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2008 DIGILAW 615 (KAR)

G. S. CIDKKAMADAIAH v. T. VENKATESH

2008-10-21

V.JAGANNATHAN

body2008
JUDGMENT This second appeal is by the defendant before the Trial Court and he is aggrieved by the lower Appellate Court allowing the appeal preferred by the plaintiff against the dismissal of the plaintiffs suit for specific performance. 2. The facts which are not in dispute briefly stated are that the respondent/plaintiff entered into an agreement with the appellant herein on 21-12-1992 by which the appellant had agreed to sell his property bearing Sy. No. 469/2B measuring 2 guntas for Rs. 50,000/- and out of which appellant received Rs. 10,000/- as advance and agreed to execute the regular sale deed by receiving the balance sale consideration of Rs. 40,000/- at the time of registration. No time was stipulated under the sale agreement is also an undisputed fact. It is the plaintiffs case that he was ready and willing to perform his part of the contract and in this regard he approached the defendant several times and requested him to execute the sale deed by receiving the balance amount of Rs. 40,000/-. The defendant went on postponing the execution of the sale deed, and the plaintiff therefore issued a legal notice to the appellant herein and as it had no effect, the plaintiff issued another legal notice and thereafter on the failure on the part of the appellant to respond to the legal notice in a positive way, the suit was filed for the relief of specific performance. 3. Though the suit was filed on 21-12-1995 for the aforesaid relief, the plaintiff later filed an application as per I.A. No. 4 on 11-3-1996 for amendment of the relief of specific performance and claimed refund of only amount. The said amendment was allowed and later on 3-12-1996 the plaintiff filed another application I.A. No. 6 seeking further amendment by striking off the prayer for recovery of the advance amount and to take the plea of recovery of amount as alternative plea along with the prayer for specific performance. This I.A. was also allowed without notice to the respondent/defendant. 4. The defendant/appellant herein on his part while admitting the agreement of sale dated 21-12-1992 and receipt of advance amount of Rs. This I.A. was also allowed without notice to the respondent/defendant. 4. The defendant/appellant herein on his part while admitting the agreement of sale dated 21-12-1992 and receipt of advance amount of Rs. 10,000/- took up the stand that the plaintiff failed to pay the balance consideration, but on the other hand plaintiff approached the defendant on 29-4-1993 and another agreement was also entered into stipulating the period for completion of the transaction within the month of May 1993. But the plaintiff committed default and the agreement came to an end and the advance amount paid had thus been forfeited by the plaintiff. It is the specific case of the defendant that the plaintiff was not ready and willing to perform his part of the contract and at no point of time the plaintiff expressed his readiness and willingness to perform his part of the contract. Therefore, on these grounds and also the further ground namely the plaintiff himself expressing his intention doing away with the relief of specific performance, but instead converting the suit into one of recovery of money, the question of granting specific performance in favour of plaintiff did not arise. The suit of the plaintiff was also barred by limitation was another ground taken in the written statement by the defendant. 5. Based on the said pleadings of the parties, the Trial Court framed three issues and one additional issue as could be seen from the paper book pages 67 and 68 and after appreciating the evidence let in by the parties, the Trial Court held that the plaintiff had failed to prove his readiness and willingness to perform his part of the contract and therefore suit of the plaintiff insofar as the relief of specific performance is concerned, was dismissed but with regard to recovery of the advance amount of Rs. 10,000/-, the said prayer was granted. 6. Aggrieved by the dismissal of the suit insofar as the specific performance of relief is concerned, the plaintiff moved the lower Appellate Court and succeeded in his suit in its entirety and the lower Appellate Court directed the appellant herein to execute the sale deed in favour of the plaintiff and the plaintiff was directed to deposit the balance amount within 15 days. 7. The defendant aggrieved by the aforesaid judgment of the lower Appellate Court, has come up in this second appeal. 8. 7. The defendant aggrieved by the aforesaid judgment of the lower Appellate Court, has come up in this second appeal. 8. This Court while admitting the appeal, had framed the following substantial question of law for consideration: "Whether the lower Appellate Court was justified in granting the decree for specific performance in the light of the admitted material on record that the plaintiff gave up the relief of specific performance being unable to pay the Court fee and said prayer was included without notice to the defendant?" 9. Learned Counsel Sri P.S. Manjunath for the appellant, by referring to the material on record and the conduct of the plaintiff in particular, submitted that the plaintiff had failed to prove his readiness and willingness to perform his part of the contract and this is evident from the number of circumstances which were taken note of by the Trial Court and therefore the lower Appellate Court could not have disturbed the said finding of the Trial Court and the view taken by the Trial Court that the plaintiff had failed to establish his readiness and willingness to perform his part of the contract is perfectly based on the entire evidence on record as well as the circumstances of this particular case and as such, the lower Appellate Court could not have granted the relief of specific performance. 