MD Anwar Hussain Vs MD Khursheed Alam

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 52 of 2022

Md. Anwar Hussain, aged about 77 years, son of Late Habib Mia, resident of Digwadih No. 10, P.O.- Jealgora, P.S.- Jorapokhar, District- Dhanbad presently residing at Rehmatganj P.O. B Polytechnic, P.S. Bank More, District- Dhanbad.

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… … Defendant/Respondent/Appellant Versus

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Md. Khursheed Alam

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Md. Rizwan Ahmed.

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Both respondent No. 1 and 2 are sons of Hazi Altaf Hussain Resident of Digwadih No. 10 P.O. Jealgora, P.S. Jorapokhar, District- Dhanbad, Jharkhand.

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… … Plaintiffs/Appellants/Respondents ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Vibhor Mayank, Advocate For the Respondents : None ---

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Lastly heard on 27.02.2025

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13 /03.03.2025

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1. This appeal arises out of a suit for specific performance of contract of sale of immoveable property.

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2. This appeal has been filed challenging judgment dated 05.04.2022 (decree signed on 16.04.2022) passed by the learned District Judge-I, Dhanbad in Civil Appeal No. 24 of 2020. The appeal preferred by the plaintiffs has been allowed and the judgment dated 23.02.2019 passed by learned Civil Judge (Senior Division)-I, Dhanbad in Title Suit No. 73 of 2010 has been set aside. The defendant is the appellant.

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3. Inspite of service of notice, nobody has entered appearance on behalf of the respondents.

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4. This appeal was admitted for final hearing vide order dated 27.01.2025 on the following substantial question of law: -

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“Whether the learned first appellate court has committed a substantial error of law while reversing the decree of the learned trial court and failed to consider that readiness and willingness on the part of the plaintiffs was not proved as the plaintiffs failed

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in disclosing the source through which they would pay the balance consideration amount of Rs. 1,80,000/-?”

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Arguments of the appellant/defendant.

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5. The learned counsel for the appellant while referring to the plaint has submitted that the averments regarding readiness and willingness has been made in paragraph 9 of the plaint and has submitted that there is just a mere statement and no further details regarding the source of fund to pay the balance consideration amount has been disclosed in the plaint. Paragraph 9 of the plaint is quoted as under: -

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“9. That the plaintiffs are still ready and willing to purchase the said property morefully described in the schedule of the plaint by paying the balance consideration amount of Rs.1,80,000/- to the defendant besides incurring expenses for completion of the deed and the defendant is legally bound to execute registered sale deed in favour of the plaintiffs in terms of agreement dated 19.03.2008.”

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6. The learned counsel for the appellant further submits that the learned trial court had scrutinized the materials on record and framed the issue regarding readiness and willingness as issue No. VII and decided issue No. V, VI and VII together. However, the appeal has been admitted only on the point of readiness and willingness on the part of the plaintiffs.

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7. The learned counsel for the appellant has referred to the trial court’s judgment and has submitted that the evidence of PW-1(plaintiff) has been considered in details and in paragraph 26 of the cross examination PW-1 admitted that he had performed the marriage of his daughter in the year 2008 and paragraph 29 of his cross examination he deposed that “cdk;k jde dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA”, meaning thereby that in order to pay the balance amount he had made arrangements from his own people but did not prepare any document to this effect.

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8. The learned counsel for the appellant submits that the evidence of PW-1 goes to show that he had claimed to have made arrangement for payment of balance considerations from other persons and no details has been given in the plaint nor any further details has been given in the

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evidence and the plaintiff also admitted that no document for that purpose was prepared.

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9. The learned counsel for the appellant has submitted that the learned trial court after scrutinizing the materials came to specific finding in paragraph 11(iii) and held that the evidence of plaintiffs showed that the plaintiffs have no independent source of income so it must be held that the plaintiffs were neither ready nor willing to perform their part of contract. Paragraph 11(iii) of the trial court’s finding has been referred.

