Madhya Pradesh High Court
T.P.G. Pillay vs Mohammad Jamir Khan on 27 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 27 th OF MAY, 2024
FIRST APPEAL No. 615 of 2018
BETWEEN:-
T.P.G. PILLAY S/O LATE PADMANABH PILLAY, AGED
ABOUT 50 YEARS, 544-A, HOUSE NO. 777/1, SCHME NO. 2
A, SHAKTI NAGAR, DISTRICT JABALPUR (MADHYA
PRADESH)
.....APPELLANT
DEFENDANT NO.1
(BY SHRI SURENDRA VERMA WITH SHRI BALAJI AKHILWAR -
ADVOCATES)
AND
1. MOHAMMAD JAMIR KHAN S/O MOHAMMAD
SAGIR KHAN, AGED ABOUT 33 YEARS, HOUSE
NO.J-109, ANAND NAGAR, ADHARTAL TEH. AND
DSIT. JABALPUR (MADHYA PRADESH)
[PLAINTIFF NO.1]
2. STATE OF MP THROUGH COLLECTOR JABALPUR
(MADHYA PRADESH)
[DEFENDANT NO.2]
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI HIMANSHU MISHRA - ADVOCATE)
(RESPONDENT NO.2 BY SHRI ASHISH KURMAI - PANEL LAWYER)
Reserved on : 28.2.2024
Pronounced on: 28.5.2024
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This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, JUSTICE AVANINDRA KUMAR SINGH
passed the following:
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 27-05-2024
19:35:55
2
JUDGMENT
By the instant appeal filed under Section 96 of the Code of Civil
Procedure, the appellant/defendant is challenging the judgment and decree dated
14.02.2018 passed in Civil Suit No.12-A/2015 by the Third Additional District
Judge, Jabalpur which was preferred by respondent No.1/plaintiff for specific
performance of contract.
2. The facts leading to the present appeal in brief are that the
defendant/appellant executed an agreement to sale in favour of the
plaintiff/respondent No.1 on 19.07.2011 in respect of the land situated over
Mouza Gurda Har Khajari, Bandobast No.600, Patwari Halka No.20, Block
Maharajpur, Tahsil and District Jabalpur, agriculture land survey No.38/8 area
measuring 4600 square feet and survey No.38/18 area measuring 4450 square
feet total area 9050 square feet.
At the time of execution of the agreement to sale dated 19/7/2011 (Ex.P/1),
an amount of Rs.10,00,000/- was paid in advance by respondent No.1 to the
appellant out of total sale consideration of Rs.25,00,000/-. As per the
agreement, the remaining amount i.e. Rs.15,00,000/- had to be paid by
respondent No.1 to the present appellant within the period of three months from
the date of agreement and thereafter, the present appellant would execute the
sale-deed in favour of respondent No.1. In the said agreement, it was also
mentioned that before getting the sale-deed registered, the appellant would get
the land demarcated at his own expenses and the document in respect of the
same would be made available to respondent No.1. According to the terms and
conditions of the agreement to sale (Ex.P/1), the appellant was required to get
the land demarcated till first week of August, 2011 and further to get the sale-
deed executed in favour of respondent No.1.
3. As per respondent No.1, in the month of August, 2011, he
requested the appellant to get the land demarcated and then to get the sale-deed
executed in his favour but he did not do so. As per respondent No.1, he
repeatedly asked the appellant to get the land demarcated so that the sale-deed
could be executed but the appellant was delaying the matter for one or the
another reason. Thereafter, respondent No.1 sent a notice on 24.10.2011
(Exhibit-P/4) to the present appellant but the same was neither replied nor the
sale-deed got executed in favour of respondent No.1.
