U.R. Narashimha Murthy vs Madhava Tenkillaya on 14 March, 1988

ORDER 18 RULES 17 & 17A – Purport – Powers under Rule 17 very wide – Court can recall witness to avoid ambiguity or omission in Judgment suo motu or at the instance of a party – Rule 17A applicable when party satisfies the Court that after exercise of due diligence, evidence not within his knowledge or could not be produced at the time of his evidence.

Order 18 Rule 17 of the C.P. Code no doubt empowers the Court to recall at any time a witness who has been examined and cross-examined, The powers under the said Rule are very wide. The Court can recall a witness to avoid any ambiguity or omission in its Judgment. The power can be exercised suo motu or at the instance of a party…..Under Rule 17A, where a party satisfies the Court that after exercise of due diligence, any evidence was not within his knowledge or it could not be produced by him at the time when the party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.

JUDGMENT

K.A. Swami, J.

1. This appeal is preferred against the Judgment and decree dated 18-11-1986 passed by the learned VIII Additional City Civil Judge, Bangalore in O.S. No. 10361/ 1983. The appellant is the plaintiff and the respondent is the defendant.

2. In this Judgment, the appellant and the respondent will be referred to as plaintiff and defendant respectively.

3. The trial Court has dismissed the suit and refused to pass a decree for specific performance of an agreement of reconveyance dated 9th July 1979 a copy of it is produced as Ex.P. 1, and the original is marked as Ex.D. 1.

4. It is not necessary to repeat the pleadings of the parties in this Judgment as the pleadings are summarised in detail in the Judgment of the trial Court and as the relevant pleadings will be referred to in the course of this Judgment.

5. On the basis of the pleadings of the parties, the trial Court framed the following issues:

1. Whether the plaintiff proves that he has complied with all the terms and conditions stipulated under the deed of reconveyance and was ready and willing to perform his part of the contract?

2. Whether the plaintiff proves that the defendant committed breach of contract?

3) Whether the plaintiff is entitled for reconveyance of the Schedule ‘A’ and ‘B’ properties with possession?

4) Whether the defendant proves that he is the absolute owner of the schedule property as contended in the written statement?

5) Whether the plaintiff is entitled for liquidated damages at Rs. 4,500/- p.m. from the date of suit till the date of realisation?

6) What decree or order?

6. In support of his case the plaintiff has examined himself and has also produced 10 documents which are marked as Ex.P.1. to P. 10. The defendant has examined himself as D.W.3 and has also examined two witnesses D.Ws.1 and 2 and produced 3 documents marked as Ex.D.1 to D.3.

7. As already noticed, Ex.D.1 is the original of the agreement of reconveyance dated 9-7-1979. The plaintiff is the lessee of suit ‘A’ Schedule premises bearing No. 26, Lady Curzon Road, Civil Station, Bangalore fully described in Schedule ‘A’ to the plaint. The suit properties consist of ‘A’ Schedule and ‘B’ Schedule. ‘B’ Schedule consists of several valuable articles mentioned therein belonging to the plaintiff. Thus the plaintiff had only the lease-hold right in plaint ‘A’ Schedule Property. It is in respect of this leasehold right in plaint ‘A’ Schedule property and the properties mentioned in plaint ‘B’ schedule, on 19-5-1978, the plaintiff entered into an agreement with the defendant and inducted the defendant as licensee of Schedule-‘A’ and ‘B’ properties. On the expiry of that licence period both of them executed a conditional sale deed dated 9-7-1979 produced as Ex.D. 1. Under this conditional sale deed, the plaintiff conveyed the suit properties for a sum of Rs. 3 lakhs to the defendant on a condition of reconveyance, the details of which will be referred to a little later and the defendant agreed to reconvey on the expiry of four years from the date of the deed within the period as stipulated and as per the terms mentioned therein. According to the case of the plaintiff even though he was and has been ready and willing to perform his part of the agreement of reconveyance, the defendant was and is not ready and willing to perform his part of the agreement, therefore, it became necessary for him to approach the Court. The defendant has resisted the suit. In substance the plea of the defendant is that the plaintiff has failed to comply with the term of reconveyance as contained in the deed, therefore, he is not entitled to seek reconveyance as he has lost his right to seek reconveyance and he has become absolute owner.

8. On the basis of the evidence on record, the trial Court has held that the plaintiff has failed to prove that he was ready and Willing to perform his part of the contract, that the plaintiff has failed to prove that the defendant has committed breach of the contract. As a result of recording negative findings on issues 1 and 2, on issue No. 3 it has held that the plaintiff is not entitled to the relief of reconveyance and possession of the suit properties. Consequently the trial Court has held that the defendant has proved that he has become absolute owner of the suit schedule properties. It has accordingly dismissed the suit.

9. Before raising the points for determination, it is necessary, to refer to one more aspect of the case. In the course of trial, there was an application for amendment of the plaint filed by the plaintiff on 22-8-1985 (I.A.No. 4). The amendment sought for was to introduce an express averment in para 5 of the plaint as follows :-

“The plaintiff has been and is still ready and willing to perform his part of the agreement.”

10. The trial Court by the order dated 20-9-1985 rejected the said application. C.R.P. No. 3060/85 was filed by the plaintiff before this Court against the order rejecting the application I.A.No. 4. This Court by its order dated 20-1-1986 rejected the said Civil Revision Petition holding that there was no merit in it and further observing that the plaintiff may file a seperate suit, if permissible under the law.

11. Being aggrieved by the said order passed by this Court rejecting C.R.P. No. 3060/85, the plaintiff preferred Civil Appeal No. 47/1987 before the Supreme Court of India. The Supreme Court by the order dated 12-1-1987 set a side the order of this Court and permitted the plaintiff to press the amendment application in the appeal as by that time, the suit had been disposed of. This order will be referred to while considering the contention relating to amendment.

12. In the light of the contentions urged before us, on both sides, the following points arise for consideration :

1) Whether the trial Court is justified in law in rejecting I.A. No. 4 filed by the plaintiff seeking amendment to the plaint?

2) Whether the plaintiff has proved that he has performed his part of the conditions of the agreement of reconveyance as contained in Ex.D.1? or

3) Whether he has proved that he was and has been ready and willing to perform his part of the agreement?

4) Whether the trial Court is justified in refusing to grant a decree for specific performance and in further holding that the defendant has not committed breach of agreement and he has become the absolute owner of the suit schedule properties?

5) Whether the trial Court is justified in holding that the plaintiff is not entitled to liquidated damages at the rate of Rs. 4,500/- p.m. from the date of suit till the date of realisation? 6) What order?

POINT NO. 1 :-

13.1. The plaintiff has filed the present suit, as already pointed out, for specific performance of an agreement of reconveyance as contained in Ex.D.1. Under the said deed, the plaintiff has transferred the B Schedule properties and leasehold right in plaint ‘A’ Schedule property to the defendant for a sum of Rs. 3 lakhs on conditions that if the plaintiff repays the entire sum of Rs. 3 lakhs after 4 years and before the expiry of 5 years and intimate the defendant in writing his intention to take back the running business a month earlier to the payment, the defendant has to reconvey the suit schedule properties and hand over possession of the same.

13.2. In the plaint there is no averment in express words, that the plaintiff was and has been ready and willing to perform his part of the agreement. Nevertheless issue No. 1 covered this part of the case and the parties went to trial being fully aware of the fact that the plaintiff was to prove that he was and has been ready and willing to perform his part of the agreement. The recording of evidence was over by 22-8-1985. It was at that time the application I.A. No. 4 was filed on 22-8-1985 for amendment of the plaint. The defendant objected to the said application by filing the statement of objections. In the affidavit filed in support of the application it was averred that evidence had been adduced to show that the plaintiff has been and is still ready and willing to perform his part of the agreement and therefore, he may be permitted to amend the plaint after para 5 by adding the sentence : ‘The plaintiff has been and is still ready and willing to perform his part of the agreement.” The defendant in his objections contended that there was inordinate delay in seeking amendment and that it would introduce a fresh cause of action, therefore it should not be allowed. The trial Court by the order dated 20-9-1985 rejected the application on two grounds viz., (V) that the amendment would introduce a new cause of action and thereby changes the nature of the suit and (2) that it is not necessary for the purpose of determining the real question in controversy.

14.1. As already pointed out the C.R.P. filed before this Court (C.R.P. No. 3060/85) challenging the order rejecting the application – I.A.No. 4 by the trial Court was dismissed by the order dated 20-1-1986 and against which C.A. No. 47/1987 was filed before the Supreme Court of India and the Supreme Court allowed the appeal by the order dated 12-1-1987, and set aside the order of this Court dated 20-1-1986 made in C.R.P. No. 3060/85. The order of the Supreme Court reads thus:

“Special leave granted. We have heard learned Counsel for the parties. We are informed that the suit out of which this appeal arises has been disposed of by the trial Court and an appeal has been filed : We, therefore, set a side the order of the High Court without expressing any opinion on its correctness. It is open to the appellant to press the application for amendment of the plaint before the Appellate Court. If the application for amendment of the plaint is pressed in the Appellate Court, it is open to the respondent to take up all contentions available to him. The Appellate Court will consider it without feeling bound by the order passed by the High Court.”

