ORDER
1. The unsuccessful plaintiff before the trial Court has filed the above
appeal.
2. According to the appellant/plaintiff, the 1st defendant on 23.2.1975 agreed Jo sell the suit property to the 2nd defendant free of all encumbrances for a consideration of Rs. 53,000 and he received an advance of Rs. 2,000. It was agreed that the balance of sale consideration should be paid by the 2nd defendant within six months. Accordingly an agreement was entered into between the parties. The 2nd defendant was always ready and willing to pay the balance of sale price and get the sale deed executed. He approached personally and through friends the 1st defendant to get the sale deed executed. The 2nd defendant also telegraphically contacted the 1st defendant to get the sale deed executed. Ultimately he caused a legal notice to the 1st defendant on 17.8.1975 for the said purpose. But the 1st defendant did not send any reply. On 22.2.1978 the 2nd defendant had assigned all his rights under the said agreement dated 23.2.1975 in favour of the plaintiff for valuable consideration. So the plaintiff has become entitled to enforce the said sale agreement and he has been ready and willing to pay the balance of sale consideration and to get the sale deed executed. The 2nd defendant informed the 1st defendant about the said assignment, on 23.2.1978. Since the 1st defendant did not execute the sale deed in spite of request, the plaintiff filed the suit for specific performance of the agreement dated 23.2.1975.
3. The 1st defendant contested the suit by filing written statement, According to him, the plaintiff has no locus-standi to sustain the suit. The plaintiff being a tenant is trying to retain the suit property under the guise of the said assignment. The 1st defendant has denied the case of the plaintiff that time is not the essence of contract. At no point of time the 2nd defendant was ready with the funds – the balance of sale consideration. The 2nd defendant has come forward with the false case in his notice dated 17.8.1975 as if the 1st defendant refused to receive the sum of Rs. 10,000 as second advance. According to the 1st defendant, the assignment claimed by the plaintiff is false and invalid as the assignor, himself has no existing right to assign so. The plaintiff was also not ready and witting to perform his part of the contract The 2nd defendant remained absent and set ex-parte.
4. The trial Court though originally framed as many as nine issues, on 7.2.1983 recast the issues. The trial Court after considering the pleadings, oral and documentary evidence found that since the 2nd defendant has not performed his part of the contract, he is not entitled to enforce the agreement, that knowing that the 2nd defendant cannot enforce the agreement, the plaintiff got the assignment from the 2nd defendant and so the plaintiff also cannot get it enforced and that there is no cause of action for the suit. On the basis of the abovesaid findings, the trial Court dismissed the suit.
5. It is not in dispute that the agreement Ex. A8 was executed by the 1st defendant, in favour of the 2nd defendant in respect of the suit property. The assignment Ex.A7 made in favour of the plaintiff by the 2nd defendant also is not in dispute. When the execution of Ex.A7 and Ex.A8 are not in dispute, I am not able to understand as to why the trial Court has framed an issue regarding the genuineness of the agreement and also about the said assignment. The main defence of the 1st defendant to avoid the sale is that the plaintiff and the 2nd defendant were not ready and willing to perform their part of the contract, and the assignment is not valid as the 2nd defendant has no power to assign the sale agreement in favour of the plaintiff.
6. In Ex.A8 it is stated as follows:
From the abovesaid recitals in the said agreement, it is clear that the 1st defendant had agreed to execute the sale deed in respect of the suit property in favour of the 2nd defendant or to his nominee. So, it cannot be said that the assignment Ex.A7 is contrary to the recitals in the agreement Ex.A8, and so the plaintiff will not get any right under the said assignment deed.