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10. The learned counsel for the appellant thereafter referred to the judgment passed by the learned appellate court and has submitted that the point of determination No. (1) as framed in paragraph 13 of the appellate court judgment relates to readiness and willingness on the part of the plaintiffs to perform the agreement and further referred to paragraph 15 of the appellate court's judgment to submit that the evidence of PW-1 was considered and reference was made to paragraphs 13, 15, 16, 17, 18, 24, 32 and 33 where PW-1 was said to have clarified the source of income as the plaintiff was an income tax payee and used to file GST and its return from his 'Biri making business'. The learned counsel for the appellant has also submitted that the appellate court has referred to further cross examination of P.W-1 that his 'Biri making business' in the name of ‘Aftab Bidi’ was ceased and was not functional and on the basis of the fact that he was filing his income tax and GST return, the appellate court recorded a finding that there was readiness and willingness on the part of the plaintiffs to perform their part of contract. The learned counsel has submitted that even the income tax returns /GST returns were not exhibited.

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11. The learned counsel for the appellant has further submitted that the appellate court has observed that it was upon the defendant to show that 'Bidi Making business' which was running in the name of ‘Aftab Bidi’ was closed earlier. The learned counsel for the appellant has submitted that the learned appellate court has not at all considered the evidence of PW-1 in paragraph 29 where he had specifically stated that he made arrangement for payment of balance consideration money from third party. The learned counsel submits that the appellate court has ignored the portion of cross

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examination of PW-1 in paragraph 29 which has material bearing in the matter. He has also submitted that the averments in the plaint did not disclose the source of arrangement of fund as to whether he was arranging the fund from his own source or he was arranging the same from third party.

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12. The learned counsel for the appellant has further submitted that the ultimate finding in connection with readiness and willingness is primarily based on the evidence of PW-1 and the finding recorded by the learned appellate court is at paragraph 15 of the judgement.

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13. The learned counsel for the appellant has submitted that the appellate court while reversing the finding in connection with readiness and willingness to perform the agreement has not even met with the reasons and the materials considered by the learned trial court.

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14. He has relied upon the following judgments: -

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a. U.N. Krishnamurthy (Since Deceased) Thr. Lrs. v. A. M. Krishnamurthy reported in 2022 SCC OnLine SC 840 paragraph 24, 25 and 46 on the point of readiness and willingness to perform the agreement.

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b. Judgment in Special Leave Petition (Civil) No. 13933 of 2021 (R. Shama Naik v. G. Srinivasiah) decided on 28^th November, 2024 paragraph 10 to 12 on the point of readiness and willingness to perform the agreement.

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c. Shenbagam and Others v. K. K. Rathinavel reported in 2022 SCC OnLine SC 71 and has submitted that the principal regarding readiness and willingness has been considered in the said judgment

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d. Srinivas Raghavendrarao Desai (Dead) by Lrs. v. Kumar Vamanrao alias Alok and Others reported in 2024 SCC OnLine SC 226 paragraph 25 to submit that the parties cannot be permitted to lead evidence beyond pleadings.

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15. He has submitted that in absence of any pleading referring the source of income to perform the part of the agreement to pay a balance

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considering amount, no evidence could have been led by the plaintiffs with regard to source of fund.

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16. The learned counsel for the appellant has submitted that the substantial question of law be decided in favour of the appellant. Findings of this Court.

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17. The case of the plaintiffs is that the plaintiffs and defendant has entered into an agreement dated 19.03.2008 whereby the defendant agreed to sell his land with structure to the plaintiffs for a total consideration amount of Rs. 2,80,000/-, out of which the plaintiffs paid Rs.1,00,000/- to the defendant in presence of witnesses. The balance consideration amount of Rs.1,80,000/- was to be paid by the plaintiffs at the time of execution of registered sale deed within a period of one year from the date of the agreement. When the oral request of the plaintiffs for execution of the registered sale deed dated 19.03.2008 got futile, the plaintiffs sent an advocate notice on 13.03.2009 to the defendant requesting him to execute the registered sale deed on receiving the balance consideration amount within a fortnight from the receipt of the said notice. Thereafter, the defendant sent a reply to the said legal notice admitted execution of the agreement for sale but expressed his intention that the defendant did not now want to sell the property and was ready to refund the advance money of Rs.1,00,000/- to the plaintiffs. It was asserted by the plaintiffs that the defendant neither refunded the amount of Rs.1,00,000/- nor executed the registered sale deed. According to the plaintiffs, they were still ready and willing to perform their part of contract by paying the balance consideration amount of Rs.1,80,000/-. According to the plaintiffs, the cause of action for the present suit arose on 19.03.2008.