14.2. In this appeal apart from raising a ground that the trial Court has committed an error in rejecting the application seeking amendment, the plaintiff, as a precautionary measure, has also filed an application seeking the very same amendment to the plaint. At the outset it was pointed out by the Court, that a fresh application was not necessary having regard to the fact that the plaintiff had filed the application I.A.No. 4 before the trial Court and it was rejected by the trial Court against which he preferred C.R.P. No. 3060/85 which having been rejected he filed C.A. No. 47/1987 before the Supreme Court and the Supreme Court set aside the order passed by this Court, and directed the plaintiff 10 press his application I.A.No. 4 before this Court in the appeal.

15. The contention of Sri A. Jagannatha Shetty, learned Counsel for the defendant is that the plaintiff has not offered any explanation for the delay in filing the application I.A.No. 4 ; that the amendment sought for would introduce a new cause of action and a new cause of action cannot at all be permitted to be introduced by way of an amendment. On the contrary it is contended on behalf of the plaintiff that on the date of seeking amendment by filing – I.A. No. 4, another suit would have been filed and in that event, there was no bar of limitation. It is also further contended that the plaint averments even in the absence of an application for amendment are sufficient enough to constitute the plea that the plaintiff was and has been ready and willing to perform his part of the agreement. In addition to this, it is further contended that issue No. 1 framed in the suit specifically covered this aspect in as much it was to the effect as to “whether the plaintiff proves that he has complied with all the terms and conditions stipulated under the deed of reconveyance and was ready and willing to perform his part of the contract?.” Therefore, it is submitted that the amendment sought for is only clarificatory and as such it is of formal nature.

16. Before adverting to the several decisions relied upon on both sides, we must first consider whether the averments made in the plaint read as a whole, constitute the plea that the plaintiff was and has been always ready and willing to perform his part of the contract.

17.1. In SUDAMA PRASAD SAH v. RAM SINGHASON & ORS., it is observed that it is open to the party to argue that the facts as stated in the plaint constitute sufficient averment of his readiness and willingness to carry out his part of the contract and it will be for the trial Court to decide whether such argument is valid or not. That was a case in which an amendment of similar nature in a suit for specific performance was sought in the trial Court. The trial Court allowed the amendment. However, the High Court in revision set aside the order of the trial Court and rejected the application filed by the plaintiff seeking amendment. The Supreme Court observed thus:

“It is true that the High Court ordinarily should not interfere in revision with an order passed by the subordinate Court allowing an amendment and in this case, the amendment only sought to introduce an express averment of readiness and willingness and perhaps, therefore, we might have interfered with the order of the High Court, but having regard to the nature of the claim, we do not think it necessary in the interests of justice that we should interfere with the order of the High Court in the exercise of our extraordinary jurisdiction under Article 136 of the Constitution. Of course, it will be open to the appellant to argue that the facts as stated in the plaint constitute sufficient averment of his readiness and willingness to carry out his part of the contract and it will be for the trial Court to decide whether such argument is valid or not.”

Therefore we shall first see whether the facts pleaded in the plaint are sufficient to constitute a plea that the plaintiff has been ready and willing to perform his part of the contract.

17.2. The facts having a bearing on this as stated in the plaint can be taken as almost undisputed. In the instant case, as per the plaint averments, a conditional sale deed was executed on 9-7-1979. As per the terms of that deed, on the expiry of 4 years from 9-7-1979 i.e., from 9-7-1983 to 9-7-1984 if the entire sum of three lakhs was repaid by the plaintiff to the defendant, the defendant was to execute a deed of reconveyance in favour of the plaintiff and deliver all the title deeds allied records relating to the property belonging to the plaintiff along with good-will fixtures, furnitures etc., as mentioned in Schedule B, provided the plaintiff intimated the defendant his intention of taking back the running business in writing at least one month in advance of the date of proposed payment of the amount which was payable within a period of 12 months i.e., after the lapse of 48 months from 9-7-1983. As per the averments made in the plaint even on 5-5-1983 itself, the plaintiff intimated the defendant his willingness to take back the running business and to have the suit properties reconveyed to him as per Ex.P.3. Along with the notice Ex.P.3, he also sent an intimation of the Bank to the effect that he had deposited a sum of Rs. 3 lakhs and odd in the Central Bank of India, Bangalore Branch, Bangalore. A reply dated 8-7-1983 (Ex.P.5) was sent by the defendant. In Ex.P.5 the defendant did not dispute the agreement nor did he raise any objection to execute the reconveyance deed. In Ex.P.5 the defendant only pointed out the terms of the agreement which the plaintiff was to comply with. To the said reply, on 14-7-1983, as per Ex.P.6, the plaintiff sent a further reply through a lawyer. In the reply, the plaintiff specifically averred about his readiness and willingness to perform his part of the agreement and also invited the defendant to receive the amount and execute the sale deed. As per the averment made in the plaint, the defendant sent a reply to Ex.P.6 on 21-7-1983 as per Ex.P.7. In this reply, the defendant put an end to the agreement of reconveyance as contained in Ex.D. 1 and claimed to have become absolute owner and nothing more remained to be done. Even then the plaintiff by another notice dated 29-7-1983 (Ex.P.8), called upon the defendant to receive the amount in cash and execute the reconveyance deed and hand over possession of plaint A and B Schedule properties. The attitude of the defendant as reflected in his further reply Ex.P. 10 dated 4-8-1983 continued to be the same. Hence, the plaintiff had to file the suit on 20-8-1983 itself for specific performance of the agreement of reconveyance as contained in Ex.D.1 without any delay.

17.3. The above facts as pleaded in the plaint which are not disputed by the defendant in his written statement do constitute sufficient averment of plaintiff’s readiness and willingness to perform his part of the agreement. It is because of the fact that plaintiff was and has been ready and willing to perform his part of the agreement, the plaintiff gave notice in writing earlier to 9-7-1983. He intimated his intention to take back the running business and to have the suit properties reconveyed. In addition to this even after the breach of agreement was committed by the defendant through Ex.P.7 by putting an end to the agreement, the plaintiff still requested the defendant by Ex.P.8. to receive the amount and to perform his part of the agreement. The suit was filed immediately without any loss of time on 20-8-1983. All these clearly indicate that the plaintiff was and has been ready to perform his part of he agreement.

18. Not only this, it is also not in dispute that on the very first date of appearance i.e., 4-10-1983 even before the defendant filed the written statement, the plaintiff actually produced the cheque issued by the Bank and requested the defendant to receive the same and perform his part of the agreement. The order-sheet of the trial Court dated 4-10-1983 bears testimony to this fact. In addition to this, the defendant has admitted this fact in his evidence. The defendant refused to accept the banker’s cheque and refused to perform his part of the agreement. Even subsequent to 4-10-1983, on 21-2-1985 the plaintiff offered cash of Rs. 3 lakhs in Court. This fact is also a matter of record. Thus from 5-5-1983 till 21-2-1985 the plaintiff’s conduct throughout has been one of his readiness and willingness to perform his part of the contract. In such a situation when an application for amendment is filed, it is surprising to notice that it is rejected by the trial Court on the ground that it introduces a new cause of action and changes the nature of the suit. Still more strangely, the trial Court has observed that it is unnecessary for the purpose of determining the real question in controversy. Obviously the learned trial Judge has not correctly and properly construed the plaint averments. Further he has not been able to appreciate the scope of Section 16(c) of the Specific Relief Act, 1963, (hereinafter referred to as the ‘Act’). A plaintiff seeking specific performance of an agreement of sale or reconveyance is required to aver and prove that he is and has been ready and willing to perform his part of the contract. If such a plea is not expressly taken in the plaint, the entire plaint averments shall have to be read together and found out whether the plaint averments are sufficient to constitute such a plea of plaintiff’s readiness and willingness to perform his part of the contract. We have already held that the plaint averments in the instant case are sufficient to constitute such a plea. Therefore, even in the absence of an amendment, the trial Court ought to have proceeded on the basis that the plaintiff has averred that he was and has been ready and willing to perform his part of the contract.

19. In addition to this, this is a case in which an issue (issue No. 1) has been raised with regard to plaintiff’s readiness and willingness to perform his part of the contract. The Supreme Court while considering such a case has observed in BHAGWATI PRASAD v. CHANDRAMAUL, thus :

“If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be found on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it?

If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another.”

In the instant case, the parties knew that this matter was in issue in the suit as an issue was specifically raised. They also knew the scope of the issue and adduced evidence on it. Therefore, the trial Court ought to have held that the amendment sought for was only formal and clarificatory in nature. In such a situation, absence of express plea would be formal and technical and as such the objection as to absence of express plea, should not have been allowed to succeed so as to defeat the substantive rights and thereby resulting in the failure of justice on a technical ground.

20. However, it is contended on behalf of the defendant that the amendment sought for introduces a new cause of action and the trial Court has exercised its discretion on the reasons stated by it, therefore, it is not a case in which interference is called for in appeal. It is not possible to accept these contentions.

21. There is no question of introducing a new cause of action. No doubt Section 16(c) of the Act does make it incumbent upon the plaintiff to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the ‘contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant. However, as held by the Supreme Court in Sudama Prasad Sah’s case, in a case where such plea is not expressly taken it is still open to the plaintiff to argue that the facts as stated in the plaint constitute sufficient averment of his readiness and willingness to carry out his part of the contract. The plaint, in the instant case, read as a whole, do constitute such a plea. That it is so is already pointed out. Explanations (i) and (ii) to Section 16(c) of the Act are also relevant in this regard. The Explanations to Section 16(c) of the Act explain the scope of Section 16(c) of the Act. Where a contract involves the payment of money, 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. It also provides that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. In the instant case, the defendant has admitted in his evidence and it is the specific case of the plaintiff in the plaint itself that the conditions incorporated in Clauses 13 and 23(b) in Ex.D.1 are only intended to ensure payment of money to the defendant. That being so, the amount offered by the plaintiff in the Court on two occasions would go to show that the plaintiff has been able to prove that he has been ready and willing to perform his part of the contract.