10. In this regard, elaborating the above submissions, learned Counsel for the appellant argued that the plaintiff did not even pay the requisite Court fee and therefore the plaintiff filed an application I.A. No. 4 of 1996 amending the relief of specific performance and sought only for refund of the amount and in effect the plaintiff got converted his suit from one of specific performance into one of recovery of money and this was done by the plaintiff in order to see that the Court fee paid by him is adjusted to the relief of recovery of money sought for by him. The said application of the plaintiff was allowed by the Trial Court and the plaint was permitted to be amended accordingly. The said application of the plaintiff was allowed by the Trial Court and the plaint was permitted to be amended accordingly. Therefore, it is established that the plaintiff had relinquished a portion of his claim as he was unable to pay the Court fee and as such the question of permitting the plaintiff to amend the plaint at a later stage of the suit by adding the claim which was relinquished earlier is contrary to Section 13 of the Karnataka Court Fees and Suits Valuation Act, 1958. The lower Appellate Court lost sight of this provision of law. 11. It is then argued that even though the subsequent application I.A. No. 6 of 1996 filed by the plaintiff once again restoring the prayer for specific performance and making alternative prayer for recovery of the advance amount, yet the said I.A. was allowed by the Trial Court without notice to the appellant herein. 12. The next circumstance referred to by the learned Counsel for the appellant is that despite the 1.A. filed by the plaintiff for restoring the relief of specific performance with the alternative relief was allowed on 3-12-1996, the plaintiff did not pay the requisite Court fee for a long time and the long delay on the part of the plaintiff in depositing the balance Court fee and further delay in depositing the balance consideration ofBs. 40,000/- all are the circumstance which point to the fact of the plaintiff being unable to perform his part of the contract and this circumstance also establishes the plaintiff being not ready and willing to perform his part of the contract and it is a well-settled position in law that the readiness and willingness must be a continuous one and in the instant case, the plaintiff went on changing his stands now and then and therefore it cannot be inferred that the plaintiff has proved continuous readiness and willingness on his part right from the date of agreement till the date of hearing and therefore the views taken by the Trial Court could not have been upset by the lower Appellate Court. 13. 13. Another submission made by the learned Counsel is that even the documents produced before the Trial Court, in particular the passbook produced by the plaintiff reveals that he was not having sufficient amount in his account between the period from 30-11-1992 to 3-11-1998 and therefore the Trial Court took into account all these material in arriving at the conclusion that the plaintiff had failed to establish his readiness and willingness to perform his part of the contract. The lower Appellate Court did not give proper reasons for disagreeing with the above said view taken by the Trial Court. In support of the above submissions, the learned Counsel for the appellant took me through the pleadings of the parties and the application filed by the plaintiff at various stages and also the documents produced by the plaintiff namely the passbook-Ex. P. 16 before the Trial Court. As such, the submission made is that the judgment of the lower Appellate Court cannot be sustained in law as it is contrary to the admitted evidence on record. 14. On the other hand, learned Counsel Sri D.R. Sundaresh for the respondent/plaintiff submitted that as far as the payment of Court fee is concerned, it is a matter between the Court and the plaintiff and payment of deficit Court fee cannot be a ground to disallow the prayer of the plaintiff for specific performance and moreover, the said factor was not an issue before the Trial Court and hence the same cannot be urged before this Court in second appeal. It is then submitted that the grant of relief of specific performance is a discretionary relief governed by the provisions of Sections 16 to 20 of the Specific Relief Act, 1963 and therefore this Court cannot interfere with the said order passed by the lower Appellate Court which is based on sound judicial principles. 15. It is then submitted that the appellant also had denied the execution of agreement of sale and as far as the amendment applications filed by the plaintiff are concerned, though the said I.A. Nos. 4 and 6 were allowed by the Trial Court, the appellant had not questioned the same and therefore the submission that is now sought to be made by the learned Counsel for the appellant, lacks necessary force. 