that address on envelope forwarded by registered post acknowledgment due was incorrect. However it is not necessary to go into more details of this controversy because even in this notice Exhibit 23 (office copy) there is no grievance about non-demarcation. Exhibit 23 mentions that though land was in possession of plaintiff, defendant was negotiating for sale with third persons and as per agreement, plaintiff was entitled to have sale-deed unilaterally. It also mentions that notice Exhibit 20 dated 18/11/1988 was not replied by defendant. It also does not mention any land acquisition matter or problem. As already stated above agreement between parties is dated 24/2/1988 and present Suit has been filed by plaintiff after three years i.e. on 25/2/1991 i.e. after about 10 months of notice Exh. 23. If really plaintiff was intending to have sale deed, he could have taken appropriate steps immediately after 18/11/1988 notice and in any case as he was in possession, he could have himself initiated demarcation proceedings by issuing appropriate notice to defendant requiring his presence on particular day for that purpose. He could have also claimed costs there for from defendant. In present facts, I therefore find that steps taken by plaintiff cannot be said to be sufficient to hold that he acted bona fide and was ready and willing to have sale deed. He has not taken any steps to point out to defendant that last date stipulated in agreement for execution of sale date was breached because of alleged lapse or fault on part of defendant. He has not pointed out to Court below that he was ready with necessary amount either in cash or otherwise for honouring his commitment by 24/11/1988. Parties have not entered into an agreement of sale and purchase of joint or undivided share in as much as area of 6 acres is expressly stipulated. Not only this, plaintiff also claimed to be in possession i.e. of possession of said 6 acres as per agreement but then did not lead any evidence of his alleged possession or of such specific portion or its geographical location in entire field. It was necessary for him to point out at least roughly the geographical placement of his 6 acres piece in total field ad measuring about 11.44 acres and pray for its demarcation and partition by metes and bounds. In absence of this material, in present facts, Court below could not have proceeded to pass a decree for general partition and separation of any 6 acres portion so as to substitute a new contract between parties. In other words, plaintiff has failed to prove exact contract between parties.
8. At this stage it will be convenient to find out whether plaintiff has proved that ht was ready & willing to perform his part of contract. Simultaneously, question whether discretion under Section 20 of Specific Relief Act has been judiciously exercised in the matter can also be conveniently looked into. But before that, it will be necessary to appreciate case law indicating norms for this purpose.
9. In : AIR1985All223 Bijai Bahadur v. Shri Shiv C.P. Sen, Hon'ble Single Judge has observed plaintiff must not only aver but also 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. Further considering this aspect and the difference between 'readiness' and 'willingness' envisaged in Section 16(c) of Specific Relief Act, it is observed:
17. All the above definitions clearly point out at least one thing that 'readiness and willingness' are sometimes treated as synonymous and have almost the same sense or meaning but there is a clear cut distinction between the two while 'willingness' is merely mental process, 'readiness' is something to do with translating that will into action and is preceded by necessary preparation for being in a position to be ready. In other words, we can say that while 'willingness' may be something to do mainly with a person's mental process to do an act, his readiness implies close proximity of such willingness and its ultimate physical manifestation. 'Readiness' must in all cases be backed by 'willingness' and its imminent physical action is demonstrated when it is about to be put into action. Time lag between the two may sometimes be very short, may even be negligible, but it must always be preceded by an intention or a will to do. In short, 'readiness' must be said to be the total equipment of a person who is willing to do a thing before he actually does it.
18. There may be cases where though a person may be willing, yet may not be able to do what he wills. He cannot be said to be ready to do it. In other cases, the person may possess all that is necessary to do an act. He may be ready but if the will to do is not there, his willingness will be lacking. One cannot remain unaware of such cases in which the plaintiff may go on demanding performance of the contract for keeping the agreement alive, vet really speaking he does not intend to pursue the matter but only wants to keep it alive for some ulterior motives. Since in granting specific performance the Court acts in equity, it becomes necessary that a high standard of equitable conduct must be displayed by the plaintiff. It is for this reason that a rigor of this kind has been provided in Section 16. It is primarily to eliminate any element of fraud and risk of a party taking undue advantage of the, other that the discretion to decree specific performance has still been left with the Court.
10. In : AIR1996SC116 N.P. Thimgnanam v. R. Jagan Mohan Rao, Hon'ble apex Court has observed that such readiness and willingness of plaintiff must be shown to be in existence from the date of execution of agreement till end. It has been also observed that relief of grant of specific performance being discretionary, conduct of plaintiff also assumes importance. Following paragraph clinches the issue:
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 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the 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. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
11. In : AIR2005SC3503 Aniglase Yohannan v. Ramlatha, Hon'ble Apex Court observes that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The basic principles behind Section 16(c) read with Expln. (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemish less 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. In said case, the agreement period for completion of the sale was six months. Immediately after the expiry of this period lawyer's notice was given calling upon the appellant-defendant to execute the sale deed. The plaint also averred that the plaintiff met the defendant several times and requested him to execute the sale deed. On finding inaction on his part, the suit for specific performance of contract was filed and there was clear averment in plaint that the plaintiff was always ready to get the sale deed prepared after paying necessary consideration and also that defendant was bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defend ant. Hon'ble Apex Court held order decreeing suit for specific performance in favour of plaintiff to be proper.
12. In this connection in : AIR2006SC2172 Sugani v. Rameshwar Das, Hon'ble Apex Court observes:
17. Lord Campbell in Cork v. Ambergate etc. and Railway Co. (1851) 117 E.R. 1229, observed that in common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it had it not been renounced by the defendant.
18. The basic principle behind Section 16(c) read with Explanation (ii) is that and person seeking benefit of the specific performance of contract must manifest that his conduct has been blemish less 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.
