Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 156 (CAL)

Samir Bose v. Ira Majumdar

2001-03-16

Joytosh Banerjee, Y.R.Meena

body2001
JUDGMENT Joytosh Banerjee, J. This appeal is directed against the judgment and decree dated 31-7-96 and 6-8-96 respectively passed by Sri A.K. Mondal, Assistant District Judge, 3rd Court, Alipore in T.S. No. 232 of 1986. 2. Plaintiff/respondent No.1 brought the suit for specific performance of contract dated 14-12-85 by executing and registering the deed of conveyance in favour of the plaintiff within a specified period to be stipulated in the decree alternatively if the contract was found vitiated by impossibility, a decree for Rs. 1,20,000/- being the sum of the total amount towards the consideration money and a further decree for interest at the rate of 18 per cent per annum on the aforesaid sum on and from 14-12-85 till the realisation of the amount and also for some other reliefs incidental to the principal relief sought for in the suit. Briefly stated the case of the plaintiff was that the plaintiff on getting an information from an advertisement in the newspaper that a flat in Madhumita Apartment at 36B, Selimpore, P.S. Kasba, Calcutta-700 031, fully described in the schedule of the plaint, was to be sold to an intending purchaser by its owners defendant Nos. 2 to 4 of the suit, went to see the flat for herself and met the care-taker of the building. The plaintiff/respondent also got an inspection of the flat which was situated on top floor of the building through the help of the care-taker. The plaintiff made up mind to purchase the flat and when she was walking down the stair case accompanied by the care-taker, she met the promoter and constituted attorney, the defendant No.4/respondent No.5. The plaintiff expressed her desire, to purchase the flat. The promoter offered her a flat on the second floor. The plaintiff after inspection decided to accept the offer and paid the said promoter the defendant No. 4/respondent No.5 a sum of Rs. 10,000/- only by cheque and sometime thereafter a further sum of Rs. 20,000/ only by cheque as well as cash and in this way made a total payment of Rs.30,000/- to the defendant No. 41 respondent No.5 towards the part payment of the entire consideration money of Rs. 1,20,000/- for the aforesaid flat. On payment of Rs. 10,000/- only by cheque and sometime thereafter a further sum of Rs. 20,000/ only by cheque as well as cash and in this way made a total payment of Rs.30,000/- to the defendant No. 41 respondent No.5 towards the part payment of the entire consideration money of Rs. 1,20,000/- for the aforesaid flat. On payment of Rs. 30,000/- as earnest money a formal agreement was executed in between the plaintiff and the defendant No.1 wherein the defendant No.4 / respondent No.5 for self and as the constituted attorney for defendant Nos. 2 and 3 put her signature and through such agreement, the promoter agreed to sell and the purchaser agreed to purchase and acquire the above mentioned flat on Madhumita Apartment for a total consideration money of Rs. 1,20,000/ -, the deed contained recital regarding payment of Rs. 30,000/- to the promoter and it was agreed, the plaintiff would pay the remaining Rs. 90,000/- at the time of possession when final deed of conveyance would be made within 45 days from the date thereof. It is further alleged that after the execution of the said agreement, the plaintiff by way of bank draft dated 12-3-86 of the State Bank of India paid the entire balance of the consideration money and in this way concluded her portion of performance in the contract. The defendant No.4 / respondent No.5, the promoter on the other hand wanted sometime to give the finishing touches in such flat and hand over the same to the plaintiff at an early date. Eventually, it was decided that the promoter would hand over the flat on 14-9-86. It is further alleged that as per agreement between the parties, the plaintiff intended to have the interior decoration of the flat in question according to her own choice and paid a sum of Rs. 10,000/- towards interior decoration of the same under the supervision of the defendants. It is further alleged that it was agreed by and between the parties that the possession of the aforesaid flat would be delivered to the plaintiff on 14-9-86. 10,000/- towards interior decoration of the same under the supervision of the defendants. It is further alleged that it was agreed by and between the parties that the possession of the aforesaid flat would be delivered to the plaintiff on 14-9-86. On 13-9-86 at about 5 P.M., the plaintiff along with her son went to the building of defendant No.4 / respondent No.5 and told the said defendant that she would move into the flat on the following day, that is, on 14th September, 1986 as agreed and wanted the key to the flat from the defendant No.4 / respondent No.5. But the defendant No.4/respondent No.5 refused to hand-over the key stating that it would not be possible for her to give the plaintiff the possession of the flat; instead the plaintiff could take back her money. The plaintiff was constrained to file the suit because of the refusal by the defendant No.4 / respondent No.5 to handover the vacant possession of the flat as she got information to the effect that the defendants were trying to sell the suit property to third party at a higher price. 