KALIYAMOORTHY v. A.S.MANIAN (DIED)

3.The appellant instituted O.S No.644 of 1996 on the file of the Sub Court, Trichirappalli (transferred and re-numbered as O.S No.1757 of 2004 on the file of the District Munsif Court, Trichirappalli) on 08.10.1996 seeking specific performance of the agreement dated 23.11.1994. During the pendency of the suit, both the executants passed away and their legal heirs came on record. Written statement was filed controverting the plaint averments. The readiness and willingness of the plaintiff was questioned. 4.Based on the divergent pleadings, the trial court framed as many as six issues. The plaintiff examined himself as PW.1 and marked Exs.A1 to A5. The 4^thdefendant examined herself as DW.1 and marked the certified copies of the judgment and decree made in O.S No.638 of 1991 as Exs.B1 and B2. After consideration of the evidence on record, the trial court by judgment and decree dated 10.10.2007 directed the defendants to execute a sale deed with regard to the suit property in favour of the plaintiff on his depositing the balance sale consideration with 9% interest from the date of the sale agreement to the date of deposit on or before 10.11.2007. Aggrieved by the same, the defendants filed A.S No.70 of 2008 before the Principal Subordinate Judge, Trichirappalli. The first appellate court by the impugned judgment and decree dated 14.07.2009 reversed the decision of the trial court and allowed the appeal. Questioning the same, this second appeal came to be filed.

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5.The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to frame the substantial questions of law and admit the appeal and take it up for disposal later. Per contra, the learned counsel appearing for the respondents submitted that no substantial question of law arises for consideration and pressed for dismissal of the second appeal. 6.I carefully considered the rival contentions and went through the evidence on record. The original defendants had agreed to sell the suit property in favour of the appellant vide Ex.A1 dated 23.11.1994. Since they did not come forward to execute the sale deed, O.S No.644 of 1996 was filed before Sub Court, Trichirappalli. The first appellate court concluded that the plaintiff failed to satisfy the requirement set out in Section 16 (c) of the Specific Relief Act, 1963. The only question that falls for consideration is whether the said conclusion of the first appellate court is correct. 7.Before amendment, Section 16(c) of the Specific Relief Act, 1963 was as follows :

"Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person- (a)....

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(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 of 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."

In Azhar Sultana v. B.Rajamani (2009) 17 SCC 27, it was held that this provision postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract. In Vijay A. Mittal and Ors. vs. Kulwant Rai (Dead) thr. L.Rs. and Ors (2019) 3 SCC 520, it was held that a finding on the issue of readiness and willingness is one of the important and relevant findings in a suit for specific performance of an agreement. It is a finding based on facts and once it is recorded, it becomes a finding of fact. Unless such finding is found to be against the pleadings or contrary to the evidence or the law governing the issue, it is binding on the High Court.

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8.As per Section 55(1) of the Transfer of Property Act, 1882, in the absence of a contract to the contrary, the seller is bound (a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power; (c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto. It is also true that promises which form the consideration or part of the consideration for each other are called reciprocal promises. Sections 51 to 54 of the Indian Contract Act, 1872 contain the provisions regarding performance of reciprocal promises. In Saradamani Kandappan and Ors. vs. S. Rajalakshmi and Ors. [(2011) 12 SCC 18], it was held that the purchaser cannot claim that the vendors should produce the original title deeds and satisfy her regarding their title. The order of performance of reciprocal promises does not depend upon the order in which the terms of the agreement are reduced into writing. The order of performance should be expressly stated or provided, that is, the agreement should say only after performance of obligations of vendors, the purchaser will have to perform her obligations. Since there was no such express fixation of the order in which the

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reciprocal promises are to be performed, the purchaser's contention was rejected. The following paragraphs from the said judgment are also relevant :

"31.Section 51 provides that when a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise, unless the promisee is ready and willing to perform his reciprocal promise. For example, if the contract provides that the balance of sale consideration shall be paid by the purchaser to the vendor against execution of sale deed within a period of three months, the purchaser need not pay the balance sale consideration if the vendor was not willing to execute the sale deed. Similarly the vendor need not execute the sale deed unless the purchaser is ready to pay the balance sale consideration.

32. Section 52 relates to the order of performance of reciprocal promises. It provides that where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires. Let us illustrate with reference to an agreement of sale which provides that the vendor shall make out to the satisfaction of the purchaser a good, marketable and subsisting title and provide all documents as required by the purchaser to satisfy him about the title of the vendor, that the vendor shall obtain a certificate of clearance from a specified authority for the sale, that the sale shall be completed

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within a period of four months of receipt of the clearance certificate and the purchaser shall pay the balance sale price at the time of registration of the sale. It is evident that the vendor will have first to make out a title by producing the documents required by the purchaser and also obtain the clearance certificate. Only thereafter the sale deed shall have to be executed and payment of the sale consideration will have to be made at the time of registration of the sale deed. The vendor cannot seek payment of the balance sale price without performing his obligations as per the agreement.

33. Section 53 provides that when a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the nonperformance of the contract. Let us take by way of illustration an agreement which provides that out of the sale price Rs. 10,00,000, Rs. 1,00,000 was paid as advance, Rs. 4,00,000 was to be paid within one month to enable the vendor to purchase an alternative property and shift his residence from the property agreed to be sold, and the sale deed has to be executed within three months from the date of agreement of sale and vacant possession of the premises should be given, against payment of balance price. If the purchaser failed to pay Rs. 4,00,000 within one month and thereby prevented the vendor from purchasing another property and shifting to such

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premises, the vendor will not be able to perform his obligation to deliver vacant possession. Thus the contract becomes voidable at the option of the vendor.

