RAMAKRISHNA PANICKER v. KRISHNA PILLAI — 1969 DIGILAW 173 (KER)

Judgment :- 1. By Ex. P1 dated 13-4-1951 the defendant entered into an agreement with the mother of the plaintiffs for reconveying a property sold by the plaintiff's mother to the defendant by a previous deed, Ex. D2. Such sale under Ex. D2 was for Rs.750/-, and at the time when the defendant took the sale he was a mortgagee of the property having obtained such mortgage on 13-7-1122 for Rs. 500/-. There was an earlier mortgage in respect of the property of the year 1092 and the defendant on the strength of the mortgage dated 13 71122 taken by him, had filed a suit for redemption, O.S. No. 507 of 1123 of the Alleppey Munsiff's Court. It was during the pendency of that suit for redemption that he, the mortgagee obtained sale of the equity of redemption also from the mother of the plaintiffs under Ex. D2. In the agreement for re-conveyance executed on 13 41951 the defendant agreed that, within a month of his getting delivery of the property pursuant to the decree in O.S. 507 of 1123, he would convey the property to plaintiff's mother, the consideration for such conveyance being the mortgage amount of Rs. 500/- plus interest thereon from the date of the mortgage (there is a dispute as to the interpretation in regard to this term), the amount advanced in addition to the mortgage amount for taking Ex. D2 sale deed and interest thereon from the date of Ex. P1 and further, the costs incurred by the defendant as seen from his account. There was a further clause in Ex. P1 that in the event of default to act according to the terms of the karar the karar would stand cancelled. This suit has arisen at the instance of plaintiffs, who on the death of their mother, claimed specific performance of the agreement to reconvey, contained in Ex. P1. The property was delivered over to the defendant in execution of the decree in O.S. No. 507 of 1123 on 8 41960 and therefore under the terms of Ex. P1 he was bound to execute a sale deed on demand by the plaintiffs on or before 8 51960. It is the case of the plaintiffs that in spite of demand defendant refused to execute the sale deed. A notice was issued to him. P1 he was bound to execute a sale deed on demand by the plaintiffs on or before 8 51960. It is the case of the plaintiffs that in spite of demand defendant refused to execute the sale deed. A notice was issued to him. Still he did not agree to execute the sale deed and therefore they had to come to court with a suit for specific performance of the agreement to sell contained in Ex. PL It may be mentioned that on the date of Ex. P1 a counterpart of Ex.PI was executed by the plaintiff's mother in favour of the defendant with terms same as those contained in Ex. P1I. In the plaint the plaintiffs have calculated the amount payable under the terms of Ex. P1 as Rs. 1285. In arriving at this figure they had taken the interest payable on the mortgage amount of Rs. 5000/- as limited to a moiety the interest payable on the amount of Rs. 250 paid for taking Ex. D2 in addition to the mortgage amount also as limited to a moiety and the expenses of litigation as Rs. 160/. The defendant in the written statement set up the contention that Ex. P1 has no legal force, that it was not intented to operate and that it did not come into operation. They also contended that, in the event of specific performance being decreed, the amount payable was Rs. 5855/- and an account for this amount so claimed was also shown in the written statement. On these pleadings the parties went to trial. The trial court decreed the suit in terms of the plaint, holding that Ex. P1 karar was valid, that it was supported by consideration, that it was enforceable, that the sale deed dated 12-4-1951 was not intended by the parties to be treated as an outright deed of sale, that the amount due, to be paid under the terms of Ex. P1, was Rs. 1285/- and that had been offered & therefore plaintiff was entitled to a decree. The lower appellant court in the appeal filed by the defendant, held that Ex. P1, was Rs. 1285/- and that had been offered & therefore plaintiff was entitled to a decree. The lower appellant court in the appeal filed by the defendant, held that Ex. D2 sale had come into effect, that plaintiffs had not proved that they were ready and willing to perform their part of the contract, the proof of which alone will entitle the plaintiffs in a suit for specific performance for a decree and therefore the suit should fail. In this view it found that the other questions did not arise for discussion. The plaintiffs who thus lost in the appellate court, have filed this appeal. 2. The main question that, therefore, arises in this appeal is whether the suit, as now laid, for specific performance, is maintainable. The ground on which the lower appellate court held that this is not maintainable is that plaintiffs have not shown that they were ready and willing to perform their part of agreement. I am afraid this question may not arise for consideration at all in the nature of the pleadings in this case. No doubt, in a suit for specific performance it is for the plaintiffs to aver that they were and are ready and willing to perform their part of the agreement. The question of evidence in proof of such a plea would arise only if such a plea is made by the plaintiff and is traversed by the defendant. If there is no plea at all then there is no question of considering the evidence on that point. If there is a plea but it is