Judgment:
Tirath S. Thakur, J.
1. This is a Defendant's Appeal arising out of a suit for specific performance tried and decreed against him by the III Additional City Civil Judge, Bangalore.
A few facts that have led to the filing of this Appeal may be stated first:
The Defendant/Appellant before us is the absolute owner of the suit property comprising a two storeyed house situated at 5th Main Road, 'A' Block, Rajajinagar, Second Stage, Bangalore-560 010. By an Agreement to Sell dated 3rd of January, 1985, the Appellant agreed to sell the said property to the respondent-Vendee for a total sale consideration of Rs. 6,30,000/-. The Agreement, execution whereof is not in dispute inter-alia, envisaged the following:
'i) Out of the total consideration of Rs. 6,30,000/- the Vendor acknowledged the receipt of Rs. 50,000/- as advance and agreed to receive the balance of Rs. 5,80,000/- at the time of registration of the sale deed;
ii) The sale deed was to be executed and registered within six months from the date of the execution of the agreement to sell;
iii) The Vendor had to secure a sale-deed in his favour from the B.D.A. in respect of the property in question within the time granted for completion of the Sale Deed in favour of the vendee;
iv) The Vendor had also to secure and produce the Income-tax Clearance Certificate at the time of registration of the sale-deed, in favour of the Vendee;
v) The Vendor had to get the premises vacated from the tenants who were occupying a portion of the same;
vi) After the tenants vacated and the Vendor vacated the portion which he was himself occupying, the Vendor was to intimate to the Vendee in writing about his (Vendor's) preparedness to execute the sale deed;
vii) In case the Vendor committed any default in performance of his part of the contract he was liable to refund the sum of Rs. 50,000/- received as advance by him and also pay to the Vendee liquidated damages to the tune of Rs. 50,000/-. Similarly in case the vendee failed to pay the balance amount and get the sale-deed executed in his favour the advance of Rs. 50,000/- paid by him was to stand forfeited.'
2. In pursuance of the Agreement aforesaid, the Vendor-Appellant herein received on different occasions a total sum of Rs. 2 lakhs, from the Respondent-Vendee. The receipt of the said amount is not denied by the Appellant-Vendor, nor is it denied that even though the time originally fixed for completion of the sale transaction was six months from the date of the execution of the Agreement, the said period had been later extended by the parties mutually upto the 10th of October, 1985. There is some dispute between the parties as to the reasons behind the extension in the period fixed for completion of the sale but the endorsement made on the foot of Agreement indicates that the extension of the period was by the mutual consent of the parties. The endorsement reads thus:-
ENDORSEMENT No. V dated:-
It is mutually agreed to have the registration on the above deed of sale on 10.1.1985 i.e. on 10.10.1985.
Sd/- (Sundar Rajan)'
3. On the 2nd of October, 1985 while the period fixed for the completion of sale transaction had still not expired, the appellant-Vendor through his Counsel Shri. B.H. Katarki, Advocate sent a telegraphic Notice to the Respondent-Vendee in which he stated that the Respondent-Vendee had not turned up to get the sale-deed registered after paying the balance consideration amount and that since the extended time had expired the Vendor was no longer obliged to perform his part of the contract. Since this notice has a bearing on the question of the Vendor's preparedness for completing the sale transaction, it is necessary to reproduce the same in extenso.
'R. Mohan, M/s. Mohan Steel
Corporation 59/1 First
N Block Rajajinagar,
Bangalore-560 - 010.
0 1030 R 22 Bangalore 285
Under instruction and on behalf of my client E.S. Rajan I issue this notice as under as per the sale agreement you have not turned up to get the sale-deed registered after paying the balance consideration amount time extended expires on 3rd October 1985 my client is not obliged to perform his part of contract this is for you kind information and further needful
B.H. Katarki, Advocate.
LN CPD KVR.'
4. On receipt of the Notice aforesaid the Vendee acting through his Advocate Shri T.V. Rama Shastry, sent a reply dated 7th October, 1985 to the Counsel for the Vendor, in which the Vendee made it clear that he was ready with the balance consideration and that the Vendor should get the sale-deed registered before the date fixed for that purpose. It was further conveyed to the Vendor that in case he failed to turn-up to have the needful done, the Vendee would be entitled to claim damages. The receipt of this Notice has been disputed by the Vendor even though in the trial the Vendee has produced a certificate of posting marked as Ext.P.4 as also the acknowledgment marked Ext.P.5, to show that the denial is not justified- A reference to the said certificate and the acknowledgment due shall however be made a little later in the course of this Judgment.
