1. This appeal is directed against the judgment and decree of the Addl. Civil Judge, Moradabad, dated 28-11-1972, dismissing the plaintiff's suit for specific performance of an agreement dated 30-12-1970.
2. The plaintiff appellant filed the suit on the allegations that the defendants are the owners of the Bhumidhari land specified at the foot of the plaint, situated in village Moore within the Municipal limits of Moradabad. On 30-12-1970 defendants executed an agreement under which they agreed to sell the land in dispute to the plaintiff for a consideration of Rs. 20,000/-. out of which the plaintiff had paid a sum of Rs. 2600/- on the date of the execution of the agreement. The plaintiff asserted that under the terms of the agreement the defendants had agreed to put him into possession by getting the foundation laid within one month of the execution of the agreement and to execute sale-deed within one year after receiving the balance amount of consideration. It was obligatory for the defendants to put the plaintiff into possession within one month of the agreement and the plaintiff was ready to pay Rs. 3400/- according to the terms of the agreement but the defendants failed to perform their part of the contract as they did not put the plaintiff into possession and further in spite of a written notice they failed to accept the remaining amount of consideration or to execute the sale-deed. The plaintiff, has all along been ready and willing to perform his part of the contract: but, the defendants have failed to perform their part of the contract. Hence, the suit. The defendants filed written statement and contested the suit. The defendants pleaded that the plaintiff had failed to perform his part of the contract, inasmuch as, he did not pay the sum of Rs. 3400/- within one month of the agreement in accordance with the terms of the agreement. The plaintiff failed to pay the amount, and he was not willing or ready to pay the same in spite of repeated demand made by them. On these pleadings the defendants asserted that the plaintiff was not entitled to any relief.
3. The trial Court held that the plaintiff was not entitled to the relief of the specific performance of the agreement as he himself was not ready or willing to perform his part of the contract. On these findings the trial Court dismissed the plaintiff's suit, hence this appeal.
4. Learned counsel for the appellant assailed the findings of the trial Court and urged that since time was not the essence of the contract and as such even if the plaintiff had failed to pay Rs. 3400/- within one month from the date of the agreement, the defendants could not avoid the agreement as the plaintiff had all along been ready and willing to perform his part of the contract and the finding of the trial Court is erroneous and unsustainable on the evidence on record.
5. Before considering the legal questions and the authorities, cited by the parties' counsel. I consider it necessary to refer to the agreement dated 30-12-1970 (Ex. 2) executed by the defendants, to ascertain the true nature of the terms of the agreement. Under cl. (1) of the agreement the defendants agreed to execute the sale-deed within one year from the date of the execution of the agreement and to put the plaintiff into possession by helping him in laying down foundation and by getting the sale-deed registered after obtaining the remaining amount of the sale consideration. It, further, stipulated that if before the registration of the sale-deed, the defendants required money, then the plaintiff will pay the same to them and the amounts so paid shall be adjusted towards the sale consideration at the time of registration. Thereafter cl. (1) contained the relevant condition which has been the subject-matter of controversy in the suit. It reads as under:—
“Fariq doyam mublig 3400 rupaye under ek mah ke ada karenge jo jaruri va lajmi hoga.”
6. The above condition stipulated that the second party, viz. the plaintiff shall pay a sum of Rs. 3400/- to the first party, viz., the defendants within one month of the agreement and this would be necessary and compulsory. Cl. (2) of the agreement contained the usual term and condition that if the defendants failed to execute the sale-deed within the stipulated period of time, it will be open to the plaintiff to get the same executed through Court. On a careful scrutiny of the terms of the agreement as contained in cl. (1) it is apparent that the plaintiff agreed to pay a sum of Rs. 3400/- to the defendants within one month of the agreement. The words used in the agreement leave no room for any doubt that this condition was mandatory in nature. The payment of Rs. 3400/- to the defendants was not dependent upon the delivery of possession to the plaintiff.
