JUDGMENT
Anil Kumar, J.
1. This is an application by the defendant/applicant under Order VII Rule 11 read with Section 151 of Code of Civil Procedure for rejection of the plaint as devoid of any cause of action and barred under Section 16(c) of Specific Relief Act, 1963.
2. The plaintiff has filed the present suit for specific performance of agreement to sell dated 20th December, 2002 against the defendant.
3. The defendant asserted that the agreement dated 20th December, 2002 was cancelled and the plaintiff has admitted it in its correspondence, however, the cancellation of the agreement dated 20th December, 2002 has not been challenged by the plaintiff resulting in acceptance/acquiescence. Therefore, according to defendant, the plaintiff is not entitled to the relief of specific performance or any other relief pertaining to agreement dated 20th December, 2002.
4. The defendant/applicant has also sought rejection of the plaint on the ground that the suit of the plaintiff is barred under Section 16(c) of Specific Relief Act. The applicant/defendant contended that plaintiff company has failed to show that it had been ready and willing to perform the agreement and to comply with the stipulation contained therein. No constructive step was taken by the plaintiff in support of its contention to comply with the agreement dated 20th December, 2002 and even in the correspondence, the bald statements were made by the plaintiff which are also of no use to him. Referring to the averments made in the plaint, it was asserted that entire basis for filing the present suit against the applicant/defendant is that whereas the plaintiff was always ready and willing to perform his part of agreement dated 20th December, 2002, the defendant/applicant was in breach.
5. The property in dispute was agreed to be purchased by the plaintiff company for a sum of Rs. 5.90 crore. Towards the consideration agreed, a sum of Rs. 50.00 lakh was paid in cash and Rs. 10.00 lakh by cheque and a further sum of Rs. 50.00 lakh was paid by four post dated cheques which were categorically stipulated in the agreement to sell also. The applicant/defendant, thus, received a sum of Rs. 1.10 crore from the plaintiff company. The balance amount had to be paid by the plaintiff company on or before 15th April, 2003. The applicant/defendant contended that the time was the essence of the agreement and was not to be extended because of any reason whatsoever and since the plaintiff company failed to pay balance amount of Rs. 4.80 crore even despite the notice dated 14th April, 2003, reflective of the intention of the plaintiff company never to pay and clear the outstanding liability of Rs. 4.80 crore. The plaintiff thus, failed to perform his part of agreement and the agreement stood cancelled. In the circumstances, it was stated that plaintiff has no cause of action and the plaint is liable to be rejected.
6. The plaintiff has opposed the application contending that for ascertaining whether the plaint discloses cause of action or not, averments raised and pleas made in the plaint only have to be looked into and not the defense raised by the defendant. According to plaintiff, Shri K.L. Sondhi, father of the defendant, along with defendant, had executed the agreement to sell, however, Shri K.L. Sondhi died on 21st February, 2003, who had primarily been dealing with the plaintiff. On the demise of his father, the defendant represented to the plaintiff that he was in a state of flux, not knowing what to do and was unable to shift his household belongings and effects of over half a century to some other place. Defendant is alleged to have represented to plaintiff that he was not in a position to handover the possession of the property as provided in the agreement to sell and wanted to extend the time of performance thereof, however, neither the defendant took any steps which he was required to take under the agreement nor signed the supplementary agreement for extension of time about which he had made a representation to the plaintiff. Plaintiff is stated to have sent a letter dated 15th April, 2003 asking the defendant to perform his part of agreement as plaintiff was merely required to pay the balance sale consideration and take the possession of the portion in possession of defendant. Plaintiff asserted that he even got a banker cheques/pay orders in the sum of Rs. 4.80 crore as detailed below:
(i) Bankers Cheque No. 728339 dated 11th April, 2003 issued by the Vyasa Bank Limited, Karol Bagh Branch, New Delhi for a sum of Rs. 4,00,00,000/- (Rupees four crores) only.
(ii) Pay order No. 713625 dated 10th April, 2003 of the Citibank in the sum of Rs. 60,00,000/- (Rupees sixty lakhs) only, and
(iii) Bankers Cheque No. 90410 dated 11th April, 2003 of the State Bank of India, Najafgarh Road, New Delhi in the sum of Rs. 20,00,000/- (Rupees Twenty lakhs) only.
