Amarjeet S. Vidhyarthi vs Sushiladevi K. Pillani
2001 Latest Caselaw 722 Bom

JUDGMENT

J.A. Patil, J.

1. This is a suit for specific performance of contract and possession of the property agreed to be sold. In the alternative, it is a suit for damages. The property in respect of which these reliefs are claimed is Flat No. 3 in building No. 5 of the Colaba Co-operative Housing Society, situate on Sohrab Bharucha Road, Colaba Mumbai. It's carpet area is 1400 square feet. The defendant is the owner of the suit flat.

2. It is the plaintiff's case that under the agreement of sale dated 17-4-1985, the defendant agreed to sell the suit flat to him for a consideration of Rs. 12,50,000/-. The agreement of sale which was reduced to writing contains inter alia the following terms :

i) The payment of earnest money of Rs. 15,000/- to be made by the plaintiff to the defendant on or before the execution of the agreement.

ii) The balance amount of Rs. 12,35,000/- was to be paid by the plaintiff on the society accepting him as its member and on the defendant putting him in possession of the suit flat.

iii) The defendant was to comply with all the formalities for effecting transfer of shares and share certificates in favour of the plaintiff.

iv) Upon the society issuing a no objection certificate to accept the plaintiff as its member, the plaintiff was to deposit with Shri S. Venkateshwaran, Advocate, the balance amount of Rs. 12,35,000/-.

v) Shri Venkateshwararn was to pay the said amount to the defendant after he put the plaintiff in possession of the suit flat.

3. Pursuant to this agreement the plaintiff handed over a cheque of Rs. 15,000/- to Shri Venkateshwaran for payment to the defendant, who also made an application to the society for granting its permission to transfer the suit flat to the plaintiff. According to the plaintiff the suit flat needed some repairs. Hence with the permission of the defendant, the plaintiff got the suit flat inspected by his architect who estimated the costs at Rs. 1,50,000/-. The plaintiff has averred that in the first week of May 1985, the defendant through her husband refused to complete the transaction but finally with the intervention of Shri Venkateshwaran, agreed to postpone the completion till 31-5-1985. In the meantime, the society by its letter dated 17-5-1985 informed the defendant that her application for transfer of the suit flat was granted and requested the defendant to send the share certificates and allotment letter for necessary endorsement. The plaintiff therefore, requested the defendant to act accordingly but the defendant avoided to do so and refused to complete the transaction on 31-5-1985. At that time Shri Venkateshwaran was out of India and he returned back on 13-6-1985. Even, therefore, the plaintiff requested the defendant to complete the transaction but the defendant refused to do so.

4. The plaintiff has averred that he was, at all times and even now, ready and willing to perform his part to the contract. He has alleged that the defendant has however, wrongfully refused to perform her part to the contract as she wanted to sell the suit flat to her daughter. The defendant has thus committed breach of the agreement. The plaintiff therefore, filed this suit on 29-7-1985 for specific performance of the contract and for possession of the suit flat. Alternatively he has prayed for damages of Rs. 10 lakhs.

5. The defendant resists the suit claim on various grounds. She admits having entered into agreement of sale with the plaintiff but denies that the agreed consideration was Rs. 12,50,000/-. According to her, the agreement for Rs. 12,50,000/- was only provisional and that the final agreement was to be for a consideration of Rs. 17,12,5000/-. It was also agreed that the plaintiff would deposit a sum of Rs. 4,62,500/- with Shri Venkateshwaran who was a common friend of both the parties and who agreed to act as escrow between the parties. The defendant has averred that during the course of negotiation the plaintiff informed that he had sold his own flat for Rs. 10,50,000/- to a third party through Udeshi of M/s. Crawford Bayley & Co. and that he was to receive from Shri Udeshi Rs. 2,50,000/- in cash which he intended to pay to the defendant a part payment of Rs. 4,62,5000/-. According to the defendant, it was agreed that the said sum would be deposited by the plaintiff in any event, prior to the society granting its no objection for the membership of the plaintiff. Thereafter, the provisional agreement for Rs. 12,50,000/- was agreed to be replaced by the final agreement for Rs. 17,12,500/-. The defendant has further averred that on 16-4-1985 the plaintiff came to the office of Shri Venkateshwaran and handed over to him a cash amount of Rs. 1,50,000/-. But on actual counting the same was found to be less by Rs. 1, 100/-. The plaintiff promised to pay the short amount on the next day. The amount of Rs. 1,48,900/- remained with Shri Gomes, the Junior of Shri Venkateshwaran, who told him (Gomes) that Shri Udeshi would send Rs. 2,50,000/- within 10 to 15 days. He also told Shri Gomes that the plaintiff would pay the remaining amount of Rs. 62,500/- in 2/3 days to complete the amount of Rs. 4,62,500/. The defendant has further averred that on the next day i.e. 17-4-1985 Shri Gomes handed over the agreement to her husband for his approval, who clarified to Shri Gomes that it was only a provisional agreement and that the final agreement would be executed on the plaintiff making the payment of Rs. 4,62,500/-. With this understanding the defendant signed the agreement. Shri Gomes was not supposed to part with the original or copies of the agreement.

