Dismissed

Shri. Mustafa S/O Gajabarasab Mujawar, v. Sri. Salim S/O Shoukatsab Mulla

Karnataka HC12 Oct 2021RFA/4149/2013

Case brief

AI extract

What is this about?

Specific performance was refused because the purchaser failed to prove readiness and willingness to pay the balance consideration. The Court rejected additional financial evidence, dismissed the appeal and upheld refund with interest, clarifying that recovery could proceed against the property subject to prior charges and the seller's default.

What the court decided

AI extract

Shri. Mustafa S/O Gajabarasab Mujawar, Vs Sri. Salim… — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.N.DESAI

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RFA NO.4149/2013

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BETWEEN:

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SHRI MUSTAFA S/O. GAJABARASAB MUJAWAR, AGE:44 YEARS, OCC: BUSINESS R/O.PLOT NO.115, SECTOR NO.2 OPPOSITE NAGANOOR SWAMI KALYAN MANTAP SHIVABASAV NAGAR, BELGAVI

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...APPELLANT

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(BY SRI. N.G.RASALKAR, ADV.) AND

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SRI SALIM S/O. SHOUKATSAB MULLA AGE: MAJOR OCC: BUSINESS R/O. CTS NO.900/A A.K.DESHPANDE GALLI (FORT ROAD) BELGAUM

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SRI KHALID IBRAHIM S/O. SHOUKATSAB MULLA AGE: MAJOR OCC: BUSINESS R/O. C/O. CTS NO.900 A.K.DESHAPANDE GALLI (FORT ROAD), BELGAUM (SINCE DECEASED) REPREENTED BY HIS LEGAL HEIRS 2.(A). SMT. SABIHA W/O. DECEASED KHALID KHALID IBRAHIM S/O. SOUKATSAB MULLA, AGE: 46 YEARS, OCC: HOUSEHOLD,

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R/O: C/O: CTS NO. 900, A.K.DESHAPANDE GALLI, (FORT ROAD), BELGAVI.

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2(B). SHRI. MAAZ S/O. DECEASED KHALID, KHALID IBRAHIM, AGE: 22 YEARS, OCC: STUDENT, R/O:C/O CTS NO. 900 A.K.DESHAPANDE GALLI, (FORT ROAD), BELGAVI, REPTD., BY HIS MOTHER and GUARDIAN SMT. SABIHA W/O. DECEASED KHALID IBRAHIM MULLA, BELGAVI. 2(C) KUMAR MUEEZ S/O DECEASED KHALID IBRAHIM S/O. SOUKATSAB MULLA, AGE: 17 YEARS, OCC: STUDENT, R/O C/O: CTS NO. 900, A.K.DESHAPANDE GALLI, (FORT ROAD) BELGAVI, REPTD., BY HIS MOTHER and GUARDIAN SMT. SABIHA W/O. DECEASED KHALID IBRAHIM MULLA, BELGAVI.

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2(D) KUMARI. AMNA D/O S/O. DECEASED MULLA, AGE: 14 YEARS, OCC: STUDENT, R/O R/O C/O. CTS NO. 900, A.K.DESHAPANDE GALLI, (FORT ROAD) BELGAVI, REPTD., BY HER MOTHER SMT. SABIHA W/O. KHALID IBRAHIM MULLA, BELGAVI.

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…RESPONDENTS

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(BY SRI. SHIVARAJ S.BALLOLLI, ADV. FOR R1; SRI. S.S.HEGDE, ADV. FOR R2 R2(A) & RW(B) ARE SERVED R2(C-D) ARE MINORS REP. BY R2(A))

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THIS RFA IS FILED U/S 96 R/W ORDER XLI RULE 1 AND 2 OF CPC 1908 R/W. SEC 5(1) OF THE KARNATAKA HIHG COURT ACT, 1961, AGAISNT THE JUDGMENT AND DECREE DTD.27.04.2013 PASSED IN O.S.NO.6/2006 ON THE FILE OF THE I

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ADDL. SENIOR CIVIL JUDGE, BELGAUM, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.

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RESERVED FOR JUDGMENT ON: 13.9.2021

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JUDGMENT PRONOUNCED ON : 12.10.2021

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant/plaintiff challenging the judgment and decree passed by the I Addl. Senior Civil Judge, Belgaum dated 27.04.2013 in O.S.No.6/2006, wherein the suit of the plaintiff came to be partly decreed with costs. The relief prayed regarding specific performance of contract came to be dismissed and trial court ordered for refund of advance amount of Rs.4 lakh from defendant No.1 to the plaintiff with interest at the rate of 6% p.a. from the date of suit till its realization.

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The brief case of the plaintiff is that plaintiff instituted a suit seeking relief of specific performance of contract in respect of the suit

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property which is a part and parcel of CTS No.900/A measuring 52-09 square meters consisting of one storied shop premises, measuring 9 ft x 20 ft towards front side and a residential premises measuring 9 ft x 40 ft situated at Aralikatti Deshpande (Fort Road) Galli, Belgaum situated within the boundaries shown in the schedule of the plaint.

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Plaintiff case in brief is that Defendant No.1 who is the owner of the property and Defendant No.2 is the brother of defendant No.1. During the month of October, 2003, the defendant No.1 was in need of money for the purpose of meeting his legal necessities, therefore, he took out the suit property for sale. The plaintiff after learning this, approached defendant No.1 and expressed his readiness and willingness to purchase the suit property. After mutual negotiations between the parties, the defendant No.1 found that the sale price quoted by the plaintiff being the highest prevailing market value and in the process, he agreed to sell the suit

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property to the plaintiff for sale consideration amount of Rs.12,11,786/-. In this regard, an agreement of sale came to be executed on 22.10.2003. The plaintiff paid a sum of Rs.2,00,000/- in cash to the defendant No.1 as advance sale consideration. Thereafter in the month of December, 2003, the defendant No.1 approached the plaintiff and requested him to make arrangement for paying further sum of Rs.1,50,000/- in cash as he was in need of the said amount. Accordingly, as per the request of the defendant No.1, the plaintiff made the arrangement of the funds and paid a sum of Rs.1,50,000/to the defendant No.1 on 15.12.2003. In acknowledgment of the receipt of the said amount, supplementary agreement of sale dated 15.12.2003 was got reduced into writing by mentioning all the terms of sale contract as well as payment of advance sale consideration amount from time to time. It is further contended that the plaintiff was ready and willing to pay the balance sale consideration amount to the defendant No.1 as

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per the terms of agreement. But defendant No.1 went on postponing the sale transaction stating that he has to arrange deliver actual vacant possession of the suit property. It is further contended that during the year 2005, in the month of March, defendant No.1 once again approached the plaintiff and requested him to arrange for the payment of Rs.50,000/- only in cash. The plaintiff paid a sum of Rs.50,000/- to the defendant No.1 on 18.03.2005 and the same came to be registered in the office of sub-registrar, Belgaum.