3. The defendant No.7 / appellant contested the suit by filing a written statement. Although the defendant No.4 / respondent No.5 filed a written statement but she did not contest the suit. Through the written statement filed on behalf of the defendant No.7 such defendant alleged that by an agreement dated 30th June, 1985 made between the defendant No.4 / respondent No.5 for sale and as constituted attorney of the defendant Nos. 2 and 3 of the first part and the contesting defendant and his wife Ava Bose of the second part, the defendant No.4 / respondent No.5 agreed to sell the flat No. 301 on the second floor at premises No. 36B, Selimpore Road, P. S. Kasba, Calcutta – 700 031 to the defendant and his wife. Pursuant to that agreement the defendant and his wife duly paid the entire consideration payable under such agreement and thereafter the defendant and his wife were put in possession of the said flat. Pursuant to that agreement the defendant and his wife duly paid the entire consideration payable under such agreement and thereafter the defendant and his wife were put in possession of the said flat. By a registered deed of conveyance dated 17th day of February, 1990 made between Shyamali Das, referred to in the deed as the Vendor of the one part and the defendant and his wife therein jointly referred as the purchaser of the other part, the said defendant No. 41 respondent No.5 duly sold and transferred the flat in question in favour of the defendant and his wife. The defendant though the written statement denied that there was any agreement by and between the plaintiff and the defendant No.4 / respondent No.5. Alternatively it was alleged that in any event, the defendant No.7 and his wife were bona fide purchasers of the said flat for value without notice and/or knowledge of the existence of the alleged agreement pleaded by the plaintiff. It is also that the defendant's wife died on 13th July, 1994 and the defendant and his son and daughter are now the joint owners of the said flat who have been occupying the same as owners since February, 1990. 4. On the basis of the aforesaid pleadings, the learned Judge raised certain issues including an issue raising the question whether the plaintifti' respondent would get a decree for specific performance of contract in the instant case. The learned court below on consideration of the evidence both oral and documentary on record found that plaintiff/respondent performed her part of contract and there was nothing left to be performed on the part of the plaintiff. The story of taking loan in the form of agreement for sale as alleged in the written statement of defendant No.4 / respondent No.5 was baseless and not proved by evidence, that the defendant No.7 who is the present appellant here was not a bona fide purchaser for value without notice atleast, such defendant through evidence failed- to prove the same, the alleged agreement in favour of defendant No.7 and his wife in one part and the defendant No.4 / respondent No.5 was fishy and could not be proved in accordance with the provision of law. With these findings, the learned court below decreed the suit as stated above. 5. With these findings, the learned court below decreed the suit as stated above. 5. The learned Advocate for the defendant No.7 / appellant has argued that admittedly the plaintiff No.1 was never put in possession of the suit flat, viz., Flat No. 301, Madhumita Apartment of 36B, Selimpore Lane, P. S. Kasba, Calcutta-31 by the defendant No.4 / respondent No.5. The plaintiff/respondent No.1 was also never handed over the keys of the said flat by the defendant No.4 / respondent No.5. In this background the mere allegation that the plaintiff/respondent No.1 got a possession certificate from the defendant No.4 / respondent No.5 would not confirm possession of the flat by the respondent No.1 / plaintiff and therefore having regard to this background, the plaintiffs further case that she was carrying out finishing work in the flat without having any possession or keys of the same was not at all acceptable. It is further argued that the learned Judge impropely rejected the agreement between the respondent No.7 / appellant and the defendant No.4 / respondent No.5 on the ground that the said agreement was "fishi". It is also contended that the learned Judge improperly relied on certain averments of the Written Statement filed by the defendant No. 4 / respondent No.5 as such defendant never contested the suit at any point of time. She did nothing in connection with the contesting of the suit except filing the said Written Statement. It was contended on behalf of the appellant that this true copy of the document, namely, the agreement entered into between defendant No.7 / appellant and his late wife in one hand and the defendant No.4 / respondent No.5 in the other was properly proved and the said secondary evidence was produced before the court after the original which