Research › Search › Judgment

Calcutta High Court · body

2004 DIGILAW 598 (CAL)

ANIL KUMAR GANGULY v. AMALENDU MUKHERJEE

2004-09-10

ASOK KUMAR GANGULY, JAPAN KUMAR DUTT

body2004
DUTT, J. ( 1 ) WE have heard Mr. Sudhis Dasgupta, learned Senior advocate appearing on behalf of the defendant No. 1/appellant and Mr. Utpal Bhattacharya, learned Advocate appearing on behalf of the plaintiff/ respondent. ( 2 ) BRIEFLY, the facts of the case are as follows:the plaintiff/respondent no. 1 filed Title Suit No. 174 of 1976 against the defendant No. 1/appellant and the defendant No. 2/respondent No. 2 praying, inter alia, for a decree for specific performance of contract. The said suit was placed before the learned Third Court of Subordinate Judge at Alipore. The plaintiff/respondent no. 1's case, briefly, was that the defendants being the joint owners of premises No. 122/iu, Monoharpukur Road, Calcutta-26 (a two storied pucca masonry building and comprising of an area of 2 cottahs and 18 sq. ft. of land) entered into an agreement for sale with the plaintiff in respect of the suit property i. e. the aforesaid premises, and executed an agreement for sale in favour of the plaintiff on 16. 01. 1976 and accepted an earnest money of Rs. 5001/- (five thousand and one), that the defendants further took a sum of Rs. 1,500/- (one thousand five hundred) from the plaintiff for payment of the arrears of Corporation taxes, that in terms of the agreement the defendants will sell the suit property for a total sum of Rs. 67. 000/- (sixty seven thousand ). 5001/- (five thousand and one), that the defendants further took a sum of Rs. 1,500/- (one thousand five hundred) from the plaintiff for payment of the arrears of Corporation taxes, that in terms of the agreement the defendants will sell the suit property for a total sum of Rs. 67. 000/- (sixty seven thousand ). It was further alleged that after the agreement for sale, urban Land (Ceiling and Regulation) Act, 1976 was promulgated and as such without the permission of the competent authority no transfer by way of sale could be made and that the defendants were required to get the income tax clearance certificate, that in spite of repeated requests the defendants did not do anything to get permission from the competent authority and the income tax clearance certificate, that the defendants did not pay the arrears of corporation taxes and the same are still lying outstanding, that the plaintiff reasonably expected that the defendants will make all arrangements for completion of the transaction but strangely enough the plaintiff got information sometime in the last week of May, 1976 that the Defendant No. 1 was demolishing the roof of the first floor and the plaintiff personally saw that the Defendant No. 1 has demolished the entire roof of the first floor and the plaintiff was told by the Defendant No. 1 that the Defendant No. 1 will not sell the property to the plaintiff and defendant no. 1 has cancelled the agreement, that the plaintiff is an employee of central Bank of India and applied for staff-loan for purchasing the suit property and deposited all papers and documents relating to the suit property in the Bank for getting sanction but after that incident the plaintiff has withdrawn the papers and handed over the same to his Advocate for necessary action, that the plaintiff thereafter sent lawyer's notice asking the defendants to comply with the terms of agreement but the defendants did not reply, that the defendants through their Advocate sent a letter to the plaintiff and the plaintiff has given a reply to such letter and that the defendants at the time of execution of the agreement handed over the original title deed of their property to the plaintiff and the same is now in possession of the plaintiff. ( 3 ) IT may be noted here that in the original plaint there was no pleading that the plaintiff was through out ready and willing to perform his part of the contract. It appears that by way of amendment the plaint was amended subsequently and an allegation that the plaintiff was through-out ready and willing to perform his part of the contract was introduced in the plaint. ( 4 ) THAT the defendant No. 1/appellant contested the said suit by filing a written-statement admitting that the defendants are the joint absolute owners of the said premises No. 122/iu, Monoharpukur Road, Calcutta-26, that on the basis of an agreement for sale dated 16. 01. 1976 the defendants agreed to sell the said premises to the plaintiff at a price of Rs. 67,000/- (sixty seven thousand) and a sum of Rs. 5,001/- (five thousand and one)was paid by the plaintiff to the defendants as earnest money and on the very same date i. e. 16. 01. 1976 all documents of title in respect of the said property which were in possession of the defendants were handed over to the plaintiff's learned Advocate Sri Prosanta Kumar Mukherjee. The defendants denied that they took a sum of Rs. 1,500/- (one thousand five hundred) from the plaintiff for payment of arrear corporation taxes. The defendants have alleged in their written-statement that there was an agreement that the plaintiff would pay a further sum of Rs. 1,500/- (one thousand five hundred) over and above the consideration money of rs. 67,000/- (sixty seven thousand) in part satisfaction of the corporation dues as arrear taxes and that the balance arrear taxes would be paid by the defendants, and that out of the consideration money of Rs. 67,000/- (sixty seven thousand) the defendant No. 1 would get at Rs. 45,000/- (forty five thousand) and the Defendant No. 2 wouid get Rs. 22,000/- (twenty two thousand ). 