Usha Mehra ( 1 ) BY this suit, Sardar Niranjan Singh has soughtenforcement of the agreemnt to sell entered into by him with late Smt. Parkashwati. It is alleged that Smt. Parkash Wati had avoided to perform her part of theagreement, hence the plaintiff is forced to file the suit for specific performanceand in the alternative for a decree for damages amounting to Rs. 3,45,000. 00alongwith interest. ( 2 ) THE case as set up in the plaint is that Smt. Parkash Wati entered into anagrement to sell dated 30/03/1980 with the plaintiff for the sale of her singlestorey house bearing No. 26, Road No. 70, -Punjabi Bagh, New Delhi foradmeasuring 361. 43 sq. yards for a total consideration of Rs. 3,45,000. 00. Plaintiffpaid a sum of Rs. 10,000. 00 as earnest money on 17/03/1980 vide chequedrawn on Syndicate Bank at Punjabi Bagh, New Delhi. The said amount was dulyencashed by Smt. Parkash Wati through her son Shri Harbans Lal (defendantherein) on 18/03/1980. It was the term of the agreement that the necessarypapers for registration will be completed and the registration would be donewithin three months from the date of the agreement, hence the plaintiff approached the defendant for signing the necessary forms and affidavits for grantof sale permission and Income Tax Clearance Certificate required for the sale ofthe house in question. He also requested the defendant to execute the sale deed. But Smt. Parkash Wati refused to sign any such papers. Ultimately, plaintiff servedher with a notice dated 13/06/1980 asking her to appear on 16/06/1980before the Sub Registrar for registration of the sale deed. Smt. Parkash Wati insteadof adhearing to the terms of the contract sent false replies. She took wrong standvide her letter dated 17/06/1980. The contentions and allegations madetherein were refuted by the plaintiff by his legal notice dated 24/06/1980. Notices issued by the plaintiff were duly received by Smt. Parkash Wati but shefalsely stated that the plaintiff had no funds and that it was his duty to obtain salepermission and Income Tax Clearance Certificate. These false allegations weremade with the intention to avoid the execution of the sale deed. She intentionallyrefused to perform her part of the contract. The plaintiff had always been readyand willing to perform his part of the contract but the defendant avoided to do so. On account of non-performance of contract on her part he suffered losses. These false allegations weremade with the intention to avoid the execution of the sale deed. She intentionallyrefused to perform her part of the contract. The plaintiff had always been readyand willing to perform his part of the contract but the defendant avoided to do so. On account of non-performance of contract on her part he suffered losses. ( 3 ) THE defendant in her written statement denied the validity of the agreement. She took the plea that it was infact the plaintiff who failed to adhere to thestipulated terms of the agreement. Plaintiff was to pay the balance amount withinthree months from 17/03/1980 but he failed to pay the same within thestipulated period. There was oral understanding between the parties that thesale permission and Income Tax Clearance Certificate would be obtained by theplaintiff as Smt. Parkash Wati was an old woman hence the plaintiff took uponhimself to obtain these permissions. Defendant was only to sign the documentsin that regard as and when required by the plaintiff. She had always been ready tocooperate in this regard. But plaintiff avoided to obtain the permission becausehe had no funds to pay the balance amount, and thus committed the breach of theagreement. Defendant had always been ready and willing to perform her part ofthe contract. That is the reason in response to plaintiff s letter dated 13/06/1980the defendant informed the plaintiff telegraphically on 16/06/1980 itself thatshe would be appearing before the Sub Registrar for registration of the sale deed. But it was the plaintiff who did not turn up. The defendant waited for the plaintiffin the office of the Sub Registrar on 16/06/1980 till 3. 00 p. m. Plaintiff cannottake advantage of his own wrongs. Since, the prices of the property have goneup, therefore, he has filed this suit. He had in fact no funds to pay the balanceprice within the stipulated period of three months. ( 4 ) REPLICATION was filed by the plaintiff whereby he refuted the allegationsmade in the written statement. On the pleadings of parties, following issues wereframed on 26/08/1981:1. Has defendant not agreed to sell the property in dispute to plaintiffunder agreement of sale dated 17/03/1980? (onus placed upon the defendant in view of the admitted document dated 17/03/1980 on record ). 