High Court Kerala High Court

Selvaraj vs Narayanan on 13 January, 2009

Kerala High Court
Selvaraj vs Narayanan on 13 January, 2009
       

  

  

 
 
  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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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