Sheopujan Tanto And Another v. Bhanu Tanto — 1975 DIGILAW 198 (PAT)

Judgment 1. This second appeal by the defendants arises out of a suit for specific performance of a contract for sale of certain agricultural lands. 2. The relevant facts of this case, which are not in dispute, are that the plaintiff agreed to purchase the suit land from the defendant No. 1 and, accordingly, on 13-11-1963, an agreement for sale (Ext. 4) was executed by the defendant No. 1 in favour of the plaintiff. At that time, however, the price of the land was not fixed, but the parties agreed that the price would be fixed by one Sarda Narain Singh and both the parties would accept his decision. A sum of Rs. 500.00 was paid by the plaintiff at the time of the execution of the agreement for sale itself to the defendant No. 1. The land was in mortgage of one Ishardayal Sah by a registered deed of mortgage dated 25-6-1961 for a consideration of Rs. 2,000/-. Sarda Narain Singh took some time to make verification and inspection of the suit land and ultimately fixed the price of the land at Rs. 4,000.00 on 16-4-1964 which, as already said above, was accepted by both the parties. It was agreed that the amount of the mortgage debt would be left in deposit with the plaintiff for redemption of the aforesaid mortgage bond. A further sum of Rs. 520.00 was paid on that very day, i.e., 16-4-1964, by the plaintiff to defendant No. 1. In this way, a sum of Rs. 1,020.00 was received by the defendant No. 1 in advance towards the consideration. The balance of the consideration was to be paid at the time of exchange of the equivalents after the execution and registration of the sale deed. According to the further case of the plaintiff as stated in the plaint, the defendant No. 1 took a further sum of Rs. 96/- on 16-4-1964 itself for purchasing the requisite stamps for execution of the sale deed, which was also purchased by defendant No. 1 and handed over to the plaintiff. It has been further stated in the plaint that in the meantime the defendant No. 1 went under the influence of some designing and interested persons and evaded the execution of the sale deed whenever the plaintiff requested him to go to a scribe and ultimately on 20-4-1964 flatly refused to execute the same. It has been further stated in the plaint that in the meantime the defendant No. 1 went under the influence of some designing and interested persons and evaded the execution of the sale deed whenever the plaintiff requested him to go to a scribe and ultimately on 20-4-1964 flatly refused to execute the same. The suit in question was filed immediately thereafter on 16-5-1964 and during its pendency the defendant No. 1 executed a sale deed in favour of defendant No. 2, who was also impleaded as a defendant in the suit, and as already stated above, is an appellant in this Court along with defendant No. 1. 3. It is not necessary to state the defence set up by the defendants in their separate written statements, inasmuch as Mr. Kailash Roy, learned counsel appearing on their behalf in this court, has raised only one question in this Court, namely, that the suit of the plaintiff for specific performance of the contract in question was not enforceable as he has failed to make any averment in his plaint that he has performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him within the meaning of clause (c) of Sec.16 of the Specific Relief Act. Developing his point in course of his arguments and being confronted with the averments made in the plaint, as already indicated above, Mr. Roy adopted an argument that there should have been a further averment in the plaint by the plaintiff showing his readiness and willingness to perform his part of the contract from the date of the contract itself, namely, 13-11-1963, the date when the agreement for sale (Ext. 4) was executed. He submitted that the plaint is completely silent with respect to any action taken by the plaintiff during the period from the date of the contract and 16-4-1964, the date when Sarda Narain Singh fixed the price of the land. 4. Clause (c) of Sec.16 of the Specific Relief Act, however, does not provide that the plaintiff for specific performance of a contract must state and prove that he has been ready and willing to perform the essential terms of the contract to be performed by him from the very date of the contract itself. 4. Clause (c) of Sec.16 of the Specific Relief Act, however, does not provide that the plaintiff for specific performance of a contract must state and prove that he has been ready and willing to perform the essential terms of the contract to be performed by him from the very date of the contract itself. The expression used in this clause is "as always been ready and willing to perform the essential terms of the contract which are to be performed by him". In Explanation (ii) to this clause, it has been made clear that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 5. It cannot be disputed that the only obligation or performance on the part of the plaintiff as a vendee was his readiness and willingness to make payment of the remaining consideration to defendant No. 1. This position has been clarified by Explanation (i) to clause (c), where it has been clearly provided that in a contract involving 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 is no doubt, true that the contract for sale in question was executed by defendant No. 1 on 13-11-1963, the plaintiff could not have offered the price for the land in question on the said date or at any time thereafter until 16-4-1964, when it was determined by Sarda Narain Singh. I do not find any substance in this part of the contention of Mr. Roy that it was the duty of the plaintiff to get the price of the land fixed much earlier. It cannot be questioned that the defendant No. 1 was equally interested in fixation of the price of the land and no case has been made out by him that the plaintiff in any way was responsible for the so called delay in determination of the price of the land by Sarda Narain Singh. This argument of Mr. Roy has got no merit. The definition of "contract" sets out various elements which go to make a contract, such as proposal, acceptance, promises, consideration and agreement. Consideration and promise are the two basic incidents necessary to constitute a valid contract. Taken together they form the whole of it. This argument of Mr. Roy has got no merit. The definition of "contract" sets out various elements which go to make a contract, such as proposal, acceptance, promises, consideration and agreement. Consideration and promise are the two basic incidents necessary to constitute a valid contract. Taken together they form the whole of it. There is no concluded contract whereby only certain terms are settled and others are left open. Consideration being a necessary element for formation of a valid contract, it is not right to contend in this case that the contract for the sale in question was already