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2008 DIGILAW 364 (CHH)

JAGDISH PRASAD BANSAL. v. MST. GURUWARI BAI

2008-12-16

D.R.DESHMUKH

body2008
JUDGMENT 1. Appellant/plaintiff has preferred this appeal against the judgment and decree dated 31-7-1999 passed by the Additional District Judge, Sakti (henceforth 'the trial Court') in Civil Suit No.10-A/98, whereby while refusing to grant a decree for specific performance of contract on the ground that the appellant/plaintiff was not always ready and willing to perform his part of the contract, refund of the advance ofRs.20,000/- was ordered. 2. It is not disputed that the appellant/plaintiff had paid Rs.20,000/- on 20-6-1997 to the respondent/defendant. It is also not disputed that the document EX.P-l purporting to be an agreement to sell the land Khasra No.1298/10 area 0.03 acre and the house situated thereon in Ward No. 12, Sakti (henceforth 'the suit property') to the appellant/plaintiff for a consideration of Rs.60,000/- was executed by the respondent/defendant and bears her signature. Receipt of Rs.20,000/- was endorsed by the respondent/defendant on EX.P-l. Receipt of notices EX.P-2 dated 25-9-1997 and EX.P-5 dated 6-12-1997 by the respondent/defendant is also not disputed. 3. The appellant/plaintiff had averred that the defendant, who was in dire need of money for the marriage of her daughter had, on 19-12-1995 agreed to sell the suit property to him for a consideration of Rs.60,000/- and had received Rs.20,000/- as earnest money in the presence of witnesses. The expenses of registry were to be borne equally by the parties and the remaining consideration of Rs.40,000/- was to be paid on 20-6-1997. The respondent/defendant neither paid the remaining consideration nor executed the sale-deed in his favour despite repeated requests and notices EX.P-2 and EX.P-5. The plaintiff pleaded that he was always ready and willing to perform his part of the contract. On these premises, a suit for specific performance of the contract was filed. In the alternative, it was prayed that if the Court was not inclined to grant a decree for specific performance of contract, refund of the earnest money paid by the appellant/plaintiff to the respondent/defendant with interest of 12% per annum from the date of decree till realisation be ordered. 4. The respondent/defendant pleaded that the appellant/plaintiff was a money lender and taking advantage of the adverse circumstances befalling her family, assured to give loan of Rs.20,000/- to her on condition that she would execute a document as desired by him. 4. The respondent/defendant pleaded that the appellant/plaintiff was a money lender and taking advantage of the adverse circumstances befalling her family, assured to give loan of Rs.20,000/- to her on condition that she would execute a document as desired by him. Compelled by circumstances the respondent/defendant had to execute the document EX.P-1 as desired by the plaintiff on receiving a loan of Rs.20,000/-. It was also pleaded that a part of the loan, i.e., Rs.15,000/- was repaid by the respondent/defendant to the appellant/ plaintiff in 15 installments of Rs. 1,000/- per month and Rs.5,000/- remained to be paid. It was also pleaded that the value of the suit property was Rs.2,00,000/on the date of agreement. 5. The appellant/plaintiff examined himself and Pawan Kumar Sharma, P.W.-2 and Ramcharan Mehar, P.W.-3 the attesting witnesses of Ex.P-1 and Jagdish Prasad Bansal, P.W.-1 the scribe of EX.P-l. The respondent, besides examining herself, examined one Maniram as D.W.-2. 6. The trial Court held that repayment of Rs. 15,000/- by the respondent/ defendant to the appellant/plaintiff in 15 equal installments of Rs. 1,000/- was not proved. It held that the respondent/defendant had executed Ex.P-1 and had received Rs.20,000/- from the appellant/plaintiff. It refused to grant a decree for specific performance of contract on the ground that the appellant/plaintiff had failed to prove that he was always ready and willing to perform his part of the contract. Consequently, while refusing to grant a decree for specific performance of contract, refund of Rs.20,000/- from the respondent/defendant to the appellant/ plaintiff along with annual interest at the rate of 12% was ordered. 7. Arguments of Shri Sanjay S. Agrawal, learned counsel for the appellant/ plaintiff and Shri Sanjay K. Agrawal, learned counsel for the respondent/defendant were heard at length. Record is perused. 