6. The defendant has contended that although some days passed thereafter, neither Shri Udeshi deposited Rs. 2,50,000/- nor the plaintiff paid Rs. 62,500/- as agreed upon. Hence, the defendant's husband contacted Shri Venkateshwaran on phone and requested him to cancel the agreement. However, Shri Venkateshwaran and the plaintiff both requested the defendant's husband to give some more time for depositing the amount. Thereafter, on 11-5-1985 there was a meeting in the office of Shri Venkateshwaran in which the plaintiff promised the defendant's husband that he would pay the amounts in 2/3 days. The plaintiff pointed out that Shri Udeshi was insisting on plaintiff vacating his flat before paying the amount of Rs. 2,50,000/- and the plaintiff could to make any alternative arrangement for his own accommodation. After 2/3 days the defendant's husband again contacted the plaintiff who repeated the same excuse. By that time Shri Venkateshwaran had already left Mumbai. The defendant's husband told the plaintiff that it was not possible to wait any longer. Hence after a heated discussion it was agreed to abandon the contract with immediate effect. On 10-6-1985 the defendant's husband visited the office of Shri Venkateshwaran who had by that time returned to Mumbai. The defendant's husband apprised him of the situation and told that the parties had mutually agreed to abandon the contract. Shri Venkateshwaran is then said to have told that in that even no party was entitled to take any further step. He directed his junior to return the amount of Rs. 1,50,000/- to the plaintiff. The defendant has denied to have committed breach of the contract and alleged that it was the plaintiff who neglected and failed to perform his part. She has pointed out that the plaintiff did not pay the initial amount of Rs. 15,000/- as also the remaining amount of consideration of Rs. 12,35,000/- even though under clause 3 of the agreement he was liable to pay the same after the society granted its no objection. This, according to the defendant indicates that the parties had agreed to abandon the transaction. On these grounds the defendant has prayed for dismissal of the suit.

7. The issues framed with my findings thereon are as follows :-

                  ISSUES                               FINDINGS.
1.    Whether the plaint discloses
      cause of action?                                  Yes.
2.    Whether the consideration for
      sale of suit flat was fixed at
      Rs. 17,12,500/- as alleged in
      para 2(a) or written statement?                   No.
3.    Whether the agreement relied upon
      by the plaintiff was provisional
      agreement as alleged in para
      2(b) of the written statement?                    No.
4.    Whether the plaintiff agreed to
      treat the sale transaction as
      cancelled and abandoned the
      said transaction, as alleged in
      para 2(f) of the W.S.?                            Yes.
5.    Whether there is a valid,
      binding and subsisting agreement
      for sale between the plaintiff
      and defendant as alleged in
      paragraph 8 of the plaint?                        No.
6.    Whether the plaintiff was at all
      material time ready and willing
      to perform his part of contract
      as alleged in para 8 of the
      plaint and whether he performed
      his part of contract?                             No.
7.    What relief is the plaintiff
      entitled to?                                      None.
      for the reasons given below.
 

8. In support of his case, the plaintiff Amarjeet Singh Vidyarthi has made his oral statement and also examined Shri Venkateshwaran Advocate as his witness. On behalf of the defendant her husband Kishan Pilani made his oral statement. Shri Bobade, the learned Advocate for the plaintiff emphasised the fact that the defendant herself did not step in the witness box. He therefore, wanted adverse inference to be drawn against the defendant. The suit flat stands in the name of the defendant and the agreement of sale was entered into between the plaintiff and defendant. The evidence of the defendant's husband Kishan Pilani however, shows that all the negotiations were made by him on behalf of the defendant. Even the evidence of the plaintiff and Advocate Venkateshwaran also shows the same thing. Therefore, non-examination of the defendant as a witness is not of any material consequence. Hence there is no question of any adverse inference being drawn against the defendant.

9. Before turning to the issues, it is necessary to refer to the admitted facts in this suit. It is an admitted fact that the parties entered into an agreement of sale dated 17-4-1985 as per which the defendant agreed to sell and the plaintiff agreed to purchase the suit flat. It is also an admitted fact that Advocate Venkateshwaran is the common friend of both the parties and that the transaction was entered into through his mediation. It is further admitted that as per the term of the agreement, the defendant immediately applied to the society to grant its no objection to the transaction and accept the plaintiff as its member. Despite all these things, the transaction entered into could not materialize into sale. Both the parties have put the blame upon each other for the said failure. However, since it is the plaintiff who seeks the relief of specific performance, the burden of proof lies upon him to prove that he was and is ready and willing to perform his part to the contract and that it is the defendant who neglected or failed to perform her part.