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18. The defendant had filed written statement stating that the suit as filed and framed by the plaintiffs was not maintainable and the suit of the plaintiffs was barred by the law of limitation and also under the provisions of Specific Relief Act and Transfer of Property Act. The statement with regard to readiness and willingness to pay the balance consideration amount was denied in the written statement and it was asserted that despite repeated demand by the defendant the balance consideration amount was

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not paid within one year of the agreement of sale and due to non-payment of the amount, the defendant was not able to marry his daughter within the period of one year. It was also asserted that the plaintiffs never tendered the balance consideration amount to the defendant at any point of time inspite of demand by defendant. It was stated that the plaintiffs were tenants in the suit property and the defendant has filed a Title (Eviction) Suit No. 42 of 2010 which was pending. It was admitted that the plaintiffs had entered into a written agreement to sale dated 19.03.2008 with the defendant for purchase of the suit property being the tenanted premises on a total consideration of Rs.2,80,000/- and Rs.1,00,000/- was paid as an advance to the defendant. The defendant had retired from service and necessity for entering into the sale agreement arose in order to collect fund for the marriage of his daughter. It is further asserted by the defendant that the plaintiffs never showed any willingness to purchase the suit property nor they paid the balance consideration amount of Rs.1,80,000/-. Thereafter, the plaintiffs served a legal notice dated 13.03.2009 upon the defendant thereby pretend to purchase the suit property by paying balance consideration amount. The defendant sent a reply to the said notice on 21.03.2009 whereby the defendant clearly informed the plaintiffs that the agreement entered into by them was defeated for non-payment of balance consideration amount and requested the plaintiffs to take back the advance money, which was already paid. According to the defendant, the plaintiffs were never willing and ready to purchase the suit property.

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19. On the basis of pleadings of the parties, the learned trial court has framed altogether VIII issues for determination wherein the core issues are Issue No. V, VI and VII which is quoted as under: -

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“ Issue No. V : Whether the plaintiff is entitled for a decree of specific performance of contract on the basis of the agreement dated 19.03.2008?

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Issue No. VI : Whether the agreement dated 19.03.2008 is genuine?

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Issue No. VII : Whether the plaintiff was ready and willing to perform his part of any contract by paying the balance amount to the defendant?”

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20. Plaintiff No. 1 and one Vijay Kumar were examined as witness from the side of the plaintiffs. Vijay Kumar was a typist and a formal witness in connection with the notice dated 13.03.2009 and exhibited three documents, that is, legal notice, agreement to sell and certified copy of the deposition of the defendant in the Title Eviction Suit No. 42 of 2010 filed by the defendant against the plaintiffs. The defendant examined himself as D.W-1 and examined one more witness and exhibited only one document, reply to legal notice, as Exhibit-A.

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21. The trial court recorded the finding on the point of readiness and willingness as follows: -

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“7. All the above three issues are important, interconnected and interlinked to each other in the suit, so going to be discussed first together.

