Jharkhand High Court
Md. Anwar Hussain vs Md. Khursheed Alam on 3 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 52 of 2022
Md. Anwar Hussain, aged about 77 years, son of Late Habib Mia,
resident of Digwadih No. 10, P.O.- Jealgora, P.S.- Jorapokhar,
District- Dhanbad presently residing at Rehmatganj P.O. B
Polytechnic, P.S. Bank More, District- Dhanbad.
... ... Defendant/Respondent/Appellant
Versus
1. Md. Khursheed Alam
2. Md. Rizwan Ahmed.
Both respondent No. 1 and 2 are sons of Hazi Altaf Hussain
Resident of Digwadih No. 10 P.O. Jealgora, P.S. Jorapokhar,
District- Dhanbad, Jharkhand.
... ... Plaintiffs/Appellants/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Vibhor Mayank, Advocate
For the Respondents : None
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Lastly heard on 27.02.2025
13/03.03.2025
1. This appeal arises out of a suit for specific performance of contract of
sale of immoveable property.
2. This appeal has been filed challenging judgment dated 05.04.2022
(decree signed on 16.04.2022) passed by the learned District Judge-I,
Dhanbad in Civil Appeal No. 24 of 2020. The appeal preferred by the
plaintiffs has been allowed and the judgment dated 23.02.2019 passed by
learned Civil Judge (Senior Division)-I, Dhanbad in Title Suit No. 73 of
2010 has been set aside. The defendant is the appellant.
3. Inspite of service of notice, nobody has entered appearance on behalf
of the respondents.
4. This appeal was admitted for final hearing vide order dated
27.01.2025 on the following substantial question of law: -
"Whether the learned first appellate court has committed a
substantial error of law while reversing the decree of the learned
trial court and failed to consider that readiness and willingness
on the part of the plaintiffs was not proved as the plaintiffs failed
in disclosing the source through which they would pay the
balance consideration amount of Rs. 1,80,000/-?"
Arguments of the appellant/defendant.
5. The learned counsel for the appellant while referring to the plaint has
submitted that the averments regarding readiness and willingness has been
made in paragraph 9 of the plaint and has submitted that there is just a mere
statement and no further details regarding the source of fund to pay the
balance consideration amount has been disclosed in the plaint. Paragraph 9
of the plaint is quoted as under: -
"9. That the plaintiffs are still ready and willing to purchase the
said property morefully described in the schedule of the plaint by
paying the balance consideration amount of Rs.1,80,000/- to the
defendant besides incurring expenses for completion of the deed
and the defendant is legally bound to execute registered sale
deed in favour of the plaintiffs in terms of agreement dated
19.03.2008."
6. The learned counsel for the appellant further submits that the learned
trial court had scrutinized the materials on record and framed the issue
regarding readiness and willingness as issue No. VII and decided issue No.
V, VI and VII together. However, the appeal has been admitted only on the
point of readiness and willingness on the part of the plaintiffs.
7. The learned counsel for the appellant has referred to the trial court's
judgment and has submitted that the evidence of PW-1(plaintiff) has been
considered in details and in paragraph 26 of the cross examination PW-1
admitted that he had performed the marriage of his daughter in the year
2008 and paragraph 29 of his cross examination he deposed that "cdk;k jde
dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA", meaning
thereby that in order to pay the balance amount he had made arrangements
from his own people but did not prepare any document to this effect.
8. The learned counsel for the appellant submits that the evidence of
PW-1 goes to show that he had claimed to have made arrangement for
payment of balance considerations from other persons and no details has
been given in the plaint nor any further details has been given in the
evidence and the plaintiff also admitted that no document for that purpose
was prepared.
9. The learned counsel for the appellant has submitted that the learned
trial court after scrutinizing the materials came to specific finding in
paragraph 11(iii) and held that the evidence of plaintiffs showed that the
plaintiffs have no independent source of income so it must be held that the
plaintiffs were neither ready nor willing to perform their part of contract.
Paragraph 11(iii) of the trial court's finding has been referred.
