Appeal against dismissal of suit for specific performance. Court held appellant failed to prove readiness and willingness and explain long delay, meriting dismissal of appeal, though setting aside erroneous finding on agreement execution.
Appeal dismissed. Judgment and decree of trial court affirmed. Agreement execution finding set aside.
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2024:CGHC:39607
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 134 of 2010
... Appellant
versus
... Non-Appellant
(Cause Title is taken from Case Information System)
| For Appellant/plaintiff |
: Mr. Navin Shukla , Advocate |
|---|---|
| For State/respondent No. 2 | : M s. Saumya Sharma, Panel Lawyer |
| For Defendant No. 1/Respondent No. 1 | : Mr. Avinash Chand Sahu, Advocate |
| For respondent No. 3 | : Mr. Vidya Bhushan Soni, |
| Advocate holding the brief of Mr. | |
| B.P. Singh, Advocate | |
| For Proposed Respondents No. 4 and 5 | : Mr. Ravindra Sharma, Advocate |
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
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0 4.10.2024
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11,000/- as earnest money was not given to defendant No. 1; it is further held that defendant No. 1 had the right to alienate the property; and, the plaintiff had informed the purchaser, namely, Sanjay Agrawal with regard to the agreement to sell entered into between the plaintiff and defendant No. 1, thus, the learned trial Court dismissed the suit vide judgment and decree dated 10.08.2010.
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defendant No. 1 to the plaintiff, and the witnesses have supported the stand taken by Dulari Bai/defendant No. 1. It is further argued that later on, defendant No. 1 alienated the property through a registered sale deed in favour of defendant No. 3, who subsequently sold the property to respondents No. 4 and 5. It is also stated that the instant appeal deserves to be dismissed.
10. The plaintiff/appellant has to plead and prove readiness and willingness as held by the Hon’ble Supreme Court in the matter of Pydi Ramana alias Ramulu Vs. Davarasety Manmadha Rao reported in AIR 2024 SC 3242 , in paras- 13 to 15 as under:-
“ 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.
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. In the instant case, even according to the concurrent findings recorded by the courts below, it would emerge that the plaintiff had been able to successfully prove the sale agreement dated 07.06.1993 Ext. A-1 on which date Rs 2005 was paid by the plaintiff to the defendant. The evidence on record tendered by plaintiff came to be accepted by all the courts and judgments of courts below would also indicate that further amount towards sales consideration in a sum of Rs 17,000 was paid by the plaintiff to the defendant on 23.06.1993 and same was endorsed by him. As per the recital in the agreements, the defendant was required to get the suit land surveyed and as such the total consideration was agreed to be
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settled after such survey. On the one hand, the plaintiff contends that the defendant never got surveyed the suit land. On the other hand, pleadings and evidence of the plaintiff is silent on steps taken by the plaintiff as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the land being surveyed by the defendant. No witnesses have been examined on behalf of the plaintiff to establish that at any point of time there has been demand made by the plaintiff with the defendant by calling upon him to get the suit land surveyed as agreed under the agreement of sale Ext. A-1. It is for the first time after a period of 3 years from the date of agreement Ext. A-1, namely, on 30-5-1996 legal notice (Ex. A3) was got issued or in other words the plaintiff was silent for a period of 3 years in enforcing of the agreement of sale. It is for this specific reason the trial court while rejecting the prayer for decree of specific performance has recorded a categorical finding to the following effect:
21. The terms of the agreement xxx the period of one year. The plaintiff got issued a legal notice on 30.05.1996 Ex.A.3 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for two years after the expiry of one year period. The plaintiff vendee did nothing to act in furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested in finalizing the deal and showing his readiness and willingness to perform the essential terms of the agreement. Though the suit was filed within the period of limitation, it is not sufficient. In assessing the question of readiness and willingness of the party to perform his part of the contract. It is highly essential to take into account the long unexplained silence and inaction on the part of the plaintiff.
22. Plaintiff must perform his part of the contract within reasonable time. There was total inaction on the part of the plaintiff for 2 ½ years which was not consistent with the terms of agreement. From 6.6.94 to 30.5.96 i.e., for a period of 23 months, plaintiff sat quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of one year, within which he was expected to urge the defendant-vendor to get measurements of land and fix the sale price and to tender the balance amount and call upon the defendants to execute sale deed and deliver possession of the property.
As rightly pointed out by the trial court, the respondent-plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards ‘willingness’ of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:
a . Plaintiff got issued legal notice nearly after two years after the expiry of one year period as prescribed in the agreement.
b. Plaintiff has not brought anything on record to prove that he contacted the Defendant after the expiry of one year period and was interested in finalising the deed.