10. Issue No. 1 : The defendant has contended in the written statement that the plaint does not disclose any cause of action. It was therefore, submitted by Shri Sanghvi that the suit is liable to be dismissed on this ground. It may be noted that cause of action means bundle of those facts upon which the plaintiff can claim a particular relief. In the instant case the plaintiff has averred that execution of the agreement of sale dated 17-4-1985. He has also averred that as agreed he paid the initial amount of Rs. 15,000/-. He has further averred that he was and is ready and willing to perform his part to the contract. The plaintiff has also made certain averments alleging how the defendant allegedly avoided to perform her obligation and why he is entitled to get the obligations enforced from the defendant. I think all these material facts, if held proved, may entitle the plaintiff to claim the reliefs which he has prayed. Therefore, in my opinion, the defendant's contention about want of cause of action is baseless. Finding on Issue No. 1 is therefore, recorded in the affirmative.

11. Issue Nos. 2 and 3 : The execution of the agreement of sale dated 17-4-1985 is not in dispute (Exh. B). The defendant has however, raised two contentions in that respect. The first is that the said agreement was provisional and not final and that final agreement was to be executed on the plaintiff's paying a sum of Rs. 4,62,500/-. The second contention is the corollary of the first contention as according to the defendant the consideration amount agreed to be paid was not Rs. 12,50,000/- but Rs. 17,12,500/-. The agreement of sale Exh. B mentions that the consideration amount fixed for the sale of the suit flat was Rs. 12,50,000/- out of which Rs. 15,000/- were to be paid by the plaintiff on or before the execution of the agreement and the balance amount of Rs. 12,3,000/- was to be paid by him on fulfilment of two conditions namely, first the society accepting the plaintiff as its member and second, the plaintiff being put in possession of suit flat. It is thus seen that the abovementioned contentions of the defendant are contradictory to and in variance of the written terms. This being so, it is not open to the defendant to contend and prove what is contradictory to the written terms of the agreement Exh. B in view of the bar of sections 91 and 92 of the Evidence Act. The position of law in this respect is well settled. Vide Gangabai v. Chhabubai, , Leelamma v. Narayanan, , K.M. Rajendran v. Arul Prakasham, . Findings on Issues Nos. 2 and 3 are therefore, recorded in the negative.

12. Issue Nos. 4 to 6 : These three issues involve common discussion on questions of fact. Hence they are taken up together. The agreement of sale Exh. A contains several terms and conditions. Clauses 1 to 4, 7 to 9 of Exh. A material terms casting certain obligations upon both the parties before the transaction was completed. It will therefore, be proper to reproduce these clauses ad verbatim as under :-

"1. The vendor shall sell and the purchaser shall purchase the said flat being Flat No. 3 in Building/Block No. 5, Colaba Land Co-operative Housing Society Ltd., at Sohrab Bharucha Road, Colaba, Bombay 400 005 admeasuring approximately 1400 square feet in carpet area at or for a price of Rs. 12,50,000/- (Rupees twelve lakhs fifty thousand only) which amount shall be paid in the manner hereinafter specified viz. Rs. 15,000/- on or before the execution of this agreement, and the balance of Rs. 12,35,000/- shall be paid by the purchaser to the vendor on the said society accepting the purchaser as a member of the said society in respect of the said flat and on the purchaser being put in peaceful possession of the said flat.

2. The vendor shall comply with all the formalities vis-a-vis the said society for effecting transfer of the aforesaid shares and share certificates in favour of the purchaser and obtain a no-objection certificate from the society. The vendor shall also comply with the necessary formalities vis-a-vis the said society for effecting the transfer of the said flat in all the records of the said society in the name of the purchaser.

3. Upon the said society issuing a letter intimating that the society has no objection to accept the purchaser as a member of the society in respect of the said flat; the purchaser will deposit pending the formalities of transfer of the said flat by the society in his name, the sum of Rs. 12,35,000/-, being the balance purchase price with Mr. S. Venkateshwaran, Advocate, High Court, Bombay. It is agreed and conformed by and between the parties that Mr. Venkateshwaran will pay the said sum of Rs. 12,35,000/- to the vendor upon the vendor handing over vacant and peaceful possession of the said flat to the purchaser and upon the vendor and the purchaser addressing a joint letter to Mr. Venkateshwaran informing him of the fact that the purchaser has obtained vacant and peaceful possession of the said flat from the vendor and the purchaser confirming to Mr. Venkateshwaran that the said sum of Rs. 12,35,000/- may be handed over to the vendor.

