Partly allowed

Rafeeq v. Abdul Bari

Kerala HC9 Mar 2018RFA/927/2012

Case brief

AI extract

What is this about?

This appeal challenged a decree for specific performance of an agreement for sale. The High Court held that the plaintiff failed to prove he was ready and willing to pay the full balance consideration, as his conduct indicated willingness only to pay a reduced amount. The appeal was partly allowed, setting aside the specific performance decree and awarding recovery of the advance with interest.

What did the court decide?

The decree for specific performance was set aside. The plaintiff is entitled to recover the advance of Rs.3,00,000 with interest at 6% per annum from the date of the agreement.

Rafeeq Vs Abdul Bari — Specific Performance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939

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RFA.No. 927 of 2012 (H)

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--------------------

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AGAINST THE JUDGMENT & DECREE DATED 13-09-2012 IN OS 403/2010 of PRINCIPAL SUB COURT, PALAKKAD

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APPELLANT(S)/DEFENDANT:

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RAFEEQ S/O.MUHAMMEDKHANI ROWTHER,RESIDING AT LAILA MANZIL, VANOOR,KATTUSSERY AMSOM,DESOM,ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN

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RESPONDENT(S)/PLAINTIFF: ------------------------

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ABDUL BARI S/O SHAIKH MUHAMMED ROWTHER, RESIDING AT KOTTADI, MANJALOOR AMSOM,DESOM, ALATHUR TALUK,PALAKKADDISTRICT,PIN-678541.

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BY ADV. SRI.SIVAN MADATHIL BY ADV. SMT.P.USHAKUMARI

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06-12-2017, THE COURT ON 09-03-2018 DELIVERED THE FOLLOWING:

OKB

“CR”

P.N.RAVINDRAN

R.NARAYANA PISHARADI, JJ. ********************************

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R.F.A.No.927 of 2012

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Dated this the 9^th day of March, 2018

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JUDGMENT

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R.Narayana Pisharadi,J

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The appellant is the defendant in the suit O.S.No.403 of 2010 on the file of the Court of the Subordinate Judge of Palakkad. The respondent in the appeal is the plaintiff in the suit. The parties shall be hereinafter referred to as 'the plaintiff' and 'the defendant'.

¶26

The suit was for specific performance of contract. The trial court granted a decree in favour of the plaintiff for specific performance of Ext.A1 agreement for sale of the property owned by the defendant. This appeal is filed by the defendant challenging the judgment and decree passed in the suit.

¶27

The facts of the case are as follows: The defendant is the owner of the plaint schedule property which is a shop room. On 14/11/2009, the plaintiff and the defendant entered into

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Ext.A1 agreement for sale of the plaint schedule property. As per this agreement, the plaintiff agreed to purchase the plaint schedule property for a total consideration of Rs.14,40,000/-. At the time of execution of the agreement, the plaintiff paid an amount of Rs.3,00,000/- to the defendant as advance towards sale consideration. The balance amount of sale consideration had to be paid by the plaintiff on or before 14/05/2010 and then the defendant had to execute the sale deed in favour of the plaintiff.

¶31

Thereafter, the defendant sent Ext.A2 lawyer notice dated 14/12/2009 to the plaintiff stating that his brother had filed a suit as O.S.No.284 of 2009 in the Munsiff's Court, Alathur against him and an application was filed in that suit for granting an order of injunction restraining him from selling the plaint schedule property. The defendant also stated in Ext.A2 lawyer notice that Ext.A1 agreement had to be cancelled for the aforesaid reason. Along with Ext.A2 lawyer notice, the defendant sent a cheque for Rs.3,01,500/- drawn in favour of the plaintiff towards repayment of the amount of advance along with interest.

