Judgment: Non-Reportable
Judgment: Non-Reportable
BHAVYANATH REPRESENTED BY
POWER OF ATTORNEY HOLDER … APPELLANT(S)
VERSUS
J U D G M E N T
K.M. JOSEPH, J.
Digitally signed by
ASHA SUNDRIYAL
Date: 2019.09.12
16:32:46 IST
Reason:
as per their status shown in the plaint before the
trial Court.
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THE AGREEMENT
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even before the stipulated date for which the defendant
is ready.
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i.e. on 16.03.2008 (it may be noticed that reply notice
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states that he wished to construct residential house
future as well.
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that he was always ready and willing to perform his
was not ready and willing and he was not ready with the
funds.
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the suit may not have much evidentiary
value."
paragraph 12:
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"12. Plaintiff has given clear evidence to
the effect that he had sufficient money with
him for completing his part. As already
stated by him, he did not carry the ready
cash with him through out the period of the
agreement. The total amount o f consideration
comes to Rs.25,67,000/-, even if the extent
is taken as 75 3/4 cents. It is contended
that plaintiff was only a student at the time
of Ext.A1. He is so described in Ext.A1 also.
PW1 says that even at that time he was
employed. True, one cannot expect that from
his employment alone he could have mobilized
the balance consideration. The income tax
returns filed by him show his salary and
prove the above fact. But there is ample
evidence to show that his father was actively
involved in the transaction. PW1 has deposed
that his family members were possessing gold
ornaments worth Rs.25,00,000/- and he was
having cash amount of Rs.8,00,000/- at the
relevant time. The defendant has no case that
the plaintiff was not supported by his
father. In fact, the active involvement of
his father in the transaction is rather
admitted by defendant himself. Plaintiff has
produced several documents to show that his
parents are having sufficient properties and
gold ornaments. Of course, most of them are
after suit documents. But there is an
admission made by DW1 that after Ext.A1, the
plaintiff has purchased an adjacent plot
measuring 10 cents. Considering the totality
of the evidence available, I am inclined to
hold that the plaintiff was having capacity
to raise the balance consideration had the
necessity arisen. Therefore, I am inclined to
accept the evidence of PW1 that he was ready
with the balance consideration or at least he
was capable of raising the balance
consideration as and when required."
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7. The trial Court thereafter also rendered findings
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plaintiff had got marked Ext.A9 and A10, encumbrance
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part. In Court, the property was got measured by the
71.70 cents. 4.25 cents has been taken out from the
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of the plaintiff. No default on the part of the
Defendant appealed.
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only 71.750 cents. In other words, this shows
that as a result of teh measurement carried
out on 16.3.2008, one of the conditions for
performance of the agreement was satisfied.
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state of mind. Following are the findings which we may
refer to:
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contend that the readiness was proved by him,
Exts.A17 and A20 show that his father had
sold certain shares on 3.11.2010. Similarly,
Ext.A18 shows that the respondent had sold
his shares on 31.8.2010. Ext.A19 is yet
another document which show that on
26.12.2011 his mother had sold certain
shares. Exts.A26 and 27 are certificates
issued by the Canara Bank and Union Bank
again in 2013 when the trial was pending,
which show that his father had certain funds
available with him. As in the case of
Exts.A11 to A16, A22, A23, A24 and A25, all
these documents would not show that funds
were available with either of the respondent
or his parents on 24.3.2008 or any time prior
thereto. Therefore, these documents also will
not help the respondent to contend that his
readiness and willingness were proved by him
to substantiate his prayer for specific
performance of Ext.A1 agreement."
respondent/defendant.
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relating to compliance with Section 16(c) which
on the date of the agreement and the date when the sale
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of a later date did not take away the availability of
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"40. This contention has no merit. There are
two distinct issues. The first issue is the
breach by the defendant - vendor which gives
a cause of action to the plaintiff to file a
suit for specific performance. The second
issue relates to the personal bar to
enforcement of a specific performance by
persons enumerated in section 16 of the Act.
A person 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) is barred from claiming specific
performance. Therefore, even assuming that
the defendant had committed breach, if the
plaintiff fails to aver in the plaint or
prove that he was always ready and willing to
perform the essential terms of contract which
are required to be performed by him (other
than the terms the performance of which has
been prevented or waived by the plaintiff),
there is a bar to specific performance in his
favour. Therefore, the assumption of the
respondent that readiness and willingness on
the part of plaintiff is something which need
not be proved, if the plaintiff is able to
establish that defendant refused to execute
the sale deed and thereby committed breach,
is not correct. Let us give an example. Take
a case where there is a contract for sale for
a consideration of Rs.10 lakhs and earnest
money of Rs.1 lakh was paid and the vendor
wrongly refuses to execute the sale deed
unless the purchaser is ready to pay Rs.15
lakhs. In such a case there is a clear breach
by defendant. But in that case, if plaintiff
did not have the balance Rs.9 lakhs (and the
money required for stamp duty and
registration) or the capacity to arrange and
pay such money, when the contract had to
beperformed, the plaintiff will not be
entitled to specific performance, even if he
proves breach by defendant, as he was not
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"ready and willing" to perform his
obligations.”
(Emphasis supplied)
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statement. He states that he did not know about the
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his deposition, which we have adverted to as DW1, it
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16. Still further the next finding by the High Court
is contained in paragraph 24 of its judgment. The Court
defendant.
that one cent out of the 70.950 cents was not with the
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the defendant, a question relating to the exact extent
that the debt was paid of and mortgage was got released
in his possession.
18. The High Court has overlooked this aspect and came
to the conclusion that there was no dispute relating
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title deeds relating to the property, as he wanted to
obligations.
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time of the reply notice sent by the plaintiff and
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perform the financial obligations under the contract.
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reason for not stating in the plaint in what way the
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submit that had the answer been yes, it could be
from the same during the year 2011. During the period
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25. PW2 is a Managing Director of financial company.
He has produced and marked Ext.A19 certificate relating
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produced nor he demanded the bills or receipts relating
Court.
purposes.
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30. PW7 is the Chairman and Managing Director of
Financial Chits Company. He proved Ext.A17, 18, 20 and
Gopinathan and his son, the plaintiff, did not hold any
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him as an auditor. He says that he is not acquainted
loan.
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plaintiff told Rajesh to find prospective buyers for
none other than the son of the defendant and the other
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would appear to belong to the close relatives of the
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35. We must, however, deal with certain other
involved are none other than the mother and the wife
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have not come forward to express their willingness to
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was in existence (relied upon by the trial Court to
capacity apparently).
the third day from 24.03.2008, which was the last day
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appellant purchased other land during the period of
plaintiff.
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cent on Rs.19,37,8000/- from 27.03.2008 (date of suit)
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41. The parties shall bear their own costs.
.......................J.
(ASHOK BHUSHAN)
.......................J.
(K.M. JOSEPH)
New Delhi,
September 12, 2019.
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