4. The transfer charges levied by the said society for effecting transfer of the said flat from the vendor to the purchaser are Rs. 25,000/-. The vendor and the purchaser shall both share the said transfer charges in equal proportion between themselves. The cheque for the said sum of Rs. 25,000/- being the transfer charges will be issued in favour of the said society by the vendor and the purchaser will reimburse the vendor in the sum of Rs. 12,500/- being his contribution towards the transfer charges.

7. It is hereby agreed and confirmed that simultaneously with the execution of this agreement, the vendor shall apply to the said society and obtain a letter from the said society confirming that the said society has no objection to admitting the purchaser as a member of the said society. The vendor shall also forthwith comply with all formalities vis a vis the said society as may be required for admitting the purchaser as a member of the said society and for effecting transfer of the said flat in favour of the purchaser in all the records of the said society. The vendor shall sign all letters and forms and other documents as may be required for this purpose.

8. The purchaser shall also simultaneously with the execution of this agreement address a letter to the said society intimating the society that the purchaser will abide by and comply with all the Rules and Regulations of the said society as existing and/or as amended from time to time.

9. The vendor shall at the cost of the purchaser sign and execute all further documents as are required by the said society and/or by the purchaser at any time for more effectively and fully transferring the said flat in favour of the purchaser."

13. A careful perusal of there terms will reveal that besides casting certain obligations upon the parties, they also fixed the sequence and manner in which those obligations were to be performed or discharged by each party. The obligations cast on the plaintiff were:

i) to pay the earnest money of Rs. 15,000/- to the defendant.

ii) to pay the balance amount of Rs. 12,35,000/- to the defendant.

iii) to address a letter to the society intimating that he will abide by and comply with the Rules and Regulations.

iv) to share with the defendant the transfer charges of Rs. 25,000/- equally.

The obligations cast on the defendant were:---

i) to obtain from the society a no objection certificate and comply with necessary formalities vis a vis the society for effecting the transfer of the suit flat.

ii) to put the plaintiff in peaceful and vacant possession of the suit flat upon receipt of no objection certificate from the society.

iii) to pay to the society the transfer charges of Rs. 25,000/- by a cheque.

iv) to execute all further documents required by the society and/or by the defendant for fully and effectively transferring the suit flat to the defendant.

14. The sequence and manner in which these obligations were to be performed were as under:---

i. The plaintiff was to pay to the defendant Rs. 15,000/- on or before the execution of the agreement i.e. on or before 17-4-1985.

ii. Then the defendant was to apply simultaneously to the society for grant of its no objection certificate and comply with other necessary formalities. The plaintiff was also to write a letter simultaneously to the society intimating his readiness to abide by and comply with the Rules and Regulations of the society.

iii. Upon receipt of the no objection certificate from the society, the plaintiff was to deposit with Shri Venkateshwaran Advocate the balance amount of consideration of Rs. 12,35,000/-.

iv. Then the defendant was to hand over possession of the said flat to the plaintiff.

v. Thereafter, both the parties were to address a joint letter to Shri Venkateshwaran confirming the fact or delivery of possession.

vi. After that Shri Venkateshwaran was to pay the amount of Rs. 12,35,000/- deposited with him by the plaintiff to the defendant.

vii. The defendant was to pay by a cheque to the society the transfer charges of Rs. 25,000/-.

viii. The plaintiff was to reimburse the defendant Rs. 12,500/- being his contribution towards the transfer charges.

ix. The defendant was to execute at the cost of the plaintiff all further documents for transferring the suit flat to the plaintiff.