67,000/- (sixty seven thousand) the defendant No. 1 would get at Rs. 45,000/- (forty five thousand) and the Defendant No. 2 wouid get Rs. 22,000/- (twenty two thousand ). The Defendant No. 1 further alleged that there was verbal agreement between the parties that documents would be brought by the plaintiff and the plaintiff will do everything necessary for taking permission for sale and for obtaining income tax clearance certificate but the plaintiff never requested the defendants to sign any application or papers for taking permission for sale and for obtaining the income tax clearance certificate and that the plaintiff defaulted by doing nothing for taking permission for sale and/or income tax clearance certificate, that the roof of the first floor of the said premises became very much deteriorated and as a result the roof fell down and the wife of the defendant No. 1 suffered head-injury and she had to be taken to the S. S. K. M. Hospital for treatment, that since the transaction was to be completed within three months from the date of the agreement and nothing was done by the plaintiff in the matter of completing the transaction within three months the defendants by their lawyer's letter dated 20. 04. 1976 cancelled the said agreement and requested the plaintiff to return all the documents of title, that the said letter was sent under registered post to the plaintiff at 28a, Shahpur Road, Calcutta but the said letter became back with the postal endorsement "not known", that it is a fact that the plaintiff came to the defendants' house on 30. 5. 1976 and on the said day the plaintiff was informed that the agreement for sale has been cancelled and that the defendants will not sell the property to the plaintiff, that on 30. 5. 1976 the defendants came to know that the address of the plaintiff is 28a, Shahnagar Road and not 28a, Shahpur Road as given in the agreement for sale. That thereafter the defendants sent another lawyer's letter dated 15. 6. 1976 to the plaintiff informing him that the agreement stood cancelled as the transaction was not completed by the plaintiff within the stipulated period and that sum of Rs. 3,000/- (three thousand) out of the earnest money paid stood forfeited and the plaintiff was asked to return the original documents, that the said letter was received by the plaintiff on 19. 3,000/- (three thousand) out of the earnest money paid stood forfeited and the plaintiff was asked to return the original documents, that the said letter was received by the plaintiff on 19. 6. 1976, that the plaintiff sent lawyer's letter dated 10. 6. 1976 to the defendants making false and frivolous allegations, that the plaintiff never deposited the documents with the bank for getting sanction and did not apply for any staff loan for purchasing the property, and that the plaintiff not having completed the transaction within the stipulated period was not entitled to get any benefit under the said agreement for sale which stood cancelled. ( 5 ) THAT the said suit came up for hearing when the parties adduced evidence and the learned Third Court of Subordinate Judge at Alipore by his judgment and decree dated 20th February, 1981 decreed the said suit by directing that the plaintiff do get a decree for specific performance of contract for sale in respect of the suit premises and the defendants were directed to execute the deed of conveyance in favour of the plaintiff within two months after getting the balance consideration money of Rs. 61,999/- (sixty one thousand nine hundred and ninety nine), failing which the plaintiff will be at liberty to have the conveyance registered by way of execution through Court on deposit of the balance consideration money. ( 6 ) BEING aggrieved by and dissatisfied with the aforesaid judgment and decree dated 20. 02. 1981 the defendant No. 1 has come up in appeal in this Court. ( 7 ) IT appears from reading the impugned judgment that a point was raised and argued on behalf of the defendants that the conduct of the plaintiff showed that there was no readiness and willingness on the part of the plaintiff in the completion of the transaction in question. The defendants further argued, as it appears from the impugned judgment, that time was intended to be the essence of the contract and the plaintiff not having completed the transaction within the time as mentioned in the agreement the plaintiff is not entitled to any decree for specific performance of contract. It appears that the above two points were the main points that were agitated on behalf of the defendants against the plaintiffs suit for specific performance of contract. It appears that the above two points were the main points that were agitated on behalf of the defendants against the plaintiffs suit for specific performance of contract. The learned Trial Judge, it appears from impugned judgment, ultimately came to the finding that the plaintiff was ready and willing to perform his part of the contract mainly on the following basis :- (a) The search reports show that the plaintiff did not sleep over the matter but had taken steps for search of the title in respect of the suit property. (b) The Corporation tax-receipts in respect of some time in february, 1976 show that more than Rs. 1,500/- (one thousand five hundred) were paid as corporation taxes in respect of the suit premises by the plaintiff which indicate that the plaintiff had taken steps in pursuance of the terms of agreement. (c) That the defendant No. 1 stated in evidence that he does not wish to sell the suit property since it is an ancestral one which shows that the defendant No. 1 is reluctant to sell the suit premises to the plaintiff. (d) That the defendant No. 1 admitted that he personally did not perform any act for taking permission from competent authority. (e) That with regard to the plaintiff's evidence that he applied for loan in the office and deposited the search report and other papers in the bank, the Defendant No. 1 has said that he has no independent knowledge with regard to the plaintiff's prayer for bank loan and as such there is nothing to disbelieve the testimony of the plaintiff. (f) From the letters exhibited (Ext. 5 series) it is established that the plaintiff was ready and willing in complying with the terms and conditions of the agreement. ( 8 ) MR. Sudhis Dasgupta, learned Advocate, appearing on behalf of the Defendant No. 1/appellant argued before us