¶32

The plaintiff then sent Ext.A3 reply notice dated 19/12/2009 to the defendant stating that he is ready and willing

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to proceed with the agreement and that he is ready to wait till the disposal of the suit O.S.No.284 of 2009. The plaintiff also reminded the defendant that his son Sheikh Muhammed was a tenant of the plaint schedule shop room from the date 18/08/2009 and that his son had paid an amount of Rs.2,50,000/- as advance to the defendant in the transaction of lease. The plaintiff also returned the cheque sent to him by the defendant.

¶36

Thereafter, the plaintiff sent Ext.A4 lawyer notice dated 06/05/2010 to the defendant stating that he had arranged the balance sale consideration and that he is ready and willing to get the sale deed executed in his favour. In Ext.A4 lawyer notice, the plaintiff further stated that the amount of Rs.2,50,000/- paid by his son to the defendant as advance in the transaction of lease was outstanding with the defendant and that he is ready to pay the balance sale consideration of Rs.8,90,000/- to the defendant.

¶37

There was no response from the defendant to Ext.A4 lawyer notice sent to him by the plaintiff. The plaintiff then instituted the suit on 11/06/2010 seeking a decree for specific performance of Ext.A1 agreement by the defendant and in the alternative, a decree for realisation of the amount of advance paid

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by him from the defendant.

¶41

The defendant filed written statement admitting the execution of Ext.A1 agreement for sale of the plaint schedule property in favour of the plaintiff. He also admitted having received Rs.3,00,000/- from the plaintiff as advance towards sale consideration at the time of execution of Ext.A1 agreement. However, he contended that he was not in a position to sell the plaint schedule property in favour of the plaintiff in view of the pendency of the suit filed against him by his brother. The defendant also contended that the plaintiff was not ready and willing to perform his part under Ext.A1 agreement and that there was no cause of action for the suit.

¶42

The trial court framed necessary issues in the suit. During the trial of the suit, the plaintiff was examined as PW1 and Exts.A1 to A10 documents were marked on his side and the defendant was examined as DW1 and Exts.B1 to B5 documents were marked on his side. On appreciation of the evidence adduced by the parties, the trial court found that the plaintiff was always ready and willing to perform his part under Ext.A1 agreement and that there was no sufficient ground to decline the

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discretionary relief of specific performance to him. Accordingly, the trial court passed a decree for specific performance of Ext.A1 agreement by the defendant.

¶46

We have heard Sri.P.B.Subramanyan, learned counsel for the appellant and Sri.Sivan Madathil, learned counsel for the respondent.

¶47

Learned counsel for the appellant contended that the plaintiff was not ready and willing to pay the entire balance sale consideration and therefore, the lower court has gone wrong in granting a decree for specific performance in favour of the plaintiff. Learned counsel has pointed out that as per Ext.A4 lawyer notice sent by the plaintiff to the defendant, the plaintiff had expressed willingness to pay only an amount of Rs.8,90,000/as the balance sale consideration instead of the amount of Rs.11,40,000/-. Learned counsel would contend that the plaintiff should have been ready and willing to perform his part of the contract from the date of the contract till the date of the decree. He would further contend that the plaintiff failed to aver and prove that he was always ready and willing to pay the entire balance sale consideration of Rs.11,40,000/-.

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Per contra, the learned counsel for the respondent contended that the plaintiff was always ready and willing to pay the entire amount of balance sale consideration to the defendant and that the lower court has rightly decreed the suit for specific performance. Learned counsel would also contend that the recitals contained in Ext.A4 lawyer notice sent by the plaintiff to the defendant regarding adjustment of the amount of Rs.2,50,000/- paid by his son to the defendant in the transaction of lease was only an offer or proposal made by the plaintiff to the defendant. Learned counsel would further contend that there was no failure on the part of the plaintiff to aver and prove that he was ready and willing to pay the entire balance sale consideration of Rs.11,40,000/- to the defendant.

¶51

The only point for consideration in this appeal is whether the plaintiff has been always ready and willing to perform his part under Ext.A1 agreement by paying the balance sale consideration to the tune of Rs.11,40,000/- to the defendant.

¶52

The plaint schedule property is a shop room. There is no dispute with regard to the fact that the defendant is the owner of the plaint schedule property. There is no dispute with regard to

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the execution of Ext.A1 agreement for sale of the plaint schedule property by the defendant in favour of the plaintiff. There is also no dispute with regard to the payment of an amount of Rs.3,00,000/- as advance towards sale consideration by the plaintiff to the defendant on the date of the agreement.

¶56

Section 16(c) of the Specific Relief Act, 1963 (hereinafter referred to as the Act) provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and 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. Explanation (ii) to Clause (c) of Section 16 of the Act states that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

¶57

Clause (c) of Section 16 of the Act lays down the conditions precedent to the enforcement of specific performance of a contract. Section 16 (c) of the Act is couched in a negative form. It mandates that specific performance of a contract cannot

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be enforced in favour of a person who has failed to aver and prove his readiness and willingness to perform his part of the contract. A bare perusal of this provision shows that the plaintiff has the obligation not only to aver that he has always been ready and willing to perform the essential terms of the contract but also to prove so. The basic principle behind Section 16(c) of the Act read with Explanation (ii) is that any person seeking the benefit of specific performance of contract must manifest that his conduct has been blemishless throughout, entitling him to the specific relief (Aniglase Yohannan v. Ramlatha: AIR 2005 SC 3503).

¶61

Continuous readiness and willingness on the part of the plaintiff to perform his part of the contract is a condition precedent to grant the relief of specific performance. 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 and subsequent to the filing of the suit along with other attendant circumstances. Right from the date of execution of the agreement till the date of the decree he shall be ready and willing to perform his part of the contract. The factum of readiness and willingness to perform the contract is to be

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adjudged with reference to the conduct of the party and the attendant circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract (N.P. Thirugnanam v. R. Jagan Mohan Rao : AIR 1996 SC 116).

¶65

Therefore, we have to see whether the plaintiff has averred as well as proved the two conditions, namely, readiness and willingness to perform his part under Ext.A1 agreement regarding payment of the balance sale consideration. The total sale consideration mentioned in Ext.A1 agreement is Rs.14,40,000/-. On the date of the agreement, the plaintiff had paid Rs.3,00,000/- to the defendant as advance towards sale consideration. Therefore, he had the obligation to pay an amount of Rs.11,40,000/- towards balance sale consideration and the plaintiff should have always been ready and willing to pay that amount to the defendant.

¶66

There is an averment in the plaint that the plaintiff was/is always ready and willing to perform his part of the contract. There is also an averment in the plaint that the plaintiff is ready and willing to deposit the balance sale consideration in

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the court. The plaint contains a further averment that the plaint schedule shop room is occupied by the son of the plaintiff as a tenant and that the son of the plaintiff had paid an amount of Rs.2,50,000/- as advance to the defendant in the transaction of lease and also that the son of the plaintiff has no objection to apportion the aforesaid amount of Rs.2,50,000/- towards the balance sale consideration payable by the plaintiff to the defendant.

¶70

The plaint does not contain an averment that the plaintiff has been and is ready and willing to pay an amount of Rs.11,40,000/- to the defendant towards balance sale consideration. Absence of such a specific averment in the plaint assumes significance in the light of the recitals contained in Ext.A4 lawyer notice sent by the plaintiff to the defendant and also the other averments in the plaint regarding payment of Rs.2,50,000/- by the son of the plaintiff to the defendant in the transaction of lease. In Ext.A4 lawyer notice, the plaintiff had made a categoric statement that he was ready to pay the balance sale consideration of Rs.8,90,000/- to the defendant after adjusting the amount of Rs.2,50,000/- paid by his son to the

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defendant in the transaction of lease. The specific averment made by the plaintiff in Ext.A4 lawyer notice was that he was ready and willing to pay an amount of Rs.8,90,000/- towards balance sale consideration. The plaint also contains an averment regarding the payment of Rs.2,50,000/- by the son of the plaintiff to the defendant in the transaction of lease. The averment in the plaint that the plaintiff has been ready and willing to pay the entire amount of balance sale consideration to the defendant has to be understood in the light of the aforesaid recitals contained in the plaint and Ext.A4 lawyer notice. Therefore, the substance of the plea of the plaintiff was that he was ready and willing to pay only an amount of Rs.8,90,000/- to the defendant towards balance sale consideration.