10. The learned counsel for the appellant thereafter referred to the
judgment passed by the learned appellate court and has submitted that the
point of determination No. (1) as framed in paragraph 13 of the appellate
court judgment relates to readiness and willingness on the part of the
plaintiffs to perform the agreement and further referred to paragraph 15 of
the appellate court's judgment to submit that the evidence of PW-1 was
considered and reference was made to paragraphs 13, 15, 16, 17, 18, 24, 32
and 33 where PW-1 was said to have clarified the source of income as the
plaintiff was an income tax payee and used to file GST and its return from
his 'Biri making business'. The learned counsel for the appellant has also
submitted that the appellate court has referred to further cross examination
of P.W-1 that his 'Biri making business' in the name of 'Aftab Bidi' was
ceased and was not functional and on the basis of the fact that he was filing
his income tax and GST return, the appellate court recorded a finding that
there was readiness and willingness on the part of the plaintiffs to perform
their part of contract. The learned counsel has submitted that even the
income tax returns /GST returns were not exhibited.
11. The learned counsel for the appellant has further submitted that the
appellate court has observed that it was upon the defendant to show that
'Bidi Making business' which was running in the name of 'Aftab Bidi' was
closed earlier. The learned counsel for the appellant has submitted that the
learned appellate court has not at all considered the evidence of PW-1 in
paragraph 29 where he had specifically stated that he made arrangement for
payment of balance consideration money from third party. The learned
counsel submits that the appellate court has ignored the portion of cross
examination of PW-1 in paragraph 29 which has material bearing in the
matter. He has also submitted that the averments in the plaint did not
disclose the source of arrangement of fund as to whether he was arranging
the fund from his own source or he was arranging the same from third
party.
12. The learned counsel for the appellant has further submitted that the
ultimate finding in connection with readiness and willingness is primarily
based on the evidence of PW-1 and the finding recorded by the learned
appellate court is at paragraph 15 of the judgement.
13. The learned counsel for the appellant has submitted that the appellate
court while reversing the finding in connection with readiness and
willingness to perform the agreement has not even met with the reasons and
the materials considered by the learned trial court.
14. He has relied upon the following judgments: -
a. U.N. Krishnamurthy (Since Deceased) Thr. Lrs. v. A. M.
Krishnamurthy reported in 2022 SCC OnLine SC 840
paragraph 24, 25 and 46 on the point of readiness and
willingness to perform the agreement.
b. Judgment in Special Leave Petition (Civil) No. 13933 of 2021
(R. Shama Naik v. G. Srinivasiah) decided on 28th November,
2024 paragraph 10 to 12 on the point of readiness and
willingness to perform the agreement.
c. Shenbagam and Others v. K. K. Rathinavel reported in 2022
SCC OnLine SC 71 and has submitted that the principal
regarding readiness and willingness has been considered in the
said judgment
d. Srinivas Raghavendrarao Desai (Dead) by Lrs. v. Kumar
Vamanrao alias Alok and Others reported in 2024 SCC
OnLine SC 226 paragraph 25 to submit that the parties cannot
be permitted to lead evidence beyond pleadings.
15. He has submitted that in absence of any pleading referring the source
of income to perform the part of the agreement to pay a balance
considering amount, no evidence could have been led by the plaintiffs with
regard to source of fund.
16. The learned counsel for the appellant has submitted that the
substantial question of law be decided in favour of the appellant.
Findings of this Court.
17. The case of the plaintiffs is that the plaintiffs and defendant has
entered into an agreement dated 19.03.2008 whereby the defendant agreed
to sell his land with structure to the plaintiffs for a total consideration
amount of Rs. 2,80,000/-, out of which the plaintiffs paid Rs.1,00,000/- to
the defendant in presence of witnesses. The balance consideration amount
of Rs.1,80,000/- was to be paid by the plaintiffs at the time of execution of
registered sale deed within a period of one year from the date of the
agreement. When the oral request of the plaintiffs for execution of the
registered sale deed dated 19.03.2008 got futile, the plaintiffs sent an
advocate notice on 13.03.2009 to the defendant requesting him to execute
the registered sale deed on receiving the balance consideration amount
within a fortnight from the receipt of the said notice. Thereafter, the
defendant sent a reply to the said legal notice admitted execution of the
agreement for sale but expressed his intention that the defendant did not
now want to sell the property and was ready to refund the advance money
of Rs.1,00,000/- to the plaintiffs. It was asserted by the plaintiffs that the
defendant neither refunded the amount of Rs.1,00,000/- nor executed the
registered sale deed. According to the plaintiffs, they were still ready and
willing to perform their part of contract by paying the balance
consideration amount of Rs.1,80,000/-. According to the plaintiffs, the
cause of action for the present suit arose on 19.03.2008.