that admittedly the plaintiff did not have any ready cash and it was stipulated in the agreement for sale that the plaintiff would obtain loan from his bank on submission of the documents of title which the defendant would make over to the plaintiff within a month from the date of agreement and the defendants made over the documents to the plaintiff on the very day the agreement was entered into. According to Mr. According to Mr. Dasgupta this shows that there was no laches and/or negligence on the part of the defendants. The defendants made over the documents of title to the plaintiff on that very day. Mr. Dasgupta further submitted the fact that the plaintiff did not have requisite funds at his disposal would also be supported by the fact that he could not file the suit with full court-fees and that he paid the deficit Court fees of Rs. 2250/- (approximately) after obtaining extension of time twice. Mr. Dasgupta also submitted that the learned Trial Court passed the decree on 20. 02. 1981 whereby the suit was decreed and the defendants were directed to execute the deed of conveyance in favour of the plaintiff within three months after getting balance consideration sum of Rs. 61,999/- failing which the plaintiff will be at liberty to have the conveyance registered by way of execution through Court on deposit of the balance consideration money. That in spite of such decree the plaintiff did not deposit the balance consideration money in Court for execution of the conveyance even though there was no order of stay of the operation of the decree and it was only on 18. 12. 1998 i. e. after about 19 years the plaintiff started the execution of the decree without depositing the balance of the consideration money. This clearly shows that the plaintiff did not have necessary funds at any point of time from the date of the agreement till the date of the decree and the plaintiff was not ready to perform his part of the agreement for sale. Mr. Dasgupta submits that it is settled law that in order to obtain a decree for specific performance the plaintiff is required to plead and prove his continuous readiness and willingness to perform his part of the contract from the date of the agreement till the date of the decree. Mr. Dasgupta draws the attention of this Court to the evidence of the plaintiff where the plaintiff has admitted that he has no papers to show that he had deposited the relevant papers in the bank and he has also no papers to show that the documents were subsequently withdrawn by him from the bank. Mr. Mr. Dasgupta draws the attention of this Court to the evidence of the plaintiff where the plaintiff has admitted that he has no papers to show that he had deposited the relevant papers in the bank and he has also no papers to show that the documents were subsequently withdrawn by him from the bank. Mr. Dasgupta further points out that in evidence the plaintiff has stated that whenever any documents are filed in bank they cannot be taken back without any receipt of the bank itself. After drawing our attention to such part of the plaintiffs evidence and relevant material-on-record Mr. Dasgupta submitted that the evidence of the plaintiff makes it clear that the plaintiff did not apply for bank loan even though admittedly he took the necessary documents from the defendants for making such application, that the plaintiff has not proved the alleged valuation report necessary for obtaining the loan, that admittedly the bank did not have the occasion to make any entry since the documents were not filed with the bank and admittedly no such seal or entry was put and/or made by the bank. Mr. Dasgupta in this regard drew our attention to para 7 of the plaint where the plaintiff pleaded that he had applied for staff loan for purchasing the suit property and deposited all papers and documents relating to the suit property in the bank for getting sanction but the plaintiff subsequently withdrew the papers and handed over the same to his Advocate. According to Mr. Dasgupta such allegation in the plaint could not at all be proved in the evidence by the plaintiff and thus the plaintiff failed to prove his case miserably. ( 9 ) MR. Dasgupta next referred to Paragraphs 2 and 5 of the plaint where the plaintiff pleaded that the defendants took a further sum of rs. 1,5007- from the plaintiff for payment of arrear of corporation taxes and granted a receipt in favour of the plaintiff but the defendants did not pay the arrear taxes and the same is still lying outstanding and that the plaintiff on enquiry has come to know that the defendants have not even applied for getting permission of the competent authority and income tax clearance certificate although the plaintiff is through out ready and willing to perform his part of the contract. Mr. Mr. Dasgupta also points out that the allegation about readiness and willingness was incorporated by way of amendment of the plaint subsequently. Mr. Dasgupta draws our attention to the evidence of the plaintiff where the plaintiff has stated that he paid Rs. 1,500/- as arrear corporation taxes but has not produced any document to show that rs. 1,500/- was paid to the defendants and that the defendants granted receipt for the same. It appears the plaintiff further gave evidence that he did not give any instruction to his lawyer at the time of drafting the plaint to the effect that he was present with the defendants when Rs. 1,500/- was paid as arrear corporation taxes. But subsequently he says that he instructed his lawyer at the time of drafting the plaint that he was present with the defendants when the arrear corporation taxes for Rs. 1,500/- were paid. Mr. Dasgupta submitted that the plaintiff produced only two receipts for rs. 30. 52 (Ext. 3) for the period January to March, 1976 and Rs. 19. 