Govind Kumar Mishra Vs Shyam Sundar Agrawal

Shyam Sundar Agrawal, Natural Father Harichandmal Agrawal, Adopted Father Late Kesrimal Agrawal, Aged about 60 years, Occupation Business, R/o Sadar Bazaar, Kedargali, District Raigarh (C.G.)

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---- Defendant/Respondent No. 1

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Jai Prakash Mittal S/o Shri Sajan Kumar Mittal Caste Agrawal aged 61 years, R/o Main Road Bargarh, District Bargarh (Orrissa)

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---- Respondent No. 2

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For Appellant/Plaintiff	:	Dr. N.K. Shukla, Senior Advocate along with Mr. Vivek Mishra, Advocate
For Respondent No. 1/	:	Mr. D.L. Dewangan, Advocate
Defendant
For Respondent No. 2	:	Mr. Manish Upadhyaya, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey Judgment on Board

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11.09.2024

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Heard.

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1. The appellant/plaintiff has filed this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') challenging therein the judgment and decree passed by the III^rd Additional District Judge, FTC, Raigarh (C.G.) in Civil Suit No. 24A/2007 dated 30.09.2010 whereby the civil suit was dismissed.

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2. The plaintiff instituted a civil suit for specific performance of contract inter alia on the ground that defendant/respondent No. 1 was the owner of land bearing Survey No. 218/2 situated at Village Jagatpur, Patwari Circle No. 14, Raigarh. The parties entered into a Sale Agreement on 14.07.2003. The consideration settled between them was Rs.2,01,600/-. The Agreement was signed in the presence of the witnesses. According to the condition mentioned in the Agreement, the sale deed was to be executed within a period of 06 months. At the relevant time, the plaintiff was working as a Chief Judicial Magistrate in the State Judiciary. On 18.07.2003, the plaintiff moved an application before the High Court for the grant of permission to purchase a plot and the same was allowed on 10.09.2003. Part-payment of Rs. 1,91,206/- was also sanctioned from the GPF Account of the plaintiff on 26.09.2003. In the meantime, the sale of the subject land was stayed by the Collector. On 30.12.2003, the plaintiff sent a letter to defendant/respondent No. 1 showing his willingness and readiness to perform his part. The advance amount given by the plaintiff to the defendant was refunded through a banker's cheque by defendant No. 1 on 23.03.2006 and this fact was intimated to the plaintiff on 15.04.2006. Thereafter, a notice was issued and a suit was filed wherein relief was sought for the performance of the contract by the defendant.

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3. The defendant/respondent No. 1 filed a written statement and stated that the time was the essence of the contract. It is further pleaded that the plaintiff failed to perform his part within the period of 06 months; therefore, he is not entitled to the relief sought. The learned trial Court

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framed issues and held as under:-

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(i) The Agreement entered into between the parties is not in existence,

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(ii) It is not proved that the advance amount was refunded on the instruction of the plaintiff,

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(iii) The plaintiff could not prove that he was ready to perform his part,

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(iv) The plaintiff is not entitled to the relief of specific performance of the contract.

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The learned trial Court found proved that time was the essence of the contract and vide judgment dated 30.09.2010 dismissed the suit.

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4. Dr. N.K. Shukla, learned Senior Counsel appearing for the plaintiff would argue that pursuant to the Agreement dated 14.07.2003, earnest money of Rs.20,000/- was paid through cheque to the defendant/respondent No. 1 in the presence of Shiv Kumar Sharma and Sanjay Kumar Mishra. He would further argue that as per the conditions of the Agreement, due permission was obtained from the Department to purchase the property on 10.09.2003 and an amount of Rs. 1,91,206/- was sanctioned on 26.09.2003. He would also argue that vide letter dated 30.12.2003 (Ex. P/7), the defendant was intimated with regard to readiness and willingness and he was requested to execute the registered sale deed. He would further submit that the colonizer license was granted to the defendant on 01.02.2006 as an application for the development of the colony was moved by the defendant. Dr. N.K. Shukla, learned Senior Counsel, would also submit that on 23.03.2006 without consent of the plaintiff,