18. The defendant had filed written statement stating that the suit as filed
and framed by the plaintiffs was not maintainable and the suit of the
plaintiffs was barred by the law of limitation and also under the provisions
of Specific Relief Act and Transfer of Property Act. The statement with
regard to readiness and willingness to pay the balance consideration
amount was denied in the written statement and it was asserted that despite
repeated demand by the defendant the balance consideration amount was
not paid within one year of the agreement of sale and due to non-payment
of the amount, the defendant was not able to marry his daughter within the
period of one year. It was also asserted that the plaintiffs never tendered the
balance consideration amount to the defendant at any point of time inspite
of demand by defendant. It was stated that the plaintiffs were tenants in the
suit property and the defendant has filed a Title (Eviction) Suit No. 42 of
2010 which was pending. It was admitted that the plaintiffs had entered
into a written agreement to sale dated 19.03.2008 with the defendant for
purchase of the suit property being the tenanted premises on a total
consideration of Rs.2,80,000/- and Rs.1,00,000/- was paid as an advance to
the defendant. The defendant had retired from service and necessity for
entering into the sale agreement arose in order to collect fund for the
marriage of his daughter. It is further asserted by the defendant that the
plaintiffs never showed any willingness to purchase the suit property nor
they paid the balance consideration amount of Rs.1,80,000/-. Thereafter,
the plaintiffs served a legal notice dated 13.03.2009 upon the defendant
thereby pretend to purchase the suit property by paying balance
consideration amount. The defendant sent a reply to the said notice on
21.03.2009 whereby the defendant clearly informed the plaintiffs that the
agreement entered into by them was defeated for non-payment of balance
consideration amount and requested the plaintiffs to take back the advance
money, which was already paid. According to the defendant, the plaintiffs
were never willing and ready to purchase the suit property.
19. On the basis of pleadings of the parties, the learned trial court has
framed altogether VIII issues for determination wherein the core issues are
Issue No. V, VI and VII which is quoted as under: -
"Issue No. V: Whether the plaintiff is entitled for a decree of
specific performance of contract on the basis of the agreement
dated 19.03.2008?
Issue No. VI: Whether the agreement dated 19.03.2008 is
genuine?
Issue No. VII: Whether the plaintiff was ready and willing to
perform his part of any contract by paying the balance amount
to the defendant?"
20. Plaintiff No. 1 and one Vijay Kumar were examined as witness from
the side of the plaintiffs. Vijay Kumar was a typist and a formal witness in
connection with the notice dated 13.03.2009 and exhibited three
documents, that is, legal notice, agreement to sell and certified copy of the
deposition of the defendant in the Title Eviction Suit No. 42 of 2010 filed
by the defendant against the plaintiffs. The defendant examined himself as
D.W-1 and examined one more witness and exhibited only one document,
reply to legal notice, as Exhibit-A.
21. The trial court recorded the finding on the point of readiness and
willingness as follows: -
"7. All the above three issues are important, interconnected and
interlinked to each other in the suit, so going to be discussed first
together.