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In order to substantiate the pleading the plaintiff Khursid Alam has examined himself as P.W.1 in the present suit. According to him, he is plaintiff no.1 of the present suit and plaintiff no.2 is his uterine brother. The suit property is of Mouza Jorapokhar, Thana No. 10, Khata No.135, Plot No.3058 (part) Area 47 ft. from East to West and 13.5 ft. from North to South, consisting of three rooms and one courtyard. According to the plaintiffs, the price of the suit property was fixed Rs. 2,80,000/- out of which 1.00 lakh has been paid in cash to the defendant and advance and on agreement was executed on 19.03.2008. As per agreement, sale deed was being executed within one year after receiving balance consideration amount. This witness further deposed that he is always ready and willing to pay the balance consideration amount but the defendant deferred to execute the sale deed on the pretext or the other. According to the plaintiff, he has served legal notice on 13.03.2009 through his Advocate Mr. Rajesh Sinha and the defendant has replied legal notice on 21.03.2009. This witness has been cross examined by the defendant at length. In para-9 of cross examination, this witness deposed as follows: “ ftl ifjlj dks ysdj eSa eqdnek fd;k gWwa] mlh ifjlj dks [kkyh djokus ds fy, izfroknh us ge okfn;ks ij ,d eqdnek T.(E). S. 42/10 fd;k gSA ” In para-19 of cross examination, this witness deposed that before agreement there was negotiation and his father was present at that time. In para-15 of the cross examination, this witness deposed that on several occasions, he has made oral request to the defendant to execute sale deed after receiving balance consideration amount, but he has not requested any time in writing. In para-17 of cross examination,

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this witness deposed that he is paying income tax. In para-25 of cross examination, this witness admits that the defendant has retired from his service. In para-26 of cross examination, this witness admits that the defendant has performed marriage of his daughter in the year 2008. In para-29 of cross examination, this witness deposed as follows: “ cdk;k jde dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA ” In para-35 of the cross examination, this witness denied from the assertion of the defendant that he has no any balance consideration amount. In para-38 of the cross examination, this witness denied from the assertion of the defendant that there was arrear of rent against the defendant. On recall of this witness, agreement dated 19.03.2008 has been marked as Ext-2.

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P.W.2 is Vijay Kumar. This witness comes to prove the legal notice dated 13.03.2009, which has been marked as Ext-1.

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11. Considering the aforesaid facts and on perusal of case record and after going through the case laws cited by the parties, I would like to deal with some points before reaching to the conclusion on the Issue Nos. V, VI and VIII.

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(i)………………………….

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(ii)…………………………

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(iii) Whereas, the question of willingness and readiness is concerned in the present suit in hand, the plaintiffs have not filed or exhibited any cogent evidence in support of their averments that they have offered how many remaining consideration amount on which dates by which lawful means and mode i.e. by cheque or by demand draft. There is nothing to show that the plaintiffs approached the defendant for payment of rest consideration amount on particular date and time within stipulated period of one year. Moreover, it is settled principle of law as the Hon’ble Apex Court has held in case Reported in 2018 (2) J.B.C.J. 2030SC, Kalawati (D) Through LRs. & Ors. Vs. Rakesh Kumar and Ors. have pleased to hold that “by readiness it may be meant capacity of plaintiff to perform contract which would include financial position to pay purchase price as far as willingness to perform contract is concerned, conduct of plaintiff has to be properly scrutinized along with attendant circumstances.” On the case record, there is nothing to show or satisfies this court that the plaintiffs were in possession to pay balance consideration amount of Rs.1,80,000 if any. There was nothing to brought by the plaintiffs to show that there was legal source of income of the plaintiffs to pay

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remaining amount. On perusal of para-29 of P.W.1 namely Khursid Alama, who is plaintiff of the present suit, deposed as follows: “ cdk;k jde dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA ” So the evidence of plaintiffs show that the plaintiffs have no independent source of income, so it must be hold that the plaintiffs have neither ready nor willing to perform their part of the contract.”

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22. The suit for specific performance of agreement dated 19.03.2008 was dismissed and the trial court directed the defendant to return the amount of Rs.1,00,000/- [as received by the defendant] to the plaintiffs along with simple interest of 6% per annum.

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23. Since the substantial question of law is relating only to readiness and willingness in the part of the plaintiffs to perform their part of contract, that is, payment of balance consideration amount of Rs.1,80,000/-, other points are not relevant for the purposes of this case. On the point of readiness and willingness to perform the contract by the plaintiffs, the learned appellate court recorded findings in paragraph 15 whose relevant portions are as under: -

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“15. Applying the above equatable principles to the facts and circumstances of the case in hand, now I would like to go through with the Points for determination and in this respect taking up the Point No. 1 namely “readiness and willingness on the part of plaintiffs”, on mere perusal of plaint it would appear that in its paras 3 and 4 there was specific plea in this regard and for ready reference both paragraphs are reproduced herein as under:

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“3. That the plaintiffs were all along requesting the defendant to execute registered sale deed in their favour but the defendant was always deferring the matter either on one pretext or other.

