Narendra @ Nagesh Bharma Holkar vs Bhagyashree Anant Gaonkar
2023 Latest Caselaw 404 Kant

                             1




     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 06TH DAY OF JANUARY 2023

                          BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

       REGULAR SECOND APPEAL NO.5085 OF 2011

BETWEEN:

SRI NARENDRA @ NAGESH BHARMA HOLKAR
AGE: MAJOR, OCC: BUSINESS
R/O KURBAR GALLI
ANAGOL, BELAGAVI - 590 001.                   ...APPELLANT

(BY SRI. SANGRAM S. KULKARNI., ADVOCATE)

AND:

1.      SMT.BHAGYASHREE ANANT GAONKAR
        AGE:43 YEARS, OCC: HOUSEHOLD
        R/O COMMUNITY CENTRE
        NARAYAN INDUSTRIAL AREA
        PHASE I NEW DELHI, REPTD. BY HER
        POWER OF ATTORNEY HOLDER
        SRI SUDHAKAR GAJANAN NAIK,
        AGE:45 YEARS, OCC: SERVICE,
        R/O PLOT NO.2, HOUSE NO.1927,
        SAMRUDHI BUILDING GANESHPUR,
        BELAGAVI - 591 108.

2.      SRI SUDHAKAR GAJANAN NAIK,
        AGE:45 YEARS, OCC: SERVICE,
        R/O PLOT NO.2, HOUSE NO.1927,
        SAMRUDHI BUILDING, GANESHPUR,
        BELAGAVI - 591 108.                ...RESPONDENTS

(BY SRI.H.M.DHARIGOND., ADVOCATE, FOR R1;
      SMT.S.V.DESHPANDE., ADVOCATE, FOR R2)
                                2




      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 08.12.2010, PASSED
BY THE III ADDL. DISTRICT JUDGE, BELAGAVI, IN
R.A.NO.25/2009, REVERSING THE JUDGMENT AND DECREE
DATED 25.11.2008, PASSED BY THE I ADDL. CIVIL JUDGE
(SR.DN.), BELAGAVI, IN O.S.NO.323/2006.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.12.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, SITTING AT PRINCIPAL BENCH,
BENGALURU, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

Sri.Sangram S.Kulkarni., learned counsel for the

appellant and Sri.H.M.Dharigond., learned counsel for

respondent No.1 have appeared in person.

2. This appeal is from the Court of III Additional

District Judge, Belagavi.

3. For the sake of convenience, the parties shall be

referred to as per their status and ranking before the Trial

Court.

4. The brief facts of the case are stated as under:

It is stated that Bhagyashree Gaonkar - the first

defendant is the owner of the property which is an open site

including a shed measuring 44 feet + 45 feet/2 east-west

and 55 feet north-south out of R.S.No.115/6 situated at

Godashewadi, Mandoli Road, Ayodhya Nagar, Belgaum

Taluk and District. The first defendant appointed Sudhakar

Gajanana Naik - the second defendant as her attorney to

deal with the said property. The plaintiff was intending to

purchase an open site for the construction of the house and

he learned that the suit property is taken out for sale, he

approached the defendants in the month of April 2006 and

Sudhakar Gajanana Naik - the second defendant revealed

that he is the Power of Attorney Holder of Bhagyashree

Gaonkar and he has got all rights to sell the property.

Therefore, the plaintiff held talks in respect of the suit

property with Sudhakar Gajana Naik - the second defendant

and after negotiation, Sudhakar Gajanana Naik agreed to

sell the suit property for a total consideration of

Rs.4,67,500/- (Rupees Four Lakh Sixty Seven Thousand and

Five Hundred only) and an agreement for sale was also

executed on 19.05.2006 in favor of the plaintiff and the

plaintiff paid Rs.50,000/- (Rupees Fifty Thousand only) to

the second defendant as earnest money towards part

payment of the consideration amount. The balance

consideration amount was agreed to be paid at the time of

executing the Registered Sale Deed. It was also agreed that

after entering the name of the first defendant in the Record

of Rights of the suit property, the second defendant shall

intimate the said fact to the plaintiff and call upon him to

get the sale deed executed.