remained in the custody of defendant No.4 / respondent No.5 was called and the same was not produced. It is further contended that the appellant was duly given the possession of the flat in question by the defendant No.4 / respondent No.5, promoter and a registered deed of sale in respect of the suit flat was executed in his favour. It is further contended that the appellant was duly given the possession of the flat in question by the defendant No.4 / respondent No.5, promoter and a registered deed of sale in respect of the suit flat was executed in his favour. On the other hand, the case made out by the plaintiff through the plaint that inspite of an agreement for selling the suit flat to the plaintiff and inspite of further allegation that the plaintiff paid the entire sum which was agreed upon but she was never given possession of the said flat and she waited for a considerable period of time before instituting the suit, made the case of the plaintiff improbable specially in view of the fact that the only reason furnished by the plaintiff through the plaint was alleged sweet relation between plaintiff/respondent No.1 and the defendant No.4 / respondent No.5, but the alleged reason for waiting over 6 months (according to the case of the plaintiff/respondent No.1 they entire agreed sum was paid on 12-386 and she waited till 13-9-86 for, taking the possession of the flat in question) could not be proved as the plaintiff did not examine here self in the suit. In this facts and circumstances, it is further contended the learned court below improperly decreed the suit. 6. The learned Advocate for the plaintiff/respondent No.1 on the other hand has contended that the reasoning which weighed much with in learned court below was the nature of Ext. F being the alleged agreement dated 30-6-85 relied upon by the defendant No.7 / appellant. The said defendant / appellant wanted to rely upon such document as the duplicate copy of the original agreement dated 30-6-85. The said document (Ext. F) was allegedly executed by Shymali Das defendant No.4 / respondent No.5 by putting her signature in original on a photo copy of stamp paper, though the said document was not the original copy of the agreement. In that background, it has been contended that the document cannot be treated as a secondary evidence of the alleged agreement between the defendant No.7 / appellant and another in one side and the defendant No.4 / respondent No.5 in the other and the learned court below rightly described the argument as "fishi". In that background, it has been contended that the document cannot be treated as a secondary evidence of the alleged agreement between the defendant No.7 / appellant and another in one side and the defendant No.4 / respondent No.5 in the other and the learned court below rightly described the argument as "fishi". Secondly, it is contended that the appellant / defendant No.7 in order to succeed in the suit must prove that he was a bona fide purchaser for value without notice of prior encumbrances of the property. But the appellant miserably failed to satisfy the court that he made any search for encumbrances or had taken any pains to ascertain whether the property was unencumbered between 1985 (the date of alleged agreement ) and 1990 the date of alleged purchase. On the contrary, the appellant in his evidence admitted he made no enquiry to ascertain those facts. That being so, the court below was fully justified in holding that the appellant was not a bona fide purchaser for value without notice. It is further submitted that in the conveyance deed of the appellant (Ext. B) there was nothing to show that the defendant No.4 / respondent No.5 acted as constituted attorney for the other defendants owners of the property. Therefore, Ext. B on the face of the record failed to confer any title to the suit flat in favour of the appellant. It is also argued that there is no application of the provisions of section 19 of the Specific Relief Act as the appellant/defendant No.7 has failed to prove that he was a bona fide purchaser without notice. On the other hand, requirement of section 16(i)(c) has been fully complied with as the plaintiff/respondent No.1 has concluded her portion of performance. 7. In the instant case, the dispute between the contesting parties that is to say plaintiff/respondent No.1 and defendant No. 7/appellant relates to flat No. 301 of Mad hum ita Apartment at Premises No. 36B, Selimpore Lane, Calcutta 700 031. According to the allegations of the plaintiff/respondent No.1 she entered into an agreement dated 14-12-85 (Ext. 2) with the respondent No.1 for the purpose of acquiring that flat at a total price of Rs. 1,20,000/-. According to the specific case of the plaintiff/respondent No.1, the plaintiff/respondent paid Rs. 1,10,000/- on 15-12-89 and in this way paid the entire amount by 15-12-89. 2) with the respondent No.1 for the purpose of acquiring that flat at a total price of Rs. 1,20,000/-. According to the specific case of the plaintiff/respondent No.1, the plaintiff/respondent paid Rs. 1,10,000/- on 15-12-89 and in this way paid the entire amount by 15-12-89. But the defendant No.4, who is the respondent No.5 here did not give her the possession. She only issued a possession certificate on 12-3-86. 