not traversed by the defendant in his written statement, then again the plaintiff is not called upon to prove his readiness and willingness. In this case there is controversy as to whether the averments in the plaint can be construed to mean that the plaintiffs have been ready and willing to perform their part of the agreement and I will presently consider what I think to be the correct construction to be put upon the plaint in this case. But if I find that the averments in the plaint are sufficient, then no question of evidence would arise because it is admitted that such a plea is not traversed in the written statement. But if I find that the averments in the plaint are sufficient, then no question of evidence would arise because it is admitted that such a plea is not traversed in the written statement. There is no case for the defendant that the plaintiffs were not ready and willing to perform the contract or that the plaintiffs did not treat the contract as subsisting. Therefore, in either case, in this state of pleadings there is no question of going into the evidence On this point. If so, the lower appellate court was not justified in embarking upon an investigation into this question and finding, on the evidence that the plaintiffs were not ready and willing to perform their part of the contract. 3. In the plaint the case of the plaintiffs is that Ex. P1 agreement was executed on 13 41951, that the defendant had obtained delivery of the property in execution in O. S. No. 507 of 1123, that he is bound under Ext. P1 to execute a sale deed in favour of Karthyayani Amma, that he was entitled to receive amounts which are mentioned in Ex. P1 as payable for the consideration of such sale deed, that a notice has been issued to the defendant after directly contacting him and asking him to execute such sale, but in spite of this defendant is not agreeable to execute the sale deed. In terms, there is no averment that, on the date of suit, plaintiffs are ready and willing to take the sale deed after paying the amount which they are obliged to pay under the terms of Ex. P1. But can the averments, to which I have already made reference, be construed as amounting to an averment of readiness and willingness on the part of the plaintiff? If so, plaintiffs having made such necessary averments and the defendant having failed to traverse it, the suit is not liable to be dismissed on the ground on which it has now been dismissed. 4. S.16 (c) of the Specific Relief Act. If so, plaintiffs having made such necessary averments and the defendant having failed to traverse it, the suit is not liable to be dismissed on the ground on which it has now been dismissed. 4. S.16 (c) of the Specific Relief Act. 1963 reads as follows: "(c) 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 which are to be performed by him, other than terras 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". Explanation (ii) in terms provides that in a suit for specific performance plaintiff must aver performance or readiness or willingness to perform the contract according to its true construction. In the Specific Relief Act I of 1877 there is no similar specific provision on this point. It agreed that this suit is governed by provisions of Act I of 1877 and I was referring S.16(c) of the new Act only to point out the difference between that provision and the provisions under Act I of 1877. Though there is no such provision in the earlier Act it has been held that in matters not covered by provisions of the statute the principles of English Law would apply so far as specific performance was concerned and therefore the principle well accepted in English Law that readiness and willingness must be indicated in the pleadings in a suit for specific performance has been accepted as law in India. The Privy Council in Araeshir H. Mama v. Flora Sassoon (AIR, 1928 PC. 208) a case time and again referred to in decisions of the various High Courts in India and also of the Supreme Court at page 251 has said: "In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. 208) a case time and again referred to in decisions of the various High Courts in India and also of the Supreme Court at page 251 has said: "In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. This it was that the commencement of an action for damages being, on the principle of such cases as Clough v. L & N.W.R. 708 - 20 W. R.189 and Law v. Law 227 92 L. T., a definite election to treat the contract as at an end, no suit for specific performance, whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff. He had by his election precluded himself even making the averment just referred to, proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the court itself to award damages in such a suit has been touched upon." This passage has been referred to in the decision of the Supreme Court in Gomathinayagam Pillai v. Palaniswami Nadar (AIR. 1967 SC. 868). The Privy Council has referred to the fact that what in essence has to be pleaded by the plaintiff is that the contract is still subsisting. When a party defaults to perform his part of the contract it may be that the other party treats the contract as broken and files a suit for damages or it may be that he elects to treat the contract as still subsisting and seeks specific performance of the contract. Once the plaintiff elects to seek damages he necessarily elects to treat the contract as not subsisting and therefore it is no longer open to him to say