34. Section 54 of Contract Act provides that when a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract. The agreement in this case provides a good illustration for this section. The purchaser cannot claim that the vendors should produce the original title deeds and satisfy her regarding their title, or claim execution of the sale deed, unless and until she paid the entire consideration within the time stipulated in Clause

(4) of the agreement, which would enable the vendors to repay the loans and obtain release of the original title deeds."

In Chand Rani (Dead) by Lrs. vs. Kamal Rani (Dead) by Lrs. [(1993 )1SCC 519], the Hon'ble Supreme Court held that if the final ultimatum by the seller has been given for payment of balance amount, then, the best thing for the purchaser to pay the balance amount and take appropriate steps. If the purchaser failed to do so, he cannot take advantage of his own mistake and put the blame on the vendors that they did not satisfy

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him about their title. The very same approach was adopted in A.K. Lakshmipathy (Dead) and Ors. vs. Rai Saheb Pannalal H. Lahoti CharitableTrust and Ors. [(2010) 1 SCC 287]. 9.Before entering into a discussion on facts, one must bear in mind the distinction between good title and marketable title. While good title would be title which would be good against everybody, marketable title is one which is free from reasonable doubt. Of course, no title is good that is not marketable. When the agreement between the parties was that there would be marketable title, if the plaintiff insisted upon good title, he would be departing from the terms of the agreement (Md.Ziaul Haque vs. Calcutta Vyaper Pratisthan (AIR 1966 Cal 605). Under Ex.A1 suit agreement, the executants had only affirmed having marketable title. By issuing Ex.A2 notice dated 08.03.1995, the plaintiff was insisting on good title though the expression "marketable title" was used. He entertained a doubt regarding the title of his proposed vendors over the suit property. He was shaken by the fact that O.S No.638 of 1991 filed against them was pending trial. After the said suit ended in favour of his proposed vendors, he filed the present suit for specific performance.

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10.The language in which the suit notice was couched is interesting. Even while calling upon the noticees to state in detail as to how they acquired title to the property, it stated that the plaintiff "has always been ready and willing to purchase the property". It concluded by calling upon the noticees to satisfy the plaintiff about their title to the property forthwith and that on hearing the same from them, the plaintiff "will always be ready and willing to purchase the same". In the coming issue of The New Yorker, there is an essay on the Iranian-American poet Solmaz Sharif. I cannot resist quoting the following para :

"For Sharif, exile is a matter of time as well as place. Born "away from" her homeland, she never had anything to forget, and yet she feels the missing memory as a compounding absence: she must "lose even the loss." She finds one way of capturing this disordered temporality through the present-perfect tense in Farsi, which "is used at times to describe a historic event whose effect is still relevant today."

She translates the tense into English as "is-was," as in "The Shah is_-was a dictator._" This layered vision of time deepens and extends the past, but can cloud what lies ahead. At one point, Sharif imagines a future self "who was dead before she died."

A poet is entitled to such layered or disjointed vision of time. A litigant who seeks the relief of specific performance has no such privileges. The counsel

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for the plaintiff in his notice had employed the present perfect as well as the future perfect tenses while conveying the readiness and willingness of the appellant herein to purchase the property. But the clever effort is in vain. Though the appellant had the financial capacity to buy the property and thus the element of readiness was always there, his willingness to conclude the transaction was temporarily put on hold because he was not sure of the vendors' title. Ex.A2 notice concluded as follows :

"You are called upon to satisfy my client about your title to the property forthwith. On hearing the same from you my client will always be ready and willing to purchase the same."

The plaintiff must show continuous readiness and willingness to conclude the transaction from the date of agreement till its specific performance. There cannot be any intermissions as in films. The journey has to be non-stop. There cannot be any breakdown in-between. The elements of readiness and willingness to perform the contract must manifest themselves in a seamless continuum. But in this case, the willingness of the appellant was for a while suspended. To put it plainly, the appellant was not in a frame of mind to conclude the transaction till the disposal of O.S No.638 of 1991. After it ended in favour of his vendors, he filed O.S No.644 of 1996 on the file of the Sub Court, Trichirappalli. That is why, the learned first appellate Judge rightly held

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that the plaintiff did not show continuous willingness on his part. This finding of fact cannot be dislodged. No substantial question of law arises for consideration.

11.However, the appellant is entitled to some relief. No doubt the first appellate court had ordered refund of the advance amount. But the defendants have not been directed to pay any interest. The defendants deposited the advance amount to the credit of the first appellate court only after succeeding in the suit. The appellant had also deposited the balance sale price. Therefore, even while sustaining the decision of the first appellate court denying the relief of specific performance, the impugned judgment and decree is modified and the second appeal is disposed of with the following directions :

"The respondents are directed to pay the appellant the interest amount of Rs.48,720/- within a period of eight weeks from the date of receipt of copy of this judgment and decree. On default, it would carry interest at the rate of 12% p.a thereafter. The appellant is entitled to withdraw the amounts deposited by him as well as the defendants before the court below with accrued interest."

14.03.2022

Index : Yes / No Internet : Yes/ No skm

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To:

1.The Principal Subordinate Judge, Trichirappalli. 2.The District Munsif, Trichirappalli.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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G.R.SWAMINATHAN, J.

skm

14.03.2022

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