5. Having received no response from the Vendor, the Vendee sent yet another notice to him through his Advocate Shri R.B. Ramashastry, dated 21st of October, 1985 in which it was reiterated that the Vendee was ready and willing to finalise the sale transaction on payment of balance amount of sale consideration and called upon the Vendor to execute the requisite sale-deed and get the same registered. He was accordingly called upon to be present in the Office of the Registrar, Rajajinagar on the 25th of October, 1985 at 11 a.m. to get the Sale Deed registered. The notice pointed out that the Vendee had already purchased the stamp papers for that purpose and that the Vendee should be ready with the keys of the three portions of the house in question.
6. This notice was acknowledged by the Vendor who sent a reply to the same through his Advocate Shri Krishna Murthy G. In the reply it was stated that since the vendee had not shown any inclination to pay the balance sale consideration and have the Sale Deed executed in his name, a telegraphic communication sent to him notwithstanding, the Vendor was under no obligation to execute the deed after the expiry of the time fixed for that purpose. The receipt of the earlier reply to the telegraphic notice was denied, that it was asserted that it was the Vendee who had defaulted in not paying the balance of sale consideration and getting the requisite Sale Deed executed and registered in his favour. The Vendor-appellant even claimed the right to forfeit the stipulated sum of Rs. 50,000/- out of the money paid as advance by the Vendee and offered to refund the balance subject to his rights to claim in appropriate legal proceedings, damages for the alleged breach of the Agreement on the part of the Vendee.
7. Shortly after the receipt of this reply, from the Vendor, the Vendee-respondent herein filed Original Suit No. 10/1985 before the City Civil Judge as mentioned earlier in which suit he claimed a decree for specific performance of the Agreement in question and a direction against the defendant/appellant herein to deliver the suit property to him on receipt of the balance consideration of Rs. 4,30,000/-. The plaint was subsequently amended to incorporate a prayer for refund of Rs. 2 lakhs, paid as advance and also for liquidated damages of Rs. 59,000/- with costs and interest at the rate of 18% p.a.
8. In the written statement filed by the defendant he reiterated his version that he was always ready and willing to execute and have the Sale Deed registered in favour of the plaintiff-vendor but that it was plaintiff himself who had failed to offer the balance consideration amount of Rs. 4,30,000/- and thereby committed breach of the agreement executed between the parties. It was also contended that 'time was the essence of the contract' and that since the plaintiff had failed to have the requisite Sate Deed executed and registered within the time prescribed by the Agreement and later extended upto 10th October, 1985, the defendant was entitled to refuse to execute the requisite Sale Deed after the expiry of the said date.
9. Based on the pleadings, of the parties, the trial Court framed four issues. An additional issue in consequence of the subsequent amendment of the plaint regarding the alternative prayer made by the plaintiff was also framed. The Issues read thus:-
'(1) Whether the plaintiff was ready and willing to perform his part of the contract as per the terms and conditions of the agreement?
(2) Whether it was the defendant who evaded to execute the sale-deed as per the terms and conditions of the agreement?
(3) Whether the plaintiff is not entitled for getting the sale-deed registered in his favour in view of the default clause in the suit agreement?
(4) What decree and order?
ADDL. ISSUE
Whether the plaintiff proves that he is entitled for alternative prayer of liquidated damages of Rs. 50,000/-together with Court costs, current and future interest?'
10. The parties led evidence in support of the respective cases. While the plaintiff examined himself and relied upon certain documents, the Defendant examined himself as also one Shridhar, a properly broker said to have been associated with the transaction between the parties.
11. Upon evaluation of the oral and documentary evidence assembled by the parties, the trial Court by its judgment and decree dated 9th of December, 1992, decreed the suit in favour of the plaintiff with costs and directed the Defendant/Appellant to execute the requisite Sale Deed in favour of the Respondent within 3 months from the date of decree by accepting the balance consideration and also to put the plaintiff in possession of the suit properly, the trial Court held that the plaintiff/respondent herein was always ready and willing to have the Sale Deed executed and registered in his favour and that it was the appellant-vendor who had avoided to carry out his part of the contract. Aggrieved by the judgment and decree, the defendant-vendor is in Appeal before us.
12. We have heard the learned Counsel for parties at length, who have taken us through the pleadings as also the evidence adduced at the trial both oral as also documentary.