It is stated that the name of the first defendant was

mutated on 31.05.2006 in Revenue Records vide

M.R.No.1247/2005-06. But the defendants never informed

the said fact to the plaintiff. This being the state of affairs,

the second defendant as the power of Attorney Holder of

the first defendant got issued a Legal Notice on 11.08.2006

alleging that the plaintiff has not responded to get the sale

deed executed despite mutation of the name of the first

defendant in the Revenue Records as per the terms and

conditions of the Agreement dated:19.05.2006 and as such,

the Sale Agreement stood canceled. A direction was also

given to the plaintiff through the said notice to take back his

advance amount. Surprisingly, both the defendants without

informing the fact that mutation was effected in the name of

the first defendant concerning the suit property got issued

such a false notice without any basis. It is averred that the

plaintiff was ever ready and willing to get the Registered

Sale Deed executed in his name. Therefore, he got issued a

reply notice to the defendants on 18.08.2006 expressing his

intention and willingness to get the Registered Sale Deed

executed by paying the balance consideration amount and

he called upon the defendants to execute it on 28.08.2006

but the defendants failed to execute the sale deed. It is

said that the plaintiff had even taken a loan from Society to

pay the balance consideration for which he is paying heavy

interest. The defendants have failed to execute the

Registered Sale Deed. Therefore, the plaintiff filed a suit for

the specific performance of a contract for sale.

The second defendant on behalf of himself and as P.A.

holder of the first defendant filed a written statement. He

admitted the fact that the agreement for sale was executed

by him in favor of the plaintiff to sell the suit property for a

total consideration of Rs.4,67,500/- (Rupees Four Lakh

Sixty-Seven Thousand and Five Hundred only) on

19.05.2006 and that he also received Rs.50,000/- (Rupees

Fifty Thousand only) from the plaintiff towards part

consideration. He further admitted that there was a

condition in the agreement for sale that after entering the

name of the first defendant in the Revenue records, the said

fact shall be intimated to the plaintiff and the plaintiff shall

be asked to get the Registered Sale Deed executed in his

favor by paying the balance consideration amount.

They contended that immediately after the name of

the first defendant was entered in the Revenue Records, the

said fact was informed to the plaintiff but the plaintiff

showed his unwillingness to purchase the suit property for

unavoidable circumstances and lack of funds and after

waiting for some time, the second defendant got issued a

legal Notice on 11.08.2006 canceling the agreement of sale.

It was further contended that the agreement for sale was

canceled because of a breach of condition by the plaintiff

and therefore the plaintiff is not entitled to a refund of

earnest money also. They further contended that the first

defendant residing in New Delhi is intending to return to

Belgaum and intends to use the suit property for her

residence and therefore the question of alienating the suit

property to others does not arise. So, they prayed for the

dismissal of the suit. On the above grounds, the defendants

have prayed for the dismissal of the suit.

Based on the above pleadings, the Trial Court has

framed the following issues:

ISSUES

1. Whether the plaintiff proves that he was always ready and willing to perform his part of the contract?

2. Whether the defendants prove that the fact of mutation of the name of defendant No.1 was informed to the plaintiff?

3. Whether the defendants prove that despite informing about the mutation of the name

of defendant No.1, the plaintiff did not come forward and as such the defendants have canceled the agreement?

4. Whether the description of the suit property is correct?

5. Whether the plaintiff is entitled to the relief of specific performance?

6. What decree or order?

To substantiate the claim, the plaintiff examined as

PW1 and a witness as PW2 and produced six documents

marked as Exs.P.1 to P6. On behalf of the defendants,

defendant No.2 was examined as DW1 and one witness was

examined as DW2 and produced six documents marked as

Exs.D.1 to D6.