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It is further contended that the plaintiff was insisting the defendant No.1 to execute the sale deed by receiving the balance sale consideration amount and to complete the sale transaction as per the agreed terms and deliver possession of the suit property. Defendant No.1 went on postponing the same. Then the plaintiff found that there was encumbrance entry of Sri. Samarth Urban Cooperative Credit Society Ltd., Belgaum for a sum of Rs.5,00,000/- under the registered deed of mortgage

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dated 4.3.2004. After noticing the said fact, the plaintiff found that the defendant No.1 by suppressing the execution of the agreement of sale in favour of plaintiff has misled the said Society and secured the loan of Rs.5,00,000/-. A registered deed of mortgage dated 04.03.2004, came to be registered between defendant No.1 and said society. Then immediately, plaintiff approached defendant No.1 and asked him to complete the transaction and deliver the possession, but defendant No.1 avoided the same. Thereafter, the plaintiff issued a legal notice dated 09.08.2005 asking the defendant No.1 to execute the sale deed by receiving the balance sale consideration and deliver the possession of suit schedule property and make free the suit property from any encumbrance.

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But this defendant No.2 in reply stated that defendant No.1 executed the sale deed dated 16.08.2005 in favour of defendant No.2 and the same was registered on 18.08.2005 in his favour.

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It is contended that defendant Nos.1 and 2

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are the brothers and defendant No.2 had knowledge of an agreement of sale between the plaintiff and defendant No.1. Further defendant Nos.1 and 2 in collusion with each other managed to return the said legal notice and in the process of collusion with each other, got created such a fictitious document styled as the alleged sale deed dated 16.08.2005 registered on 18.8.2005 which is of no value in the eye of law. Defendant No.1 is defaulted to plaintiff by entering into any such subsequent transaction with society and also defendant No.2. Hence, the plaintiff filed a suit for specific performance of contract of the sale and in the alternative, the plaintiff also sought for refund of Rs.4 lakh paid by him to the defendant No.1.

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Defendant No.1 filed written statement. He

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has denied the plaint averments as all false. He has admitted that he agreed to sell the suit property for sale consideration of Rs.12,11,786/and also admitted about receiving the amount of

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Rs.2,00,000/- as earnest money on 22.10.2003 and executing the agreement. He has contended that as he has to clear the debts, he asked the plaintiff to pay balance sale consideration amount and to get the sale deed registered. But plaintiff, instead of paying remaining consideration amount, paid only as sum of Rs.1,50,000/- and promised that he will got registered sale deed in a stipulated time. Even thereafter, plaintiff did not pay remaining consideration amount. Since creditors of the defendant No.1 were pressurising him to clear their loans, defendant No.1 availed loan of Rs.5 lakh from Samarth Co-operative Credit Society limited, Belgaum and cleared the said loan which he availed from his friends and relatives. Even after execution of supplementary agreement of sale deed dated 15.12.2003, defendant No.1 made several requests

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to plaintiff to pay balance consideration amount and get registered sale deed in his favour. But plaintiff went on postponing the matter on one or the other pretext. Even he waited for six months, plaintiff in

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spite of repeated requests did not pay the balance amount. In view of the harassment by the creditors from whom he has taken loan, defendant No.1 requested the plaintiff to perform his part of contract. On 18.03.2005, plaintiff told that, he will pay entire balance consideration amount and get registered sale deed in his favour and took this defendant No.1 to Sub-Registrar Office Belgaum. At that time, the defendant No.1 met with an accident and he was discharged from hospital day before the registration of such instrument in Sub-Registrar office, Belgaum. Without looking into the contents of the document, he has signed the document in the Sub-Registrar and thereafter the defendant demanded the plaintiff to pay remaining balance consideration amount, for which plaintiff informed him that he has got executed only deed of agreement for sale and as per the agreement of sale, he has to pay a sum of Rs.50,000/- only. Therefore, as no alternative way left for this defendant No.1 to accept and receive that amount and returned back to

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his house. Further defendant No.1 came to know that the plaintiff will not pay any balance consideration amount. Therefore, because of the pressure of creditors, this defendant was to repay loan amount to those persons and was to repay loan which he availed from Urban Co-operative Credit Society, thus defendant No.1 was constrained to alienate the suit property in favour of defendant No.2. Accordingly, he executed sale deed in respect of suit property in favour of his brother – defendant No.2 and same was got registered on 18.8.2012. It is contended that it was also the intention of mother of defendant No.1 that, suit property must remain in the family only. Then defendant No.1 cleared of entire loan raised on suit property on 30.07.2005 and taken permission to alienate suit property to defendant No.2. It is further contended that the time was the essence of contract.

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The plaintiff should have completed the transaction within the stipulated time, therefore the suit filed by plaintiff for specific performance of agreement of sale is not maintainable. He has denied all other

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contentions of plaintiff as all false. It is contended that the plaintiff has cheated this defendant with malafide intention to delay the execution of sale deed, payment and made defendant No.1 to suffer loss. Though defendant No.1 was demanding the plaintiff to pay entire amount, he has not paid the amount. On the other hand, the agreement of sale was executed without his knowledge, for third time by making only part payment. Now defendant No.1 after selling the property in favour of defendant No.2, left the Belgaum and was residing at Gujarat State. Therefore, he has not received any legal notice, but some how he came to know about this and he appeared before the court. He has contended that he was forced to alienate the property to clear his debt as the plaintiff did not pay the balance sale consideration amount. Therefore, the defendant prays to dismiss the suit.

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Defendant No.2 filed the separate written

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statement and he has also denied that the plaint averments are false. It is contended that the father

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of defendant No.2 made a oral gift in favour of defendant No.1 who accepted the said oral gift in respect of suit property. Thus, defendant No.1 became owner of suit property. Thereafter, defendant No.1 made oral gift in faovur of his mother. Even mother of defendants accepted that gift made in her favour by defendant No.1. Thereafter, the mother of defendants executed registered gift deed in favour of defendant No.1 who has accepted the same. The mother and father of defendants desired that, their property should not go in the hands of strangers and same should be retained by their family members only. It is further contended that, defendant No.1 told that, it is the responsibility of defendant No.2 to pay interest-free deposit received by him, from tenants occupying portion of suit property. Suit property was subjected to mortgage with Samarth Co-operative Credit Society Limited Belgaum. This defendant No.2 repaid mortgage amount with interest in the presence of directors of said co-operative credit

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society. Therefore, the defendant No.2 has become the owners of property and it is within the knowledge of plaintiff.

