Manjusha Namjoshi, J.
1. Having lost in Trial Court the defendants/appellants have preferred this first appeal under Section 96 of the Code of Civil Procedure.
2. The plaintiffs had filed Civil Suit No. 22-A/1994 Bhagawandas and Anr. v. Harbans Singh and another, in the Court of District Judge, Hoshangabad for specific performance of sale of property under the Specific Relief Act (47 of 1963) (hereinafter called 'the Act'). The Trial Court decreed the suit on March 31st, 1999.
3. Aggrieved by the judgment and decree of the Trial Court appellants while preferring this appeal stated that the Trial Court did not consider, appreciated and evaluated the evidence and misapplied the law. It was further contended that the Trial Court also failed to appreciate that the time was the essence of the contract for sale of property and the plaintiffs were not ready and willing to perform their part of the contract.
4. The plaintiffs/respondents have contested the appeal and supported the judgment and decree of the Trial Court. At this stage it is not in dispute that parties entered into a written contract for sale of suit house situated in Pipariya District, Hoshangabad (M.P.). The consideration was Rs. 3,91,000/-out of which plaintiffs paid Rs. 91,000/- by way of advance/Bayana. Plaintiffs were doing business in the said premises in the name of Narsingh Das Kalyan-mal. The contract was executed on March 23rd, 1991. Under the contract the plaintiffs were obliged to get the sale deed executed by September 30th, 1991.
5. According to plaintiffs they were ready and willing to perform their part of the contract. They had ready money to pay off the remaining consideration and were also ready to get the sale-deed executed. But the defendants were avoiding to perform their part of the contract. On several occasions oral requests were made by plaintiffs to defendants but the defendants did not pay heed to it. Thereafter, a written notice was served by the plaintiffs on defendants (Ex. P-2) to get the sale deed executed. The defendants replied to it (Ex. D-1) and said that since the plaintiffs did not get the sale deed executed on or before October 15th, 1991 as per the terms of the agreement, the agreement had come to an end and the plaintiffs earnest money of Rs. 91,000/- stood forfeited. Thereafter the plaintiffs filed the suit on March 21st, 1994.
6. The written statement of defendants was just a statement of bare denial. It was filed on September 5th, 1995. But thereafter the written statement was amended on September 28th, 1996. By amendment defendants pleaded that the defendants who were dealing in sale of Petroleum products wanted to purchase a tanker and to meet the financial need for purchase of the tanker they intended to sale the said property. Thus the time was the essence of the contract and plaintiff did not comply with the terms of the agreement/contract therefore they forfeited the right to get the sale deed executed and they also forfeited the right to get the earnest money back.
7. The Trial Court was not in agreement with the defendants' contentions, believed the version of the plaintiffs and therefore it decreed the plaintiffs' suit.
8. The points for determination in this appeal are :-
(a) Was the time essence of the contract ?
(b) Whether the plaintiffs were ready and willing to perform their part of the contract ?
9. This Court answers these points as under :-
Generally speaking under Section 55 of the Indian Contract Act (9 of 1872) time is not the essence of contract in cases of immovable properties. But it can be of essence if the terms of the Contract so speak. In the present case the agreement (Ex. P-1) does not speak that time was essence of the contract. The intention of the defendants to purchase Tanker by sale price of the house was not at all incorporated in the written agreement. In reply to plaintiffs notice the defendants did not say so. Even in the written statement the defendants did not say so. But thereafter they amended the written statement in 1996 and for the first time they said it accordingly. Thus obviously, this was just an after thought. Plaintiffs witness (P.W. 2) Laxman Singh in his deposition in Para 2 says that defendants had said that they wish to purchase tanker after selling the said property. But this was just wishful thinking and not the genuine need. Had this been the real need, the defendants might have incorporated the term in the agreement, could have replied in the reply to the notice of the plaintiffs and at the initial stage should have incorporated the fact in the written statement, but despite full and complete knowledge, thereof, have failed to do so.
10. The appellants have called upon the attention of this Court to two citations : (i) K.S. Vadyanadam and Ors. v. Viravan (AIR 1997 SC 175) and M/s. P.R. Deb and Associates v. Sunanda Roy : [1996]3SCR163 . In K.S. Vadyanadam's case it was said by the Apex Court that certain time limit prescribed for taking steps by one or other party may not amount to making time essence of the contract but must have some significance. In present case there was no inaction from the purchaser. The plaintiffs were frequently pursuing the defendants to get the sale deed executed. The plaintiffs have examined themselves and they also examined few other witnesses namely (P. W. 3), Mohanlal (P.W. 4), Madanlal (P.W. 5), Beniprasad and (P.W. 6) Narayan Das who have in one voice said that the plaintiffs did ask the defendants in their presence, to get the sale deed executed but they use to avoid on this or that pretext and therefore sale deed could not be executed. There is no reason to disbelieve the plaintiffs evidence, which appears to be natural and trustworthy.
11. The second citation put forwards by the appellants was that of M/s. P.R. Deb. In that case, appellant had to purchase certain property out of the part of the sale price. But the vendee did not make the part payment under the agreement. In that case there was specific contract in this regard.
12. The evidence of the defendants is just formal examination of the defendants. Their evidence does not show that they had dire need to purchase a tanker. They have also not explained why this term was not incorporated in the agreement nor they were able to explain why this fact was not pleaded initially in the written statement. Defendant Harbash Singh (D.W. 3) in Para 3 of his statement admits that he and his brother Ajit Singh (P.W. 2) did not serve any notice on plaintiffs that since plaintiffs did not get executed the sale deed within the specified time, the contract has come to end. This fact has also been admitted in Para 7 by defendant Ajit Singh (D.W. 2).