4. Thereafter, a suit was filed by the plaintiff/respondent No.1
seeking a decree of specific performance of the contract mentioning in the plaint
that the cause of action arose on 19.07.2011 when the agreement to sale got
executed and thereafter, on 24.10.2011, despite issuance of notice to the
defendant/appellant he did not appear in the suit then ex parte decree dated
26.06.2012 was passed against the defendant/appellant and in pursuance to the
said ex parte decree, the sale-deed got executed by the Trial Court and the
possession over the disputed land was also handed over to the decree
holder/respondent No.1. However, the said ex parte decree dated 26.06.2012
was set-aside by the Court-below vide order dated 31.01.2014 on an application
moved by the present appellant filed under Order IX Rule 13 of the Code of
Civil Procedure but in the meantime, an execution proceeding initiated by
respondent No.1 in which the sale-deed got executed by the Court-below in
favour of respondent No.1 and he was also put in possession over the disputed
land.
5. However, after setting-aside the ex parte decree, written statement
was filed by the defendant/appellant mentioning therein that the
plaintiff/respondent No.1 has never shown any readiness and willingness on his
part. It is also stated in the written statement that as per the terms of the
contract, the remaining amount of Rs.15,00,000/- was to be paid by the plaintiff
to the defendant within the period of three months from the date of agreement,
as such the time was the essence of the contract but remaining amount of
Rs.15,00,000/- was not paid by the plaintiff within the aforesaid period,
therefore, the suit cannot be decreed and it deserves to be dismissed. It is also
stated by the defendant/appellant that the condition for getting the land
demarcated was not the mandatory requirement because in pursuance to
execution of the ex parte decree, the sale-deed got executed without getting the
land demarcated. It is also stated that even after execution of the sale-deed the
plaintiff/respondent No.1 had not deposited the full amount of sale
consideration of Rs.15,00,000/- but deposited only Rs.13,00,000/- in the CCD
which further indicates that the plaintiff was never ready and willing to get his
part done, therefore, the suit deserves to be dismissed.
6. The trial Court on the basis of pleadings of the parties, framed as
many as seven issues; recorded the evidence of the parties and finally decreed
the suit vide impugned judgment and decree dated 14.02.2018 directing the
defendant/appellant to get the disputed land demarcated within the period of
two months from the date of passing the judgment and decree and further
directed that within 15 days from getting the report of demarcation, the plaintiff
would pay the remaining amount of sale consideration i.e. Rs.15,00,000/- to the
defendant/appellant and then the sale-deed will be executed in favour of the
plaintiff/respondent No.1.
7. Learned counsel for the appellant at the time of arguments has
contended that the trial Court erred while decreeing the suit of the plaintiff
holding that he was ready and willing to perform his part of the contract. It is
contended by learned counsel for the appellant that the Court-below ignored the
admission made by respondent No.1 that he did not have the money to
complete the transaction. It is also contended by him that the Court-below has
failed to consider that the time was the essence of the contract and if the
remaining consideration i.e Rs.15,00,000/- was not paid by the plaintiff to the
defendant within the aforesaid period, the decree of specific performance of
contract could not be granted and as such, the Court-below had not exercised
its discretion properly while decreeing the suit of specific performance in favour
of the plaintiff. It is also contended by him that the condition contained in the
agreement to sale (Ex.P/1) casting obligation upon the defendant /appellant to
get the land demarcated before execution of the sale-deed was not the
mandatory condition and the same cannot be read with first part of the
agreement which binds the plaintiff/respondent No.1 to perform his part of the
contract and to pay Rs.15,00,000/- within the period of three months from the
date of agreement and as such, he assailed the impugned judgment and decree
passed by the Court-below and prays that the same be quashed. To reinforce
his stand, learned counsel for the appellant has placed reliance upon the
following judgments:- N.P. Thirugnanam (Dead) by Lrs. Vs. Dr. R. Jagan
Mohan Rao & others, (1995) 5 SCC 115; Jagjit Singh (Dead) Through
Legal Representatives Vs. Amarjit Singh, (2018) 9 SCC 805; Kalawati
(Dead) Through Legal Representatives & others Vs. Rakesh Kumar &
others, (2018) 3 SCC 658; Surinder Kaur (Dead) Through Legal
Representatives Jasinderjit Singh (Dead) Through Legal Representatives
Vs. Bahadur Singh (Dead) Through Legal Representatives, (2019) 8 SCC
575 [Paragraphs 6, 8, 10 to 16]; Ritu Saxena Vs. J.S. Grover & another,
(2019) 9 SCC 132.
