Smt. Nirmala Devi vs Niranjan Singh Tyagi
2007 Latest Caselaw 1061 Del

ORDER

J.M. Malik, J.

1. Counsel for the parties heard.

Counsel for the appellant points out that in view of Section 16(c) of the Specific Relief Act, 1963, the appellant has failed to aver and prove that "he has performed or always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant". He vehemently argued that the plaint is conspicuously silent on this point. He raised no other argument.

2. On the other hand, counsel for the respondent has pointed out that he has al ready paid the entire money vide receipt Ex. PW1/3 and the respondent has also proved GP Ex. PW1/1, agreement to sell Ex. PW1/ 2 and registered Will Ex. PW1/4, which clearly go to show that the property already stands sold to the respondent for which the entire amount has been paid. Counsel for the respondent submits that he had per formed the entire part of his contract and nothing remains to be done afterwards. He asserted that under these circumstances he was not required to comply with the provisions of Section 16(C) of the Specific Relief Act.

3. He also points out that a quarrel had ensued due to this agreement. Consequently FIR was lodged against the appellant/accused and the appellant/accused was convicted for offences under Sections 323, 352, 342, 384, I.P.C. and was released on probation.

4. The argument advanced by the learned Counsel for the appellant is lame of strength. The plaint mentions:

The plaintiff purchased the said property from the defendant on execution of various documents including the Agreement of Sale dated 13-10-1994, thereby constituting a right, title and interest In favor of the plaintiff. Copies of the said documents are filed herewith.

Agreement Deed dated 13th October, 1994, mentions:

And whereas the first party has agreed to sell and second party has agreed to purchase the said plot for a sum of Rs. 70,000/- (Rupees Seventy thousand only) on the following terms and conditions.

Agreement to sell is accompanied by a receipt of the same date, that is, 13th Day of October, 1994, which clearly reveals that a sum of Rs. 70,000/- as per the terms and conditions of Agreement Deed was paid to the appellant on the same very day.

5. Moreover, Section 16(1)(c) applies against those who are yet to perform the essential terms of the agreement and this provision of law would pale into significance as against those who have already performed their part of contract and no further performance is required on their part. Readiness and Willingness cannot be treated as a Straight Jacket formula. The conduct of the parties is very crucial.

6. In Syed Dastagir v. T.R. Gopalakrishna Setty , it was held,

9. So whole gamut of issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid Section, or does this section require specific words to be pleaded that he has performed or has always been, ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the extract words of a statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded.

7. The Trial Court in his judgment observed, The burden to prove this issue was placed upon the plaintiff and he has proved on oath that he has purchased the suit property from the defendant on 13-10-94 for total sale consideration of Rs. 70,000/- and the defendant executed GPA, agreement to sell, receipt, registered Will on 13-10-94 in his favor having received total sale consideration of Rs. 70,000/-. Plaintiff has further stated on oath that at the time of execution, possession of suit property was to be handed over on the same day but after the execution of documents, the defendant told him that she would deliver the actual physical possession of the suit property after 3-4 days.

The Trial Court further held that:

As regards the cancellation of GPA is concerned, I am of the opinion that the GPA, agreement deed which is followed by receipt has not been cancelled, the GPA become irrevocable and cannot be revoked by notice. Ld. Counsel for the plaintiff relied on the judgment in case of H.L. Malhotra v. Nanak Jai Singhani, Rajdhani Law Reporter (Note) 1986 page 89 wherein it was held that a person who enters into a sale agreement of property and pays consideration and becomes attorney by execution of irrevocable power of attorney, then owner cannot seek to cancel the power of attorney.

8. No substantial question of law arises. The appeal is therefore dismissed at admission stage. CM 6423/2006 also stands dismissed.

9. Copy of this order and records of both the Courts below be sent forthwith.