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2000 DIGILAW 592 (KER)

Mary v. Sheela Thomas

2000-11-09

A.LEKSHMIKUTTY, S.SANKARASUBBAN

body2000
JUDGMENT A. Lekshmikutty, J. 1. This appeal is filed by the defendants against the judgment and decree in O.S. No. 312 of 1995 of the Subordinate Judge's Court, Kochi. The plaintiff through her power of Attorney Holder filed the suit for specific performance of an agreement for sale dated 11.7.1994 executed by the defendants. Plaint Schedule property having an extent of 7.160 cents comprised in Survey No. 1083 of Palluruthy Village and the building thereon belong to the defendants. They agreed to sell the property for a sale consideration of Rs. 2,35,000/- and executed Ext. A1 agreement. On the date of agreement, the defendants received an amount of Rs. 50,000/- as advance, from the plaintiff. As per the terms of the agreement, plaintiff paid a further sum of Rs. 50,000/- on 10.9.1994. The period fixed for performance of the agreement was 9 months. The defendants were bound to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs. 1,35,000/- on or before 11.4.1995. The plaintiff was and is ready and willing to perform her part of the contract. As she was employed at Qathar, she authorised her husband through the Power of Attorney to act on her behalf. The plaintiff represented by her husband requested the defendants several times to execute the sale deed on receipt of the balance sale consideration. The defendants refused to execute the sale deed and instead demanded an enhanced sale consideration of Rs. 4 lakhs. Thereupon, the plaintiff's husband preferred a complaint before the Circle Inspector of Police, Kochi Cusba Police Station. Pursuant to the said complaint, the defendants were summoned to the police station, but they refused to comply with Ext. A1. Since the defendants committed breach of contract, plaintiff issued registered notice on 1.6.1995 through Advocate, demanding execution of the sale deed. The plaintiff was and is ready to pay the balance sale consideration and willing to perform her part of the contract. Since the defendants retracted from the contract, the suit is filed for a decree directing the defendants to execute the sale deed in favour of the plaintiff or her husband after receiving the balance sale consideration of Rs. 1,35,000/- within a specified time and in default to execute the sale deed through court and for a permanent injunction restraining the defendants from alienating the same. 2. 1,35,000/- within a specified time and in default to execute the sale deed through court and for a permanent injunction restraining the defendants from alienating the same. 2. The defendants in their written statement admitted the execution of the agreement for sale and receipt of Rs. One lakh. It is also admitted that 9 months time was stipulated for the performance of the agreement which expired on 10.4.1995. The plaintiff was never ready and willing to perform her part of the contract due to insufficiency of funds. Neither the plaintiff nor her husband informed them that they were ready and willing to perform their part of the contract. The allegation that the defendants demanded enhanced sale consideration is false. The allegation that the husband of the plaintiff preferred a complaint before the Circle Inspector of Police, Kochi Cusba Police Station and the Circle Inspector of Police summoned them are false. The defendants were always ready and willing to execute the sale deed provided they were given the balance sale consideration. It is further contended that even after the expiry of the period, the defendants were ready to execute the sale deed if the plaintiff was ready to pay the balance sale consideration. They issued notice to the plaintiff terminating the contract which was returned unserved. The plaint schedule property is the only property owned by them and they are residing in the said building. If a decree is passed for specific performance, the defendants will be put to irreparable hardship and injury. 3. On the basis of the pleadings, the lower court raised the following issues: 1) Who had committed breach of contract? 2) Is the plaintiff entitled to the specific performance? 3) Relief and costs. 4. The evidence in this case consists of the oral testimony of PWs. 1 to 3 and DW 1 and Exts. A1 to A3 and B1 to B5. 5. The lower court after appreciation of the evidence and pleadings decreed the suit. Against the said decree and judgment, the defendants filed this appeal. We heard Sri. S. Sreekumar, learned counsel for the appellants and Sri. A. X. Varghese, learned counsel for the respondent. It is submitted by the learned counsel for the appellants that the court below has not properly appreciated the evidence. The respondent was not ready and willing to perform her part of the contract. Ext. We heard Sri. S. Sreekumar, learned counsel for the appellants and Sri. A. X. Varghese, learned counsel for the respondent. It is submitted by the learned counsel for the appellants that the court below has not properly appreciated the evidence. The respondent was not ready and willing to perform her part of the contract. Ext. B1, the letter sent by her shows that she has no sufficient funds and she has repudiated the contract. In Ext. B1 she has expressed her inability to raise funds for paying the balance sale consideration. It further shows that she will be satisfied with the return of advanced money. But the lower court without appreciating those facts decreed the suit. So according to the learned counsel, respondent is not entitled to get a decree for specific performance and injunction. But the contention of the respondent is that there is sufficient evidence to show that the respondent was and is ready to perform her part of the agreement. 