8. Learned counsel for the appellant relies on the judgment of Hon'ble
Supreme Court in the case of Jayakantaham and others Vs. Abaykumar,
2017 (3) MPLJ 540 wherein it has been held that relief under Specific Relief Act
is discretionary and Court is not bound to grant relief of specific performance
merely because it is lawful to do so. In the case of P.Shyamala Vs. Gundlur
Masthan, 2023 Livelaw (SC) 151 the Hon'ble Supreme Court in paragraph 7
has held under section 28 of Specific Relief Act, 1963 the Court cannot as a
matter of course, allow extension of time for making payment of balance
amount of consideration in terms of a decree. The Court has to see all the
attendant circumstances including if the vendee has conducted himself in a
reasonable manner under the contract of sale the power and the power under
section 28 of the Specific Relief Act is discretionary and the Court has to pass
an order as the justice may require.
9. Learned counsel for the respondent submits that Trial Court has
correctly decreed the suit of the plaintiff.
10. As per further submission made by learned counsel for the
appellant, he is mainly attacking the impugned judgment and decree pointing out
perversity in the finding given by the trial Court in regard to issue No.3 which
relates to performance of the contract on the part of respondent No.1/plaintiff
whether he had shown his readiness and willingness to perform his part of the
contract?
11. While learned counsel for the respondent submits that they were
ready to perform their part under agreement as held by the Trial Court.
12. The trial Court after appreciating the evidence adduced by the parties
and considering the recital of Ex.P/1, has observed that the time was not the
essence of the contract but the condition casting obligation upon the
defendant/appellant to get the land demarcated was the mandatory one which
entails the performance on the part of the plaintiff/respondent No.1 to pay the
amount of Rs.15,00,000/-. The trial Court further observed that the defendant
since did not get the land demarcated, no adverse inference can be drawn
against the plaintiff for not performing his part of the contract showing his
readiness and willingness to pay the amount of Rs.15,00,000/- within the period
of three months from the date of the agreement and further the trial Court
answered the said issue in paragraph-16 of the judgment saying that in
pursuance to the statement made by the elder brother of the plaintiff (PW/3) that
in the family of the plaintiff, there was a joint business of transportation and they
were operating 20 to 25 trucks jointly and had also paid Rs.10,00,000/- in
advance then it would not be difficult for the appellant to pay the remaining
amount of Rs.15,00,000/- and observed that it was not acceptable that the
plaintiff/respondent No.1 had no arrangement to pay Rs.15,00,000/-.
13. As per the arguments advanced by learned counsel for the appellant
that on a bare perusal of document Ex.P/1, it is clear that the same is in two
parts. In first part, there is a mandatory condition under which the plaintiff was
to pay Rs.15,00,000/-, the remaining amount of total sale consideration to the
defendant/appellant, within the period of three months from the date of sale
agreement and according to the appellant/defendant, this condition very clearly
indicates that the time was the essence of the contract. As per learned counsel
for the appellant, the second condition for getting the land demarcated by the
defendant/appellant was not the mandatory one and that cannot be read together
with condition No.1 and the same should be read separately as the same was an
isolated condition. As per counsel for the appellant, admittedly, even at the time
of execution of the sale-deed in pursuance to the ex parte decree passed, the
plaintiff has deposited only Rs.13,00,000/- in the CCD but not the total
remaining amount of Rs.15,00,000/- which also indicates that the plaintiff did
not perform his part of the contract and, therefore, the finding of the trial Court
showing the readiness and willingness of the plaintiff was erroneous and
perverse.
14. This Court has heard the arguments advanced by learned counsel for
the rival parties and also perused the record.