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the defendant refunded the earnest amount of Rs.20,000/-. He would argue that the letter was sent by the defendant to the house of the parents of the plaintiff knowing fully well that the plaintiff was posted at some other place. He would state that a notice was sent by the plaintiff on 18.04.2006 requesting the defendant to perform his part. He would further state that on 30.04.2006, a complaint was made before the Police Station, City Kotwali, Raigarh. He would also state that notices were sent to the defendant on 04.05.2006 and 30.05.2006, but no response was given. He would contend that the suit was preferred on 28.12.2006 as the cause of action arose on 18.04.2006 and subsequently, on 01.07.2006 when a reply of paper publication was given by the defendant. He would further contend that the learned trial Court dismissed the suit holding that the Agreement dated 14.07.2003 was not in existence on the date when the suit was filed and the plaintiff failed to prove readiness and willingness to perform his part. He would also contend that the plaintiff sent 04 notices requesting the defendant to execute the sale deed vide Ex. P/7 dated 30.12.2003; Ex. P/8 dated 18.04.2006, Ex. P/10 dated 04.05.2006 and Ex. P/11 dated 30.05.2006. He would submit that the notice was published in the Newspaper also. He would further submit that there was a stay on the sale of the suit property as the defendant did not have a colonizer license and the same was granted subsequently on 30.12.2005, therefore, the cause of action arose thereafter. Dr. N.K. Shukla, learned Senior Counsel, would further argue that the notice was sent by the plaintiff at the correct address vide Ex. P/7, therefore, the evidence given by the defendant appears to be incorrect in this regard.

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He would further submit that the plaintiff and the defendant are local residents of Raigarh and they know each other, therefore, it can be presumed that there were oral requests for execution of the sale deed and this fact has been pleaded in paragraphs 11, 27, 44, 47 of the written statement. He would also argue that the evidence of PW-1 would make it clear that the plaintiff was ready and willing to perform his part and to make payment of consideration to execute the sale deed. He would also submit that the judgment passed by the trial Court deserves to be set aside. It is also pleaded that the cause of action arose on 15.04.2006 and the suit was filed on 28.12.2006 thus, the suit was within limitation. He would contend that the learned trial Court recorded incorrect findings with regard to the service of notice dated 30.12.2003 (Ex. P/7).

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5. On the other hand, Mr. Ghanshyam Patel and Mr. Manish Upadhyay, learned counsels appearing for the respective respondents, would oppose the submissions made by Dr. N.K. Shukla, learned Senior Counsel.

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6. Mr. Ghanshyam Patel, learned counsel appearing for defendant/respondent No. 1, would submit that the Agreement was entered into between the parties on 14.07.2003 and the suit was filed on 28.12.2006, whereas permission was granted by the Department of the plaintiff in the year 2003 itself. He would further submit that the defendant never received the notice dated 30.12.2003 sent by the plaintiff showing his readiness and willingness to execute the sale deed. He would also submit that the earnest amount was refunded by the defendant when the plaintiff failed to perform his part. He would

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argue that the time of 06 months was stipulated in the Agreement itself and the plaintiff failed to perform his part during that period. He would further argue that the plaintiff-PW 1 in cross-examination, particularly at para-36 has admitted the fact that the period for performance of the contract was 06 months. He would also argue that the plaintiff has further admitted the postal receipt Ex. P/19 and notice Ex. P/7. He would state that the plaintiff has further admitted that Ex. P/19 does not contain the name of defendant No. 1. He would further state that PW-3 Dev Lal Dewangan has admitted in cross-examination that on 18.04.2006 the plaintiff withdrew an amount of Rs.15,000/- from his account. It is also admitted that between 14.03.2003 to 31.03.2009, at that point in time, there was no minimum balance of Rs.1,80,000/- in the bank account of the plaintiff. It is argued that after the dismissal of the suit filed by the plaintiff, the defendant sold the property to respondent No. 2. He would further argue that the Agreement was entered into between the parties on 14.07.2003 and the suit was instituted after the expiry of 03 years. He would also argue that according to the provisions of Section 16 of the Specific Relief Act, 1963, it is mandatory to plead and prove the fact that the plaintiff was always ready and willing to perform his part. In support thereof, he placed reliance on the judgments passed by the Hon’ble Supreme Court in the matters of Pydi Ramana alias Ramulu Vs. Davarasety Manmadha Rao reported in AIR 2024 SC 3242 ; K.S. Vidyanadam and Others Vs. Vairavan reported in (1997) 3 SCC 1 and J.P. Builders and Another Vs. A. Ramadas Rao and Another reported in (2011) 1 SCC 429 .

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7. I have heard learned counsel appearing for the parties and perused the records of the trial Court.

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8. In the matter of Pydi Ramana (supra), the Hon’ble Supreme Court observed and held in paras- 13 to 15 as under:-

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“ 13. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates "readiness and willingness" of the plaintiff to be averred and proved and it is a condition precedent to obtain the relief of specific performance.

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14. There is a distinction between the terms "readiness" and "willingness". [His Holiness Acharya Swami Ganesh Dassji v. Sit Ram Thapar, (1996) 4 SCC 526]. "Readiness" is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. "Willingness" is the conduct of the party. ……..”

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9. In the matter of J.P. Builders (supra), the Hon’ble Supreme Court has observed in paras- 25 and 27 which are reproduced herein below:-

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“ 25. Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff.

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27. It is settled law that even in the absence of the specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time, “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.”