13. Mr. Katari, learned Counsel appearing for the appellant argued that since time was the essence of the contract, the sale transaction ought to have been finalised before the 10th of October, 1985, i.e., the extended date filed for execution and registration of the Sale Deed. He submitted that the Agreement to Sell became unenforceable after the expiry of the period fixed for its performance; with the result that no specific performance thereof could be ordered by the Court below. Mr. Shekhar Shetty, learned Counsel appearing for the respondent on the other hand urged that there was a general presumption that time is not the essence of a contract to sell immoveable property and that, the said presumption can be displaced only by specific language employed in the Agreement to Sell, which according to the learned Counsel was not so in the instant case. We find considerable merit in the submission of Mr. Shetty. Section 55 of the Contract Act to the extent the same deals with the effect of failure to perform at the time fixed, contracts in which time is the essence, reads thus:
'Section 55:
When a party to a contract promises to do a certain thing at or before a specific time, or certain things at or before specified times, and fails to do 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.'
14. A plain reading of the provision, makes it amply clear that the mere fixation of a time period for the performance of a contract or the doing of a certain thing, does not by itself make time the essence of the contract. What is important is that the parties intended to make time the essence of the contract. It is only if they so intended that the non-performance of the contract, makes the same voidable at the option of the promisee; and not otherwise. The intention to make time the essence of the contract has therefore to be absolutely clear and unmistakable. In other words, the language employed in the contract should be capable of leading to the only conclusion; namely, that time for the performance fixed by the parties, was not a matter of secondary importance in the bargain, and that to disregard the same would be to disregard nothing that lay at its foundation. In GOMATHINAYAGAM PILLAI AND ORS. v. PALANISWAMY NADAR : [1967]1SCR227 . Their Lordships of the Supreme Court, while dealing with the import of the term 'time as the essence of the contract' summed up the true legal position thus:
'it is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence.'
15. To the same effect is the view expressed by the Apex Court in GOVIND PRASAD CHATURVEDI v. HARI DUTT SHASTRI AND ORS : [1977]2SCR877 . where their Lordships, observed as under;
'It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract.'
16. The above legal position was once again reiterated by their Lordships of the Supreme Court in SMT. CHAND RANI v. SMT. KAMAL RANI : AIR1993SC1742 where after a review of the entire Case Law on the subject the Court observed:-
'From the analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for example; the object of making the contract.'
17. In the light of the clear dicta of the Apex Court, in the Cases referred to above, there is no gain said that there is an initial presumption against 'time being the essence of the contract' in cases involving sale of immovable property. This presumption can be displaced only if the intention of the parties as gathered from the stipulations contained and language employed in the Agreement to Sell manifestly suggest that the parties had intended to make 'time as the essence of the contract.' It is equally well settled that the mere fixation of a specific period by the parties in the Agreement to Sell for the completion of the sale transaction does not in itself amount to making 'time the essence of the contract.'
18. Coming then to the facts of the present case there is nothing in the Agreement to show that the parties actually intended to make 'time the essence of the contract.' All that the stipulation contained in the Agreement to Sell shows is that the parties had fixed a period of six months for the completion of the said transaction. The fixation of this period in itself cannot in the light of the view expressed by the Supreme Court, be deemed to be sufficient to displace the presumption that any Agreement to Sell in respect of any immovable property, 'time' is not the essence of the contract. Superadded to this is the fact that the parties had themselves mutually extended the time originally fixed for the completion of the sale upto 10th of October, 1985. This clearly means that the 'time' initially fixed was never meant to be sacrosanct or fundamental to the transaction. That apart the Agreement to Sell cast certain significant duties upon the Appellant-Vendor. These duties were to a great extent fundamental for the completion of the sale transaction in favour of the Vendee. In terms of the Agreement, the Vendor had to secure a Sale Deed from the Bangalore Development Authority, within the time granted for completion of the sale in question. He had also to secure and produce an Income-tax Clearance Certificate from the concerned Income-tax Authorities. Last but not the least, the Appellant/Vendor had to get the premises vacated from the tenants who were occupying a portion thereof. It was only if these steps were taken that the Vendor could be said to be ready for the execution of the sale in favour of the Vendee. From the nature of the duties cast upon the Vendor, it is further clear that each one of these duties involved the taking of some action on the part of third parties like the Bangalore Development Authority for the execution of the sale, the Income-tax Department for the issue of the Clearance Certificate and the tenants for the vacation of the premises in their occupation. In a case where the Agreement to Sell itself envisages performance of certain acts by one of the parties prior to the execution of the Sale Deed, which acts in their very nature may or may not have been completed within the time specified in the Agreement by reason of the fact that the third parties were involved in the completion of the same, 'time' could not be treated to be the essence of the contract. In our opinion, therefore, it is a case where far from displacing a presumption, the same is re-affirmed by the terms of the Agreement that 'time' was never intended to be the essence of the contract and that any digression from the time schedule by the parties was never meant to be a digression from something which lay at the very foundation of the contract between the parties. We have therefore no hesitation in rejecting the submission made by Mr. Katarki.