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The contention of the plaintiff that it is a fictitious sale deed executed by defendant No.1 in favour of defendant No.2 is denied. There is no cause of action as averred in the plaint and the suit of the plaintiff is barred by law of limitation. With these contentions, the defendant No.2 prayed to dismiss the suit.

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The trial Court based on the above pleadings framed the issues and additional issues and recasted issues 1A, 1B, 1C and issue Nos.2 to 4 of additional issue.

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“Recasted Issue No.1A: Whether plaintiff proves that, on 22/10/2003 defendant No.1 entered into agreement for

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sale with respect of suit property with plaintiff and has received an amount of Rs.2

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lakhs as advance amount as averred in the plaint?

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“Recasted Issue No.1B: Whether plaintiff further proves that, on 15/12/2003 defendant No.1 entered into supplementary agreement for sale in respect of suit property in favour of plaintiff and received an amount of Rs.1,50,000/- as advance consideration amount?

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“Recasted Issue No.1C: Whether plaintiff proves that, defendant No.1 agreed to sell suit property to plaintiff for total consideration of Rs.12,11,786/and executed registered agreement of sale deed dated 18/3/2005 in favour of plaintiff after receiving total advance amount of Rs.4 lakhs as contained in said registered deed of agreement of sale?

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Issue No.2: Whether the plaintiff proves that he was always ready and willing to

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perform his part of the contract and to get the sale deed executed?

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Issue No.3: Whether the plaintiff is entitled for the specific performance of the contract? If not to what relief?

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Issue No.4: Whether defendant No.2 proves that he has purchased the suit property by paying the encumbrances created by the defendant No.1 under a valid sale deed?

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Issue No.5: Whether the suit is bad for nonjoinder of necessary parties?

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Issue No.6: What order or decree?

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Additional Issue No.1: Whether plaintiff proves that, defendant No.2 purchased suit property with notice of prior agreement?

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Additional Issue No.2: Whether suit of the plaintiff is time barred?

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proves that he was always ready and willing to perform his part of the contract and to get the sale deed executed?

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Before the trial Court, the plaintiff got examined himself as PW.1 and another witness by name Sri. Abdul-Gani s/o Mohamadsab examined as PW2 and 20 documents were marked as Exs.P1 to P20. Defendant No.1 was examined as DW1 and two other witnesses as DW2 and DW3 and got marked 16 documents as Exs.D1 to D16. After hearing the arguments, the trial Court partly decreed the suit. Aggrieved by the same, this appeal is preferred.

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Heard the learned counsel for the appellants and learned counsel for respondents.

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Learned counsel for the appellant Sri. Narayan G.Rasalkar, argued that judgment and decree passed by the I Additional Senior Civil Judge, Belgaum, in dismissing the relief of specific performance of contract of sale is contrary to the evidence and facts. The trial Court has not

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appreciated Section 16(c) and Section 19 of the Specific Relief Act 1963 and erroneously declined the relief. It has not considered Section 20(2) (a) (b) (c) of the Specific Relief Act, 1963. The learned counsel also argued that the plaintiff has averred in the plaint and issued legal notice and also mentioned in the same regarding readiness and willingness to perform his part of contract. Even today, he is ready but inspite of that, the trial Court has not granted relief of specific performance. In this regard, he has relied upon the decision of Supreme Court in Motlal Jain Vs. Ramadsi Devi (200) 6 SCC 420 AIR 2000 SC 2408 para 9, 10, and 11

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The learned counsel also argued that it is not necessary that always the plaintiff must have cash in hand. On the other hand, he has got sufficient income and cash with him. The trial Court overlooked the same.

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The learned counsel argued that the trial Court failed to appreciate the oral and documentary evidence. The limitation point is also not properly

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appreciated as there was also obligation on the part of defendant No.1. Since the said premises was occupied by tenant and possession was not with the defendant No.1 who dragged the performance of agreement of sale. Therefore the question of plaintiff not ready to perform his part of contract does not arise. Learned counsel argued that without bringing to the notice of plaintiff, the defendant raised a loan from Samarth Cooperative Society Ltd., Belgaum and this conduct of defendant No.1 itself shows that some how he wants to defraud the plaintiff. On the other hand, he entered into another agreement by receiving Rs.50,000/cash and got registered agreement of sale without clear encumbrances. Subsequently, he has even sold the property to his own brother-defendant No.2. Defendant Nos.1 and 2 in collusion with some persons have created the sale deed. On the other hand, plaintiff had balance amount ready in his hand. In this regard, the plaintiff has produced documents the same has not been properly appreciated.

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Learned counsel argued that he has filed two applications one to produce additional evidence and another is additional evidence in proof of those documents. In IA No.1/2015 under Order 41 Rule 27 r/w 15 of CPC. It is contended that he is a business man running a business in Belgaum for the last 40 years. In the cross examination, he has stated that he has not produced any document of business and due to ignorance he could not produce those document such as the income tax report, sales tax department document to show turnover. He could not obtain those documents from the Charted Accountant.

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He has sold the properties at Gokak, taluk. He has also got gold ornaments worth Rs.4,00,000/-. He could not produce the documentary evidence of his jewels. While recording of evidence during trial, he could not produce those documents. He has prayed to permit him to purchase the same.

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He has filed another application under Order 41 Rule 27 of CPC to produce certain documents. In

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the affidavit he has contended that the trial Court has rejected his plaint stating that he has no enough money in the hand and he has no capacity to pay the balance amount. In order to prove the same, he has converted floating asset into currency and deposited amount in the State Bank of India, Belgaum. Due to Covid-19, he could not produce those documents. Therefore, to show that adequacy of source income and capacity and readiness he prayed to permit him to produce the additional evidence and to produce those documents and lead additional evidence.

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Learned counsel for the appellant argued that the finding given by the trial Court in this regard needs interference and he be given an opportunity to lead both documentary and oral evidence to show his capacity to pay balance consideration amount. Learned counsel also argued that though the trial Court found that sale deed is fictitious one but not ordered to set aside the said sale deed, which has resulted in miscarriage of justice. Learned counsel also submitted that the

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matter requires reconsideration and if the matter is remanded back to trial Court giving an opportunity to the plaintiff to adduce both oral and documentary evidence in support of his contention of proving his capacity and having the amount with him, he will be in a better position to prove his case. Learned counsel also submitted that now since defendant No.1 has sold the property to defendant No.2, it will be very difficult for the plaintiff to recover the said amount from defendant No.1 in view of mortgage of the said property to Samarth Cooperative Society Ltd. In support of his contention learned counsel relied upon the decisions in 1997 AIR (SC) 463 between Pandurang Ganpat Tanawade Vs. Ganpat Bhairu Kadam, para 8 and 9, (1997) 4 SCC 481, between Bibi Jaibunisha Vs. Jagadish Pandit and Others, 1996 AIR(SC) 2510, between Sukhbir Sing Vs. Brij Pal Sing, (2001) 4 SCC 488 between Tek Chand and Others V. Deep Chand and others. With these contentions, learned counsel

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prayed to allow the appeal by setting aside the judgment.