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10. In the matter of K.S. Vidyanadam (supra), the Hon’ble Supreme

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Court has observed in paras- 10 to 13 which are reproduced herein

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below:-

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“ 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 timelimits 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-limit(s) 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 a Constitution Bench of this Court in Chand Rani v. Kamal Rani, (1993) 1 SCC 519 (SCC p. 528, para 25)

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"... 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 (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."

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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 (It is a well-known fact that the steep rise in the price of oil following the 1973 Arab-Israeli war set in inflationary trends all over the world. Particularly affected were countries like who import bulk of their requirement of oil). 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'

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period specified therein for completing the sale expired with 15-6-1979. 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 plaintiff's story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first tum 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. It is not the plaintiff's case that within six months", he purchased the stamp papers and offered to pay the balance consideration. The defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW 2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile (i.e., on the expiry of six months from the date of agreement), he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between 15-12-1978 and 11-7-1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2 1/2 years, the prices went up three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2 1/2 years, he has been repeatedly asking the defendants to get the tenant vacated and execute the

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sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15-12-1978 till 11-7-1981, i.e., for a period of more than 2 1/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendants’ case that the values of the house property in Madurai town were rising fast and this must have induced the plaintiff to wake up after 2 1/2 years and demand specific performance. 11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sunkaralinga Nadar v. P.T.S. Ratnaswami Nadar, AIR 1952 Mad 389 holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality -- and the reality is constant and continuous rise in the values of urban properties -- fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the eamest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2 1/2 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. The 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

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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 non-existent? 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).

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12. Shri Sivasubramaniam relied upon the decision of this Court in Mademsetty Satyanarayana v. G. Yellogi Rao, AIR 1965 SC 1405, wherein it has been held:

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"As Article 113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that field. Diverse situations may arise which may induce a court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal." (emphasis supplied)

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Subba Rao, J., speaking for the Bench, pointed out the distinction between Indian law and the English law on the subject and stated the conclusion in the following words:

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"While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. .... It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him

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such a relief."

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13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.”

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11. From a perusal of the record, it is quite vivid that an Agreement was entered into between parties on 14.07.2003 in the presence of two witnesses, namely, Shiv Kumar Sharma and Sanjay Kumar Mishra with regard to sale of a plot admeasuring 2880 sq. ft out of Survey No. 218/2 at the rate of Rs. 70/- per sq. ft. and total consideration was Rs.2,06,600/-. The earnest amount of Rs.20,000/- was given through cheque no. R.N.D. 677637 payable at Punjab National Bank. A period of 06 months was fixed for the execution of the sale deed as the plaintiff had to obtain permission from the department. Permission was granted to the plaintiff to purchase the property vide memo dated 10.09.2003 and an amount of Rs.02 lacs was sanctioned by the department on 26.09.2003. On 30.12.2003, a letter was sent by the plaintiff to the defendant to perform his part. It was also informed that the plaintiff had managed the funds to make payment of the balance consideration amount and he was ready to perform his part. The letter dated 30.12.2003 (Ex. P/7) would show that it was sent to the defendant at the following address:-

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“ Shri Shyam Sundar Agrawal, Purana Sadar Bazar, Raigarh, District Raigarh (C.G.) ”

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12. The period of 06 months mentioned in the agreement came to an end on 13.01.2004. It is pleaded by the plaintiff that there was some dispute with regard to the agreed plot as the defendant did not have a colonizer license, and therefore, time was taken by the defendant himself. It is also pleaded that the defendant approached many times to the plaintiff and every time he was assured by the defendant. It is also pleaded that in the month of December, 2005, the plaintiff got information that a colonizer license had been issued in favour of the defendant. It is also pleaded that the earnest amount of Rs.20,000/was refunded by the defendant through banker's cheque No. 02222737 dated 23.03.2006 behind his back in his account. A legal notice (Ex. P/15) was sent by the plaintiff to the defendant and thereafter suit was filed. The plaintiff examined himself as PW-1 and Shiv Kumar Sharma as PW-2. In the affidavit filed under Order 18 Rule 4 of CPC, the plaintiff repeated the plaint averments. In the crossexamination admitted that in Agreement Ex. P/1, the survey number and the area of the plot were not mentioned and it was not typed and later it was mentioned by hand. He has also admitted that there was a fixed period of 06 months for the execution of the sale deed. He has also admitted the fact that amount of Rs.20,000/- was refunded and the same was deposited in his bank account without informing him. The defendant has taken a specific stand that he never received the letter dated 30.12.2003 and that letter was never served upon the defendant. The plaintiff in his evidence at para-39 has admitted that he never received acknowledgement of Ex. P/7 and its postal receipt is Ex. P/19. He further admitted that in postal receipt Ex. P/19, the name

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of Shyam Sundar Agrawal is not mentioned but the name of his firm is mentioned. He also admitted that after notice Ex.P/7, no notice was sent to the plaintiff to execute the sale deed.