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4. That the plaintiffs were and are always ready and willing to purchase the aforesaid property by paying balance consideration amount to be paid the defendant as also for getting the registration of sale deed complete.”

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Further on close perusal of oral evidence of PW-1 Md. Khursheed Alam who admittedly is the plaintiff No.1, I find that in the examination-in-chief on affidavit at paras 4, 6 and 7 consistently showed his eagerness readiness in paying balance amount of Rs 1,80,000 in favour of the defendant but later invariably was found reluctant in executing registered sale deed. During cross-examination at paragraphs 13, 15, 16, 17, 18, 24,

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32 and 33 he categorically has clarified the source of income, admitted the plaintiffs to be income tax payee who used to file GST and its return and deposed to the effect that he used to run Biri making business and paying income tax and GST return for that. From paragraphs 17 & 18 of cross-examination it would appear that their Bidi making business has been running in name and style as “Aftab Biri”. At para 37 he denied the suggestive question put to the effect that his Bidi business in brand name “Aftab Biri” has been ceased and not functional. Therefore, on collective reading of his examination-in-chief and cross examination, I find that it has effectively been explained and clarified by him that within 3-4 months of sale agreement the plaintiffs had arranged the balance amount and were and are capable in fulfilling the sale-agreement in accordance with its terms and condition. As far as suggestive question put during cross examination to PW-1 is concerned, it was upon the defendant to show that Bidi making business run in the name of “Aftab- Bidi” was closed earlier.

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.……. Applying the above principle of law in the present case, I find that PW-1 being one of the plaintiff and full brother of plaintiff No. 2 has specifically deposed that he had arranged the requisite amount of Rs 1,80,000 just after about 3-4 months of sale agreement. Therefore, the plaintiffs are not expected to exhibit the currency notes, as held in Pushpa’s case (supra) to show their readiness and willingness. In the ultimate analysis and on the basis of oral evidence of witnesses examined on behalf of either sides and main particularly after careful scrutiny of oral evidence of PW-1 who admittedly is the plaintiff No. 1, I come to the conclusion that the plaintiffs were and are capable enough financially to pay the balance amount of Rs. 1,80,000 and they just after 3-4 months of the sale-agreement had arranged/ managed the given amount which was to be paid in favour of the defendant. An inference may therefore be drawn out rightly that the plaintiffs have succeeded in establishing that they were and are ready and willing to perform their part of sale-agreement of handing over remaining amount of cash worth Rs 1,80,000. Accordingly, the Point No 1 is decided in favour of the plaintiffs and against the defendant and finding of the court below to the given effect above, is rejected…....”

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24. The plea regarding readiness and willingness to give balance consideration amount for the purpose of execution of sale deed has been mentioned in paragraph 3, 4, 5, 6, 8 and 9 of the plaint: -

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“ 3 . That the plaintiffs were all along requesting the defendant to execute registered sale deed in their favour but the defendant was always deferring the matter either on one pretext or other. 4 . That the plaintiffs were and are always ready and willing to purchase the aforesaid property by paying balance consideration amount. The plaintiffs are ready with money being the balance consideration amount to be paid to the defendant as also for getting the registration of sale deed complete.

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5 . That it may be mentioned here that after execution of the aforesaid agreement the defendant also received from the plaintiffs a sum of Rs.6,000/- in cash in the last week of April, 2008. But the defendant did not make any endorsement thereof over the agreement dated 19.03.08 and the plaintiffs, being well acquainted with the defendant from before, had/have full faith and trust upon the defendant. However, the plaintiffs are ready to purchase the property by paying balance consideration money of Rs.1,80,000/- only besides incurring expenses for completion of the deal.