In order to substantiate the pleading the plaintiff Khursid Alam
has examined himself as P.W.1 in the present suit. According to
him, he is plaintiff no.1 of the present suit and plaintiff no.2 is his
uterine brother. The suit property is of Mouza Jorapokhar,
Thana No. 10, Khata No.135, Plot No.3058 (part) Area 47 ft.
from East to West and 13.5 ft. from North to South, consisting of
three rooms and one courtyard. According to the plaintiffs, the
price of the suit property was fixed Rs. 2,80,000/- out of which
1.00 lakh has been paid in cash to the defendant and advance
and on agreement was executed on 19.03.2008. As per
agreement, sale deed was being executed within one year after
receiving balance consideration amount. This witness further
deposed that he is always ready and willing to pay the balance
consideration amount but the defendant deferred to execute the
sale deed on the pretext or the other. According to the plaintiff,
he has served legal notice on 13.03.2009 through his Advocate
Mr. Rajesh Sinha and the defendant has replied legal notice on
21.03.2009. This witness has been cross examined by the
defendant at length. In para-9 of cross examination, this witness
deposed as follows: "ftl ifjlj dks ysdj eSa eqdnek fd;k gW]wa mlh
ifjlj dks [kkyh djokus ds fy, izfroknh us ge okfn;ks ij ,d eqdnek T.(E).
S. 42/10 fd;k gSA" In para-19 of cross examination, this witness
deposed that before agreement there was negotiation and his
father was present at that time. In para-15 of the cross
examination, this witness deposed that on several occasions, he
has made oral request to the defendant to execute sale deed after
receiving balance consideration amount, but he has not
requested any time in writing. In para-17 of cross examination,
this witness deposed that he is paying income tax. In para-25 of
cross examination, this witness admits that the defendant has
retired from his service. In para-26 of cross examination, this
witness admits that the defendant has performed marriage of his
daughter in the year 2008. In para-29 of cross examination, this
witness deposed as follows: "cdk;k jde dk tqxkM vius yksxks ls
tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA " In para-35 of the
cross examination, this witness denied from the assertion of the
defendant that he has no any balance consideration amount. In
para-38 of the cross examination, this witness denied from the
assertion of the defendant that there was arrear of rent against
the defendant. On recall of this witness, agreement dated
19.03.2008 has been marked as Ext-2.
P.W.2 is Vijay Kumar. This witness comes to prove the legal
notice dated 13.03.2009, which has been marked as Ext-1.
8...............................
9................................
10...............................
11. Considering the aforesaid facts and on perusal of case
record and after going through the case laws cited by the
parties, I would like to deal with some points before reaching to
the conclusion on the Issue Nos. V, VI and VIII.
(i)...............................
(ii)..............................
(iii) Whereas, the question of willingness and readiness is
concerned in the present suit in hand, the plaintiffs have not filed
or exhibited any cogent evidence in support of their averments
that they have offered how many remaining consideration
amount on which dates by which lawful means and mode i.e. by
cheque or by demand draft. There is nothing to show that the
plaintiffs approached the defendant for payment of rest
consideration amount on particular date and time within
stipulated period of one year. Moreover, it is settled principle of
law as the Hon'ble Apex Court has held in case Reported in
2018 (2) J.B.C.J. 2030SC, Kalawati (D) Through LRs. & Ors.
Vs. Rakesh Kumar and Ors. have pleased to hold that "by
readiness it may be meant capacity of plaintiff to perform
contract which would include financial position to pay purchase
price as far as willingness to perform contract is concerned,
conduct of plaintiff has to be properly scrutinized along with
attendant circumstances." On the case record, there is nothing
to show or satisfies this court that the plaintiffs were in
possession to pay balance consideration amount of Rs.1,80,000
if any. There was nothing to brought by the plaintiffs to show
that there was legal source of income of the plaintiffs to pay
remaining amount. On perusal of para-29 of P.W.1 namely
Khursid Alama, who is plaintiff of the present suit, deposed as
follows: "cdk;k jde dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ
dkxtkr ugha cuk FkkA" So the evidence of plaintiffs show that the
plaintiffs have no independent source of income, so it must be
hold that the plaintiffs have neither ready nor willing to perform
their part of the contract."
22. The suit for specific performance of agreement dated 19.03.2008 was
dismissed and the trial court directed the defendant to return the amount of
Rs.1,00,000/- [as received by the defendant] to the plaintiffs along with
simple interest of 6% per annum.