6. The points for consideration are: (1) Whether the respondent has revoked the agreement? (2) Whether the respondent was and is ready and willing to perform her part of the agreement? 7. There is no dispute with regard to Ext. A1 agreement dated 11.7.1994. As per the said agreement the appellants agreed to sell 7.160 cents of property in Sy. No. 1083/2 of Palluruthy Village for a total sale consideration of Rs. 2,35,000/-. Out of the total consideration, the appellants received Rs. 1 lakh, Rs. 50,000/- on the date of Ext. A1 and another Rs. 50,000/- on 10.9.1994 as stipulated in the agreement. The specific contention of the appellants is that the respondent has revoked the agreement, as she had no sufficient funds to pay the balance sale consideration. She has expressed her inability to raise funds and she wanted to get back the money advanced, as per Ext. A1 and Ext. A1(a). To substantiate the said contention, the appellants rely on the oral evidence of DW 1 and Ext. B1 letter sent by the respondent to the first appellant. It is submitted by the learned counsel for the appellants that a reading of Ext. B1 would convincingly prove that the respondent revoked the agreement due to lack of funds. It can be gathered from Ext. B1 letter sent by the respondent to the first appellant. It is submitted by the learned counsel for the appellants that a reading of Ext. B1 would convincingly prove that the respondent revoked the agreement due to lack of funds. It can be gathered from Ext. B1 that she requested to get back the money for construction of a residential building in her property of five cents at Kallancherry. It is further clear from the sentence written in Ext. B1 that xxx xxx xxx It would lead to the conclusion that the respondent repudiated the agreement. 8. Ext. B2 is the notice issued by the appellants on 15.5.1995 to the respondent in her permanent address terminating the agreement, which was returned unserved. It is significant to note that the appellants were well aware of the fact that the respondent was abroad. Admittedly, the said notice is after the expiry of the agreement. So it is quite clear that this letter was sent with ulterior motive. No where in Ext. B1 it is stated that the respondent had revoked the agreement. It is true that in Ext. B1 the respondent had mentioned about getting back the advanced amount. But from a reading of Ext. B1 as a whole it is clear that it was written by the respondent as the reply to the letter sent by the first appellant. The first appellant is the aunt (mother's sister) of the respondent and the other appellants are her children. A reading of Ext. B1 would show that the respondent has opened her heart to her aunt. She has written to her aunt xxx xxx xxx Further down she had written xxx xxx xxx If actually the respondent had revoked the agreement, she will not write such a letter to the first appellant. It is to be remembered that Ext. B1 letter was written on 31.1.1995 much prior to the expiry of Ext. A1 agreement. In the circumstances, we are of the view that the respondent has not revoked the agreement. 9. The next question is whether the respondent was ready and willing to perform her part of the contract. To substantiate the same, the respondent relies on the evidence of PWs. 1 and 2 and Ext. A3 pass book. PW 1 is the husband of the respondent and PW 2 is her mother. 9. The next question is whether the respondent was ready and willing to perform her part of the contract. To substantiate the same, the respondent relies on the evidence of PWs. 1 and 2 and Ext. A3 pass book. PW 1 is the husband of the respondent and PW 2 is her mother. They categorically stated before Court that the plaintiff was ready and willing to perform her part of the contract and there was sufficient funds for payment of the balance sale consideration. Ext. A3 is the pass book of PW 2. The expiry date of Ext. A1 was on 11.4.1995. An amount of Rs. 1,10,020/- was the balance in the account of PW 2 during the relevant period. PW 2 has sworn that out of the said amount, the sum of Rs. 60,000/- absolutely belonged to the respondent. PW 2 was and is ready to advance an amount of Rs. 50,000/- to her daughter. PW 1 had stated that he had alienated his property and had kept Rs. 50,000/- with him for payment of the sale consideration. Nothing was brought out in cross examination to discredit the version given by PWs. 1 and 2 regarding the said amount. According to them, they informed the appellants regarding the readiness and willingness of the respondent to pay the balance sale consideration. She had executed power of attorney in the name of her husband. But according to PWs. 1 and 2, appellants refused to execute the sale deed and they demanded Rs. 4 lakhs as sale consideration. Of course, there is no evidence to show that the appellants demanded Rs. 4 lakhs. But it is clear from the evidence of PWs. 1 and 2 and Ext. A3 that there was sufficient funds with the respondent to pay the balance sale consideration. 10. In Paragraph.6 of the plaint, it is specifically stated that the plaintiff was and is ready and willing to perform her part of the contract. Ext. A2 notice sent on behalf of the respondent also shows that she was ready and willing to perform her part of the contract. So the contention of the appellants that the plaintiff has no sufficient funds with her, cannot be accepted. 