2. Has the plaintiff been ready and willing to perform his part of theagreement of sale?3. On the pleadings of parties, following issues wereframed on 26/08/1981:1. Has defendant not agreed to sell the property in dispute to plaintiffunder agreement of sale dated 17/03/1980? (onus placed upon the defendant in view of the admitted document dated 17/03/1980 on record ). 2. Has the plaintiff been ready and willing to perform his part of theagreement of sale?3. Has defendant been ready and willing to perform his part of theagreement of sale?4. Did the agreement dated 17/03/1980 not constitute as a fullagreement of sale of which specific performance can be enforced?5. To what damages, if any, is the plaintiff entitled to. 6. Relief. During the course of proceedings defendant Smt. Parkash Wati died. Videorder dated 13/02/1984 her legal representatives were brought onrecord. Amended memo of parties was filed on 9/03/1984. ( 5 ) I have heard learned Counsel for the parites and perused the oral anddocumentary evidence. I have given my thoughtful consideration to the relevantcontentions raised at the Bar. My decision on the above issue? is as follows:-Issues 2 and 3: ( 6 ) THESE two issues are interlinked and inter-connected and go to the root ofthe case, therefore, these are taken up together and disposed of first. ( 7 ) IN order to discharge the burden of the issue, the plaintiff appeared as hisown witness as Public Witness 1. He tried toexplain that he had funds and was ever readyand willing to perform his part of the contract. In order to strengthen his case that he was ready and willing, he proved a letter written by him to the defendant dated 13/06/1980 as Ex. P. 1 and another letter dated 24/06/1980 Ex. P. 3. According to him it was the defendant who being not interested to sell the house,went back from her agreement. She set up false pleae vide herletter dated 1 7/06/1980 and 1/07/1980 Ex. P. 2 and P. 4 respectively. He proved the agreementas Ex. P. 6. According to him, the defendant was to obtain the necessary salepermission,whichshe did not obtain and secondly, she took false plea that thevacant possession was not to be delivered. By her letter dated Ex. P. 4 she admittedthat she could not deliver vacant possession as the same was in occupation of hersons. This shows she had no intention or she wanted to avoid to execute the saledeed. By her letter dated Ex. P. 4 she admittedthat she could not deliver vacant possession as the same was in occupation of hersons. This shows she had no intention or she wanted to avoid to execute the saledeed. But when confronted in cross-examination he had to admit that the funds were not available with him. He did not withdraw the amount from any banknor that amount was available with him at his residence. He tried to explain itaway by saying that he got it from "somebody". When asked to furnish the nameof that "somebody", he could not give. He did not remember the name of that"somebody". Mr. Sharma, Counsel for the defendant contended that from theanswer of Public Witness I, it is amply clear that he had no funds with him as on 16/06/1980 when the defendant was called in the office of the Sub Registrar for thepurpose of the registration of the sale deed. To strengthen the arguments, he drewmy attention to the testimony of Harbanslal,dw-l, who stated that on receiptof plaintiff s letter dated 13/06/1980, received late in the evening of 15/06/1980, he telegraphically informed the plaintiff that the defendant would bereaching the office of the Sub Registrar alongwith his mother Smt. Parkash Wati. He further testified that he alongwith his mother late Smt. Parkash Wati did reachthe office of the Sub Registrar on 16/06/1980, but plaintiff did not turn up. They waited for the plaintiff in the office of Sub Registrar till about 3. 00 p. m. Thisfact was informed to the plaintiff vide letter dated l 7/06/1980, Exhibit P. 2. Theplaintiff did not even once asserted that he went to the office of the Sub Registraron 16/06/1980. In this regard reference was made to plaintiff s letter dated 24/06/1980, Exhibit P. 3, wherein plaintiff has not denied the averments madeby the defendant in his letter Exhibit P. 2. This shows that the plaintiff had nofunds to pay. From plaintiff s cross-examination, it is amply clear that he hadno funds available with him either at his residence or in the bank, nor he couldfurnish the name of the person from whom he borrowed this huge amount of Rs. 3,50,000. 00 and that too without interest. ( 8 ) MR. Sharma, Counsel for the defendant contended that in 1980 the amountrs. 3,50,000. 00 was quite a huge amount. 3,50,000. 00 and that too without interest. ( 8 ) MR. Sharma, Counsel for the defendant contended that in 1980 the amountrs. 3,50,000. 