¶74

Learned counsel for the respondent/plaintiff contended that the recital contained in Ext.A4 lawyer notice that the plaintiff was ready and willing to pay an amount of Rs.8,90,000/- to the defendant towards balance sale consideration after adjustment of the amount of Rs.2,50,000/- paid by his son to the defendant in the transaction of lease was only an offer or proposal made by the plaintiff to the defendant. Learned counsel would also contend

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that merely for the reason that the plaintiff had made such an offer in the lawyer notice sent by him to the defendant, it cannot be found that he was not ready and willing to pay the entire balance sale consideration of Rs.11,40,000/- to the defendant. Learned counsel would also point out that the defendant did not send any reply rejecting the proposal made by the plaintiff.

¶78

In our opinion, there is no merit in the contention advanced by the learned counsel for the respondent/plaintiff that the recital contained in Ext.A4 lawyer notice regarding the readiness expressed by the plaintiff to pay only Rs.8,90,000/- as balance sale consideration amounted to only an offer or proposal made by the plaintiff. The plaintiff had categorically stated in Ext.A4 lawyer notice that he was ready to pay the balance sale consideration of Rs.8,90,000/-. Even if it is assumed that it was only an offer made by the plaintiff, when the defendant did not accept that offer, it was incumbent upon the plaintiff to make a specific averment in the plaint that he has been and is always ready and willing to pay an amount of Rs.11,40,000/- to the defendant towards balance sale consideration. The plaint does not contain an averment to that effect. Absence of such an

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averment in the plaint is fatal to the relief claimed by the plaintiff for specific performance of the agreement by the defendant.

¶82

A plea is not an expression of art and science. It is an expression through words to place facts and law of one's case for a relief. Such an expression may be pointed or precise. Some times it may be vague. The true spirit behind a plea could be gathered only if it is read as a whole. What is to be considered is the pith and substance of a plea. Compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. Mere assertion in the plaint that plaintiff is ready and willing to perform the contract or mere use of the words in a mechanical manner would not be sufficient (Syed Dastagir v. T. R. Gopalakrishna Setty: AIR 1999 SC 3029).

¶83

There is also no proof that the plaintiff has always been and is ready and willing to pay the entire balance sale consideration of Rs.11,40,000/- to the defendant. Neither in the affidavit filed in lieu of examination-in-chief nor in the cross examination, the plaintiff has stated that he is or he has been willing to pay an amount of Rs.11,40,000/- to the defendant towards the balance sale consideration. On the other hand, in the

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affidavit filed in lieu of examination-in-chief, what is stated by him is only that he is ready to pay the balance sale consideration. He has not specifically stated what is the amount he is ready and willing to pay towards balance sale consideration. He has made a further statement in examination-in-chief that his son had paid an amount of Rs.2,50,000/- to the defendant as advance in the transaction of lease. It shows that the plaintiff was willing to pay only an amount of Rs.8,90,000/- to the defendant towards balance sale consideration after adjusting the amount of Rs.2,50,000/- paid by his son to the defendant in the transaction of lease.

¶87

It is also to be noted that the plaintiff did not examine his son to prove that his son had no objection to adjust the amount of Rs.2,50,000/- paid by him to the defendant in the transaction of lease.