14. The agreement Exhibit B was made on 17-4-1985. On or before that day the plaintiff was supposed to pay to the defendant a sum of Rs. 15,000/-. It is material to note that unlike the balance amount of Rs. 12,35,000/- this amount was supposed to be paid to the defendant and not to Shri Venkateshwaran. The terms of the agreement do not indicate that the amount of Rs. 15,000/- also was to be deposited with Shri Venkateshwaran who was acting as a mediator between the parties. The plaintiff has averred in para 3 of the plaint that he handed over a cheque of Rs. 15,000/- to the common Advocate of the parties for payment to the defendant. In para 2(g) of her written statement the defendant has averred that the plaintiff did not pay Rs. 15,000/- by way of earnest money which he was bound to pay on or before the execution of the agreement. In para 5, she has pointed out that the plaintiff has not stated as to when the said cheque was deposited. According to the defendant she was not informed about the deposit of the cheque and that she received the cheque from Advocate Gomes (Junior of Shri Venkateshwaran) a few months after the filing of the suit. On the plaintiff's own pleading it is clear that there was no compliance of the first condition which cast obligation upon him to pay the said amount to the defendant. Before the Court, the plaintiff stated that he gave a cheque of Rs. 15,000/- in the name of the defendant in the hands of Shri Gomes on 18-4-1985. The cross-examination of the plaintiff shows that the cheque was lying with Shri Gomes even till 31-5-1985 and that on inquiry Shri Gomes told him that the defendant did not come to collect the same. There is no explanation as to why the cheque was issued on the next day of the agreement and why it was not immediately handed over to the defendant or her husband who was dealing with the matter on her behalf. The cheque is produced at Exhibit C collectively alongwith the forwarding letter dated 16-11-1985 addressed by Shri Gomes to the defendant. Shri Sanghavi, the learned Counsel for the defendant contended before me that it was necessary for the plaintiff to have examined Shri Gomes as his witness. There is much substance in this contention because Shri Gomes could have probably explained why the cheque of Rs. 15,000/- was not handed over to the defendant immediately. Any way it is not the plaintiff's case that there was some lapse or failure on the part of the defendant to collect the said cheque. Therefore, the retention of the cheque by Shri Gomes was not proper and the plaintiff was under an obligation to see that the cheque was immediately handed over to the defendant to ensure the compliance of the first condition of the agreement. But as pointed out above he failed to do that with the result that he cannot put any blame on the defendant. It will thus be seen that there was breach of the first condition by the plaintiff himself.

15. Simultaneously with the execution of the agreement both the plaintiff and defendant were obliged to write to the society. The defendant was supposed to apply to the society for its no objection certificate for transfer of the suit flat in favour of the plaintiff. The plaintiff on the other hand was supposed to intimate to the society that he "will abide by and comply with all the Rules and Regulations of the society as existing and/or as amended from time to time". There is no averment in the plaint nor any statement in the evidence that the plaintiff had fulfilled his obligation in this respect. But so far as the defendant's obligation is concerned, there is no dispute of the fact that she did apply to the society on 18-4-1985 for no objection certificate and obtained the same (Exhibit D) on 17-5-1985. It will thus be seen that there was compliance of the second condition by the defendant but there is no evidence that the plaintiff complied with it.

16. This takes me to the third condition which cast obligation on the plaintiff to deposit the balance amount of Rs. 12,35,000/- with Shri Venkateshwaran after the receipt of the no objection certificate from the society. Admittedly the plaintiff never deposited this amount with Shri Venkateshwaran and no explanation is given in the plaint as to why the plaintiff did not or could not deposit that amount. Instead what is averred in para 5 of the plaint is that in the first week of May 1985 the defendant through her husband refused to complete the transaction and that on being persuaded by Shri Venkateshwaran the defendant agreed to complete the transaction but requested the plaintiff to postpone the completion of the transaction till 31-5-1985. Shri Bobde, the learned Counsel for the plaintiff relied upon clause 1 of the agreement and submitted that the balance amount was payable only after the defendant put the plaintiff in possession of the suit flat. Shri Bobde has however, conveniently ignored Clause 3 of the agreement which required the plaintiff first to deposit with Shri Venkateshwaran the balance amount of Rs. 12,35,000/-. The defendant was not to get this amount until she delivered possession to the plaintiff. Clause 1 of the agreement cannot be read in isolation and it has to be read alongwith Clause 3 to understand the proper sequence and mode of performance of obligations by the respective party. It may be noted that the agreement did not stipulate any fixed time for performance of certain obligations obviously because the performance of some obligations was dependent upon the performance of earlier obligation. At any rate the sequence of performance of obligations contemplated by the agreement cannot be ignored. If the plaintiff fails to discharge his liability of depositing the balance amount of consideration with Shri Venkateshwaran then there is no question or occasion for the defendant to perform his obligation of putting the plaintiff in possession of the suit flat.

17. The plaintiff is advisedly reticent in his plaint not even to mention the material fact of his not having paid or deposited the balance amount of consideration with Shri Venkateshwaran; leave apart the fact of giving any explanation for the failure to deposit the said amount. He was aware of the fact that the defendant had obtained the no objection certificate of the society and thereby discharged his obligation. It was, therefore, in the sequence of performance of obligations, the plaintiff a turn to discharge his own obligation by depositing the balance amount of consideration with Shri Venkateshwaran. There is however, no averment in the plaint that the plaintiff deposited the said amount with Shri Venkateshwaran. Instead what is averred is to the effect that in the first week of May 1985, the defendant refused to complete the transaction and that it was only on the intercession of Venkateshwaran that she agreed to complete the transaction with a request to extend the time till 31-5-1985 (vide para 5 of the plaint). But then there is no averment that the plaintiff was ready to deposit the amount with Shri Venkateshwaran before 31-5-1985. The reason for this failure is not far to seek. The admitted fact is that the plaintiff had no ready money with him which he could have deposited with Shri Venkateshwaran as per the requirement of the agreement. In this connection it is pertinent to reproduce what the plaintiff has stated in his examination-in-chief (page 5).