19. That takes us to the second and perhaps the more important limb of Mr. Katarki's argument. Mr. Katarki, submitted that even when time may not have been the essence of the contract, yet in order to succeed in the suit filed by the plaintiff he had to establish that he was at all material times ready and willing to perform his part of the contract. The plaintiff contended the learned Counsel, was not ready and willing to perform his part of the Contract, as, according to the learned Counsel, he did not possess the requisite funds to enable him to pay the balance of the sale consideration fixed between the parties. Mr. Katarki was at pains to demonstrate from the evidence led at the trial that the plaintiff had failed to prove his readiness and willingness thereby rendering his suit liable to be dismissed.
20. That a plaintiff in a suit for specific performance is obliged not only to aver in the plaint but even prove at the trial that he was at all material times ready and willing to perform his part of the contract, is not disputed, as indeed the same cannot be disputed in view of the specific provisions made in Section 16(c) of the Specific Relief Act. The question, however, is whether the plaintiff has succeeded in proving what he has admittedly averred in the plaint namely that he was always ready and willing to perform the essential terms of the contract required to be performed by him. As in all such cases so also in the present, there is a serious dispute between the parties on the issue. While the plaintiff has asserted in his sworn testimony that he was always ready and willing to perform his part of the contract, the defendant has denied the same, both in the written statement as also in the statement on oath recorded at the trial. Upon evaluation of the evidence, the trial Court was of the view that the plaintiff had succeeded in proving that he was ready and willing to perform his part of the contract. Even though we have been taken through the evidence extensively, we do not propose to refer in great detail to the testimonies of the parties on this contentious issue except in so far as the same is absolutely necessary. We, feel that the question can be better answered on the touch-stone of certain circumstances which have been brought to focus in the course of the trial as also in the course of the hearing before us. The first and the foremost out of these circumstances is the telegraphic notice which the defendant admittedly sent to the plaintiff on the Second of October, 1985 in which the defendant in no uncertain terms conveyed to the plaintiff Vendee that the plaintiff not having turned up to get the Sale Deed registered after paying the balance consideration amount, the Vendor/defendant was under no obligation to perform his part of the contract beyond 3rd of October, 1985. We have tried in vain to discover the rationale behind the service of this notice by the Appellant/Vendor particularly in view of the fact that the 'time' fixed for the execution of the Sale Deed, had been extended upto 10th of October, 1985. The refusal on the part of the Defendant/Vendor to go ahead with the sale in question on 3rd of October, 1985, even when the period fixed for that purpose expired on 10th of October, 1985 is hard to justify. We asked Mr. Katarki, learned Counsel appearing for the Appellant/Vendor, as to how his notice sent on 2nd of October, 1985, when the period fixed for sale had not yet expired, could prematurely refuse to honour the contract. Mr. Katarki, was at a loss to give any plausible explanation. According to him the notice was sent under a misconception that the time had expired on the 2nd of October, 1985 itself. We are not impressed by this argument for we see no reason why a party who is literate and has entered into an Agreement to Sell in respect of valuable property, could overlook an important detail as to the date on which the time of execution of the sale, would expire. We find it all the more difficult to accept the submission of Mr. Katarki in view of the fact that the defendant was fully assisted by a Lawyer of Mr. Katarki's eminence, who has himself sent the notice in question on behalf of the appellant.
21. The obvious inference is that the Appellant/Vendor had even before the expiry of the period fixed for the execution of the Sale Deed, declined to co-operate for the finalisation of the same, no matter the explanation for doing so is some alleged misconception in his mind as to the last date fixed for the execution of the Sale Deed, The Vendee's version that it was the Vendor who had withdrawn from the performance of the contract is therefore clearly borne out by this circumstance.