00 was quite a huge amount. Nobody could have given this muchamount to the plaintiff unless the person was very close to him. But plaintiffshowed ignorance about that "somebody". This shows he never borrowed thatmuch amount from somebody nor that much amount was available with him. Thatis why he did not attend the Office of the Sub Registrar on 16/06/1980, forpurposes of registration of the sale deed. This also proves that he had no fundswith him. Plaintiff s testimony that he was ready and willing, therefore, cannotbe relied upon. Plaintiff admitted that he received the telegram sent by thedefendant on 16/06/1980 but could not give any explanation as to why didnot go to the office of the Sub Registrar. His assertion that he went to the officeof the Sub Registrar on 16/06/1980, is most unconvincing and unreliable. Hewrote Ex. P. 3, dated 24/06/1980 after this incident wherein he nevermentioned that he went to the office of the Sub Registrar. Whereas Har Bans Lal,dw I has proved by documentary as well as by his oral testimony that healongwith his mother late Smt. Parkash Wati went to the office of the Sub Registrarand waited for the plaintiff till 3. 00 p. m. for the purposes of execution andregistration of the sale deed. This finds support from defendant s letter dated 17/06/1980 Exhibit P. 2, which was written at the first available opportunity. In Ex. P. 2 the defendant informed the plaintiff about their going to Sub Register soffice and waiting for him till 3. 00 p. m. Reply was sent by the plaintiff by Exhibitp. 3 dated 24/06/1980 in which defendant s assertions were not denied norit was plaintiff s case that he went to the office of the Sub Registrar on 1 6/06/1980. This shows that he never went to the office of the Sub Registrar on 1 6/06/1980 with money. Specific plea taken in para 4 of the notice. Exhibit P. 2 hadbeen vaguely denied vide Exhibit P. 3. Therefore, so far as the assertion of thedefendant, DW I that he alongwith his mother went to the office of Sub Registrar,to my mind, stands fully established from the uncontroverted and unrebuttedtestimony of DW I coupled with the documentary evidence placed on record. Exhibit P. 2 hadbeen vaguely denied vide Exhibit P. 3. Therefore, so far as the assertion of thedefendant, DW I that he alongwith his mother went to the office of Sub Registrar,to my mind, stands fully established from the uncontroverted and unrebuttedtestimony of DW I coupled with the documentary evidence placed on record. Ithas also been proved by the testimony of DW 1 Harbans Lal, that he had beenmeeting the plaintiff off and on and had been asking him to pay the balanceamount, because they needed the money for starting the business of Shamiana. Itwas for this purpose that his mother thought of selling the house, but the plaintiffavoided to pay the balance amount as he had no sufficient funds. At the relevanttime there was no spurt in the prices of the property, therefore, the plaintiff wasnot interested to buy the house. According to DW I, which fact has not beendenied by plaintiff, that they are living in the neighbourhood of each other anddw I had been meeting the plaintiff personally and making oral request for thebalance amount. The plaintiff could not refute these assertions either by histestimony or by any cogent and reliable evidence. Harbans Lal s testimony thathe had been meeting the plaintiff and asking him to pay the balance amount andget the sale deed registered has remained unrebutted on the record. Plaintiff alsocould not prove by any cogent evidence that he had funds to pay or that he wasready and willing to perform his part of the contract. ( 9 ) MR. Subhash Wason, appearing for the plaintiff, however, took a plea thatthe defendant was to obtain Income Tax Clearance Certificate and since she failedto obtain the same, therefore, the sale deed could not be executed. This argumentof Mr. Wason is without force because in the plaint it is plaintiff s own case set upin the plaint that he was to get the necessary permission. Reference can be had topara 3 of the plaint. The plaintiff in this para admit that he approached thedefendant for signing the necessary forms and affidavit for grant of salepermission for the sale of the said property. This lend support to the version givenby Harbans Lal, DW 1 that permission was to be obtained by the plaintiff. Thedefendant was only to co-operate. The plaintiff appearing as Public Witness 1 nowherestated that the defendant refused to sign the affidavit or the papers. This lend support to the version givenby Harbans Lal, DW 1 that permission was to be obtained by the plaintiff. Thedefendant was only to co-operate. The plaintiff appearing as Public Witness 1 nowherestated that the defendant refused to sign the affidavit or the papers. On thecontrary, he took a somersault by alleging that permission was to be obtained bythe defendant and since she failed to obtain so, hence contract stood frustrated. On the other hand Harbans Lal appearing as DW I categorically stated thatplaintiff never approached his mother or him for the purposes of her signatureson