JUDGMENT
A.K. Prasad, J.
1. This Letters Patent Appeal by the sole defendant Sheo Nandan Prasad in T.S. No. 62/80, arises out of judgment dated 16-7-91 in F.A. No. 33/83(R) dismissing his appeal.
2. The plain tiffs-respondents brought Title Suit No. 62/80 in the Court of Subordiante Judge, Hazaribagh for specific performance of contract on the allegation that the sole defendant executed a Baibeyana, that is to say, agreement for sale dated 17-1-1977 (Ext. 2) in their favour for sale of a house, which is fully described in Schedule ‘A’ to the plaint for consideration of Rs. 20,000/- and the plaintiffs had paid a sum of Rs. 18,000/- as earnest money at the time of execution of the agreement and the balance sum of Rs. 2,000/- was to be paid at the time of registration of sale-deed and the defendant put them in possession of the suit property. The defendant had agreed to execute the sale-deed within five years on demand to be made by the plaintiffs and their willingness to pay the balance consideration amount. The plaintiffs alleged that in spite of several demands made to execute the sale-deed and to receive the balance consideration amount the defendant put off the matter on some pretext or the other and he even refused to receive vakalatan notice sent by the plaintiffs on 20-6-1980 by registered post. Hence the necessity of the suit.
3. The defendant filed written statement and resisted: the suit. He denied to have executed an agreement for sale of property and further contended that Baibeyana (Ext. 2) set up by the plaintiffs is a forged and fabricated document. He further denied that he was paid Rs. 18,000 as earnest money towards price of the house. He also denied to have put the plaintiffs in possession of the suit property. The allegation that the plaintiffs approached and demanded him to execute the sale-deed and to receive the consideration amount of Rs. 2,000/- or that vakalatan notice was sent to him by the plaintiffs has been refuted by the defendant. In other words, the entire allegations made in the plaint were denied in the written statement.
4. The trial Court framed the following issues for determination in the suit:
1. Have the plaintiffs got any cause of action for the suit?
2. Is the suit as framed maintainable ?
3. Is the suit barred by law of Limitation, acquiescence, estoppel and equity and by specific, performance act?
4. Has the defendant executed any agreement in favour of the plaintiffs?
5. Did the defendant put the plaintiff in possession of the suit premises on the basis of so called agreement?
6. Are the plaintiffs entitled to get a decree as prayed for?
7. To what other relief or reliefs, the plaintiffs are entitled to ?
5. On the basis of evidence, oral and documentary, led by the parties, the trial Court held that defendant had executed the agreement for sale (Ext. 2) in favour of the plaintiffs and it was a genuine document; that the suit as is framed maintainable, and the plaintiffs have got valid cause of action for the suit and accordingly issue Nos. 1,2 and 4 were decided in favour of the plaintiffs. The trial Court further held that defendant had put the plaintiffs in possession of the suit land on the basis of agreement (Ext. 2); that suit was not premature and the contract was subsisting ; that the plaintiffs have proved their readiness and willingness to perform the part of the contract from the date of the contract of the time of the hearing of the suit and that the suit was not barred by the provision of Specific Performance of Contract. Thus, other issues were also decided by the trial Court in favour of the plaintiffs and ultimately, the suit for specific performance of contract was decreed.
6. Being aggrieved by it, the defendant preferred F.A. No. 33/83(R) which was dismissed by the learned Single Judge on 16-7-1991. Hence this Letters Patent Appeal has been brought by the defendant-appellant.
7. The learned Single Judge concurred with the finding of the trial Court that the agreement for sale dated 17-1-1977 (Ext. 2) was a genuine document; that plaintiff No. 1 (P.W. 7) Babu Nandan Prasad, the full brother of the defendant-appellant, had paid earnest money to the tune of Rs. 18,000/- to the defendant at the time of its execution and that plaintiff was put in possession of the property on the execution of the agreement (Ext. 2). The finding of the trial Court regarding the genuineness of the agreement for sale (Ext. 2) and the payment of earnest money thereunder was not seriously challenged by the appellant’s Counsel in the First appeal before the learned Single Judge.
8. Three points were canvassed in the First appeal on behalf of defendant-appellant : firstly, the plaintiffs-respondents were not entitled to a decree for specific performance of contract because they had failed to prove that they were ready and willing to perform their part of the contract ; secondly, no effective decree could be passed for specific performance because the area of the property described in Schedule ‘A’ to the plaint was mentioned as .03 1/2 acres but the agreement of sale (Ext. 2) was in respect of .02 acres, and, thirdly, that the suit was premature because it was filed before the expiry of 5 years. The learned Single Judge did not accept the contentions of the appellant and he held that “it is not correct to say that the plaintiffs have not either averred or proved that they were always ready or willing to perform their part of the contract or that the suit was liable to be dismissed for non-compliance of Section 16(c) of the Specific Relief Act. He further held that the plaintiffs will be entitled for the execution of the sale-deed in respect of the area mentioned in the agreement for sale and that the suit was not premature as it had been brought within five years as stipulated in the agreement for sale (Ext. 2). Ultimately, the appeal was dismissed by the learned Single Judge.