22. The other and an equally important circumstance is that the vendor had to secure the vacant possession of the premises from the tenants occupying the same for delivery to the vendee. This condition according to the vendee was not satisfied as the tenants had not vacated the premises till the 10th of October, 1985 and even later. The appellant, however, relied upon the testimony of D.W.2. Sridhar in his bid to prove that the tenants had actually vacated the premises before the 10th of October, 1985. We have been taken through the testimony of Shri Shridhar. According to him, the tenants had vacated the premises within six months from the date of the said Agreement. This suggests that the tenants had vacated the premises within even before July 1985. The witness however, does not know the names of the tenants except one Shri Ashok nor has he given the dates on which the tenants vacated the premises. In contrast the Appellant-Vendor has in his own testimony stated that one of the tenants Shri Govind had vacated his portion in July 1985 but the second tenant had only assured him that he would vacate whenever such a demand is made. He has further stated that the second tenant had vacated in the year 1985 itself but he could not give either the day or the month in which he did so. He claims to have obtained receipts regarding the delivery of possession from the tenants which receipts even though in his possession were not produced by him, at the trial. Keeping in view the obvious contradiction in the two versions namely one given by the vendor and the other by his witness, we find it difficult to hold that the tenants had actually vacated the premises even upto the 10th of October 1985. This is all the more so, keeping in view the fact that the receipts which the vendor claims to have secured from the tenants even though in his possession were not produced despite the fact that the production of the same as the best contemporaneous evidence would have supported the vendor's version. The withholding of these receipts would therefore lead to an adverse inference against the appellant, that had the same been produced they would have gone against him.
23. The third circumstance which goes to show that it was the vendor and not the vendee who had defaulted in the performance of the Agreement is the fact that the vendor had to secure a clearance Certificate from the Income-tax Department which Certificate he had not admittedly secured till the 10th of October, 1985 or even later. That apart the Appellant/Vendor had not even secured a Sale Deed in his favour from the B.D.A. which was one of the requirements of the Agreement to Sell before the Sale Deed could be executed by him in favour of the vendee. There is no explanation muchless an acceptable one forthcoming from the Appellant/Vendor as to why he had not performed his part of the Agreement if it was not he who was responsible for the failure of the transaction. As a matter of fact in terms of the conditions of the Sale Agreement, the vendor had to intimate to the vendee in writing about his preparedness for the execution of the Sale Deed in favour of the vendee which intimation admittedly was never sent to the vendor. Yet another important feature to which we must at this stage advert is the reply which the vendee had sent to the telegraphic notice of the vendor. In the said reply, the vendee had in specific terms expressed his readiness with the balance consideration and called upon the vendor to communicate the date on which the vendor would come to the office of the Sub-Registrar for registration of the Sale Deed. Interestingly however, the receipt of this reply notice has been denied by the vendor. The Plaintiff/Vendee has proved the reply notice Ext.P-3 and the certificate of posting Ext.P-4 as also the acknowledgment Ext.P-5. The certificate of posting and the acknowledgment (A.D) clearly show that the reply was not only posted but was even received on behalf of Shri Katarki, learned Counsel appearing for the appellant. Mr. Katarki, however urged that the person who had actually received the acknowledgement was not working with him as his Junior during the relevant period. He therefore contended that the receipt of the notice by one of his former Juniors cannot be made a basis to impute the knowledge of the reply sent by the vendee. We find it difficult to accept this submission. The acknowledgement has been produced at the trial and since it was known to the vendor that the service of the reply upon him would assume significance at the trial, he ought to have taken care to summon and examine the person who had actually received the notice on behalf of Shri Katarki, Advocate, if he were to contend that the person receiving notice was not actually working with Shri Katarki, at the relevant point of time. Even otherwise we see no reason why a Member of the Bar who had ceased to be associated with Shri Katarki should have accepted the notice addressed to Shri Katarki. We are not therefore inclined to accept the submission of Mr. Katarki, particularly when there is no material on record to support the same. That apart, the service of the reply notice upon the Appellant/Vendor must also be presumed given regard to the fact that the posting of the notice at the correct address of the appellant has been proved and there is no reason why it should not be presumed to have been duly served. If that be so, it is difficult for us to appreciate as to how the vendor could accuse the vendee of not being ready with either the sale consideration or otherwise for the execution of the Sale Deed. The denial in our opinion of the receipt of the Notice Ext.P-3, sent by the vendee is deliberate because once the receipt of said notice was accepted, the defendant would have had nothing to say in his defence for admittedly he had never communicated to the Plaintiff/Vendee the date or the time at which he would be prepared to execute the requisite Sale Deed, Given regard to all these circumstances which are firmly established, we find it difficult to hold that the Sale Deed was not finalised on account of the failure on the part of the vendee in arranging the balance amount of consideration, as alleged by the vendor. On the contrary, the material produced on record shows that the non-execution of the Sale Deed was by reason of the failure of the defendant in discharging his part of the contract. The plaintiff's version that he was ready and willing at all material times to have the Sale Deed executed in his favour cannot therefore be rejected. The finding of the trial Court to that extent is perfectly justified and is accordingly affirmed.