4 and 6 were allowed by the Trial Court, the appellant had not questioned the same and therefore the submission that is now sought to be made by the learned Counsel for the appellant, lacks necessary force. Ai; far as the plaintiff seeking the refund of advance amount as an alternative relief is concerned, merely because the plaintiff has prayed for alternative relief that itself cannot be a ground to deny the relief of specific performance and in this regard, the law is well-settled. Referring to the facts admitted by both the parties, namely that time was not the essence of contract between the parties, the view taken by the lower Appellate Court cannot be termed as erroneous either on facts or in law and the lower Appellate Court• has also taken note of various decisions before arriving at the conclusion as to the plaintiff having proved his readiness and willingness to perform his part of the contract. 16. In support of the above submissions, the learned Counsel for the respondent/plaintiff placed reliance on the following decisions: S.P. Narayanaswami Pillai v Dhanakoti Ammal1; Govind Prasad Chaturvedi v Hari Dutt Shastri and Another2; Dalip Singh v Ram Nath and Another3; 2002 SAR (Civil) 204; Surya Narain Upadhyaya v Ram Roop Pandey and Others4 and P. C. Varghese v Devaki Amma Balambika Devi and Other5. 17. Thus the submission made by the learned Counsel for the respondent is that no interference is called for in this second appeal against the view taken by the lower Appellate Court. 18. Having regard to the substantial question of law that is raised for consideration and the bone of contention between the learned Counsel for the parties as could be seen from their arguments is that whether the lower Appellate Court could have reversed the findings of the Trial Court as regards the plaintiffs readiness and willingness to perform his part of the contract. 19. Before I proceed to answer this crucial question, it is necessary to refer to the legal principles laid down in regard to readiness and willingness. Although there can be no straight jacket formula to decide as to what amounts to readiness and willingness on the part of a party, the surrounding circumstances also will have to be taken into consideration in arriving at a decision on this aspect. 20. Although there can be no straight jacket formula to decide as to what amounts to readiness and willingness on the part of a party, the surrounding circumstances also will have to be taken into consideration in arriving at a decision on this aspect. 20. A learned Single Judge of this Court in the case of N. Venkatappa v Lingappa Reddy (deceased) By L.Rs6, dealing with this aspect has referred to a decision of the Apex Court in His Holiness Acharya Swami Ganesh Dassji v Shri Sita Ram Thapar7 and has observed thus in paras 16, 17 and 18: "16. In the case of His Holiness Acharya Swami Ganesh Dassji v Shri Sita Ram Thapar, AIR 1996 SC 2095 , their Lordships of the Supreme Court observed at page 2096: "There is a distinction between the readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be property scrutinised....". 17. Their Lordships further observed: "The factum of readiness and willingness to perform plaintiffs 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 willing to perform his part of contract". 18. Thus the basic principle of law that emerges is that in order to succeed in a suit for specific performance of contract and to enable the plaintiff to get entitled to the relief for decree for specific performance of contract, plaintiff must allege or aver in the plaint, his continuous readiness from the date of contract till the date of hearing of the suit to perform his part of contract and further he must prove that fact. So there is no dispute so far as the bare proposition of law that, burden lies on the plaintiff to aver and prove that fact, as contended by the learned Counsel for the appellant. So there is no dispute so far as the bare proposition of law that, burden lies on the plaintiff to aver and prove that fact, as contended by the learned Counsel for the appellant. We have to look to the plaint, whether these conditions have been satisfied by making the allegations, first and if it is found from the perusal of the plaint that averment has been made as petitioner requirement of law, the question of proof will arise but if there is no assertion of averment of this fact, then plaint will have to be thrown out. So far as the question of burden of proof is concerned, I have mentioned that there is no dispute about it, but it has to be taken note that when both the parties have to lead evidence on record, then burden of proof looses its importance, it remains a question of academic importance. It is really the evidence that has to be appreciated which may be oral, documentary or circumstantial and which may also be the evidence coming out of the conduct of both the parties which may have to be looked into". 21. As far as the discretion to grant the specific performance relief is concerned, the Apex Court in the case of Ramesh Chandra Chandiok and Another v Chuni Lal Sabharwal (dead) by his L.Rs and Others1, has held that the discretion to grant specific performance must be exercised in accordance with sound, reasonable judicial principles. In other words, as has been observed by the learned Single Judge of this Court in another decision in Devendra Basappa Doddannavar v Smt. Sonubai Tuljansa Kosandal and Others1, the discretion exercised by the Trial Court could not be interfered with by the Appellate Court unless the discretion is exercised capriciously or it is unreasonable. 22. Keeping the above well-settled propositions of law, the facts and circumstances of this case will have to be considered as to find out whether the lower Appellate Court was justified in reversing the findings of the Trial Court as regards the readiness and willingness on the part of the plaintiff to perform his part of the contract is concerned. 