22. Learned Counsel for the defendant has placed reliance on a decision of the High Court of Allahabad in MAHMOOD KHAN v. AYUB KHAN, . In the said decision it has been held that the amendment of the plaint in such a case cannot be allowed for two reasons; firstly, because a valuable right has accrued to the defendant and secondly because the amendment seeks to bring out a cause of action in the plaint, which was conspicuously absent in the plaint as originally filed. As far as the cause of action for bringing the suit is concerned, it has already been pointed out that the averments in the plaint, without an amendment are sufficient to, and do, constitute a plea of plaintiff’s readiness and willingness to perform his part of the agreement. That being so, there is no question of introducing a new cause of action inasmuch as the plaint does not suffer from want of necessary averment. The amendment sought for is only clarificatory and is intended to introduce an express averment of readiness and willingness of the plaintiff to perform his part of the contract. Therefore, the decision in Mohamood Khan’s case, is of no assistance to the defendant. Further in Mohamood Khan’s case on scrutiny of the plaint averments, the Court found that they did not constitute the plea of the plaintiff’s readiness and willingness to perform his part of the contract. In a subsequent decision in DHIAN SINGH v. TARA CHAND, , the same High Court while considering the decision in Mahmood Khan’s case, along with various other decisions, has held that in Mahamood Khan’s case, there was absolutely no averment with regard to plaintiff’s readiness and willingness to perform his part of the contract. Therefore, it is further observed that the decision in Mohamood Khan’s case, rests upon the particular set of facts involved in that case. It is further held in Dhian Singh’s case, that Section 16(c) of the Act does not insist upon a particular set of words, being employed, the averment according to Section 16(c) must in substance indicate continuous readiness and willingness on the part of the person suing. The form prescribed under Order 6 Rule 3 C.P.C. is procedural; it is a rule of pleading; this has for its object the advance of the cause of justice and is not intended to short-circuit decision on merits. It is a procedure, something designed to facilitate justice and further its end, not a penal enactment.

23. In PRAG DATT v. SARASWATI DEVI AND ANR., , after referring to the decision in Mahamood Khan’s case, it has been observed that on facts, however, no two cases may be a like and observations made on a particular set of facts in a case cannot be relied upon to support a case on totally different set of facts. While dealing with Section 16(c), of the Specific Relief Act, and of Form-47 of Appendix ‘A’ to the Civil Procedure Code it has been observed that they are not intended to be interpreted narrowly and in a hyper technical manner. It is the substance of the matter which is of importance. If from the averments made in the plaint and the surrounding circumstances, it is established in substance that the plaintiff was ready and willing to perform his part of the contract and had remained ready and willing to perform the same throughout, it would not be proper to non-suit him on a verbal omission here or there. Thus in the very High Court, the decision in Mahamood Khan’s case is distinguished and not accepted as a precedent laying down the law correctly and it has been confined to the facts of that case.

24. In BYOMKESH v. NANI GOPAL, various decisions of the Supreme Court having a bearing on the point are considered and it has been held thus :

“Section 16(c) of the Specific Relief Act, 1963 provides that “specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract….”. The expression aver and prove would indicate that the plaintiff must not only prove at the trial his readiness and willingness but must also aver the same in the plaint. The necessity of such an averment would also appear from the provisions of Explanation (ii) to Section 16 wherein it has been provided that “the plaintiff must aver…….readiness and willingness to perform the contract according to its true construction.” Even under the preceding Specific Relief Act of 1877, which did not contain any such provision analogous to Section 16(c) requiring the plaintiff to plead as well as to prove his readiness and willingness at all relevant time during the contract, it was nevertheless held that the plaintiff was to plead as well as prove such readiness and was to fail if he had failed to do so. This would appear from the decisions of the Privy Council in Ardeshir v. Flora AIR 1928 PC 208 at Page 216, and of the Supreme Court in Gomathinayagam v. Paliniswami, in Prem Raj v. D.L.F. Housing & Construction Ltd., , and in Ouseph Varghese v. Joseph Aley, and the law was that a Suit for specific performance without any averment in the plaint as to the plaintiff’s readiness and willingness was not maintainable. But, where as here, not-withstanding the absence of any such averment in the plaint, the trial Court has proceeded with the trial and the defendant has fully participated therein without any objection and the trial has ended in a decree and no objection has been taken by the defendant either in the memo of appeal or in the argument before the Appellate Court as to the absence of such averment in the plaint or want of readiness and willingness on the part of the plaintiff and the Appellate Court also finds that there is satisfacory evidence as to the plaintiff’s readiness and willingness, the suit, in our view, should not be thrown out solely on the ground that the plaint did not contain the averment as required under Section 16(c) but the plaintiff should be given every reasonable opportunity to make good the detect by amendment of the plaint. In Manick Lal Seal v. K.P. Choudhury. , such, a prayer for an amendment was refused by a learned single Judge of this Court on the sole ground that the plaintiff did not say anywhere that even at the time of hearing he was willing and ready……..”. In this case, the plaintiff has not only demonstrated his readiness and willingness by three repeated attempts in quick succession to send the advance amount by Bank Draft to the defendant, by sending repeated notices through his lawyer and by filing this suit at an early date, but his unchallenged categorical statement on oath as PW-1 is that “I am always ready and willing to perform my part of the contract.” It should be noted that it was not the case of the defendant at any stage either in the written statement or at the trial or even before us that the plaintiff was not so, ready and willing. That being so, the amendment prayed for in this case should be allowed according to ratio in Manick Lal Seal (supra).

Mr. Ali in opposing the application for amendment has referred to a single Judge decision of the Patna High Court in Ram Singhasan v. Sudama Prasad. where it has been held that if the plaintiff has failed to make the necessary averment in the plaint as to his readiness and willingness as required under Section 16(c) of the Specific Relief Act, he would not be allowed to do so by way of amendment after the close of the evidence. As we have already noted, the view of this Court in Manick Lal Seal (supra) is, however, different, where amendment was disallowed on the sole ground that at the trial the plaintiff could not prove that he was at all material time ready and willing to perform his part of the contract. In the case at hand, the plaintiff having satisfactorily proved such readiness and willingness, the prayer for amendment to enable him to aver such readiness and willingness in the plaint should be allowed so that his suit, if otherwise good, may not fail for mere defect in pleading. “A party”, as observed by the Supreme Court in Jai Jai Ram v. National Building. . “can not be refused relief merely because of some mistake, negligence, inadvertence or ever infraction of the rules of procedure” and “the Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he has caused injury to his opponent which may not be compensated for by an order of costs.” It has been observed further that “however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.” This decision in Jai Jai Ram (Supra) has been followed by the Supreme Court in the later decision in Ganesh Trading Co., . If the materials on record clearly and sufficiently demonstrate plaintiff’s readiness and willingness, the plaintiff should not be non-suited because he or his lawyer did not know how to draft a plaint and did not insert in the plaint the necessary averment as to such readiness and willingness. Since it has never been the case of the defendant either in the written statement or at the trial or before us that the plaintiff was not ready and willing to perform his part of the contract, the defendant’s only case being that there was no offer on his part or at any rate, no acceptance on the part of the plaintiff, there would be no ‘injustice’ to him if the plaintiff is now allowed to amend his plaint to insert the requisite averment as to his readiness and willingness and no ‘injury’ to him either which cannot be compensated for by an order of costs. We therefore, allow the application for amendment of the plaint but direct that the plaintiff-respondent shall pay Rs. 500/- to the appellant as cost for the same.”

It may be pertinent to notice that in Byomkesh’s case, , the decision of the Patna High Court in RAM SINGHASAN v. SUDAMA PRASAD, was not followed and it was distinguished. The decision of the Allahabad High Court in Mohamood Khan’s case, was considered in Ram Singhasan’s case, and it was followed. The decision in Ram Singhasan, and Mohamood Khan’s case, are not applicable to the case on hand as the facts involved in those cases are not similar. Further those decisions rest upon the particular facts involved in those cases. In the instant case, it is already held that the plaint averments are sufficient to constitute plaintiff’s readiness and willingness to perform his part of the agreement. The plaint does not suffer from absence of cause of action. We are in agreement with the view expressed in the portions of the Judgment as underlined by us of the High Court of Calcutta in Byomkesh’s case, .

25. Thus it is clear that in the instant case, as already pointed out, the plaint averments constitute readiness and willingness of the plaintiff. There was an issue framed in that regard and the parties went to trial and they were aware as to what they were required to prove. With that knowledge only, the parties went through the trial of the I suit and adduced evidence. In such a situation when an amendment of the plaint is sought and if the same is rejected on the ground that it is unnecessary or it changes the very nature of the suit or introduces a new cause of action, it cannot at all be considered as proper, valid and judicious exercise of discretion. The trial Court has proceeded on misconception of law having a bearing on the point and has failed to construe the plaint correctly, thereby it has committed an illegality in the exercise of its jurisdiction. Further the restrictions imposed on the exercise of jurisdiction under Section 115 of the C.P.C. in such matters are not applicable to appellate jurisdiction when the same arise in the appeal/s preferred against the decree/s. Therefore, the order of the trial Court refusing to grant amendment is liable to be interfered with.

26. It is also very strenuously contended that the plaintiff has not explained the delay in seeking the amendment. No doubt it is true that in the affidavit filed in support of the application for amendment, there is no proper explanation for the delay. But it is an established position of law that in the matter of granting or refusing to grant amendment, delay is not the deciding factor. It all depends on the facts and circumstances of each case. In the instant case, as already pointed out, the parties were fully aware of it. Further on the date the application seeking amendment was filed, a fresh suit would have been filed by the plaintiff. Hence absence of explanation for the delay is not a ground to reject the amendment. In the facts and circumstances of the case no prejudice or injustice whatsoever can be held to have been caused to the defendant. In such a case, delay is no ground to refuse amendment (See JAI JAI RAM v. NATIONAL BUILDINGS, )

27. For the reasons stated above, point No. 1 is answered in the negative and the order dated 20-9-1985 rejecting the application I.A.No. 4 is set a side and the amendment is allowed.

28. Before proceeding to consider the other points, in view of the fact that we have allowed the amendment, learned Counsel for the defendant was specifically asked whether the defendant wanted to file additional written statement. Learned Counsel for the defendant submitted that he may be granted time till Monday the 14th March 1988 to file an additional written statement. Accordingly, to enable the defendant to file additional written statement, if any:

14-3-1988

29.1. After allowing the application seeking amendment to the plaint, time was granted to the defendant to file additional written statement. Accordingly, he has today filed the additional written statement and has also filed another application –IA III — under Order 18 Rules 17 and 17-A read with Section 151 of the C.P. Code for recalling P.W. 1 – Plaintiff — and to perfit him to cross-examine the plaintiff and to adduce additional evidence in view of the amendment of the pleadings.

29.2. The question for consideration is whether the application has to be allowed or not. It is very relevant to notice that the amendment that has been allowed is only to permit the petitioner to insert an express averment in the plaint with regard to his readiness and willingness to perform his part of the agreement of reconveyance.

29.3. We have already construed te plaint as existing without the amendment and have held that it constituted necessary averments regarding the readiness and willingness of the plaintiff to perform his part of the agreement of reconveyance. Thus the amendment is only intended to include such an averment in express terms. In other words, it is only clarificatory. The plaintiff has already been cross-examined in extenso on this point as the issue framed by the trial Court covered this aspect of the matter also. This has been noticed while recording a finding on point No. 1. Both sides were fully aware of the fact as to what were the controversies involved in the suit and as to what they were required to prove.

29.4. Order 18 Rule 17 of the C.P.Code no doubt empowers the Court to recall at anytime a witness who has been examined and cross-examined. The powers under the said Rule are very wide. The Court can recall a witness to avoid any ambiguity or omission in its Judgment. The power can be exercised suo motu or at the instance of a party. As far as Rule 17-A of Order 18 of the C.P.Code is concerned, the application does not contain any averment to bring the case within the ambit of that rule. Under this Rule, where a party satisfies the Court that after exercise of due diligence, any evidence was not within his knowledge or it could not be produced by him at the time when the party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just. It is not the case of the defendant – applicant in I.A.III – that in spite of his due diligence he could not come to know the evidence which he now intends to adduce and as such he could not produce the same at the time when he was leading his evidence. In the absence of such an averment, the application I.A.III cannot be considered under Rule 17-A of Order 18 of the C.P.Code.

29.5. In the additional written statement, the defendant has inter alia contended that the pleading as amended, does not satisfy the requirement of Appendix-A and Order VI Rule 3 C.P. Code; that the requirement of Forms-47 and 48 of Appendix ‘A’ are not complied with; that the averments do not fit in with the original pleadings; that the plaintiff has failed to establish his sincerity and has filed to show his bona fides as to readiness and willingness to perform his part of the agreement at the relevant point of time ; that the time was of the essence of the contract; that the plaintiff has no capacity nor any intention to perform his part of the agreement and that he should be put to strict proof of the averments made by him by amendment of the plaint.

29.6. The amendment of the plaint that has been allowed being clarificatory, does not give rise to an additional issue. The additional written statement is merely a reiteration of the case of the defendant as pleaded by him in the written statement. The issue framed in the trial Court also covered the readiness and willingness of the plaintiff to perform his part of the contract. The parties being aware of this issue, have adduced the evidence. Thus having regard to these aspects, we are of the view that the amendment of the plaint has not brought about any particular difference to the substance of the matter or the nature of the controversy between the parties. The evidence available already on record is sufficient for the decision of the issues framed in the suit and the points raised in the appeal for determination. When the evidence on record is sufficient to enable the Court to come to a just and satisfactory conclusion, on the points in controversy, the question of either allowing the defendant to adduce further evidence or remanding the matter for that purpose does not arise. Therefore, merely because the plaintiff is permitted to amend the plaint to enable him to insert an express averment in the plaint regarding the readiness and willingness to perform his part of the agreement of reconyance and the additional written statement is filed by the defendant denying the said allegation does not call for fresh evidence. It is also submitted on behalf of the plaintiff that he does not want to adduce any further evidence. In the facts and circumstances of the case, it cannot be said that the situation entitles the defendant either to have an order for recalling P.W. 1 or to adduce additional evidence.

29.7. In AKKANAGAMMA v. NAGESWARAIAH, AIR 1968 Mysore 266 a learned Single Judge of this Court while considering the case in an appeal has considered the question as to whether an additional evidence has to be permitted after amendment of the pleadings and has held thus.

“Even in cases where the Appellate Court comes to the conclusion that any fresh issues arise either on the pleadings as originally presented or upon pleadings as amended with its leave or order, it is not in all cases inevitable to make an order of remand. An amendment may also be merely clarificatory in nature. The framing of issues by the Appellate Court may also be in the nature of clarification or may result in a larger number of issues than framed by the trial Court without making any particular difference to the substance of the matter or the nature of the controversy or the availability of the evidence already on record for the decision of the issues as reframed. Wherever there is sufficient evidence on record to enable the Appellate Court to come to a just and satisfactory conclusion on the points in controversy there will be no ground whatever for making an order of remand.”

We affirm the aforesaid view of the learned Single Judge and hold that in the instant case, no additional evidence is called for nor it is a case for remand for that purpose. Accordingly I.A.III is rejected. We now take up points Nos.2 and 3 for consideration.

POINT NOS.2 and 3 :

30.1. These two points can be considered together as they are inter-connected. The contention of the plaintiff is that he was and has been always ready and willing to perform his part of the contract; however the defendant was not ready and willing to perform his part of the contract. On the contrary, the contention of the defendant is that the plaintiff failed to perform his part of the contract as per the terms of the agreement of reconveyance as contained in Ex.D. 1. Therefore, it is necessary to advert to the terms of the agreement of reconveyance as contained in Ex.D. 1.

30.2. Before considering the terms of the agreement, it is necessary to mention that the plaintiff was the tenant of the premises No. 26, Lady Curzon Road, Bangalore, in which he was running the “Shilpakala Restaurant.”He was the owner of the fixtures, furniture, utensils, and all allied equipments pertaining to the restaurant business and also its goodwill as a going concern as mentioned in Schedule-B to the plaint. Schedule-B contains very valuable articles. It was this going concern along with the goodwill and leasehold right which was transferred to the defendant by the plaintiff under the conditional sale deed Ex.D.1 dated 9-7-1979 on the following conditions for a sum of Rs. 3 lakhs :

“13. It is mutually agreed between the parties that if the Vendor repays the entire sum of Rupees three lakhs only between the period commencing from 9-7-1983 and ending with 9-7-1984, the Purchaser shall execute a deed of reconveyance in favour of the Vendor and deliver all the title deeds and allied records relating to the property belonging to the Vendor along with goodwill fixtures, furniture, utensils etc., as per the separate list annexed hereto in Schedule-B, after duly terminating the services of all the employees and after clearing all liabilities such as water rate, electricity charges, payments towards E.S.I. contributions, sales tax, income tax upto that date, rentals payable to the landladies etc. If the Purchaser fails or neglects to clear any of the liabilities aforesaid, the vendor is at liberty to deduct the same from out of the consideration amount of Rupees three lakhs payable to the Purchaser. But it is made clear that the intention of taking back the running business should be made known in writing by the Vendor to the Purchaser at least one month in advance of the date of such proposed payment and the vendor should also produce concrete proof of having deposited the entire consideration amount in a Scheduled Bank. If this condition is not fulfilled by the vendor, he cannot require the Purchaser to reconvey the restaurant business purchased under this indenture and the second party purchaser becomes the absolute owner under this indenture and no other document need be executed for perfecting the ownership of the running business and this indenture shall be taken as absolute sale and the Purchaser shall be at liberty to deal directly with the landladies by securing a fresh lease deed if required and he will be also entitled to exercise the option provided under condition No. 1 of the lease deed and take renewal of the lease for the further period of 10 years subject to the payment of enhanced rent as per condition No. 2 of the lease deed. The vendor shall in such contingency have no objection in the Purchaser getting such renewals from the landladies directly without reference to him. Likewise, in the event of the purchaser becoming the absolute owner of the hotel business after the lapse of five years, he is entitled to get the amount of Rs. 31,000/- (Rupees thirty one thousand only) paid as advance deposit to the Landladies by the Vendor or to utilise the same by way of further advance deposit. At any rate, the vendor shall have no claim over the said amount of Rs. 31,000/-. The receipt issued by the landladies are lying with the State Bank of Patiala which the Purchaser is entitled to take back after redeeming the loans and retain with himself. Likewise, he is also entitled to retain all the originals of the invoices, pertaining to the moveables hypothecated to State Bank of Patiala and also a certified copy of the lease deed which is deposited with the State Bank of Patiala, It is also made clear that in the event of the Purchaser getting reconveyance and the business is retransferred all the said documents are to be returned to the vendor.

14. It is mutually agreed between the parties that in the event of the Vendor being ready and willing to produce proof for having deposited the entire consideration amount payable to the Purchaser, well within time for getting reconveyance deed within the stipulated period which is spread over for a period of 12 months i.e., after the lapse of 48 months from today i.e.. from 9-7-1983 to 9-7-1984. but the Purchaser refuses to reconvey the running business as stipulated after receipt of the amount of Rupees three lakhs in the manner mentioned above in this indenture, the entire amount of consideration paid by the purchaser shall stand forfeited in favour of the vendor and it shall be open for the vendor to seek specific performance of the contract through the Court concerned therewith. In such event, until the vendor secures reconveyance and redelivery of the restaurant business along with all the moveables as listed in Schedule-B, he shall be entitled to recover from the Purchaser further liquidated damages of Rupees 4,500/- per month in addition to the rent payable to the landladies during the relevant period.

15. xx xx

16. It is mutually agreed between the parties that the Corporation licences shall remain in the name of the Vendor and the recurring fees payable to the Corporation in respect thereof should be paid by the Purchaser. The Vendor covenants that he shall not object for the renewal periodically of those licenses up to a period of five years from 9-7-1979. In the event of the Purchaser becoming the absolute owner of the running business with effect from 10-7-1984 he shall be entitled to apply for the hotel license directly to the City Corporation without any further reference to the Vendor.

17. The Purchaser covenants that he will not do any adverse act or omission so as to violate any of the terms and conditions of the lease deed dated 24-10-1975 and in any manner give room to the landladies to institute eviction proceedings by invoking and enforcing any of the conditions of the lease deed.

18. The Purchaser also covenants not to transfer, sublet or underlet the running business for a period of five years or until he becomes the absolute owner with effect from 10-7-1984 or lapse of five years. But this will not preclude the purchaser from taking in the two partners whose names are :

1) Sri Haridas Tenkillaya, and

2) Sri A.V. Acharya.

19. That the Purchaser agrees not to make any major improvements or structural alterations without the prior consent of the vendor in writing. Annual white-washing and other repairs are to be attended to by the Purchaser at his own cost.

20. The Purchaser covenants not to change the trade name for a period of five years until he eventually becomes the absolute owner with effect from 10-7-1984 and not to run any business other than the restaurant business without the prior written consent from the vendor.

21. It is mutually agreed between the parties that the vendor and his authorised agents will be free to use one room on the third floor as his office until the State Bank of Patiala’s two loans are fully discharged either by the vendor -or by the Purchaser as the case may be provided in this indenture.

22. It is mutually agreed between the parties that during the period of five years from today, or until the Purchaser eventually becomes the absolute owner with effect from 10-7-1984, the vendor has the right to inspect the premises during all reasonable hours either by himself or through any of his authorised agents.

23(a). The Purchaser performing all the terms and conditions of this Deed of Conditional Sale to be performed on his part, he shall continue to hold, possess and enjoy the running business as a going concern along with the goodwill, furnitures, fixtures, utensils and all allied equipments pertaining to the said restaurant as absolute owner without any let, hindrance or interference either by the Vendor or any person claiming under or through him, subject only to the condition pertaining to reconveyance and retransfers of the business as provided in this indenture. But it is made clear that in the event of the business is re-transferred by executing reconveyance in favour of the vendor after lapse of 48 months i.e., from 9-7-1983 to 9-7-1984 thereafter all the terms and conditions of this identure shall cease to be operative and further a reconveyance deed shall be executed by the Purchaser in favour of the vendor re-transferring the running business in his favour and subject to the right of reconveyance, it shall be deemed that the purchaser has become the absolute owner and free to enjoy the hotel business in any manner he chooses subject of course to the terms and conditions mentioned in this indenture of conditional sale.”

23(b). In the event of the Vendor opting to get reconveyance of the running business within the specified time, the consideration payable to the Purchaser after allowing such deductions, shall be paid to Syndicate Bank, Gavipuram Branch, Bangalore and shall be credited to the C/A No. 463 of Guruprasad Enterprises. The Vendor covenants to credit the said amount with the said bank. The Vendor further covenants not to pay the amount so payable to any other person other than the Syndicate Bank, Gavipuram Branch, Bangalore.”

31. From these recitals contained in Ex.D.1 (copy of which is also marked as Ex.P.1), it is clear that the absolute title could pass to the defendant only on the expiry of 4 years 11 months from the date of the sale deed i.e., 9-7-1979. Till then he was required to allow the plaintiff to have inspection and hold the properties as they were without any. major alteration. He was not even entitled to, have his name changed in the Corporation licence, sub-let or under-let the running business (see conditions 16 to 20 reproduced above). In the event the plaintiff failed to perform his part of the agreement within the aforesaid period, the defendant was to become the absolute owner of the properties mentioned in Schedules ‘A’ and ‘B’ on the expiry of the stipulated period. In fact the plaintiff was given a right of inspection and a right of entry according to the terms referred to above during the period 9-7-1979 to 9-7-1984. The plaintiff was required to pay a sum of Rs. 3 lakhs during the period 9-7-1983 to 9-7-1984 to obtain reconveyance but the notice of his intention to exercise the right of reconveyance was required to be given a month earlier to depositing the amount during the aforesaid period. The amount, according to the terms was required to be deposited in a particular bank in the account of the defendant.

32.1. The main defence of the defendant is that these conditions of the agreement of reconveyance were not complied with because admittedly the plaintiff did not deposit the amount in the bank named in the agreement at any time within the period mentioned therein. It is an undisputed fact that the amount was not deposited by the plaintiff in the Bank named in the agreement.

32.2. But the question for consideration is, how the parties have understood the terms of the agreement relating depositing of the amount in the specified bank to secure reconveyance and what was the object in providing those terms. This can be gathered either from the surrounding circumstances or from the conduct of the parties as disclosed in the evidence given by the parties themselves as to what was the purpose for providing such conditions in the agreement of reconveyance contained in Ex.D. 1.

32.3. The plaintiff has specifically pleaded in his plaint as to the object of inserting such a clause in the agreement of reconveyance. In para 5 of the plaint, it is averred as follows :

“5. In para 13 of the Deed of Conditional Sale dated 9-7-1979 (nineth July nineteen seventy nine) it is mentioned that the intention of taking back the running business of Shilpakala Restaurant shall be made known to the defendant by the plaintiff in writing atleast one month in advance producing a document for having deposited Rs. 3,00,000/- (rupees three lakhs only) in a schedule bank. This condition was mentioned in the deed of conditional sale in order to assure prompt payment of Rs. 3,00,000/-(rupees three lakhs only) by the plaintiff to the defendant. The only object for such a condition was that the plaintiff will have to pay Rs. 3,00,000/- (rupees three lakhs only) between 9-7-1983 to 9-7-1984 to the defendant and the defendant will have to execute the deed of reconveyance…..”

That it is so is admitted by the defendant himself. The defendant has stated in his evidence in categorical terms thus :

“It is true that to assure payment of Rs. 3 lakhs from 9-7-1983 to 9-7-1984 Clause No. 23 (b) was written. It was the object of me and plaintiff that he should pay me Rs. 3 lakhs within the stipulated time under Ex.D. 1. If the plaintiff had given me Rs. 3 lakhs by cash directly, I would not have accepted it.”

32.4. Thus the condition as to depositing of the amount of Rs. 3 lakhs in the specified bank as stated in clear terms by the defendant was to ensure prompt payment of Rs. 3 lakhs by the plaintiff to the defendant.

33. It is in the light of this evidence of the defendant and the plea raised by the plaintiff which is supported by the evidence of the defendant, the Court has to examine as to whether the plaintiff had performed his part of the agreement or has always been ready and willing to perform his part of the agreement according to its true construction as per explanation (ii) to Section 16(c) of the Act and whether it was the defendant who refused to perform his part of the agreement. In this regard, even long before 9-7-1983 the plaintiff wrote a letter dated 5th May 1983 as per Ex.P.3 to the defendant in the following terms:

“Trust this letter finds you and your circle fine. Please find enclosed Bank deposit certificate which is self explanatory. This is with reference to our conditional sale agreement. Please be good enough to furnish clearance certificates like E.S.I., K.E.B., B.W.S.S.B., Sales Tax. Also please make available the statement of accounts. This will facilitate me to release the amount payable to you vide our conditional sale agreement.

Please be good enough to take all necessary steps provided in the Conditional Sale Agreement. Your immediate cooperation is most solicited.”

