Appeal against dismissal of suit for specific performance of sale agreement. Court held that mere issuance of notice and filing suit does not prove readiness or willingness. Second Appeal dismissed.
Regular Second Appeal under Section 100 of the CPC dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:21877 RSA No. 216 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.216 OF 2022 (SP)
BETWEEN:
SRI K.NAGANAIKA S/O LATE KARINAYAKA, AGED ABOUT 62 YEARS, R/AT NO.964, 3RD DIVISION, 16TH WARD, JANATHA COLONY, GUNDLUPET - 571 111.
…APPELLANT
(BY SRI. RUPESH KUMAR S., ADVOCATE)
AND:
Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA
ALL ARE R/O DA. RA. BENDRE NAGAR, GUNDLUPET - 571 111.
…RESPONDENTS
(R1 TO R3 ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2023:KHC:21877 RSA No. 216 of 2022
JUDGMENT
Sri.S.Rupesh Kumar., learned counsel for the appellant has appeared in person.
Sessions Judge, Chamarajanagara (sitting at Kollegala).
parties shall be referred to as per their rankings before the Trial Court.
4. The plaint averments are these.
It is said that defendant No.1 is the owner of the suit property measuring 100 X 44 feet bearing Assessment No.1719/11/1. He has sold out some portions to one B.N.Sathyanarayana Shetty and his wife and the remaining property is 100 X 36 feet, out of which the Town Municipality has formed the road. It is said that defendant No.1 has set up a petrol bunk and he needed money to repair the petrol bunk. Hence, he intended to sell the property. Therefore, he negotiated with the plaintiff and agreed to sell the suit schedule property to the plaintiff for a sale consideration of Rs.10,00,000/- (Rupees Ten Lakh only). As per the agreement,
the plaintiff paid an amount of Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand only) and an agreement for the sale of the property was executed, five months’ time was fixed to execute a registered sale deed from the date of execution of an agreement of sale. As per the agreement the defendants had to give all the documents, but they did not do so. The plaintiff specifically contended that he was always ready and willing to perform his part of the contract for the payment of the balance consideration of Rs.5,50,000/- (Rupees Five Lakh Fifty Thousand only). The plaintiff requested the defendants to give the documents in respect of the suit schedule property. But in vain. Hence, the plaintiff issued a notice on 29.10.2015 calling upon the defendants to receive the balance consideration and execute the registered sale deed. After receipt of the notice, the defendants gave an untenable reply on 18.11.2015 contending that they have received only Rs.3,00,000/- (Rupees Three Lakh only). It is said that the defendants approached the plaintiff and expressed that they are ready and willing to perform their part of the contract and execute the sale deed by receiving the balance consideration amount and requested the plaintiff to get the draft sale deed. The defendants handed over
a Xerox copy of their identity card and assessment register extract for the purpose of drafting the sale deed. But the defendants did not keep up their promise. Hence, the plaintiffinitiated action against the defendants for the relief of specific performance.
After the issuance of the summons, defendants 1, 2 & 4 appeared through their counsel and filed a common written statement. Defendant No.3 was placed ex-parte . Defendants 1, 2 & 4 denied the plaint averments. They contended that they never agreed to sell the suit property to the plaintiff at any point in time. It is contended that the first defendant had filed a suit against the TMC, Gundlupet which was decreed, and the review filed by TMC was withdrawn and the first defendant was having a habit of receiving hand loans from the plaintiff and returning the same with interest quite often. In this connection, he obtained a hand loan of Rs.3,00,000/- (Rupees Three Lakh only) from the plaintiff in the year 2015. But the plaintiff misused the said transaction and created a document styling as an Agreement of sale and filed a false suit seeking the relief of specific performance. They specifically contended that the plaintiff is not entitled to the discretionary relief of specific
performance. Among other grounds, they prayed for the dismissal of the suit.
NC: 2023:KHC:21877 RSA No. 216 of 2022
Next, he submits that both Courts have erred in concluding that the plaintiff was not ready and willing to perform his part of the contract. He also submitted that the very fact of issuing legal notice and initiation of the action against the defendant itself is conclusive proof to show that the plaintiff was and is ready & willing to perform his part of the contract.
A further submission is made that the finding given by the Trial Court to negate Issue No.2 is illogical and beyond imaginary. He further submitted that the balance consideration that was to be paid was only Rs.5,50,000/- (Rupees Five Lakh Fifty Thousand only) which is a very small amount and that the plaintiff had every capacity to pay the same as it is evident from the conduct of the plaintiff.
Learned counsel Sri.S.Rupesh Kumar., vehemently contended that the Trial Court rightly concluded that the plaintiff has proved the execution of the agreement and the part payment of the sale consideration, But the finding about readiness and willingness is illegal.