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Against this, the learned counsel Sri. Shivaraj S.Ballolli, for respondent No.1 argued that there are three agreements. First agreement is dated 2/1/2003 and amount of earnest money paid was only Rs.2,00,000/- and there was time limitation of six months within which sale deed has to be obtained. Six months is came to end. The second agreement is dated 15/12/2003 wherein the same stipulation about six months was already there and the entire consideration amount is not paid. The third agreement is dated 8/3/2005. There also only a sum of Rs.50,000/- is paid. Learned counsel argued that if plaint para Nos.4, 5 and 6 are perused, it is evident that it is defendant No.1 who approached the plaintiff asking him to pay entire consideration amount and get the sale deed registered. But it is the plaintiff who has no capacity, does not pay the consideration amount and went on paying little amount and went on executing

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agreement. Since defendant No.1 has to clear the dues and plaintiff was not ready to pay the entire amount, the said property was mortgaged to Society. The learned counsel also argued that the contention of the plaintiff that it is on account of defendants failed to perform his part of contract, the sale deed could not be executed is not true. If at all it is on the part of defendant No.1 for non performance of part of contract by defendant No.1 sale deed could not have been executed, then reason for executing the second and third agreement should have been mentioned showing that it is on account of the failure of defendant No.1 subsequently agreement came to be executed. On the other hand, there is nothing in the said agreement as to why subsequent agreement came to be executed. Therefore, the defendant failed to perform the contract cannot be inferred from the said document. On the other hand, what can be inferred is, it is the plaintiff who has no capacity to pay the balance consideration amount went on postponing the same by not paying the

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amount. The learned counsel also argued that the trial Court has rightly considered all the aspect and held that though the agreement of sale is admitted by dependent No.1, the plaintiff was never ready to perform his part of contract. The trial Court has rightly rejected the relief of specific performance.

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The learned counsel also argued that at this stage, the plaintiff cannot be permitted to lead additional evidence and the documents produced by the plaintiff has no evidentiary value at all. No income tax return is filed. Simply producing the letter of the auditor which has no evidentiary value and income tax returns for the assessment year 2011-12 are of no use as agreement is of the year 2003-04 and 2004-05, therefore, producing subsequent years income tax return will not show readiness and willingness as on the date of agreement or as on the date of the filing of the suit. Therefore, learned counsel argued that the additional evidence filed by the plaintiff is of no use to decide suit. Further the FD receipts are also of

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the year 2015, which are Fixed Deposit even long after disposal of the suit and after filing of this appeal. These FD receipts are stated to have been made by the appellant. They cannot be taken into consideration to come to conclusion regarding the readiness and willingness on the part of the plaintiff.

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The learned counsel argued that only for the purpose of producing some evidence. The learned counsel argued that no grounds were made out to permit the plaintiff to adduce any such additional evidence and they does not meet requirement of Order 41 Rule 27 CPC. There is no due diligence and no proper reasons stated in affidavit as to why those documents could not be produced earlier. Learned counsel further argued that the plaintiff has not produced any evidence to show that he was ever ready and wiling to perform his part of the contract. On the other hand, the evidence shows that it is the defendant who went on demanding performance of the contract and payment of consideration but it is the plaintiff failure which has resulted in executing

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of the sale deed. Learned counsel relied on the decision of the Supreme court in AIR 1997 SC 1751

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between K.S. Vidyanadam and others Vs. Vairavan at para 12 and 13 and contended that this is not a case of mere delay, but case of total inaction. The learned counsel argued that plaintiff is not entitled for discretionary relief of specific performance of contract. Regarding willingness and readiness, the learned counsel relied on the decision reported in 2001 SC page 2920 between Veerayee Ammal Vs. Seeni Ammal at para 12, 13 wherein the Supreme Court considered as to how an agreement of sale document has to be construed. For appreciating the document the express terms of contract, the nature of property and the surrounding circumstances will have to be taken into consideration. Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within reasonable time and that reasonable time should be determined by looking at all the surrounding circumstances including the

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express terms of the contract and nature of the property.

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Learned counsel argued that the period of limitation for performance of contract was mentioned in the second agreement also but within that period, the plaintiff did not perform his part contract. Though there was a stipulation that the defendant has to deliver the possession, but that alone cannot be taken into consideration so as to grant relief of specific performance. Learned counsel relied upon the decision in ILR 2014 KAR page 233 between

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Padmini Raghavan Vs. Ha.Sonnappa and Others at para 40 wherein the Division Bench of this Court has considered the various aspect of Specific Relief Act, particularly with reference to the judgment of the Supreme Court under Section 16 of the Specific Relief Act.

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The learned counsel also argued that simply mentioning in the legal notice and assertion in the witness box is not a proof of readiness and willingness to pay the balance sale consideration.

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The plaintiff should not only aver, but also prove the readiness and willingness to the satisfaction of the Court since it is a question of fact. The evidence of the plaintiff should satisfy the Court that he was ready to pay the balance consideration amount. Only based on such evidence, the trial Court has rightly come to the conclusion that plaintiff was not willing to perform his part of contract and party decreed the suit.

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The learned counsel relied on another decision reported in ILR 2015 KAR 2695 in the case of V.P.Venkatesh vs. G. Padmavathi , wherein the learned single Judge of this Court has considered the aspect of readiness and willingness as contemplated under the Specific Relief Act. The learned counsel relied upon another decision of this Court dated 23.8.2019 , in the case of Venkatswamy Reddy vs. Muniyappa and others, in RFA No.2293/2006 , wherein in that suit time was held as essence of contract. The counsel relied on paragraph No.43. Therefore the learned counsel

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argued that the appeal deserves to be dismissed and also the application for additional evidence is to be rejected.

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From the above arguments, evidence and material, the points that arise for my consideration are as under:

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i) Whether the appellant/plaintiff has made out a ground to show that he could not produce additional evidence which now he indents to produce, with due diligence at the time when he led evidence or whether those documents are essential for just decision of this appeal or suit?

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ii) Whether the trial Court finding on issue No.1 that the plaintiff has proved the agreement of sale is correct?

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iii) Whether the finding of the trial Court on issue No.2 that the plaintiff was not ready and willing to perform his part of contract is based on proper appreciation of evidence before the trial Court?

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iv) Whether the judgment of the trial Court is illegal, capricious and needs interference by this Court?