the forms or on the affidavits. This part of DW Vs testimony has remainedunrebutted and unrefuted. Admittedly, the term as to who would obtain thepermission was not incorporated in the agreement Exhibit P. 6. It is the case of theparties that this term was orally settled. In the absence of written term in theagreement, we have to rely on the oral testimony. According to the plaintiff andhis witness Public Witness 2, it was orally agreed that the defendant will obtain thepermission whereas according to the defendant, plaintiff undertook to obtain thenecessary sale permission as the defendant was an old woman. The version givenby defendant Harbans Lal appears to be more convincing and truthful. Thetestimony of the defendant Habans Lal in this regard can be trusted on two countsnamely, firstly his version is admitted by the plaintiff in para 3 of the plaintwhich undoubtedly corroborates what Harbans Lal has stated. Secondly, it findssupport from defendant s letters Exhibit P. 2 and P. 4. So far as the testimony of A. S. Wadhawan,pw2 is concerned, it cannot be relied. This oral term was not settledin his presence. Public Witness 2 admitted that obtaining of sale permission and Income Taxclearance Certificate was settled between the parties prior to the execution of theagreement Ex. P. 6, meaning thereby that that term was not settled in his presence. If any such term had been settled in his presence he would have reduced the sameinto writing in Exhibit P. 6. He gave a very evasive reply as to why this term wasnot incorporated in Exhibit P. 6. His explanation that parties never wanted him toincorporate this term shows that no such term was settled. His evidence in thisregard is only based on hearsay. ( 10 ) MR. He gave a very evasive reply as to why this term wasnot incorporated in Exhibit P. 6. His explanation that parties never wanted him toincorporate this term shows that no such term was settled. His evidence in thisregard is only based on hearsay. ( 10 ) MR. Wason contended that under law, duty to obtain sale permissionand Income Tax Clearance Certificate is on the seller. To support his argument, heplaced reliance on the decision of this Court in Sant Lal v. Shyam Dhaa an,reported in AIR 1986delhi275. I am afraid this case is of no help to Mr. Wason. That was a case where it was stipulated in the agreement itself that the defendantwould obtain sale permission from the D. D. A. as well as Income Tax Clearancecertificate. That during the currency of the agreement, the plaintiff therein askedthe defendant to obtain the necessary permission and also Income Tax Clearancecertificate. But the defendant neither obtained the permission nor replied thenotice and the repeated reminders sent by the plaintiff. When plaintiff filed the suitthe defendant for the first time in the written statement took the plea that thedefendant was the victim of misrepresentation by the plaintiff and that plaintiffhad no funds to purchase the property. It was in this background that the Courtopined, in the facts of that case, that the plaintiff had been ready and willingto perform his part of the contract but it was the defendant who frustrated thesame. That is, however, not the case in hand. On the contrary from the facts whichhave come on record and discussed above it is clear that the plaintiff had no fundsas on 16/06/1980, and therefore, avoided to pay the balance amount withinthe stipulated period. This find support from the fact that he did not go to theoffice of Sub Registrar on 16/06/1980 inspite of asking the defendant to comethere. This shows he had no funds On the other hand, the defendant in order toperform his part of the contract and in order to ensure that the sale deed isregistered went to the office of the Sub Registrar on 16/06/1980. Followed bya letter dated 17/06/1980, Ex. P. 2, it is also proved from the oral anddocumentary evidence that the sale permission was not to beobtained by thedefendant. This finds support from the documentary evidence discussed abovecoupled with the admission made by the plaintiff in para 3 of the plaint. Followed bya letter dated 17/06/1980, Ex. P. 2, it is also proved from the oral anddocumentary evidence that the sale permission was not to beobtained by thedefendant. This finds support from the documentary evidence discussed abovecoupled with the admission made by the plaintiff in para 3 of the plaint. Theplaintiff has not been able to prove that the defendant refused to sign the formsand the affidavits for the purpose of enabling him to obtain the Income Taxclearance Certificate. lnfact,from the unrebutted testimony of DW 1 it is apparentthat the plaintiff never approached the defendant for this purpose. The factumof defendant s willingness is writ large from the documentary as well as oralevidence produced, namely, telegram dated 16/06/1980 followed by aletterexhibits P. 2 and P. 4 respectively. The readiness and willingness of the defendantto perform her part of contract is apparent as contrast to the readiness andwillingness of the plaintiff. Plaintiff s financial position is apparent from hisadmission made in cross-examination when he admitted that he had no moneywith him at his residence nor he withdrew the amount from the bank. The someone" from whom he took Rs. 3,50,000. 