Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 578 (AP)

Maddu Bhimarao v. Nellemilli Jakaraiah

2007-06-21

P.S.NARAYANA

body2007
JUDGMENT 1. Facts in brief : The Appeal is filed as against the Judgment and Decree made in O.S.No.211/87 on the file of I Additional Subordinate Judge, Visakhapatnam dated 30-6-1992. The appellant is the unsuccessful plaintiff in the said suit. The suit was filed for the relief of specific performance of the contract of agreement of sale dated 23-11-1996. The learned Judge on the strength of the respective pleadings of the parties, having settled the Issues, recorded the evidence of P.W.1 and D.W.1 and marked Exs.A-1 to A-7 and Exs.B-1 to B-10 and recorded certain reasons and ultimately came to the conclusion that the appellant/plaintiff is not entitled to the relief of specific performance, but directed the respondent/defendant to return Rs.15,000/- to the appellant/plaintiff within one month from the date of decree. Aggrieved by the same, the unsuccessful plaintiff preferred the present Appeal. 2. Contentions of Sri Rajasekhar : Sri Rajasekhar, the learned Counsel representing the appellant had pointed out to the respective pleadings of the parties, the Issues settled and the findings recorded by the learned Judge and would comment that virtually there is no contest at all and when the respondent/defendant was ready and willing to execute the sale deed in stead of putting the parties on certain Issues which in fact do not arise at all in the facts and circumstances, the learned Judge could have proceeded under Order XV Rule 1 of the Code of Civil Procedure. The learned Counsel also had further pointed out to the oral and documentary evidence available on record and would contend that always the appellant/plaintiff had been ready and willing to perform his part of the contract. Despite the same, having recorded certain findings in favour of the appellant/plaintiff, the learned Judge totally erred in negativing the relief. The learned Counsel also pointed out to the contents of Ex.A.1 dated 23-11-1986 and would maintain that in the facts and circumstances of the case, even to record a finding that the appellant/plaintiff approached the Court in undue haste also cannot be sustained. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 3. Contentions of Sri Ramalinga Swamy: Sri Ramalinga Swamy, the learned Counsel representing the respondent/defendant would contend that in a suit of this nature, the conduct of the parties to be taken into consideration. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 3. Contentions of Sri Ramalinga Swamy: Sri Ramalinga Swamy, the learned Counsel representing the respondent/defendant would contend that in a suit of this nature, the conduct of the parties to be taken into consideration. The respondent/defendant was hard pressed for money for the sake of family necessities and in fact he had been prompt in obtaining all the documents i.e., Ex.B.3, Ex.B.4 and Ex.B.5 and had been ready and willing to execute a sale deed but for reasons best known to the appellant/plaintiff the appellant/plaintiff alone was not coming forward. The learned Counsel also pointed out relating to the fluctuating prices and would maintain that at this distant point of time if specific performance to be ordered, the respondent/defendant would be put to great hardship. The learned Counsel also would maintain that in the light of Order XLI Rule 22 of the Code of Civil Procedure, the successful party is entitled to canvass any findings which may be in a way adverse to such party. The learned Counsel also pointed out that when the respondent/defendant expressed his willingness to execute the sale deed immediately, steps could have been taken by the appellant/plaintiff by depositing the amount and obtaining the sale deed and this conduct of postponing on the part of the appellant/plaintiff would go to show that he was not willing to perform his part of the contract. The Counsel also would maintain that the question is not whether the appellant/plaintiff had sufficient funds or not, but the question is whether he was willing to perform his part of the contract inasmuch as the learned Judge came to the conclusion that the appellant/plaintiff was not willing to perform his part of the contract and also taking into consideration the conduct of the parties inasmuch as this is a discretionary relief of specific performance which is being prayed for, the learned Judge recorded convincing reasons and ultimately dismissed the suit for the relief of specific performance and a direction was given to refund the amount and hence the decree granted by the trial Court in the facts and circumstances is just and proper and the findings being well appreciated findings on the strength of the oral and documentary evidence available on record, the said findings not to be disturbed in this Appeal. 4. 4. Heard the Counsel, perused the oral and documentary evidence available on record and also the findings recorded by the learned I Additional Subordinate Judge, Visakhapatnam. 