64 for the identical period (Ext. 3a) respectively for the owner's and occupier's share. This also shows that the allegation of the plaintiff is not true. ( 10 ) MR. Dasgupta submitted that the plaintiff asked for specific performance of the agreement for sale mentioning that the consideration to be only Rs. 67,000/- and on an untrue allegation that the plaintiff has already paid Rs. 1,500/- to the defendants for payment of the arrear corporation taxes. According to Mr. Dasgupta this is clearly against'the terms of the agreement. ( 11 ) MR. Dasgupta submitted that in the agreement for sale the address of the plaintiff was mentioned to be Sahapur Road and the defendants had accordingly sent the letter of cancellation and for return of documents at the aforesaid address of the plaintiff. Mr. Dasgupta next argued that the defence case was that after the promulgation of the Urban Land (Ceiling and Regulation) Act, 1976 there was a verbal agreement between the parties that documents would be brought by the plaintiff and the plaintiff will do everything necessary for taking permission for sale and for obtaining income tax clearance certificate and that the defendants neither were nor are under any obligation to obtain permission for sale and income tax clearance certificate. According to Mr. Dasgupta such pleading of the defendants has been proved in evidence. Mr. According to Mr. Dasgupta such pleading of the defendants has been proved in evidence. Mr. Dasgupta draws the attention of this Court to the evidence of D. W. 1 i. e. the Defendant No. 1, where the Defendant No. 1 stated in his examination-in-chief that when towards the end of February, 1976 he met the plaintiff, the plaintiff told him that permission from competent authority and income tax clearance certificate were necessary and the defendant No. 1 told the plaintiff that he is ready to sign upon the papers for obtaining the requisite permission etc. as he was ignorant of law and the plaintiff agreed to such proposal but the plaintiff did not give him any papers for signing. Mr. Dasgupta drew the attention of this Court that there has been no cross-examination by the plaintiff in respect of such evidence. According to Mr. Dasgupta this clearly proved the verbal agreement that was agreed upon between the parties. ( 12 ) MR. Dasgupta submitted that the allegation, or may be even the fact, that the plaintiff has obtained such reports does not in any way prove the plaintiffs readiness and willingness to perform his part of the contract, that the case of the plaintiff in Paragraphs 2 and 5 of the plaint was that the plaintiff paid Rs. 1,500/- to the defendants but the defendants did not pay the corporation taxes and the same are still lying outstanding even on the date of the suit but in evidence totally inconsistent and contrary evidence was adduced, that income tax clearance cannot be obtained without the draft conveyance which is to" be prepared by the proposed purchaser and that the permission of the Land Ceiling Authorities also requires the prescribed form to be submitted with the copies of the conveyance and the signature of both the parties and that the evidence clearly proved that the plaintiff was required to take all necessary steps in this regard. Mr. Mr. Dasgupta further submitted that the evidence on record makes it sufficiently clear that the plaintiff never had the requisite funds to purchase the prpperty at any point of time i. e. neither at the time of entering into the agreement nor at the time of filing of the suit, that it was agreed that the plaintiff would obtain loan from the bank which the plaintiff did not get and there is no other evidence on record to show that the plaintiff had requisite funds to purchase the suit property. ( 13 ) MR. Dasgupta referred to the Forms for (1) application for certificate under Section 230a (1) of the Income Tax Act, 1961 and (2) the application under sub-section (2) of Section 27 for permission for transfer of urban property under the Urban Land (Ceiling and Regulation) Act, 1976. Mr. Dasgupta submitted that for the purpose of obtaining such certificates it is necessary that the proposed sale deeds should be prepared and a copy of the documents should be also submitted along-with such applications. According to Mr. Dasgupta unless the plaintiff had made the necessary drafts ready the question of submitting the applications cannot arise. According to Mr. Dasgupta in any event the plaintiff did not approach the defendants for the purpose of signing the necessary documents. ( 14 ) SOME of the decisions cited by Mr. Dasgupta are as follows :-1. 2002 (9) SCC 582 (Pushparani S. Sundaram and Ors. v. Pauline Manomani James (Deceased) and Ors.) for the proposition that the plaintiff must aver and prove that either he has actually performed or that he was ready and willing to perform his essential obligations under the contract and merely filing of the suit for specific performance of the contract and taking the plea that he was ready and willing by themselves are not sufficient to satisfy the requirements of Section 16 (c) of the Specific Relief Act, 1963. 2. 1999 (7) SCC 303 (Ram Kumar Agarwal and Anr. v. Thawar das (Dead) through L. Rs.) for his submission that a person who falsely claims to have paid a sum of money and tries to prove such allegation at the stage of trial cannot be said to have been ever ready and willing to perform his part of the contract. 3. 1995 (5) SCC 115 (N. P. Thirugnanam (Dead) v. Dr. 3. 1995 (5) SCC 115 (N. P. Thirugnanam (Dead) v. Dr. R. Jagan mohan Rao and Ors.) for the proposition that the plaintiff has to plead and prove that he had performed or has always been ready and willing to perform his part of the contract from the date of the execution till the date of the decree. Paragraph 5 of the said reported Supreme court case is respectfully quoted below :-"it is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief act, 1963 (for short "the Act" ). Under Section 20, the Court is not bound to grant the relief just because there was a valid agreement of sale. Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. " 4. 