7. The question as to whether the plaintiff was ready and willing to pay Rs. 3400/- to the defendants in accordance with the agreement needs consideration. In the plaint the plaintiff had pleaded that according to the terms of the agreement entered into between the parties the defendants were required to put the plaintiff in possession within one month of the agreement by helping him in getting the foundation laid. In view of that terms the plaintiff requested the defendants to accept Rs. 3400/- and to put him into possession Over the property: but the defendants failed to do so. The plaintiff had all along been ready and willing to pay money and to get the sale deed executed in accordance with the terms and conditions of the agreement. Before filing the suit the plaintiff had served notice dated 29-10-1971 (Ex. 5) on the defendants calling upon them to execute the sale-deed after receiving the sale consideration. In that notice also the plaintiff referred to the terms of the agreement and stated that the defendants had undertaken to put the plaintiff into possession within one month and the plaintiff would thereafter pay Rs. 3400/- to them; but, the defendant? failed to comply with the terms of the agreement. The case as set out in the plaint and the notice show that the plaintiff has been insisting to pay Rs. 3400/- only after he was put into possession of the property. If there was any doubt, the same was clarified by the plaintiff in the witness-box. In his statement before the trial Court Rahatjan plaintiff stated in his examination-in-chief that he was and he has all along been ready and willing to get the sale-deed executed and to pay the sale consideration. In his cross-examination, however, he stated in unmistakable terms that he was not ready to pay Rs. 3,400/- to the defendants unless they put him in possession and helped him in getting the foundation laid. As discussed earlier the agreement did not contain any condition that the defendants shall put the plaintiff in possession over the property in dispute within one month of the agreement. Under the terms of the agreement the plaintiff was required to pay Rupees 3,400/- to the defendants within one month, its payment was not linked with the delivery of possession of the property. The plaintiff did not pay Rupees 3,400/-, as he had all along been insisting that the money would be paid to the defendants only after they had put him in possession over the property. The stand taken by the plaintiff was certainly inconsistent with the terms and conditions of the agreement. There is, thus, no escape from the conclusion that the plaintiff was not ready and willing to perform his part of the contract.
8. Section 16(e) of the Specific Relief Act 1963 contains a mandatory provision, according to which no relief for srecific performance of the contract can be enforced in favour of a person who fails to aver and prove that he has performed of has always been ready and veiling to perform the essential terms of the contract which are to be performed by him. Explanation to this section further, lays down that the plaintiff should aver and prove his readiness and willingness to perform the contract according to its true construction. Readiness and willingness to perform his part of the contract is to be judged on the true construction of the agreement. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The plaintiff cannot add any additional condition for the performance of his part of the contract. The readiness and willingness of the plaintiff to perform the contract should, therefore, be in accordance with the terms contained in the agreement. The readiness of the plaintiff must be in relation to the real agreement between the parties. If it transpires that the real agreement is not what the plaintiff alleges and the readiness and willingness which the plaintiff displayed was not in relation to the agreement, the plaintiff would be within the mischief of the doctrine of readiness and willingness perform the contract and he will not be entitled to any relief. (See Md. Ziaul Haque v. Calcutta Vyapar Pratisthan, AIR 1966 Cal 605).
9. In the instant case the plaintiff was not ready and willing to pay Rs. 3.400/- to the defendants in accordance with the terms of the agreement instead he insisted that he would pay the money only after he was put in possession of the property the plaintiff's insistence for being put into possession was not in accordance with the real term of the agreement. The agreement clearly stipulated payment of Rs. 3,400/- within one month to the defendants without there being any condition attached to it. In the circumstances, the trial Court rightly refused to grant relief to the plaintiff.
10. The appellant's contention that time was not the essence of the contract and as such, the plaintiff's failure to pay Rs. 3,400/- within one month of the agreement could not be taken into consideration to refuse enforcement of the performance of the agreement, is devoid of merit. The agreement requiring payment of the money within one month of the date of agreement, did not make the time essence of the contract. This question does not arise in this case. The defendants' grievance was that the plaintiff insisted upon the defendants that he be put in possession before the money was paid to them. The defendants' grievance has never been that the money was not paid within one month or that it was offered to them after the expiry of one month and that, therefore, they were not willing to perform their part of the contract. If the plaintiff had offered Rs. 3,400/- to the defendants even after the expiry of the period of one month and if they had refused the same, the question of time being essence of contract may arise. In the instant case, even at the stage of the evidence before the trial Court the plaintiff was not ready or willing to pay Rs. 3,400/- to the defendants unless they put him into possession of the property That being so the question of time being the essence of the contract does not arise at all.