¶88

Of course, Exts.A6 to A9 documents relating to the bank accounts of the plaintiff and his wife would prove that the plaintiff had with him the entire amount payable by him towards balance sale consideration. It does not mean that he was willing to part with that amount and pay it to the defendant. It only

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proves that the plaintiff had sufficient amount with him to pay the entire balance sale consideration of Rs.11,40,000/-. There is distinction between readiness to perform the contract and willingness to perform the contract. Readiness means the capacity of the plaintiff to perform the contract and it includes his financial ability to raise the money to pay the purchase price. Even if the plaintiff has the financial capacity to pay the purchase price and he thereby shows readiness to perform the contract, that need not necessarily mean that he is willing to perform his part of the contract. Unless he is also willing to perform his part of the contract, mere readiness to do so cannot be of any avail to him. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness (J.P. Builders vs Ramadas Rao : (2011) 1 SCC 429).

¶92

Readiness and willingness have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In Raj Rani Bhasin v. Kartar

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Singh Mehta : AIR 1975 Delhi 137, it has been held as follows:

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“In our view the distinction between conduct which would disentitle the plaintiff from specific performance and conduct which would not so disentitle him is as follows. If the conduct of the plaintiff shows that he was really unwilling to buy the property then the plaintiff is disqualified from specific performance. If on the other hand, the plaintiff was always willing to buy the property but in doing so made a mistake in insisting on some thing which he was not entitled to get from the defendants then such a mistake would not disqualify him from specific performance if the mistake was corrected in time and the plaintiff had made it clear that he had withdrawn the mistaken demand and the mistake did not detract his essential willingness to purchase the property”.

¶97

In the instant case, the plaintiff committed a mistake in seeking specific performance of Ext.A1 agreement by the defendant only on payment of an amount of Rs.8,90,000/-

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towards balance sale consideration. He expressed his willingness in this regard in Ext.A4 lawyer notice sent by him to the defendant. He did not correct that mistake even at the time of giving evidence in the suit. He reiterated in the plaint that his son had paid an amount of Rs.2,50,000/- to the defendant as advance in the transaction of lease. Even at the time of giving evidence, the plaintiff did not specifically state that he was willing to pay an amount of Rs.11,40,000/- to the defendant towards balance sale consideration.

¶101

It is settled law that if the plaintiff behaves contrary to the terms of the contract and insists that the sale by the defendants should be on terms which are different from the terms of the contract, then it is an indication that he was not willing to perform his part of the contract. As noticed earlier, 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 and subsequent to the filing of the suit along with other attendant circumstances (N.P. Thirugnanam v. R. Jagan Mohan Rao : AIR 1996 SC 116). A bare averment in the plaint or a statement made in the examination - in - chief would not suffice.

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The conduct of the plaintiff must be judged having regard to the entirety of the pleadings as also the evidence brought on record (Umabai v. Nilkanth Dhondiba Chavan: (2005) (6) SCC 243). Readiness and willingness to perform the contract mean readiness and willingness to perform the essential terms of the contract as contemplated in Section 16(c) of the Act.

¶105

Consideration is an essential and integral term of a contract. Readiness and willingness expressed by the plaintiff to pay only an amount which is lesser than the consideration shown in Ext.A1 agreement amounts to variation of the terms of the contract. It is to be noted that even before the execution of Ext.A1 agreement, the son of the plaintiff was occupying the plaint schedule shop room as a tenant under the defendant. Therefore, if the parties had really intended that the amount of Rs.2,50,000/paid by the son of the plaintiff to the defendant had to be adjusted towards the sale consideration payable by the plaintiff, a specific recital would have been made in Ext.A1 agreement to that effect. Ext.A1 agreement does not contain any such stipulation.

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Readiness and willingness of the plaintiff to perform

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the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it culminates into decree of the court (Bal Krishna vs Bhagwan Das : AIR 2008 SC 1786). Right from the date of execution of the agreement till the date of the decree, he shall be ready and willing to perform his part of the contract (N.P. Thirugnanam v. R. Jagan Mohan Rao : AIR 1996 SC 116).