9. Mr. Devi Prasad, learned Sr. Counsel for the appellant has assailed the impugned judgment on the following points:
That the plaintiffs have failed to aver and to prove that they have always been ready and willing to perform their part of the essential term of the contract and that plaintiffs have been and are still ready and willing to specifically perform their part of the agreement, which is an essential ingredient for grant of the relief of specific performance of contract under Section 63(c) of the Specific Relief Act read with Forms 47 and 48 of Schedule-I of Appendix ‘A’ to the Code of Civil Procedure and as such plaintiffs were not entitled to the relief of specific performance of contract. He has further contended that the evidence of the plaintiff No. 1 (P.W. 7) on the point has not been discussed in the right perspective by the trial Court or by learned Single Judge and the finding on this issue has been influenced by the fact that the agreement for sale (Ext. 2) has been found to be a genuine document. There was discrepancy of area in the description of the suit property in Schedule ‘A’ to the plaint and in the agreement for sale (Ext. 2) and the learned Single Judge ought to have held that in such circumstances no effective decree after lapse of five years could have been passed.
10. Mr. N.K. Prasad, learned Sr. Counsel for the respondents-plaintiffs, on the other hand, has supported the impugned judgment. He has asserted that the substance of the plaint would show that the plaintiffs have made averments that they have always been ready and willing to perform their part of the essential term of the contract, and the conduct of P.W. 7 and the attending circumstances show plaintiffs’ continuous readiness and willingness at all stages to perform their part of the essential term of the contract. He further asserted that the dimension of the suit property with boundary is given in its description in Schedule ‘A’ to the plaint as well as in the agreement for sale (Ext. 2) which, tally and when the area is calculated on such extent and dimension it comes to 0.03 %. acres and the area by mistake has been estimated to be 0.02 acres in the agreement for sale and, thus, there is no ambiguity in the identity of the subject-matter of the suit.
11. At the outset, it may be mentioned that the factum of the execution of agreement for sale (Ext. 2) and the payment of earnest money to the tune of Rs. 18,000/- thereunder, which has been proved by the scribe (P.W. 2), the witnesses on the agreement for sale (P.Ws. No. 3 to 6), the plaintiff No. 1 (P.W. 7) and the handwriting expert (P.W. 10), has not been challenged in this appeal. There is concurrent finding of the trial Court and the learned Single Judge that the agreement for sale (Ext. 2) is a genuine document and the earnest money recited therein has been paid by the plaintiffs. There is no reason to differ with this finding.
12. It is well settled that in a suit for specific performance of contract, the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging the readiness and willingness to perform his part of the contract. (Reference: AIR 1995 SC 945 Jugraj Singh v. Raj Singh. There is a distinction between the readiness to perform the contract and willingness to perform the contract. By readiness may be meant 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 plaintiffs part of the contract is to be adjudged with reference to the conduct of the parties and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff is ready and willing to perform his part of the contract. Reference : Swami Ganesh Dasji v. Sita Ram Thapar. The core of the allegations/averments made in the pleading by plaintiff has to be looked into for adjudging whether he has made averments in terms of the provision of Section 16(c) of the Specific Relief Act that he has been ever ready and willing to perform his part of the contract.
13. Keeping these principles in mind one way now proceed to examine whether plaintiffs have averred and proved that they have always been ready and willing to perform their part of the contract.
14. In para 5 of the plaint, it is stated as under:
5. That the plaintiffs made several demands to the defendants for execution and registration of the sale-deed as agreed by the defendant for the said consideration and to receive the balance consideration of Rs. 2,000/- but the defendant began to put off the matter on flimsy pretext so the plaintiff along with the some respectable persons met the defendant at Baijnath Dham on 16-6-80 and requested the defendant to execute and register the document of sale at Chatra on receipt of balance sum of Rs. 2,000/- but the defendant put off the matter on flimsy pretext then the plaintiffs gave an Advocate registered notice on 20-6-80 asking the defendant to execute and register the document of sale within a week from the date of receipt of the notice and to receive the balance sum of Rs. 2,000/- within a week from the receipt of the notice but the defendant refused to accept the notice and has not executed and registered the sale-deed in favour of the plaintiff in respect of the Properties of Schedule “A’, hence the necessity for the suit.
