Telangana High Court

Rameeza Begum vs Matcha Lakshmaiah on 3 June, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

      THE HONOURABLE DR.JUSTICE G. RADHA RANI

                   SECOND APPEAL No.219 of 2010

JUDGMENT:

This Second Appeal is filed by the appellants - appellants - defendants

aggrieved by the judgment and decree dated 14.09.2009 passed in A.S.No.54 of

2007 by the I Additional District Judge, Khammam, confirming the judgment

and decree dated 27.06.2007 passed in O.S.No.18 of 1998 by the Senior Civil

Judge, Khammam.

2. The respondent is the plaintiff.

3. The parties are hereinafter referred as arrayed before the trial court as

plaintiff and defendants.

4. The plaintiff filed the suit for specific performance basing on an

agreement of sale dated 25.09.1995. The case of the plaintiff was that one

Shaik Saida Bee was the owner of the suit schedule plot measuring about 120

square yards situated at Narsimha Swamy Temple Road, Khammam Town,

Khammam District. The said house plot was bounded by house of the plaintiff

on the east, the house of Shaik Chand, S/o. of Shaik Saida Bee and the house of

one Ramulu bearing Municipal No.11-1-92 towards west and bounded on north

and south by municipal roads. The defendant No.6 was the wife of late Shaik

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Chand and the defendants 1 to 5 were the daughters of Shaik Chand and

defendant No.7 was the husband of Shaik Saida Bee. The plaintiff entered into

an agreement with Smt. Saida Bee alias Sultan Begum, W/o. Shaik Karnal on

25.09.1995 to purchase the suit schedule property @ Rs.1,500/- per square yard.

The plaintiff paid an amount of Rs.10,000/- on 25.09.1995. On receipt of

Rs.10,000/-, the defendants executed an agreement of sale in favor of the

plaintiff agreeing to execute a valid registered sale deed after receipt of

remaining balance consideration. The plaintiff also paid Rs.500/- to Shaik

Moulali, Brother of Shaik Saida Bee on 21.10.1995, who endorsed the receipt of

the same on the agreement. The agreement of sale deed was executed before

Shaik Moulali, Brother of Shaik Saida Bee. The said document was scribed by

one Mohd.Azharuddin, a document writer of Khammam. Shaik Saida Bee was

having only one son by name Shaik Chand and he died in the year 1994. After

his death, defendant No.6 left the house of Shaik Saida Bee. Shaik Saida Bee

alone was residing in the house. Since the suit schedule property was the self

acquired property of Saida Bee, she alone had got right over the same. The

plaintiff got issued a public notice in Eenadu Telugu Daily on 23.10.1995

through his counsel Sri K.Uttam Kumar, Khammam calling for objections from

any person. The plaintiff's counsel received a notice from Sri P.Amarchand,

advocate, Khammam dated 26.10.1995 issued under the instructions of

defendants 1 to 5 alleging that the suit schedule property was gifted by late

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Shaik Saida Bee in favor of defendants 1 to 5 and that the said gift deed was

oral and late Saida Bee also executed a gift deed dated 28.04.1994 in favor of

defendants 1 to 5 and contended that Shaik Saida Bee had no right over the suit

schedule property and that they also filed O.S.No.452 of 1995 and I.A.No.903

of 1995 against Saida Bee not to alienate the property. The plaintiff got issued a

reply notice through his counsel requesting him to furnish the photostat copy of

the alleged gift deed said to have been executed by Shaik Saida Bee and the

copies of the plaint and petition in I.A.No.903 of 1995. The same was served

on the advocate for defendants 1 to 7 on 28.11.1995. The plaintiff also got

issued a legal notice to Shaik Saida Bee on 24.11.1995 calling upon her to make

clear whether the alleged gift deed through which defendants 1 to 5 were

claiming ownership over the suit schedule property was true or not and calling

upon Shaik Saida Bee to execute a registered sale deed in favor of the plaintiff

by receiveing the balance sale consideration within ten days. The said legal

notice was returned un-served stating that Saida Bee was not available in the

house. The advocate for defendants 1 to 5 had also not supplied any photostat

copies of the plaint or the alleged gift deed. The enquiries made by the plaintiff

revealed that late Saida Bee had not executed any such document in favor of

defendants 1 to 5 and that Shaik Saida Bee also contested the suit in O.S.No.452

of 1995 stating that she had not executed any such document in favor of

defendants 1 to 5 and the said document was false and created by defendants 1

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to 5 and 6 and also stated that defendant No.6 was harassing her, as such she

shifted her residence from her house to the house of her brother Shaik Moulali.