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c. There was total inaction of the Plaintiff from 06/06/1994 (expiry of one year period) to 30/05/1996 (Date of issuance of legal notice)
d. Suit was filed on 09/06/1997 i.e. after a period of more than one year from the date of issuing of legal notice. Said delay has not been sufficiently explained by the Plaintiff.
The continuous readiness and willingness is a condition precedent to grant the relief of specific performance.4 The trial Court has rightly held that plaintiff has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. As such the High Court and the First Appellate Court had erred in holding that plaintiff had proved his readiness and willingness.
15. The ratio of the above judgment in all force would be applicable to the facts on hand in the instant case. The agreement of sale (Ex.A1) was executed on 07.06.1993 and the date fixed for execution of the sale deed was one year from the date of measurement of the suit schedule property. Undisputedly no such measurement was carried out and plaintiff has not raised his little finger in this regard from the date of execution of agreement till he got issued legal notice dated 30.05.1996 that is almost for a period of 3 years and suit came to be filed only on 09.06.1997 at the fag end of the expiration of the limitation. The long unexplained delay in not taking any reasonable steps as is expected from a reasonable person is itself sufficient to disentitle the plaintiff to an equitable relief.5 It is no doubt true that suit for specific performance can be filed even on the last date of the limitation as prescribed under Article 54 of the Limitation Act. However, the steps taken by the plaintiff during this period namely from the date of agreement till date of filing of suit will have to be explained in the plaint and proved in the evidence which is lacking in the instant case. The long unexplained delay and silence on the part of the plaintiff in this regard while in the witness box would not entitle the plaintiff to a decree of specific performance and it is for this precise reason, the trial court as noticed supra has refused to grant the equitable relief which has been reversed by the appellate court without assigning proper and cogent reason and the one assigned are at tangent or in other words contrary to the facts. The resultant effect of filing the suit for specific performance on the verge of limitation coming to an end came to be examined by this Court in the matter of Rajesh Kumar v. Anand Kumar6 and held that plaintiff would not be entitled to the equitable relief (vide paragraph Nos. 14, 15, 16, 17 and 18). Hence, the appellant would succeed in this appeal. Point No. 1 is answered in favoured of appellant-defendant.
11. For specific performance of the contract, the plaintiff has to plead and prove readiness and willingness. "Readiness" shows his financial capacity to make payment of consideration, whereas, "Willingness" shows the conduct of the party. In the plaint, the plaintiff has nowhere stated that he had sufficient financial capacity to make payment of the balance amount
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of Rs. 2,89,000/-. In the evidence also, the plaintiff has not stated anything regarding his financial capacity, whereas, defendant No. 1 has stated that the earnest amount of Rs. 11,000/- was refunded by defendant No. 1 to the plaintiff. The contention made by defendant No. 1 with regard to refund of earnest amount cannot be accepted in absence of documentary evidence.
12. The plaintiff examined himself as PW/1 and, witnesses of the agreement to sell, namely, Suresh Khandelwal and Mohan Sethia, who proved the execution of the agreement to sell. In cross-examination, with regard to execution of agreement to sell, evidence of these witnesses remained unrebutted.
13. Taking into consideration the evidence of the plaintiff witnesses, the finding recorded by the learned trial Court with regard to execution of agreement to sell appears to be erroneous, and therefore, such finding is hereby set-aside. But at the same time, the plaintiff failed to prove his readiness to make payment, and this aspect has been considered by the learned trial Court while dismissing the suit.
14. An agreement was entered into between the parties, but the plaintiff failed to perform his part and on this ground, the Civil Suit filed by the plaintiff was liable to be and was rightly dismissed by the learned trial Court.
15. Taking into consideration the law laid down by the Hon’ble Supreme Court in the matter of Pydi Ramana alias Ramulu (supra) and the facts discussed above, I do not find any good ground to interfere with the judgment and decree passed by the learned trial Court. Accordingly, the instant First Appeal fails and is hereby dismissed . No order as to cost(s).
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16. A decree be drawn accordingly.
Sd/-
(Rakesh Mohan Pandey) Judge
$iddhant
3 issues framed by the court
Whether the appellant is entitled to specific performance of the agreement to sell considering the failure to prove readiness and willingness.
Whether the plaintiff sufficiently explained the long unexplained delay and inaction in performing his part of the contract.
Whether the finding of the trial court regarding refund of earnest money and execution of agreement required interference in the appeal.
Colour shows how this judgement treated each authority
Pydi Ramana alias Ramulu Vs. Davarasety Manmadha RaoFollowed¶32
AIR 2024 SC 3242 · Who else cites this
Rajesh Kumar v. Anand KumarReferred¶46
Rajesh Kumar v. Anand Kumar
2 provisions across 2 enactments
Manoj Kumar Agrawal
Sanjay Agrawal
Dulari Bai
State of Chhattisgarh
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