8. On the other hand, it is the case of the appellant added defendant No.7 that an agreement for sale in respect of said flat in question was executed between the appellant and his wife Smt. Ava Bose, since deceased and Smt. Shyamali Das (defendant No.4 / respondent No.5) for a consideration of Rs. 1,70,000/-. At the time of execution of the agreement dated 30th June, 1985, the appellant paid Rs. 10,000/- as advance and it was agreed by and between the parties that the balance amount would be paid by 1989. It is the further allegation of the appellant that he paid balance consideration amount of Rs. 1,60,000/ - on 15th of December, 1989 and on 17th of February, 1990 a deed of sale of the suit property was executed by the defendant No.4 / respondent No.5 in favour of the appellant and his wife Smt. Ava Bose and in this way the suit property was duly transferred in favour of the appellant and his late wife. It is further alleged that since February, 1990, the appellant and the members of his family have been occupying the suit flat. Now, the learned Judge in the judgment impugned decreed the suit in favour of the plaintif/respondent after holding that the deed of agreement entered into by the appellant and his wife and the defendant No.4 / respondent No.5 is "fishi" and that the appellant purchased the property without proper investigation as to the title and therefore such appellant could not be said to be a purchaser for value without notice. 9. In coming to such a conclusion, it transpires that the learned Judge, took into consideration, certain averments made in the Written Statement filed by the defendant No.4 / respondent No.5. 9. In coming to such a conclusion, it transpires that the learned Judge, took into consideration, certain averments made in the Written Statement filed by the defendant No.4 / respondent No.5. We must record here, that since the said defendant did nothing in connection with the suit except filing the Written Statement, such Written Statement, has got no value, and it can not be considered for any purpose, either in support of the case of any of the parties or as a circumstance which goes against the case of any particular party. 10. Be that as it may, taking the first thing first, it transpires from 'the judgment impugned that the learned court below came to the conclusion that the agreement in favour of the appellant was "fishy" on the ground that the said document Marked Ext. F contained the signature in original of Shyamali Das, the defendant No. 4/respondent No.5 though the document which was produced in the court was not the original agreement but a duplicate copy. It is the further observation of the court below that the said document Marked Ext. F was attested by two witnesses but none of those witnesses were examined. In these circumstances, the court below became suspicious about the agreement in question Marked Ext. F. Before we enter into the question to see whether the learned court below rightly refused to place any reliance on the document Ext. F or not, we should first of all point out the provisions of section 65 of the Evidence Act where secondary evidence relating to document may be given and one of the conditions under which secondary evidence of a document can be produced is when a person who is legally bound to produce it but does not produce the same even after the notice mentioned in section 66 of the Act. In the instant case, we find from the evidence of the appellant as D.W. 1 that the original agreement copy of which was Marked Ext. F, was lying with Shyamali Das, defendant No.4 / respondent No.5. From his evidence we further find that the appellant issued notice to the holder of the document to produce the original of agreement dated 30th June, 1985 and such notice to produce the document was first of all sent through courier. F, was lying with Shyamali Das, defendant No.4 / respondent No.5. From his evidence we further find that the appellant issued notice to the holder of the document to produce the original of agreement dated 30th June, 1985 and such notice to produce the document was first of all sent through courier. Such notice was also sent through registered post with A.D. which was returned with a postal endorsement not claimed. The notice which was sent through courier service was duly served but inspite of such notice the holder of the document Shyamali Das did not produce the original agreement. On carefully examining the cross-examination we find that the specific stance of the appellant in this respect was never challenged from the side of the plaintiff/respondent. so it can be said without hesitation that under section 65 of the Evidence Act, the appellant was entitled to tender secondary evidence of the agreement entered into and by the appellant and defendant No. 41 respondent No.5. We further hold in the aforesaid circumstances the secondary evidence of the contents of the aforesaid document was given after notice to produce the original document was served upon the holder of the