On the trial of the action, the Trial Court decreed the

suit. The defendants preferred an appeal before the

Appellate Court. The Judgment and Decree of the Trial

Court were set aside on appeal. Hence, the plaintiff has filed

this Regular Second Appeal under Section 100 of the Civil

Procedure Code.

5. Learned counsel for the appellant and

respondents have urged several contentions.

Learned counsel for the respondents relied on the

following decisions.

      1. DEEPAK      RAJANI   Vs.    K.B.    PAMPAPATHI
           SINCE DECEASED BY HIS LRS - 2012 (1)
           KCCR 428 (DB).

2. SRI.PUNNY AKAT PHILIP RAJU SINCE DEAD BY HIS LRS Vs. SRI.DINESH REDDY - 2016 (3) KCCR 2372 (DB).

3. SMT.PUSHPALATHA AND ANOTHER Vs. D.R.

SADANANDA MURTHY - 2020 (1) KCCR 735.

4. SHANKARGOUDA AND OTHERS Vs. K.

TAYIKUMARI - 2020 (5) KCCR 481 (DB).

6. Heard the contentions urged on behalf of the

respective parties and perused the appeal papers and

records with care.

In this case, the plaintiff sued to enforce the specific

performance of a contract to execute a conveyance in

respect of the property mentioned in the plaint.

The appeal of the plaintiff is pressed upon two distinct

grounds. The first of these grounds is to the effect that the

defendants violated the essential condition of the contract.

The next ground is about readiness and willingness.

First, the argument, in this case, has centered around

the non-furnishing of two documents viz., change in

revenue entry; tax assessment receipts: second about

readiness and willingness.

Let me answer the contention about the non-

furnishing of documents.

Suffice it to note that there is an agreement for sale

dated 19.05.2006. The same is not disputed by the parties

to the lis.

In the agreement to sell, information about changes

in the revenue entry and payment of tax assessment

receipts was a pre-requisite for the execution of the sale

deed. It is not in dispute that the second defendant had

agreed to intimate about the change in the revenue entries.

Sri.Sangram S.Kulkarni., learned counsel for the

appellant in presenting his argument vehemently contended

that the second defendant did not intimate the change in

the revenue entries to the plaintiff well in time.

In reply, Sri.H.M.Dharigond., learned counsel

appearing on behalf of the respondents strenuously urged

that the Revenue Authorities mutated the name of the first

defendant on 31.05.2006 vide MR.No.1247/2005-06. He

argued that the change in the revenue entry was informed

to the plaintiff also.

Heard, the rival contention about the information

about the change in the revenue records.

The sale agreement is at Ex.P.1. The Kannada

translation copy of the sale agreement is at Ex.P.1(a).

Suffice it to note that the first and the second defendant

had signed the sale agreement. The agreement would

depict that as soon as the name of the first defendant is

entered in the revenue records i.e., in the Record of Rights,

the second defendant would intimate the same to the

plaintiff and call him for the execution of the sale deed.

The relevant part of the sale agreement about

information reads as under:

"7/12 gÀ GvÁgÀ ºÁUÀÆ PÀAzÁAiÀÄ E¯ÁSÉAiÀÄ GvÁgÀ JgÀqÀgÀ°èAiÀÄÆ £À£Àß ºÉ¸ÀgÀ£ÀÄß zÁR®Ä ªÀiÁqÀ®Ä £Á£ÀÄ FUÁUÀ¯Éà CfðAiÀÄ£ÀÄß ¸À°è¹zÉÝãÉ. £ÀAvÀgÀ £À£ßÀ ºÉ¸ÀgÀÄ ¸ÀzÀj 7/12 ºÁUÀÆ PÁ¥ÉÆðgÉñÀ£ï C¸É¸ïªÉÄAmï GvÁgÀzÀ°è §AzÀ PÀÆqÀ¯É £Á£ÀÄ JgÀqÀÆ GvÁgÀUÀ¼£ À ÄÀ ß ¤ªÀÄUÉ PÉÆqÀvÀPÀÌzÀÄÝ EgÀÄvÀÛzÉ. CzÀgÀ ¸À®ÄªÁV vÀUÀ®ÄªÀ RZÀð£ÀÄß £Á£Éà ¨sÀj¸ÀvÀPÀÌzÀÄÝ.