11. Now, I would refer to the authorities, cited on behalf of the appellant, in support of the proposition that the fixation of the period within which the contract was to be performed does not make the stipulation the time being essence of contract. In Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868, the Supreme Court observed that fixation of the period within which the contract is to be performed does not make the stipulation as time being the essence of the contract. If the time was not originally the essence, it was open to the appellant to call upon the other party for performance of his part of the contract and to take conveyance within the time fixed by paying the sale consideration. In Govind Prasad Chaturvedi v. Hari Dutt Shastri, (1977) 2 SCC 539 : AIR 1977 SC 1005, it was again observed that the fixation of period within which the contract has to be performed does not make the stipulation as to time the essence of the contract, when a contract relates to sale of immoveable property, it will normally be presumed that the time is not the essence of the contract. The intention to treat the time as the essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. The Supreme Court, further, held that on the facts and circumstances of the case the plaintiff of that case was always ready and willing to perform his part of the contract and that the defendants were evading their responsibility and as such, the plaintiff was granted relief. In the instant case, however, the facts and circumstances clearly show that the plaintiff was not ready and willing to perform his part of the contract and as such the question of time being essence of the contract does not, arise.
12. Counsel for the appellant then urged that even if the contract of specific performance cannot be enforced, the plaintiff is entitled to refund of Rupees 2600/- paid as earnest money to the defendants. There is no dispute between the parties that a sum of Rs. 2600/- had been paid by the plaintiff to the defendants on 30-12-70, the date on which the agreement was executed. The sale-deed as stipulated by the agreement has not been executed and the defendants have not put the plaintiff in possession over the land in dispute, and as such, the plaintiff claims that the amount of Rs. 2600/- paid by him to the defendants should be refunded to him. Learned counsel for the defendant respondents, urged that since the plaintiff failed to claim this relief in the plaint, he is not entitled to the relief for refund of the earnest money. He placed reliance on S. 22(2) of the Specific Relief Act when lays down that no relief including the relief for refund of any earnest money shall be granted by the Court unless it has been specifically claimed Section 22(2) came up for consideration before the Supreme Court in Babulal v. Hazari Lal. (1982) 1 SCC 525 : AIR 1982 SC 818. The Supreme Court held that S. 22 of the Specific Relief Act provides for relief of specific performance of a contract for the transfer of immoveable property and the plaintiff may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs, he can claim, notwithstanding anything contained in the Civil Procedure Code to the contrary. Sub-sec. (2) of this section specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. The proviso to sub-sec (2) however says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings to include one or more of the reliefs, by means of an amendment of the plaint on such terms as it may deem proper. The Supreme Court emphasised that the only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. The Supreme Court, however, further held that S. 22 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-sec. (4) of s. 28 bars the filing of a separate suit for any relief which may be claimed under this section.
13. Learned counsel for the defendant-respondents, on the other hand urged that even if the Court has power to grant relief for refund of the earnest money, to the plaintiff, no such relief should be granted in view of the specific terms contained in the agreement itself. According to Cl. (2) of the agreement the parties agreed that if for any appropriate reason the second party, namely, the plaintiff fails to get the sale deed executed the earnest money paid to the first party namely, the defendants, shall be forfeited and the same shall not be liable to be refunded.
14. This clause is in consonance with the provisions, contained in S. 74 of the Contract Act, Since the execution of the sale-deed could not be done on account of the plaintiff's failure to perform his part of the contract, the earnest money paid by him to the defendants is not refundable in accordance with the terms of the agreement. Such a contingency in a contract has been held to be valid by the Supreme Court in Maula Bux v. Union Of India† ., (1969) 2 SCC 554 : AIR 1970 SC 1955, where under the terms of a contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid as security for guaranteeing due performance of the contract to the party complaining of the breach of the contract, the undertaking is of the nature of a penalty. In the instant case the claimant clearly stipulated that if the plaintiff appellant failed to get the sale deed executed without there being any appropriate reason for the same, the earnest money shall not be refunded. I have already recorded a finding that the plaintiff was not justified in insisting upon the defendants to put him in possession of the property before the payment of Rupees 3,400/- could be made and this was in breach of the terms of the agreement. The plaintiff had no reasonable ground to avoid to perform his part of the contract under the agreement and as such, the earnest money paid to the defendants cannot be refunded.
15. In the result, the appeal fails and is accordingly, dismissed: but, there will be no order as to costs.
16. Appeal dismissed.