7. The trial Court has given importance to the fact that the 2nd defendant has not paid the second advance of Rs. 10,000 as stipulated in the agreement Ex.A8. The learned Senior Counsel appearing for the appellant/plaintiff has submitted that payment of the said sum of Rs. 10,000 is not a condition precedent even as stated in the agreement, Ex.A8. He has also stated that the 2nd defendant was ready to pay the said sum of Rs. 10,000. Even in the agreement Ex.A8, it is specifically mentioned that payment of Rs. 10,000 is not a condition precedent. So, the trial Court is not correct in holding
that by non-payment of Rs. 10,000, the plaintiff had lost his right to enforce the agreement, Ex.A8.
8. The 2nd defendant has given evidence as P.W.4. In his Chief-examination, he has deposed that he has agreed to pay the said sum of Rs.10,000 within two months from the date of the agreement Ex.A8. But, according to P.W.4, he had requested the 1st defendant to receive the entire sale consideration and to execute the sale deed, but the 1st defendant did not respond.
9. The trial Court has given much importance to the fact that the 2nd defendant has not paid the said sum of Rs. 10,000 as agreed to in the said agreement, Ex.A8. But the trial Court has not appreciated the fact that the 2nd defendant has come forward with the plea to the effect that he was ready and willing to pay the entire sale consideration and to get the sale deed executed, but only the 1st defendant did not co-operate. This version of the 2nd defendant is supported by Ex.A1 noticed dated 17.3.1975. Though the receipt of Ex.A1 is admitted in the written statement, no reply was given by the 1st defendant. Only for the first time, the contents in the notice Ex.A1 have been denied as false in the written statement. From the above, it is very clear that the 2nd defendant was always ready and willing to perform his part of the contract, and only the 1st defendant has delayed the execution of the sale deed. This conclusion is safely arrived at in view of the fact that the 1st defendant has not denied the averments specifically mentioned in Ex.A1 notice, immediately after receipt of the same.
10. The trial Court has also found that no document was filed either by the plaintiff or by the 2nd defendant to show that they are having money ready, to pay the same towards the sale consideration. Such a requirement is not necessary when the 2nd defendant himself has come forward with the notice Ex.A1 that he is ready to pay the sale consideration at the earliest point of time. Further, evidence is available on record to show that both the plaintiff and the 2nd defendant are having sources to pay the sale consideration.
11. Even according to the Explanation (i) to clause (c) of Section 16 of the Specific Relief Act, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court. The trial Court is not correct in holding that the plaintiff has not produced the documents to show that he is having money with him ready to pay the same towards the sale consideration. While considering the similar issue, the Division Bench of this Court in Eswari Amma v. M.K. Korab, 1972 (85) L.W. 239, has held as follows:
“The learned Advocate for the appellants relied on the decision in Veerayya v. N.S. Chowdry, 1966 (2) S.C J. 789, in support of his contention that in a suit for specific performance, the plaintiff must show that he was ready and willing to perform his part of the contract from the time the contract was made till the date of the decree. But it is clear from that date decision that the plaintiff must aver in his plaint that he was ready and willing to perform his part of the contract and that if the averment is traversed, he must prove the said averment. The plaintiff in this case pleaded that he was ever ready to do his part of the
contract. The first defendant has stated in her written statement the circumstances under which the plaintiff came and went away from her house in May, 1961 and pleaded that the plaintiff had no money with him to complete the sale and so he went away. There is no plea in the written statement of the first defendant that the plaintiff had no sufficient funds subsequent to his purchasing other properties in 1963 and prior to the suit and hence he could not have been ready and willing to perform the suit agreement during the entire period. In Nathulal v. Phoolchand, 1971 (2) S.C.J. 51 the Supreme Court has held that a vendor of immovable, property under an agreement of sale to whom, the vendee has paid pan of the sale price and entered into possession cannot call upon the vendee to pay the balance of price before he performs his part of the contract and that he cannot plead that the vendee is not ready and willing to pay the balance on the ground that he had not tendered the amount. It is pointed out in that decision that to prove himself ready and witling, the purchaser need not necessarily produce the money or vouch a concluded scheme for financing the transaction and that if he has an outstanding arrangement with his banker to enable him to draw the amount needed by him for payment to the vendor, that would be sufficient to prove his readiness and willingness. In Bank of India v. J.A.H. Chinoy, A.I.R. 1950 P.C. 90 at 96, the Privy Council has pointed out” that in order to prove himself ready and willing to perform his obligation under a contract to purchase shares, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction and that the question is one of fact. The plaintiff in that case had stated that he had no sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. The Privy Council agreed with the following observation of Chagla, A.C.J.:
‘In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the court that specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury – if the matter was left to the jury in England – would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2’.
