The court dismissed a second appeal challenging a specific performance decree. It upheld the lower courts' finding that the plaintiff demonstrated readiness and willingness through depositing the balance consideration within the agreed timeframe, satisfying Section 16(c) of the Specific Relief Act.
Second appeal dismissed. No order as to costs.
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.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 02.12.2016
Date of Verdict : 07.12.2016
CORAM
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
S.A.No. 1776 of 2003
C.M.P.Nos. 16231 of 2003, and 3153 of 2007
...Appellants
Vs.
M.Vijaya ...Respondent
Prayer:- This Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgment and decree dated 23.06.2003 and made in A.S.No.43 of 2002 on the file of the Principal District Judge, Vellore confirming the Judgement and Decree dated 22.02.2002 and made in OS.No.433 of 1992 on the file of the Sub Court, Vellore.
For Appellants : Mr.K.P.Gopalakrishnan
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For Respondent : Mr.T.R.Rajaraman
JUDGMENT
The first appellant in this second appeal is the defendant who
suffers decree in the suit for specific performance. Against the concurrent judgment, this appeal is filed raising certain substantial question of law.
plaintiff and the defendant entered into an agreement of sale on 23.10.1991 in respect of the suit schedule property. The total sale consideration was fixed at Rs. 62,000/-. Advance of Rs 25,000/- paid and one year period for payment of balance consideration and to complete the
sale was agreed upon by both the parties. While plaintiff was ready and willing to perform her part of contract, the defendant was not ready. The plaintiff issued notice on 3.10.1992 but the defendant did not respond. Hence suit filed on 20.10.1992
suit property is a joint family property. She is not competient to enter upon a sale agreement in respect of the suit property based on the settlement deed dated 16.5.1975 by one Chinnappa Naidu which was not acted upon. Further, the she sign the deed under the impression that it is a lease deed
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in favour of the plaintiff's husband in respect of her property. The document was not read over and explained to her. On receipt of the plaint copy she came to know about the fraud committed by the plaintiff's husband. The sale consideration shown in the sale agreement is very less and the real value of the property runs to several lakhs.
evidences namely PW-1, PW-2 and DW-1, Ex.A-1 to Ex.A-3, rejected the defence and allowed the suit. The first appellate court confirmed the trial court judgment and dismissed the appeal.
deposition of the plaintiff, the pleading and the legal notice contented that, the plaintiff has not made a specific plea of readiness and willingness and
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also failed to prove the same. In support of his submission judgments which has held that, under Section 16(c) of the specific relief Act, readiness and willingness has to be pleaded and proved.
on the pleadings, has framed five issues. Out of these five issues the third and fourth issues are : “ Whether the plaintiff was ready to perform her part of contract? And Whether the plaintiff is entitle for the relief of specific performance? The trial court has held these two issues in affirmative after assessing the sale agreement Ex.A-1 dated 23.10.1991,
the pre suit notice Ex.A-2 dated 3.10.1992, the oral evidence of the plaintiff.
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1995 (SC) 945 In the first cited case, the Hon'ble High Court has held that
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the vendor against whom the specific performance sought had no title over the property coupled with the fact that the first respondent not proved the readiness and willingness in unequivocal terms. In second cited case, the Hon'ble Supreme Court has held that, the continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff's part of contract.
above two judgments, in this case though the defendant has taken a stand that she does not have a title to enter upon the sale agreement, she has not substantiated this. Court has disbelieved her plea and rejected the defence. In fact such a false plea actually strengthen the case of the plaintiff who has avered that she was ready and willing to perform her part of contract but the defendant was evading. This has forced her to issue notice dated 03.10.1992 followed by the suit for specific performance.
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willingness. It is not necessary to jingle the coins before the party or before the court. A bonafide expression is sufficient. The courts below after cumulative assessment of the plaintiff evidence has satisfactorily concluded that the plaintiff has established readiness and willingness.
has to pay the balance sale consideration within one year and get the sale completed. The date of agreement is 23.10.1991 whereas the suit notice calling the defendant to execute the sale is dated 3.10.1992 which is well within the one year period prescribed for completion of contract. Neither the law nor precedents mandates that the day on which the agreement entered, the buyer must be ready with full sale consideration. What is required and expected is that, the buyer must be read to perform his or her part of contract before the date prescribed for completing the contract
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G. JAYACHANDRAN, J.
rts
and it must be expressed unequivocally. Both the requirements are fully complied by the plaintiff. Therefore the relief of specific performance has been rightly granted. No merit in the appeal to interfere the concurrent finding of the courts below.
07.12.2016
Index :Yes/No
To
Judgment in S.A.No. 1776 of 2003 C.M.P.Nos. 16231 of 2003 and 3153 of 2007
2 issues framed by the court
Whether the lower court was right in decreeing the suit without discussing the plaintiff's readiness and willingness?
Whether the lower appellate court was right in holding that the plaintiff was ready and willing in light of cited precedents?
Lurthumary (died) and others
M. Vijaya
DR. G. JAYACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