5. Before taking up the further discussion, it may be appropriate to have a look at the respective pleadings of the parties : Averments made in the plaint : The defendant is the owner of an A.C. sheet building situate at Resapuvanipalem of Visakhapatnam within the Municipal Corporation limits in S.No.14, Patta No.107 measuring 222 sq. yards bearing Door No.50-2-93/1, Assessment No.47343. The said property is the self acquired property of the defendant having been purchased by him under a registered sale deed dated 4-4-1984. It was further leaded that the defendant entered into an agreement of sale with the plaintiff on 23-11-1986 agreeing to convey the suit schedule site with A.C. sheet building to the plaintiff by selling the same to the plaintiff at Rs.69,000/- and further agreeing to execute a sale deed within three months from the date of agreement of sale at the cost of the plaintiff and get the sale deed executed and registered. The plaintiff paid a sum of Rs.10,000/- as advance towards the sale transaction on the date of agreement of sale and also paid an advance of Rs.5000/- on 7-12-1986 as per the terms of the agreement. The balance was agreed to be paid by the plaintiff at the time of registration of the sale deed. It was also agreed that the sale deed to be executed by the defendant would be executed by him in favour of either the plaintiff or his nominee. The plaintiff had been demanding the defendant to execute the sale deed in his favour and get it registered as per the terms of the agreement of sale after getting the necessary sanction from the Urban Land Ceiling Authority, Income Tax Clearance and other necessary documents but the defendant failed to execute the sale deed as agreed and had been putting off the same on one pretext or the other. The defendant on 22-2-1987 made an endorsement on the agreement of sale to the effect that he could not execute the same for unavoidable reasons by 22-2-1987 and that he would execute the same before 30-4-1987. The defendant on 22-2-1987 made an endorsement on the agreement of sale to the effect that he could not execute the same for unavoidable reasons by 22-2-1987 and that he would execute the same before 30-4-1987. The plaintiff had been always reading and willing to perform his part of the contract by taking a sale deed and get it registered at his expense and further prepared to pay the balance of the amount as agreed to at the time of registration. The plaintiff got ready with the money necessary for the payment of balance of consideration of Rs.54,000/- as well as the stamp and registration expenses and had been calling upon the defendant to get the necessary sanction and also execute the sale deed as per the terms of the agreement of sale. It was further pleaded that as the defendant had been putting off the execution of the sale deed and also obtaining the necessary permission from the Urban Land Ceiling Authority the plaintiff was obliged to make a final demand by means of a registered lawyer's notice dated 22-4-1997 calling upon the defendant to accept to the terms of the agreement of sale by securing the necessary permission and also executing the sale deed and get it registered and further deliver the property to the plaintiff. The defendant received the notice but had failed to act up to the terms of the agreement of sale by getting the necessary permission and executing the sale deed in favour of the plaintiff at the cost of the plaintiff. The defendant had also failed to reply to the notice of the plaintiff. It was further specifically pleaded that on account of the failure of the defendant to executing a sale deed as per the terms of the agreement of sale, the plaintiff lost interest on the money paid as advance as well as the money made ready by him for the purpose of taking the sale deed as the value of the site in the locality since the agreement of sale had gone up. As such the plaintiff is entitled to receive from the defendant as damages for breach of contract a sum of Rs.15,000/- already paid as advance plus Rs.55,000/- by way of raising prices, totaling Rs.70,000/-. As such the plaintiff is entitled to receive from the defendant as damages for breach of contract a sum of Rs.15,000/- already paid as advance plus Rs.55,000/- by way of raising prices, totaling Rs.70,000/-. Thus the suit had been laid for a decree for specific performance of the contract of sale executed in favour of the plaintiff by the defendant on 23-11-1986 by directing the defendant to execute the sale deed as per the terms of the contract of sale regarding the suit schedule property in favour of the plaintiff and put the plaintiff in possession of the property or alternatively for recovery of damages for breach of contract of agreement of sale from the defendant to a tune of Rs.70,000/-. It was also specifically pleaded that the plaintiff is prepared to deposit balance of sale amount in case the Court were to direct the plaintiff to do so. Averments made in the written statement : The respondent herein as defendant resisted the same with the following averments. It was admitted that the defendant is the owner of the plaint schedule property having purchased the same under a registered sale deed dated 4-4-1984. It was also admitted that the defendant entered into an agreement of sale with the plaintiff on 23-11-1986 whereby he agreed to convey the suit schedule site with A.C. sheet building to the plaintiff for a consideration of Rs.69,000/- and further agreeing to execute sale deed within a period of three months from the date of agreement. It was also further admitted that the plaintiff agreed to pay advance of Rs.15,000/- out of which he paid a sum of Rs.10,000/- on the day of agreement i.e., 23-11- 1986 and paid a sum of Rs.5000/- on 7-12-1986. Though the plaintiff was to pay the entire amount of Rs.15,000/- in lumpsum he requested the defendant to accept