23. Since the substantial question of law is relating only to readiness and
willingness in the part of the plaintiffs to perform their part of contract, that
is, payment of balance consideration amount of Rs.1,80,000/-, other points
are not relevant for the purposes of this case. On the point of readiness and
willingness to perform the contract by the plaintiffs, the learned appellate
court recorded findings in paragraph 15 whose relevant portions are as
under: -
"15. Applying the above equatable principles to the facts and
circumstances of the case in hand, now I would like to go
through with the Points for determination and in this respect
taking up the Point No. 1 namely "readiness and willingness on
the part of plaintiffs", on mere perusal of plaint it would appear
that in its paras 3 and 4 there was specific plea in this regard
and for ready reference both paragraphs are reproduced herein
as under:
"3. That the plaintiffs were all along requesting the defendant
to execute registered sale deed in their favour but the
defendant was always deferring the matter either on one
pretext or other.
4. That the plaintiffs were and are always ready and willing to
purchase the aforesaid property by paying balance
consideration amount to be paid the defendant as also for
getting the registration of sale deed complete."
Further on close perusal of oral evidence of PW-1 Md.
Khursheed Alam who admittedly is the plaintiff No.1, I find that
in the examination-in-chief on affidavit at paras 4, 6 and 7
consistently showed his eagerness readiness in paying balance
amount of Rs 1,80,000 in favour of the defendant but later
invariably was found reluctant in executing registered sale deed.
During cross-examination at paragraphs 13, 15, 16, 17, 18, 24,
32 and 33 he categorically has clarified the source of income,
admitted the plaintiffs to be income tax payee who used to file
GST and its return and deposed to the effect that he used to run
Biri making business and paying income tax and GST return for
that. From paragraphs 17 & 18 of cross-examination it would
appear that their Bidi making business has been running in name
and style as "Aftab Biri". At para 37 he denied the suggestive
question put to the effect that his Bidi business in brand name
"Aftab Biri" has been ceased and not functional. Therefore, on
collective reading of his examination-in-chief and cross
examination, I find that it has effectively been explained and
clarified by him that within 3-4 months of sale agreement the
plaintiffs had arranged the balance amount and were and are
capable in fulfilling the sale-agreement in accordance with its
terms and condition. As far as suggestive question put during
cross examination to PW-1 is concerned, it was upon the
defendant to show that Bidi making business run in the name of
"Aftab- Bidi" was closed earlier.
.......................................................
........ Applying the above principle of law in the present case, I
find that PW-1 being one of the plaintiff and full brother of
plaintiff No. 2 has specifically deposed that he had arranged the
requisite amount of Rs 1,80,000 just after about 3-4 months of
sale agreement. Therefore, the plaintiffs are not expected to
exhibit the currency notes, as held in Pushpa's case (supra) to
show their readiness and willingness. In the ultimate analysis
and on the basis of oral evidence of witnesses examined on
behalf of either sides and main particularly after careful scrutiny
of oral evidence of PW-1 who admittedly is the plaintiff No. 1, I
come to the conclusion that the plaintiffs were and are capable
enough financially to pay the balance amount of Rs. 1,80,000
and they just after 3-4 months of the sale-agreement had
arranged/ managed the given amount which was to be paid in
favour of the defendant. An inference may therefore be drawn
out rightly that the plaintiffs have succeeded in establishing that
they were and are ready and willing to perform their part of
sale-agreement of handing over remaining amount of cash worth
Rs 1,80,000. Accordingly, the Point No 1 is decided in favour of
the plaintiffs and against the defendant and finding of the court
below to the given effect above, is rejected......."
24. The plea regarding readiness and willingness to give balance
consideration amount for the purpose of execution of sale deed has been
mentioned in paragraph 3, 4, 5, 6, 8 and 9 of the plaint: -
"3. That the plaintiffs were all along requesting the defendant to
execute registered sale deed in their favour but the defendant
was always deferring the matter either on one pretext or other.