complete on 13-11-1963 itself. In my view, it was actually completed on 16-4-1964 when Sarda Narain Singh supplied the missing element of the agreement, namely, the consideration for the same. 6. At this very stage, I may also refer to the definition of a contract for sale in Sec. 54 of the Transfer of Property Act which reads as follows:- "A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties." The term "sale" as defined by this section clearly stipulate that it is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. It is, therefore, clear that price is an essential ingredient for all transactions of sale and in the absence thereof, the transfer is not a sale. It is true that the price need not be paid in cash and it could be paid in part or promised to be paid in future. In the definition of "a contract for the sale", the expression "on terms settled between the parties" definitely contemplates that the basic ingredient and element for transferring the ownership of a property by a vendor, namely, "in exchange for a price" must be settled. Until this is done, the terms of the contract for sale cannot be said to be settled between the parties. I am, therefore, clear in my mind that although the agreement for sale was executed by defendant No. 1 on 13-11-1963, it did contemplate the settlement of one of the main terms for the proposed sale in future by Sarda Narain Singh. I am, therefore, clear in my mind that although the agreement for sale was executed by defendant No. 1 on 13-11-1963, it did contemplate the settlement of one of the main terms for the proposed sale in future by Sarda Narain Singh. As already said above, the moment Sarda Narain Singh completed this necessary term of the bargain, the contract became concluded and the parties became bound to perform their respective parts thereunder; the part to be performed by the plaintiff being to be ready and willing to pay the consideration. I have sufficiently indicated the necessary statements made by the plaintiff in the plaint showing the action taken by him in regard to his obligation, namely, that he paid a further sum of Rs. 520.00 immediately to defendant No. 1 and another sum of Rs. 96/- for purchase of the requisite stamps and pursued defendant No. 1 to get the sale deed scribed and the ultimate refusal of defendant No. 1 only three days thereafter to perform his part of the obligation, i.e., to execute the document. It is therefore, difficult to accept the argument of Mr. Kailash Roy that the plaint in any way lacks in making the necessary averments regarding the plaintiffs readiness and willingness to perform the essential terms of the contract on his part, whereby he is not entitled to enforce his remedy for specific performance of the contract in question in a Court of law within the meaning of Sec.16 (c) of the Specific Relief Act. 7 Now remains for consideration certain decisions cited on behalf of the appellants. They are Ardeshir H. Mama V/s. Flora Sassoon, (AIR 1928 PC 208), Chandrabali Shah V/s. Pritam Singh, ( AIR 1965 Pat 211 ), Gomathinayagam Pillai V/s. Palaniswami Nadar, ( AIR 1967 SC 868 ), Prem Raj V/s. D. L. F. Housing and Construction (Pvt.) Ltd, ( AIR 1968 SC 1355 ) and Mali Bewa V/s. Dhunda Samal, (AIR 1970 Orissa 161). None of the aforesaid authorities are of any assistance to the appellants, much less, they have got any relevancy to the point in issue and are quite distinguishable. In the Patna case, the facts were that the parties had agreed to sell the property at the rate in accordance with the then market rate. None of the aforesaid authorities are of any assistance to the appellants, much less, they have got any relevancy to the point in issue and are quite distinguishable. In the Patna case, the facts were that the parties had agreed to sell the property at the rate in accordance with the then market rate. There was some dispute between the parties on the question of the prevailing rate, the plaintiff insisting for a lower rate and the defendant, a higher rate. In these circumstances, it was contended on behalf of the defendant that the plaintiff was not willing to perform his obligation as he never indicated his willingness to pay the price fixed by the trial Court. Relying upon the case of the Judicial Committee mentioned above, it was, therefore, contended that the plaintiff was not willing to perform his obligation from the date of the contract. Rejecting this contention, the learned single Judge held that both the parties were incorrect in asserting their respective claims, and in this view of the matter, there was no failure on the part of the plaintiff, either in his willingness to perform his part of the contract nor there was any failure to make the necessary statement in the plaint. I have already discussed the implication of the date of the contract on the facts of the present case. This authority, as already stated above, has got no bearing at all on the facts of this case. The expression "he is required to prove a continuous readiness and willingness from the date of the contract to the time of hearing to perform the contract on his part" in the Patna case has been taken, as it appears to me, from AIR 1928 PC 208, which has been referred to with approval in AIR 1967 SC 868 , where it has been emphasised that a 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. The failure to make this averment brought with it the inevitable dismissal of the suit. The principle expressed by the Judicial Committee in AIR 1928 PC 208 has been again reiterated in AIR 1968 SC 1355 . The failure to make this averment brought with it the inevitable dismissal of the suit. The principle expressed by the Judicial Committee in AIR 1928 PC 208 has been again reiterated in AIR 1968 SC 1355 . This case also does not in any way improve the situation. The Orissa case is based upon the aforesaid decisions of the Privy Council and the Supreme Court. The difficulty of the Mr. Kailash Roy in availing of the principle laid down in the authorities noticed above, however, is that in none of them the situation like the case in hand existed, where an essential term and condition of the contract remained unsettled on the initial date of the meeting of the parties, and which was completed at a later date, in the absence of which any occasion for performing or even indicating the plaintiffs readiness and willingness to perform the same could not arise. The plaintiff in the present case, therefore, could not be held guilty that he was not continuously ready and willing to perform his part of the contract, namely, to pay the consideration for the sale in question, the moment it became capable of performance. It will be absurd to hold him unwilling and not ready to perform the same any time prior to 16-4-1964, when the act to be performed itself was not settled and known. 8. The only point raised on behalf of the appellants, therefore, is devoid of any merit. The appeal, accordingly, fails and is dismissed with costs.