later that he was ready and willing to perform his part of the contract and sue for specific performance. Once the plaintiff elects to seek damages he necessarily elects to treat the contract as not subsisting and therefore it is no longer open to him to say later that he was ready and willing to perform his part of the contract and sue for specific performance. If he alleges in the suit that the contract is still subsisting (and to say that he is ready and willing to perform the contract is one way of alleging that the contract is still subsisting) then the necessary averments will be deemed to have been made in such a suit and as the Privy Council has said, he is required to prove a continuous readiness and willingness to perform the contract on his part if the fact is traversed, and when such is the case and he fails to make good the averments then the suit has to fail. The decision of the Supreme Court I just now referred to is one where there was an averment by the plaintiffs that they were ready and willing to perform their part of the agreement and this was traversed by the defendants and therefore the question that arose in that case was whether on the facts the readiness and willingness was proved. The decision of the Supreme Court cannot be taken to be an authority, as canvassed by the learned counsel for the respondent, for the proposition that in every case the plaintiff who files the suit for specific performance is bound to prove that he was ready and willing to perform his part of the contract. That, as I have stated earlier, would arise only if the defendant disputes the correctness of the stand taken by the plaintiff. 5. I have pointed out above that in the case before the Privy Council what was required to be done by the plaintiff was that he should have treated the contract as subsisting. Even in the absence of a specific averment that the plaintiff is ready and willing to perform his part of the contract if he avers that the contract is subsisting and he is prepared to act in accordance with the terms of the Contract it appears that would be sufficient to hold that the suit is maintainable. No doubt, the Code of Civil Procedure prescribes the form in which the plaint in a suit for specific performance has to be drafted. No doubt, the Code of Civil Procedure prescribes the form in which the plaint in a suit for specific performance has to be drafted. Form No. 47 in Appendix A relates to such a plaint and the averment that plaintiff is ready and willing to perform his part of the contract is one of the averments shown as necessary in the said form. My learned brother Raman Nayar J. (as he then was) has occasion to consider a case where in a plaint suit for specific performance, there were no averments in terms required by form No. 47, and my learned brother referred to the obstinate refusal of lawyers in the mofussil to look even so far as the forms given in Appendix A of the Civil Procedure Code before settling their pleadings. id spite of the absence of such an averment in terms of form No. 47, in the plaint, my learned brother has construed the plaint as one which contained the necessary averments to maintain suit. I am referring to this only because, if, apart from non-compliance with form No. 47, the substance of the averments in the plaint are sufficient to maintain a suit for specific performance the plaintiffs should not be disentitled to relief in the suit on the ground that the suit is not maintainable. I am not saying, nor do I understand my learned brother Raman Nayar J., as having said, that a suit for specific performance need not conform to the requirements prescribed in Forms 47 and 48 of the first schedule in the Civil Procedure Code. I was only pointing out the consequences of non-compliance with those requirements. I do not consider that such non-compliance would be so fatal as to result in throwing out the suit as not maintainable in law, if the allegations in the plaint taken as a whole amount in substance and materially, to what required to be alleged in the forms prescribed. In that event there would be substantial compliance and that, according to me, would be enough. After the arguments of counsel in the case was closed, I have come to notice the decision of the Supreme Court in Ouseph Varghese v. Joseph Aley (1969) II SC. WR. 347. In that event there would be substantial compliance and that, according to me, would be enough. After the arguments of counsel in the case was closed, I have come to notice the decision of the Supreme Court in Ouseph Varghese v. Joseph Aley (1969) II SC. WR. 347. Though the Supreme Court considers that a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 referred to earlier, the consequences of non-complaince or whether substantial compliance will be sufficient are not questions which have been considered by the Supreme Court. I do not think there is anything in the decision of the Supreme Court which goes against the view I have taken here. 6. It appears to me that when a plaintiff in the plaint avers that he was ready to act in terms of the conditions in the agreement of sale and that he issued a notice to the defendant intimating his readiness to act in accordance thereof and further avers that the notice was not replied to by the defendant and then seeks enforcement of the agreement by specific performance, the averments are sufficient to be read as a plea that the contract which is sought to be specifically enforced is still subsisting. Under