4. That the plaintiffs were and are always ready and willing to
purchase the aforesaid property by paying balance
consideration amount. The plaintiffs are ready with money being
the balance consideration amount to be paid to the defendant as
also for getting the registration of sale deed complete.
5. That it may be mentioned here that after execution of the
aforesaid agreement the defendant also received from the
plaintiffs a sum of Rs.6,000/- in cash in the last week of April,
2008. But the defendant did not make any endorsement thereof
over the agreement dated 19.03.08 and the plaintiffs, being well
acquainted with the defendant from before, had/have full faith
and trust upon the defendant. However, the plaintiffs are ready
to purchase the property by paying balance consideration money
of Rs.1,80,000/- only besides incurring expenses for completion
of the deal.
6. That when oral requests of the plaintiffs for execution of
registered sale deed in terms of agreement dated 19.3.08 proved
futile, the plaintiffs got an Advocate notice dated 13.3.09 issued
through their Advocate Sri Rajesh Sinha to the defendant
requesting therein to execute registered sale deed on receiving
the balance consideration amount within a fortnight from the
receipt of the notice.
8. That inspite of several request of plaintiffs in presence of
witnesses the defendant has not executed registered sale deed till
now nor he has refunded the advance amount of Rs. 1.00 Lakh to
the plaintiffs. Thus, the contract between the parties still subsists.
9. That the plaintiffs are still ready and willing to purchase the
said property morefully described in the schedule of the plaint by
paying the balance consideration amount of Rs.1,80,000/- to the
defendant besides incurring expenses for completion of the deed
and the defendant is legally bound to execute registered sale
deed in favour of the plaintiffs in terms of agreement dated
19.03.2008.
25. Upon going through the averments made in the plaint, this Court finds
that the plaintiffs simply stated that they were ready and willing to purchase
the property by paying the balance consideration amount of Rs.1,80,000/-
besides incurring expenses for completion of the deed but the plaint does
not have any foundational pleading in connection with the readiness of the
plaintiffs to pay the balance consideration amount i.e. the sources from
which the plaintiffs could make Rs.1,80,000/- available to themselves to
pay the balance consideration amount to the defendant. The plaint does not
refer to any date on which the plaintiffs approached the defendant to accept
the balance consideration amount and to execute the sale deed except
issuance of the legal notice dated 13.03.2009.
26. In the judgment passed by Hon'ble Supreme Court reported in 2022
SCC OnLine SC 840 (Supra). It has been held in paragraph 46 that it is
settled law that for the relief of specific performance the plaintiff has to
prove that all along and till the final decision of the suit he was ready and
willing to perform his part of the contract and it is the bounden duty of the
plaintiff to prove his readiness and willingness by adducing evidence and
the crucial facet has to be determined by considering all circumstances
including availability of funds and mere statement or averment in plaint of
readiness and willingness, would suffice. Section 16 of the Specific Relief
Act, [as it stood prior to 01.10.2018] has been quoted in paragraph 23 of
the judgement as under: -
"16. Personal bars to relief.- Specific performance of a contract
cannot be enforced in favour of a person-
(a) Who would not be entitled to recover compensation for its
breach; or
(b) who has become incapable of performing, or violates any
essential term of, the contract that on his part remains to be
performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be
established by the contract; or
(c) who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms the
performance of which has been prevented or waived by the
defendant.
Explanation.- For the purpose of clause (c),-
(i) 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;
(ii) the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction."
27. In paragraph 24 of the judgment it has been held that as per
explanation (ii) to Section 16 (c) of the Specific Relief Act, 1963 the
plaintiff must aver performance of, or readiness and willingness to perform,
the contract according to its true construction and it has been held in
paragraph 25 that to aver and prove readiness and willingness to perform an
obligation to pay money, in terms of a contract, the plaintiff would have to
make specific statements in the plaint and adduce evidence to show
availability of funds to make payment in terms of the contract in time. In
other words, the plaintiff would have to plead that the plaintiff had
sufficient funds or was in a position to raise funds in time to discharge his
obligation under the contract. If the plaintiff does not have sufficient funds
with him to discharge his obligations in terms of a contract, which requires
payment of money, the plaintiff would have to specifically plead how the
funds would be available to him. For an example, the plaintiff may aver
and prove, by adducing evidence, an arrangement with a financier for
disbursement of adequate funds for timely compliance with the terms and
conditions of a contract involving payment of money.
