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Basheshar Nath v. Radha Kishan .

Punjab & Haryana High Court

Jan 15, 1993

Judgment

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Case Summary — Judgment of A.S. Nehra, J.

Factual and Procedural Background

This appeal challenges the judgment and decree dated 15-12-1979 of the Additional District Judge, Kurukshetra, which dismissed the defendant-appellant's appeal and upheld the trial Court's decree dated 4-9-1978 that decreed the plaintiff-respondent's suit for specific performance.

The plaintiff-respondent's pleaded facts were: on 2-2-1973 the defendant-appellant agreed to sell an agricultural share (870/2204th share equivalent to 43 Kanals, 10 Marlas) to the plaintiff for Rs. 27,000 and executed an agreement; Rs. 7,000 was paid as earnest money with a separate receipt; the defendant was to execute and register the sale deed on or before 1-2-1974 and receive the balance then; if the defendant defaulted, the plaintiff could sue for specific performance or alternatively the defendant would pay twice the earnest money; the plaintiff alleged he was always ready and willing to perform and waited at the Sub-Registrar's office on 1-2-1974 with the balance sale price but the defendant did not appear, whereupon the plaintiff had his presence recorded by an affidavit attested by the Sub-Registrar.

The defendant admitted executing an agreement but contended it was for Rs. 22,000 and challenged the plaintiff's readiness and willingness. The defendant alleged that the plaintiff had told him before 1-2-1974 that he did not intend to purchase and therefore the defendant did not attend the Sub-Registrar; the defendant further asserted that only Rs. 2,000 had actually been received earlier and that the agreement and receipt overstated the amount to ward off pre-emption rights.

On the parties' pleadings the trial Court framed four issues, decided them all in favour of the plaintiff, and decreed the suit on 4-9-1978. The defendant appealed, and that appeal was dismissed on 15-12-1979, giving rise to the present appeal.

Legal Issues Presented

Whether the plaintiff was always ready and willing to perform his part of the contract?
Whether the defendant committed any breach of the agreement?
Whether the agreement was rescinded by the plaintiff?
Relief.

Arguments of the Parties

Appellant's Arguments

A suit for specific performance must conform to the requirements prescribed in Forms 47 and 48 of the First Schedule to the Code of Civil Procedure; the plaintiff must set out the agreement in full detail in the plaint.
The plaintiff must plead that he specifically applied to the defendant to perform the agreement and that the defendant failed to do so; the plaintiff must also plead that he was and remains ready and willing to perform and must plead tender of the money on a particular date as prescribed in Form 48.
Because the plaintiff did not make the averments required by Form 48 (including a specific tender on a date), it cannot be said the plaintiff was ready and willing to perform his part of the agreement.
Relied on Dhanna Singh and another v. Malkiat Singh, 1983 Punjab Law Reporter 275 to support these contentions.

Respondent's (Plaintiff's) Arguments

The agreement of 2-2-1973 stated the terms: sale price Rs. 27,000, earnest money Rs. 7,000, registration to be completed on or before 1-2-1974, balance to be paid at registration, and alternate remedy of twice the earnest money on default.
The plaint specifically pleaded in paragraph 4 that the plaintiff "has always been and is still ready and willing to perform his part of contract in accordance with the terms of the said agreement."
Where a contract involves payment of money, actual tender or deposit is not essential except when directed by the Court; reliance was placed on Section 16(c) of the Specific Relief Act, 1963 (text of clause and its explanation were recited in the judgment).
The judgment in Dhanna Singh's case was argued to be per incuriam (rendered in ignorance of law), and alternative authorities were relied upon — Raminder Singh and another v. Sham Lal, AIR 1984 Punjab & Haryana 145, and Sardari Lal Gupta v. Siri Krishan Aggarwal, AIR 1984 Punjab & Haryana 439 — to support the contention that pleadings should be read as a whole and that a plaintiff need not strictly follow Form 48 wording where the substance of the plea is evident.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dhanna Singh and another v. Malkiat Singh, 1983 Punjab Law Reporter 275	Cited by appellant to support requirement that a plaintiff must plead in conformity with Form 48 (specific averment of tender and readiness).	The Court held that the Dhanna Singh judgment was rendered in ignorance of the law and was per incuriam, and therefore it rejected the appellant's reliance on it.
Raminder Singh and another v. Sham Lal, AIR 1984 Punjab & Haryana 145	Cited by respondent to show that the plaintiff must plead and prove readiness and willingness but pleadings should be read as a whole and not construed very strictly.	The Court relied on the reasoning in Raminder Singh to support the view that the substance of the plaint showed continuous readiness and willingness and that strict conformity with Form 48 was not essential.
Sardari Lal Gupta v. Siri Krishan Aggarwal, AIR 1984 Punjab & Haryana 439	Cited by respondent (specific principle not fully detailed in the opinion text).	The opinion records the citation as relied on by the respondent; the Court did not set out a detailed rule from this case in the text of the judgment beyond noting reliance on it.
Karnail Singh v. Kishan Singh, 1988 PLJ 54 : 1988 (2) RRR 7	Authority distinguishing "readiness" (capacity, including financial ability) from "willingness" to perform; emphasises that conduct must be scrutinised to determine willingness.	The Court quoted this distinction and applied it to conclude that readiness and willingness are distinct concepts and to support the view that the plaintiff's conduct and pleadings evidenced willingness; the Court also relied upon the principle that tender is not essential under Section 16(c) where money is involved unless directed by the Court.

Court's Reasoning and Analysis

The Court proceeded as follows:

It examined the plaint and the evidence as set out in the plaint and the plaintiff's statement. Paragraph 4 of the plaint expressly stated that the plaintiff "has always been and is still ready and willing to perform his part of contract in accordance with the terms of the said agreement." Paragraphs 5 and 6 narrated that on 1-2-1974 the plaintiff waited at the Sub-Registrar's office with the balance sale price and necessary funds, that the defendant failed to turn up, and that the plaintiff had his presence recorded by affidavit attested by the Sub-Registrar.
On the legal submission that Forms 47 and 48 require particular averments (including a specific tender), the Court considered Section 16(c) of the Specific Relief Act, 1963, which provides that specific performance cannot be enforced in favor 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 Court highlighted the Explanation to Section 16(c) which states that when a contract involves payment of money it is not essential for the plaintiff to actually tender money or deposit it in Court except when so directed by the Court; and that the plaintiff must aver performance or readiness and willingness according to the true construction of the contract.
The Court drew the distinction between "readiness" (capacity, including financial ability) and "willingness" to perform, noting that the plaintiff's conduct and pleadings must be scrutinised to determine willingness. The Court cited and relied on Karnail Singh v. Kishan Singh for this distinction.
Evaluating the plaint as a whole (and the plaintiff's statement), the Court concluded that the substance of the plaintiff's pleading and conduct evidenced that he was always ready and willing to perform his part of the agreement. The Court found that the plaintiff's presence at the Sub-Registrar, his affidavit, and the specific averment in paragraph 4 collectively satisfied the requirement of readiness and willingness.
Consequently, the Court rejected the appellant's contention that strict compliance with Form 48 was mandatory in all cases. It held that the Dhanna Singh judgment relied upon by the appellant was per incuriam and could not be followed.
On this basis, the Court found no merit in the appeal and dismissed it.

Holding and Implications

CORE RULING: APPEAL DISMISSED.

Direct consequences:

The trial Court's decree dated 4-9-1978 in favour of the plaintiff-respondent (decree for specific performance) was upheld by the Additional District Judge and is maintained by this judgment; the appellate challenge was dismissed on 15-12-1979 and the present appeal is dismissed as well.
The Court ordered no costs ("dismissed with no order as to costs").

Legal implications as reflected in the opinion (as applied to the parties):

The Court held that a plaint, read as a whole, may sufficiently aver readiness and willingness even if it does not strictly follow the wording of Form 48; strict literal conformity with Form 48 is not always required.
The Court interpreted Section 16(c) of the Specific Relief Act to mean that where a contract involves payment of money, actual tender or deposit of the money by the plaintiff is not essential except when the Court directs it; the plaintiff must, however, aver performance or readiness and willingness according to the true construction of the contract.
The Court rejected the particular precedent relied upon by the appellant (Dhanna Singh) as per incuriam and followed authorities (including Raminder Singh and Karnail Singh) that support reading the pleadings as a whole and distinguishing readiness from willingness.

The opinion does not state that it is laying down a novel precedent; it applies established principles (as discussed) to the facts and upholds the decree for specific performance.

Show all summary ...

A.S Nehra, J. — This appeal is directed against the judgment and decree dated 15-12-1979 passed by the Additional District Judge, Kurukshetra, by which the appeal filed by the defendant-appellant was dismissed and the judgment and decree dated 4.9.1978 passed by the trial Court (decreeing the suit of the plaintiff-respondent) was upheld.

2. Briefly stated, the facts of the case, as alleged by the plaintiff-respondent, are that on 2-2-1973 the defendant-appellant contracted to sell his agricultural land to the extent of 870/2204th share equivalent to 43 Kanals, 10 Marlas with all the rights for a consideration of Rs. 27,000/-, and executed an agreement to this effect; that the defendant-appellant had also received Rs. 7,000/- as earnest money from the plaintiff-respondent on the day of execution of the agreement, for which the plaintiff-respondent obtained a separate receipt from him; that according to the agreement, the defendant-appellant was to execute and get the sale deed registered in respect of the suit land, in favour of the plaintiff-respondent on or before 1-2-1974; that the defendant-appellant was to receive the balance of the sale price at the time of registration of the sale-deed; that it was further agreed that, in case of default by the defendant-appellant, the plaintiff-respondent could sue for specific performance or, in the alternative, the defendant-appellant was to pay twice the earnest money to the plaintiff-respondent; that the plaintiff-respondent was always ready and willing to perform his part of the contract and waited for the defendant-appellant in the office of the Sub-Registrar, Kaithal on 1-2-1974 to give the balance sale price but the defendant-appellant did not deliberately turn up; that the plaintiff-respondent then got his presence marked through an affidavit duly attested by the Sub-Registrar, Kaithal; that the defendant-appellant had deliberately committed breach of the agreement as he was not willing and ready to perform his part of the contract: and that, therefore, the plaintiff-respondent filed the present suit for specific performance of the agreement.

3. The suit was contested by the defendant-appellant. The defendant-appellant admitted the agreement to sell, as alleged, but stated that the same was not valid and that it was only for Rs. 22,000/-. The defendant-appellant disputed that the plaintiff-respondent was ready and willing to perform his part of the contract. According to the defendant-appellant, it was the plaintiff-respondent who was not ready and willing to perform his part of the contract and, before 1-2-1974, the plaintiff-respondent approached him for declaring the contract as rescindable by saying that he did not intend to purchase suit land and therefore, the defendant-appellant did not reach the office of the Sub-Registrar. The defendant-appellant further alleged that the plaintiff-respondent had received back a sum of Rs. 2000/- after 1-2-1974 about 2 years ago and that the defendant-appellant had actually received only Rs. 2000/- as earnest money and an excess amount was written in the agreement and receipt to ward off the exercise of right of pre-emption by possible pre-emptors.

4. On the pleadings of the parties, the following issues were framed: (1) Whether the plaintiff was always ready and willing to perform his part of the contract?

(2) Whether the defendant committed any breach of the agreement?

(3) Whether agreement was rescinded by the plaintiff?

(4) Relief.

5. All the issues were decided in favour of the plaintiff-respondent and the trial Court decreed the suit filed by the plaintiff-respondent on 4.9.1978

6. Mr. D.S Nehra, Senior Advocate, learned counsel for the appellant argued that a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Code of Civil Procedure. It was further argued by him that it is incumbent on the plaintiff to set out the agreement in all its details, on the basis of which he sues; that the plaintiff must go further and plead that he had applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so; that the plaintiff must also plead in the plaint that he had been ready and is still ready and willing to specifically perform his part of the agreement, that it is prescribed in Form 48 of the First Schedule of the Code of Civil Procedure that the plaintiff is to plead that he tendered the money to the defendant on a particular date and demanded transfer of property by a sufficient instrument, that, in the present case, the plaintiff-respondent failed to make any such averment in the plaint; that the plaintiff-respondent also did not make any statement in conformity with the said plea; and that, therefore, it cannot be said that the plaintiff-respondent was ready and willing to perform his part of the agreement. In support of his argument, he has relied upon Dhanna Singh and another v. Malkiat Singh, 1983 Punjab Law Reporter 275.

7. The learned counsel for the plaintiff-respondent, Mr. Sanjay Majithia, has submitted that the appellant executed on 2-2-1973 the agreement to sell the suit land for a consideration of Rs. 27,000/- in favour of the plaintiff and an amount of Rs. 7,000/- was paid as earnest money to the appellant; that the salient terms of the said agreement are that the appellant was to execute and get registered the sub-deed in respect of the suit land in favour of plaintiff-respondent up to 1-2-1974 and the appellant was to receive the balance of sale price at the time of registration of the sale-deed; and that in case of default by the appellant, the plaintiff-respondent was entitled to get the sale-deed executed and registered by filing a suit for specific performance or, in the alternative, the appellant was to pay the plaintiff-respondent two times of the earnest money. The learned counsel for the plaintiff-respondent has further argued that the plaintiff-respondent has specifically mentioned in paragraph 4 of the plaint that the plaintiff has always been ready and still is ready and willing to perform his part or the contract in accordance with the terms of the agreement. Mr. Sanjay Majithia, learned counsel for plaintiff-respondent, has further submitted that, where a contract involves the payment of money, it is not necessary for the plaintiff to actually tender to the defendant or to deposit in Court any amount except when so desired by the Court. In support of his argument, he has relied upon Section 16(c) of the Specific Relief Act, which reads:—

“16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person—(a) and (b)….

(c) 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 which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation. - For the purposes of clause (c),

(i) 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;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”

It would thus appear that Section 16(c) of the Specific Relief Act, 1963, therefore, enacts that it would be a personal bar to the relief of specific performance in favour of a plaintiff 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, which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendant. A distinction may be drawn between “readiness to perform the contract” and “willingness to perform the contract”. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase money. But the more important question is whether he was willing to perform his part of the contract even if he had the financial capacity to do so. It is here that the plaintiffs conduct has to be properly scrutinised.

8. In paragraph 4 of the plaint, it is clearly stated:—“That the plaintiff has always been and is still ready and willing to perform his part of contract in accordance with the terms of the said agreement.”

9. Mr. Sanjay Majithia, learned counsel for the plaintiff-respondent, has further submitted that the judgment in Dhanna Singh's ease (supra) was rendered in ignorance of law and, therefore, the said judgment is per incuriam. In support of his argument, he has relied upon Raminder Singh and another v. Sham Lal, AIR 1984 Punjab & Haryana 145, and Sardari Lal Gupta… v. Siri Krishan Aggarwal…., AIR 1984 Punjab & Haryana 439.

10. The learned counsel for the plaintiff-respondent has further submitted that the learned Single Judge who rendered the judgment in Dhanna Singh's case (supra) on 2.11.1982 has taken a different view in another case reported as Raminder Singh's case (supra) decided on 23-9-1983 and held as under:—

“The plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. It is well settled that the substance of the pleas should be kept in view and the pleadings should not be construed very strictly. It is also settled that the pleadings should be read as a whole.”

11. I have given due consideration to the argument of the learned counsel for the appellant but regret my inability to accept the same. In the plaint, all the facts have been narrated, as stated above. Thereafter, it was pleaded that the petitioner-respondent was ready and willing to perform the agreement. It has been mentioned in paragraphs 5 and 6 of the plaint that on 1-2-1974 the plaintiff-respondent waited for the defendant-appellant in the office of Sub-Registrar, Kaithal, along with the balance of sale-price and the necessary amount required for other expenses but the defendant-appellant did not deliberately meet the plaintiff-respondent either in the bazar or in the office of Sub-Registrar, Kaithal, that the plaintiff-respondent then got his presence marked before the Sub-Registrar, Kaithal, through an affidavit duly attested to this effect by the Sub-Registrar, Kaithal, in his capacity as Executive Magistrate IInd Class, Kaithal, and that the defendant-appellant has deliberately committed the breach of agreement and he is not ready and willing to perform his part of the contract. From all the pleas, it is evident that the plaintiff-respondent was alleging that he was always ready and willing to perform his part of the agreement. Therefore, it cannot be held that a plea has not been taken by the plaintiff-respondent that he was ready and willing to perform his part of the agreement. Similarly, in his statement he has stated all the above-said facts. The inference is that he was always ready and willing to perform his part of the agreement. As stated above, the plaintiff-respondent has alleged in the plaint that he is still ready and willing to perform his part of the agreement and he has also made the same statement. The judgment in Dhanna Singh's case (supra) was rendered in ignorance of the law and, therefore, the said judgment is per incuriam.

12. It has been held in Karnail Singh v. Kishan Singh a, 1988 PLJ 54 : 1988 (2) RRR 7:—

“A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase price. But the more important question is whether he was willing to perform his part of the contract even if he had the financial capacity to do so. It is here that the plaintiffs conduct has to be properly scrutinized.”

It is also clear from the language of Section 16(c) of the Specific Relief Act that, 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. Therefore, I hold that in a suit for specific performance, the plaintiff-respondent has not to conform to the requirement, prescribed in Form 48 of the First Schedule in the Code of Civil Procedure. There is, thus, no merit in this appeal and it is accordingly dismissed with no order as to costs.

Appeal dismissed.