JUDGMENT
Chandrakantaraj Urs, J.
1. This is a defendants’ appeal against the Judgment and decree dated 27-6-1988 passed in Original Suit No. 140 of 1983 on the file of the Civil Judge at Davanagere in Chitradurga District.
2. In the course of our Judgment, we will refer to the parties by the ranks assigned to them in the trial Court.
3. Plaintiff brought the suit for specific performance of the contract. The Agreement for Sale was marked as Ex.P-3 in the suit at the time of evidence. Plaintiff alleged that he was a tenant under the first defendant in respect of the shop premises bearing No. 47/3 and that he was paying a rent of Rs. 75/- per mensum; that the said premises became highly dilapidated and became unfit and dangerous to carry on business in it and in that circumstances, the plaintiff asked the first defendant to renovate and put the necessary rolling iron door shutters and other necessary work for the improvement of the building undertaking to repay the costs of repair and renovation which was estimated at Rs. 2,803.88 ps. Plaintiff accordingly spent the said sum in the year 1979 and the said amount was neither adjusted towards payment of rent nor paid in cash by the first defendant as he was in financial difficulties. Plaintiff demanded the amount to be paid back to him. At that point of time, the first defendant showed his willingness to sell the schedule property to the plaintiff himself and requested him to make an offer and in the presence of respectable people, namely, Jayadevappa and Channabasappa the first defendant agreed to sell the suit property for a sum of Rs. 20,101/- to the plaintiff on 7-6-1982 and the Agreement of Sale was reduced into writing on the same day and the plaintiff paid first defendant a sum of Rs. 2,000/- as advance towards agreed sale consideration. Plaintiff having been in possession as a tenant thereafter continued in possession as purchaser under the Agreement for Sale, stopped paying rent. Despite his offer to pay the balance of sale consideration in the sum of Rs. 14,297.12 ps., the first defendant avoided executing a sale deed and registering the same. However, the plaintiff learnt that the first defendant had sold the property to second defendant – a Document Writer carrying on business a few shops across for a consideration of Rs. 20,000/- on 11-10-1982. Therefore, he presented the suit calling upon the defendant to execute the sale deed in his favour accepting the balance of consideration agreed. He further averred that he was ready and willing to perform his part of the obligation under the contract after having partly performed by paying part of the consideration as advance.
4. Defendant denied the plaint allegations though he admitted that he was the landlord. He denied having entered into an Agreement for Sale as per Ex.P-3. He referred to it as a document created by the plaintiff. He denied that he had title to convey the property to the plaintiff. He denied the allegation that the plaintiff had effected improvement as pleaded by him in the plaint. He pleaded that there were other joint owners who together conveyed property for consideration to the second respondent. He further pointed out that a sum of Rs. 1000/- paid by the plaintiff as advance was transferred to the new purchaser and it would be returned to the plaintiff when he handed over vacant possession of the suit premises. He also pleaded that the new purchaser had filed a suit for eviction in the Court of the Munsiff.
5. On such pleadings, the trial Court framed as many as four issues which are as follows:
1) Whether D-1 has executed an agreement of sale of suit property to plaintiff on 7-6-1982 for Rs. 20,101/- and paid advance of Rs. 2,000/-as contended?
2) Whether plaintiff had spent Rs. 2,803.88ps. to renovate the suit property as alleged and if so, is D-1 liable to adjust the same as contended?
3) Whether plaintiff is entitled for specific performance of suit contract?
4) Whether plaintiff is entitled for alternate reliefs of Rs. 15,803.88 ps. as claimed? (Deleted as per order dated 2-6-1988)
5) To what reliefs?
6. All issues were held in favour of the plaintiff and the suit of the plaintiff was decreed. Therefore, the present appeal.
7. Before us Mr. Tarakaram has contended the following:
i) That Ex.P-3 the suit Agreement for Sale is no agreement at all and the Court could not have acted upon it as it was vague, inasmuch as, no time was specified within which the sale was to be completed;
ii) That plaintiff at no point of time made out that he was ready and willing to perform the contract according to the tenor of the agreement i.e., Ex.P-3.
iii) That the Court ought not to have decreed the suit when it was brought to its notice that the first defendant was not the sole owner of the property.