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I have perused the judgment passed by

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the learned Judge of the trial Court. Learned trial Judge has answered recasted issue No.1(a) (b) and (c) together. It is also evident that the plaintiff has filed a memo during the course of trial stating that he will not rely on agreement of sale dated 22.10.2003 and 15.12.2003 and that documents were also not marked as exhibits. The learned trial Judge, it appears, since the defendant has admitted, has gave a finding holding that the recasted issue No.1(a) and 1(b) are proved. Regarding the 3^rd agreement dated 18.3.2005 which is at Ex.P.5, the learned trial Court Judge discussed the evidence and contention of the defendant No.1 that he was under the impression that the sale deed will be executed and someone misled him and fraud was played is not proved by defendant No.1. So came to a conclusion that the recasted issue No.1(c) is also proved.

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Regarding readiness and willingness, while dealing with issue No.2, the learned trial Court Judge observed that the documentary evidence produced by the plaintiff regarding sale of his property, and came to conclusion that as they are all subsequent sale deed. The trial Court also referred to oral evidence and cross-examination of PW.1 and referred to the recitals in the documents and sale deeds of the plaintiff at Exs.P.11 to P.16 and also referring to his bank balance and other circumstances came to the conclusion that the plaintiff had no sufficient funds to pay the balance consideration amount when agreement was entered. It is also held that readiness and willingness includes the capacity to perform the obligation which requires proof of financial capacity at a relevant point of time. It is not a mere desire. Relying on the principles stated by the Hon’ble Supreme Court relied by both the counsel and evaluating the oral evidence of both the parties and their witnesses, came to a conclusion that the plaintiff has failed to

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prove his readiness and willingness to perform his part of obligation under contract which is the main element to get a decree for specific performance of contract. Accordingly answered this issue in the negative.

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Regarding issue No.4 and additional issue No.1, on considering the entire evidence the trial Court arrived at a conclusion that defendant No.2 has failed to prove issue No.4 and the plaintiff proved additional issue No.1 and came to a conclusion that the sale deed executed by defendant No.1 dated 18.8.2005 in favour of defendant No.2 is without any consideration and it is a fictitious sale deed without consideration just to deny the claim of the plaintiff. Regarding other issues such as necessary parties, the court has negatived the said issue of limitation. The Court has negatived the same and ultimately relying on the decision of the Supreme Court came to a conclusion defendant No.1 is liable to refund of Rs.4,00,000/- with interest at 6% p.a. and decreed the suit.

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I have considered both oral and

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documentary evidence and the decisions relied by both the counsel.

¶137

The learned Judge has answered issue No.1A,1B and 1C in the affirmative holding that the defendant No.1 entered into agreement of sale with respect of the suit property on 22.10.2003, on 15.12.2003 and on 18.03.2005 and received Rs.2,00,000/in respect of first agreement Rs.1,50,000/- and Rs.4,00,000/- in respect of third agreement. But regarding issue No.2 whether the plaintiff is ready and willing to perform his part of contract, Trial Court answered the said issue in the negative. Accordingly answered issue No.3 partly in the affirmative and issue No.4 and 5 answered in the negative and additional issue No.1 in the affirmative. The defendant has not challenged the findings on the said issues. The trial Court has discussed the evidence in this regard and DW 1 has admitted about the total consideration amount of Rs.1,50,000/-,

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Rs.50,000/- totally Rs.4,00,000/- and still plaintiff has to pay Rs.8,11,786/-.

¶140

I have perused the examination in chief of PW 1. He has reiterated the plaint averments in his examination in chief. He has stated that, defendant No.1 is the owner of suit property and he is in possession of the suit property and defendant agreed to sell the same for sale consideration amount of Rs.12,11,786/- and as part performance of the same has paid Rs.2,00,000/- in cash. But that agreement was not acted upon. That is the first agreement. It appears that, the said agreement is not marked. It is stated that, there was a 6 months time limit and the given time was over, neither the defendant paid the amount nor that agreement was extended. It appears again a fresh agreement was entered and according to plaintiff on December-22 that is within 3 months. There is no reference to earlier agreement in second agreement in this. In the second agreement also again the period of 6 months was fixed, it is evident that, the said second agreement

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was also not acted upon. Now this suit is filed on the

¶143

basis of Ex.P.5, third agreement, wherein it is clearly mentioned that, Rs.2,00,000/- was paid on 22.12.2003 and Rs.1,50,000/was paid on 22.12.2003 and Rs.2,00,000/- cash on 18.03.2005 and the period of 6 months was also fixed as per Clause 5. Though it is mentioned that it is the agreement with delivery of possession but, possession was not delivered as admitted by plaintiff. It is evident that, the first agreement was entered in the year 2003. Till the year 2005 only 1/4^th of consideration amount was paid by the plaintiff. He went on getting agreements executed by the plaintiff but no reasons are assigned as to why

¶144

the sale deed was not got executed. If at all the plaintiff was ready and willing to get the sale deed registered, he could have paid entire consideration amount and got the sale deed registered. In the cross examination he has admitted that, the defendant No.1 was working as a contractor. He also admitted that, the defendant No.1 told him that he

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has made several loans. So he has kept the suit property for sale and defendant No.1 has no other way except selling the suit property. This admission clearly indicates the defendant No.1 was in dire-need of money but, the plaintiff did not pay the entire amount. PW 1 has also admitted that, he has to bear the registration expenses. PW 1 stated that he could not remember the earlier agreements. PW 1 admits that, within 6 months of the said agreement entire amount has to be paid. He also admitted that, he did not pay the amount within 6 months. He also stated that, There is no encumbrance on the suit property. He has admitted that defendant No.1 has borrowed Rs.5,00,000/from the Samarth Co-operative Society. He has denied the suggestion that when the defendant No.1 asked him to pay the entire amount and get registered sale deed, he paid only Rs.50,000/without his knowledge the sale agreement was got executed. To show that he has amount to pay the balance amount till 18.03.2005, he has no documents. He does not know as to

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whether defendant No.1 has to pay the interest to the Society because of default by the plaintiff. He has denied the suggestion that defendant No.1 met with accident and taking undue advantage of it he has got created the Ex.P.5. He has also admitted that, the valuation of property might be increased by 2-3 lakh rupees than earlier and he denied that the value of the said property increased by 3-4 lakh rupees. He also expressed his ignorance that the tenants were in possession of the suit property and defendant No.1 barrowed the loan amount from them. All the suggestions made by defendant No.1 were expressed ignorance by PW.1. He has also admitted that, now defendant No.2 has constructed the first and second floor building in the said property. He has admitted that, he has not issued any notice to the defendant no.1 with regard to the agreement. He has admitted that, in the year 2005 Rs.12,00,000/- balance was not in his account and even today there is no amount in his bank account.