1996 (4) SCC 526 (His Holiness Acharya Swami Ganesh dassji v. Sita Ram Thapar) while submitting that there is a distinction between readiness and willingness to perform the contract by readiness it is meant that the plaintiff must have capacity including financial capacity to pay the purchase price and by willingness it is meant that the plaintiff's conduct must clearly show that he is willing to perform his part of the contract. Mr. Dasgupta submitted that even if a party is ready but he is not willing, then a decree for specific performance of contract cannot be granted in his favour. 5. 32 Calwn 953 (Ardeshir H. Mama v. Flora Sassoon) on the point of continuous readiness and willingness on the part of the plaintiff from the date of the contract to the time of hearing. The following passage at page 967 of the reported decision is respectfully quoted below:-"in a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. " 6. 1997 (3) SCC. 1 (K. S. Vidyanadam and Ors. v. Vairavan) while submitting that the agreement for sale was of the year 1976 and now the price of the suit property being an urban property in the city of calcutta has considerably gone up and that a time limit of three months was fixed in the agreement for sale and such vital facts should be considered by the learned Court while deciding the question of specific performance of the agreement. Paragraph 11 of the said report is respectfully quoted below :-Shri Sivasubramaniam cited the decision of the Madras High court in S. V. Sankaralinga Nadar v. P. T. S. Ratnaswami Nadar holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the Court by law. We cannot be oblivious to the reality-and the reality is constant and continuous rise in the values of urban properties-fuelled by large scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs. 5,000 and that if fhe defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs. 5000 (as against the total consideration of Rs. 60,000) the plaintiff did nothing until he issued the suit notice 2 years afterthe agreement. Indeed, we are inclined to think that the rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties-evolved in times when prices and values were stable and inflation was unknown-requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that pries are rising; hence he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the Court should also bear in mind that wnen the parties prescribe certain time-limit (s) for taking steps by one or the other party, it must have some significance and that the said time-limit (s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties)". 7. 24 CLJ 90 (Manik Chandra Bhowmick v. Abhoy Charan gope ). The following lines from the said reported case are respectfully quoted below : "the principle applicable to cases of this description is well-settled. The plaintiff who seeks specific performance of the contract has to show, first, that he has performed or been ready and willing to perform the terms of the contract on his part to be then performed (Bunsheedhurv. Calcutta Auction Company (1) Ram v. Mullicka (2); Chillis v. Me. Ghee (3) ; and, secondly, that he is ready and willing to do all matters and things on his part thereafter to be done (Walker v. Jeffreys (1); Vishvanath v. Bapu (2 ). A default on his part in either of these respect furnishes a ground upon which-the action may be resisted (General Billposting company v. Atkinson (3 ). ( 15 ) MR. Utpal Bhattacharya, learned Advocate appearing on behalf of the plaintiff/respondent submitted that the obligation to comply with the terms of the agreement is reciprocal and in this case the defendants did not take any step to get the copy of the deed prepared although the defendants knew that for the purpose of selling the suit property, permission is necessary. Mr. Utpal Bhattacharya, learned Advocate appearing on behalf of the plaintiff/respondent submitted that the obligation to comply with the terms of the agreement is reciprocal and in this case the defendants did not take any step to get the copy of the deed prepared although the defendants knew that for the purpose of selling the suit property, permission is necessary. Mr. Bhattacharya submitted that since the Defendant No. 1 stated in his evidence that the property being an ancestral property he did not want to part with the property and there is no other reason for not selling the property to the plaintiff, it cannot be said that he was willing to sell the suit property. Mr. Bhattacharya next submitted that since the Defendant no. 2 stated in his written-statement that although he was willing to execute the sale deed in favour of the plaintiff but since his brother the defendant no. 1 did not agree to complete the transaction the sale deed, could not be executed, it cannot be said that the defendant No 1 was agreeable to complete the transaction. According to Mr. Bhattacharya the first obligation was upon the defendants to prove that he had the intention to sell out the property and there must be readiness and willingness on the part of the vendor. Mr. Bhattacharya submitted that in the instant case though the plaintiff requested the Defendant No. 1 at his residence for the purpose of obtaining permission and clearance the Defendant No. 1 sat tight over the matter. According Mr. Bhattacharya if the plaintiff had no intention to buy the property then he would not have made the alleged payment of taxes, incurred expenditure for valuation report and for searching title. Some of the decisions cited by Mr. Bhattacharya are as follows :- (1) AIR 1994 SC 853 (S. P. Chengalvaraya Naidu (Dead) by l. Rs. v. Jagannath (Dead) by L. Rs. and Ors.) for his submission that one who comes to the Court, must come with clean hands. (2) 2002 (2) SCC 686 (P. Purushottam Reddy and Anr. v. Pratap steels Ltd.) in support of his submission that time is never regarded as the essence of the contract in case of sale of immovable property. (3) 1998 (1) ICC (SC) 858 (Smt. Bismillah Begum (dead) by lrs. (2) 2002 (2) SCC 686 (P. Purushottam Reddy and Anr. v. Pratap steels Ltd.) in support of his submission that time is never regarded