4.1. The plaintiff further stated that he asked Saida Bee to execute a registered

sale deed in his favor, but Saida Bee postponed the exectuion of registered sale

deed on the pretext that the suit was pending and after completion of the said

suit, she would execute a valid registered sale deed. But during the pendency of

the said suit, Saida Bee died on 23.08.1996. The plaintiff further stated that he

filed a petition to implead himself in O.S.No.452 of 1995 vide I.A.No.1020 of

1996, but the said suit was dismissed as no steps were taken within 90 days to

bring the legal representatives of Saida Bee on rcord. The petition filed by the

plaintiff was also dismissed on 12.02.1997. The defendants 1 to 5 filed

I.A.No.604 of 1997 for restoration of the suit, but the said petition was also

dismissed by the Principal District Munsiff of Khammam.

4.2. The plaintiff further submitted that he several times demanded defendants

1 to 7 as legal representatives of Saida Bee to execute a valid registered sale

deed in his favor. But the defendants were evading to execute the same. As

such, the plaintiff was constrained to file the suit.

5. The defendant No.7, husband of Shaik Saida Bee remained ex-parte.

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6. The defendants 1 to 6 filed written statement denying the petition

averments. They admitted the relationship inter-se between them. They

contended that late Saida Bee had only one son by name Shaik Chand. Shaik

Chand died in the year 1992, whereas Saida Bee died on 23.08.1996. Late

Shaik Chand had five daughters and one son. The daughters were made as

parties to the suit as defendants 1 to 5, but the only son of Shaik Chand by name

John Pasha was not made as a party to the proceedings. They admitted that late

Saida Bee was the absolute owner of the property, but contended that she

executed a gift deed of the suit schedule property in favor of defendants 1 to 5

and in favor of her grand son by name John Pasha. They submitted that late

Saida Bee was the absolute owner of the house bearing Nos.11-1-85 and 11-1-

86 situated at Sreeramnagar Colony, NSP Road, Khammam. As per the

municipal records, she gifted both the said two houses through hiba (oral gift).

The hiba was accepted by defendant No.6 on behalf of her minor son by name

John Pasha. The donee was in possession of the property given to him through

gift by late Saida Bee. The oral gift was confirmed by document dated

26.11.1994. A plan was also enclosed to the document executed by late Shaik

Saida Bee. Likewise, late Saida Bee executed a gift deed in favor of defendants

1 to 5 of the house bearing Nos.11-1-103 and 11-1-104 situated at Sreeramnagar

Colony, NSP Road, Khammam. The defendant No.6, who was the mother and

guardian received the hiba on behalf of her minor children for their interest and

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welfare. The donees were in possession and enjoyment of the said properties

gifted in their favor. The oral gift was confirmed by the document dated

26.11.1994 by the donor. John Pasha was also a proper and necessary party to

the suit. The proceedings in the suit were not maintainable without him. They

further submitted that defendant No.6 filed O.S.No.452 of 1995 on the file of

Principal Junior Civl Judge, Khammam seeking perpetual injunction when late

Saida Bee at the instigation of her brother Moulali and the wife of Moulali tried

to alienate the property to third parties. To safeguard the interest of the minors,

the defendant No.6 filed the suit. Thereafter, on knowing about the filing of the

suit late Saida Bee realized the malafide intention of her brother Moulali and his

wife and resided with her daughter-in-law and her grand children. The brother

of late Saida Bee in collusion with his wife along with his henchmen by name

T.Madhava Rao, created the alleged agreement of sale with one Macha

Laxmaiah (the plaintiff herein) on 25.09.1995. No document was executed by

Saida Bee. The alleged agreement of sale was forged and fabricated. No

consideration was received by late Saida Bee. The stamped document was

purchased by Macha Laxmaiah on 02.09.1995. But, the alleged agreement of

sale was executed on 25.09.1995. There was no explanation for the delay in

executing the document. The attestors of the documents were the henchmen of

the vendee. The suit schedule property was adjacent to the house of Macha

Laxmaiah, as such it was executed conveniently and prayed to dismiss the suit.

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7. Basing on the said pleadings, the trial court framed the issues as follows:

i) Whether the plaintiff is entitled for specific performance of agreement of sale

as prayed by him?

ii) To what relief?