the sum in two instalments as he was short of funds. It was further pleaded that the plaintiff agreed that the sale deed would be taken on paying balance sale consideration within three months and that in the meanwhile the defendant should obtain Encumbrance Certificate, Income Tax Clearance certificate and Municipal Corporation certificate. It was further pleaded that the plaintiff agreed that the sale deed would be taken on paying balance sale consideration within three months and that in the meanwhile the defendant should obtain Encumbrance Certificate, Income Tax Clearance certificate and Municipal Corporation certificate. It was further pleaded that it is absolutely false that the plaintiff had been demanding the defendant to execute sale deed in his favour and get it registered as per the terms of the agreement of sale after getting necessary sanction from the Urban Land Ceiling Authority, Income Tax Clearance Certificate and other documents, but the defendant failed to execute the sale deed and put off the execution on one pretext or the other. It was further pleaded that in fact no Urban Land Ceiling certificate is necessary as the defendant's property is a building and not a vacant land. The defendant immediately after the execution of the agreement applied and obtained building certificate from the Municipal Corporation for getting the sale deed registered and also Encumbrance Certificate for 13 years and in so far as the Income Tax Clearance certificate is concerned he was advised by his Auditor that as he purchased the property on 4-4-1984 if he applies for the document within a period of three years he has to pay heavy tax and advised him to apply for the same after expiry of three years from the date of purchase and accordingly the defendant informed the same to the plaintiff and on mutual agreement, the time for execution of the sale deed was extended upto 30-4-1987. Accordingly after expiry of three years period the defendant applied for Income Tax Clearance certificate on 6-4-1987 and it was issued on 7-4-1987 and that is the reason why in the endorsement dated 22-2-1987 it was mentioned that the time was being extended for unavoidable reasons. Accordingly after expiry of three years period the defendant applied for Income Tax Clearance certificate on 6-4-1987 and it was issued on 7-4-1987 and that is the reason why in the endorsement dated 22-2-1987 it was mentioned that the time was being extended for unavoidable reasons. Immediately after obtaining the Income Tax Clearance certificate the defendant informed the plaintiff orally twice that he was ready and called upon him to execute the sale deed and as the plaintiff failed to come forward to take sale deed, he also wrote a registered letter dated 20-4-1987 which was received by the plaintiff on 21-4-1987 and thereafter strangely he got issued legal notice dated 22-4-1987 with false and untenable contentions blaming the defendant for not executing the sale deed and the said notice was received by the defendant on 28-4-1987 as he was out of station from 23rd to 27th having gone to Nouduru in Bhimavaram taluk of West Godavari District as his uncle Y.Yesuratnam fell seriously ill and passed away. On return to Visakhapatnam and on receiving the legal notice immediately on the very next day the defendant got issued reply to the notice expressing his readiness once again to execute the sale deed and called upon the plaintiff not to unnecessarily indulge in issuing notice and made it clear that if he rushes to a Court of law he will be doing so at his risk and responsibility and further making it clear that if he failed to take the sale deed by 30-4-1987 the sale agreement would stand cancelled and the advance would stand forfeited in his favour. However, unnecessarily the plaintiff rushed to Court and filed the suit with false allegations. Therefore the allegations of the plaint that the plaintiff had been always reading and willing to perform his part of the contract by taking sale deed and got it registered at his expenses and further prepared to pay the balance of the amount as agreed to at the time of registration and also that he got ready with the balance sale consideration of Rs.54,000/- as well as stamps and registration expenses and calling upon the defendant to get the necessary sanction and execute the sale deed as per the terms of the agreement are all false and are hereby denied and all the said allegations are made for the purpose of the suit. It was further specifically pleaded that the allegation that the defendant had been putting off the execution of the sale deed and not obtained necessary document from Urban Land Ceiling Authority is absolutely false and untenable since no Urban Land Ceiling permission is necessary for the purpose of executing the sale deed. The allegation that the plaintiff was obliged to issue legal notice is absolutely untenable and the allegation that the defendant failed reply to the notice of the plaintiff is absolutely false and the allegations in the legal notice are also false. Further it was pleaded that the allegations that on account of failure of the defendant to execute the sale deed as per the terms of the agreement of sale the plaintiff lost interest on the money paid as advance as well as money made ready by him for the purpose of taking sale deed as value of the site in the locality since the time of agreement had gone up and as such he is entitled to recover damages for breach of