7. The plaintiff specifically pleaded in the plaint that there was no sanctity to the date of 15th April, 2003 as in response to this, though the defendant had reiterated to perform his part of agreement but the failure of the defendant to perform his part of agreement is apparent. According to plaintiff, the defendant would not have suffered any loss or prejudice had he performed his part of the agreement and vacated the property and delivered the possession against execution of documents and receipt of balance sale consideration. The defendant has not performed his part of agreement but has also retained Rs. 1.10 crore received from the plaintiff. In furtherance of his malafide intentions the defendant got filed an OMP 227/2003 from his uncle Shri M.L. Sondhi where an ex parte order restraining the defendant from selling his share in the property was also procured. Imputing collusion between defendant and his uncle, Shri M.L. Sondhi, it was stated that no steps were taken by the defendant to get the stay order modified or vacated and this was with a view to retain Rs. 1.10 crore illegally and unlawfully given by the plaintiff to the defendant and not to perform his part of the agreement.
8. Further refuting the averment of the defendant that the time was the essence of the agreement and the agreement stood cancelled on 15th April, 2003 on alleged non-performance of the agreement by the plaintiff, it was contended that defendant himself sent a cheque of Rs. 44.00 lakh only by a letter dated 18th September, 2003. What was also pointed out was that before sending the cheque of Rs. 44.00 lakh, the defendant had not asked the plaintiff to perform his part of agreement. Plaintiff contended in categorical terms the purported right of termination exercised by the defendant in September 2003 and stated it was fallacious and merely an attempt to make up his own deficiencies and breaches committed by him. Perhaps Realizing that he was being too greedy in wanting to retain the entire amount of Rs. 1.10 core which was not permissible even in the agreement, the defendant sent an amount of Rs. 44 lakhs only but the cheque of Rs. 44.00 lakh was returned by the plaintiff.
9. Whether the plaint does not discloses cause of action in the facts and circumstances and the relief claimed by the plaintiff are barred under Section 16(c) of the Specific Relief Act.
10. Rule 11 of Order 7 of the Code of Civil Procedure contemplates rejection of plaint where it does not discloses a cause of action, where the relief claimed is undervalued or the plaint is written on an insufficient stamp and where it is barred under any law. Rule 11 is as under: Rule 11. Rejection of plaint.
The plaint shall be rejected in the following cases:
a. where it does not disclose a cause of action:
b. where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct, the valuation within a time to be fixed by the Court, fails to do so:
c. where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so:
d. where the suit appears from the statement in the plaint to be barred by any law:
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisites stamp papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisites stamp papers, as the case may be, within the time fixed by the Court and that the refusal to extend such time would cause grave injustice to the plaintiff.
11. Rejection of a plaint is a serious matter as it non suits the plaintiff and kills the cause of action. It cannot be ordered cursorily without satisfying the requirement of the said provision. It is no more res integra that to decide under Order VII Rule 11 of the Code of Civil Procedure, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint, Order VII Rule 11 get attracted or not and from the averments made in the plaint and it has to be seen whether the jurisdiction of the Court is made out or not and whether the suit is barred by any law. Reliance can be placed on 2005 (4) AD (Delhi) 541 Kanwal Kishore Manchanda v. S.D. Technical Services Pvt. Ltd.; 2005 (2) AD (Delhi) 430 Arvinda Kumar Singh v. Hardayal Kaur; 2005 (116) DLT 191 Asha Bhatia v. V.L. Bhatia; 2003 (5) AD (Delhi) 370 Punam Laroia v. Sanjeev Laroia 2004 (111) DLT 121 Condour Power Products Pvt. Ltd. v. Sandeep Rohtagi.
12. The plaintiff has relied on Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success I and another to contend that whether a plaint discloses a cause of action or not is essentially a question of fact and whether it does or does not must be found out from reading the plaint itself. It was held that if the averments made in the plaint or documents relied upon disclose a cause of action, plaint should not be rejected merely on ground that the averments are not sufficient to prove the facts stated therein
13. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.
14. So long as the plaint discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out or inferring that the plaint does not discloses cause of action. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. The court has not to see whether the claim made by the plaintiff is likely to succeed: it has merely to satisfy itself that the allegations made in the plaint, if accepted as true, would entitle the plaintiff to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the plaint must be rejected. But in ascertaining whether the plaint shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the plaintiff. It cannot take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact.
15. Perusal of the plaint in entirety discloses that the plaintiff has claimed that he was always ready and willing to perform his part of agreement and was ready to pay the balance consideration, but the defendant had been delaying handing over the possession and executing the papers conveying rights, title and interest in the property. He has given the details of the of cheques/drafts which he got for payment of balance consideration.