15. Looking to foundation of the finding given by the Court-below in
paragraph-16 of the judgment wherein the Court-below assigned the reasons
and opined that the plaintiff/respondent No.1 was ready and willing to perform
his part of the contract as he had arrangement to pay Rs.15,00,000/-, in my
opinion is not vulnerable and sustainable for the reason that the same was not
based upon the presumption and assumption as cogent evidence was adduced
by the plaintiff to substantiate that he had arrangement to pay the amount of
Rs.15,00,000/- to the defendant within the period of three months from the date
of agreement. From perusal of Exhibit-P/29, which is copy of Bank Pass Book
entry of Mohd.Sageer, father of plaintiff-Jameer wherefrom it is seen that
between period 01.12.2010 and 31.12.2011 heavy amount has been deposited
and withdrawn. Similar situation is reflected from perusal of Bank Pass Book
(Exhibit-P/30)(Mohd.Sameer s/o Mohd.Sageer) wherein also heavy amount has
been deposited and withdrawn between period 01.12.2010 and 31.12.2011.
From Exhibit-P/31 which is a Bank Pass Book of Sakeel it is seen that between
01.12.2010 to 13.6.2013 and Exhibit-P/32 which is in name of Mohd.Jameer &
Tarana Khan from 30.12.2011 to 03.3.2012 and Exhibit-P/33 of Jameer Khan
for period from 01.2.2010 to 31.12.2011 huge amounts have been withdrawn
and deposited wherefrom two aspects are clear, first that family was doing
business in collectively manner and secondly that when out of total sale
consideration of Rs.25 lacs an amount of Rs.10 lacs was already given in
advance, then it is difficult to infer that plaintiff was not in a position to arrange
balance amount of sale consideration of Rs.15 lacs. Transactions of inward and
outward entries do take place in the accounts of businessmen. There is no
reason for showing of deposit of Rs.15 lacs in the Bank Pass Book of plaintiff
at any particular time, only combined or individual capacity to pay is to be seen
and neither there is such a rule. For the sake of arguments whether it is required
to show that each day balance of Rs.15 lacs is there in the account of plaintiff
or his family members or it is required to show that plaintiff was competent or
having ability to deposit Rs.15 lacs then answer lies in the later proposition.
Even in subsequent events also in Execution Proceedings except the cost of
Rs.2 lacs imposed on the defendant the plaintiff had deposited Rs.13 lacs and
obtained possession by obtaining decree in his favour in respect of suit land.
From this also financial capacity of the plaintiff can be seen or ascertained.
16. This Court does not find substance in the contention made by
learned counsel for the appellant that the condition for getting the land
demarcated was not a mandatory one only on the ground that at the time of
execution of ex parte decree, the Court-below got the sale-deed executed in
favour of respondent No.1/plaintiff and at that time, the defendant/appellant did
not perform his part of the contract and got the land demarcated, therefore, the
plaintiff should have requested the Court that first of all the defendant should
perform his part of agreement regarding demarcation and thereafter execute the
sale-deed and then he would pay the amount of Rs.15 lakhs but in considered
view of this Court simply on the ground that in Trial Court demand for
demarcation was not made is not correct because it was not the duty of the
Trial Court to do so. On the contrary the plaintiff can get the same land
demarcated at any time and if land is found deficient in area then he can seek
legal remedies as permitted in law. Plaintiff had deposited Rs.13 lacs in Court
after seeking Executing Court permission on 23rd July and deposited amount
and filed receipt on 31.7.2012 in executing Court.
17. As per the requirement of Section 16(c) of the Specific Relief Act,
1963 which reads as under:-
"16(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 terms the
performance of which has been prevented or waived
by the defendant.