"In order to pay the balance of Rs. 12,35,000/-. I made the following arrangement. I was to get nine lacs from Crawford Bayley, Rs. 2.5 lacs was in deposit in the names of myself and my wife. My wife also had an additional deposit of Rs. 45,000/-. Only a little balance would be there which I would raise from my brother and from my father which they had agreed to do."

18. The evidence or the plaintiff shows that at the relevant time he was working as the Chief Executive of a company and drawing monthly salary of Rs. 10,000/-. He was living with his wife, son and a servant in a flat on Arther road, Colaba having a carpet area of 750 square feet. The plaintiff perhaps wanted to move to a bigger flat and therefore, he decided to sell his own flat and purchase other. He therefore, made an agreement of sale in respect of his own flat with Deepak Fertilizers and Petrochemicals Corporation Ltd., on 22-2-1985 and agreed to sell the same for Rs. 9 lakhs. There was no specific time limit prescribed for completing the said transaction and like the suit agreement, it was also to be completed after obtaining necessary permission of the concerned society. M/s. Crawford Bayley were the Advocates and solicitors of the purchaser. This agreement of sale is produced at Exhibit A. It was made about 7 or 8 weeks before the suit agreement Exhibit B was made. The consideration amount of Rs. 9 lakhs which the plaintiff was to get out of the said transaction was going to be his main source for raising the consideration amount of Rs. 12,50,000/- for buying the suit flat. It is thus obvious that the plaintiff's capacity to pay the consideration amount for the suit flat was mainly dependent on his getting the consideration amount of Rs. 9 lakhs out of the sale of his own flat. The plaintiff has admitted in his cross-examination (page 14) : "At no time I received Rs. 9 lakhs from the purchaser of my flat". He further stated: "M/s. Crawford Bayley's clients were not willing to pay me till I handed over possession of my flat to them". The difficult situation which the plaintiff was facing is thus obvious. He would not get a sum of Rs. 9 lakhs unless and until he would hand over possession of his own flat to his purchaser and he would not be able to deposit with Shri Venkateshwaran Rs. 12.35 lakhs unless and until he would receive Rs. 9 lakhs from his purchaser. Consequently, he would not get possession of the suit flat unless and until he first deposited Rs. 12.35 lakhs with Shri Venkateshwaran. The plaintiff has not disclosed that there was any other source except those earlier stated which could have enabled him to raise Rs. 9 lakhs in case for any reason he did not get that amount from his purchaser.

19. The plaintiff was thus trapped in a vicious circle and the only way for him to come out was to make his own arrangement for temporary and alternative accommodation for the transit period between the delivery of possession of his own flat to his purchaser and resuming possession of the suit flat from the defendant. In the cross-examination it was suggested to the plaintiff that he could not find alternative accommodation and therefore, he could not hand over vacant possession of his flat to the purchaser and did not get Rs. 9 lakhs. The plaintiff's reply to this suggestion is amusing. He stated that even if he had not found a flat, he would have moved to the defendant's flat. Then he went on adding that he had found, through his uncle, a flat of a couple in Hydrabad Estate at Nepean Sea Road, who was going out for a month. He claims to have shifted part of his luggage there. (vide page 16 of cross-examination). However, admittedly the plaintiff did not move to that flat as accordingly to him on 11-5-1985 he came to know that the suit agreement was to be extended till 31-5-1985. The plaintiff was further asked that if he had done so, he would have been able to hand over possession of his own flat to his purchaser and get from him Rs. 9 lakhs. The plaintiff's reply to this is: "I had no need to that". The plaintiff admitted that without payment of Rs. 12.35 lakhs he would not have got possession of the suit flat.