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6 . That when oral requests of the plaintiffs for execution of registered sale deed in terms of agreement dated 19.3.08 proved futile, the plaintiffs got an Advocate notice dated 13.3.09 issued through their Advocate Sri Rajesh Sinha to the defendant requesting therein to execute registered sale deed on receiving the balance consideration amount within a fortnight from the receipt of the notice.

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8 . That inspite of several request of plaintiffs in presence of witnesses the defendant has not executed registered sale deed till now nor he has refunded the advance amount of Rs. 1.00 Lakh to the plaintiffs. Thus, the contract between the parties still subsists. 9 . That the plaintiffs are still ready and willing to purchase the said property morefully described in the schedule of the plaint by paying the balance consideration amount of Rs.1,80,000/- to the defendant besides incurring expenses for completion of the deed and the defendant is legally bound to execute registered sale deed in favour of the plaintiffs in terms of agreement dated 19.03.2008.

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25. Upon going through the averments made in the plaint, this Court finds that the plaintiffs simply stated that they were ready and willing to purchase the property by paying the balance consideration amount of Rs.1,80,000/besides incurring expenses for completion of the deed but the plaint does not have any foundational pleading in connection with the readiness of the plaintiffs to pay the balance consideration amount i.e. the sources from which the plaintiffs could make Rs.1,80,000/- available to themselves to

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pay the balance consideration amount to the defendant. The plaint does not refer to any date on which the plaintiffs approached the defendant to accept the balance consideration amount and to execute the sale deed except issuance of the legal notice dated 13.03.2009.

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26. In the judgment passed by Hon’ble Supreme Court reported in 2022 SCC OnLine SC 840 (Supra). It has been held in paragraph 46 that it is settled law that for the relief of specific performance the plaintiff has to prove that all along and till the final decision of the suit he was ready and willing to perform his part of the contract and it is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence and the crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would suffice. Section 16 of the Specific Relief Act, [as it stood prior to 01.10.2018] has been quoted in paragraph 23 of the judgement as under: -

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“ 16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-

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(a) Who would not be entitled to recover compensation for its breach; or

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(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

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(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms the performance of which has been prevented or waived by the defendant.

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Explanation.- For the purpose of clause (c),-

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(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

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(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”

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27. In paragraph 24 of the judgment it has been held that as per explanation (ii) to Section 16 (c) of the Specific Relief Act, 1963 the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction and it has been held in paragraph 25 that to aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. For an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.

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28. Paragraph 24, 25 and 46 of the aforesaid judgment are quoted as under: -

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“ 24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.

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25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which

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requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.

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46. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.”

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29. In the judgment passed by the Hon’ble Supreme Court in the Special Leave Petition (Civil) No. 13933 of 2021 (Supra) the principles governing the decree for specific performance of contract have been crystalized in paragraphs 8 to 12 of the judgment which is quoted as under: -

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“ 8. Section 16(C) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 01.10.2018) bars the relief of the specific performance of a contract in favour of a person who fails to aver readiness and willingness to perform his party of the contract.

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9. There is a legion of precedents on the subject of readiness and willingness.

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10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time.

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11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.

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12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff.”

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30. This Court while considering the materials on record in the light of the aforesaid judgements finds that there is no averment in the plaint with regard to the sources of fund on the basis of which the plaintiffs stated that they were ready and willing to give the balance consideration amount. In the evidence they stated that they had arranged money from third person

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but neither those persons were examined before the court nor any evidence with regard to any deposit and availability of money was given and the learned trial court had taken note of this fact and had recorded that no bank account statement was given as to where the money kept. This Court finds that the requirement of Section 16(c) of the Specific Relief Act, 1963 was not satisfied in the present case as the plaintiffs did not aver in the plaint with respect to his sources of fund from which it could be demonstrated that he was ready and willing to perform his part of the contract.