Explanation.-For the purposes 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."
the plaintiff is under an obligation to plead and prove his readiness and
willingness to perform his part of the contract. Hon'ble Supreme Court in the
case of Kalawati (supra) in paragraph-08 relying upon a judgment reported in
(1996) 4 SCC 526 parties being Acharya Swami Ganesh Dasji Vs. Sita Ram
Thapar, has observed as under:-
"18. In Acharya Swami Ganesh Dassji v. Sita Ram
Thapar-(1996) 4 SCC 526 this Court drew a
distinction between readiness to perform the
contract and willingness to perform the contract. It
was observed that by readiness it may be meant the
capacity of the plaintiff to perform the contract
which would include the financial position to pay
the purchase price. As far as the willingness to
perform the contract is concerned, the conduct of
the plaintiff has to be properly scrutinised along
with the attendant circumstances. On the facts
available, the Court may infer whether or not the
plaintiff was always ready and willing to perform
his part of the contract. It was held in para 2 of the
Report: (SCC p. 528)
"2. There is a distinction between readiness to
perform the contract and willingness to perform the
contract. By readiness may be meant the capacity of
the plaintiff to perform the contract which includes
his financial position to pay the purchase price.
For determining his willingness to perform his part
of the contract, the conduct has to be properly
scrutinised. ... The factum of readiness and
willingness to perform the plaintiff's part of the
contract is to be adjudged with reference to the
conduct of the party and the attending
circumstances. The court may infer from the facts
and circumstances whether the plaintiff was ready
and was always ready and willing to perform his
part of the contract. The facts of this case would
amply demonstrate that the petitioner/plaintiff was
not ready nor had the capacity to perform his part
of the contract as he had no financial capacity to
pay the consideration in cash as contracted and
intended to bide for the time which disentitles him
as time is of the essence of the contract."
The Supreme Court in the case of Ritu Saxena (supra) while dealing
with the material produced by the plaintiff to show his readiness and willingness
has observed that the statement of the plaintiff and his witnesses in the nature of
ipse dixit and without support of any corroborating evidence is not enough to
show the financial condition to perform his part of the contract. The Supreme
Court in the case of Ritu Saxena (supra) has observed as under:-
"15. Coming to the facts of the present case, the sole
document relied upon by the appellant to prove her
readiness and willingness is the approval of loan on
30-7-2004 by ICICI. Such approval was subject to two
conditions viz. furnishing of income tax documents of
the appellant and the property documents. M/s ICICI
has sent an email on 12-5-2005 to the husband of the
appellant requiring an agreement to sell on a stamp
paper of Rs 50 to be executed between the parties, as
per the legal opinion sought from the empanelled
lawyer, without which ICICI will not be able to
disburse the loan. Admittedly, no agreement was
executed on stamp paper, therefore, the appellant
could not avail loan of Rs 50 lakhs from ICICI.
Independent of such loan, there is mere statement that
the appellant and her husband have income of Rs 80
lakhs per annum unsupported by any documentary
evidence. Such statement will be in the nature of ipse
dixit of the appellant and/or her husband and is
without any corroborating evidence. Such self-serving
statements without any proof of financial resources
cannot be relied upon to return a finding that the
appellant was ready and willing to perform her part
of the contract. The appellant has not produced any
income tax record or the bank statement in support of
her plea of financial capacity so as to be ready and
willing to perform the contract. Therefore, mere fact
that the bank has assessed the financial capacity of
the appellant while granting loan earlier in respect of
another property is not sufficient to discharge of
proof of financial capacity in the facts of the present
case to hold that the appellant was ready and willing
to perform her part of the contract. Such is the finding
recorded by both the courts below as well."
18. In the present case, the plaintiff produced copies of Bank
Passbooks Exhibit-P/29 (Mohd.Sageer, father), Exhibit-P/30 (Mohammad
Samaeer, brother), Exhibit-P/21 (Shakeel Khan, brother) & Exhibit-P/32 Jameer
& Tarana Khan & Exhibit P/33 (Mohd.Jameer Khan) as evidence alongwith the
oral evidence to substantiate his readiness, willingness and his financial capacity
to pay the remaining sale consideration of Rs.15,00,000/-. He has also
produced copies of bank passbooks statements of his family on the basis of
which, the trial Court has correctly held in paragraph-16 of the judgment that it
was not difficult for the plaintiff to pay Rs.15,00,000/-. Thus, this Court has no
ground to hold that Trial Court did not correctly give finding on readiness and
willingness of plaintiff on his part under Agreement (Exhibit-P/1). The Supreme
Court in the case of Surinder Kaur (supra) has observed as under:-
"6. The aforesaid provisions have to be read along
with Section 16(c) of the Specific Relief Act, 1963
which clearly lays down that the specific
performance of a contract cannot be enforced in
favour of a person who fails to prove that he has
performed or was always ready and willing to
perform the essential terms of the contract which
were to be performed by him.