document. Now, section 63 mentions 5 kinds of secondary evidence and two of such kinds are (1) copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and copies compared with such copies; (ii) copies made from or compared with the original. In the instant case, we have carefully perused the copy of the deed of agreement Marked Ext. F to find that the first page which contained the stamp is the photocopy, the other pages consists of carbon typed copies. Therefore, it can be said that the copy in question was made from the original by mechanical process which in themselves insure the accuracy of the copy. It appears to us that the only thing for which a grave doubt was raised in the mind of the court below was that in such copy the parties including the promoter defendant No.4/ respondent No.5, Shyamali Das affixed her signature. It is our common experience that in case of an agreement between two parties, both the parties hold one copy of such agreement. It is our common experience that in case of an agreement between two parties, both the parties hold one copy of such agreement. It may be that the copy which is given to one of the parties is prepared through mechanical process but for that reason alone, no doubt should be raised in the mind of the court. It is to be remembered here that the secondary evidence is the evidence which suggests, on the face of it, that other and better evidence exists. In the instant case, the only difference between the original agreement and the copy of such agreement tendered here due to absence of the original is that in the copy which was done with the help of a carbon paper but when all the parties concerned affixed their signature on such document and when the other executant, namely, defendant No.4 / respondent No.5 did not come before the court to deny on oath, we can very well accept the copy as the secondary evidences of the original document. There is nothing fishy about it. We are to point out here that the appellant on being examined as D.W. 1 categorically stated on oath that both the original copy were typed in the same mechanical process in his presence and both the original and copy were signed by the parties in his presence at the same time. In this background, the court should not reject such document simply describing the same as "fishy". In fact there is no other circumstance which can lead us to a conclusion that the document in question, namely, the deed of agreement between the promoter and the appellant was not a genuine document but it was manufactured for the purpose of the suit. 11. Next comes the question whether the appellant can be called as a purchaser for value without notice. The learned court below found that as the appellant purchased the property during the pendency of the suit he must prove beyond all reasonable doubt that he was an innocent purchaser for value. Before proceeding to examine the question, we must note down certain admitted position in the suit. These are as follows : (i) The plaintiff/respondent inspite of her allegation that defendant No.4 / respondent No.5, the promoter agreed to sell the suit flat to the plaintiff/respondent at a total price of Rs. Before proceeding to examine the question, we must note down certain admitted position in the suit. These are as follows : (i) The plaintiff/respondent inspite of her allegation that defendant No.4 / respondent No.5, the promoter agreed to sell the suit flat to the plaintiff/respondent at a total price of Rs. 1,20,000/-, inspite of her further case that she paid the total sum of Rs. 1,20,000/- to such promoter by 12th of March, 1986, she was not given any possession of such suit flat, nor did she claim and take any step for that purpose prior 13th September, 1986. (ii) Even the plaintiff/appellant was not handed over the key of the flat on her payment of the full agreed price of the suit flat. (iii) The plaintiff alleged in the plaint that she waited for the purpose of getting possession of the flat due to sweet relationship between her and the promoter, the defendant No.4 / respondent No.5 but the plaintiff/respondent here self did not come before the court to allege the same on oath and to face the cross-examination on that point. Be that as it may, the reason thus furnished is not at all sufficient to explain the conduct of a man of ordinary prudence who would wait for such a long period even after payment of the full consideration money. In this respect, it can be said that her assertion that she spent Rs. 10,000/- towards decoration of the flat in question appears to us, without any foundation. (iv) Both the agreement for sale, one in favour of defendant No. 7/appellant and his wife and the other in favour of the plaintiff/ respondent were unregistered documents. 