28. Paragraph 24, 25 and 46 of the aforesaid judgment are quoted as
under: -
"24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief
of specific performance of a contract in favour of a person, who
fails to aver and prove his readiness and willingness to perform
his part of contract. In view of Explanation (i) to clause (c) of
Section 16, it may not be essential for the plaintiff to actually
tender money to the defendant or to deposit money in court,
except when so directed by the Court, to prove readiness and
willingness to perform the essential terms of a contract, which
involves payment of money. However, Explanation (ii) says the
plaintiff must aver performance or readiness and willingness to
perform the contract according to its true construction.
25. To aver and prove readiness and willingness to perform an
obligation to pay money, in terms of a contract, the plaintiff
would have to make specific statements in the plaint and adduce
evidence to show availability of funds to make payment in terms
of the contract in time. In other words, the plaintiff would have
to plead that the plaintiff had sufficient funds or was in a
position to raise funds in time to discharge his obligation under
the contract. If the plaintiff does not have sufficient funds with
him to discharge his obligations in terms of a contract, which
requires payment of money, the plaintiff would have to
specifically plead how the funds would be available to him. To
cite an example, the plaintiff may aver and prove, by adducing
evidence, an arrangement with a financier for disbursement of
adequate funds for timely compliance with the terms and
conditions of a contract involving payment of money.
46. It is settled law that for relief of specific performance, the
plaintiff has to prove that all along and till the final decision of
the suit, he was ready and willing to perform his part of the
contract. It is the bounden duty of the plaintiff to prove his
readiness and willingness by adducing evidence. This crucial
facet has to be determined by considering all circumstances
including availability of funds and mere statement or averment
in plaint of readiness and willingness, would not suffice."
29. In the judgment passed by the Hon'ble Supreme Court in the Special
Leave Petition (Civil) No. 13933 of 2021 (Supra) the principles governing
the decree for specific performance of contract have been crystalized in
paragraphs 8 to 12 of the judgment which is quoted as under: -
"8. Section 16(C) of the Specific Relief Act, 1963 (prior to
amendment w.e.f. 01.10.2018) bars the relief of the specific
performance of a contract in favour of a person who fails to aver
readiness and willingness to perform his party of the contract.
9. There is a legion of precedents on the subject of readiness and
willingness.
10. The law is well settled. The plaintiff is obliged not only to
make specific statement and averments in the plaint but is also
obliged to adduce necessary oral and documentary evidence to
show the availability of funds to make payment in terms of the
contract in time.
11. There is a fine distinction between readiness and willingness
to perform the contract. Both the ingredients are necessary for
the relief of specific performance.
12. While readiness means the capacity of the plaintiff to
perform the contract which would include his financial position,
willingness relates to the conduct of the plaintiff."
30. This Court while considering the materials on record in the light of the
aforesaid judgements finds that there is no averment in the plaint with
regard to the sources of fund on the basis of which the plaintiffs stated that
they were ready and willing to give the balance consideration amount. In
the evidence they stated that they had arranged money from third person
but neither those persons were examined before the court nor any evidence
with regard to any deposit and availability of money was given and the
learned trial court had taken note of this fact and had recorded that no bank
account statement was given as to where the money kept. This Court finds
that the requirement of Section 16(c) of the Specific Relief Act, 1963 was
not satisfied in the present case as the plaintiffs did not aver in the plaint
with respect to his sources of fund from which it could be demonstrated
that he was ready and willing to perform his part of the contract.