7. We shall also have to take into consideration
that the specific performance of contract of an
immovable property is a discretionary relief in
terms of Section 20 of the Specific Relief Act as it
stood at the time of filing of the suit.
8. Section 20 of the Specific Relief Act lays
down that the jurisdiction to decree a suit for
specific performance is a discretionary jurisdiction
and the court is not bound to grant such relief
merely because it is lawful.
9. The first issue is whether the promises were
reciprocal promises or promises independent of
each other. There can be no hard-and-fast rule and
the issue whether promises are reciprocal or not
has to be determined in the peculiar facts of each
case. As far as the present case is concerned, the
vendor, who was a lady received less than 20% of
the sale consideration but handed over the
possession to the defendant, probably with the hope
that the dispute would be decided soon, or at least
within a year. Therefore, Clause 3 provided that if
the case is not decided within one year, then the
second party shall pay to the first party the
customary rent for the land. It has been urged by
the respondents that the High Court rightly held
that this was not a reciprocal promise and had
nothing to do with the sale of the land. One cannot
lose sight of the fact that the land had been handed
over to Bahadur Singh and he had agreed that he
would pay rent at the customary rate. Therefore,
the possession of the land was given to him only on
this clear-cut understanding. This was, therefore, a
reciprocal promise and was an essential part of the
agreement to sell.
10. Admittedly, Bahadur Singh did not even pay
a penny as rent till the date of filing of the suit.
After such objection was raised in the written
statement, in replication filed by him, he instead of
offering to pay the rent, denied his liability to pay
the same. Even if we were to hold that this promise
was not a reciprocal promise, as far as the
agreement to sell is concerned, it would definitely
mean that Bahadur Singh had failed to perform his
part of the contract. There can be no manner of
doubt that the payment of rent was an essential
term of the contract. Explanation (ii) to Section
16(c) clearly lays down that the plaintiff must prove
performance or readiness or willingness to perform
the contract according to its true construction. The
only construction which can be given to the
contract in hand is that Bahadur Singh was
required to pay customary rent.
11. It has been urged that no date was fixed for
payment of rent. Tenancy can be monthly or yearly.
At least after expiry of one year, Bahadur Singh
should have offered to pay the customary rent to the
vendor which could have been monthly or yearly.
But he could definitely not claim that he is not
liable to pay rent for 13 long years.
12. The learned counsel for the respondents
urged that in case of non-payment of rent the
plaintiff was at liberty to file suit for recovery of
rent. We are not impressed with this argument. A
party cannot claim that though he may not perform
his part of the contract he is entitled to specific
performance of the same.
13. Explanation (ii) to Section 16(c) of the
Specific Relief Act lays down that it is incumbent on
the party, who wants to enforce the specific
performance of a contract, to aver and prove that
he has performed or has always been ready and
willing to perform the essential terms of the
contract. This the plaintiff miserably failed to do
insofar as payment of rent is concerned.
14. A perusal of Section 20 of the Specific
Relief Act clearly indicates that the relief of
specific performance is discretionary. Merely
because the plaintiff is legally right, the court is
not bound to grant him the relief. True it is, that the
court while exercising its discretionary power is
bound to exercise the same on established judicial
principles and in a reasonable manner. Obviously,
the discretion cannot be exercised in an arbitrary
or whimsical manner. Sub-clause (c) of sub-section
(2) of Section 20 provides that even if the contract
is otherwise not voidable but the circumstances
make it inequitable to enforce specific
performance, the court can refuse to grant such
discretionary relief. Explanation (2) to the section
provides that the hardship has to be considered at
the time of the contract, unless the hardship is
brought in by the action of the plaintiff."