as the essence of the contract in case of sale of immovable property. (3) 1998 (1) ICC (SC) 858 (Smt. Bismillah Begum (dead) by lrs. v. Rahmatullah Khan (dead) by Lrs.) in support of his proposition that it is not necessary for the plaintiff to tender the amount or to deposit the consideration amount in Court except that directed by the Court and that time in contracts relating to immovable property is not the essence of the contract. (4) 1997 SCC (2) 200 (Sukhbir Singh and Ors. v. Brij Pal Singh and ors.) for the proposition that it is not necessary that the plaintiff should carry the money with him from the date of the suit till the date of the decree. (5) 2002 (2) ICC 561 (V. Udayakumar and Ors. v. L. Navaneethammal and Ors.) for the proposition that readiness and willingness need not be in specific phraseology and language. (6) AIR 1995 Gauhati 104 (Mustt. Sabira Khatun v. Mustt. Syeda fatema Khatoon) and 1999 (3) ICC Punjab and Haryana 371 ( Raj kumar Malhotra and Ors. v. Smt. Puspa Devi) in support of his submission that the plaintiff need not prove that he actually tendered payment of money to the defendants and that the plaintiff is not required to exhibit or display the money publicly to satisfy the requirement of readiness and willingness on his part to claim specific performance. (7) AIR 1983 SC 753 (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat) for his submission that the discrepancies as pointed out, in the pleadings and evidences of the plaintiff will not be taken into consideration if such discrepancies do not go to the root of the matter and shake the basic version of the witnesses. (8) AIR 1980 SC 193 (S. B. Noronah v. Prem Kumari Khanna)for his submission that the plaint must be read as a whole. ( 16 ) MR. Bhattacharya submitted that the plaintiff did not deposit the money after the decree because the appeal was pending and the records came up to this Court and the plaintiff did not wish to take any risk. Mr. ( 16 ) MR. Bhattacharya submitted that the plaintiff did not deposit the money after the decree because the appeal was pending and the records came up to this Court and the plaintiff did not wish to take any risk. Mr. Bhattacharya also submitted that the Defendant No. 1 made an untrue statement that he did not know the signature of his brother and as such the entire evidence of D. W. 1 should be disbelieved by this Court. ( 17 ) HAVING considered the respective submissions made on behalf of the parties we are of the view that it is now a settled principle of law that the remedy of specific performance is based on equity and said remedy lies in the judicious discretion of the Court. It is also now settled principle of law that the amount of consideration money which the plaintiff has to pay to the defendants must necessarily be proved to be available to the plaintiff and that the plaintiff must prove that he was ready and willing to perform his part of the contract from the date of the execution of the agreement till the date of the decree. The only question in this appeal is whether or not the plaintiff has been able to satisfy this test. In our view there is no necessity, in this case, to decide as to whether or not time was the essence of the contract. Even if time is not the essence of the contract still the test of readiness and willingness, as indicated above, applies. ( 18 ) IT appears from records that in the agreement for sale it was provided that the consideration money in respect of the suit property was rs. 67. 000/-, out of which Rs. 5,001/- was received by the defendants, that the plaintiff was required to complete the sale upon payment of the balance amount of consideration within three months, that the defendants were required to hand over the original documents, papers and plans within one month from the date of the agreement for sale to enable the plaintiff to get a house building loan as an employee of the Central Bank of India and that rs. 1,500/- was required to be paid by the plaintiff towards unpaid Calcutta corporation Taxes in respect of the suit property and that the defendants shall pay the balance unpaid taxes whatever there shall be. 1,500/- was required to be paid by the plaintiff towards unpaid Calcutta corporation Taxes in respect of the suit property and that the defendants shall pay the balance unpaid taxes whatever there shall be. It will appear from records that the original plaint does not contain the averment regarding the alleged readiness and willingness of the plaintiff but such allegation was introduced only by way of amendment of the plaint. Be that as it may, the defendants handed over the necessary documents to the plaintiff on the date of the agreement itself to enable the plaintiff to obtain a loan from the bank. There is no dispute about this fact. From the evidence of the plaintiff it appears that the plaintiff has stated that he was no papers to show that he had deposited the necessary papers in the bank or that documents were subsequently withdrawn by him from the bank. The plaintiff further gave evidence that seal of the bank is affixed upon any of the documents filed in the bank and the date is also mentioned therein and when any document in filed in the bank such document cannot be taken back without any receipt from the bank itself. The plaintiff could not show anything to prove that he had ever submitted the necessary documents in the bank to obtain any loan. The plaintiff has also not proved the alleged valuation report which is necessary for obtaining loan. In Paragraph 7 the plaintiff alleged in his plaint that he applied for loan and deposited all papers and documents relating to the suit property in the bank for getting sanction but has subsequently withdrawn. the papers and has handed overthe same to his Advocate. This pleading in the plaint is totally demolished by the plaintiff's own evidence as referred to above. This clearly shows that the plaintiff had never obtained any sanction even for getting a loan from the bank. So far as the