31. The basic ingredient of Section 16(c) read with explanation (ii) of the
Specific Relief Act, 1963 having not been satisfied, the learned first
appellate court was not justified in reversing the judgement and decree of
the trial court and decreeing the suit. Further, the learned appellate court
recorded that the P.W-1 consistently showed the eagerness and willingness
to pay the balance consideration amount and that he had source of income
from biri making business and was paying income tax and furnishing GST
return and that he had arranged the money within 3 to 4 months from the
date of agreement and was capable of fulfilling the condition of the sale
agreement but failed to consider that there were no documentary evidence
to support such findings. Further, no specific date has come in the evidence
as to when the plaintiffs approached the defendant to pay the balance
consideration amount except the legal notice dated 13.03.2009 which was
issued just 6 days before expiry of one year from the date of agreement and
the stipulated period as per the agreement was one year. The P.W-1 stated
in his evidence that he was ready with the fund within 3 to 4 months from
the date of the agreement and except his statement, there is neither any
pleading nor any evidence to support such a statement. It is also important
to note that the learned appellate court has not at all considered the reasons/
discussions of the material evidence on the basis of which the learned trial
court held that the plaintiffs did not show the readiness and willingness to
pay the balance consideration amount for execution of the sale deed within
a period of one year from the agreement. The learned trial court had,
interalia, taken into consideration the material evidence of P.W-1 at
paragraph 29 where the plaintiff no.1 stated that he had arranged money
from others to pay the balance consideration but nothing was brought on
record to show the availability of fund and that the plaintiffs were in
possession of fund and further nothing was brought on record to show that
the plaintiffs had independent source of income to pay the balance
consideration amount on any particular date and time during the period of
one year and no document was filed to show that the plaintiffs had the
balance consideration amount in their account on any particular date and
time within the period of one year from the agreement within which the
sale deed was to be executed. The learned trial court had also considered
the other attending circumstances and the materials on record and refused
to exercise its discretion to decree the specific performance of the
agreement. The learned appellate court has not met with the reasons cited
by the learned trial court on the point of readiness and willingness to pay
the balance consideration amount. It is true that the plaintiff in a suit for
specific performance of sale agreement need not exhibit the currency notes
to show their readiness and willingness to pay the balance consideration.
However, it has been held by the Hon'ble Supreme Court in the case
reported in 2022 SCC Online SC 840 (supra) paragraph 25 and 46 that
the crucial facet has to be determined by considering all circumstances
including availability of funds and mere statement in the plaint of readiness
and willingness would not suffice and it has been held that to aver and
prove readiness and willingness to perform an obligation to pay money in
terms of a contract, the plaintiff would have to make specific statements in
the plaint and adduce evidence to show availability of funds to make
payment in terms of the contract in time. This position of law has been
reiterated by the Hon'ble Supreme Court also in S.L.P. (Civil) No. 13933
of 2021 decided on 28th of November 2024, para 8 and 10 that Section 16
(c) of the Specific Relief Act, 1963 (prior to 1.10.2018) bars relief of
specific performance of contract in favour of a person who fails to aver
readiness and willingness to perform his part of contract and that the law is
well settled that the plaintiff is obliged not only to make specific statement
and averments in the plaint but is also obliged to adduce necessary oral and
documentary evidence to show the availability of funds to make payment in
terms of the contract in time.
32. In the facts of this case the basic averment and statement with regards
to availability of fund is totally missing in the plaint when seen in the light
of the aforesaid two judgements and no documentary evidence has been
filed to show the availability of funds to make payment in terms of the
contract in time. The basic ingredient of Section 16(c) read with
explanation (ii) of Specific relief Act, 1963 (prior to 1.10.2018) having not
been satisfied, the learned first appellate court was not justified in reversing
the judgement and decree of the trial court and was not justified in
decreeing the suit.
33. Considering the totality of facts and circumstances, the substantial
question of law as framed by this Court and quoted in paragraph 4 of this
judgement is decided in favour of the appellant and against the respondents
and consequently, this appeal is allowed and the judgment passed by the
learned first appellate court so far it relates to readiness and willingness on
the part of plaintiffs to pay the balance consideration amount, is set aside.
Accordingly, the appellate decree is also set aside.
34. Pending interlocutory application, if any, is closed.
35. Let this Judgment be communicated to the concerned court through
FAX/E-mail.
(Anubha Rawat Choudhary, J.)
Rakesh/A.F.R.