12. The learned court below in the judgment impugned refused to come to a conclusion that the appellant/defendant No.7 was a bona fide purchaser without notice of the suit property. The Transfer of Property Act contemplates three kinds of notice, namely, (i) actual notice (ii) constructive or implied notice that is to say when but for willful abstention from enquiry or such or for gross negligence he would have known and (iii) notice to agent. In the instant suit, it is nobody's case that the appellant, in the facts and circumstances of the case came under clause one or three. The question, therefore, is whether the appellant had constructive or implied notice. In the instant suit, it is nobody's case that the appellant, in the facts and circumstances of the case came under clause one or three. The question, therefore, is whether the appellant had constructive or implied notice. We have already seen that the deed of agreement between the plaintiff/respondent and the promoter defendant No.4 / respondent No.5 was admittedly an unregistered document. Further admitted position is that the plaintiff/respondent did not get the possession of the suit flat at any point of time. No doubt, the learned court below pointed out that before purchasing the flat in question, the plaintiff/appellant did not make any search as to the ownership and possession of the suit flat. But we fail to follow the reasoning thus furnished by the court as what the appellant would get by causing search in respect of the flat in question when the agreement for sale was not registered. The words willful abstention from enquiry and search must be taken to mean such abstention from enquiry or search as would show want of bona fides. It may be further noted that the abstention from enquiry should be designed and due to a desire to avoid an enquiry which would lead to ultimate knowledge. In the instant case, in the facts and circumstances, we do not find anything from which it can be said that an honest enquiry on the part of the appellant would lead him to ultimate knowledge that the plaintiff/respondent pursuant to an agreement paid the entire amount agreed upon and therefore she was entitled to get possession of the suit flat. So we are unable to accept the finding of the learned court below that the appellant was not a bona fide purchaser without notice. But still then there is another aspect of the matter which should also be looked into for coming to a just decision in the instant case. That question centres round the doctrine of lis pendens as contemplated under section 52 of Transfer of Property Act. The said doctrine is intended to prevent one party to a suit making an assignment in favour of third party during the pendency of the suit. In the instant case, the suit flat was transferred in favour of the appellant and his wife since deceased by a deed of conveyance on 17-4-90. The said doctrine is intended to prevent one party to a suit making an assignment in favour of third party during the pendency of the suit. In the instant case, the suit flat was transferred in favour of the appellant and his wife since deceased by a deed of conveyance on 17-4-90. The suit for specific performance of contract was filed by the plaintiff/respondent against the lesser of the suit property, namely, defendant No. 4/respondent No.5 in the year, 1986 that is to say prior to such transfer. It goes undisputed so far as the legal position is concerned that a suit for specific performance of contract for sale of immovable property is a suit in which the immovable property is directly and specifically involved within the meaning of section 52 and the purchaser pendente lite is bound by the result of the suit. Any plea stating that the vendees were bona fide purchasers without notice is of no consequence when the property was purchased during the pendency of a civil litigation, in a suit for specific performance of contract to sell the property. So in this background, the moot question would be what is effect of transfer pendente lite. It is well settled that the effect of such transfer is not to annul conveyance but only to render it subservient to the rights of the parties to the litigation. Its effect is only to bind the transferee if he happens to be a third person with any decree that is made in the suit, even if he is not a party to it. The transfer, however, would be available and valid subject to the result of the suit, as has been decided in Liladhar Uttamchand vs. Shiwaji Ganesh Parwardhan and Ors., AIR 36 Nagpur 125; K. Jagannatha Kone vs. Rama Chandra Naidu and Ors., AIR 1936 Madras 589. In both the reported cases, the High Courts held that such transfer would not be null and void but the transferee must take his interest subject to the incidence of the suit. That being the position we can very well consider the question whether in the facts and circumstances of the case, the plaintiff/respondent is entitled to get a decree for specific performance of contract or not. That being the position we can very well consider the question whether in the facts and circumstances of the case, the plaintiff/respondent is entitled to get a decree for specific performance of contract or not. We have already seen that the unusual delay in claiming the possession after the alleged payment of full consideration money raises a reasonable suspicion about the plaintiffs claim over the property. On the other hand, it transpires that a deed of conveyance was registered in favour of the appellant and his wife in the year, 1990 and at the time