Specific Relief Act, 1963 – Section 16(c) – Personal bars to relief – Readiness and Willingness – Suit for Specific Performance of Agreement of Sale – Mere pleading of readiness and proving the same itself would satisfy the requirement – Held, An agreement holder, after entering into the agreement, at any time later, may change his mind and give up the contract for so many reasons, even though he is financially sound to fulfill his part of the contract. Therefore, his readiness pleaded and established by his financial capacity alone is not sufficient, unless it is also pleaded and proved that he is willing to put such readiness into action to complete the transaction within the time stipulated. Unless such intention of the agreement holder is also pleaded with material averments and proved, it cannot be said that the plaintiff has satisfied the requirement of Section 16(c) in its strict sense. The ‘readiness’ and ‘willingness’ being both sides of a coin, should co-exist and survive throughout commencing from the date of agreement till the decree is passed.
Willingness and Readiness
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM : THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU
Second Appeal No.378 of 2009
Kadali Venu Sankar … Appellant
Pydikondala Lakshmi … Respondent
For Appellant : Mr.S.V.Jayaraman, Senior Counsel for Mr.M.Aravind Subramaniam; For Respondent : Mr.M.Ravi
This second appeal has been filed under Section 100 C.P.C., against the Judgment and Decree of the learned Principal District Judge, Puducherry made in A.S.No.40 of 2007 dated 13.02.2009 thereby reversing the judgment and decree of the learned Subordinate Judge, Yanam made in O.S.No.8 of 2006 dated 27.04.2007.
J U D G M E N T
The defendant in a suit for specific performance of agreement of sale is the appellant and the respondent herein is the plaintiff.
2. The case of the plaintiff is as follows:
The defendant is the owner of the suit property and entered into an agreement of sale with the plaintiff on 09.12.2002, agreeing to sell the suit property for a total consideration of Rs.2,25,000/- and received a sum of Rs.1,75,000/- as advance. The balance sale consideration was agreed to be paid within one year. Though the plaintiff made ready the balance sale consideration within the stipulated time and requested the defendant on several occasions to perform his part of the contract, he postponed the same on one reason or other. The plaintiff issued a notice to the defendant on 26.09.2005. Since no acknowledgement was received, she once again issued a notice on 08.12.2005. The defendant replied on 28.01.2006 with false allegations. The plaintiff issued a rejoinder on 15.02.2006. The plaintiff is always ready to perform her part of contract.
3. The case of the defendant is as follows:
The defendant borrowed a sum of Rs.50,000/- from the plaintiff and agreed to pay the said sum with interest at 24% p.a. At the time of borrowing the said sum, the plaintiff obtained signatures of the defendant on blank promissory notes, cheques, signed stamp and white papers. The defendant never executed any agreement of sale. The original parent document relating to the suit property was deposited with the plaintiff as security for the debt. The plaintiff is the money lender and the transaction between the parties was a loan transaction without any intention to sell or purchase the suit property. If really the plaintiff had paid Rs.1,75,000/- on the date of agreement, she could have not kept quiet for more than 2 = years to issue the suit notice and file the suit after 3 years of execution of the agreement.
4. The plaintiff has not examined herself as a witness. On the other hand, she examined her husband as PW1 and one of the attester of the sale agreement as PW2. She marked Exs.A1 to A13 on her side. The defendant examined himself as DW1. He has not marked any exhibits on his side.
5. The trial court, after considering the pleadings of the parties, evidence let in by them and on appreciation of the entire facts and circumstances, found that Ex.A1 sale agreement was not executed for the purpose of sale and on the other hand, the same was created towards the loan transaction and thus, the same is not true and valid. The trial court thus dismissed the suit in so far as the relief of specific performance is concerned. However a decree for a sum of Rs.50,000/- with interest was granted.
6. Challenging the judgment and decree of the trial court, the plaintiff filed the appeal before the First Appellate Court. The defendant did not challenge the money decree. The Appellate Court reversed the finding of the trial court and found that there is a valid sale agreement and that the plaintiff was always ready and willing to perform her part of the contract. The Appellate Court also pointed out that though there is an abnormal delay in filing the suit, it cannot be presumed that the plaintiff has waived her right to get the sale deed executed. Thus, the Appellate Court allowed the appeal and directed the defendant to execute the sale deed after receiving the balance consideration of Rs.50,000/-.
7. Aggrieved against the reversing finding of the Appellate Court, the defendant filed the present second appeal which came to be admitted by raising the following substantial questions of law:
1. Whether the first appellate court was perverse in analysing the evidence and construing that there was no delay on the part of the plaintiff in seeking specific performance of the agreement to sell?
2. Whether the first appellate court failed to consider that the non-examination of the plaintiff was fatal to her case?
8.The learned Senior Counsel Mr.S.V.Jayaraman, who appeared on behalf of the appellant submitted as follows:
a) There is no strict compliance of requirement under Section 16(c) of the Specific Relief Act in this case. The plaintiff has averred in the plaint only her readiness and not her willingness. Unless both are pleaded and proved, the plaintiff is not entitled to the relief of specific performance. The following decisions support such contention: