SUKHBIR SINGH v. BRIJ PAL SINGH — 1996 DIGILAW 373 (ALL)

D. C. SRIVASTAVA, J. Suit for specific performance of agreement to sell was dismissed by the trail court, but the appellate court reversing the judgment and decree of the trial Court decreed the suit. It is, therefore, this second appeal. 2. Learned counsel for the parties were heard and the record was perused. 3. Only three points were pressed from the side of the appellants. The first was that the plaintiffs were not possessed of ready balance money for getting the sale-deed executed, hence the decree of the lower appellate court is bad in law. The second point was that there has been no compliance of Section 16 (c) of the Specific Relief Act; and the last was that the suit was not filed on pro forma of plaint prescribed on Forms 47 and 48 of Appendix AA of the Code of Civil Procedure. 4. Coming to the third point first, it may be observed that Forms 47 and 48 of Appendix AA of the Code of Civil Procedure are not exhaustive what is required is that under these two forms there should be specific averment that the plaintiff has been and still is ready and willing to perform the agreement on his part of which the defendant has had notice. The same ingredient is to be found in paragraph 5 of Form 48. These averments in the instant case are to be found in paragraphs 8 to 10 of the plaint which have been rightly quoted by the lower appellate court and so interpreted. Paragraph 8 of the plaint evidences the requirement of Forms 47 and 48 and also the ingredients of Section 16 (c) of the Specific Relief Act. 5. Paragraphs 9 and 10 of the plaint further indicate that the defendants were told several times to execute the sale-deed, but they were making promises and ultimately told that they will execute the sale-deed on 9th March, 1977. On 9th March, 1977 the plaintiff went to the office of the Sub-Registrar with ready money, b. i the defendants absented. The plaintiff obtained a certificate about his presence in-the office of Sub-Registrar on 9th March 1977, which was filed as paper No. 41-C. 6. It was argued that it is not mentioned in the certificate that the plaintiff had shown the balance money to the Sub-Registrar. The plaintiff obtained a certificate about his presence in-the office of Sub-Registrar on 9th March 1977, which was filed as paper No. 41-C. 6. It was argued that it is not mentioned in the certificate that the plaintiff had shown the balance money to the Sub-Registrar. In my view this was not required from the plaintiff to show the money to the Sub-Registrar. What was required from him was to show his bona fide that he approached the office of Sub-Registrar on the appointed date for getting the sale-deed executed and for that there is evidence of the plaintiff corroborated by the certificate 41-C issued by the Sub-Registrar. Consequently it cannot be said that the plaint was defective. 7. Coming to the next point, namely, non-compliance of Section 16 (c) of Section Relief Act, I again do not find any force in this contention. There is evidence on the point from the side of the plaintiffs, which was rightly accepted by the lower appellate court. It was contended that no notice was given to the defendants for executing the sale-deed and in the absence of notice, the suit could not be decreed. Written notice to the defendants is not required. All that is required is that the defendants should have notice written or otherwise that the plaintiffs in tended to get the sale-deed executed after paying balance money within the stipu lated time. On this point there is allegation and evidence that the defendants on the request of the plaintiff, fixed 9th March, 1977 as the date for execution of the sale- deed. In paragraph 9 of the plaint, it is averred that the plaintiff was requesting the defendants several times for executing the sale-deed, but they were making promises and the last promise was made fixing 9th March, 1977 as the date for execution of the sale-deed. On this date the defendant did not present himself before the Sub-Registrar. The plaintiff returned in futility. He made search of the defendant in the village on 9th March, 1977 as also on 10th March, 1977, but the defendant was not available. The notice of intention of the plaintiff to get the sale-deed executed is further made out from paper No. 16- A executed between the par ties. It seems that a Tube well was installed by the defendant over the plot which was the subject-matter of agreement to sell. The notice of intention of the plaintiff to get the sale-deed executed is further made out from paper No. 16- A executed between the par ties. It seems that a Tube well was installed by the defendant over the plot which was the subject-matter of agreement to sell. Objection was raised by the plaintiff, whereupon it was settled that in case the sale-deed is got executed within 2 years, the plaintiff will become owner of the Tubewell also. Consequently it cannot be said that the defendant had no notice of plaintiffs intention to get the sale-deed executed. Objection of the plaintiff regarding installing of Tube-well over the plot in question shows his intention that he was ready and willing to get the sale deed executed. There is thus effective compliance of Section 16-C of Specific Relief Act. 8. The last contention has been that the plaintiff was not possessed of ready money to get the sale-deed executed. It was pointed out that few days, after the appointed date, namely, 9th March, 1977 the plaintiff sold his land just for raising funds for filing the instant suit. However, there is no evidence to support this contention. In Order to establish the plaintiffs readiness and willingness, the fact that the plaintiff was not possessed of sufficient funds, could not be taken into consideration. The Privy Council in Bank of India Ltd. v. Jasmetji A. H. Chinov and Messrs Chinoy & Co. , AIR 1950 P. C. , 90 observed as under : "it is true that the first plaintiff stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for ending it at the time of repudiation. But to prove ready and willing a purchaser has not necessarily to produce the money or to vouch concluded scheme for financing the transac tion. " The Honble Supreme Court in the case of Gomathinayagam Pillai v. Palaniswamu Nadar, AIR 1967 SC, 808 has also approved the decision of the privy council. 9. A Division Bench of this Court in Sharada Prasad Singh v. Sheo Shanker Lal 1982 All, CJ 80 also took the same view and observed that the law does not require that the promise must tender the balance of sale price or be in possession of sufficient funds to fulfil his commitment. 9. A Division Bench of this Court in Sharada Prasad Singh v. Sheo Shanker Lal 1982 All, CJ 80 also took the same view and observed that the law does not require that the promise must tender the balance of sale price or be in possession of sufficient funds to fulfil his commitment. Explanation to clause (c) of Section 16 of Specific Relief Act provides that where a contract involved 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. 10. In view of the above pronouncement there remains no room for the conten tion that the plaintiff should have examined his brother-in-law (Sala) from whom he borrowed some money, to raise funds or that he should have shown the money to the Sub-Registrar on 9th March, 1977. 11. No other point was pressed before me. There is thus no substantial question, of law involved in this appeal hence the decree of the lower appellate court does not require any interference. The appeal, is therefore dismissed. Stay order dated 24th February, 1996 is vacated. Appeal dismissed. .