F ¥ÀæPÁgÀ £Á£ÀÄ JgÀqÆ À GvÁgÀUÀ¼ÀÄ §AzÀ £ÀAvÀgÀ ¤ªÀÄUÉ Rjâ ¥ÀvÀæªÀ£ÀÄß ¥ÀÆtð ªÀiÁr PÉÆqÀĪÀÅzÀÄ EgÀÄvÀÛzÉ. CzÉà ¥ÀæPÁgÀ ¸ÀzÀj D¹ÛAiÀÄ ªÉÄÃ¯É ©£ï-¨sÉÆÃeÁ EzÀÄÝ, CzÀ£ÀÄß ¤ªÀÄä ¥ÀævÀåPÀë PÀ§eÉAiÀÄ°è PÉÆlÄÖ £ÀAvÀgÀ ¤ªÀÄUÉ PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ Rjâ ¥ÀvÀæªÀ£ÀÄß ªÀiÁrPÉÆqÀvÀPÀÌzÀÄÝ ºÁUÀÆ ¸ÀA¥ÀÆtð ªÀiÁ°Ì ºÀPÀÌ£ÀÄß PÉÆqÀÄvÉÛãÉ. MAzÀÄ ªÉÃ¼É EzÀPÉÌ vÀ¦àzÀ°è ¤ÃªÀÅ PÉÆÃlð ªÀÄÆ®PÀ Rjâ ¥ÀvÀæªÀ£ÀÄß ªÀiÁrPÉƽîj. CzÀPÉÌ vÀUÀ®ÄªÀ RZÀÄð ºÁUÀÄ DyðPÀ ºÁ¤AiÀÄ£ÀÄß £Á£ÀÄ PÉÆqÀÄvÉÛãÉ."

Sudhakar Gajanana Naik - the second defendant was

examined as DW1. I may extract the relevant portion of the

deposition as under:

"1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸j À £À°è 7:12 GvÁgÉ EgÀ°®è.

D GvÁgÉAiÀÄ°è DvÀ£À ºÉ¸g À ÀÄ ºÀwÛzÀ vÀPÀëtªÉà PÀæAiÀÄ ¥ÀvÀæªÀ£ÀÄß £ÉÆÃAzÀt ªÀiÁr¹PÉƼÀî¨ÉÃPÉAzÀÄ PÀgÁgÀÄ DVvÀÄÛ. PÀgÁgÀÄ M¥ÀàAzÀ ¥ÀvÀæzÀ°è EµÉÖà ¢£ÀUÀ¼Æ É ¼ÀUÁV PÀæAiÀÄ ¥ÀvÀæ £ÉÆÃAzÀt ªÀiÁr¹PÉƼÀî¨ÉÃPÉAzÀÄ §gÉ¢gÀ°®è JAzÀgÉ PÁ¯ÁªÀ¢ü §gÉ¢gÀ¯É®è. ¢.1-7-2006 gÀAzÀÄ ¸ÁAiÀÄAPÁ® 5 UÀAmÉUÉ £À£ÀUÉ zÁªÉ ¸ÀéwÛ£À 7B12 GvÁgÉ ¹QÌvÀÄ. CzÉà ¢£À £Á£ÀÄ ¸Àzj À à GvÁgÉAiÀÄ£ÀÄß ®PÀëöät FvÀ£À PÉÊAiÀÄ°è PÉÆmÉÖãÀÄ. ®PÀëöät eÉÆò®PÀgÀ EªÀgÀ£ÀÄ CzÉà ¢£À ªÁ¢UÉ D GvÁgÉ ¸À®Ä¦¹zÀÝ£ÀÄ (vÀ®Ä¦¹zÀÝ£ÀÄ). ®PÀëöät eÉÆò®PÀgÀ ªÁ¢UÉ D GvÁgÉ vÀ®Ä¦¹gÀ°®è D£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî.

