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2007 DIGILAW 1351 (MAD)

Somu Asari & Others v. R. Varadarajan

2007-04-16

P.JYOTHIMANI

body2007
Judgment :- The defendant in the Trial Court is the appellant. Pending the First Appeal the appellant died and his legal representatives were brought on record as appellants 2 to 6. The plaintiff who is the respondent herein has filed the suit for specific performance of the agreement dated 06.09.1986 for a direction against the sole defendant to execute month since it happened to be the auspicious month. I do not think that even assuming that the defendant has not accepted to extend till month for payment of the balance sale consideration and execution of sale deed, asking for an auspicious day can be termed as any blemish on the part of the plaintiff who is seeking an equitable remedy of specific performance for purchase of a property which is certainly a significant event in the material human life of any person. 14. On the other hand, as it is rightly pointed out by the learned Trial Judge, the conduct of the defendant in setting up a false plea as if he was affected monetarily by non performance of plaintiff under Ex.A.1 was found to be false on material fact throwing certainly a blemish on the conduct of the defendant, who is also equally expected to act in utmost good faith, since the concept of equity is applicable to both the parties. While dealing with the readiness and willingness and blemishness on the parties conduct the Supreme Court in Aniglase Yohannan Vs. Ramlatha and others reported in 2005(7) SCC 534 has held in the following words: "11. Lord Campbell in Cort Vs. Ambergate, Nottingham and Boston and Eastern Junction Rly. Co. observed that in common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it, had it not been renounced by the defendant. 12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 13. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost an identical fact situation it was held by this Court in Surya Narain Upadhyaya Vs. Ram Roop Pandey that the plaintiff had substantiated his plea." 15. Applying the said dictum to the facts and circumstances of this case, I am of the considered view that the time is not the essence of contract under Ex.A.1 and the plaintiff has always been ready and willing to perform his part of obligation as correctly found by the learned Trial Judge with proper reason and appreciation of evidence and therefore, there is nothing to be interfered with the judgement and decree of the Court below. With the result judgement and decree of the Trial Court is confirmed and the first appeal stands dismissed with cost.