defendants are concerned they have discharged their duty by handing over the documents to the plaintiff to enable the latter to obtain the loan but the plaintiff did not even apply for obtaining the loan. This clearly shows that the plaintiff had never obtained any sanction even for getting a loan from the bank. So far as the defendants are concerned they have discharged their duty by handing over the documents to the plaintiff to enable the latter to obtain the loan but the plaintiff did not even apply for obtaining the loan. This shows that the plaintiff did not have the capacity to pay the consideration money at any material point of time ; even the plaintiff did not have the requisite funds to pay the full Court fees at the time of institution of the suit and he had to get extension of time more than once to pay the deficit Court fees. It will further appear that in spite of the decree of the learned Trial court which was passed on 20. 02. 1981 the plaintiff did not deposit the balance consideration money in Court for execution of the sale deed through court even though there was no order cf stay of operation of the decree. Practically, 19 years after the decree the plaintiff started the execution case without depositing the balance consideration money. ( 19 ) THE Defendant No. 1/appellant in his evidence stated in examination-in-chief that towards the end of February, 1976 he met the plaintiff when the plaintiff told him that permission from competent authority for transfer of property and income tax clearance certificate were necessary and the defendant No. 1 told the plaintiff that he was ready to sign upon papers for obtaining the requisite permission etc. as the defendant No. 1 was ignorant of law and that the plaintiff agreed to such proposal. The defendant No. 1 further stated in his evidence that the plaintiff did not give any papers to the Defendant No. 1 for taking the signature of the Defendant no. 1 for obtaining necessary permission from competent authority and the income tax clearance certificate. It appears that the plaintiff did not cross-examine the Defendant No. 1 in respect of such evidence of the Defendant no. 1. Thus it can be said that there was an agreement between the parties that the plaintiff will produce the necessary papers to the Defendant No. 1 for obtaining his signature in connection with the necessary permission from competent authority and income tax clearance Certificate but the plaintiff ultimately did not produce such papers to the Defendant No. 1. 1. Thus it can be said that there was an agreement between the parties that the plaintiff will produce the necessary papers to the Defendant No. 1 for obtaining his signature in connection with the necessary permission from competent authority and income tax clearance Certificate but the plaintiff ultimately did not produce such papers to the Defendant No. 1. In Paragraph 8 of the written-statement it has also been stated that there was agreement between the parties that necessary papers would be brought by the plaintiff and the plaintiff will do everything necessary for taking permission for sale and for obtaining income tax clearance certificate and that the defendants were under no obligation to obtain the permission for sale and the income tax clearance certificate. The Defendant No. 1 further stated in his written statement that the plaintiff never requested the defendant to sign any application or papers for taking permission for sale and for obtaining the income tax clearance certificate. Thus the reading of the pleadings, evidence and the lack of cross-examination on the part of the plaintiff (as indicated above), clearly shows that the plaintiff was under the obligation to take all necessary steps for obtaining permission from the competent authority and income tax clearance certificate but the plaintiff failed to perform his duty. ( 20 ) WITH regard to the allegation about the payment of arrear corporation taxes the plaintiff alleged in his plaint that the plaintiff paid rs. 1,500/- to the defendant for payment of arrear of corporation taxes for which the defendant granted a receipt in favour of the plaintiff. The plaintiff has further alleged in his plaint that the defendants did not pay the arrear of taxes and the same are still lying outstanding. Now, in evidence the plaintiff has stated in cross-examination that he has not produced any document to show that Rs. 1,500/- was paid by him to the defendants. From the copy of the Exhibits 3' and 3a', as included in the paper book, it appears that corporation tax of Rs. 30. 59 being the owner's share and Rs. 30. 59 being the occupier's share were paid in respect of the period of January to March, 1976. Thus sum of Rs. 61. 18 was paid on account of the corporation tax bill. It further appears that these documents were produced on behalf of the plaintiff. 30. 59 being the owner's share and Rs. 30. 59 being the occupier's share were paid in respect of the period of January to March, 1976. Thus sum of Rs. 61. 18 was paid on account of the corporation tax bill. It further appears that these documents were produced on behalf of the plaintiff. In any event this does not support the story made out by the plaintiff that Rs. 1,500/- was paid by him as arrear corporation taxes. The allegation of the plaintiff that Rs. 1,500/- was paid towards arrear corporation taxes thus remains unproved. The allegation made by the plaintiff in the plaint that Rs. 1. 