This letter was received by the defendant on 5-5-1983. Through Ex.P.3 the plaintiff conveyed in writing his intention to the defendant of taking back the running business in exercise of his right to seek reconveyance from the defendant and also indicated therein that he had deposited the amount. Along, with Ex.P.3, the certificate issued by the Central Bank of India, Basavanagudi Branch, as per Ex.P.2 stating that a sum of Rs. 3,00,344-98 was standing to the credit of the plaintiff in the Savings Deposit Account of that Bank was also sent. The defendant acknowledged this letter and also sent a letter dated 8-7-83 as per Ex.P.5. In Ex.P.5, the defendant drew the attention of the plaintiff to condition No. 13 of the deed and further stated thus: “The plaintiff should produce a certificate from a schedule bank showing that the consideration amount is available as on 9-7-83.” In Ex.P.5 though the defendant expressed that he was ready and willing to perform his part of the agreement, he further stated that under condition No. 14, he had been given an option of 12 months commencing from 9-7-83 to 9-7-84 for execution of reconveyance deed. Though this and the other assertion that the plaintiff should make available the amount of Rs. 3 lakhs as on 9-7-83 were not in conformity with the terms of the agreement, as the defendant was not given an option to reconvey at any time during the period of 9-7-83 to 9-7-84 and as the plaintiff was not required to make available the amount as on 9-7-83 itself, nevertheless, the defendant expressed his readiness and willingness to perform his part of the agreement. Thus upto this point of time there was not much controversy between the parties. The controversy arose only when both the parties sought legal advice Ex.P.5 was replied by the plaintiff through his lawyer as per Ex.P.6 dated 14-7-83. Through Ex.P.6 the defendant was called upon to receive the amount by cash within a week and execute the sale deed failing which the sum of Rs. 3 lakhs will be forfeited. Ex.P.7 dated 21-7-1983 was the reply to Ex.P.6 sent by the defendant through his Counsel. In Ex.P.7 the defendant raised several contentions and put an end to the contract. It is very pertinent to notice that at the time when Ex.P.7 was issued by the defendant, the period for payment of the sum of Rs. 3 lakhs and to exercise the right of reconveyance by the plaintiff had just then commenced in as much as it commenced on 9-7-83 and the plaintiff had at least a period of 11 months from that date. That being so, there was no question of putting an end to the contract. Nevertheless, the defendant chose to put an end to the contract and took a specific stand that he had become the absolute owner. It was specifically asserted by the defendant in Ex.P.7 that the plaintiff “can pay the consideration amount at any time between 9-7-83 to 9-7-84 and the defendant should retransfer the business even without making a deposit in the name “of the defendant” as required under condition No. 23(b) is nothing but crying for the spilt-milk.” It was also the stand taken by the defendant in Ex.P.7 that the amount ought to have been deposited one month prior to 9-7-83. This was quite contrary to the terms of the contract. Thus, this situation was brought about by the defendant much earlier to the expiry of period fixed under the deed for exercise of the right of reconveyance.

34. As far as giving intimation in writing to the defendant of the intention of the plaintiff to take back the running business in exercise of his right of reconveyance is concerned, the plaintiff has complied with this through Ex.P.3. With regard to the payment of the amount even as per the evidence of the defendant, the plaintiff had enough time for payment of the amount from 9-7-83 till 9-6-84. That being the position, the learned trial Judge curiously enough has come to the conclusion that it is the plaintiff who has committed the breach of the agreement and not the defendant even though the defendant in specific terms put an end to the contract by his notice Ex.P.7 by wrongly interpreting the terms of the agreement of reconveyance. After Ex.P.7 was issued by the defendant, the plaintiff again issued another notice Ex.P.8 dated 29-7-83 calling upon the defendant to perform his part of the contract on receiving the amount. The reply notice dated 4-8-83 sent by the defendant is marked as Ex.P.10. In Ex.P.10, contrary to condition Nos.13 and 14 of the Deed of Conditional Sale, it was stated by the defendant that by virtue of condition No. 13, the plaintiff was required to make a deposit at least one month prior to 9-7-83 which admittedly having not been done, the defendant had become the absolute owner of the property under the deed. It was also further asserted that the matter had become fait-accompli and the plaintiff was hoisting the red signal after the train passed the station and it would not clothe him with any right. It was further claimed that the defendant had never refused to execute the reconveyance deed and to that effect he had indicated his stand in unmistakable terms in his letter dated 8-7-83 – (Ex.P.5). Here at the risk of repetition it may be pointed out as already adverted to earlier that it was the defendant who put an end to the agreement of reconveyance through his notice Ex.P.7 dated 21-7-83. In spite of this, the defendant had an audacity to assert in Ex.P. 10 dated 4-8-83 that it was the plaintiff who failed to perform his part of the agreement and whereas he had never refused to execute the reconveyance deed. Thus the defendant has neither regard for truth nor sincere in his action to keep up the agreement. The reply also referred to Clause 23(b) of agreement. Under these circumstances, the plaintiff had no other go but to approach the Court.

35.1. The defendant has mainly tried to place his defence on the ground that the plaintiff had not performed his part of the agreement as per the letters and words of the conditions of the deed. It is already pointed out as to what really the parties intended to in providing such terms. Therefore, whether the plaintiff had performed his part of the agreement or has been always ready and willing to perform, cannot be determined as per the letters and words contained in the agreement but as per the true construction of the deed in the light of the object which the plaintiff and the defendant intended to ensure. The defendant has admitted in unequivocal terms that Clause 23(b) was written in order to ensure payment of Rs. 3 lakhs within the period of 9-7-83 to 9-7-84 by the plaintiff to the defendant. Keeping this object of the parties in providing Clause 23(b) in the agreement, it may be noticed that before filing the suit, the plaintiff had deposited the sum in the Bank. Even though subsequently he withdrew the amount, but he intimated the defendant in writing as per Ex.P.3 his readiness and willingness to perform his part of the agreement and his intention to take back the running business from the defendant. More than anything else, during the course of the trial when the period of 9-7-83 to 9-6-84 had not expired on 4-10-83 he produced a cheque issued by the Bank and offered it to the defendant who refused to receive it. The trial Court has recorded this in the order sheet of 4-10-1983. A xerox copy of the cheque referred to in the order sheet of the trial Court dated 4-10-1983 issued by the Central Bank of India, Basavanagudi Branch, Bangalore is also produced before us during the course of argument. By consent of parties, it is taken on record and marked as Ex.P.11. In the evidence, the defendant has Stated thus :

“I know if a bank draft is given, that will be honoured by the Bank. It is true on 4-10-83, plaintiff has produced bank draft for Rs. 3 lakhs before Court and offered to me. I knew that when bank draft of Rs. 3 lakhs was offered on 4-10-83, it was 1 year from 9-7-83 as per Ex.P.1. Even if the amount of Rs. 3 lakhs in case offered in the Court belong to the plaintiff, I would not have accepted.”

This is the type of defendant with whom the plaintiff was required to deal for obtaining reconveyance of valuable property and the running business for having parted with the same under Ex.D. 1 for a sum of Rs. 3 lakhs only with a condition of reconveyance within a period of one year on the expiry of 4 years.

35.2. Again during the course of trial on 21-2-85 before the plaintiff closed his side, he actually produced in the Court in cash a sum of Rs. 3 lakhs. The defendant refused to receive it. This is also recorded in the order sheet of 21-2-85 by the trial Court. The order sheet of 21-2-85 reads thus :

“The plaintiff offered Rs. 3,00,000/- (three lakhs) in the Court. Sri A.N.N. for Sri A.J.S. submits that the defendant is not prepared to accept it. Cash is verified before the Court. Since the defendant is not prepared to accept it, the cash is given back to the plaintiff.

Plaintiff closed his side. For defendant’s evidence by 15-3-1985.”

35.3. These being the undisputable facts, is it possible to hold that the plaintiff was not and has not been ready and willing to perform his part of the contract? Since 15-5-83, Ex.P.3, the plaintiff has been constantly demanding the defendant to perform his part of the contract on receiving the amount of Rs. 3 lakhs. Even after filing the suit, he offered Rs. 3 lakhs by way of cheque issued by the Bank. Again during the course of evidence, he actually tendered the cash itself. These facts which are not in dispute demonstrate in unmistakable terms the readiness and willingness of the plaintiff to perform his part of the agreement as understood by the parties.

35.4. In spite of this, the trial Court on a misconception of law, misconstruction of plaint averments and without taking into consideration the fact as to how the parties understood the terms of the agreement as to depositing of the amount by the plaintiff in the bank as admitted by the defendant, has come to the conclusion that though the plaintiff had the intention to perform his part of the contract but he failed to prove that he had complied with all the terms and conditions stipulated under the deed of reconveyance and was ready and willing to perform his part of the contract (see para 33 of the Judgment of the trial Court). The trial Court was also of the view that option to repurchase the property was in the nature of concession or privilege which was available to the plaintiff only if the conditions contained in Clauses 13 and 23(b) of the Deed (Ex.D.1) were strictly complied with (see para 29 of the Judgment of the trial Court). This approach of the trial Court ignored the essential aspect of the matter as to how the parties understood Clauses 13 and 23(b) of the deed Ex.D.1 and what was their object in providing the same. This aspect has already been adverted to by us. The trial Court is also not right in proceeding on the basis that the plaint averment did not constitute a plea of plaintiff’s readiness and willingness to perform his part of the agreement.

