JUDGMENT
D.H. Nasir, J.
1. The short controversy involved in this appeal is whether the agreement of sale in all its import and purport was not an agreement for outright sale of the property but was confined only to a lease for excavation of tale stone.
2. In a suit for specific performance filed by the plaintiff-appellant, the Trial Court held that the plaintiff was not entitled for a decree of specific performance mainly on the ground that the plaintiff failed to prove that he was ready and willing to perform his part of the contract. The Agreement of sale being Ex.B-2 dated 19-3-1983 was not disputed. The receipt of down payment of Rs. 8,342/- by the defendant from the plaintiff at the time when Ex.B-2 was executed was also not disputed.
3. The Agreement of sale Ex.B-2 discloses that an extent of Ac. 08.15 cents in Sy. No. 176 in Bodduvaripalle was agreed to be sold to K.V. Shaw s/o Brijlal B. Shaw, belonging to Kurnool village, at the rate of Rs. 4,950/- per acre by way of an absolute sale and that towards the sale price, the defendant received a sum of Rs. 8, 342/- in cash as advance and the balance of Rs. 32,000/- was agreed to be paid by the plaintiff by the end of April, 1983 whereupon registration would be done subject to the conditions as stated in the agreement. It is also recited in the agreement Ex.B-2 that the vendor has delivered possession of the land in question to the plaintiff. An expression of “no objection” is also made in Ex.B-2 if the vendee occupied the land in question immediately and started digging pits for taking out mineral viz., tale stones. It is lastly stated in the agreement Ex.B-2 that it was written by the vendor whole heartedly and with consent in the presence of the under-signed.
4. Five different issues were framed by the trial Court, the first of which was whether the suit agreement was true, valid and binding. As stated earlier, this fact was not disputed and the learned trial Judge also held that he was firmly of the opinion that the suit agreement-Ex.A-1 (Ex.B-2) was true, valid and binding on the contracting parties. The real controversy, however, revolves round the assertion of fact whether the plaintiff paid Rs. 15,000/- on 23-5-1983 to the defendant towards the sale price of the land in question. The trial Court decided this issue also in favour of the plaintiff by stating that the Receipt- Ex.A-3 was true, valid and binding. The plaintiff’s case is that the defendant approached him in company with P.W. 2 for receiving part of the balance consideration. The trial Court held that a sum of Rs. 15,000/- was paid by the plaintiff to the defendant on 23-5-1983 for which receipt-Ex.A-3 was passed by the defendant. However, the defendant contended that a sum of Rs. 1,500/- (Rs. One thousand five hundred) only was paid and not Rs. 15,000/-. Further according to the petitioner (sic. defendant), this amount of Rs. 1,500/- was paid by way of costs to cover the expenditure of filling the pits dug by the plaintiff in the suit land and that the payment was not at all by way of part payment of the price of the suit land. The trial Court observed that P.W. 2, P.W. 4 and P.W. 5 in one voice stated that the defendant received a sum of Rs. 15,000/- as evidenced by receipt Ex.A-3. The defendant himself in his cross-examination stated “thumb impression in Ex.A-3 may be mine”. Taking these facts into consideration, the trial Court held that there could be no slur on the truth of Ex.A-3. The trial Court rightly observed that if really Ex.A-3 did not contain the defendant’s thumb impression, the defendant ought to have taken necessary steps for obtaining an expert opinion with regard to the validity or otherwise of the same. But the defendant did not choose to do so. Surprisingly, however, the trial Court held that the plaintiff was not entitled to a decree for specific performance as prayed for mainly on the ground that the plaintiff failed to prove his readiness and willingness to perform his part of the contract.
5. The defendant’s plea that time was the essence of the contract was not accepted by the trial Court having regard to the fact that the defendant admitted in his cross-examination that it was not stipulated in the agreement that time was the essence of the contract. The trial Court also observed that even if it was so recorded in the agreement of sale, in cases of the sale of immoveable property, the time could not gainfully be stipulated as the essence of the contract.
