Smt Yellamma Vs Sri R Ajitchand Jain

SMT. VARALAKSHMI D/O LATE LAKSHMINARAYANA, W/O SHANTHARAJU, AGED ABOUT 44 YEARS, R/O KONADASAPURA VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK, BANGALORE-560 036.

¶14

…APPELLANTS

¶15

(BY SRI. KALYAN.R., ADVOCATE)

¶16

2 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶17

HC-KAR

¶18

AND:

¶19

SRI. R.AJITCHAND JAIN S/O RICHOB CHAND JAIN, MAJOR, R/A NO.29, 4^TH CROSS, RAMASWAMY LAYOUT, BAYYAPPANAHALLI EXTENSION, BANGALORE-560 038.

¶20

SRI. LAKSHMIRAJU S/O LATE LAKSHMINARAYANA, MAJOR,

¶21

SMT. LAKSHMIDEVI D/O LATE LAKSHMINARAYANA, W/O KRISHNAPPA, AGED ABOUT 48 YEARS, R/O 5^TH MAIN, 7^TH ‘C’ CROSS, DEVASANDRA, K.R.PURAM, BANGALORE-560 036.

¶22

SMT. LAKSHMI D/O LATE LAKSHMINARAYAN, W/O GOPAL, AGED ABOUT 46 YEARS, R/O RAMAKRISHNA REDDY LAYOUT, MAHADEVAPURA, BHANDE POST, WHITEFIELD ROAD, BANGALORE-560 034.

¶23

…RESPONDENTS

¶24

(BY SRI. M.L.DAYANANDAKUMAR., ADVOCATE FOR R1; R2 TO R4-SERVED AND UNREPRESENTED)

¶25

THIS RFA FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 28.09.2013, PASSED IN O.S.NO.25638/2009 ON FILE OF THE XXVIII-ADDL. CITY CIVIL JUDGE, MAYO HALL, BENGALURU, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

¶26

3 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶27

HC-KAR

¶28

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶29

CORAM: HON'BLE MR. JUSTICE D K SINGH & HON'BLE MS. JUSTICE TARA VITASTA GANJU

¶30

ORAL JUDGMENT

¶31

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

¶32

The present appeal has been filed by the 1^st , 4^th and 7^th defendants/appellants seeking to challenge the Judgment and Decree dated 28.09.2013 in O.S.No.25638/2009 passed by the XXVII Additional City Civil Judge, Mayohall Unit, Bangalore (“Impugned Judgment”). By the Impugned Judgment, the suit filed by the respondent No.1/plaintiff has been partly decreed, the relief of specific performance sought by the respondent No.1/plaintiff was dismissed and defendant Nos.1 to 7 were directed to refund Rs.20 Lakhs with interest at the rate of 6% p.a. from the date of agreement till realization, to the respondent No.1/plaintiff.

¶33

Briefly the facts are, that a suit for specific performance

¶34

of an agreement of sale dated 08.08.2004 was filed by the respondent No.1/plaintiff for directions to the

¶35

4 -

¶36

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶37

HC-KAR

¶38

appellants/defendants shall execute a sale deed in favour of the respondent No.1/plaintiff upon receipt of the balance sale consideration amount.

¶39

2.1. It was the case of the respondent No.1/plaintiff

¶40

that defendant Nos.1 to 7 are respectively the wife and children of late Sri.Lakshminarayana. The said Sri.Lakshminaryana had executed an agreement of sale on 08.08.2004 to sell the suit schedule Item No.1 being residential property bearing No.50, Binnamangala, Manavarthe Kaval, Old Madras Road, Bangalore and Item No.2 being residential property bearing No.51, Binnamangala Manavarthe Kaval, Old Madras Road, Bangalore [hereinafter collectively referred to as the “suit properties”]. The agreement was executed for a sum of Rs.50 Lakhs of which part consideration amount of

¶41

Rs.20 Lakhs was the advance payment. The balance sale consideration amount was to be paid by the respondent No.1/plaintiff at the time of registration of the sale deed. The parties agreed to complete the sale transaction within

¶42

5 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶43

HC-KAR

¶44

3 years from the date of execution of the agreement of sale.

¶45

2.2. During the lifetime of Sri.Lakshminarayana, the respondent No.1/plaintiff expressed his readiness and willingness to perform his part of the contract by offering to pay the balance sale consideration amount, but Sri.Lakshminarayana postponed the same on one pretext or the other. The said Sri.Lakshminarayana passed away on 24.06.2006 however, without executing the sale deed.