8. On behalf of the plaintiff, PWs.1 to 5 were examined and Exs.A1 to A14

were marked. On behalf of the defendants, DWs. 1 to 5 were examined and

Exs.B1 to B3 were marked.

9. On considering the oral and documentary evidence on record, the trial

court decreed the suit directing the defendants to execute a regular sale deed in

favor of the plaintiff within two months by receiving the balance sale

consideration at the expense of the plaintiff. The trial court observed that the

plaintiff proved the agreement of sale by examining himself as PW.1 and by

examining the scribe of Ex.A1 as PW.2 and the person, who identified the

signature of the attestor of Ex.A1 as PW.3 and the person who spoke with

regard to the transaction as PW.4 and filed the evidence affidavit of the husband

of Shaik Saida Bee shown as defendant No.7 as PW.5. The trial court also

observed that PW.5 did not appear for cross-examination. As such, his chief-

examination would not be taken into consideration. The trial court observed

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that Shaik Moulali, who was the brother of Shaik Saida Bee was one of the

attestors of Ex.A1 and the persons relating to Shaik Saida Bee were also

supporting Ex.A1 except defendants 1 to 6. The trial court also held that the

defendants 1 to 6 failed to prove the gift deeds and the suit filed by defendants 1

to 6 vide O.S.No.452 of 1995 was also dismissed and no relief was obtained by

defendants 1 to 6 basing on the alleged gift deeds. The trial court also raised

suspicion over the gift deeds marked under Exs.B2 and B3, as they were dated

28.04.1994, but were filed before the Court on 23.10.2006 and 01.02.2007

respectively, though the suit was of the year 1998.

10. With regard to the aspect of "readiness and willingness" on behalf of the

plaintiff, the trial court observed that the plaintiff got issued legal notice to

Shaik Saida Bee calling upon her to execute the sale deed by receiving balance

sale consideration, but the same was returned un-served as can be seen from

Exs.A5 and A6 and Shaik Saida Bee died within 11 months from the date of

execution of the sale agreement, as such there was "readiness and willingness"

on behalf of the plaintiff to get the sale deed registered.

11. Aggrieved by the above judgment and decree passed by the learned

Senior Civil Judge, Khammam, the defendants preferred an appeal. The appeal

was heard by the I Additional District Judge, Khammam. Vide judgment and

decree in A.S.No.54 of 2007 dated 01.09.2009, the First Appellate Court

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dismissed the appeal confirming the judgment and decree passed by the trial

court in O.S.No.18 of 1998 dated 27.06.2007.

12. Aggrieved by the concurrent findings of the courts below in decreeing the

suit, the defendants preferred this Second Appeal raising the following

substantial questions of law:

i) Whether the memorandum of gift requires registration when a oral gift is

evidenced by written memorandum?

ii) Whether a suit for specific performance is maintainable in the absence of

minor title holder being made as a party to the suit?

iii) Whether the suit could be decreed by disbelieving Ex.B2 gift deed on the

reasoning that there was a discrepancy with regard to the description of the

donee as stated in the written statement as deposed by DW.3 especially in the

absence of there being no dispute about the identity of son of defendant No.1.?

iv) Whether the factum of delivery of possession under Ex.B2 gift deed was

established by examination of DWs.3 and 4 attestors?

13. This Court on 23.08.2010 admitted the Second Appeal on the substantial

questions of law raised in the memorandum of grounds of appeal.

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14. Subsequently, learned counsel for the appellants filed I.A.No.1 of 2023

seeking leave to raise an additional ground as whether the suit for specific

performance could be decreed in the absence of plaintiff proving the "readiness

and willingness" to perform the contract under agreement of sale marked as

Ex.A1 dated 25.09.1995 in the light of Section 16(c) of the Specific Relief Act,

1963 and also the law laid by the Hon'ble Apex Court in U.N.Krishnamurthy

(Since deceased) through LRs. v. A.M.Krishnamurthy 1 and Shenbegam and

Others v. K.K.Rathinavel 2. The said petition is ordered along with the

judgment in this Second Appeal.

15. Heard Sri M.V.S.Suresh Kumar, the learned Senior Counsel representing

on behalf of Sri Aravala Srinivasa Rao, learned counsel for the appellants on

record and Miss Rama Swetha, learned counsel representing on behalf of Sri

Kowturu Pawan Kumar, learned counsel for the respondent on record.