¢.1-7-2006 gÀAzÀÄ £À£ÀUÉ GvÁgÉAiÀÄ ¥Àæw ¹QÌvÀÄ. ¢.31-5-2006 gÀAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÀÄ zÁR¯ÉUÀ½UÉ ºÀwÛvÀÄÛ. 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÀÄ GvÁgÉUÀ¼À¯Éè JAzÀÄ ºÀwÛvÀÄ ªÀÄvÀÄÛ D GvÁgÉAiÀÄ ¥Àæw £ÀªÀÄUÉ JAzÀÄ zÉÆgÀQvÀÄÛ JAzÀÄ £Á£ÀÄ ªÁ¢AiÀÄjUÉ w½¹®è C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. DvÀ¤UÉ °TvÀ gÀÆ¥ÀzÀ°è £Á£ÀÄ w½¹gÀ°®è DzÀgÉ

M§â ªÀåQÛAiÀÄ PÉÊAiÀÄ°è GvÁgÉAiÀÄ ¥ÀæwAiÀÄ£ÀÄß ªÁ¢UÉ vÀ®Ä¦¸ÀĪÀAvÉ w½¹zÉÝãÀÄ."

Laxman Joshilkar was examined as DW2. He has

deposed as under:

"1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÄÀ ºÀaÑzÀ £ÀAvÀgÀ 8 ¢£ÀUÀ¼Æ É ¼ÀUÁV G½zÀ ºÀtªÀ£ÀÄß PÉÆlÄÖ PÀæAiÀÄ ¥ÀvÀæ£ÉÆÃAzÀ ªÀiÁr¹PÉƼÀÄîªÀzÉAzÀÄ PÀgÁgÀÄ DVvÀÄÛ. EµÀÄÖ ¢£ÀUÀ¼Æ É ¼ÀUÁV JAzÀÄ PÀgÁgÀÄ DVgÀ°®è. 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸g À ÀÄ GvÁgÉAiÀÄ°è JAzÀÄ ºÀwÛvÀÄ £À£ÀUÉ UÉÆwÛ®è. DzÀgÉ 2£Éà ¥ÀæwªÁ¢ ¢.1-7-2006 gÀAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸g À ÀÄ ºÀwÛzÀ GvÁgÉAiÀÄ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÄÝ £Á£ÀÄ CzÀ£ÀÄß ªÁ¢UÉ vÀ®Ä¦¹zÉ£ÀÄ. ªÁ¢UÉ CzÀ£ÀÄß vÀ®Ä¦zÀ §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà »A§gÀºÀª£ À ÄÀ ß CxÀªÁ ¹éÃPÀÈw ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉAiÀÄ°®è."

The plaintiff in his cross-examination has deposed as

under:

"ªÀĺÁ£ÀUÀgÀ ¸À¨sÉUÉ 1£Éà ¥ÀæwªÁ¢ PÉÆnÖzÀÝ vÉjUÉAiÀÄ gÀ¹Ã¢AiÀÄ MAzÀÄ ¥ÀæwAiÀÄ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. D gÀ¹Ã¢AiÀÄ ¥ÀæwAiÀÄ£ÀÄß £À£ÀUÉ PÉÆnÖgÀ°®è JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ......... 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸g À ÀÄ D d«Ää£À GvÁgÉUÀ¼À¯Éè §AzÀ

£ÀAvÀgÀ 2£Éà ¥ÀæwªÁ¢ D «µÀAiÀĪÀ£ÀÄß £À£U À É w½¹zÀÝ£ÀÄ C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. eÉÆò®PÀgÀ J£ÀÄߪÀªg À ÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÀÄ EzÀÝ DgïnJ¸ï GvÁgÉAiÀÄ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî.