6. The Supreme Court held so in Chand Rani v. Kamal Rani, . Para 24 of the said decision which deals with this proposition of law is reproduced below:
“24. From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2. from the nature of the property; and
3. from the surrounding circumstances, for
example: the object of making the contract”.
7. In the case before us, the defendant in terms admitted in his cross- examination that the contract did not include such term. Neither the nature of the property nor the surrounding circumstances give us any reason to believe that the time was the essence of the contract. This point was not even properly formulated before the Court by the learned Counsel. However, what is emphatically sought to be brought home to the Court by the learned Counsel for the defendant – respondent was that the plaintiff- appellant was not ready and willing to perform his part of the contract. This proposition also, I am afraid, was not persuasively put forward before the Court. The trial Court has not even framed a specific issue whether the plaintiff – appellant was ready and willing to perform his part of contract. By way of a contention raised by the defendant – respondent only, the trial Court raised a question whether the plaintiff failed to prove his continuous readiness and willingness to perform his part of the contract and whether the proof of this fact was essential for granting a decree for specific performance. On its discussion on this aspect of the case, the trial Court observed in para 11 of the impugned judgment that the plaintiff asserted and the defendant denied that the plaintiff was ready and willing to perform his part of the contract. The question whether the plaintiff was entitled for specific performance, according to the trial Court, covered the question of readiness and willingness on part of the purchaser and relied upon the view expressed by the Supreme Court in Goumathi Nayagam Pillai v. Palanisivamy Nadar, and extracted the relevant portion of the said ruling which reads as follows:
“No specific issue was raised about the readiness and willingness of the respondent to perform his part of the contract, but the second issue included trial of the plea raised by the appellants 1, 2 and 3. The parties were it appears, fully aware of what was required to be proved and led evidence in support of their respective cases. No objection was raised in the Court of first instance protesting against the trial of that plea without a specific issue thereon”.
8. In the case before us, the appellant has in unmistakable terms expressed his readiness and willingness to pay the balance of the sale consideration and to obtain a registered sale deed, as pleaded in paragraph 5 of the plaint. In his oral evidence also P.W. 1 (appellant) stated as follows:
“subsequent to the agreement of sale, and till I filed this suit, I was ready and willing always to pay the balance of the amount and obtain the document (sale deed) from the defendant”.
When the appellant was cross-examined on this aspect of his case, the appellant said that he did not inform the defendant in writing that he was ready to pay the balance of the amount to obtain a registered sale deed, but he (appellant) orally informed him (defendant). The appellant further said that he intimated his readiness and willingness to the defendant through some of his servants, whose names he did not remember. He also did not remember to which area those persons belonged. The appellant also denied a suggestion made to him in his cross-examination that he did not express his readiness and willingness through any of his persons or that he was deposing falsely.
9. P. W. 4 – C. V. Ramanarao stated that on 23-5-83, the defendant approached the plaintiff accompanied by his village Ex. Karanam and requested for payment of Rs. 15,000/-. The plaintiff stated that he would pay the entire balance of the amount and asked the defendant to take the amount and register the sale deed as agreed. He further said that the defendant wanted only Rs. 15,000/- and, therefore, the plaintiff paid Rs. 15,000/- to the defendant. This assertion made by P. W. 4 was not controverted in his cross-examination. The cross-examination was limited to a suggestion that only an amount of Rs. 1,500/- was paid and not Rs. 15,000/- which of course was denied by P.W. 4. The statement made by P.W. 4 in his examination-in-chief that “the plaintiff stated that he would pay the entire balance of the amount and asked the defendant to take the amount and register the sale deed as agreed” was not controverted in his cross-examination.