16. Learned Senior Counsel for the appellants asked to ignore the other

substantial questions of law raised by him in the grounds of appeal except the

one raised in I.A.No.1 of 2023.

17. Learned Senior Counsel for the appellants submitted that he was giving

up his contentions with regard to the gift deed. No evidence was adduced by

2022 SCC Online SC 840

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the respondent - plaintiff with regard to his financial capacity as per the

statutory requirement under Section 16(c) of the Specific Relief Act, 1963. The

documents marked under Exs.A1 to A14 would not show his "readiness and

willingness" to pay the balance sale consideration. No Income Tax returns or

the bank statements of the respondent - plaintiff were filed. Only by paying an

amount of Rs.10,000/-, the trial court as well as the First Appellate Court,

decreed the suit. The trial court referred only to Ex.A5 notice to consider that

the plaintiff was ready and willing to perform his part of the contract. The First

Appellate Court confirmed the said finding even without referring to Ex.A5.

There was no discussion on "readiness and willingness" by both the courts

below and relied upon the judgments of the Hon'ble Apex Court in Shenbegam

and Others v. K.K.Rathinavel (cited supra) and U.N. Krishnamurthy (Since

deceased) through LRs. v. A.M. Krishnamurthy (cited supra).

18. Learned counsel for the respondent on the other hand contended that no

plea was taken by the appellants - defendants with regard to the financial

capacity of the plaintiff. The defences taken by the appellants - defendants were

only with regard to non-joinder of necessary parties and that the gift deed was

executed by Shaik Saida Bee in their favor and that they were in possession of

the suit schedule property. As such, no issue was framed by the trial court. The

First Appellate Court gave a finding on all the above three issues. When the

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trial court gave a specific finding with regard to "readiness and willingness"

there could not be any substantial question of law arising out of it. The aspect

of issuing legal notice to the vendor of the respondent - plaintiff would prove

his "readiness and willingness". The same could not be served on Shaik Saida

Bee, but the conduct of the plaintiff could be observed. The plaintiff filed an

implead petition in O.S.No.452 of 1995 to contest the suit filed by the

appellants, but the said suit was dismissed as abated. He also approached the

legal heirs of Shaik Saida Bee, the appellants - defendants herein to execute a

registered sale deed by receiving balance sale consideration but in vain. She

relied upon the judgment of the Hon'ble Apex Court in Gaddipati Divija and

Another v. Pathuri Samrajyam and Others 3. She further contended that

there was no challenge by the appellants on the aspect that the plaintiff was not

having financial capacity, which would amount to admission. The respondent -

plaintiff was a doctor. His wife was a lecturer. The defendants never denied the

execution of agreement of sale. Their only contention was that it was an un-

stamped and un-registered document, which was over-ruled by the courts

below. There was no elaborate finding on Section 16(c) of the Specific Relief

Act, 1963. When the agreement of sale was admitted by the vendor in another

suit filed against her, the same would need to be considered. It was not the

phraseology, but the letter and spirit under Section 16(c) of the Specific Relief

Civil Appeal No.4206-4207 of 2011 dated 18.04.2023

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Act, 1963, which were important. The defendants who were standing in the

shoes of the vendor had an obligation to honor the contract. No substantial

question of law was involved and prayed to dismiss the Second Appeal.

19. Now, the only substantial question of law which needs to be considered

in this Second Appeal is whether the suit for specific performance could be

decreed in the absence of the plaintiff proving the "readiness and willingness" to

perform his part of the contract under the agreement of sale marked as Ex.A1

dated 25.09.1995.

20. As seen from the pleadings, the respondent - plaintiff pleaded in the

plaint at Para No.11 that he was always ready and willing to make the payment

of the remaining balance sale consideration to late Saida Bee and after her death

to defendants 1 to 7 and to get a valid registered sale deed. But the defendants

were intentionally evading since the value of the suit schedule property had

been increased to a little extent. The defendants in their written statement had

not taken any plea that the plaintiff was not having any financial capacity. No

issue was framed by the trial court with regard to the financial capacity of the

plaintiff. As such, no evidence was adduced by the parties on the said aspect.

21. The Hon'ble Apex Court in Shenbegam and Others v. K.K. Rathinavel

(cited supra), held that:

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"29. All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed to frame an issue on whether the respondent-plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to indicate his willingness to perform the contract. The trial court merely adverted to "document produced on behalf of the plaintiff"

and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails to analyse the terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant."