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He has examined one witness by name AbdulGani as PW.2. He has reiterated the contents and gist of the plaint averments. In the cross examination PW 2 has expressed his ignorance about the defendant No.1. He has clearly stated that, the plaintiff has not informed anything about the earlier agreement. He does not know what are the conditions of agreement of sale and what was the consideration amount and how much amount was paid. His evidence will not help the plaintiff in any way to show his readiness and willingness to perform the contract. This is the oral evidence of plaintiff. On perusing his documentary evidence, it is evident that it will also not help him in any way. Because, admittedly there is a stipulation of period in Ex.P 5 for performance of agreement. Ex.P 6 is the notice given to the plaintiff on 09.08.2005. Though there was reference to the earlier agreement but, it was not marked. It appears the said notice was issued only after the defendant No.1 barrowed amount from Samarth Urban Co-operative Society. The plaintiff

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has produced the sale deeds in respect of purchase of some properties. That will not help him in any way. He has produced some proceedings of meetings at Imamali Mohalla Mazid and property extract. On entire reading of the plaint averments and evidence of the plaintiff it is evident that, plaintiff was never ready and willing to perform his part of contract and he never tried to get registered his sale deed. But he went on paying very little amount and hardly he has paid 25% of the entire consideration amount. Admittedly defendant No.1 had barrowed the loan. To discharge his borrowed loans he has sold the suit property.

¶153

Against this defendant has given his evidence as DW 1, he has reiterated the contentions of his written statement in his evidence. He has produced documents regarding taking treatment at hospital. In the cross examination he has stated that, suit schedule properties are his father’s properties and the suit properties had fallen to his share. Defendant no.2 is his brother. He has stated

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that, the plaintiff has to pay still Rs.8,11,782/- as agreed at the time of agreement and get registered sale deed. Regarding execution of agreement of sale he has stated that, plaintiff has to pay entire amount and get the sale deed registered on that ground he has signed the agreement. He has informed that, he has borrowed the loan from Samarth Co-operative Society and he has sold the property to the defendant No.2. It appears that, he went to Gujarat. He has denied the suggestion that, plaintiff was all ways having money and he was ever ready.

¶156

He has examined one Sri.Khalid Mulla as DW 4 on his behalf. DW.4 has stated about the oral gift of the property by is father to defendant No.1 with an intention that family property should not go to others. Later defendant No.1 declared the oral gift in the name of his mother. In turn his mother made gift in favour of defendant No.1 by executing a registered gift deed. Though he was cross examined, nothing is elicited so as to disbelieve his evidence. He admitted that he purchased the property from

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defendant No.1 for Rs.5,75,786/-. He further admitted that, he had to pay its increased amount which he had agreed to pay it to the plaintiff. He has also admitted that he has agreed to return the deposit to the tenants. It is evident that, he has purchased the property prior to the execution of the sale deed. He has examined one Mohammed Rasool as DW.2, who has stated about the panchayat held before him at Masjeed. He has also examined Mohammad Gous Peerjade, who has stated that, he is the president of the Mazid, who has issued certificate. So on entire reading of plaint averments and evidence of plaintiff and defendant it is evident that, plaintiff has never performed his part of contract and was never ready with balance consideration amount.

¶159

The appellant has filed an application under Order 41 Rule 27 with a prayer to produce the both oral and documentary evidence and to examine the additional witness. In the affidavit he has contended that, the defendant No.1 has barrowed

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loan of Rs.5,00,000/- from Samarth Urban Cooperative Society. He has mortgaged the property as a security for the loan. Now he has sold the property to defendant No.2. He has not shown his occupation as businessman in his deposition. He has not produced documents to show his annual balance sheet and account and he has sold the property for consideration amount of Rs.85,000/- on 01.03.2006. Appellant has stated that, he has gold worth of Rs.4,00,000/-. There is no documents to show that he has gold worth of Rs.4,00,000/-. He has produced the profit and loss account for the year 2008 and the agreement is of the year 2005. Therefore the documents produced do not help him. He intended to produce income tax returns for the assessment year 2010-11. Again such a document does help him any way. He intended to produce FD receipts which show that, as on 30.04.2015 the value of FD amount is around Rs.9,14,000/- and these documents do not help him to show that he had money with him as on the date of agreement or within 6 months from the

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date of Ex.P.5. Therefore such a document does not help him. The said documents do not fall under the provisions of Order 41 Rule 27 of the Code of Civil Procedure, so as to permit the plaintiff to produce additional evidence. Since those documents are not essential for just decision of suit. The prayer of plaintiff’s counsel for remand of the matter does not survive. It is evident that, plaintiff has neither made any averments in the plaint that the defendant was not ready to perform his part of contract, nor there is recital in Ex.P.5 about the earlier agreements. Plaintiff never had amount with him to pay entire consideration amount within stipulated time mentioned in the agreement. Why he got registered the agreement of sale again in the year 2005 by paying Rs.50,000/- only when defendant No.1 is in need of huge amount.

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If the entire evidence is considered, then, it is evident that trial Court has rightly held that plaintiff was never ready and willing to perform his part of contract and additional evidence is essential for just

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decision of the case. Because, the plaintiff must prove that, he has money with him and he was ready and willing to get registered the sale deed. But, plaintiff went on paying very little amount, i.e., in total Rs.4,00,000/only out of Rs.12,00,000/consideration amount, which is 25% of the total amount. Therefore defendant no.1 has sustained loss as he made huge loan. Hence defendant has no other way and he has sold the property. Now after selling the property plaintiff has filed this suit only for the sake of suit. There is no evidence to show his readiness and willingness or the plaintiff had capacity to pay the balance consideration amount. Therefore, the contention of the defendant about readiness and willingness went false flat. The learned counsel for appellant argued that the trial Court has not referred section 16(b) of the Specific Relief Act and there is a breach of condition. As per section 16(c) of the Specific Relief Act, 1963, the Trial Court not properly appreciated the evidence. The plaintiff failed to prove that the amount was in

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his hand as on the date of agreement or within stipulated time as per terms of agreement. In fact he has mortgaged the property and subsequently he sold it. Such an argument is not tenable. The learned counsel for the appellant also referred to section 20(c) of the Specific Relief Act and contended that, hardship will be caused to plaintiff more than defendant No.1. The learned counsel argued that, the Court can exercise discretion under section 20 of the Specific Relief Act and not to refuse any specific performance of contract on made under the agreement. On the other hand section 19 of the Specific Relief Act states that, either of the party or any person claiming under him by a title arising subsequently enters into the contract is tenable. Therefore defendant No.2 who is not a bona fide purchaser, has to prove, as per section 19 of the Specific Relief Act, plaintiff’s agreement is illegal and unenforceable. The trial Court has committed serious error in not considering the same.