such circumstances even if the plaintiff fails to aver that he was ready and willing to perform the contract the allegations in the plaint, taken as a whole, may be sufficient to hold that a suit for specific performance would lie. I am supported in this view by a decision of the Bombay High Court reported in Narayanan Nargorao v. Amrit Haribhau (AIR. 1957 Bom. 241). Extracting the passage from the decision in AIR. 1928 PC. 208 at 216, to which I have already referred in this judgment earlier, Mudholkar J. held in that case: "What is laid down in this decision is that the plaintiff must treat the contract as subsisting. This he can do making a specific allegation of that kind in the plaint. Extracting the passage from the decision in AIR. 1928 PC. 208 at 216, to which I have already referred in this judgment earlier, Mudholkar J. held in that case: "What is laid down in this decision is that the plaintiff must treat the contract as subsisting. This he can do making a specific allegation of that kind in the plaint. In the instant case we find that the plaintiff has clearly referred to the notice given by him to the defendant in which he has expressly stated his readiness and willingness to perform his part of the contract and he has also made a grievance of the fact that in spite of this notice the defendant failed to execute a sale deed in his favour. In the relief clause the only substantial relief which is asked for is the relief of specific performance. He has not even claimed any alternative relief. In the circumstances, therefore, it would amount to being extremely technical if I were to hold that the plaintiff has not expressed his readiness and willingness to perform his part of the contract. In this connection I may quote the following observations of Lord Campbell in Court v. The Ambergate etc. Railway Company, (1851) 17 QB.127 (C): "in common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants." These observations have been quoted with approval in Arjunsa Raghusa Patwi v. Mohaulal Harakehand Jain, ILR.1938 Nag. 308 at p. 316: (AIR. 1937 Nag. 345 at p. 349) (D) and Shamlal v. Yesaram, ILR.1954 Nag. 866: (AIR. 1954 Nag. 334) (E). I therefore hold that the failure of the plaintiff to express specifically in clear terms his readiness and willingness to perform his part of the contract does not disentitle him to specific performance." What has been stated about the averments in that case would apply with all force to the averments in the present suit. 7. I have against to refer to the decision of the Supreme Court reported in (1969) II S. C. W. R.347). 7. I have against to refer to the decision of the Supreme Court reported in (1969) II S. C. W. R.347). Justice Hegde, speaking for the Bench, said in that case: "In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he suss in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and witling to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken these pleas. As observed by this Court in Pt. Prem Raj v. The DLF. Hussing and Construction (Private) Ltd. and anr. it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable." To understand the import of the observation of the learned judge extracted above it is necessary to state the facts of that case here. The plaintiff who sold certain properties to the 1st defendant in that suit set up a case of an agreement between himself and the 1st defendant to sell the properties back to the plaintiff. This was found against. The additional defendant who obtained the suit properties from the 1st defendant by way of gift set up a case that the 1st defendant, who died during the pendency of the suit had asked her to assign item No.1 in the suit properties for a consideration of Rs. 11, 500/-. The High Court, taking this as an admission on the part of the defendant of a portion of the claim in the suit gave a decree to the plaintiff in regard to item I directing specific performance of the agreement set up by the additional defendant. The Supreme Court was of the view that this decree was unjustified since the plaintiff had not accepted the case set up by the additional defendant and also had not expressed his willingness to perform his part of the agreement. The Supreme Court was of the view that this decree was unjustified since the plaintiff had not accepted the case set up by the additional defendant and also had not expressed his willingness to perform his part of the agreement. In fact the plaintiff, in whose favour a decree for specific performance was granted, had not only not expressed his willingness to perform his part of the contract set up by the additional defendant, but had not even averred that he accepted the case so set up by her in the written statement. Therefore there was no question of the plaintiff in that suit treating the contract as subsisting. The question whether averments which clearly indicate election by the plaintiff in a suit to treat the contract as still subsisting would be sufficient to infer readiness and willingness on the part of the plaintiff and whether such averments can be considered to be sufficient to maintain a suit never arose in the case before the Supreme Court. Hence I do not think my views on the question requires to be modified is the light of the decision of the Supreme Court. 