00 without interest he could notname, therefore, it can be inferred that the plaintiff had no sufficient funds to paythe balance amount. Defendant cannot be blamed nor it can be said that it wasthe deferdant who frustrated the contract. Even otherwise reading of Exhibit P. 6shows it was for the plaintiff to obtain the necessary permission. Reference can behad to the term of the Exhibit P. 6 which is reproduced as under:-"all expenses of stamp, registration, corporation tax or any other taxes forgetting the said plot of land/property transferred from my name to thename of the purchaser, shall be borne and paid by the purchaser". (Underlining mine) ( 11 ) FROM the reading of this para in Ex. P. 6, the intention of the parties areapparent. It indicates that all expenses for obtaining sale permission andclearance Certificate were to be borne by the purchase i. e. plaintiff herein. If thedefendant wasto obtain the necessary permission then the words "any otherexpenses of getting the plot transferred" would have been borne by the defendant. This expression appears to have been used in the agreement with reference to salepermission and Income Tax Clearance Certificate. Since, these permissions wereto be obtained by the plaintiff, therefore, he had to bear the expenses for the same. This expression appears to have been used in the agreement with reference to salepermission and Income Tax Clearance Certificate. Since, these permissions wereto be obtained by the plaintiff, therefore, he had to bear the expenses for the same. This expression in the agreement Ex. P. 6 read with para 3 of the plaint clearlyestablish the oral agreement between the parties as to who was to obtain thepermission. As stated by DW 1 the plaintiff did not approach the defendanteither for signature on the papers or on the affidavits, therefore, there was nooccasion for the defendant to have not co-operated with the plaintiff forobtaining the necessary permission. The plaintiff instead of performing his partof the contract within the stipulated period, filed a criminal case which wasdismissed. It is only when prices of the property went up in the market that he filedthis suit. It is well settled that in cases of specific performance of a contract, it isfor the plaintiff to prove readiness and willingness as a fact before he can succeed. This is a condition precedent to his success and the onus is heavily upon him. Theacts and omission on the part of the plaintiff establish that he was never ready norwilling to perform his part of the contract and that he had no funds with him. Theobservation of the Supreme Court in the case of Indira Kaur v. Sheo Lalkapoor, air 1986 SC 1074 aptly apply to the facts of this case. It has been observed that"the real test as to whether or not the plaintiff was ready and willing to performhis part of the contract was for the defendant to call for his bluff". In the case inhand, the defendant by going to the office of the Sub Registrar and thereafterremaining there till 3. 00 p. m. has proved that the plaintiff played bluff with thedefendant by calling her in the office of the Sub Registrar on 16/06/1980 videhis letter dated 13/06/1980, but himself never going to the office of the Subregistrar with money. This has proved that the plaintiff was bluffing with thedefendant, therefore, the observations of the Supreme Court quoted abovesquarely apply to the facts of this case. Whereas the defendant by his testinronyhas been able to establish that his mother was always ready and willing to performher part of the contract. This has proved that the plaintiff was bluffing with thedefendant, therefore, the observations of the Supreme Court quoted abovesquarely apply to the facts of this case. Whereas the defendant by his testinronyhas been able to establish that his mother was always ready and willing to performher part of the contract. From the above discussion, it can safely be concludedthat plaintiff has failed to discharge the burden of issue No. 2, Hence issue No. 2is decided against him, whereas defendant has proved that his mother was alwaysready and willing to perform her part of the contract, hence the issue No, 3 isdecided in favour of the defendant. Issue No. 1: ( 12 ) THE burden of this issue was on the defendant, It was for him to prove thatthe agreement dated 17/03/1980 was not executed by late Smt. Parkashwati or that defendant never agreed to sell the property. From the facts hereinafterreferred TO will prove that defendant has miserably failed to discharge the burden ofthis issue. Vide letter Ex. P. 2 dated 17th June, 1980 defendant had admitted theexecution of the agreement dated 17/03/1980 Ex. P. 6. lnparalofex. P. 2parkash Wati admitted that she agreed to sell the House No. 26, Road No. 70,punjabi Bagh, New Delhi for Rs. 3,45,000. 