20. It is on the background of these facts that the Court has to decide the plaintiff's claim of being ready and willing to perform his part to the agreement and his allegation that the defendant cancelled and/or abandoned the suit transaction. Shri Sanghavi very strongly contended before me that the plaintiff has totally failed to prove his readiness and willingness to perform his part to the agreement. He relied upon the decision in N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, , wherein it was laid down that to adjudge whether the plaintiff is ready and willing to perform his part to the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. It was further held that right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part to the contract. Shri Bobde on the other hand submitted that readiness and willingness do not mean that the plaintiff should be ready with the cash amount and tender the same to the defendant. According to him the plaintiff's capability of raising the requisite amount coupled with his desire to complete the transaction is enough. Shri Bobde relied upon several decisions. As far as back in 1923 this Court in Tribhuvandas v. Balmukund A.I.R. 1923 Bombay 15, held that in suits for specific performance, the strict law as to tender is not applicable. It was further held that the plaintiff is entitled to specific performance even though there has been no actual tender of money by him. A similar view was taken in The Bank of India Ltd. v. J.A.H. Chinoy, A.I.R. 1950(37) Privy Council 90, wherein it was observed that in order to prove himself ready and willing to perform his obligation the purchaser has not necessarily to produce the money or vouch a concluded scheme for financing the transaction. Following this decision the Calcutta High Court held in Jitendra Nath v. Smt. Maheshwari Bose, , that if the plaintiff could show that he was in a position to raise the money required at or about the time when the contract was to be performed he discharges the obligation of proving readiness and willingness was so far as financial aspect was concerned. In Garikapati v. Nannapaneni, 1966 Mad. L.J. page 92, the Supreme Court held that law does not require that in order to prove his readiness and willingness, the plaintiff must show that he had ready in his hand the requisite money. The same fact can be proved if he can show that at all material times he could have raised the said amount and was willing to do so and was prepared to perform his part of the contract. A Division Bench of this Court in Popatlal v. Nanalal, 1987 Mh.L.J. 1055, held that the fact that the plaintiff did not have the ready amount of the entire consideration is of no consequence and what is necessary is that he should stand by the contract and be ready and willing to perform his part.

21. Section 16 of the Specific Relief Act states about certain personal bars to relief and Clause (c) thereof is to the effect 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. The Explanation to Clause (c) states that 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. The decisions referred to in the preceding paragraph lay down that inference of want of readiness and willingness perform is not to be drawn merely because the plaintiff did not have with him ready or cash money to pay to the defendant. The words "ready and willing" used in section 16(c) are very significant and in my opinion, where the performance on the part of plaintiff contemplates payment of certain money, the word "ready" means his capacity or capability to raise that money. The word "willing" in the same context means the plaintiff's desire to pay the money to the defendant. The term "ready and willing", where the contract involves payment of money therefore, refers to both physical and mental elements, the combination of which answers the requirement of the term. A plaintiff may have the money ready with him or he may be capable of raising the requisite money, yet he may not have desire to pay the same. Conversely a plaintiff may have an earnest and sincere desire to pay the money but he may not have the same ready with him or he may not be in a position to raise the same. In either case the result is the same. Such a plaintiff cannot perform his obligation to pay the consideration amount to his vendor and therefore, he cannot be regarded to be a person "ready and willing" to perform the essential obligation regarding making of payment.

22. The facts of the present case are however, peculiar. Here the plaintiff did not have with him the money ready but he was certainly capable of raising the substantial amount of Rs. 9 lakhs by selling his flat which he had already agreed to sell. There is absolutely no satisfactory explanation as to why the plaintiff did not complete the transaction of sale of his flat. By making temporary arrangement for his residence he could have handed over possession of his flat to his purchaser and completed that transaction, earned Rs. 9 lakhs and deposited the same with Shri Venkateshwaran to discharge his obligation under the suit contract. But the plaintiff did not do anything or this kind with the result that both the transactions did not materialize. In his cross-examination the plaintiff stated: "I was to pay the balance of Rs. 12.35 lakhs on getting possession of Mr. Pilani's flat. Had Mr. Pilani been willing to perform, I would have paid Rs. 12.35 lakhs at any time required". I have already pointed out that under Clause 3 of the suit agreement the plaintiff was entitled to be put in possession of the suit flat only after he deposited with Shri Venkateshwaran, the balance amount of Rs. 12.35 lakhs. Shri Sanghavi is quite right in submitting that the plaintiff's insistence on getting possession before payment is contrary to the agreement. Shri Bobde contended that the plaintiff could not have parted with possession of his own flat unless first the defendant had allowed him to shift to the suit flat. This contention has to be rejected for more than one reason. The first is that the agreement did not provide for that. Secondly, it is something unusual for a stranger purchaser to insist on first getting possession and later making payment. Thirdly, why then the plaintiff claims to have made alternative arrangement for his temporary residence during the period between delivery of possession of his own flat and recovery of possession of the suit flat, if he was entitled to get possession before payment. There was no need for him to take that trouble. It will thus be seen that the plaintiff could not have insisted on being put in possession of the suit flat before his parting with the amount of Rs. 12.35 lakhs. That amount was to be deposited with Shri Venkateshwaran who was the mediator. He was to pay that amount to the defendant only after both the parties would intimate him in writing about delivery of possession. Thus the plaintiff's money would have been safe in the hands of Shri Venkateshwaran in case the defendant had avoided to deliver possession. There was therefore, no reason for the plaintiff to be anxious for his money.