¶110

In the instant case, at least, at the time of sending Ext.A4 lawyer notice, the plaintiff was not willing to pay the entire balance sale consideration to the defendant. He was only willing to pay an amount of Rs.8,90,000/- to the defendant towards the balance sale consideration after adjusting the amount of Rs.2,50,000/- paid by his son to the defendant in the transaction of lease. It means that continuously during the period from the date of the agreement till the date of the decree, he was not willing to pay the entire balance sale consideration to the defendant.

¶111

Learned counsel for the respondent/plaintiff has contended that it was the defendant who committed breach of the

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contract. It is true that the defendant had sent Ext.A2 lawyer notice to the plaintiff stating that he could not proceed with the agreement on account of the suit filed by his brother and that he had to cancel the agreement. The fact that the defendant committed breach of the contract is not an answer to the failure of the plaintiff to comply with the requirements under Clause (c) of Section 16 of the Act. An act of breach committed by the defendant does not remove the bar under Clause (c) of Section 16 of the Act. It is a personal bar. Even if the defendant had committed breach of the contract, if the plaintiff fails to aver in the plaint or to prove that he was always ready and willing to perform the essential terms of contract which were required to be performed by him, there is a bar to specific performance in his favour. [Man Kaur v. Hartar Singh : (2010) 10 SCC 512]. Even if the defendant has failed to perform one of the terms of the contract that does not automatically entitle the plaintiff to get specific performance of the contract. On the failure of the plaintiff to prove his readiness and willingness, the suit for specific performance must fail, notwithstanding the failure to perform a term of the contract by the defendant. Proof of breach of any of

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the terms of the contract by the defendant is not proof of readiness and willingness on the part of the plaintiff as provided in Clause (c) of Section 16 of the Act. Readiness and willingness on the part of the plaintiff have to be independently established to enable him to get a decree for specific performance. It cannot be said that proof of the breach committed by the defendant would result in proof of the readiness and willingness on the part of the plaintiff. Breach of contract or any term of the contract by the defendant does not find a place in Section 16 of the Act (Muhammed vs Chandrika : 2010 (3) KHC 233).

¶118

In the light of the discussion above, we have no hesitation to find that the plaintiff has failed to aver and prove that he was always ready and willing to pay the entire balance sale consideration of Rs.11,40,000/- to the defendant. The plaintiff has failed to aver and prove that he was and he has always been ready and willing to perform his part under Ext.A1 agreement. It therefore follows that he is not entitled to get the discretionary relief of specific performance of contract. The trial court has in our opinion gone wrong in decreeing the suit for specific performance of Ext.A1 agreement.

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There is no dispute with regard to the fact that the plaintiff had paid an amount of Rs.3,00,000/- to the defendant as advance sale consideration on the date of the agreement. He is entitled to get back this amount from the defendant with interest @ 6% per annum from the date of the agreement till the date of realisation.

¶122

In the result, the appeal is allowed in part. The judgment and decree of the lower court in O.S.No.403 of 2010 are set aside. The suit is decreed by allowing the plaintiff to realise an amount of Rs.3,00,000/- from the defendant with interest @ 6% per annum from the date of Ext.A1 agreement till the date of realisation.

¶123

This Court had passed an interim order in I.A.No.2557 of 2012 staying the execution of the impugned decree on the condition that the appellant shall produce before the court below a fixed deposit receipt for Rs.4,00,000/- drawn in his name on a nationalised bank. If the appellant has produced the fixed deposit receipt in compliance with the aforesaid order, we deem it appropriate to allow the respondent/plaintiff to realise the decree debt from the aforesaid amount deposited in the bank. The

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respondent/plaintiff is at liberty to take appropriate steps in the court below in that regard. In the facts and circumstances of the case, we direct the parties to suffer their respective costs in the appeal.

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(sd/-)

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P.N.RAVINDRAN, JUDGE

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr

Rafeeq v. Abdul Bari

Case brief

What is this about?

What did the court decide?

Rafeeq v. Abdul Bari

Case brief

What is this about?

What did the court decide?

What the court decided

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