contract in a sum of Rs.15,000/- and Rs.55,000/-, are purely speculative besides being baseless and untenable. It was further pleaded that the plaintiff is not entitled to any relief and the suit is mala fide in nature. Further, the documents which were made ready by the defendant are sufficient for taking the sale deed and the contention of the plaintiff that Urban Land Ceiling permission is necessary for executing the sale deed is not only incorrect but untenable and the said allegations appear to have been made only with a view to avoid forfeiture of advance paid by the plaintiff to the defendant for having committed breach of contract. The plaintiff appears to be adamant to get out of the contract as evidently he is short of funds and therefore he invented the requirement of Urban Land Ceiling permission for the purpose of executing the sale deed which certificate is in fact not necessary. It was further pleaded that in spite of registered letter sent by the defendant, after having received the same the plaintiff got issued legal notice with false allegations and filed the suit unnecessarily with mala fide intention. The cause of action mentioned in the suit also is absolutely incorrect and false. It was further pleaded that in spite of registered letter sent by the defendant, after having received the same the plaintiff got issued legal notice with false allegations and filed the suit unnecessarily with mala fide intention. The cause of action mentioned in the suit also is absolutely incorrect and false. The plaintiff is not entitled to any relief as claimed in the suit either for specific performance of the contract or for damages as claimed and prayed to dismiss the suit with costs. 6. Issues settled by the trial Court : 1. Whether the plaintiff is not ready with money and not willing to take the sale deed as alleged by the defendant ? 2. Whether the defendant is ready with all documents and ready to execute the sale deed ? 3. Whether the plaintiff is entitled for a decree against the defendant as prayed for ? 4. To what relief ? 7. Oral and documentary evidence available on record Witnesses examined on behalf of plaintiff : P.W.1 Maddu Bhimarao Witnesses examined on behalf of the defendant : D.W.1 N.Jakaraiah Exhibits marked on behalf of the plaintiff : Ex.A.1/23-11-1986 Agreement of sale Ex.A.2/22-2-1987 Endorsement of payment Ex.A.3/22-4-1987 Office copy of Lawyer's notice Ex.A.4/-- Postal receipt Ex.A.5/-- Photostat copy of Bank pass book Ex.A.6/-- Photostat copy of Bank pass book Ex.A.7/-- Photostat copy of F.D.R. Exhibits marked on behalf of the defendant : Ex.B.1/22-4-1987 Notice issued by the plaintiff to the defendant Ex.B.2/-- Cover Ex.B.3/22-1-1987 Property certificate Ex.B.4/4-2-1987 Encumbrance certificate Ex.B.5/6-4-1987 Income-Tax Clearance Certificate Ex.B.6/20-4-1987 Office copy of letter Ex.B.7/-- Postal acknowledgement Ex.B.8/20-4-1987 Encumbrance certificate Ex.B.9/29-4-1987 Office copy of notice Ex.B.10/-- Postal acknowledgement 8. Findings recorded by the trial Court in nutshell: The trial Court recorded a positive finding while answering Issue No.1 that the evidence on record no doubt would establish that the plaintiff was having sufficient funds to pay balance sale consideration Ex.A-1 to the defendant at the relevant point of time. The learned Judge while answering Issue No.2 observed that no doubt a comparison of Ex.B.6 signature with the admitted signature of the plaintiff is showing that there is substantial difference between the signature in Ex.B.7 and the admitted signature. But the original Ex.B.6 was received by some people in the address in which the plaintiff was residing at the relevant time on 21-4- 1987. But the original Ex.B.6 was received by some people in the address in which the plaintiff was residing at the relevant time on 21-4- 1987. Whether the plaintiff received it or not, the contents of Ex.B.6 are established and the defendant was ready and willing to perform his part of the contract as agreed upon by him. The trial Court while answering Issue No.3 observed that admittedly the plaintiff paid Rs.15,000/- to the defendant towards advance under Ex.A.1 and he is entitled to receive the said amount but he is not entitled to any interest thereupon or for any amount towards damages since the present litigation is a direct result of the hastiness on the part of the plaintiff in approaching the Court and ignoring the offer made by the defendant to get the sale deed registered in May 1987 itself by paying the balance sale consideration. Thus the suit was dismissed relating to the relief of specific performance but with a direction to the respondent/defendant to return Rs.15000/- to the appellant/plaintiff within one month from the date of decree. 9. In the light of the respective contentions advanced by the contesting parties, the following Points arise for consideration in this Appeal: 1. Whether the trial Court is justified in negativing the relief of specific performance having recorded certain positive findings in the facts and circumstances of the case ? 2. If so to what relief the parties would be entitled to ? 