19. Although in notice i.e Ex.P/4 dated 24.10.2011, he has asked the
defendant to perform his part to get the land demarcated and then execute the
sale-deed but in the said notice even there was no reference of readiness of the
plaintiff that he had an arrangement of Rs.15,00,000/-. But despite the notice
served upon respondent No.1, he did not turn up or replied to contest the case
there.
The Supreme Court in the case of Jagjit Singh (supra) has observed as
under:-
"4. It is settled law that a plaintiff who seeks specific
performance of contract is required to plead and
prove that he was always ready and willing to perform
his part of the contract. Section 16(c) of the Specific
Relief Act mandates that the plaintiff should plead and
prove his readiness and willingness as a condition
precedent for obtaining relief of grant of specific
performance. As far back as in 1967, this Court in
Gomathinayagam Pillai v. Palaniswami Nadar
[Gomathinayagam Pillai v. Palaniswami Nadar,
(1967) 1 SCR 227 : AIR 1967 SC 868] held that in a
suit for specific performance the plaintiff must plead
and prove that he was ready and willing to perform
his part of the contract right from the date of the
contract up to the date of the filing of the suit. This
law continues to hold the field and it has been
reiterated in J.P. Builders v. A. Ramadas Rao [J.P.
Builders v. A. Ramadas Rao, (2011) 1 SCC 429 :
(2011) 1 SCC (Civ) 227] and P. Meenakshisundaram
v. P. Vijayakumar [P. Meenakshisundaram v. P.
Vijayakumar, (2018) 15 SCC 80 : (2018) 5 Scale 229].
It is the duty of the plaintiff to plead and then lead
evidence to show that the plaintiff from the date he
entered into an agreement till the stage of filing of the
suit always had the capacity and willingness to
perform the contract."
20. In the case of Shankarlal Bijreja (supra), the High Court of
Chhattisgarh while dealing with the similar issue has also observed that since
there was no forfeiture clause in the agreement and it is found that the plaintiff
failed to prove his readiness and willingness and it is settled law that in proper
cases where specific performance is refused, the Court may direct refund of
amount which has been paid by the plaintiff even though it is not claimed in the
plaint.
21. In the result for the reasons and discussion in the judgment as
above, the capacity of plaintiff to pay rest amount of Rs.15 lacs and his
readiness and willingness is proved and it is seen that defendant did not perform
his part of agreement to get the land demarcated. It is seen that he did not
properly respond to the notice in Executing Court as it seems he was busy in
his other personal works, as mentioned in order dated 31.1.2014 passed in
Misc.Case No.87/2012 [T.P.G.Pillay Vs. Jameer Khan] by 08th Additional
District Judge, Jabalpur which is attached with the file of Trial Court and can be
taken note of as part of record of the Trial Court wherein he had pleaded that
demarcation could not take place due to rains and between 04.11.2011 to
17.12.2011 he was in Kerala Home Town where he got ill and when he returned
to Jabalpur thereafter his son got ill between 06.3.2012 to 05.5.2012 and he
again went to Kerala and got seriously ill. In paragraph 08 of the order it is
reflected that as per submission of appellant his son tore the treatment papers.
22. Alongwith covering memo before this Court the counsel for the
appellant Shri A.K.Jain has filed photocopy of FIR in Malyalam and translated
in English which shows that his son-Santosh was missing.
23. Therefore, in view of aforesaid analysis no interference can be made
in judgment and decree dated 14.2.2018 and accordingly, the appeal filed by
the appellant/defendant is dismissed and the judgment of Trial Court is
maintained. The appellant may withdraw Rs.10 lacs deposited by him in the
Executing Court.
(AVANINDRA KUMAR SINGH)
JUDGE
RM