16. Whether the time will be essence of agreement of sale of immoveable property in the case of defendant or not The Plaintiff/non-applicant has relied on Smt. Swarnam Ramachandran and Anr. v. Aravacode Chakungal Jayapalan whereas the defendant/applicant has relied on Chand Rani (dead) by Lrs. v. Kamal Rani (dead) by Lrs.; K.S. Vidayanadam and Ors. v. Vairavan and (1995) Supp (2) SCC 33 V. Lakshmanan v. B.R. Mangalagiri and Ors.
17. Time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of re-conveyance or renewal of lease. The case of defendant is not of re-conveyance. The onus to plead and prove that time was the essence of the contract is on the person who alleges it. It is the plea of the defendant that the time was the essence of contract. It is the court which examines the intention of the parties on the basis of pleas and evidence to determine whether the time is the essence of agreement to sell or not. A vendor will not have a right to make time essence of agreement unless he is ready and willing to proceed to completion and unless the vendee is guilty of gross default. The intention to make the time essence of agreement can be ascertained from:
(i) the express words used in the contract;
(ii) the nature of the property which forms the subject-matter of the contract;
(iii) the nature of the contract itself; and
(iv) the surrounding circumstances.
18. These factors have to be ascertained from the pleadings of the parties and the evidence and normally can not be ascertained merely from the plea of one of the party conclusively. The plaintiff has refuted the plea of the defendant that the time was the essence of the agreement and has averred and disclosed facts on the part of the defendant showing default. From the pleas of the plaintiff, therefore, it can not be inferred that the time was the essence of the agreement and was cancelled and could be cancelled by the defendant. If the plea of the plaintiff is that the time was not the essence of agreement and could not be cancelled, there is no need for him to challenge the alleged cancellation of agreement by the defendant. The inevitable inference is that the plaint discloses cause of action and can not be rejected on this ground.
19. Next question is whether the suit is barred under Section 16(c) of Specific Relief Act and the plaint is liable to be rejected. Section 16(c) of the Specific Relief Act contemplates that a person seeking specific performance of a contract must aver and prove that he has performed and has been ready and willing to perform the essential terms of the contract which are to be performed by him. In a suit for a specific performance the plaintiff must set out the agreement which the defendant has refused to perform. He must plead that he has been, and is, still ready and willing to specifically perform his part of the agreement. If the plaintiff fails to aver in plaint that he was, and is, ready and willing to perform various part of the contract, he has failed to disclose his cause of action for the relief of a specific performance. Lack of such averment is fatal in the suit for a specific performance of contract for sale of immovable property and the plaint is liable to be rejected under Order VII rull 11 of the Code of Civil Procedure. No particular Language and phraseology need to be employed by the plaintiff. It is sufficient if the averments in substance indicate the continuous readiness and willingness on the part of the person suing to perform his part of the contract. If on an analysis of the facts averred in the plaint the court finds that even though the exact words of the statue are not reproduced and the facts reveal that the plaintiff has performed all the terms and conditions of the contract, up to the date of the institution of the suit and has shown his willingness to perform remaining terms of the contract, the requirement of law will be satisfied.
20. Perusal of the plaint reveals that the plaintiff has categorically averred that he was always ready and willing to perform his obligations under the agreement and was ready with entire balance sale consideration. He has given the details of the balance payment for which he had got the cheques/pay orders. He has specifically averred that there was no sanctity of the dated 15th April,2003 because the defendant was unable to hand over the possession of the property and the collusive proceedings which he got filed from his uncle and the fact that the entire part consideration received by him was not returned by him. The relevant plea of the plaintiff is as under:
20. The plaintiff, however, on its part was always ready and willing to perform its obligations under the agreement and was ready and with the entire balance sale consideration of Rs. 4.80 crores before and on 15.4.2003 and since then has been and is still ready and willing to perform its obligations and to pay the balance sale consideration as may be determined by this Hon’ble court in accordance with the terms of the agreement to sell dated 20.12.2004
21. The plaint in the facts and circumstances discloses cause of action. The plea of the plaintiff that he was ready and willing and is ready and willing is categorical and can be culled without any ambiguity. If that the so, the plea of the defendant/applicant that the suit is barred under section 16(c) is without any basis and contrary to the specific pleas raised in the plaint. The plaint in the circumstances discloses cause of action and cannot be rejected on the ground that the suit is barred under section 16(c) of the Specific Relief Act, 1963.
22. The application of the defendant/applicant for rejection of the plaint in the facts and circumstances, is without any merit and is therefore, dismissed.