36. It is contended on behalf of the defendant that the agreement of reconveyance stands on a different footing than the agreement of sale, in as much as the agreement of reconveyance is a concession; therefore the plaintiff is required to strictly comply with the terms of the agreement as contained therein and as he has not complied with the terms of the agreement strictly, he has disentitled himself for the relief. The contention as to strict compliance with the terms of the agreement overlooks the very evidence of the defendant who has stated that the only object of the parties in providing Clauses 13 and 23(b) was to ensure payment of money within the time stipulated to the defendant. That being so, when the plaintiff on more than one occasion offered the amount, it is not possible to hold that the plaintiff was not ready or failed to comply with the terms of the agreement. Of course, in the absence of admission of the defendant as to the object of the terms of the agreement as contained in paras 13 and 23(b), the approach to the case by the Court probably would have been different. But in view of the clear admission of the defendant as to the object of such terms, the Court could not ignore the same and decide the case by reading the terms strictly as per letters and words contained therein. The agreement of reconveyance is made the part of the deed of conveyance. It is a conditional sale. As per the deed, the purchaser – the defendant – does not become absolute owner and no title passes to him until the right to seek reconveyance is lost in terms of the deed. Therefore, having regard to the terms of the deed – Ex.D. 1 – it is not possible to hold that it is a concession. On the contrary, the agreement of reconveyance is an integral part of the transaction of sale inasmuch as the purchaser – the defendant is not made the absolute owner on the date of execution of the deed. He has to become an absolute owner if the vendor – the plaintiff fails to obtain reconveyance. Thus the transaction evidenced by Ex.D.1 is of its own kind, inasmuch as, even before the purchaser becomes an absolute owner it is agreed by the parties to reconvey the properties to the vendor – the plaintiff. Thus, it is clear that under the deed Ex.D. 1 as per the terms contained therein the purchaser – the defendant has to hold the property and enjoy the same subject to the right of reconveyance of the vendor – the plaintiff. The purchaser is not even permitted to have his name entered in the Corporation licence and to make any alteration in the properties. The right of inspection is also given to the plaintiff – the vendor. This being the nature of the transaction, the decision of the Federal Court in SHANMUGAM PILLAI AND ORS. v. ANNALAKSHMI AMMAL AND ORS., AIR 1950 FC 38 on which the reliance is placed by the learned Counsel for the defendant is not applicable to the case on hand. In that case, the facts as summarised in the Head Note, were as follows:

“A, the mortgagor sold a portion of the hypotheca in full discharge of the mortgage debts to the mortgagee B under a sale-deed dated 7th January 1937 which passed the absolute title in the property to the vendee. Two days later B executed a lease back to A for a period upto 30th April, 1943. The lease provided that A was to pay the lease amount in 7 instalments viz., Rs.700/- by 30th September 1937 and Rs. 1,450/-by 30th April of each succeeding year and that in default of any one instalment the lessee was to forfeit his lease forthwith without reference to subsequent instalments and the lessor was entitled to reenter on the properties. On the same date the parties also executed a registered agreement whereby B agreed that A should have a right to repurchase the property on payment of practically the same price at any time before 30th April 1943 subject to the condition that in case A remained in arrears of any one of the seven instalments of the lease amount payable under the lease the agreement “shall stand cancelled forthwith.” The agreement was to remain in force upto 30th April, 1943 and time was essence of the contract. A did not pay the first four instalments punctually except the first but nevertheless B accepted them. When default was made in payment of fifth instalment B served a notice determining the lease and statina that the agreement to repurchase had also become cancelled. When the sixth instalment fell into arrears, B sent another notice demanding certain amount ‘as arrears of rent’ and ‘damages’ for wrongful use and occupation referring to the previous determination of the lease. Subsequently A paid two sums of Rs. 2450 and 450 to B and an endorsement of payment was made on the lease stating that a sum of Rs. 447 still remained due. A sued for specific performance of the agreement to repurchase on 5th March 1943 i.e., before the due date of the seventh instalment.”

On the basis of the aforesaid terms contained in the instrument and the surrounding circumstances, it was held by the majority as follows:

“On the first point, it is clear, from the surrounding circumstances and on the language of the instrument, that the appellant obtained a concession or privilege under the agreement. He was unable to pay off the long outstanding mortgage debts and therefore agreed to sell a portion of the hypotheca in discharge of them under the sale deed of 7th January 1937 which passed the absolute title in the property to the vendee. Two days later, at his request – so the agreement recites – the vendee agreed that he (the appellant) should have a right to repurchase the property on payment of practically the same price at any time before 30th April, 1943; that is to say, that the absolute right in the property passed to the vendee should be defeasible at any time during the period of six and odd years by the appellant exercising an option to repurchase. It was, at the same time, made plain that the vendee “consented” to this arrangement only “subject to the conditions” mentioned in the instrument; the appellant, too, for his part consenting “to obtain a sale” subject to those conditions.”

“It is well settled that, when a person stipulates for a right in the nature of a concession or privilege on fulfilment of certain conditions, with a proviso that in case of default the stipulation should be void, the right cannot be enforced if the conditions are not fulfilled according to the terms of the contract. Such conditions though relating only to payment of money, are not regarded as a penalty and Courts of equity will not afford relief against a forfeiture for their breach.”

Thus, it is clear that the aforesaid decision in Shanmugam Pillai’s case, AIR 1950 FC 38 was rendered on the construction of the terms of the instrument concerned therein and on looking into surrounding circumstances holding that the appellant therein obtained a concession or privilege under the agreement. Such is not the position in the instant case. The plaintiff and the defendant when they executed Ex.D.1, the plaintiff was the owner of the properties and the title in the properties was to pass to the defendant only after the right to seek reconveyance was either lost or was not exercised by the plaintiff. Therefore, the agreement of reconveyance in the instant case is not a concession obtained by the plaintiff rather it is preservation of the ownership right of the vendor – the plaintiff because after because years within a period of one year from 9-7-1983 to 9-6-1984 the vendor – the plaintiff was entiled to seek reconveyance on payment of the money and on issuing notice in writing a month earlier to the payment of the money intimating his intention to the defendant to take back the running business. Hence, the decision in Shanmugam Pillai’s case, AIR 1950 FC 38 has no application to the case on hand.

37. It is next contended that the notices Ex.P.3, P.6 and P.8 do not satisfy the requirement of one month’s notice ; that as far as Ex.P.3 is concerned, it is contended that it was issued much earlier to accrual of the right to claim reconveyance, therefore, it has no relevance and no value can be attached to it. It appears to us that these contentions cannot be accepted. We do not see any good reason as to why Ex.P.3 should not be construed as a notice in writing conveying the intention of the plaintiff to the defendant to take back the running business. According to the agreement, one month’s notice was required to be given by the plaintiff. Whereas Ex.P.3 was sent on 5-5-1983, more than one month earlier. Therefore, the fact that in the other notices the period stated was less than a month did not affect the case of the plaintiff because Ex.P.3 satisfied the requirement of issuing notice in writing of one month intimating his intention of taking back the running business. In addition to this, on 4-10-1983, when the cheque issued by the Bank was tendered, there was enough time to seek performance of the agreement of reconveyance by the defendant because the right to seek reconveyance was to end only on 9-6-1984. Therefore, the contention that there was no notice of one month is not well-founded and as such it is liable to be rejected. It is accordingly rejected.

38. It is next contended that the defendant did not receive the cheque and the cash when offered by the plaintiff as the plaint was defective in as much as it did not contain any plea as to readiness and willingness of the plaintiff to perform his part of the contract and acceptance of the amount would have resulted in condoning such defect in the plaint or furnishing cause of action to the plaintiff. The contention is untenable. It ignores the very scope and object of the conditions mentioned in the agreement of reconveyance as admitted by the defendant himself and the plaint averments constituting plaintiff’s readiness and willingness to perform his part of the agreement. Further even on withdrawing the suit, the plaintiff would have filed a fresh suit on 4-10-1983 and even then it would have been well in time and no Court would have refused to enforce the agreement because the plaintiff had sufficient time i.e., from 9-7-1983 to 9-6-1984 to perform his part of the agreement and to seek reconveyance. Therefore, we are of the view that the evidence on record clearly establishes that the plaintiff had performed his part of the agreement and/or even otherwise was and has always been ready and willing to perform his part of the agreement according to the understanding of the parties of the terms of the agreement and it was the defendant who failed to perform his part of the agreement. There was no justification whatsoever for the defendant in refusing to accept the banker’s cheque tendered on 4-10-1983 by the plaintiff. The suit was filed on 20-8-1983. The cheque for Rs. 3 lakhs was tendered by the plaintiff on the very first date of appearance i.e., on 4-10-1983. The defendant having put an end to the agreement by issuing Ex.P.7 dated 21-7-1983 without any justification, it was he who failed or rather refused to perform his part of the agreement.

39. The plaintiff has been promptly and sincerely pursuing the matter. He gave an intimation in writing as per Ex.P.3 dated 15-5-1983 of his intention to take back the running business and also sent along with Ex.P.3 the certificate issued by the Bank regarding the availability of the amount of Rs. 3 lakhs. Again in the notice dated 14-7-1983 (Ex.P.6) the plaintiff called upon the defendant to receive the amount and to perform his part of the agreement. Further in spite of the fact that the defendant by his notice dated 21-7-1983 (Ex.P.7) put to an end to the agreement, nevertheless, the plaintiff by the notice dated 29-7-1983 (Ex.P.8) called upon the defendant to receive the amount and execute the reconveyance. The defendant having put an end to the contract under his notice dated 21-7-1983 (Ex.P.7) reiterated the same in Ex.P.10 dated 14-8-1983. Thereafter immediately on 20-8-1983 the plaintiff filed the suit. Even on the first date of appearance i.e., 4-10-1983, the plaintiff tendered the amount by way of Bank cheque. The defendant refused to receive the same. During the course of the evidence before he closed the case, the plaintiff even tendered the amount in cash. These facts which cannot be disputed establish the readiness and willingness of the plaintiff to perform his part of the agreement throughout. In RAMESH CHANDRA CHANDIOK AND ANR. v. CHUNI LAL SUBHARWAL, under similar circumstances, the Supreme Court has held as follows :

“The very fact that they promptly filed the suit shows their keenness and readiness in the matter of acquiring the plot by purchase. it must be remembered that the appellants had not only put in an advertisement in newspapers about the existence of the agreement but had also sent a letter Exhibit P.13 on September 12, 1956 declaring their readiness and willingness to pay the balance of the purchase price on the respondents procuring the sanction. The appellants further made enquiries directly from the authorities concerned about the sanction. Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our Judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract.”

