Pushparani S. Sundaram & Ors. Vs. Pauline Manomani James (Deceased) & Ors.
EmailAppeal: Civil Appeal No. 805 of 1994
Petitioner: Pushparani S. Sundaram & Ors.
Respondent: Pauline Manomani James (Deceased) & Ors.
Apeal: Civil Appeal No. 805 of 1994
Judges: A.P. MISRA & N. SANTOSH HEGDE, JJ.
Date of Judgment: Apr 05, 2000
Head Note:
SPECIFIC RELIEF
Specific Relief Act, 1963
Section 16 (c) – Suit for specific performance – When could be decreed – Agreement for sale of immovable property – Plaintiff agreeing to purchase the property – Agreement stipulating the plaintiff to obtain the necessary permission from Land Ceiling Authorities – Also obliga-tion on the part of plaintiff to arrange for valuation of super-structure – Plaintiff not discharging any of the obligations – Whether entitled to sue for specific performance compelling the Respondent to complete the sale transaction. Held plaintiff not having performed his part of the obligations under the terms of agreement, not entitled to a decree for specific performance. More so when plaintiff did not even enter the witness box nor sent any communication about his willingness to perform his part of the contract.
Specific Relief Act, 1963
Section 16 (c) – Suit for specific performance – When could be decreed – Agreement for sale of immovable property – Plaintiff agreeing to purchase the property – Agreement stipulating the plaintiff to obtain the necessary permission from Land Ceiling Authorities – Also obliga-tion on the part of plaintiff to arrange for valuation of super-structure – Plaintiff not discharging any of the obligations – Whether entitled to sue for specific performance compelling the Respondent to complete the sale transaction. Held plaintiff not having performed his part of the obligations under the terms of agreement, not entitled to a decree for specific performance. More so when plaintiff did not even enter the witness box nor sent any communication about his willingness to perform his part of the contract.
(Paras 6,7)
JUDGEMENT:
ORDER
1. Heard learned Counsel for the
parties.
2. The present appeal is directed against the judgment and order dated 18th August, 1992 passed by the High Court confirming the dismissal of the suit for specific performance.
3. The appellants-plaintiffs filed a suit for specific perfor-mance of a contract dated 10th August, 1980 for the sale of an immovable property in accordance with the terms of that contract. The defendants-respondents had agreed to sell to the appellant (first plaintiff) about 38 grounds of land mentioned in ‘A’ Schedule to the plaint to develop the area into a housing colony. As per the agreement, the plaintiff agreed to purchase the prop-erty from the defendant at a consolidated price to be calculated at the rate of Rs. 8,500/- per ground for the bare land and an additional price to be fixed of the superstructure after getting its valuation from the competent engineer or architect as per the agreement. This agreement was, of course, subject to the permis-sion to be granted to the defendant under Urban Land Ceiling and Regulation Act (Act 24 of 1978). An obligation was cast under the agreement on the plaintiff to obtain such permission. On the date of the aforesaid agreement Rs. 5,000/- was paid by the first plaintiff to the defendant. The defendant’s application initial-ly to the authorities for the declaration of the exemption from the operation of the aforesaid Act was rejected. However, later the plaintiff was informed by the defendant that a communication dated 31st March, 1982 has been received by the defendant that exemption for the part of the land has been granted under the said Act. Thereafter, the present suit was filed by the appellant for the specific performance of the said contract for executing a sale deed. This suit was contested as defendant denied that the plaintiff was ready and willing to perform his part of the con-tract. On the contrary he did not perform his part of the obli-gation under the said contract. The trial court dismissed the suit of the appellants, which is confirmed
by the High Court. Aggrieved by that the present appeal has been preferred.
4. The only question raised before the High Court which it considered, to which we are called upon for consideration is, whether the appellants were always ready and willing to perform their part under the contract. The High Court came to the con-clusion that willingness and readiness is no doubt pleaded but they led no evidence to prove it. Thus held, that the plaintiff is not entitled for the decree of specific performance. The submission by the learned Counsel for the appellants is that the plaintiff was always willing and ready to perform his part under the contract but mere non-leading of any evidence is not suffi-cient to reject it. Inference of readiness and willingness could be drawn by the conduct of the plaintiff and the circumstances, in a particular case in other words to be gathered from the totality of circumstances.
5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authori-ties on the 31st March, 1982, the present suit was filed in April, 1982 and the other the tendering of further sum of Rs. 5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part of the contract. So far these are 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 con-clude, 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 first of the two circum-stances, how could mere filing of this suit, after exemption was granted could 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.
6. Next and the only other circumstance relied is about the tendering of Rs. 5,000/-, which was made on the 2nd March, 1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case only other payment made by the plaintiff was Rs. 5,000/- at the time of execution of the agreement of sale. Thus, total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus, in our consid-ered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act, requires that not only there be a plea of readiness and willingness but has to be proved so. It is not in dispute except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of plaintiff coming in the witness box that by itself may not be a factor to conclude that he was not ready and willing in a given a case as erroneously concluded by the High Court. But in the present case, not only the plaintiff has not come in the witness box, but not even sent any communication or notice to the defendant about his willingness to perform his part of the contract. In fact no evidence is led to prove the same.