¶46

2.3. After the death of Sri.Lakshminarayana, the respondent No.1/plaintiff issued a legal notice to the legal representatives of Sri.Lakshminarayana to come and execute the sale deed in terms of the agreement of sale. Since the agreement was not executed, the respondent No.1/plaintiff was constrained to file a suit for specific performance.

¶47

2.4. The defendants Nos.1 to 4 and 7 on appearance filed

¶48

the written statement denying all allegations. They alleged

¶49

6 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶50

HC-KAR

¶51

that the respondent No.1/plaintiff, who is a money lender, is in the habit of cheating the general public. The respondent No.1/plaintiff, with a malafide intention, manipulated and fraudulently managed to get the signature of ignorant and illiterate Sri.Lakshminarayana on

¶52

the alleged agreement of sale in order to get the valuable properties or money from the appellants/defendants.

¶53

2.5. Based on the pleadings, the following issues were framed:

¶54

“1) Whether the plaintiff proves that late Lakshminarayana agreed to sell the suit properties for Rs.50 lakhs and received Rs 20 lakhs as part consideration amount, and executed agreement of sale on 8.8.2004?

¶55

2. Whether the plaintiff was ever ready and willing to perform his part of contract?

¶56

3. Whether the plaintiff proves that after Lakshminarayana died on 24.6.2006, the defendant Nos. 1 to 7 being his heirs, are liable to execute the sale deed after receiving the remaining sale consideration amount?

¶57

7 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶58

HC-KAR

¶59

4. Whether the defendants prove that the plaintiff clandestinely managed and created the agreement of sale?

¶60

5. What order or decree?”

¶61

2.6. The learned Trial Court found after examining the

¶62

evidence that late Sri.Lakshminarayana had executed the agreement of sale and received the part consideration. A finding was given that appellants/defendants despite rigorous cross-examination, failed to prove that the agreement of sale executed by late Sri.Lakshminarayana was an outcome of manipulation or forgery. It was further held that the evidence of P.W.1 and P.W.2, coupled with

¶63

the recitals of agreement of sale, made it clear that the

¶64

parties expressly agreed that the sale transaction would be completed within 3 years from the date of agreement of sale. Therefore, time was of essence in the contract. P.W.1 deposed that no written notice was issued either to late Sri.Lakshminarayana or to the defendants Nos. 1 to 7 within 3 years from the date of agreement of sale, calling upon them to get the tenants vacated from the suit

¶65

8 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶66

HC-KAR

¶67

schedule properties and to execute the sale deed by receiving the balance sale consideration of Rs.30 Lakhs. No material evidence was presented by the respondent No.1/plaintiff to show that he possessed Rs.30 lakhs or that he was ready and willing to perform his part of the contract by paying the balance sale consideration amount within the stipulated time period of 3 years. Therefore, time being of essence in the contract, the agreement of sale became unenforceable after 08.08.2007 onwards.

¶68

2.7. Accordingly, the suit of the respondent No.1/plaintiff was decreed in part. The relief of specific performance sought by the respondent No.1/plaintiff against the appellants/defendants was dismissed. The defendant Nos.1 to 7 were directed to refund Rs.20 Lakhs to the respondent No.1/plaintiff, with interest at the rate of 6% per annum from the date of agreement of sale till realization.

¶69

9 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶70

HC-KAR

¶71

This Court by its order dated 08.08.2014 at the time of admitting the appeal, had directed a stay of the Impugned Judgment and Decree.

¶72

Learned Counsel for the appellants has contended that

¶73

the Impugned Judgment and Decree suffers from an infirmity since it has failed to take into account that the agreement of sale is a manipulated and forged document. In addition, it is contended that the said Sri.Lakshminarayana never executed any agreement of sale in respect of the suit properties. It is further contended that the reliance on the oral evidence of P.W.1 and P.W.2 by the learned Trial Court was erroneous.

¶74

4.1. On the other hand, it is contended by learned counsel for respondent No.1/plaintiff that in an appeal filed by the respondent No.1/plaintiff before this Court being R.F.A.No.21/2014, this Court has already examined the Impugned Judgment and Decree and found no infirmity therein and also given a finding that since the respondent No.1/plaintiff has failed to prove the ingredients of Section

¶75

10 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶76

HC-KAR

¶77

16(c) of the Specific Relief Act, 1963. Thus, once this issue has already been examined by the Co-ordinate Bench, a second examination would not be requisite.