10. Point No.1: The respective pleadings of the parties, the Issues settled, the evidence available on record and the findings recorded by the trial Court already had been specified supra. The oral evidence available on record is that of P.W.1, the plaintiff and D.W.1, the defendant. For the purpose of convenience, the parties hereinafter would be referred to as "plaintiff" and "defendant" only as shown in O.S.No.211/87. P.W.1 deposed in relation to all the facts. P.W.1 deposed that the defendant agreed to sell the property for a sum of Rs.69,000/- for entering into an agreement of sale dated 23-11-1986 and Ex.A.1 is the agreement of sale. The scribe of Ex.A.1 is one A.V.R.Murthy, a licenced document writer and attested by one Sarabandhiraju and Chekkara Appalaswamy. At the outset it may be stated that the execution of Ex.A.1 is not in serious controversy. The scribe of Ex.A.1 is one A.V.R.Murthy, a licenced document writer and attested by one Sarabandhiraju and Chekkara Appalaswamy. At the outset it may be stated that the execution of Ex.A.1 is not in serious controversy. At the time of execution of the agreement of sale P.W.1 paid Rs.10,000/- towards sale consideration and subsequently on 7-12-1986 he paid another sum of Rs.5000/- as per the terms of Ex.A.1. It is also deposed that the defendant has to execute the sale deed within three months from the date of Ex.A.1 and the balance of sale consideration to be paid before the Sub- Registrar. The time stipulated under Ex.A.1 expires by 22-2-1987. Therefore the defendant extended time after execution of the sale deed under Ex.A.2 endorsement dated 30-4-1987 as he could not secure Income Tax Clearance certificate and necessary sanction from Urban Land Ceiling Authority. P.W.1 also deposed that he was always reading and willing to perform his part of the contract by taking a sale deed and get it registered at his expense and he was prepared to pay the balance of sale consideration and also he was ready with the amount necessary for the registration, but however, the defendant failed to cooperate with him in relation to the execution of the sale deed and thus P.W.1 also deposed that he issued a notice finally on 22-4-1987 calling upon the defendant to execute a sale deed as per the terms of Ex.A.1 agreement after receiving the balance sale consideration. Ex.A.3 is the office copy of notice and Ex.A.4 is the postal receipt. In such circumstances, the plaintiff/P.W.1 was left with no other option except to file the suit for specific performance. This witness also deposed in relation to Ex.A.5 and Ex.A.6, the Photostat copies of the respective pass books and also the fixed deposit receipt for Rs.72,000/- in Hindustan Shipyard Co-operative Limited, Visakhapatnam. Ex.A.7 is the Photostat copy of the F.D.R. This witness was cross-examined and this witness further explained relating to all the factual details. 11. As against this evidence, the evidence of D.W.1 is available who had deposed that he purchased the property on 4-4-1984 under a registered sale deed and he purchased the same with A.C.C. sheet roof building and he agreed to sell the plaint schedule property to the plaintiff and executed an agreement of sale Ex.A.1. 11. As against this evidence, the evidence of D.W.1 is available who had deposed that he purchased the property on 4-4-1984 under a registered sale deed and he purchased the same with A.C.C. sheet roof building and he agreed to sell the plaint schedule property to the plaintiff and executed an agreement of sale Ex.A.1. This witness also deposed that because of his necessity he agreed to sell the property to the plaintiff and on the date of Ex.A.1 agreement the plaintiff paid Rs.10,000/-. This witness also further deposed that subsequently on 7-12-1987 the plaintiff paid another sum of Rs.5000/- and the plaintiff agreed to pay the balance of sale consideration within three months from the date of Ex.A.1 agreement of sale and it was stipulated in the agreement if the plaintiff failed to pay the balance of sale consideration and obtain sale deed in time, D.W.1 is entitled to forfeit Rs.10,000/- advance paid at the time of Ex.A.1. This witness also deposed that time was fixed because the value of the property was increasing in the locality day to day. D.W.1 also deposed about the agreement to produce Income Tax Clearance certificate and further deposed that he had obtained Property Certificate from the Municipal Corporation, Visakhapatnam and Encumbrance Certificate from the Sub-Registrar's Office. Ex.B.3 is the Property Certificate and Ex.B.4 is the Encumbrance Certificate. He had applied to the Income Tax Officer for Income Tax Clearance certificate. The Income Tax officials informed him if he applied for Income Tax Clearance certificate for the site which he purchased within three years, he has to pay huge amount as tax and if it exceeds three years he need not pay any tax. Therefore the Income Tax Authorities advised him to apply for Clearance Certificate after three years after he purchased the property for which he entered into the agreement of sale with the plaintiff. D.W.1 informed the same to the plaintiff and got an endorsement written on the reverse of Ex.A.1 extending time for registration under Ex.A.2 and the plaintiff agreed for the same. Subsequently on 6-4-1987 he obtained Income Tax Clearance Certificate, Ex.B.5, and then informed the plaintiff that he obtained all the necessary documents and requested him to obtain a sale deed after paying the balance of sale consideration. D.W.1 further deposed that he informed twice orally but t plaintiff was not willing to take the sale deed. Subsequently on 6-4-1987 he obtained Income Tax Clearance Certificate, Ex.B.5, and then informed the plaintiff that he obtained all the necessary documents and requested him to obtain a