11. The 4th appellant was examined as DW 1. He has admitted that Rs. Ext. A2 notice sent on behalf of the respondent also shows that she was ready and willing to perform her part of the contract. So the contention of the appellants that the plaintiff has no sufficient funds with her, cannot be accepted. 11. The 4th appellant was examined as DW 1. He has admitted that Rs. 1 lakh received from the respondent has been utilised for redeeming the mortgage in respect of the plaint schedule property and for sending Manoj, his brother to Gulf Country. Admittedly, on the date of Ext. A1, the plaint schedule property was outstanding on mortgage for an amount of Rs. 35,000/-. The said mortgage was redeemed and after redemption, the appellants are residing in the building in the plaint schedule property. The evidence further shows that even after the expiry period, the appellants were ready to execute the sale deed in favour of the respondent or her nominee if the balance sale consideration is paid. If it be so, the time is not the essence of the contract. The oral evidence of PW 1 shows that he had disposed of his property having an extent of 5 cents for raising money for the performance of the contract. Ext. A3 pass book shows that there was a balance of Rs. 1,10,000/- in the account of PW 2 and out of the said amount Rs. 60,000/- absolutely belonged to the plaintiff. PW 2 is having money in her account and she agreed to advance an amount of Rs. 50,000/- to her daughter. According to PW 2, the plaintiff sent a draft for Rs. 60,000/- which she had deposited in her account. So the plaintiff had sufficient money with her. 12. The question as to whether plaintiff was ready and willing to perform his part of the contract is a question of fact to be inferred from the facts and circumstances of each case. Readiness and willingness have to be determined from the entirety of facts and circumstances, relevant to the intention and conduct of the party concerned. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. 13. Readiness and willingness have to be determined from the entirety of facts and circumstances, relevant to the intention and conduct of the party concerned. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. 13. It is further submitted by the learned counsel for the appellants that in order to get a decree for specific performance of the agreement, the respondent shall prove her readiness and willingness up to the date of the decree. To substantiate the same, he relies on the decision in Ardeshir v. Flora Sassoon (AIR 1928 Privy Council 208) and Jugraj Singh v. Raj Singh ( AIR 1995 SC 945 ). According to him, there is nothing on evidence to show the readiness and willingness of the plaintiff to perform her part of the agreement. 14. An averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale. 15. It is held by the Hon'ble Supreme Court in Syed Dastagiri's case (1999 AIR SCW 2959 and AIR 1999 SC 3029 ): "In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed, "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. It was observed, "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in S.16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale." 16. If we analyse the facts and circumstances of this case in this perspective, it can be safely concluded that the respondent was ready and willing to perform her part of the contract and she was having sufficient funds with her. 17. It is submitted by the learned counsel for the appellants that the jurisdiction to decree specific performance is discretionary. But this discretion must be sound and reasonable. There is no justification to decree specific performance in favour of the respondent. S.20 of the Specific Relief Act states as follows: "20. Discretion as to decreeing specific performance- (1) The jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Discretion as to decreeing specific performance- (1) The jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance: (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it in equitable to enforce specific performance. Explanation 1: Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause.(a) or hardship within the meaning of Clause (b); Explanation 2: The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause.(b) shall except in case where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance; (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party". 18. In the present case, the appellants were in need of money and they decided to sell their property. Accordingly, they executed Ext. A1 agreement for sale of their property for a total consideration of Rs. 2,35,000/-. Out of the said sum, the appellants received Rs. 18. In the present case, the appellants were in need of money and they decided to sell their property. Accordingly, they executed Ext. A1 agreement for sale of their property for a total consideration of Rs. 2,35,000/-. Out of the said sum, the appellants received Rs. 1 lakh and utilised the same for redeeming the mortgage and sending the 3rd appellant to Gulf Country and now he is employed. Now, there is no justification for them to deny the execution of sale deed in favour of the respondent. Apart from the interested testimony of DW 1, there is nothing to show that they have measured out the property and obtained the encumbrance certificate. 19. On an anxious appreciation of the evidence, we are of the view that there is no merit in the appeal. Hence dismissed. No costs.