of such registration of the sale deed possession was given to the appellant and his wife and since then, the appellant has been possessing the suit flat with his members of the family. The Apex Court in the case of Kashi Ram vs. Om Prakash Jawal and Ors., reported in 1996 (4) Supreme Today 285, made following observation which we find most relevant in the facts and circumstances of this case, and, this case should be disposed of in the light of such observation. The relevant portion of such observation runs as follows :- “Having regard to the facts of this case and the arguments addressed by the learned Counsel, the question arises for consideration is; whether it would be just, fair and equitable to grant the decree for specific performance? It is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. Considered from this perspective, in view of the fact that the respondent him self had claimed alternative relief for damages, we think that the courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance when would be unrealistic and unfair." In the instant case also, the plaintiff/respondent claimed an alternative relief for the money advanced, and the interest thereon. So considering the entire facts and circumstances we are of the opinion that it would not be fair to pass a decree for specific performance of contract in favour of the plaintiff/respondent as done by the court below. But before we part with the matter finally' we should also like to point out that some other points which have been raised from both sides. It has been contended on behalf of the plaintiff/respondent that in the deed of agreement, the defendant No.4 / respondent No.5 did not describe herself as the holder of power of attorney for the owners. But we did not any force behind such argument in view of the fact that in the recital of the deed of agreement the said defendant, clearly stated that she was the power of attorney holder for the actual owners of the property and that position is more or less admitted by the plaintiff/respondent in view of the fact that the plaintiff/respondent also claimed to enter into an agreement for transferring the suit flat in favour of the plaintiff/respondent with the said power of attorney holder, namely, defendant No.4 / respondent No.5. It has been contended by the learned Advocate for the appellant defendant No.7 that in view of clear provision of section 16(c), the suit should have dismissed by the court below as the plaintiff/respondent in her plaint did not aver that she was ready and willing to perform the essential terms of the contract which were to be performed by her. In support of such contention, the learned Advocate for the appellant/defendant No.7 has relied on a decision of this court, Maniklal Sit vs. K. P. Chowdhury, AIR 1976 Cal. 115 . It was decided there that if any suit for specific performance of contract, the plaintiff did not say in the evidence anywhere that even at the time of hearing she was always ready and willing to perform her part of the duty according to the contract, the suit for specific performance of contract should fail on that account alone. It was decided there that if any suit for specific performance of contract, the plaintiff did not say in the evidence anywhere that even at the time of hearing she was always ready and willing to perform her part of the duty according to the contract, the suit for specific performance of contract should fail on that account alone. He has also relied on the decision of the Apex Court in Surya Narayan Upadhyaya vs. Ramrup Pandey, AIR 1994 SC 105 , wherein the Apex Court observed that failure on the part of the plaintiff that he had always been ready and willing to perform his part of the contract would be fatal to maintain the suit for specific performance of contract. But, on going through the record as well as the judgment" impugned, we find that the learned Judge in his judgment impugned considered the question and rightly found that the plaintiff/respondent paid the entire consideration money agreed upon and therefore it was explicit from the evidence on record that the plaintiff had already performed her part of the agreement by paying the entire consideration money. Therefore, we find that the suit should not fail in view of the provisions of section 16(c) of the Specific Relief Act. 13. In view of the findings above, the appeal succeeds and the suit is dismissed against the appellant. In view of the alternative prayer which is made against defendants 1 to 4, we are of the opinion that on the basis of the evidence on record which goes unchallenged, the suit should be decreed ex parte against the other defendants, namely, 1 to 4 for a sum of Rs. 1,20,000/- only payable to the plaintiff/respondent. Such sum shall carry 10% interest from the date of its payment till the same is paid back to the plaintiff/respondent by such defendants. The total sum of money to be paid as an interest will be determined in a separate proceeding. 14. The appeal is allowed in the above terms but in the facts and circumstances, the parties are directed to bear their own costs. Y.R. Meena, J.: I agree. Appeal allowed.