8. From the above discussion, I would have held that the plaintiff in the present suit has in essence pleaded that he was ready and willing to perform his part of the contract, if the willingness pleaded by him was unconditional. But there is considerable controversy on that question too, and in view of my finding on that question, I am going to hold that the suit has to fail. Under the terms of Ex. P1 plaintiffs were bound to offer the mortgage amount plus interest thereon from the date of the mortgage, the additional amount paid for sale of the equity of redemption and interest thereon from the data of Ex. P.1 and also the costs of the litigation incurred by the defendant in redeeming the property. If plaintiffs have failed to offer these amounts but have offered only a lesser sum it must be considered that there has not been a readiness to perform their part of the contract. As I have already mentioned earlier the amount of Rs. 1285/- has been arrived at by calculating the interest on the mortgage amount of Rs. 5000/- as well as the additional consideration paid for taking the sale of Ex. D2 as limited to a moiety. As I have already mentioned earlier the amount of Rs. 1285/- has been arrived at by calculating the interest on the mortgage amount of Rs. 5000/- as well as the additional consideration paid for taking the sale of Ex. D2 as limited to a moiety. There is no justification, on the face of Ex. P1, to limit it so. It is not as if the provisions of Act XXXI of 1958 or any other similar enactment would apply in determining the amount payable under Ex. P1. The amount should have been calculated according to the plain terms of Ex. P1. No doubt, with regard to the expenses incurred in litigation for which the plaintiffs have offered a sum of Rs. 160/- plaintiffs cannot be said to be at fault. What amount was incurred as expense is a matter which can be within knowledge of the defendant only and what the plaintiffs would be able to say about it is only from the decree in the case, and it is not disputed that the amount offered is not less than the amount found in the decree in O S. No. 507 of 1123. Admittedly the plaintiffs issued a notice before suit and there was no reply to that notice and therefore the plaintiffs were justified in assuming that the amount payable as costs was only Rs 160/-. But in calculating the interest on the sum of Rs. 750/-there is no justification, as I have pointed out, to limit the interest to a moiety. If calculated from the respective dates from which the interests would fall due Ex. P1 such interest will be much more than moiety and that has not been offered. Learned counsel for the appellants would, in this connection point out that the construction put upon Ex. P1 by the respondent is not correct. According to him the words should be read to mean, so far as interest on the mortgage amount was concerned, as interest from the date of delivery of the property. The date of the delivery is referred to there only to denote the starting point for determining the time within which the sale should be executed, and in the next clause the amount payable is specified and it is in that connection that the words, imoasaoejc Qnneje are used. The date of the delivery is referred to there only to denote the starting point for determining the time within which the sale should be executed, and in the next clause the amount payable is specified and it is in that connection that the words, imoasaoejc Qnneje are used. In the context in which it is used I have no doubt that it means from the date of the mortgage, and I cannot agree with the interpretation put upon this clause by the learned counsel for the appellant that it means the date of delivery. I may also say that this is not the case of the plaintiffs in the plaint and this is not the basis upon which they had calculated interest for the mortgage amount. Possibly if the case had been that this particular construction was put upon Ex. P1 and that was why a lesser amount was offered, I might have accepted their plea, in the absence of a reply to the suit notice issued to defendant. But the stand taken by the plaintiffs is different. There is no dispute as to the date of the starting point from which interest would accrue due on the mortgage amount. It is possibly on a misconception that only one-half is payable as interest for the loan, that such has been offered, but the fact that it is due to a misconception does not justify the stand of the plaintiffs. It has been held by the Travancore-Cochin High Court in Simon Jacob Silas v. Casper John Balthazar Kahlhoof (AIR. 1954 T. C. 440) that where the willingness disclosed by the plaintiff is not a willingness to act in terms of a contract sought to be enforced then plaintiff cannot succeed. In Narinjan v. Muhammed Yunus (AIR. 1932 Lah. 265), a case where plaintiff in a suit for specific performance was not prepared to pay the full price the court held that the plaintiff was ready and willing to have the contract performed only in the way in which he himself was insisting performance and that is not the readiness contemplated in the averments to be made by the plaintiff in a suit for a specific performance. In view of the plaintiffs having failed to offer the amount which was due from them under Ex. In view of the plaintiffs having failed to offer the amount which was due from them under Ex. P1, in the notice or in the suit, I must find that the plaintiffs are not entitled to specific performance. Therefore I agree with the decree of the appellate court, though for different reasons. 9. In the circumstances of the case I dismiss this Second Appeal, but there will be no order as to costs.