8. It is in the light of these contentions, we have to determine the following questions in this appeal:
1) Whether the suit agreement is void and unenforceable in the light of the first contention of the appellants?
2) Whether in the facts and circumstances of the case, it could be held that the plaintiff was not ready and willing to perform his part of the contract having regard to the tenor of the suit agreement?
3) Whether the Judgment and decree is liable to be set aside because the first defendant claims that he alone does not have title to the suit property?
9. We have been taken though the pleadings and the relevant portion of the evidence of plaintiff and defendant. Plaintiff examined in support of his case, himself and one of the attesting witnesses to the suit agreement, Ex.P-3, and got marked as many as 23 documents, including the Sale Deed in favour of defen-dant-2 Ex.P-23. Defendant examined himself and two others and got marked as many as 14 documents.
10. Undoubtedly the suit document is on a small piece of paper and it is in Kannada. The contents of which read as follows:
Certificate
Certified that the instrument is validated after recovering stamp duty of Rs.5 and penalty of Rs.20/-in all Rs. 25/- vide C.No. date 22-11-1982 credited by the applicant.
Sd/-
Assistant Commissioner,
Davanagere Sub-Division.
11. It is signed by the second defendant in Kannada. One Jayadevappa has attested and his signature is in Kannada and he appears to have put the date 7-6-1982, apart from his signature. At the top of the document also, the date 7-6-1982 appears as is apparent from the portion extracted above. One P. Channabasappa has also signed in English. Then we see that there is a certificate issued by the Assistant Commissioner, Davanagere Sub-Division, apparently in accordance with the provisions of Section 32 of the Karnataka Stamp Act certifying that the instrument is validated after recovering stamp duty of Rs. 5/- and penalty of Rs. 20/-in all Rs.25/- has been credited by the applicant.
12. It is not the lack of execution of the agreement on a duly stamped paper that is the basis of the attack to render the agreement invalid, for the simple reason that defect has been cured by the certification process. The thrust of the argument of Mr. Tarakaram, learned Counsel for the appellant has been that it is vague; vague not in terms of the subject matter of the contract, vague not in terms of the consideration agreed, vague not in respect of the advance said to have been paid, but vague because it does not specify the time within which the sale deed should be executed and therefore on the ground of vagueness in regard to the time for execution or completion of the contract the suit agreement is not enfoceable. Another limb of the same argument which was urged was that it was highly improbable, that such a document would come Into existence when there was no dearth for obtaining the stamp paper or revenue stamp for fixing the same on the document evidencing the payment of advance of Rs. 2,000/- said to have been received by the first defendant. He however was not able to point out a decided judicial authority that failure to mention the time within which the contract was to be completed would result in vagueness and therefore void and unenforceable. We have already extracted the substance of the contract recorded in Ex.P-3. The recital referred to premises No. 47/3, the shop in the occupation of the plaintiff. It provided for the consideration agreed to between the willing purchaser and the first defendant landlord. It also mentioned the advance paid in respect of the sale agreement in the sum of Rs. 2,000/-. In such a circumstance the parties to the contract competent to contract had clearly understood the subject matter of the contract, the consideration to the contract and the part performance of the contract by the willing purchaser by paying Rs. 2,000/-as advance was also evidenced. Therefore, if the contract under these respects was complete, the failure to include a specific time within which it should be completed should be construed as reasonable time thereafter and mere absence of denoting a time beyond which it was unenforceable would not render the contract void as it was nobody’s case in the pleadings chat time was the essence of the contract. If the time was not the essence of the contract, as may be gathered from the recitals of the document, then failing to stipulate the time cannot be said to render the contract void. Therefore, we have no hesitation in rejecting that contention based on vagueness.
