PETITIONER: PANDURANG GANPAT TANAWADE Vs. RESPONDENT: GANPAT BHAIRU KADAM & ORS DATE OF JUDGMENT: 30/07/1996 BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) NANAVATI G.T. (J) CITATION: 1996 SCALE (5)675 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
S.C. Agrawal, J.
Special leave granted.
This appeal arises out of a suit filed by the appellant
for specific performance under an agreement for sale of land
by Smt. Janabai to the appellant.
Respondents Nos. 1, 3 and 4 are the sons of Smt.
Janabai while respondent No. 2 is her daughter-in-law. On
February 20, 1975 Smt. Janabai entered into an agreement for
the sale of suit lands to the appellant under which the
appellant agreed to purchase the lands for Rs. 7000/-. A sum
of Rs. 2,000/- was paid by the appellant to Smt. Janabai as
earnest money. As per the agreement the balance amount was
to be paid at the time of the execution of the sale deed.
The case of the appellant is that on May 5, 1976 he gave
notice to Smt. Janabai to execute the sale deed. The
appellant paid a further sum of Rs. 1000/- to Smt. Janabai
on July 30, 1976 and on August 20, 1977 further amount of
Rs. 800/- was paid to Maruti, the son of Smt. Janabai and
husband of respondent No. 2. Thus the appellant paid a sum
of Rs. 3,800/- towards consideration for the sale of the
land under the agreement. The case of the appellant is
further that on March 13, 1978 after the death of Smt.
Janabai, he sent a registered notice to the respondent
calling upon them to execute the sale deed in favour of the
appellant and since they failed to comply with the said
notice, he filed a suit for specific performance of the
contract in 1978. In the said suit of the appellant the
Civil Judge, Junior Division, Karmala, by his Judgment dated
December 10, 1982, declined to grant the relief of specific
performance on the view that the transaction was only a
money lending transaction and was not agreement for sale of
the land. The trial court, however, granted a money decree
of Rs. 3,800/- in favour of the appellant. On appeal the Vth
Extra Assistant Judge, Solapur, by Judgment dated April 24,
1984, reversing the finding of the trial court, held that
transaction between the parties was an agreement to sell.
The appellate court, however, held that the appellant had
not made necessary averments in the plaint as required in
form 47 of the Code of Civil Procedure as well as Section 16
(c) of the Specific Relief Act and consequently the
appellant was not entitled to a decree for specific
performance. The appellate court, therefore, maintained the
decree of the trial court denying the relief of specific
performance and affirmed the decree for Rs. 3,800/- passed
in favour of the appellant. The High Court, in Second
Appeal, has agreed with the view of the appellate court that
there is non-compliance with the provisions of Section 16(c)
of the Specific Relief Act inasmuch as the appellant has not
made a specific averment in the plaint that he was ready and
willing to perform his part of the cortract.
Shri U.U. Lalit, the learned counsel for the appellant,
has assailed the judgments of the appellate court and the
High Court and has invited our attention to paragraphs 6 and
10 of the plaint which read as under :-
“6. When the plaintiff asked the
deceased Janabai to execute a sale-
deed, by a registered notice on the
date 5.5.76, the deceased Janabai
neither gave a reply also to the
notice nor even executed a sale-
deed. Thereafter, the plaintiff
sent a reply of false contempts.
Therefore, the plaintiff has filed
this suit against the defendants to
get executed a sale deed in
pursuance of the Deed of Agreement
for sale. The defendant Nos. 1 to 4
have committed breach of conditions
mentioned in the Deed of Agreement
for sale.
10. As per the conditions in the
Deed of Agreement for sale, the
plaintiff is willing to pay fees
which is required for a sale-deed,
cost of registration and a balance
amount of Rs. 3,200/- (Rupees three
thousand two hundred only).”
In paragraph 6 the appellant has stated that the sent a
notice dated June 5, 1976 to Smt. Janabai asking her to
execute the sale-deed and that she neither gave a reply to
the said notice nor executed the sale-deed. In the said
paragraph the appellant has also stated that he sent a
registered notice to the respondents on March 13, 1978
asking them to execute the sale-deed but they did not
execute the sale-deed. In paragraph 10 the appellant has
stated that as per conditions in the deed of agreement for
sale the appellant is willing to pay fees which is required
for a sale-deed, cost of registration and a balance of
amount of Rs. 3, 200/-. This shows that in paragraph 6 of
the plaint the appellant has averred that after the
execution of the agreement for sale, he sent a registered
notice dated May 5, 1976 to Smt. Janabai to execute the
sale-deed and again sent a notice dated March 13, 1978 to
the respondent asking them to execute the sale-deed, meaning
thereby that the appellant had been making efforts to have
the sale-deed executed by issuing notices dated May 5, 1976
and March 13,1978. Moreover, in paragraph 10 a specific
averment has been made by the appellant that as per
conditions in the deed of agreement for sale, he is willing
to pay fees which is required for the sale-deed, cost of
registration and the balance amount of Rs. 3,200/-. The said
averments clearly contain a statement about the readiness
and willingness on the part of the appellant to perform his
part of the contract under the agreement for sale.
Apart from the said averments in the plaint, we find that
the appellant, in his deposition before the court, has
stated:-
“I issued notice to heirs of
Janabai to execute the sale deed. I
was ready to pay remaining amount
and act as per agreement. The
defendants did not execute the sale
deed as per notice. They replied my
notice (Exh. 50). As defendants are
not willing to execute the sale
deed I have filed this suit. I am
ready to pay remaining amount
immediately. I am ready to pay
costs as per agreement.”
Respondent No. 1, also in his deposition before the
court, has stated :-
“It is true that plaintiff was
ready for sale-deed, but I was not
ready.”
In view of the aforesaid statements of the appellant
and respondent No. 1 as well as the averments contained in
paragraphs 6 to 10 of the plaint, it must be held that the
appellant has not only averred, but has also proved that he
was ready and willing to perform his part of the contract
under the agreement for sale. The appellant court and the
High Court were, therefore, in error in holding that the
appellant and failed to comply with the requirements of
Section 16(c) of the Specific Relief Act and the appellant
must be held entitled to a decree for specific performance
of the contract in the suit filed by him. We find that the
possession of the land was delivered to the appellant in
1976 at the time of execution of the agreement for sale and
he is in possession of the same and has been enjoying the
same since then. Having regard to the depreciation in the
value of the rupee during this period, we feel that the
appellant should be required to pay a sum of Rs. 16,000/- in
lieu of the balance amount of Rs. 3,200/- payable by him.
For the reasons aforementioned, the suit for specific
performance filed by the appellant is decreed subject to the
appellant depositing in the trial court a sum of Rs.
16,000/- along with the stamp duty and registration charges
for the execution of the sale deed within a period of one
month from the date of this judgment. The respondents shall
execute the sale-deed in respect of the suit lands in favour
of the appellant within one month of the deposit of the said
amounts. In the event of the failure on the part of the
appellant to deposit the said amounts within the period of
one month, the judgment under appeal shall remain
undisturbed. The appeal is disposed of accordingly. No order
as to costs.