......... GvÁgÉ £À£ÀUÉ PÉÆnÖzÀÝgÀÆ ¸ÀºÀ PÉÆnÖ®è JAzÀÄ FUÀ ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¢.31-5-2006 gÀAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÄÀ DgïnJ¸ï GvÁgÉAiÀÄ°è §A¢vÀÄÛ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è."

The second defendant specifically contended that the

revenue department mutated the name of the first

defendant in the Record of Rights on 31.05.2006 vide

M.R.No.1247/2005-06 and the same was informed to the

plaintiff through one Laxman Joshilkar.

To understand the respective contentions of the

parties about the information of change in the entry, it is

necessary to give a few dates and facts.

The sale agreement is dated 19.05.2006. The revenue

authorities mutated the name of the first defendant on

31.05.2006. According to the defendants, the information

about the change in the entry is informed to the plaintiff on

01.07.2006. The defendants through their advocate got

issued a notice to the plaintiff on 11.08.2006. The plaintiff

replied to the said notice on 18.08.2006.

I have been taken through the contents of the sale

agreement. As per the terms and conditions included in the

sale agreement, the parties to the contract agreed that a

registered sale deed is to be executed after the entry of the

name of the owner i.e., the first defendant in the revenue

records and furnishing of the tax assessment extract. A

bare perusal of the material evidence on record depicts that

the defendants did not inform about the change in the

revenue records as agreed in the contract.

In the present case, the plain reading of the

depositions as extracted above, show that the defendants

were required to furnish a copy of the 7/2 record (RTC

extract) and corporation assessment register extract after

entry of the name of the first defendant in those records

and after furnishing them to the plaintiff, he has to get the

sale deed registered. It is pivotal to note that as per the

terms of the contract, the defendants were required to

furnish not only a 7/2 record but also an assessment

register extract issued by the Corporation in the name of

the first defendant. Hence, furnishing copies of the change

in the revenue entry and assessment register extract

receipts formed an essential condition of the contract. The

defendants did not furnish the same to the plaintiff as

agreed in the contract. The defendants violated the

essential condition of the contract. I may venture to say

that violation is vital to the bargain and has altered the

mutual relationship of the parties.

Learned counsel appearing on behalf of the

respondents argued that the plaintiff was informed about

the change in the revenue records through one Laxman

Joshilkar. He argued that the plaintiff was unable to perform

his part of the contract, hence the contract was canceled.

Learned counsel appearing on behalf of the respondents

drew attention to the notice.

Perused the contents of the notice with utmost care.

Ex.P.4 is the Notice dated:11.08.2006 wherein the

defendants unilaterally canceled the agreement on the

ground that the plaintiff has not responded to their request.

Except for saying that the condition is complied with and

requested to get the sale deed executed by paying the

balance consideration, there is no averment about the

information. The defendants unilaterally canceled the

agreement. In my view, unilateral cancellation is untenable.

The Trial Court extenso referred to the material on

record and rightly concluded that the plaintiff has proved

that the defendants have violated the essential condition of

the contract. The Appellate Court without looking into the

relevant facts, on a mistaken approach concluded that time

is the essence of the contract and rejected the relief of

specific performance. In my view, the Appellate Court has

erred in dismissing the suit, and on facts and in all the

circumstances of the case, it is not correct to say that time

is the essence of the contract. As is well known that time is

not the essence of the contract.

In this view of the matter, I must negate the

contention of the respondents and the contention of the

plaintiff must prevail.

I will now proceed to consider the other point urged

on behalf of the respondents about readiness and

willingness.

Sri.H.M.Dharigond., learned counsel appearing on

behalf of the defendants vehemently contended that the

plaintiff was not ready and willing to perform his part of the

contract as he was not having the financial capacity to pay

the balance sale consideration.

By way of answer, Sri.Sangram S.Kulkarni., learned

counsel for the appellant submitted that the plaintiff was

always ready and willing to perform his part of the contract.