10. P.W. 5 also corroborated the say of P.W. 4 that the plaintiff represented that he was prepared to pay the entire balance of the amount. The defendant wanted the payment of Rs. 15,000/- only. He paid Rs. 15,000/-. In his cross- examination, it was indeed suggested to him that a sum of Rs. 1,500/- only was paid to the defendant and not an amount of Rs. 15,000/-, but the cross- examination is silent with regard to the corroboration emerging from the deposition of P.W. 5 that “the plaintiff represented that he would be prepared to pay the entire balance of the amount”. The plea of readiness and willingness stands further corroborated from the oral testimony of P.W. 6 also, who said that “at the instance of the plaintiff and one Khaja Hussain, I went to the defendant and asked him to take money from the plaintiff and execute a registered sale deed”. This version of P.W. 6 does not receive any set back in his cross-examination. Same is the case with P.W. 7. His version on the plaintiff’s readiness and willingness also did not suffer any damage in his cross-examination.
11. Surprisingly the defendant in his examination-in-chief did not traverse the version of the plaintiff duly corroborated by the plaintiff’s witnesses, to the effect that the plaintiff was always ready, and willing to perform his part of the contract. The defendant concentrated his entire testimony on his contention that he received Rs. 1,500/- only and not Rs. 15,000/- as claimed by the plaintiff. In his cross-examination, he answered the questions in affirmative or negative as it suited him; but such affirmative and negative statements, made in cross-examination do not constitute a substantive evidence supporting the defence. Such answers are to be evaluated from the stand point of contradictions only.
12. Several authorities were cited by the learned Counsel for the defendant – respondent, on this proposition of readiness and willingness which, I am afraid, render no assistance to the respondent’s case. In United Poineer Society v. Chand Bibi, 1986 (1) ALT 372, it was held that the legislature by couching the language “cannot” and ‘must’ in Explanation (ii) of Section 16 (c) has manifested the legal inability on the part of a Court to specifically enforce the agreement when no express averment of continuous readiness and willingness on his part of the contract has been made in the plaint. The facts before us and the evidence before us in the instant case are quite different from the above case.
13. In Chand Rani’s case (1 supra), it was agreed between the parties that the vendor would redeem the property which was mortgaged and also obtain the income-tax clearance certificate and the word ‘only’ was used twice i.e., to qualify the amount and to qualify the period of payment of such amount i.e., ten days it was held that the intention of the parties was to make time as essence of contract and in such case, when the purchaser was not ready and willing to pay the amount in part as agreed, before delivery of possession and income-tax clearance certificate and redemption of property, it was contrary to the conditions of the agreement and the purchaser was not entitled to the specific performance of contract. It need hardly be stated that the facts before us in the instant case are not at all analogous to the facts before the Supreme Court, in the above decision so as to apply the ratio emerging therefrom to the facts of our case.
14. The plea about readiness and willingness of plaintiff is specifically available to the vendor or his legal representatives and it is personal to him, as held by the Supreme Court in Jugraj Singh v. Labh S4ingh, 1995 (3) ALT 42 (SC) = AIR 1995 SC 945. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. The vendor’s plea that the purchaser was not ready and willing to perform his part of the contract is disputed before this Court. What is attempted to be made out in the case before this Court is the absence on the part of the purchaser to satisfactorily show his readiness and willingness, which overwhelmingly and conspicuously is found to be present on examining the conduct of the purchaser.
15. Continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance and right from the date of execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract, as held by the Supreme Court in N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, . This requirement stands amply satisfied from the plea taken by the appellant in the plaint as also from the oral evidence tendered by the plaintiff himself, and the corroboration which the plaintiff’s testimony received from his witnesses on the one hand and the conspicuous absence of the denial thereof in the oral testimony of the defendant. This ruling of the Supreme Court therefore, also does not go to the rescue of the defendant-respondent.