13. The second limb of the argument in support of the same contention that stamped paper or revenue stamps were readily available, in Davanagere is not a circumstance which would probabilise the case of the first defendant having regard to his pleadings in the written statement. It is not uncommon that people in different circumstances even with the advice of a Solicitor or Advocate and in large Cities and Metropolis do reduce contract to writing on ordinary plain paper and later on get it validated by procedure prescribed by law in that behalf. Nor there is any judicial authority to show that such step should not be taken while entering into a contract. Therefore, the mere fact that in the town of Davanagere undoubtedly the stamp papers or revenue stamps will be readily available, should not preclude the parties to reduce their contract or agreement on plain paper if they so choose to do. We also must not overlook the fact that in the pleadings the first defendant never denied that he had signed Ex.P-3 at Ex.P-3(a). He vaguely pleaded that the document was a fictitiois one. Therefore, the trial Court, in that circumstance, came to the conclusion that in the absence of denial of his signature on Ex.P-3, there was no need for the plaintiff to prove the signature of the first defendant. We do not find fault with the trial Court for that. Therefore, the second limb of the argument, in our opinion, has no force.
14. The next contention that plaintiff by pleading that he was liable to pay as balance of consideration only a sum of Rs. 14,297.12 ps. clearly demonstrated that he was not ready and willing to perform his part of the contract in terms of the recitals contained in Ex.P-3 when the balance of consideration to be paid was Rs. 18,101/-. He relied upon a passage in the commentary on Specific Relief Act by pollock and Mulla, X Edition, at page 1000, under the heading difference between readiness and willingness. The learned authors have noted the distinction between readiness and willingness. The former has the reference to financial capacity and latter to the conduct of the plaintiff. Wanting plaintiff’s performance where a sale was to be completed on August 8, 1962, after certain documents were produced by the seller, on his failure to get the document the sale was to be completed within one month of his getting the documents on August 13, 1962. The seller obtained the documents and informed the purchaser by registered notice. The purchaser asked for the documents. The seller had given notice for completion of sale on August 6, 1962. The seller was held entitled to make time as the essence of the contract and purchaser therefore could not sue for specific performance after one month of August 16, 1962.
15. The noting is said to have been culled out from the judicial decision of the High Courts and Supreme Court. It may be so and one cannot doubt the authority of the proposition laid down as above. But the facts of this case do not attract that ruling or Interpretation as to readiness and willingness. In the plaint, plaintiff cleanly alleged how only a sum of Rs. 14,000/- and odd was due and liable to be paid towards balance of consideration. He claimed reduction of certain sums spent towards improvement to the building which amount was not returned by the first defendant who had induced the plaintiff to spend that sum for effecting the repairs. That amount coupled with the amount lying in deposit in the sum of Rs. 1000/-at the beginning of the commencement of the tenancy of the suit premises was liable to be adjusted towards the balance of sale consideration. That was not specifically traversed by the defendant in his written statement at all. He merely claimed ignorance of the facts alleged by the plaintiff, in paras 6 and 7 of his statement. In that circumstance, we do not think we should attach any importance to this argument having regard to the fact that at the time of filing the suit the plaintiff had deposited a sum of Rs. 14,297/- and no exception was taken in the written statement in that behalf. Therefore, there is no substance in the second contention urged before us.
16. It was also pressed that any oral evidence in regard to the adjustments to be made was impermissible under Section 92 of the Evidence Act as the same was not spelt out in the said document Ex.P-3 in its recitals. We do not think there is any force in that submission having regard to the second proviso to Sect ion 92 of the Evidence Act. The oral evidence is permissible to prove facts which are not contained in the recitals of a document which is required to be reduced to writing in law and which is not in the nature of a contradiction of the terms set out in the written document. Therefore, nothing admitted by way of oral evidence in regard to the oral agreement for repayment of the amount spent by the plaintiff towards repairs and return of the advance particularly in the absence of any pleading in that behalf by the first defendant and an issue being raised, nor objection taken when questions were asked in the examination-in-chief of plaintiff attracts the bar of Section 92 of the Evidence Act. We reject this argument also.
17. The last contention that he is not the owner should not be taken seriously. If, pursuant to the decree, the defendants execute the sale deed, plaintiff is the one who takes the risk, if all the members are not joined. Therefore, that cannot enure to the benefit of the defendant who is the defaulter.
18. Appeal is, therefore, dismissed with costs at the stage of preliminary hearing but after notice to the parties and hearing the Counsel for the parties.