It is further stated in para 6 of the plaint:
6. That the plaintiffs have paid the sum of Rs. 18,000/- and are willing to deposit the sum of Rs. 2,000/- in Court whenever directed by the Court, then the plaintiffs have performed their part of the contract and the plaintiffs are entitled to a decree for specific performance of the contract i. e. the execution and the registration of the document of sale by the defendant.
Thus, it is manifest that the plaintiffs have averred that they were always ready and willing to perform their part of the contract.
15. The next point that now falls for consideration is whether the plaintiffs have proved that they were always ready or willing to perform their part of the contract.
16. P.W. 7 Babu Nandan Prasad, plaintiff No. 1. has testified to the effect that after the agreement several times he was ready to pay the balance consideration amount of Rs. 2.000/- to the defendant but the defendant always evaded to receive the amount, and to execute the promised deed. He has further .stated that he gave notice to him which he refused to receive He has reiterated in his cross-examination that after the agreement for sale he has also reminded the defendant through Ram Bilash Ram (P.W. 4) to execute the sale-deed and he himself often reminded the defendant to execute it. He has asserted that the defendant always evaded it and Ram Bilash Ram (P.W. 4) had accompanied him on the mission two months before the institution of the suit. He has further said that he accepts the terms of the agreement for sale and his claim is true. It has been elicited in the cross-examination of P.W. 4, Ram Bilash Ram, that, after the execution of agreement for sale the defendant was approached several times to execute the promised sale-deed and he too had personally requested him. As against it. there is bare denial of defendant (P.W. 7) that, plaintiffs never made a demand for the execution of the sale-deed. Ext. 5 is the carbon copy of vakalatan notice dated 20-6-1980 sent by the plaintiffs to the defendant by registered post under postal receipt dated 21-6-1980 (Ext. 4). The substantial sum of Rs. 18.000/- as earnest money has been paid by the plaintiffs to the defendant at the time of the execution of the agreement (Ext.2). There is the admission of defendant. (P.W. 7) in his evidence that the plaintiffs are in possession of the suit property. It cannot be comprehended that the plaintiffs had no capacity to pay the paltry sum of Rs. 2.000/- towards the balance consideration amount at the time of the registration of the sale-deed.
17. It has been noticed above that the plaintiffs have averred in the plaint that they are willing to deposit the sum of Rs. 2,000/- in Court Whenever directed. It has been urged by the learned Counsel for the defendant-appellant that the plaintiffs did not deposit the sum of Rs. 2,000/- in Court while filing of the suit. It is suffice to say that it is not always necessary to deposit the money, unless the Court so directs. Not depositing the money along with plaint cannot be taken as a factor to deprive the plaintiffs of the benefit of the relief for specific performance of contract by the defendant nor it is indictive of the fact that plaintiffs had not been ready and willing to perform their part of the contract in view of explanation (i) to Section 16(c) of the Specific Relief Act which runs thus:
(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;
18. In view of the discussions made above, taking into consideration the substance of the matter and the attending circumstances of the case, I find that the trial Court and the learned Single Judge were justified in recording the finding that the plaintiffs have always been ready and willing to perform their part of the contract.
19. One may now come to the other objection raised by the learned Senior Counsel for the appellant that no effective decree could be passed because of discrepancy in the area of the land contemplated to be sold as shown in the agreement for sale (Ext, 2) and as set out in the description of the suit property in Schedule ‘A’ to the plaint.
20. In the agreement for sale the dimension of the land is given as 18 1/4′ North to South and 88′ from East to West with its boundary. It is the middle portion of the holding. D.W. 7, the defendant, has admitted in his cross-examination that the total area of the holding is 10 1/2 decimals in which he has l/3rd share, that is to say, .03 1/2 acres. He has made can did statement in the chief-examination that the middle portion of the holding belongs to him. P.W. 7, plaintiff No. 1 has stated about the extent, and dimension of the land which was agreed to be sold by the defendant. Thus, there is no ambiguity about the identity and extent of the suit property which was agreed to be sold by the defendant. In the agreement for sale (Ext. 2) the estimate area of the land agreed to be sold is mentioned as about 0.2 decimals. It has been clarified in the description of the suit properly in Schedule ‘A’ to the plaint that the actual area of the land is .03 1/2 acres on the basis of calculation although in the agreement it is .02 acres. Under the circumstances, the dimension and boundary of the property agreed to be sold would determine the identity of the land and effective decree on its basis can be passed. The trial Court rightly held that there was no ambiguity in the identity of the land agreed to be sold which has been affirmed by the learned Single Judge. Thus, in the circumstances stated above, there is no merit in the above contention of the appellant’s Counsel.
21. In the result, the Letters Patent Appeal is dismissed as it lacks merit. No costs.