sale deed after paying the balance of sale consideration. D.W.1 further deposed that he informed twice orally but t plaintiff was not willing to take the sale deed. D.W.1 also deposed about addressing the letter dated 20-4-1987 by registered post and acknowledgement due. The office copy of the same was marked as Ex.B.6. The plaintiff received the said letter under Ex.B.7 postal acknowledgement. The signature on Ex.B.7 is that of the plaintiff. Again the defendant/D.W.1 obtained Encumbrance Certificate after20-4-1987 marked as Ex.B.8. The cover containing Ex.B.1 notice was marked as Ex.B.2. D.W.1 further deposed that instead of obtaining sale deed the plaintiff/P.W.1 got issued a notice dated 22-4-1987 calling upon him to execute a sale deed by receiving the balance of sale consideration and also informed through the said notice that Urban Land Clearance Certificate also is to be obtained to get the sale deed. D.W.1 sent a reply expressing his willingness to execute the sale deed which was marked as Ex.B.9. P.W.1 received the same under Ex.B-10 postal acknowledgement. It was also further deposed that in the Vacation Court, P.W.1 obtained interim injunction restraining him from alienating, but D.W.1 never tried to sell the property to anybody. This witness also further deposed about the other factual details. The defendant/D.W.1 was cross-examined at length. Certain suggestions put to him had been denied. 12. As can be seen from the respective stands taken by the parties, the agreement of sale Ex.A.1 is not in serious controversy. It is also not in serious controversy that the plaintiff had sufficient money, but however the stand taken is that he was not willing to perform his part of the contract and hence the relief was negatived. Relating to receiving of Ex.B.6 and Ex.B.7 there is some controversy and certain findings had been recorded in relation thereto. Be that as it may, the main ground for refusing the relief of specific performance, as can be seen from certain of the findings recorded by the trial Court is that the plaintiff approached the Court without waiting for the completion of the date 30-4-1987, the last date fixed for the execution of the sale deed. Be that as it may, the main ground for refusing the relief of specific performance, as can be seen from certain of the findings recorded by the trial Court is that the plaintiff approached the Court without waiting for the completion of the date 30-4-1987, the last date fixed for the execution of the sale deed. In the light of the specific stand taken by the plaintiff and the evidence adduced by the plaintiff as P.W.1, this Court is of the considered opinion, especially in the light of what had been deposed by D.W.1 relating to the obtaining of Income Tax Clearance Certificate and the problems relating thereto, the reasoning adopted by the trial Court cannot be said to be sustainable in the facts and circumstances of the case. It appears, subsequent to the filing of the suit, the defendant expressed his willingness and readiness to perform his part of the contract by executing a sale deed in favour of the plaintiff in the counter filed by him in I.A.No.48/87 if the plaintiff comes forward to pay the balance of sale consideration within 20 days i.e., on or before 31-5-1987. Certain findings had been recorded in relation thereto also. Reliance was placed on the decision of a Division Bench of this Court in Desi Kedari Vs. Huzurabad Co-operative Marketing Society Limited1 wherein at paras 11 to 13 it was observed : "It was next contended by Sri Narayanarao that the judgment of the trial Court is not in conformity with Order 20 Rule 6 CPC. It is to be noted that the judgment was pronounced by the learned Judge under Order 15 Rule 1 CPC at the first hearing of the suit, as he was convinced that the parties were not at issue on any question of law or of fact. The Court was competent to pronounce at once the judgment. It was therefore not necessary to conform to the procedure laid down under Order 20. When a judgment is pronounced under Or.15 Rule 1 CPC there was no necessity to conform to the procedure laid down under Order 20 CPC. The Court was competent to pronounce at once the judgment. It was therefore not necessary to conform to the procedure laid down under Order 20. When a judgment is pronounced under Or.15 Rule 1 CPC there was no necessity to conform to the procedure laid down under Order 20 CPC. We are unable to accept the contention of the learned Counsel based on Swaran Lata vs. Harendra Kumar ( AIR 1969 S.C. 1167 ) in which the pleadings of the parties raised questions of fact and law and the suit was fully tried on questions of law and facts which arose out of the issues. It was further contended by the learned Counsel for the respondents that even if the decree of the trial Court was a consent decree, the consent was not given by the authorized person and the appeal was maintainable under Section 96 CPC and that there was no bar under sub-section (3). In support of the said proposition, the learned Counsel relied on Sohan Lal Vs. Union of India ( AIR 1991 S.C. 955 ). The said decision is not applicable to the facts of the case, as the decree in that case was not a consent decree as in the case on hand. It is to be noticed that defendant in a suit has to make specific denials of the allegations contained in the plaint, if he does not admit the truth of the allegations under Order 8 Rule 3 CPC. The defendant must raise by his pleadings