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13. PW-2 Shiv Kumar Sharma stated that an Agreement was entered into between the parties and a cheque of Rs.20,000/- was given by the plaintiff to the defendant. He further stated that he approached the defendant along with the plaintiff 4-5 times. It is also stated that a notice was given to the defendant before the expiry of 06 months to perform his part.

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14. PW-3 Devilal Dewangan, Special Assistant, Punjab National Bank, Raigarh stated that a cheque was issued by the plaintiff in favour of the defendant to the tune of Rs.20,000/- and the same was encashed. This witness has stated that Rs.15,000/- was withdrawn by the plaintiff on 18.04.2006. It is also stated that between 14.03.2003 to 31.03.2009 amount of Rs.1,80,000/- was not available at any point in time in the bank account of the plaintiff.

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15. The defendant examined himself as DW-1. He admitted the fact that an Agreement was entered into between the parties and an amount of Rs.20,000/- as earnest money was received by him. 06 months' time was fixed for the execution of the sale deed. He denied the suggestion that a notice dated 30.12.2003 was given by the plaintiff showing his readiness and willingness. This witness denied service of notice dated 30.12.2003 (Ex. P/7). He further stated that no steps were taken by the plaintiff within a period of six months from 14.07.2003. He further admitted the fact that with regard to the colonizer license, the matter remained pending before the authorities from 2004-2006.

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16. The learned trial Court held that the Agreement entered into between the parties is not in existence. The plaintiff failed to prove that the Agreement entered into between the parties is still in existence; the parties failed to prove that the earnest money was refunded on instructions of the plaintiff; the plaintiff failed to prove readiness and willingness to perform his part of the contract; it is proved that the time was the essence of the contract and the plaintiff is not entitled to get relief of specific performance of the contract and thus, the civil suit was dismissed.

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17. From a perusal of the Agreement (Ex. P/1) it is apparent that the plaintiff had to approach the defendant for execution of the sale deed within 06 months from 14.07.2003. The plaintiff had taken permission from the department on 10.09.2003 and the fund of Rs.2 lacs was also sanctioned by the department on 26.09.2003. A notice was sent vide Ex. P/7, but from its postal receipt, it is apparent that it was never sent to the defendant. In postal receipt Ex. P/19, the name of the defendant is not mentioned. Even acknowledgement of that registered notice was not received by the plaintiff. It appears that when the plaintiff could not perform his part, the earnest amount of Rs.20,000/- was refunded on 23.03.2006 through a banker’s cheque vide Ex. D/1. Intimation was also sent to the plaintiff in this regard and after receiving the earnest amount and intimation, a legal notice was sent by the plaintiff on 14.06.2006 and thereafter the suit was filed on 28.12.2006.

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18. In the matter of Pydi Ramana (supra) the Hon’ble Supreme Court has held that to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has

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always been ready and willing to perform the terms of the contract. The terms “readiness and willingness” have also been considered and explained. The term “Readiness” means the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. “Willingness” means the conduct of the party. It is also held that Section 16( c ) of the Specific Relief Act, 1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. The plaintiff has to aver and prove a continuous “readiness and willingness” to perform the contract and the onus is on the plaintiff. [See: J.P. Builders (supra)].

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In the present case, with regard to the financial capacity of the plaintiff, there is no document. The Bank Officer was examined and stated that between 14.03.2003 to 31.03.2009, the amount of Rs.1,80,000/- never remained in the bank account of the plaintiff. With regard to readiness and willingness within a specific period of 06 months, no notice could be served upon the defendant. The postal receipt Ex. P/19 would show that notice Ex. P/7 was not sent to the defendant with the correct name as the name of the defendant is not mentioned in that receipt, therefore, it cannot be said that to establish readiness and willingness any notice was sent by the plaintiff to the defendant.

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19. In the matter of K.S. Vidyanadam (supra), the Hon’ble Supreme Court while dealing with the issue of the period of limitation mentioned in the agreement held that if the time is not the essence of the contract, the Court may infer that it is to be performed in a reasonable

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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. It is further held that the prices of the property have been going up sharply over the last few decades.

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The Hon’ble Supreme Court held that the court should also bear in mind that the parties prescribe certain time-limit(s) in agreement 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).

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20. Taking into consideration the above-discussed facts and the law laid down by the Hon’ble Supreme Court and the provisions of Section 16( c ) of the Specific Relief Act, 1963, in the opinion of this Court, the learned trial Court has rightly dismissed the suit filed by the plaintiff.

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21. Consequently, this appeal fails and is hereby dismissed . No order as cost(s).

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22. A decree be drawn accordingly.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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vatti

Govind Kumar Mishra v. Shyam Sundar Agrawal

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Govind Kumar Mishra v. Shyam Sundar Agrawal

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