22. In the present case also, the trial court framed only two issues: i) Whether

the plaintiff is entitled for specific performance of agreement of sale as prayed

by him and ii) To what relief? No issue on "readiness and willingness" was

framed by the trial court. Only on considering the notice marked as Ex.A5

dated 24.11.1995 issued by the plaintiff to Shaik Saida Bee, the trial court came

to the conclusion that there was "readiness and willingness" on the part of the

plaintiff to get the sale deed registered. Admittedly, the said notice was not

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served on Shaik Saida Bee. As per the agreement of sale dated 25.09.1995,

Shaik Saida Bee agreed to sell the schedule property of vacant land of 120

square yards @ Rs.1,500/- per square yard and received an amount of

Rs.10,000/- by way of cash on the said date and agreed to get the land

measured, which was in between both the roads and to receive the balance sale

consideration within one month and to register the said land at the cost of the

plaintiff. The plaintiff got issued a public notice in Eenadu Telugu daily calling

for objections from any party with regard to the said sale on 23.10.1995, marked

under Ex.A2. He received a legal notice from the defendants on 26.10.1995

stating that a suit was filed by them vide O.S.No.452 of 1995 against Shaik

Saida Bee seeking for perpetual injunction and that they also filed I.A.No.903

of 1995 in the said suit and status quo was ordered to be maintained with

respect to the property gifted in favor of the defendants.

23. Thus, the plaintiff could not pay the balance sale consideration within one

month as reportedly a suit was filed by the defendants 1 to 6 against his vendor

Shaik Saida Bee. The documents filed by him marked under Ex.A7 would

prove that the plaintiff tried to implead himself as a necessary party in

O.S.No.452 of 1995. It was also stated in the said petition that he learnt about

the counter filed by Saida Bee in I.A.No.903 of 1995 that she entered into an

agreement of sale of the property with the petitioner and also denied the

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execution of alleged gift deed dated 28.04.1994. The said counter filed by Smt.

Shaik Saida Bee was also marked as Ex.A10. The vendor Saida Bee denied

about any oral gift deed in favor of the defendants and stated that the mother of

the petitioners - plaintiffs therein bore grudge against her and even went to an

extent of beating her many a times. She having no other income to meet her

medical needs and for her daily needs, intended to sell the place measuring 120

square yards out of house bearing Municipal No.11-1-86 in favor of Macha

Laxmaiah (the plaintiff herein) and entered into an agreement of sale in respect

of the referred land on 25.09.1995 and also received an amount of Rs.10,000/-

towards advance. She also contended that the mother of the petitioners -

plaintiffs therein filed the suit by fabricating the documents with the help of her

henchmen.

24. Thus, the terms of the agreement and the conduct of the parties also need

to be looked into while deciding this issue.

25. The Hon'ble Apex Court in Gaddipati Divija and Another v. Pathuri

Samrajyam and Others (cited supra) held that:

''27. In Syed Dastagir vs T.R. Gopalakrishna Setty [(1999) 6 SCC 337], it was held, "the language in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So, the compliance

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of "readiness and willingness" has to be in spirit and substance and not in letter and form."

28. In Aniglase Yohannan vs Ramlatha & Ors. [(2005) 7 SCC 534], this Court held:-

"11. Lord Campbell in Cort v. Ambergate, Nottingham and Boston and Eastern Junction Rly. Co. [(1851) 117 ER 1229 : 17 QB 127] observed that in common sense the meaning of such an averment of readiness and willingness must be that the non- completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it, had it not been renounced by the defendant.

12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."

30. In light of the aforementioned Aniglase Yohannan judgment (supra), and as held by the High Court, the primary requirement to seek relief under Section 16 (c) of the Act is that the Plaintiff was ever ready and willing to perform his part of the contract. It is clear from the facts of the case at hand that the Plaintiff (Respondent No. 1 herein) was ever ready and willing to pay the balance sale consideration. In the sale agreement, it was clearly mentioned that within three months the deceased G. Venugopala Rao will get the suit schedule

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property measured and demarcated and the Plaintiff (Respondent No. 1 herein) shall pay the balance sale consideration. It appears that, at first, the deceased G. Venugopala Rao while agreeing to sell 90 cents of land, concealed that he is the owner of only 50 cents of the land. Subsequently, he failed to measure and demarcate the land. On the other hand, the Plaintiff (Respondent No. 1 herein), from the outset, has been clear and blemishless in his conduct. She had paid the advance sale consideration of Rs. 4,00,000/-. When the deceased G. Venugopala Rao failed to measure and demarcate the land, the question of the Plaintiff (Respondent No. 1 herein) paying the balance sale consideration does not arise. However, even then the averments of the Plaintiff, her conduct and the testimony of her husband show that the Plaintiff, since the signing of the sale agreement, was ever ready and willing to pay the balance consideration.''