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The learned counsel for the appellant relied on a decision reported in AIR 2000 SC 2408

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in the case of Motilal Jain V. Ramadsi Devi but it does not help the plaintiff. There is a question of delay wherein the suit was not filed within 9 months. At paragraph No.9 Hon’ble Supreme Court held that, as per section 16(c) of the Specific Relief Act, 1963, the plaintiff has to aver that, he was ever ready and willing to perform his part of contract, the compliance of readiness and willingness has to be in spirit and substance. Herein in this suit there is neither any pleading nor any evidence to prove the

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pleading. There is no iota of evidence to show that plaintiff was ready and willing to perform his part of contract. He has paid paltry sum of Rs.4,00,000/only out of total consideration amount of Rs.12,00,000/-, he went on extending the agreement for 3 years, but did not pay entire amount knowing that defendant No.1 was in need. Therefore that decision does not come to aid of plaintiff. The second decision in Pandurang Ganpat Tanawade

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V/s. Ganpat Bhairu Kadam reported in AIR 1997

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SC 463 wherein again section 16(c) of the Specific Relief Act is considered and principles regarding readiness and willingness to perform contract is stated. There is no dispute about the said principles. The next decision relied by the learned counsel for the appellant is in the case of Bibi Jaibunisha V/s. Jagdish Pandit and others reported in 1997 (4) SCC 481, the facts and principles of which are not at all applicable to this case. In that case in fact the plaintiff went to the sub-registrar office to get the sale deed registered and was waiting for the defendant to attend the office which is a positive fact to prove that they had necessary funds to pass on consideration and had with them the need money for payment at the time of registration. It is sufficient for respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry money with them. This proposition is well established. Here the plaintiff got executed two agreements of sale but did

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not pay the amount, so those agreements are lapsed. Even he took defendant No.1 to the subregistrar office stating that he will get execute the sale deed but got executed agreement by paying only Rs.50,000/-. Plaintiff was neither willing nor had any money to pay entire consideration to get registered the sale deed. Therefore the said decision does not help the plaintiff. He relied on another decision in Ramathal V/S. Maruthathal and Others, reported in 2018 AIR (SCW) 340. At paragraph No. 23 it is held as under:

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“The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled by the seller. From this discussion, it is clear that the buryer has always been ready and willing to perform his part of the contract at all stages”.

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Again this goes against the plaintiff. It is

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evident that there is no pleading or evidence to show that, defendant No.1 is the defaulter. On the other hand the plaintiff got executed all the agreement for sale but failed to pay entire amount to get registered the sale deed within the period mentioned in the first agreement and again plaintiff got executed the

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agreement stating that, he will perform his part of contract within 6 months. Again kept quite for 6 months. He paid only Rs.50,000/-. Definitely the property prices might have gone high after 3 years. But, even then also he did not get register the sale deed by paying entire consideration amount. The learned counsel relied on the decision reported in (2001) 4 SCC 488 in the case of Tek Chand and Others V/S. Deep Chand and Others in paragraph No.6.

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“6. Learned counsel for the first respondent, on the other hand, contended that the agreement entered into by the first respondent with Kare was a true and genuine document and Kare had executed the family settlement to defeat the interests of the first respondent. It was further submitted that the decree obtained by Defendants 2 to 4 against Kare was a collusive decree. The first respondent disputed the genuineness of the agreement entered into between Kare and the present appellants”.

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The above decision is in respect of the

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collusive agreement between the parties that will not help the plaintiff in any way.

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Therefore the counsel for respondent has relied on a decision reported in AIR 1996 SC 7467

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in the case of K.S.Vidyanadam and Others V/S.

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Vairavan at paragraph No.4.

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“4. To this notice, defendants 1 to 3 sent a reply stating that time was the essence of the contract, that the prices of the property are sharply increasing day – by – day, that the tenant is their relation who is always willing and ready to vacate the property and that it was the plaintiff who was not ready and willing to complete the transaction, only when the plaintiff noticed that the prices in the locality have gone up three times, has he come forward with the suit notice. The defendants stated that the plaintiff never approached them for anything and that they never made any representation as alleged in the suit notice”.

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The about the said decision is also not applicable to the present case.

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Against this, the learned counsel for the defendant No.1 relied on the decision reported in AIR 1996 SC 7467 in the case of K.S.Vidyanadam and Others V/S. Vairavan . Wherein at paragraph No.13 Hon’ble Supreme Court held as under:

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“The present case is not the case of mere delay but it is a case of total inaction on part of plaintiff for violation of terms of agreement which required plaintiff to pay balance, purchase stamp papers and then ask for execution of sale deed within six months – it is inequitable to give relief of specific performance to plaintiff”.

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40. By referring to other decisions at

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paragraph No.12, 13 it is held that;

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“12. As Article 113 of the Limitation Act prescribes a period of 3 years from the dated 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 the assertion. So, there must be some discretionary filed unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that filed. Diverse situation 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 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 reasonably guided by judicial principles and capably of correction by a court of appeal.

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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: “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

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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 defendants to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him 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 2 112 years in clear violation of the term 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”.

¶202

The next decision reported in AIR 2001 SC 2920 in the case of Veerayee Ammal V/S. Seeni Ammal . Wherein section 16(c) of the Specific Relief Act, 1963 is considered and held what is the reasonable time with regard to circumstances which the person is called or to act. At paragraph Nos.12, 13 and 14 Hon’ble Supreme Court referred to its earlier decision and held as under;

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“12. When, concededly, the time was not the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A constitution Bench of this Hon’ble Court in Chand Rani (Smt.)

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(Dead) by Lrs. V. Kamal Rani (Smt.) (Dead) By Lrs. MANU/SC/0285/1993 : AIR 1993 SC 1742 held that, in 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 contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.

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13. In. S. Vidyandam & Others. V. Vairavan 1997 (3) SCC this Court held;

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“Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.”

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14. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The reason Varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as requires should be done in a particular case. In other words it means as soon as circumstances permit. In Law Lexicon it is defined to mean “A reasonable time,

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looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ‘directly’; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.”

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It is evident that even when the time is not essence of contract, the plaintiff must perform his part of contract within reasonable time as held in Vidyanadam’s case (supra) . The Court has to ascertain the reasonable time by taking into consideration of surrounding circumstances including express terms of contract. The Court has to consider nature of property and surrounding circumstances. Admittedly, defendant No.1 was in need of money. He has made huge loan. But the plaintiff though agreed to purchase the suit property in the year 2003, he did not take any steps or get registered the sale deed till the year 2005, nor paid remaining 3/4^th of balance consideration amount.

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The plaintiff counsel relied on the decision

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of Division Bench of this Court reported in ILR 2014

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Karnataka 233 in the case of Padmini Raghavan V/s. H.A.Sonnappa and Others which deals with interpolation and detailed discussion with the provision of section 16 of the Specific Relief Act, i.e., readiness and willingness and held that plaintiff should not only plead but should prove his readiness and willingness to perform his part of contract. The Division Bench of this Court in the above referred decision has relied on various decisions of Hon’ble Supreme Court and at paragraph Nos.40, 41, 42 to 59 has discussed in detail about Section 16 of the Specific Relief Act, regarding readiness and willingness to perform his part of contract. There must be continuous readiness and willingness towards the contract. It is a condition preceding for obtaining relief of grant of Specific Relief of contract. It is held at paragraph No.50 as under;

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“xxxx xxxx xxx xxx xxxx. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of Contract must manifest that his conduct has been

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blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.”