The facts stated above squarely bring the case on hand within the aforesaid enunciation made by the Supreme Court.

40. Learned Counsel for the defendant has placed reliance on the following statement of law made in the “Law of Limitation” by V.G. Ramachandran, Volume II, 1983 Edition, at Page 1166 :

“But with reference to contracts to re-sell, it has been held that the option to repurchase should be strictly within the time stipulated.”

There cannot be any dispute about the aforesaid proposition. In the instant case, it is already pointed out that the plaintiff has offered to have the reconveyance executed by the defendant within the time stipulated in the agreement and also tendered the requisite amount.

41. It is next contended by the learned Counsel for the defendant that the plaintiff himself has admitted in his evidence in categorical terms that he has not given the notice of one month and has not deposited the amount in terms of the agreement; therefore it is submitted that it amounts to admission by the plaintiff that he has failed to perform his part of the agreement. We have already pointed out the manner in which the terms of the agreement are to be read. The terms of the agreement are to be read and applied in the manner in which the parties have understood. This has already been adverted to in the earlier portion of the Judgment. Viewed from that angle, it is not possible to hold that the aforesaid statement made by the plaintiff in the course of his cross-examination will in any way take away the effect of what he has done in performing his part of the contract. Hence, the contention is rejected.

42. It is next contended that in the notice dated 14-7-1983 issued by the plaintiff as per Ex.P. 6, he has forfeited the amount of Rs. 3 lakhs and therefore it is he who has terminated the contract contrary to the terms of the contract by forfeiting the amount. In this regard, it is very pertinent to notice that the agreement contains such a condition. It is stated in Clause 14 of the agreement thus:

“But if the purchaser refuses to convey the running businesses stipulated after the receipt of Rs. 3 lakhs in the manner mentioned above unless intimated that the entire amount paid by the purchaser shall stand forfeited in favour of the vendor. It shall be opened to seek relief through the Court concerned thereon.”

It is in the light of this condition when the defendant did not come forward to execute the reconveyance deed oh receiving the amount, the plaintiff stated in the notice Ex.P. 6 that he would forfeit the amount. In the plaint also it was stated, but it was got deleted by filing I.A.V. But the plaintiff did not put an end to the contract. Even in Ex.P.6 as well as after Ex.P.6, he called upon the defendant to perform his part of the agreement. It is the defendant who put an end to the agreement in specific words by issuing Ex.P.7. The conduct of the plaintiff has always been one of showing his readiness and willingness to perform his part of the agreement. Even after Ex.P.6, he offered the amount, tendered the cheque for three lakhs on 4-10-1983, produced cash of Rs. 3 lakhs in the Court.

43. For the reasons stated in the preceding paragraphs, points 2 and 3 are answered as follows: The plaintiff has proved that he was ready and has always been ready and willing to perform his part of the agreement of reconveyance as contained in Ex.D.I and as understood by the parties.

POINT NO. 4 :

44. No doubt the relief relating to specific performance is discretionary but it is not arbitrary. The discretion has to be exercised in accordance with the sound and reasonable judicial principles. The conduct of the parties seeking specific performance is an important element for consideration. The Supreme Court in Ramesh Chandra’s case, has observed thus :

“An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance.”

The aforesaid observations are apposite to the case on hand. It is the conduct of the defendant which suffered from lack of bona fides. It is the defendant who tried to avoid the agreement. Having regard to the findings recorded on point Nos.1 to 3, point No. 4 has to be necessarily answered in the negative. The trial Court is not justified in holding that the defendant has not committed breach of the agreement and that he has become the absolute owner of the suit schedule properties. The trial Court has not exercised the discretion in accordance with the sound and reasonable judical principles in refusing to grant a decree for specific performance. The trial Court has refused to grant a decree for specific performance on the grounds that the plaintiff failed to deposit the amount in the Bank as per the terms of the agreement, therefore, he failed to perform his part of the agreement and that he failed to plead and prove that he was and has been ready and willing to perform his part of the agreement. These grounds do not hold good having regard to our findings on point Nos. 1 to 3. As the trial Court has failed to exercise the discretion in accordance with the sound and reasonable judicial principles, it is liable to be interfered with in the appeal. The exercise of the discretion by the trial Court in refusing to grant a decree for specific performance is vitiated because, it has not correctly read, construed and appreciated the plaint averments, the terms of the agreement, the evidence of the defendant; it has wrongly rejected the amendment sought for by the plaintiff, wrongly proceeded on the basis that there was no averment in the plaint regarding plaintiff’s readiness and willingness to perform his part of the agreement even though the plaint averments did constitute an averment to that effect. In addition to this, the trial Court has failed to notice that the plaintiff agreed to sell the running business with his good will as a going concern with very valuable equipments relating to restaurant business and also the leasehold rights only for a sum of Rs. 3 lakhs because as per the deed Ex.D.1 he was entitled to seek reconveyance of the same after the expiry of four years from the date of the deed and within a year from thereafter. In such a case when the vendor -the plaintiff was and has been ready and willing to perform his part of the agreement by giving notice in writing and by tendering the money on more than one occasion, it is not possible to hold that the plaintiff is not entitled to have a decree for specific performance. In such a case, if the decree for specific performance is refused, it will be nothing but a wrong and arbitrary exercise of discretion. The defendant loses nothing. He gets back his amount of Rs. 3 lakhs. He had the benefit of running the business for over a period of four years as the litigation has been pending since 20-8-1983, we are now in the year 1988. If only the suit had been decided in the year 1983, by now it would have become an old thing and the defendant could not have had the benefit of running the business for over a period of four and half years. Therefore, looked from any point of view, it is not possible to hold that by granting a decree for specific performance any prejudice, loss or injury is going to be caused to the defendant who has over-stayed in the business. Therefore, we are of the view that this is eminently a fit case for exercise of discretion in favour of the plaintiff and for granting a decree for specific performance. We, accordingly, answer point No. 4 in the negative and further hold that the defendant has committed breach of agreement and he has not become the absolute owner of the suit schedule properties and the plaintiff is entitled to a decree for specific performance.

POINT NO. 5 :

45. It is not necessary to decide this point. During the course of delivering the Judgment, the plaintiff has filed a memo stating that he may be permitted to give up his claim for Rs. 4,500/- per month as special damages. The memo is placed on record and the point raised for determination is treated as ‘given up.’

46. For the reasons stated above, the findings recorded by the trial Court on issue Nos.1 to 5 are set aside.

47. The next point for consideration is, as the defendant did not receive the amount when offered on more than one occasion, it was returned by the Court to the plaintiff as per the order-sheet dated 21-2-1985. Therefore, before the defendant is called upon to perform his part of the agreement it is necessary for the plaintiff to deposit the amount in the Court. If after depositing the amount in the Court within one month thereafter the defendant fails to execute the reconveyance deed, the plaintiff shall be entitled to claim damages from that date. Such damages shall have to be decided in terms of the agreement contained in this regard. Therefore, we do not consider it necessary to express any opinion in that regard and that question is left open to be decided in the course of execution.

48(1). For the reasons stated above, the appeal is allowed. The Judgment and decree of the trial Court are set aside. The suit of the plaintiff is decreed. The plaintiff is directed to deposit the sum of Rs. 3 lakhs in the trial Court on or before 10th April, 1988, on serving a memo to that effect on the defendant or his Counsel giving the particulars of the deposit. On such deposit being made by the plaintiff, the defendant shall execute the deed of reconveyance on or before 10th May, 1988 and hand over actual possession of the A and B Schedule properties along with all the documents pertaining thereto. If the defendant fails to execute the deed of reconveyance and deliver possession of A and B Schedule properties with all the documents as per the terms of the agreement (Ex.D.1), it is open to the plaintiff to have the deed of reconveyance executed by the Court and obtain possession of the aforesaid properties with documents thereto delivered to him.

(2) If the defendant fails to execute the deed of reconveyance and deliver possession of the properties as aforesaid, the plaintiff is entitled to claim damages in respect of the delayed period of delivery of possession from 10th May, 1988.

(3) The plaintiff is also entitled to the costs of the suit and also of the appeal.

49. Immediately after the pronouncement of the Judgment, Sri A. Jagannath Shetty, learned Counsel for the defendant made an oral application requesting the Court to grant a certificate under Article 134A of the Constitution certifying that the case involves a substantial question of law of general importance and that the said question needs to be decided by the Supreme Court. We are of the view that our conclusions are arrived at on the basis of the evidence on record. Therefore, in our considered view, no substantial question of law of general importance which needs to be decided by the Supreme Court arises in the case. Hence, the application is rejected.