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1987 DIGILAW 290 (KER)

GOVINDAN v. ULAHANNAN

1987-07-03

T.KOCHU THOMMEN

body1987
Judgment :- 1. The plaintiff in a suit for specific performance is the appellant. The suit was dismissed by both the courts. The case of the plaintiff is that the first defendant and himself entered into Ext. Al agreement dated 29-8-1972 whereby the first defendant agreed to sell to the plaintiff a property having an extent of 87 cents for a total consideration of Rs. 2,700/. The document of sale was to be executed and registered on or before 1-9-1972. Since the first defendant did not comply with the terms of Ext. A1, Ext. A5 lawyer's notice was caused to be sent calling upon the first defendant to execute the document of sale. The first defendant's lawyer replied to Ext. A5 on 12-9-1972 (Ext. A4) stating that the first defendant would execute the document only if certain conditions which had been orally agreed upon between the parties were duly incorporated in the document of sale. 2. The plaintiff instituted the suit on 15-6-1973 stating that on 1-9-1972 he went to the office of the Sub Registrar with the sale price of Rs. 2,700/- in cash and waited for the first defendant to arrive and execute the document. Since the defendant did not arrive till 4 O'Clock, he went to the Indian Overseas Bank, Perumbavoor and deposited the said sum of Rs. 2,700/- as indicated in the pass-book Ext. A3. He has further stated in the plaint that he is prepared to deposit the sale price of Rs. 2,700/- into the court on obtaining the challan from the court for that purpose. In their written statement, various contentions have been raised by the defendants including the one relating to the unsustainability of the plaint as filed. 3. Both the courts found that the plaint averments did not satisfy the requirements of the law to obtain a decree for specific performance. The courts held that the plaintiff did not plead in accordance with the mandatory provisions of S.16(c) of the Specific Relief Act, 1963. The suit was accordingly dismissed. 4. Shri. P. Kochapappu Achan appearing for the appellant submits that the pleadings are in sufficient compliance with the relevant statutory provisions relating to specific performance. In support of this contention, he relies upon the decision of this Court in Mani Amma And Others v. Kololichalil Choyi, 1985 KLJ 246. 5. The suit was accordingly dismissed. 4. Shri. P. Kochapappu Achan appearing for the appellant submits that the pleadings are in sufficient compliance with the relevant statutory provisions relating to specific performance. In support of this contention, he relies upon the decision of this Court in Mani Amma And Others v. Kololichalil Choyi, 1985 KLJ 246. 5. I have been taken through the plaint averments carefully and I am not satisfied that they are in accordance with the requirements of the law. In Ouseph Varghese v. Joseph Aley and Others (1969) 2 SCC 539, the Supreme Court has had occasion to consider the strict requirements of Forms 47 and 48 of Appendix A to the first Schedule of the CPC. This is what the Court stated: "A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues 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 willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Bai v. The DLF. Housing and Construction (Private) (Ltd.) and another (Civil Appeal No. 37/66 decided on 4-4-1968), that 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." Referring to that decision and the principle embodied in S.16(c) of the Specific Relief Act, Namboodiripad, J. in Prabhakaran v. Bhavani, 1974 KLT 115 observed that a suit which fell short of the statutory requirements of S.16(c) had necessarily to fail. In so stating; the learned judge followed the principle adopted by the Supreme Court in the aforesaid decision as well as by a Division Bench of this Court in A.S. No. 65 of 1987. In so stating; the learned judge followed the principle adopted by the Supreme Court in the aforesaid decision as well as by a Division Bench of this Court in A.S. No. 65 of 1987. I do not understand the observation in Mani Amma and Others v. Kololichalil Choyi, 1985 KLJ 246 as a deviation from the cardinal principle stated by the Supreme Court and this Court in the decisions aforesaid. Unlike in the case of an ordinary suit, the pleadings in a suit for specific performance must be in strict conformity with the requirements of Forms 47 and 48 of Appendix A to the 1st Schedule of the CPC. Breach of contract being unlawful sounds in damages, but does not ordinarily give rise to specific performance. The remedy under the Specific Relief Act is an equitable and extraordinary remedy. He who comes to equity must do so diligently with clean hands and strictly in accordance with the principle embodied in the Specific Relief Act. The requirements of Forms 47 and 48 of Appendix A to the 1st Schedule of the CPC are meant to strictly implement the mandatory provisions of S.16 of the Specific Relief Act. Those requirements are not directory, they are not optional, but must necessarily be strictly complied with. 6. The pleadings as well as the testimony of Pw.1 would show that he is still not, and has never been, ready and willing to perform his part of the agreement. He has deposed that he went to the office of the Sub Registrar on 1-9-1972 and waited there till 4 P.M. with Rs. 2,700/- in cash. Since the first defendant did not turn up till then, he went to the Indian Overseas Bank (a nationalised Bank) after 4 P.M. and deposited the money. In one portion of the evidence be says that he deposited the money after 3 P.M., but be has also stated categorically that he waited at the Sub Registrar's Office with the cash till 4 P.M. The money deposited by him in the bank, he says, was the same cash. And, if what he has stated is true, it could only have been deposited by him after 4 P.M. I fail to see bow that money could be deposited after the bank bad presumably closed it business at 2 P.M. Ext. And, if what he has stated is true, it could only have been deposited by him after 4 P.M. I fail to see bow that money could be deposited after the bank bad presumably closed it business at 2 P.M. Ext. A3 pass-book shows that on 1-9-1972, which is the date on which the plaintiff claims to have gone to the office of the Sub Registrar; a sum of Rs. 2,700/-had been deposited in the bank. That was presumably a deposit made during the banking hours. In the absence of any evidence to show that that deposit could possibly have been made after 4 P.M. the deposit evidenced by the pass-book is inconsistent with the testimony of the plaintiff that with the same cash he waited at the office of the Sub Registrar till 4 P. M. on the same day. The plaintiff has no case that what he had carried with him to the office of the Sub Registrar was not cash, but cheque, or that what be deposited in the bank was cash other than what he had carried with him to the Sub Registrar's office. His definite case, as pleaded and deposed, is that it was the same cash. The invitable conclusion, therefore, is that the money was deposited during the banking hours and the plaintiff went to the office of the Sub Registrar, if at all, without the sale price in his pocket. This inconsistent statement shows beyond doubt that what the plaintiff has stated on the point is far from the truth. There is no evidence and there is no plea, that he has been and is still ready and willing to perform his part of the agreement at any material time. He has never tendered the sale consideration to the defendant at any material time. All that he says in the plaint is that he is prepared to deposit the money into court on receipt of the challan; that means, if the court so ordered. Even at that stage he did not aver that he was ready and willing to pay the money to the defendant directly and perform his part of the agreement. For all these reasons the plaintiff has failed to plead or prove that he has complied with the requirements of the law to seek the extraordinary remedy of specific performance. Even at that stage he did not aver that he was ready and willing to pay the money to the defendant directly and perform his part of the agreement. For all these reasons the plaintiff has failed to plead or prove that he has complied with the requirements of the law to seek the extraordinary remedy of specific performance. In the circumstances, both the courts have, in my view, rightly dismissed the suit. The appeal is accordingly without merits. It is dismissed with costs of the defendant throughout.