24. Mr. Katarki, however, strenuously urged that the plaintiff-vendee did not have the requisite funds to enable him to purchase the property by getting the Sale Deed executed. He referred to the evidence on record to show that the plaintiff having paid a sum of Rs. 2 lakhs by way of advance on different occasions was obliged to pay a further sum of Rs. 4,30,000/- as balance amount of consideration. As against this amount, contended Mr. Katarki, the plaintiff had only a sum of Rs. 1,24,000/- in his Account besides an over-draft facility of Rs. 2 lakhs in the Bank. According to him, the optimum which the plaintiff vendee could have arranged was Rs. 3,24,000/- an amount substantially less than the amount required by him to get the Sale Deed executed. He therefore argued that the defendant's version was more probable and ought to have been accepted by the Court. We find no substance in this submission also. It is true that after paying an advance of Rs. 2 lakhs the Plaintiff-Vendee had to organise something like Rs. 4,30,000/- besides stamps and registration charges yet in our opinion the evidence on record does show that the plaintiff did have a substantial part of the said amount available with him at any given point of time. Besides, the plaintiff/vendee is a businessman and it is obvious that no businessman would like to keep his capital blocked only with a view to show his readiness and willingness to make the sale transaction good. The least that can be said is that having shown the availability of a substantial amount of Rs. 3,34,000/-, the balance required by the vendee for payment as sale consideration and other expenses could have been raised by him from other sources. That apart we do not think that readiness and willingness of a purchaser would necessarily require him to prove that he had the requisite funds at all material times to go-through the sale transaction. What is required in our opinion is the vendee's capability to raise the requisite amount and not necessarily the actual availability of the amount with him as cash in hand at all times. That funds were available with the purchaser is at best a circumstance in itself to show that he could be said to be ready from the financial angle to go ahead with the sale, but just because money is available with the purchaser would not necessarily imply his readiness and willingness, in the same fashion as its absence would not show his waiver or refusal. It would therefore depend on the facts and circumstances of each case as to whether the plaintiff's financial position makes his readiness or willingness probable or otherwise. To the same effect is the view taken by a Single Judge of High Court of Allahabad, in SHAFIQ AHMED v. SMT. SAYEEDAN : AIR1984All140 where His Lordship observed thus:-
'It was argued that in another suit No. 13 of 1975 Mohammad Yasin stated on July 11, 1975 that he would arrange for Rs. 2,000/- on taking loan from someone else and this should suggest that he was not possessed of that ready money to take the sale. The lower appellate court has rightly declined to attach importance to this since it is settled that the plaintiffs did not have to establish that they had with them all the time ready the amount of the sale consideration. There being nothing to suggest that the plaintiffs were not in a position to raise this amount of Rupees 2000/- upon the resale being made, the readiness and willingness on their part is not adversely effected.'
25. In KIRPAL SINGH v. MST. KARTARO AND ORS. , a Division Bench of the Rajasthan High Court, held that while considering the question of readiness of the vendee the Court will have to take into consideration the entirety of the circumstances, conduct of the parties and the essential terms of the contract. Their Lordships further held that the very failure on the part of the vendee to purchase the stamp paper and prepare a draft Sale Deed did not suggest that the vendee did not have the requisite funds or the willingness to have the Sale Deed executed in his favour.
26. Keeping in view the totality of the circumstances attended upon this case we are of the opinion that the plaintiff/respondent was not only ready and willing to have the Sale Deed executed but had conveyed said readiness and willingness to the Vendor/Appellant in no uncertain terms and that the failure on the part of Defendant/Appellant to have the Sale Deed executed and registered in favour of the vendee was therefore unjustified. The trial Court therefore rightly decreed the suit filed by the Plaintiff-Vendee.
27. In the result we see no merit in this Appeal which is hereby dismissed but in the peculiar circumstances of the case without any order as to costs.