all matters which show that the suit is not maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, under Rule 2 of Order 8. In the present case, the plaintiff did not take any other plea except to state that the sale deed will be executed on receipt of orders from the Registrar. None of the allegations contained in the plaint were denied and on the other hand, they were all specifically admitted. In the present case, the plaintiff did not take any other plea except to state that the sale deed will be executed on receipt of orders from the Registrar. None of the allegations contained in the plaint were denied and on the other hand, they were all specifically admitted. Under such circumstances, it was open to the Court to proceed under Rule 1 of Order 10 and on the admission of facts, either from the party or his Counsel and to proceed further in the matter; and issues have to be framed under Order 14 Rule 1 CPC only when material proposition of fact or law is affirmed by one party and denied by the other. When there was no such denial, the Court was competent to pronounce judgment at once under Rule 1 of Order 15 CPC. As can be seen from the respective pleadings of the parties, it cannot be said that absolutely there is no contest at all. May be, that was the reason why the Issues were settled and the learned Judge further proceeded with the trial. The learned Counsel also placed strong reliance on P.D'Souza v. Shondrilo Naidu 2 wherein the Apex Court at paras 40 and 41 observed : "The third contention of the learned Counsel to the effect that this Court should not exercise its discretionary jurisdiction in view of hardship which would be faced by the defendant is stated to be rejected. Such a plea was not raised before the High Court. It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that non-performance of the agreement would not cause any hardship to the plaintiff. The defendant was a landlord of the plaintiff. He had accepted part payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August 1981 i.e., just two months prior to the institution of the suit, he had accepted Rs.20,00/- from the plaintiff. It is, therefore, too late for the Appellant now to suggest that having regard to the escalation in price, the Respondent should be denied the benefit of the decree passed in his favour. Even in August 1981 i.e., just two months prior to the institution of the suit, he had accepted Rs.20,00/- from the plaintiff. It is, therefore, too late for the Appellant now to suggest that having regard to the escalation in price, the Respondent should be denied the benefit of the decree passed in his favour. Explanation 1 appended to Section 20 clearly stipulates that mere inadequacy of consideration, or the mere fact that the contract is erroneous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of Section 20." Likewise, in Aniglase Yohannan Vs. Ramalatha 3 the Apex Court observed at paras 9, 11, 12 and 13 as hereunder : "The requirements to be fulfilled for bringing in compliance of the Section 16 (c) of the Act have been delineated by this court in several judgments. Before dealing with the various judgments it is necessary to set out the factual position. The agreement for sale was executed on 15.2.1978 and the period during which the sale was to be completed was indicated to be six months. Undisputedly, immediately after the expiry of the six months period lawyer's notice was given calling upon the present appellant to execute the sale deed. It is also averred in the plaint that the plaintiff met the defendant several times and requested him to execute the sale deed. On finding inaction in his part, the suit was filed in September, 1978. This factual position has been highlighted in the plaint itself. Learned single Judge after noticing the factual position as reflected in the averments in the plaint came to hold that the plaint contains essential facts which lead to inference to plaintiff's readiness and willingness. Para 3 of the plaint indicates that the plaintiff was always ready to get the sale deed prepared after paying necessary consideration. In para 4 of the plaint reference has been made to the lawyer's notice calling upon the defendant to execute the sale deed. In the said paragraph it has also been described as to how after the lawyer's notice was issued plaintiff met the defendant. In para 5 it is averred that defendant is bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defendant. In the said paragraph it has also been described as to how after the lawyer's notice was issued plaintiff met the defendant. In para 5 it is averred that defendant is bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defendant. It is also not in dispute that the balance amount of the agreed consideration was deposited in court simultaneously to the filing of the suit. While examining the requirement of Section 16 (c) this Court in Syed Dastagir v. T. R. Gopalakrishna Setty ( 1999(6) SCC 337 ) noted as follows: "So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16 (c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded." Again in Motilal Jain v. Ramdasi Devi (Smt.) and others ( 2000(6) SCC 420 ) it was noted as follows: "The other contention which found favour with the High Court, is that plaint averments do not show that the plaintiff was ready and willing to perform his part of the contract and at any rate there is no evidence on record to prove it. Mr. Choudhary developed that contention