IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 694 of 1996(S)
1. SELVARAJ
... Petitioner
Vs
1. NARAYANAN
... Respondent
For Petitioner :SRI.R.D.SHENOI,SUSHEELA R.BHATT
For Respondent :SRI.G.HARIHARAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :13/01/2009
O R D E R
M.N. KRISHNAN, J
-----------------------
A.S.No. 694 OF 1996
---------------------------------
Dated this the 13th day of January, 2009
JUDGMENT
This is an appeal preferred against the judgment and decree
of the Subordinate Judge, Palakkad in O.S.No. 701/1993. The suit
is one for specific performance of a contract. It is the case of the
plaintiff that an agreement has been entered into whereby the 1st
defendant had agreed to sell the property to the plaintiff for
Rs. 35,000/- and a registered agreement was entered into between
the plaintiff and the 1st defendant.
2. It is alleged that Rs. 30,000/- was paid and the stipulation
was to pay the balance consideration and get the document
registered on or before 30.10.1993. The plaintiff had sent a lawyer
notice expressing his readiness to pay the balance and purchase the
property. Therefore he had requested the 1st defendant to get
ready with execution of the assignment deed after vacating the 2nd
defendant from the plaint schedule premises. On the other hand
defendant would contend that the property will fetch an amount of
Rs. 2,00,000/- and it is not an agreement for sale of the property.
The 1st defendant was badly in need of some amount and therefore
A.S. 694/96
-2-
he had executed a document and there was no intention to sell the
property. It is also contended that the plaintiff is not entitled to the
decree as prayed for.
3. In the trial court PWs. 1 and 2, Dws. 1 and 2 were
examined. Exts. A1, A2 and B1 were marked. On analysis of the
materials, the trial court held that there was no specific pleading
with respect to the readiness and willingness to perform the
contract and therefore disallowed the prayer for specific
performance, but granted a decree for return of the amount.
4. The points that arise for determination are:
1. Whether the finding of the trial court that there is non
compliance of the statutory requirements regarding readiness and
willingness is correct?
2. Whether the trial court was right in rejecting the prayer for
specific performance?
Points 1 & 2:
At the out set, I may like to state that in a suit of this nature
it is the first and foremost duty of the court to arrive at a decision
regarding the nature of the document, when there is a specific
contention raised in the written statement that it was never
A.S. 694/96
-3-
intended to be an agreement for sale but only as a document
to receive a loan of Rs. 30,000/-. Only after entering into a finding
on that, the further questions really raise for determination. But
the trial court proceeded with the matter holding that there is non
compliance of the statutory requirements contemplated under
Section 16(c) of the Specific Relief Act which states that there must
be an averment with respect to the readiness and willingness to
perform his part of the contract. The learned counsel for the
appellant had taken me through the pleadings, the notice and the
various decisions on the point. Ext. A1 is the agreement. It is a
registered agreement whereby there is an agreement for sale of the
property for Rs. 35,000/-. Rs. 30,000/- is advanced and the
plaintiff is bound to pay the balance of Rs. 5,000/- and get the
document registered and similarly the defendant is under an
obligation to execute the document. The document is dated
1.4.1993 and the period expires on 30.10.1993. Thereafter the
plaintiff issued Ext. A2 notice. It is dated 13.10.93, wherein there
is a specific intimation that the plaintiff is prepared to pay balance
consideration of Rs. 5,000/- for the purpose of getting the
document executed and he had also demanded that the 1st
A.S. 694/96
-4-
defendant should show the documents of title etc. and also get the
tenant vacated from the premises of the property. No reply is sent
to this notice. Thereafter the plaint is filed.
5. The terms of the agreement as well as the contends of the
notice are copied in the plaint but unfortunately the specific word of
readiness and willingness to perform the part of the contract is not
specifically stated. It has to be remembered that a perusal of the
entire plaint would reveal that the case of the plaintiff is to the
effect that he had entered into an agreement for sale and that he
had issued a notice, Ext. A2 and he had stated therein that he is
prepared to pay balance consideration of Rs. 5,000/- and had
requested the defendant to full fill his part of the contract. So in
other words the notice gives an intimation of the absolute readiness
and willingness on the part of the plaintiff to perform the contract.
It has to be also remembered that the only obligation that is left to
the plaintiff for execution of the document is to pay the balance
consideration and get the document registered. So it is under these
circumstances and pleadings one may have to look into the matter.
It is true that there is a prescription of a form regarding the filing of
a suit for specific performance and the trial court had relied upon
A.S. 694/96
-5-
the decision of the apex court reported in Ouseph Varghese v.
Joseph Aley and others [1969 (2) SCC 539]. There the apex
court held that:
“in a suit for specific performance, the plaintiff should
allege that he is ready and willing to perform his part of
the contract and in the absence of such an allegation
the suit is not maintainable”.