23. In Rahat Jan v. Hatiz Mohammod, A.I.R. 1983 Allahabad 343, the facts were that under the agreement, the plaintiff paid Rs. 2600/- to the defendant at the time of the execution of the agreement of sale. The agreement contained a mandatory term as per which the plaintiff was bound to pay Rs. 3400/- within one month of the agreement. The plaintiff however, insisted that he would pay the money only after he was put in possession. It was held that the plaintiff cannot add any additional condition for performance of his part to the contract. In the instant case, the plaintiff's insistence on his first being put in possession without depositing the requisite amount is nothing but an additional condition not envisaged by the agreement. More over such a contention is hit by section 92 of the Evidence Act as it seeks to vary the terms of agreement.

24. The plaintiff has come up with a plea that in the first week of May 1985, the defendant refused to complete the transaction and that after the intercession of Shri Venkateshwaran on 11-5-1985 she agreed to complete the same but sought time till 31-5-1985. In his cross-examination the plaintiff was first unable to assign any probable reason for the defendant's alleged seeking of extension of time. Then he tried to say that the defendant wanted to move to his son's place. The evidence of Shri Venkateshwaran (P.W. 2) is also to the same effect. He has stated that it was the defendant who cancelled the agreement though initially in the meeting held on 10th or 11th May, 1985 he had persuaded the defendant's husband who then agreed to complete the transaction by the end of May 1985. According to him the plaintiff was asking for immediate completion of the transaction because the society's permission was received. The plaintiff's plea in this respect does not appear to be true. After having moved the society and obtained its no objection certificate, after having allowed the plaintiff to get the suit flat inspected for the purpose of repairs and renovations and after having allowed the plaintiff to keep his flower pots in the suit flat, there was no apparent reason for the defendant to insist on cancelling the agreement or extending time for completion of transaction. She had performed her obligations and it was for the plaintiff to perform his obligation. As seen above the plaintiff had not even paid the earnest money of Rs. 15,000/- to the defendant, leave apart his failure to deposit the balance amount of Rs. 12.35 lakhs with Shri Venkateshwaran. In the light of these facts the plaintiff's plea that the defendant refused to complete the transaction appears to be an excuse to cover his own failure.

25. It is important to note that since it is the plaintiff who claims the relief of specific performance, he has to prove his readiness and willingness to perform his part to the contract. This he can show only by adducing evidence of his having performed his obligation to the contract. The burden then shifts on the defendant to show that he did not commit any default in the performance of his obligation. The evidence on record shows that it was the plaintiff who had failed to discharge his obligations. Had he paid the earnest money of Rs. 15,000/- to the defendant as agreed and had he deposited the balance amount of consideration with Shri Venkateshwaran, then there would have been some weight and substance in his plea. In that event the burden would have shifted on the defendant to prove that she was ready to put the plaintiff in possession. It is however, found that the plaintiff wants the Court to believe that he was ready and willing to perform his part to the contract without proving that he had discharged his obligations. This is not possible.

26. Shri Bobde pointed out that no specific time was stipulated for the execution of the sale deed. It is true that normally in the matters of agreement of sale of immovable properties, time is not essence of contract unless specifically agreed. The plaintiff's witness Shri Venkateshwaran has however, stated in his examination-in-chief itself that it was agreed that the transaction would be completed before the end of April 1985 (see page 31 of his evidence). He further stated that the plaintiff was asking for immediate completion of the transaction because the Society's permission had been received. However, the admitted position is that neither after the receipt of the Society's permission on 17-5-1985 not even on or after 31-5-1985 the plaintiff deposited with Shri Venkateshwaran the balance amount of consideration. The plaintiff has stated (page 25) that the agreement with Deepak Fertilizers was terminated in June 1985 by Deepak Fertilizers through Crawford and Bayley. It is, therefore, clear that the plaintiff was not in a position to raise the requisite money and deposit the same with Shri Venkateshwaran. It is therefore, futile for the plaintiff to ride on the horse of wish and say that he was and is ready to perform his part to the contract. She lost the opportunity of raising the requisite money by completing his own transaction with Deepak Fertilizers which could have enable him to perform his part to the suit contract. The mere filing of the suit for specific performance does not make him ready and willing within the meaning of the term as given in section 16(c). That does not entitle him either to the relief of specific performance or damages.

27. For the aforesaid reasons, I reject the plaintiff's case and accept that of the defendant. Accordingly, my findings on issue No. 4 in the affirmative and those on issue Nos. 5 and 6 are in the negative. Consequently, the finding on issue No. 7 will be 'none'. In the result, I pass the following order.

ORDER

The suit is dismissed with costs.

Copy of this order duly authenticated by the Associate is allowed. Certified copy expedited.