¶78

An examination of the agreement of sale shows that

¶79

Clause 6 of the agreement sets out that performance of the agreement was to be undertaken within three years from the date of its execution.

¶80

The record reflects that an appeal was filed by the respondent No.1/plaintiff against the impugned judgment being R.F.A.No.21/2014. The issue raised by the respondent No.1/plaintiff in that appeal was whether the respondent No.1/plaintiff is entitled for discretionary relief of specific performance of an agreement of sale. The Coordinate Bench of this Court after examining the pleadings and evidence between the parties, gave its finding that the respondent No.1/plaintiff has failed to prove that he is ready and willing to perform his part of the contractual obligations and has also failed to prove that he possessed funds that are requisite under Section 16(c) of the Specific

¶81

11 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶82

HC-KAR

¶83

Relief Act. The Co-ordinate Bench of this Court also found that in terms of Clause 11 of the agreement of sale, the appellants/defendants are liable to refund the advance sale consideration amount at the rate of 18% p.a. However, it was held that in view of the fact that transaction was not a summary transaction, the respondent No.1/plaintiff was entitled to refund of advance sale consideration amount at the rate of 6% p.a.

¶84

It is apposite to extract paras 10 to 15 of the judgment

¶85

passed in R.F.A.No.21/2014 below.

¶86

“10. The only issue involved in this appeal is whether the plaintiff is entitled for discretionary relief of specific performance of the sale agreement dated 8.8.2004 at

¶87

Ex.P3.

¶88

11. Ex.P3 is the agreement of sale dated 8.8.2004 executed by the deceased Lakshminarayana in favour of the plaintiff. In pursuance of the same, the plaintiff paid a sum of Rs.20,00,000/- out of the total sale consideration of Rs.50,00,000/towards advance sale consideration. Clause- 6 of the sale agreement specifies that the deceased Lakshminarayana was

¶89

12 -

¶90

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶91

HC-KAR

¶92

required to handover the vacant possession of the suit property to the plaintiff within a period of three years from the date of sale agreement after evicting the tenants. The case of the plaintiff is that though he was ready and willing to perform his part of the contract, the defendants No.1 to 7 being the legal heirs of the deceased Lakshminarayana failed to execute the Sale deed.

¶93

12. Though the time was essence of contract, the plaintiff in his crossexamination has deposed that no written notice was issued either to the deceased Lakshminarayana or the defendants No.1 to 7 calling upon them to vacate the tenants from the suit schedule property and to execute the sale deed by receiving the balance sale consideration of Rs.30,00,000/-. It was only after expiry of three years i.e. on 11.12.2008 the plaintiff issued a notice at Ex.P5 calling upon the defendants No.1 to 7 to execute the sale deed after receiving the sale consideration. No evidence is placed by the plaintiff to substantiate his claim that he was always ready and willing to perform his part of the contract by paying the balance sale consideration of Rs.30,00,000/- within the time specified in the agreement for completing the sale transaction. In the

¶94

13 -

¶95

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶96

HC-KAR

¶97

absence of proof, the plaintiff has failed to prove that he was ready and willing to perform his part of contractual obligation.

¶98

13. Even otherwise, the plaintiff has not placed any evidence to prove that he was possessed the requisite fund right from the date of execution of the sale agreement till filing of the suit to pay the balance sale consideration which disentitles him for grant of discretionary relief of specific performance under Section 16(c) of the Specific Relief Act as held by the Division Bench of this Court in the case of Sri Punny Akat Philip Rajuy -vs- Sri Dinesh Reddy reported in ILR (Kar) 2016 22452.

¶99

14. Clause-11 of the sale agreement at Ex.P3 specifies that the defendants are liable to refund the advance sale consideration of Rs.20,00,000/- with interest at the rate of 18% p.a. in the event the defendants fails to execute the sale deed by vacating the tenants. However, the plaintiff is not entitled for refund of advance sale consideration with interest at the rate of 18% p.a, since the plaintiff failed to perform his part of contractual obligation and it is only after expiry of more than four and half year from the date of execution of sale agreement, the plaintiff issued a written

¶100

14 -

¶101

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶102

HC-KAR

¶103

notice on 11.12.2008 calling upon the defendants to execute the sale deed by receiving the balance sale consideration. This conduct of the plaintiff disentitles him from claiming refund of the advance sale consideration with interest at the rate of 18% p.a. Admittedly, the sale transaction is not a commercial transaction and in view of mandate of Section 34 of Code Civil Procedure, the plaintiff is only entitled for interest at the rate of 6% p.a.