26. The Hon'ble Apex Court also considered the history of the provision of

Section 16(c) of the Specific Relief Act, 1963 and observed that:

''25. Before delving further into the discussion of Section 16 (c) of the Act, we would like to trace a bit of history of the said provision. The old Specific Relief Act of 1877 did not contain any express provision regarding the averment of readiness and willingness as being necessary in a suit for specific performance, but this was the law of the land. As early as 1928, Their Lordships of the Privy Council in Ardeshir H. Mama vs Flora Sassoon [AIR 1928 PC 208], while taking note of the fact that there was an absence of an express provision in Indian law regarding readiness and willingness, held that the

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requirements of Indian and English law in this matter are the same.

26. In the present case, the High Court while discussing Section 16 (c) of the Specific Relief Act, 1963 (hereinafter referred to as 'Act'), observed that it is necessary for the Plaintiff to perform his part of the contract from the date of contract till the date of hearing. The High Court also stated that it is fairly well settled that mere stipulation of time would not make time the essence of the contract and in case of sale of immovable property normally the time may not be essence of the contract. It was also stated that the explanation to Section 16(c) of the Act provides that there must be pleading by the Plaintiff that he was always ready and willing to perform his part of contract. The High Court then noted that a specific plea was taken by the Plaintiff in her plaint that she was ready and willing to perform her part of the contract. Moreover, PW1 (Plaintiff's husband who testified on her behalf) categorically stated that he and the Plaintiff were ever ready to perform their part of contract with regard to the payment of the balance sale consideration, but the Defendants failed to perform their part of the obligations. At this juncture, the High Court took note of a very crucial fact that the aforementioned part of the evidence (with regard to the Plaintiff's readiness and willingness) was not challenged by the counsel appearing for Defendant No.s 1 to 3 in the Trial Court, and when a fact has been stated by witness and the same has not been challenged, it can be said that such a fact is admitted.

The Hon'ble Apex Court further held that:

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''The 2018 Amendment was not a mere procedural enactment, but it had substantive principles built into its working, and, as such, the said Amendment is prospective in nature and cannot apply to those transactions that took place prior to its enforcement. Therefore, in the present case, Section 16, as it stood prior to the 2018 Amendment, would be applicable, since the matter dates back to 2002. Section 16 (as it then stood) is being reproduced hereunder:-

''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 of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

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;

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(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

24. On a bare perusal of the aforementioned section, it becomes clear that prior to the 2018 Amendment, clause (c) of Section 16 laid down that the plaintiff is entitled for a specific performance of contract if he avers and proves that he has performed or has always been ready and willing to perform his obligation under the contract. The explanation attached to clause (c) further clarified that in a contract involving the payment of money, the plaintiff need not actually deposit the money to the defendant, and that he must aver that he has performed, or is ready and willing to perform the contract according to its true construction."

27. The Hon'ble Apex Court in U.N. Krishnamurthy (Since deceased)

through LRs. v. A.M. Krishnamurthy (cited supra), held that:

"21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/-.

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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.

43. In Saradamani Kandappan v. S.Rajalakshmi [(2011) 12 SCC 18], this Court reiterated that (i) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored; (ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a

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suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.''

28. A 3-Judge Bench of the Hon'ble Apex Court in Katta Sujatha Reddy v.

M/s. Siddamsetty Infra Projects Private Limited and Others 4 while

referring to its earlier judgment in Chand Rani v. Kamal Rani 5 reiterated that

in the case of sale of immovable property, there was no presumption as to time

being the essence of the contract. The Court may infer that it is to be performed

in a reasonable time if the conditions are evident (1) from the express terms of

the contract; (2) from the nature of the property; and (3) from the surrounding

circumstances.

29. As the surrounding circumstances in the present case would disclose that

due to the filing of O.S.No.452 of 1995 by the defendants 1 to 6 against the

vendor of the plaintiff Shaik Saida Bee, the balance sale consideration could not

be paid by the plaintiff and the contract could not be concluded and there was