13. Here, before me, it is more than apparent that plaintiff/present appellant has failed to show that he was always ready and willing to perform his part of contract. Weakness in his story is already commented above. His conduct fails to substantiate his bona fides. Though defendant has not filed on record in the postal receipt of having dispatched his reply notice dated 22/11/1988 to plaintiff or even if presence of defendant before Sub-Registrar on 24/11/1988 is not believed, that by itself does not entitle plaintiff to claim specific performance. Though Court below has found that plaintiff was ready and willing to perform his part of contract while answering issue No. 1, its, discussion in paragraph 18 against Issue Nos. 2 and 6 leaves no manner of doubt that it found that plaintiff made no efforts to obtain sale deed. Trial Court has disbelieved story of defendant that he got land demarcated on 15/4/1988 and also found that plaintiff did not take any steps for getting it so demarcated thereafter. In paragraph 19 of its judgment, Trial Court has also found introduction of land acquisition story by plaintiff to be only an attempt to postpone execution of sale deed. Though logic and reasoning resorted to in paragraph 21 of its judgment by Trial court may be incorrect, in view of discussion above, that by itself is insufficient to grant specific performance to plaintiff appellant. In view of this position I find that Trial Court was justified in insisting upon formal proof by plaintiff that he possessed necessary funds with him on 24/11/1988. Requirement of income tax clearance certificate or consideration of that angle in paragraph 23 of its judgment by Trial Court is therefore not very relevant. Even for income tax clearance, draft sale deed is required to be supplied by plaintiff only to defendant. Draft sale deed could not have been drawn unless and until boundaries are finally ascertained. But, in any case, here, plaintiff claimed to be in possession. In this situation therefore, appellant plaintiff could not have observed mere silence. Records reveal absence of any concrete steps for demarcation of portion to be purchased by him. Case law above shows that plaintiff appellant has to stand on his own feet and he cannot be benefited by any lapse on part of defendant. Plaintiff has not only to aver but also prove that he has performed or has/had always been ready and willing to perform the essential terms of the contract to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. I find that on record there is variance between schedule of payment mentioned in agreement Exhibit 19 and in plaint or in examination-in-chief of plaintiff. As exact 6 acres portion of entire field and measuring 11.44 acres to be sold to plaintiff is not specified in agreement, story of plaintiff being in possession of said 6 acres portion also does not inspire confidence. In any case, absence of any particular definite stand in the matter by plaintiff again casts serious doubts on his intentions. Taking over all view of matter, I find that plaintiff could not prove that he was always ready and willing to get sale deed in his favour and that defendant was at fault for not executing it.
14. Though judgment of trial Court (paragraph 9) mentions that defendant is entitled to compensatory costs, discussion about it as contained in paragraph 26 clearly shows that the answer recorded in affirmative is only inadvertent. Trial Court has recorded a finding that suit of plaintiff was not bogus or false or frivolous and hence there was no question of awarding compensatory costs. It has expressly mentioned that it is answering Issue No. 7 in negative. But then it has answered Issue No. 4 also in negative and thereby found that plaintiff is not entitled to refund of Rs. 93650/- with 18% interest. Terms and conditions of agreement Exhibit 19 stated above clearly show that it does not contain any stipulation of forfeiture of earnest money or advance towards sale consideration. None of the Counsel have advanced any arguments about nature of these payments made on various dates. Having already answered question No. (I) against defendant respondent, in the facts, I find that defendant is not entitled to retain the amount received by him. Firstly, he could not prove that property was demarcated and identified by 15/4/1988 so as to subject it to the agreement. Secondly, though he stated that he forwarded notice calling upon plaintiff to remain present before Sub-Registrar on 24/11/1988 for obtaining sale deed, apart from producing the so called office copy of said notice, he could not produce any receipt issued by Post Office in support of his contention that it was forwarded to Counsel of plaintiff. There is no acknowledgment also that it was received by such Counsel. Question is presuming it to have been so forwarded a day or two before 24/11/1988, when actually it reached Counsel of plaintiff. If it was really forwarded, why this evidence could not be brought on record by defendant. In any case, why after alleged failure of defendant to report at the office of Sub-Registrar on 24/11/1988, defendant did not forward any communication terminating the agreement and forfeiting the amount received by him? Failure to explain this disentitles defendant to forfeit such amount. Of course these are not facts germane for allowing interest to the plaintiff. I therefore hold that plaintiff is entitled to refund of said amount of Rs. 50,000/- only from defendant respondent. Retention of this amount by defendant at least from date of filing of suit is unsustainable & hence, I hold that plaintiff-appellant is entitled to its refund with simple interest calculated on Rs. 50,000/- at 6% from the date of filing of suit i.e. 25/2/1991 till its realisation. It is obvious from earlier discussion herein that refusal of Trial Court to grant specific performance needs to be upheld. I therefore answer the issue/point No. (111) above partly in affirmative i.e. in favour of present appellant.
15. In view of my findings above, this Appeal by plaintiff is partly allowed. The Judgment and Decree dated 22/6/1992 delivered by Civil Judge, Senior Division, Nagpur in Special Civil Suit 184/1991 is hereby partly modified and plaintiff appellant is held entitled to refund of amount of Rs. 50,000/- (i.e. Rs. Fifty Thousand only) from defendant respondent with simple interest calculated at 6% (six percent) from the date of filing of suit i.e. 25/2/1991 till its realisation. Respondent defendant is directed to return this amount with interest to plaintiff within period of two months from to-day failing which, plaintiff will be entitled to recover it back as per law with cost of said recovery. Rest of the judgment and decree of trial Court is upheld and maintained. Appeal is accordingly partly allowed however without any order as to costs.