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Mere assertion in the witness box and issue of legal notice is not a proof of readiness and willingness to pay the balance consideration. No improvement is permissible in law. Readiness and willingness is purely a question of fact. The last decision relied by the learned counsel for respondent No.1 reported in ILR 2015 Karnataka 2695 in the case of V.P.Venkatesh V/s. G. Padmavathi wherein the learned Single Judge of this Court referred to Vidyanadam’s case (supra) . He also relied on judgment rendered in RFA No.2293/2006 dated 23.08.2009 in the case of Venkatswamy Reddy V/s. Muniyappa and Others . The learned Single Judge referred regarding appreciation of evidence in a suit for contract of sale under Specific Relief Act. The learned Single Judge observed at paragraph Nos.18, 19 to 26 of the decision held as under;

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“18. The learned counsel also relied upon the judgment in the case of Babulal Agrawal vs. Jyoti Shrivastava and others reported in 2000(1) M.P.L.J contended that written statement has not been filed by all the defendants and some of them have filed memo adopting the written statement and the written statement cannot be adopted. Referring under Order 8 Rule 2 to 5 and under Order 6 Rule 1. In this judgment held that adopting written statement of others without verification is no written statement.

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19. The learned counsel appearing for respondent No.3 who is the defendant No.3 in the lower Court would contend that no dispute with regard to the execution of the sale agreement in terms of Ex.P.1. In terms of Ex.P.1, three months time is mentioned and notice was issued in the year 1996, though it was a sale agreement dated 26.12.1990. It is also contended that the material alteration is visible. On perusal of Ex.P.1, the Court below has rightly come to a conclusion that there was a material alteration. The judgments quoted by the appellant are not applicable to the case on hand. Having considered the facts and circumstances of the case, it is contended that the possession was delivered and sale agreement was executed only on hundred rupees stamp paper. If possession is delivered, the stamp duty should be payable as conveyance. Hence, it is clear that there was an alteration and the Court below has considered the same. The learned counsel also brought to my notice to Section 18 of the Specific Relief Act to contend that if any alteration has been made, the plaintiff is not entitled for the relief of specific performance.

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20. The learned counsel also relied upon the judgment in the case of K.Nanjappa (dead) by Lrs., vs. R.A.Hameed alias Ameersab (dead) by Lrs., and another reported in 2015 AIR SCW 5172 by relying upon this judgment referring para No.21 of the judgment, the learned counsel would contend that Section 20 prescribes judicial discretion to grant decree for specific performance. The Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The learned counsel also brought to my notice in paragraph No.26 with regard to conduct of the parties and would contend that it depends upon the conduct of the parties to grant the relief.

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21. The learned counsel also relied upon the judgment in the case of Nanjappan vs. Ramasamy and

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another reported in 2015 AIR SCW 1659 and referring this judgment, the learned counsel would contend that granting of specific performance is discretionary depends on facts and circumstances of the each case. Escalation of value of property after agreement due to passage of time. Grant of relief of specific performance to respondent, would cause great hardship to appellant - Supreme Court declined to exercise discretion to grant such relief.

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22. The learned counsel also relied upon the judgment in the case of Mrs.Saradamani Kandappan vs. Mrs.S.Rajalakshmi and others reported in AIR 2011 SUPREME COURT 3234 and brought to my notice at paragraph Nos.24 and 25 regarding the limitation is concerned. In this judgment, the Apex Court held that time is not of the essence of contract relating to immovable properties took shape in an era when market value of immovable properties were stable and did not undergo any marked change even over a few years. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance.

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23. The learned counsel also relied upon the judgment in the case of H.P.Pyarejan v. Dasappa (dead) by Lrs., and others reported in AIR 2006 SUPREME COURT 1144 and brought to my notice in paragraph No.14 of the judgment regarding Section 16(c) and would contend that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.

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24. The learned counsel also relied upon the judgment in the case of Man Kaur (Dead) by Lrs., vs. Hartar Singh Sangha reported in (2010) 10 Supreme Court Cases 512 and brought to my notice in paragraph No.23 of the judgment with regard to Section 16(c) reiterated the principles laid down in the judgment referred in the case of H.P.Pyarejan v. Dasappa (dead) by Lrs., and others reported in AIR 2006 SUPREME COURT 1144.

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25. The learned counsel also relied upon the judgment in the case of M/s.Citadel Fine Pharmaceuticals vs. M/s.Ramaniyam Real Estates P. Ltd. and another reported in AIR 2011 SUPREME COURT 3351 and

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brought to my notice in paragraph No.45 of the judgment regarding exercising of discretionary relief the Court was dealing with the urban properties and held that mere rise in price is no ground for denying the specific performance.

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26. The learned counsel also relied upon the judgment in the case of Vimaleshwar Nagappa Shet vs. Noor Ahmed Sheriff and others reported in AIR 2011 SUPREME COURT 2057 and brought to my notice in paragraph No.9 of the judgment. In this judgment held that it is well settled that value of the property escalates in urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time.

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So, in view of the above referred oral and documentary evidence and principles sated in the decisions, in my considered view, the trial Court is justified in refusing relief of specific performance of contract and directing the defendant No.1 to refund Rs.4,00,000/- and plaintiff to receive Rs.4,00,000/with interest at the rate of 6% p.a.

¶235

The defendant No.2 has not challenged the finding against him on issue No.4 and additional issue No.1. It is evident that defendant No.2 has purchased the property with notice of prior agreement of sale and defendant No.2 has failed to prove that he had purchased the property by paying certain amount under a valid sale deed. Therefore trial Court has observed that, such a sale deed

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without consideration is a fictitious sale deed. Therefore, it is also evident that, defendant No.2 is not a bona fide purchaser. He will not get any right under the said sale deed. The trial Court has held that, it is a fictitious sale deed without any consideration. Therefore, to recover the amount of Rs.4,00,000/- with interest at the rate of 6% p.a. from defendant No.1, plaintiff can proceed against the said suit property if there is no prior charge by others and if defendant No.1 fails to pay the said amount. Sale deed is held as factious sale deed without consideration.

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The learned trial Court Judge has appreciated the evidence in a proper perspective and given reasons for giving finding on each issue. Said finding is based on evidence and settled principles. It cannot be held as illegal or erroneous. Therefore the appeal being devoid of merits is liable to be dismissed. Accordingly I proceed to pass the following;

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ORDER

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