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31. The basic ingredient of Section 16(c) read with explanation (ii) of the Specific Relief Act, 1963 having not been satisfied, the learned first appellate court was not justified in reversing the judgement and decree of the trial court and decreeing the suit. Further, the learned appellate court recorded that the P.W-1 consistently showed the eagerness and willingness to pay the balance consideration amount and that he had source of income from biri making business and was paying income tax and furnishing GST return and that he had arranged the money within 3 to 4 months from the date of agreement and was capable of fulfilling the condition of the sale agreement but failed to consider that there were no documentary evidence to support such findings. Further, no specific date has come in the evidence as to when the plaintiffs approached the defendant to pay the balance consideration amount except the legal notice dated 13.03.2009 which was issued just 6 days before expiry of one year from the date of agreement and the stipulated period as per the agreement was one year. The P.W-1 stated in his evidence that he was ready with the fund within 3 to 4 months from the date of the agreement and except his statement, there is neither any pleading nor any evidence to support such a statement. It is also important to note that the learned appellate court has not at all considered the reasons/ discussions of the material evidence on the basis of which the learned trial court held that the plaintiffs did not show the readiness and willingness to pay the balance consideration amount for execution of the sale deed within a period of one year from the agreement. The learned trial court had, interalia , taken into consideration the material evidence of P.W-1 at paragraph 29 where the plaintiff no.1 stated that he had arranged money

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from others to pay the balance consideration but nothing was brought on record to show the availability of fund and that the plaintiffs were in possession of fund and further nothing was brought on record to show that the plaintiffs had independent source of income to pay the balance consideration amount on any particular date and time during the period of one year and no document was filed to show that the plaintiffs had the balance consideration amount in their account on any particular date and time within the period of one year from the agreement within which the sale deed was to be executed. The learned trial court had also considered the other attending circumstances and the materials on record and refused to exercise its discretion to decree the specific performance of the agreement. The learned appellate court has not met with the reasons cited by the learned trial court on the point of readiness and willingness to pay the balance consideration amount. It is true that the plaintiff in a suit for specific performance of sale agreement need not exhibit the currency notes to show their readiness and willingness to pay the balance consideration. However, it has been held by the Hon’ble Supreme Court in the case reported in 2022 SCC Online SC 840 (supra) paragraph 25 and 46 that the crucial facet has to be determined by considering all circumstances including availability of funds and mere statement in the plaint of readiness and willingness would not suffice and it has been held that to aver and prove readiness and willingness to perform an obligation to pay money in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. This position of law has been reiterated by the Hon’ble Supreme Court also in S.L.P. (Civil) No. 13933 of 2021 decided on 28^th of November 2024, para 8 and 10 that Section 16 (c) of the Specific Relief Act, 1963 (prior to 1.10.2018) bars relief of specific performance of contract in favour of a person who fails to aver readiness and willingness to perform his part of contract and that the law is well settled that the plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and

¶115

16

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documentary evidence to show the availability of funds to make payment in terms of the contract in time.

¶117

32. In the facts of this case the basic averment and statement with regards to availability of fund is totally missing in the plaint when seen in the light of the aforesaid two judgements and no documentary evidence has been filed to show the availability of funds to make payment in terms of the contract in time. The basic ingredient of Section 16(c) read with explanation (ii) of Specific relief Act, 1963 (prior to 1.10.2018) having not been satisfied, the learned first appellate court was not justified in reversing the judgement and decree of the trial court and was not justified in decreeing the suit.

¶118

33. Considering the totality of facts and circumstances, the substantial question of law as framed by this Court and quoted in paragraph 4 of this judgement is decided in favour of the appellant and against the respondents and consequently, this appeal is allowed and the judgment passed by the learned first appellate court so far it relates to readiness and willingness on the part of plaintiffs to pay the balance consideration amount, is set aside. Accordingly, the appellate decree is also set aside.

¶119

34. Pending interlocutory application, if any, is closed.

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35. Let this Judgment be communicated to the concerned court through FAX/E-mail.

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(Anubha Rawat Choudhary, J.)

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Rakesh/A.F.R.

¶123

17

MD Anwar Hussain v. MD Khursheed Alam

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MD Anwar Hussain v. MD Khursheed Alam

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