placing reliance on the decision in Varghese case (1969) 2 SCC 539 ). In that case, the plaintiff pleaded an oral contract for sale of the suit property. The defendant denied the alleged oral agreement and pleaded a different agreement in regard to which the plaintiff neither amended his plaint nor filed subsequent pleading and it was in that context that this Court pointed out that the pleading in specific performance should conform to Forms 47 and 48 of the First schedule of the Code of Civil Procedure. That view was followed in Abdul Khader case ( 1989(4) SCC 313 : ( AIR 1990 S.C. 682 )." However, a different note was struck by this court in Chandiok case ( 1970 (3) SCC 140 : AIR 1971 SC 1238 ). In that case 'A' agreed to purchase from 'R' a leasehold plot. That view was followed in Abdul Khader case ( 1989(4) SCC 313 : ( AIR 1990 S.C. 682 )." However, a different note was struck by this court in Chandiok case ( 1970 (3) SCC 140 : AIR 1971 SC 1238 ). In that case 'A' agreed to purchase from 'R' a leasehold plot. 'R' was not having lease of the land in his favour from the Government nor was he in possession of the same. 'R', however, received earnest money pursuant to the agreement for sale which provided that the balance of consideration would be paid within a month at the time of the execution of the registered sale deed. Under the agreement 'R' was under obligation to obtain permission and sanction from the Government before the transfer of leasehold plot. 'R' did not take any steps to apply for the sanction from the Government. 'A' filed the suit for specific performance of the contract for sale. One of the contentions of 'R' was that 'A' was not ready and willing to perform his part of the contract. This Court observed that readiness and willingness could not be treated as a straitjacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. It was held that in the absence of any material to show that 'A' at any stage was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained, 'A' was entitled to a decree for specific performance of contract. That decision was relied upon by a three-Judge bench of this Court in Syed Dastagir case ( 1999 (6) SCC 337 ) wherein it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed : "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'readiness and willingness has to be in spirit and substance and not in letter and form." It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale. " ..... The basic principle behind Section 16(c) r/w. 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. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been reading and willing to perform his part of the contract. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been reading and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and others ( AIR 1994 S.C. 105 ) that the plaintiff had substantiated his plea. When the factual background is considered in the light of the principles set out above, the inevitable conclusion is that the judgments of the learned single Judge and the Full Bench do not suffer from any infirmity to warrant interference." 13. Even if the conduct of both P.W.1 and D.W.1 to be carefully appreciated in the light of the evidence of D.W.1 and also Exs.B-3, B-4, B-5 and B-8 and further in the light of the evidence of P.W.1 and Exs.A-5, A-6 and A-7 and also the recitals of Ex.A-1 and the notices between the parties, this Court is of the considered opinion that the trial Court having recorded certain positive findings in favour of the appellant/plaintiff is not justified in refusing the relief of specific performance, that too, on the ground that even before the date fixed, in undue haste, the appellant/plaintiff approached the Court. In the light of the clear evidence of P.W.1 and also certain admissions made by D.W.1 as well, it may be for the reason that for some time the execution of the registered sale deed was postponed since a request was made by D.W.1 himself and subsequent thereto it appears during the Vacation Court, apprehending some alienation which may be made, the suit had been instituted and a proper application in relation there to appears to have been moved. Hence, viewed from any angle, this Court is thoroughly satisfied that though the relief of specific performance is a discretionary relief, such discretion to be exercised in a judicious manner. The trial Court had not appreciated the evidence available on record in proper perspective and recorded erroneous findings and totally erred in negativing the relief of specific performance and in just directing the refund of the amount. In relation to escalation of prices, certain submissions were made and it is stated that no specific plea in this regard had been taken. In relation to escalation of prices, certain submissions were made and it is stated that no specific plea in this regard had been taken. Inasmuch as it is stated that the amount already had been deposited, this Court need not express any further opinion relating to the said aspect and it is needless to say that the appellant/plaintiff is bound to succeed. 14. Point No.2: In the light of the findings recorded above, the Judgment and Decree of the trial Court are hereby set aside. The appellant/plaintiff is entitled to the relief of specific performance as prayed for. The Appeal is accordingly allowed. However, taking the conduct of both the parties into consideration, the parties to the litigation to bear their own costs.