Lastly, he submits that viewed from any angle, the Judgments & Decrees of the Trial Court and the First Appellate Court are erroneous and lack judicial reasoning and hence the substantial question of law may be answered in favor of the appellant and the appeal may be allowed.
To substantiate the contention, learned counsel has placed reliance on the following decisions:
1. BASAVARAJ VS. PADMAVATHI & ANOTHER - CIVIL APPEAL NOS.8962-8963 OF 2022.
2. GADDIPATI DIVIJA & ANOTHER VS. PATHURI SAMRAJYAM & OTHERS - CIVIL APPEAL NO.4206-4207 OF 2011.
3. SUGHAR SINGH VS. HARI SINGH (DEAD) THROUGH LRS. & OTHERS - CIVIL APPEAL NO.5110 OF 2021.
appellant and perused the records with utmost care.
NC: 2023:KHC:21877 RSA No. 216 of 2022
as five Issues and the first issue relates to the proof of execution of sale agreement. Based on the material evidence on record, the Trial Judge has affirmed that the plaintiff has proved the execution of the sale agreement.
In the present case, the issue revolves around the factum of readiness and willingness.
Learned counsel Sri.S.Rupesh Kumar., in presenting his argument strenuously urged that the plaintiff was ever ready and willing to perform his part of the contract and he had every ability to pay the balance amount and get the sale deed executed in his favor. He argued by saying that both Courts ought to have decreed the suit for specific performance.
The contentions about the plaintiff’s readiness and willingness are noted with utmost care. Before I answer about the same, let us quickly glance through the concept of readiness and willingness.
The person, seeking specific performance of the contract, must file a suit wherein he must aver and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by
NC: 2023:KHC:21877 RSA No. 216 of 2022
him. The words ‘ready and willing’ imply that the plaintiff was prepared to conduct those parts of the contract to their logical end as far as they depend upon his performance. The terms of
a contract performable by the plaintiff may be of two kinds.
The actual performance of, or a readiness to perform, the former must be shown and an offer to perform the latter must be made. The words mean that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept performance when the time for performance arrives. The plaintiff’s readiness and willingness must be in accordance with the terms of the agreement.
The law is well settled that in considering whether a person is willing to perform his part of the contract, the sequence in which the obligations under the contract are to be performed must be taken into account, and if under the terms
of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other without, in the first instance, performing his own part of the contract which, in the sequence of obligations, is performable by him earlier.
The distinction between readiness and willingness is that the former has reference to financial ability and the latter on the conduct of the plaintiff wanting performance.
While ‘willingness’ is merely a mental process, ‘readiness’ is something to do with translating that will into action and is preceded by the necessary preparation of being in a position to be ready. In other words, while ‘willingness’ may be something to do with a person’s mental process to do an act, his readiness implies proximity to such willingness and its ultimate physical manifestation. ‘Readiness’ must, in all cases, be backed by ‘willingness’ and its imminent physical action is proved when it is about to be put into action.
Turning to the facts of the case, the plaintiff contended that he was ever ready and willing to perform his part of the
NC: 2023:KHC:21877 RSA No. 216 of 2022
contract, and even before this court also the plaintiff has adhered to the said contention. The plaintiff tries to contend that the issuance of the notice and the initiation of the action against the defendants is itself proof of readiness and willingness. I find myself quite unable to accept this contention and I have no doubt at all that the issuance of the legal notice and the initiation of the action by the plaintiff does not amount to readiness and willingness. I should mention one further consideration which appears to me to be of possible significance, that the evidence on record comes nowhere near proving the plaintiff’s readiness and willingness.
I am completely satisfied that the Trial Judge extenso referred to the material on record and concluded that the
plaintiff is not entitled to the relief of specific performance. The Appellate Judge reappraised the material proof from the right perspective. I find no infirmity in the findings. Furthermore, the findings of facts by both Courts are neither vitiated by nonconsideration of material evidence on record nor is there a mistaken approach to the matter.
Learned counsel for the appellant placed reliance on several decisions, but I do not think that the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid decisions.
dismissed .
Sd/JUDGE
TKN List No.: 1 Sl No.: 52
2 issues framed by the court
Whether the issuance of a legal notice and initiation of legal action by the plaintiff constitute sufficient proof of readiness and willingness to perform essential terms of the contract.
Whether the findings of the Trial Court and First Appellate Court negating readiness and willingness are legally sustainable.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
SRI K.NAGANAIKA
SMT.LAKSHMAMMA
SRI K. RAVICHANDRAN
SMT. R. MAMATHA
JYOTI MULIMANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