For the foregoing reasons, we are unable to uphold the plea put forward by the learned advocate for the appellants in this court that though the plaintiff had means to purchase the properties in 1961, he was not in a position to do so after he purchased other properties in 1963, and therefore he could not have been ready and willing to perform his part of the suit agreement even prior to suit.”
12. The Apex Court also in Indira Kaur v. Sheo Lal Kapoor, , while dealing with the scope of proof with respect to the readiness and willingness of the agreement, has held as follows:
9. The High Court also committed the same error of drawing an adverse inference against the plaintiff for not producing the passbook in disregard of the fact that neither the defendant had called upon him to do so nor had the Court ordered him to do so at his instance or on its own. The relevant passage from the judgment of the High Court may be quoted in this context:
‘…The Court noticed that the plaintiff had stated that the amount had been deposited in the bank. There was no passbook of the bank to show that the plaintiff had the aforesaid amount in 1977’.
Thus all the three Courts have committed a serious error in drawing an adverse inference against the plaintiff which it was impermissible in view of the law declared by this Court in Mst.Ramrati Kuer v. Dwarika Prasad Singh, .
10. The second serious error which has crept into the judgment of the Courts below is shutting their eyes to the question whether the defendant was ready and willing to perform his part of the contract and whether he had remained present at the Sub-Registrars office on the appointed day. On the other hand the Courts have been obsessed by the issue as regards the income of the plaintiff and the question as to whether and how the plaintiff could have effected a saving as stated by him on oath. Not one question was put in order to elicit this information from the plaintiff. Even so the trial Court came to the conclusion that the plaintiff could not have saved the amount as he was selling earthen pots and his income was of the order of Rs. 100 to Rs. 150 per month. It was overlooked that a sum of Rs. 7,000 was obtained by the plaintiff when he entered into the transaction with the defendant in 1967 and the son for whose treatment the said amount had been raised by recourse to this transaction had died. No question was put him whether the entire amount had been spent for the treatment and in payment of other debts etc. No question was put to him about the extent of the income of his children from labour work. No question was put to him as to the amount of his expenses. Notwithstanding these salient circumstances, the trial Court came to the conclusion that the plaintiff could not have saved the amount. The lower Appellate Court and the High Court also mechanically confirmed the finding. The real test as to whether or not the plaintiff was ready and willing to perform his part of the contract was for the defendant to call his bluff, in case it was a bluff, by remaining present at the Sub-Registrar’s office on the appointed day that is to say on August 16, 1977 as he was bound to do if he on his part was ready and willing to execute the sale deed.”
13. In view of the abovesaid settled principles of law, the reasoning given by the trial Court that the plaintiff has not produced any documentary evidence to show that he is having the money ready cannot be sustained,
14. The other reasons given by the trial Court to non-suit the plaintiff is that the suit was filed on the last date. No law prohibits filing of a suit on the last date of limitation. Especially in this case, though the 2nd defendant was ready and willing to perform his part of the contract as stated in Ex.A1, the 1st defendant was not ready to perform his part of the contract, and so the plaintiff is entitled to file the suit before the last date to avoid the defence on the side of the 1st defendant to the effect that the suit is barred by limitation.
15. For the foregoing reason, the judgment and decree of the trial Court are set aside and the plaintiff is entitled for a decree as prayed for. Consequently, this appeal is allowed. No costs, The appellant has to deposit the balance amount within four months from today.