8. Admittedly. the respondent/defendant had executed a document Ex.P1 purporting to be an agreement to sell the suit property for a consideration of Rs.60.000/- and had endorsed thereon that she had received Rs.20,000/- as advance. Receipt of Rs.20.000/- by the respondent/defendant from the appellant/ plaintiff on 19-12-1995 is not in dispute. Heavy burden, therefore, lay on the respondent/defendant to prove that she had repaid Rs. 15,000/- to the appellant/ plaintiff in 15 equal installments of Rs.1,000/- as part of the loan. However, no reliable evidence has been led by the respondent/defendant to prove the said fact. Heavy burden, therefore, lay on the respondent/defendant to prove that she had repaid Rs. 15,000/- to the appellant/ plaintiff in 15 equal installments of Rs.1,000/- as part of the loan. However, no reliable evidence has been led by the respondent/defendant to prove the said fact. The learned trial Court has rightly appreciated the evidence and recorded a finding that the respondent/defendant had failed to prove repayment of Rs. 15,000/- to the appellant/plaintiff It is also pertinent to note that despite a decree for refund of Rs.20,000/- along with interest at the rate of 12% per annum having been passed against the respondent/defendant, no appeal was preferred by her. 9. The only question that requires determination in this appeal is whether the trial Court was justified in refusing to grant a decree for specific performance of contract on the ground that the appellant/plaintiff was not always ready and willing to perform his part of the contract. 10. Clause (c) of Section 16 of the Specific Relief Act provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. No specific phraseology or language is required to take such a plea. The plaintiff must aver and prove that he has performed or has al ways 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. A perusal of the plaint shows that the plaintiff had averred readiness and willingpess to perform his part of the contract which was not denied by the respondent/defendant in the written statement. 11. Execution of EX.P-1 , i.e.. the agreement to sell by the respondent/ defendant is not only admitted but also proved by the testimony of the appellant/plaintiff and the two attesting witnesses Pawan Kumar Sharma, P.W.-2 and Ramcharan Mehar, P.W.-3. In the agreement Ex.P-l, it has been c1earlymentioned that the sale-deed of the suit property was to be executed on 20-6-1997. It is also not disputed that the appellant/plaintiff had served registered notices EX.P-2 dated 25-9-1997 and Ex. P-5 dated 6-12-1997 on the respondent/defendant to which no reply was sent. The suit was instituted on 3-7-1998. In the agreement Ex.P-l, it has been c1earlymentioned that the sale-deed of the suit property was to be executed on 20-6-1997. It is also not disputed that the appellant/plaintiff had served registered notices EX.P-2 dated 25-9-1997 and Ex. P-5 dated 6-12-1997 on the respondent/defendant to which no reply was sent. The suit was instituted on 3-7-1998. The plaintiff had averred in the plaint that he is and was always ready and willing to perform his part of the contract. In paragraph 3 of his testimony also, he deposed this fact in so many words. The appellant/plaintiff had further stated on oath that he had repeatedly requested the respondent/defendant to execute a sale-deed of the suit property in his favour after receiving the remaining consideration which he was always ready and willing to pay. It is also pertinent to note that the respondent/defendant did not depose that the suit property was valued at Rs.2,00,000/- on the date of agreement. Therefore, no inference can be drawn in favour of the respondent/defendant on that count. I am, therefore, of the considered opinion that the appellant/plaintiff had established the requirement of law for proving readiness and willingness to perform his part of the contract. Thus. there is ample material on record to show that the appellant/plaintiff was at all times ready and willing to perform his part of the contract. The trial Court was thus not justified in refusing to grant specific performance of the contract on the ground that the appellant/plaintiff was not ready and willing to perform his part of the contract. The appellant/plaintiff is entitled to a decree for specific performance of the contract. 12. In the result, the appeal is allowed. The impugned judgment and decree dated 31-7-1999passed by the Additional District Judge, Sakti in Civil Suit No.10-A/98 is set aside. The respondent/defendant shall execute a registered sale-deed of the suit property in favour of the appellant/plaintiff after receiving the remaining consideration of Rs.40,000/- within a period of three months from today, failing which, the appellant/plaintiff shall, after depositing the remaining consideration, i.e., Rs.40,000/-, be entitled to get a sale-deed of the suit property executed in his favour through Court. Parties shall bear their own costs. 13. A decree be drawn accordingly. Appeal Allowed.