00 and also admitted that she received Rs. 10,000. 00as earnest money from the plaintiff. She also admitted that she was notavoiding the sale of her house. Even in the evidence the DW 1 nowhere denied theexecution of Ex. P. 6 rather he admitted that his mother late Smt. Parkash Watientered into an agreement with the plaintiff for sale of the property indispute. Inview of this admission on the part of the defendant, this issue is decided againstthe defendant. Issue No. 4: ( 13 ) MR. Sharma, Council for the defendant contended that the receipt/agreement dated 17/03/1980 could not have been exhibited nor relied upon because it is not a registered document. According to him this documentis hit by the provisions of Section 17 (1 ) (b) and (e) of the Registration Act (In shortthe Act ). By this document the parties created right, title and interest and passedon the consideration regarding animmovable property, value of which was morethan. Rs. 100. 00. Therefore it required compulsory registration. I am afraid thisargument has no force. By this document the parties created right, title and interest and passedon the consideration regarding animmovable property, value of which was morethan. Rs. 100. 00. Therefore it required compulsory registration. I am afraid thisargument has no force. It is a settled law that a writing which confers upon aperson a right which comes into existence after such conditions are fulfilled byhim. Such a document does not require registration. An argeement for sale ofan immovable property will not fall under the definition under Section 17 (1) (b)as it does not itself create, declare, assign, limit or extinguish any, right title orinterest whether vested or contingent in immovable property. In fact to arriveat this conclusion reference can be had to Section 17 (2) (v) of the Act. Ex. P. 6purported to be a receipt/agreement to sell cannot constitute a receipt forconsideration as envisaged under Section 17 (1 ) (c) of the Act. The term consideration means that the person to whom money is paid, himself declares, limits orextinguishes his interest in immovable property. But as already observed above,since the provisions of Section 17 (1 ) (b) are not attracted in this case, therefore, thiscannot be considered a receipt for valid consideration. A mere receipt is notrequired to beregistered. Recital of this document, Ex. P. 6, shows that it createda right to obtain another document which when executed will create right, title orinterest in the property. Therefore, such a document Ex. P. 6 did not requireregistration. Hence on this score the objection of Counsel for the defendant isinvalid. This issue is accordingly decided against the defendant. Inarriving atthis conclusion I am also supported by the explanation given in Sub-section (2) of Section 17 of the Act, which re?ds as under:-"a document purporting or operating to effect a contract for the sale ofimmovable property shall not be deemed to require or ever to have requiredregistration by reason only of the fact that such document contains a recitalof the payment of any earnest money. "for the reasons stated above this issue is decided against the defendant. Issue No. 5: ( 14 ) SINCE, the plaintiff has failed to establish that he was ready and willingto perform his part of the contract, therefore, the question of specific performancedoes not arise. As per the terms of the agreement he can only be entitled to therefund of the amount of Rs. 10,000. Issue No. 5: ( 14 ) SINCE, the plaintiff has failed to establish that he was ready and willingto perform his part of the contract, therefore, the question of specific performancedoes not arise. As per the terms of the agreement he can only be entitled to therefund of the amount of Rs. 10,000. 00 which he paid to the defendant as earnestmoney. On this amount, the plaintiff would also be entitled to interest as the defendant even after the filing of the suit has not returned this amount to theplaintiff. Having taken advantage of this amount, the defendant is liable to payinterest on the same. I accordingly order that on the amount of Rs. 10,000. 00, theplaintiff will also be entitled to interest at the rate of 18% per annum from the dateof filing the suit will realization. Relief: ( 15 ) IN view of the above discussion, the suit is partly decreed. The plaintiffwill be entitled to recover a sum of Rs. 10,000. 00with interest at the rate of 18% perannum pendente lite till realisation and the costs of the case.