A good deal of argument was advanced on Section

16(c) of the Specific Relief Act. Hence, extracting Section

16(c) helps indicate the right approach.

Section 16(c) of the Specific Relief Act runs as under:

"16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favor of a person-

xxxxx

(c) 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 the terms the performance of which has been prevented or waived by the defendant."

Clause (c) of Section 16 provides that the person,

seeking specific performance of the contract must file a suit

wherein he must aver and prove that he has performed or

has been ready and willing to perform the essential terms of

the contract, which are to be performed by him. The

plaintiff must aver as well as prove his readiness and

willingness to perform his part of the obligation. The

distinction, between readiness and willingness, is that the

former has reference to financial ability, and later the

conduct of the plaintiff wanting specific performance. It is

needless to say, 'willingness' is a merely mental process,

'readiness' is something to do with translating that will into

action and is preceded by the necessary preparation of

being in a position to be ready. In other words, while

'willingness' may be something to do with a person's mental

process to do an act, his readiness implies proximity to the

such willingness and its ultimate physical manifestation.

'Readiness' must, in all cases, be backed by 'willingness'

and its imminent physical action is demonstrated when it is

about to be put into action.

Bearing these principles in mind, I have examined the

records in this case minutely and I have not failed to keep

ever present in my mind the material propositions put forth

by the parties and the material evidence on record. The

plaintiff examined himself to prove his readiness and

willingness.

In the plaint, it has been said as under:

"The plaintiff is ever ready and willing to get execute the sale deed in respect of the suit property. In this regard, the plaintiff has given a reply notice on 18.08.2006 expressing his intention and willingness to get executed the sale deed by paying the balance consideration amount to the defendants. Through the said reply notice, the plaintiff has called upon the defendants to execute the sale deed on 28.08.2006 before the Sub-Registrar, Belgaum at 11 a.m. But the defendants failed to come and execute the sale deed. The plaintiff has also taken a loan from the Lokamanya Co-

Operative Society Taluk: Belgaum, to pay the balance consideration to the defendants of the sale deed. And the plaintiff is paying a heavy 15% interest rate of said loan."

There is satisfactory evidence about readiness and

willingness. The acts showing readiness and willingness are

also quite satisfactory. The oral and documentary evidence

on record is sufficient to conclude that the plaintiff was

always ready and willing to perform his part of the contract.

An averment that the plaintiff is ready and willing to

perform his part of the contract is sufficient compliance with

Section 16(c). In the absence of any contract to the

contrary, the ordinary rule, governing the sale of land, is

that the payment of consideration money and the

conveyance are simultaneous; hence it is not necessary that

the price must be tendered as a condition precedent for

specific performance. The law is well-settled in that the

plaintiff does not have to go about jingling money to prove

his ability to pay the purchase price.

To summarize, I can say this much both the plaintiff

and defendants were ad idem about the terms and

conditions of the sale agreement after putting forward his

case, the plaintiff made it clear, in the plaint, that he was

ready and willing to perform the terms of the contract. In

my view, it is a sufficient averment, and the plaintiff has

discharged his onus about readiness and willingness.

To conclude, it can be said that the terms of the

agreement are certain, the parties were ad idem and the

plaintiff has proved the agreement and enforceability of the

agreement and he is entitled to a decree for specific

performance.

There is nothing more than this in the case. In view of

what I have said as to the facts, I agree, therefore, with the

order passed by the Trial Court.

Resultantly, the Regular Second Appeal is allowed.

The Judgment and Decree dated 08.12.2010 passed by the

III Addl. District Judge, Belgaum in R.A.No.25/2009 is set-

aside.

The suit of the plaintiff for specific performance is

decreed with cost.

The defendants are directed to execute the registered

sale deed in relation to the suit property after receiving the

balance consideration amount from the plaintiff within two

months from the date of this order. In case of failure, the

plaintiff is at liberty to get the sale deed executed through

the process of the court by appointment of a commissioner.

Draw the decree accordingly.

Sd/-

JUDGE TKN