7. On the contrary, learned Counsel for the appellants submits that plaintiff has not performed his obligation under the con-tract. He was obliged to obtain permission for the defendant from the Ceiling Authorities. Plaintiff could not show from the record that he obtained the permission from the Ceiling Authori-ties. In fact, finding is recorded that he has not obtained. There was another obligation cast on him, before sale deed is to be executed, valuation of the superstructure is to be ascer-tained. For this vendor and purchaser was to nominate an en-gineer or architect and in the case of their difference each has to appoint as such and if, there be any difference between them, then the matter was to be referred to an Umpire. No such thing was done in the present case. How could there be decree for specific performance when not even valuation has been worked out by the plaintiff under the contract to fix the amount for sale.
8. Thus, for the aforesaid reasons, we do not find the present case to be a fit case to interfere with the findings recorded by both the courts below that plaintiff was not willing and ready. Accordingly, the appeal has no merit and is accordingly dis-missed. Costs on the parties.
1. Heard learned Counsel for the
parties.
2. The present appeal is directed against the judgment and order dated 18th August, 1992 passed by the High Court confirming the dismissal of the suit for specific performance.
3. The appellants-plaintiffs filed a suit for specific perfor-mance of a contract dated 10th August, 1980 for the sale of an immovable property in accordance with the terms of that contract. The defendants-respondents had agreed to sell to the appellant (first plaintiff) about 38 grounds of land mentioned in ‘A’ Schedule to the plaint to develop the area into a housing colony. As per the agreement, the plaintiff agreed to purchase the prop-erty from the defendant at a consolidated price to be calculated at the rate of Rs. 8,500/- per ground for the bare land and an additional price to be fixed of the superstructure after getting its valuation from the competent engineer or architect as per the agreement. This agreement was, of course, subject to the permis-sion to be granted to the defendant under Urban Land Ceiling and Regulation Act (Act 24 of 1978). An obligation was cast under the agreement on the plaintiff to obtain such permission. On the date of the aforesaid agreement Rs. 5,000/- was paid by the first plaintiff to the defendant. The defendant’s application initial-ly to the authorities for the declaration of the exemption from the operation of the aforesaid Act was rejected. However, later the plaintiff was informed by the defendant that a communication dated 31st March, 1982 has been received by the defendant that exemption for the part of the land has been granted under the said Act. Thereafter, the present suit was filed by the appellant for the specific performance of the said contract for executing a sale deed. This suit was contested as defendant denied that the plaintiff was ready and willing to perform his part of the con-tract. On the contrary he did not perform his part of the obli-gation under the said contract. The trial court dismissed the suit of the appellants, which is confirmed
by the High Court. Aggrieved by that the present appeal has been preferred.
4. The only question raised before the High Court which it considered, to which we are called upon for consideration is, whether the appellants were always ready and willing to perform their part under the contract. The High Court came to the con-clusion that willingness and readiness is no doubt pleaded but they led no evidence to prove it. Thus held, that the plaintiff is not entitled for the decree of specific performance. The submission by the learned Counsel for the appellants is that the plaintiff was always willing and ready to perform his part under the contract but mere non-leading of any evidence is not suffi-cient to reject it. Inference of readiness and willingness could be drawn by the conduct of the plaintiff and the circumstances, in a particular case in other words to be gathered from the totality of circumstances.
5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authori-ties on the 31st March, 1982, the present suit was filed in April, 1982 and the other the tendering of further sum of Rs. 5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part of the contract. So far these are 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 con-clude, 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 first of the two circum-stances, how could mere filing of this suit, after exemption was granted could 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.
6. Next and the only other circumstance relied is about the tendering of Rs. 5,000/-, which was made on the 2nd March, 1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case only other payment made by the plaintiff was Rs. 5,000/- at the time of execution of the agreement of sale. Thus, total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus, in our consid-ered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act, requires that not only there be a plea of readiness and willingness but has to be proved so. It is not in dispute except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of plaintiff coming in the witness box that by itself may not be a factor to conclude that he was not ready and willing in a given a case as erroneously concluded by the High Court. But in the present case, not only the plaintiff has not come in the witness box, but not even sent any communication or notice to the defendant about his willingness to perform his part of the contract. In fact no evidence is led to prove the same.
7. On the contrary, learned Counsel for the appellants submits that plaintiff has not performed his obligation under the con-tract. He was obliged to obtain permission for the defendant from the Ceiling Authorities. Plaintiff could not show from the record that he obtained the permission from the Ceiling Authori-ties. In fact, finding is recorded that he has not obtained. There was another obligation cast on him, before sale deed is to be executed, valuation of the superstructure is to be ascer-tained. For this vendor and purchaser was to nominate an en-gineer or architect and in the case of their difference each has to appoint as such and if, there be any difference between them, then the matter was to be referred to an Umpire. No such thing was done in the present case. How could there be decree for specific performance when not even valuation has been worked out by the plaintiff under the contract to fix the amount for sale.
8. Thus, for the aforesaid reasons, we do not find the present case to be a fit case to interfere with the findings recorded by both the courts below that plaintiff was not willing and ready. Accordingly, the appeal has no merit and is accordingly dis-missed. Costs on the parties.