13. Thus to conclude this point generally time is not the essence of the contract in sale and purchase of immovable property. But Court can look into the circumstance of each case. The circumstances might be reluctancy of the vendee to purchase the property, inaction to take suitable steps in reasonable time thereby allowing the price of the property to escale high and clear cut intention of the vendor to utilize the returns for express purpose stated in the agreement. Under such circumstance time may be the essence of the contract and in these cases it would be inequitable to give relief of specific performance to the purchaser.
14. Let us come to the second point regarding readiness and willingness.
What is readiness and willingness. The Apex Court has in Para 2 of its judgment in His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar : AIR1996SC2095 , said that there is distinction between readiness to perform and willingness to perform the contract. By readiness may be meant the capacity to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. In Smt. Rai Rani Bhasin and Ors. v. S. Kartar Singh Mehta : AIR1975Delhi137 (DB), also a distinction was drawn between readiness and willingness to perform the contract. The substance was while readiness may mean the capacity of the plaintiff to perform the contract which includes his financial ability to pay the purchase price but in case of willingness to perform his conduct has to be properly scrutinized.
15. Let us see the facts of the case. Defendant Harbansh Singh (D.W. 2) admits in Paras 5 and 6 of his statements that the firm Narayan Das and Narsingh Das firm is a large business firm and is paying Rs. 6,000/- per month as rent of the suit accommodation. It is a fact that this firm belongs to plaintiffs. See deposition Para 10 of the P.W. 1 Bhagwan Das the plaintiff and Para 6 of D.W. 3 Harbansh Singh the defendant. He further says that he does not know whether the plaintiffs had deposited the consideration amount in bank or not. Plaintiffs have filed two certificates from State Bank of India, Piparia Branch. Exhibit P-12 is dated 21st August, 1998. It shows that plaintiff Bhagwan Das has Rs. 1,52,659.38 balance on 21-8-1998. Certificate Ex. P-11 is dated 21st August, 1998. It shows that Madhav Das has Rs. 1,52,840.65 balance on 21-8-1998. Plaintiffs who are paying Rs. 6,000/- as rent per month and having a large business may be deemed to have sufficient funds to pay of Rs. 3,00,000/- or it can be presumed that they can easily raise that much of amount.
16. Plaintiffs have by Ex. P-2 specifically directed to the defendants to appear before the Sub-Registrar of Documents on a particular date to get the sale deed executed. But instead of appearing and getting the sale deed executed they replied the notice and rescinded the contract. The plaintiffs had filed an application Ex. P-6 before the Sub-Registrar of Documents registering their presence in its office.
17. The plaintiffs had also filed two affidavits each before the Tehsildar in this respect. The plaintiffs have in their pleadings and in their deposition also stated that they were and are still ready to perform their part of the contract. The defendants have challenged that the pleadings of plaintiffs on the ground that they are not in accordance with the Proforma Nos. 47 and 48 of Appendix No. A of the Code of Civil Procedure (5 of 1908). If we go through the pleadings of the plaintiffs it will reveal that it is according to the proforma. Secondly, these proformas are model forms. If one use them in substance to cover the necessary ingredients as expected under any law the purpose is served and it will be deemed that sufficient compliance has been done.
18. In Mahesh Chandra Gupta v. A.K. Mishra 1999(2) JLJ 386 (DB), it was held that if plaintiff has deposed about availability of funds and pleads readiness and willingness to perform his part of the contract and had told the vendor to perform his part of the contract there is no absence of requisite pleadings. Thus, one can safely say that the substantive provision contained in Section 16(C) of the Act does not insist upon a particular set of words, the averment must, in substance, indicate the continuous readiness and willingness of the plaintiff to perform his part of the contract for sale of property from the date of agreement till the date of hearing. In this case, the defendants have tried to delay the execution of the sale deed. Hence, specific performance in favour of plaintiffs can not be denied. Even if, the price of property might have gone high during this period. In this regard case of Babulal Agarwal v. Jyoti Shrivastava and Ors., 2000(1) MPLJ 102, may be referred. In which it was held that escalation of price of property during pendency of litigation can constitute no ground to refuse specific performance. In Mohini and Ors. v. Vidhyawati Rathore and Ors. 2004(3) M.P.H.T. 68 = 2004 (2) MPLJ 169, it was plaintiff who was responsible to delay the execution of sale deed and hence, specific performance was refused.
19. Thus, on perusal of the evidence on record and the judgment of the Trial Court it is clear that the Trial Court did not commit any mistake in evaluating and appreciating the evidence. It has come to a proper conclusion. In Madhusudan Das v. Smt. Narayani Bai and Ors. : [1983]1SCR851 , it was held that the general rule is that the Appellate Court should permit the finding of fact rendered by the Trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the Trial Court or there is sufficient balance of improbability to displace its opinion as to where the credibility lies.
20. It was argued that without filing tax clearance certificate under Section 230A of the Income Tax Act, transfer of property can not be effected. May it be true, but this is no ground refusing or allowing specific performance. In Mahesh Chandra Gupta v. A.K. Mishra 1999(2) JLJ 386, it was held that where there was an agreement to the effect that vendor should get the land measured before execution of sale deed arid he failed td do so it will be deemed that time was not the essence of the contract. Therefore, on this count also it can be said that time was not essence of the contract.
21. The appellants/defendants have urged that since the Trial Court did not frame the issues correctly therefore, the appeal deserves to be allowed and judgment of the Trial Court ought to be set aside. Both parties were alive to controversies in the case. Parties had ample opportunity to adduce evidence on all facts in issue and had adduced evidence on all counts hence, at this stage such contention has no force.
22. As a result, the appeal fails and is dismissed with costs in both the counts and the judgment and decree of the Trial Court is upheld. Counsels fee as per Schedule or as certified and whichever is less.