¶104

15. In view of the foregoing discussion, we are of the considered view that the plaintiff is not entitled for discretionary relief of specific performance and the Trial Court after meticulous appreciation of evidence on record has passed the impugned judgment and decree and the same does not warrant any interference. There is no merit in this appeal.

¶105

In the result, the appeal stands dismissed with costs.”

¶106

[Emphasis supplied]

¶107

It is settled law that specific performance of a contract

¶108

cannot be granted unless the person(plaintiff) proves readiness and willingness to perform the contract as per

¶109

15 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶110

HC-KAR

¶111

its constructions. It is apposite to set out Section 16(1)(c)

¶112

of the Specific Relief Act, 1963 (hereinafter referred to as

¶113

‘the S.R. Act’) below in this behalf.

¶114

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

¶115

(a) xxxx (b) xxxx

¶116

(c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

¶117

2) Explanation. For the purposes of clause (c),

¶118

(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;

¶119

[

¶120

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

¶121

It is no longer res-integra that for a grant of specific performance of a contract, the respondent No.1/plaintiff

¶122

16 -

¶123

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶124

HC-KAR

¶125

must plead and prove both his readiness and willingness

¶126

to perform the contract. The Supreme Court in Sangita

¶127

Sinha Vs. Bhawana Bhardwaj and Others¹ has held thus:

¶128

“ 17. It is trite law that ‘readiness’ and ‘willingness’ are not one but two separate elements. ‘Readiness’ means the capacity of the Respondent No. 1-buyer to perform the contract, which would include the financial position to pay the sale consideration. ‘Willingness’ refers to the intention of the Respondent No. 1-buyer as a purchaser to perform his part of the contract, which is inferred by scrutinising the conduct of the Respondent No. 1-buyer/purchaser, including attending circumstances.

¶129

18. Continuous readiness and willingness on the part of the Respondent No. 1- buyer/purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree. A few of the said judgments are reproduced hereinbelow:—

¶130

A. In Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under:—

¶131

1 2025 SCC OnLine SC 723

¶132

17 -

¶133

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶134

HC-KAR

¶135

“6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43:

¶136

“In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit.”

¶137

The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit ….”

¶138

[Emphasis supplied]

¶139

B. In Vijay Kumar v. Om Parkash , 2018 SCC OnLine SC 1913, it has been held as under:—

¶140

“6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff ….”

¶141

18 -

¶142

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶143

HC-KAR

¶144

[Emphasis supplied]

¶145

C. In J.P. Builders v. A. Ramadas Rao , (2011) 1 SCC 429, it has been held as under:—

¶146

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

¶147

[Emphasis supplied]

¶148

D. In Umabai v. Nilkanth Dhondiba Chavan (Dead) By LRs. , (2005) 6 SCC 243, it has been held as under:—

¶149

“30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiffrespondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in- chief would not suffice. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the

¶150

19 -

¶151

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶152

HC-KAR

¶153

pleadings as also the evidence brought on records. ”

¶154

[Emphasis Supplied]

¶155

E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under:—

¶156

“16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so… ”

¶157

[Emphasis Supplied]

¶158

F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives (supra), it has been held as under:—

¶159

“16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is

¶160

20 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶161

HC-KAR

¶162

ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.

¶163

17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115], it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail.

¶164

To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available .

¶165

18. In Pushparani S. Sundaram v. Pauline Manomani James [Pushparani S. Sundaram v. Pauline Manomani James,

¶166

21 -

¶167

NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶168

HC-KAR

¶169

(2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5)

¶170

“5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.”

¶171

[Emphasis Supplied]

¶172

Thus, a party must prove that he was not only willing to perform but also his “readiness” in terms of his financial

¶173

capacity must be shown.

¶174

As stated above, this issue was already considered by a Co-ordinate Bench of this Court in RFA No.21/2014 and

¶175

22 - NC: 2025:KHC:48340-DB RFA No. 152 of 2014

¶176

HC-KAR

¶177

the Co-ordinate Bench has found that respondent No.1/plaintiff failed to prove that he was ready and willing to perform his part of the contractual obligations or that he possessed the requisite funds right from the date of execution of the sale agreement, till the date of filing of the suit.

¶178

Learned counsel for the parties do not dispute this submission or the fact that the judgment of the Co-ordinate Bench has not been challenged. Since the issue has already attained finality, no useful purpose shall be served by keeping the appeal pending. The appeal is accordingly dismissed.

¶179