16. The defendant’s assertion that the land was agreed to be sold not on out right basis, but only for the purpose of exploiting the mineral which the plaintiff-appellant did not find in abundance after digging pits on the said land and secondly that the plaintiff returned the possession thereof back to the owner with an expression of an intention that he was not interested in the land, stands demolished by the fact that in the suit agreement itself, it is unambiguously written that the agreement was for the purpose of absolute sale of the land in question and the plaintiff was not interested in purchasing the land if the mineral was not found to be adequate. In the receipt Ex.A-3 also it is stated that the sum of Rs. 15,000/- was paid as part payment of the cost of the land S. No. 176 of Birapuram to Gudise Chinnayya s/o Pedda Gokari of Birapuram h/o Bodduvanipalle. In view of this over-whelming evidence, disclosing the true intention of the parties that this was an absolute sale and not a conditional or a limited sale for the purpose of ascertaining whether the mineral was adequate or not, a mere assertion made by the defendant-respondent that the plaintiff-appellant after entering into possession on the execution of the agreement for sale, returned the possession to the defendant-respondent after digging 7 to 8 pits and on realising that the same was not sufficient for the plaintiff’s requirement, the possession was returned to the defendant, does not extinguish the plaintiff’s right. The defendant does not dispute his thumb impression on receipt-Ex.A-3, but advanced a story that a sum of Rs. 1,500/- only was received from the plaintiff and not Rs. 15,000/- as mentioned in Ex.A. 3, which is not only not believed by the trial Court, but fails to inspire this Court with confidence regarding the truth of the same in the face of a clear statement made in the receipt that a sum of Rs. 15,000/- was received as part payment of the cost of the land. It is also significant to note that the defendant-respondent does not speak anything about the sum of Rs. 8,342/- initially paid out of Rs. 32,000/- being the total price of the land as mentioned in the agreement-Ex.B-2. If it is the case of the defendant-respondent that the sum of Rs. 1,500/- was received by the respondent from the appellant towards the cost of refilling the pits which the appellant had dug in the suit land, it was necessary that the sum of Rs. 8,342/- which the respondent received initially from the appellant should have been refunded to the appellant. If it is the case of the respondent that the contract of sale stood terminated on account of lack of readiness and willingness on part of the appellant to perform his part of the contract, the respondent should have forfeited the sum of Rs. 8,342/- which was received at the first instance, so as to justify the breach of contract and the consequent forfeiture. The respondent, however, does not come out with any explanation with regard to the aforesaid sum of Rs. 8,342/- whether it was forfeited or retained by the respondent on any other account or whether it was refunded to the purchaser, which conduct of the respondent exposes the hollowness of the defence taken by the respondent. And in fact, this conduct of the respondent gives the Court an emphatic reason to believe that the same was invented with a mala fide intention of defeating the appellant’s right emerging from the contract.
17. Notwithstanding the rider that “the plaintiff was not interested in purchasing the land if the mineral was not found to be adequate”, the defendant accepted the subsequent payment, be it Rs. 1,500/- or Rs. 15,000/-, which clearly discloses the intention of both the parties that the transaction was to be gone through. Mere returning the possession does not mean that the plaintiff-appellant was not interested on account of inadequacy of mineral. It could as well be that the appellant returned the possession with an honest intention that so long as the transaction was not completed by making full payment, it would not be fair on his, part to retain the possession. This intention is clearly reflected from the conduct of both of parties that the purchaser paid and the seller accepted the subsequent payment. If the mineral was inadequate, the purchaser would not have come forward to complete transaction.
18. For all the above reasons, therefore, I am satisfied that the appeal deserves to be allowed. It is significant to note that the trial Court accepted the entire case of the appellant except the plea of readiness and willingness, but the defendant-respondent did not file any cross-objections or cross appeal challenging the findings of the trial Court on the issues involved in deciding the suit. On that ground, therefore, not only the appeal deserves to be allowed, but the entire suit is required to be decreed granting all the reliefs as prayed for by the plaintiff-appellant in the suit.
19. In the result, therefore, the appeal is allowed. The suit for specific performance as prayed for by the plaintiff-appellant is decreed and the trial Court is directed to draw the decree accordingly in favour of the plaintiff- appellant. No costs.