500/- was paid to the defendants as arrear corporation taxes also remains unproved. Thus from the facts and circumstances of the instant case and from what would appear from records we come to the clear finding that the plaintiff was not ready and willing to perform his part of the contract at any material point of time. Thus, the plaintiff did not have the financial capability, readiness and willngness to perform his part of the contract. The learned Trial Court took irrelevant matters into consideration while coming to his finding on the point of readiness and willingness. The search reports, the corporation tax receipts, the Defendant No. 1's evidence that he is not willing to sell his ancestral property the defendant No. 1's evidence that he himself did not take steps for obtaining permission from competent authority, the Defendant No. 1's evidence that he has no independent knowledge with regard to the plaintiffs prayer for obtaining bank loan and the letters exhibited, do not in any way prove the plaintiff's readiness and willingness to perform his part of the contract. The Defendant no. 1 in his evidence might have stated that he is not willing to sell his ancestral property but such statement was made only after the cancellation of the agreement for sale. The Defendant No. 1 was not expected to take any steps for taking permission from the competent authority and the income tax clearance certificate since it appears from record that there was a verbal agreement that the plaintiff would take the necessary steps. The Defendant no. The Defendant No. 1 was not expected to take any steps for taking permission from the competent authority and the income tax clearance certificate since it appears from record that there was a verbal agreement that the plaintiff would take the necessary steps. The Defendant no. 1 having no independent knowledge with regard to the plaintiff's prayer for bank loan is absolutely irrelevant since it was for the plaintiff to prove that he applied for and took necessary steps for obtaining the bank loan. The letters exhibited and the search reports and corporation tax receipts do not in any way prove that the plaintiff was ready and willing to perform his part of the contract from the date of the agreement till the decree was passed in the suit. It further appears from records that even after the decree was passed the plaintiff did not have the financial capability and/or readiness to have the decree executed. With regard to the letter dated 20. 4. 1976 addressed by the defendants to the plaintiff being Exhibit-'a' it appears that plaintiff's address is given as Sahapur Road. It appears that in the agreement for sale marked Exhibit-'f' Sahapur Road is also mentioned. Therefore, the defendants were under the impression that the plaintiff resides at Sahapur road. In the letter dated 20. 4. 1976 the defendants stated through their lawyer that more than three months have passed and the agreement dated 16. 01. 1976 stood cancelled. In the said letter the defendants also demanded return of the sale deed and the sanctioned plan which were taken by the plaintiff from the defendants. In the letter dated 15. 6. 1976 the defendants through their lawyer wrote a letter to the plaintiff at Sahnagar Road stating that the plaintiff has not discharged his obligation underthe agreement and the plaintiff should return the original deed of the premises along with the municipal sanctioned plan to the defendants. The plaintiff had also written letter dated 10. 6. 1976 through his lawyer to the defendants making an allegation that the defendants took an amount of Rs. 1,500/- from the plaintiff for payment of arrear taxes and the plaintiff has applied for obtaining a loan from the bank by filing all papers and documents with the bank and the matter is pending for sanction but such allegation in the said letter could not at all be proved in evidence. 1,500/- from the plaintiff for payment of arrear taxes and the plaintiff has applied for obtaining a loan from the bank by filing all papers and documents with the bank and the matter is pending for sanction but such allegation in the said letter could not at all be proved in evidence. That the plaintiff through his lawyer wrote a letter dated 23. 6. 1976 to the learned Advocate for the defendants stating that the question of returning the original title deed and the municipal sanctioned plan does not arise and that the question of completion of the transaction within the period of three months and forfeiture of the sum of rs. 3,000/- or any amount does not arise in view of the present legal position of the land. Such letters do not in any way lend support to the plaintiffs allegation that he was ready and wijling to perform his part of the contract. Thus in our view the learned Trial Judge erred in law and took irrelevant and extraneous matters into consideration while decreeing the suit. The learned Trial Judge also erred by discarding and in not relying upon the evidence of the Defendant No. 1 merely because he said at one place in his evidence that he did not know the signature of his brother. Whether the defendant No. 1 knows or does not know the signature of his brother such fact either way cannot prove the alleged readiness and willingness on the part of the plaintiff. Thus, the learned Trial Judge fell into error in not applying the proper tests while deciding the question of readiness and willingness on the part of the plaintiff to perform his part of the agreement. ( 21 ) IN the background of the facts and circumstances of the instant case and the discussions made above we are of the view that the impugned judgment and decree should be set aside. We, thus, set aside the impugned judgment and decree. The plaintiff/respondent is hereby directed to return the original documents of title in respect of the suit premises and the sanctioned municipal plan in respect of the suit premises to the Defendant no. 1/appellant forthwith. In our view the defendants were entitled to forfeit an amount of Rs. 3,000/- out of the amount received by them byway of advance and the balance amount of Rs. 1/appellant forthwith. In our view the defendants were entitled to forfeit an amount of Rs. 3,000/- out of the amount received by them byway of advance and the balance amount of Rs. 20017- should be refuntied by the defendants to the plaintiff in terms of the agreement dated 16. 01. 1976. Accordingly, we direct the Defendant No. 1/appellant to refund a sum of rs. 2001/- to the plaintiff forthwith. The appeal is, thus, allowed. There will be no order as to costs.