The apex court had considered this matter in the decision reported
in Motilal Jain v. Smt.Ramdasi Devi & others [JT 2000 (8) SC
59], wherein the court has taken into consideration the Ouseph
Varghese’s case. In para 7 of the judgment the apex court held
that in Vargese’s case the case was based an oral agreement and
the defendant pleaded a different agreement in regard to which the
plaintiff neither amended his plaint nor filed subsequent pleading.
Under these circumstances the apex court held the compliance of
the mandatory forms of Section 47 and 48 of the First Schedule of
the Code of Civil Procedure. In this decision the apex court has
held that:
“The language in Section 16(c) of the Specific
Relief Act, 1963 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
A.S. 694/96
-6-perform his part of the contract. So the compliance of
“readiness and willingness” has to be in the spirit and
substance and not in letter and form. It is thus clear
that an averment of readiness and willingness in the
plaint is not a mathematical formula which should only
be in specific words.”
6. To further strengthening the argument the learned counsel
had further relied upon the decision of the apex court reported in
Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and
others [AIR 1997 SC 463]. Therein the Supreme Court held that
readiness and willingness to perform can be gathered from the
following:
It was a case where there was “averment in the plaint that
the purchaser had sent notice to the seller to execute the sale deed.
There has been also averment by the buyer that as per the
agreement he is willing to pay fees required for sale deed, costs of
registration and balance amount of sale deed”. It was further
stated that “there was a statement in the deposition before the
Court by purchaser that he had sent notices to seller and was
willing to pay fees as aforesaid and balance amount immediately”.
In such circumstances the Supreme Court held that buyer not only
A.S. 694/96
-7-
averred but also proved that he was ready and willing to perform
his part of contract as required under Section 16(c). The learned
counsel then cited the decision reported in Narayan Nagorao v.
Amrit Haribhau [AIR 1957 BOMBAY 241]. It was a case where
there was a express statement in the notice regarding willingness to
perform the part of the contract. It was held that:
“In the circumstances the failure of the plaintiff to
express specifically in clear terms his readiness and
willingness to perform his part of the contract did not
disentitle him to specific performance.”
So in the process of time the strictness of pleadings under Section
16(c) had undergone changes and when the total materials
available would show that there has been the readiness and
willingness to perform the part of the contract by the plaintiff is
sufficient. The absence of pleadings in the prescribed form does not
disentitle the plaintiff to get a decree for specific performance of the
contract.
7. In view of this, let me analyse from the dictum laid down in
the above decisions whether in this particular case there is sufficient
materials to establish the readiness and willingness and which can
be read into as a pleading as well. It has to be stated that in the
A.S. 694/96
-8-
plaint, notice had been extracted in toto and there is a recital that
the plaintiff had sent notice to the defendant intimating ”
So statement in the notice is reiterated in the plaint and therefore
it gives a clear indication to the defendant about the same. While
construing the law of pleadings it is a settled proposition that
isolated reading of some sentence in the pleading is not the
procedure to be done but the entire pleadings has to be read and
the substance has to be gathered from the same. So a meticulous
reading of the plaint would itself indicate that there is a pleading
with respect to the readiness and willingness which is contemplated
under law. But it could have been stated precisely and specifically
so that the confusion should have been averted. Further it has
also to be gathered that the defendant even did not bother to send
a reply notice to the said notice. So from these discussions I hold
that the trial court was not right in throwing out the case for
A.S. 694/96
-9-
specific performance on the ground that there has been no pleading
with respect to readiness and willingness to perform the part of the
contract. I set aside that finding.
8. Unfortunately this court cannot pass a final judgment in the
suit for the reason that so many other points require to be
answered on facts. First of all there has to be a finding with respect
to the enforceability of Ext. A1 agreement on the basis of the
contention raised by the defendant in the written statement.
Secondly the court has to arrive at a finding, who has committed
the breach of contract. Thereafter the court has to consider
whether in the given circumstances the plaintiff is entitled for a
decree for specific performance in the light of the large number of
decisions rendered by courts. Thereafter a final decision has to be
taken regarding the entitlement of the plaintiff to get a decree for
specific performance or not.
9. Therefore the judgment and decree of the trial court are set
aside and the matter is remitted back to the trial court for fresh
consideration on the question discussed in the previous paragraphs
and thereafter dispose of the matter in accordance with law. If the
parties intend to adduce documentary or further oral evidence in
A.S. 694/96
-10-
support of their respective contentions they may be permitted to do
so and matter be disposed of thereafter as expeditiously as possible
considering the factum that the litigation has started way back in
1993.
Parties are directed to appear before the court below on
24.2.2009.
M.N. KRISHNAN,JUDGE
vkm