23. Keeping the above well-settled propositions of law, the facts and circumstances of this case will have to be considered as to find out whether the lower Appellate Court was justified in reversing the findings of the Trial Court as regards the readiness and willingness on the part of the plaintiff to perform his part of the contract is concerned. 23. From the facts which have been admitted, it is clear that the plaintiff had filed the suit for specific performance of the agreement of sale and for the relief of refund of the advance amount paid by him which relief was an alternative relief. The agreement of sale is dated 21-12-1992 and the suit was filed on 22-12-1995, almost at the cost of three years from the date of agreement of sale. The plaintiff filed an application I.A. No. 4 of 1996 seeking permission to amend the plaint and the prayer for specific performance was sought to be struck off and instead, the plaintiff sought for the following prayer: "for recovery of Rs. 10,000/-+ Rs. 3,600/- being the interest from the date of agreement till the date of suit with 12% compound interest from the date of the suit till date of realisation with Court costs and such other reliefs". 24. In the affidavit accompanying the said application I.A. No. 4 of 1996, the plaintiff had sworn to the effect that he has thought of terminating the• suit into recovery of money instead of suit for performance of contract and if the suit is converted into recovery suit, he can get remedy earlier. 25. The subsequent application I.A. No.6 of 1996 was filed on 3-121996 and the said application was allowed without notice to the defendant and in the said application, the plaintiff once again prayed for considering his prayer for recovery of money and converting the suit into one of recovery of money as an alternative prayer in addition to the prayer for specific performance. Even the said application I.A. No. 6 of 1996 was allowed by the Trial Court and the plaint was suitably amended, yet the plaintiff did not pay the balance of Court fee of Rs. 1,000/- till 4-12-1997. The Trial Court has observed at para 30 of its judgment that the balance Court fee was paid almost after the lapse of two years from the date of filing of the suit. 26. 1,000/- till 4-12-1997. The Trial Court has observed at para 30 of its judgment that the balance Court fee was paid almost after the lapse of two years from the date of filing of the suit. 26. As far as balance sale consideration is concerned, though the learned Counsel for the respondent referring to the material on record submitted that the balance amount of Rs. 40,000/- was deposited by the respondent on 7-11-2005, the lower Appellate Court while allowing the appeal filed by the plaintiff has observed that the plaintiff is required to deposit the balance amount in Court within 15 days. The deficit Court fee of Rs. 1,000/- was paid along with a memo on 4-12-1997 as could be seen from the order sheet of the Trial Court of the said date. All the above facts which are borne out from the material on record therefore gives rise to draw an inference that the plaintiff at the first instance was unable to pay the Court fee and he therefore sought amendment of the plaint and gave up the relief of specific performance and sought for converting the suit into one of recovery of money. In other words, the plaintiff relinquished his prayer for specific performance by filing the said I.A. No.4 of 1996, which came to be allowed. The next circumstance is that the plaintiff had filed an application I.A. No.6 of 1996, wherein he wanted the earlier prayer of recovering the money to be converted into one of alternative prayer. Though the said application I.A. No.6 of 1996 was allowed on 3-12-1996, the deficit Court fee of Rs. 1,000/- was not paid by him until 4-12-1997. As far as the balance consideration of Rs. 40,000/- is concerned, though the plaintiff has taken a stand that he has paid a balance amount of Rs. 40,000/- on 7-11-1995, the lower Appellate Court in its judgment has directed the plaintiff to deposit the balance amount within 15 days, that the judgment of the lower Appellate Court was delivered on 26-10-2005. Thus, it is clear from the above dates that the plaintiff failed to pay the balance Court fee of Rs.1,000/- for a very long period and it was only after the judgment of the lower Appellate Court was rendered in October 2005, one month later the plaintiff said to have deposited the balance amount of Rs. 40,000/-. 27. Thus, it is clear from the above dates that the plaintiff failed to pay the balance Court fee of Rs.1,000/- for a very long period and it was only after the judgment of the lower Appellate Court was rendered in October 2005, one month later the plaintiff said to have deposited the balance amount of Rs. 40,000/-. 27. Yet another circumstance taken note of by the Trial Court was that the plaintiff did not had the necessary amount with him to pay the balance consideration and in this regard, the passbook produced by the plaintiff was also considered and the said passbook which is produced as per Ex. P. 6, did not indicate the plaintiff having Rs. 40,000/- in his account for the period from 30-11-1993 to 3-11-1998. All these factors were considered by the Trial Court to come to the conclusion that the plaintiff cannot be said to have proved his readiness and willingness to perform his part of the contract and the surrounding circumstances led the Trial Court to draw the said conclusion. 28. The lower Appellate Court did not taken into account all these factors, but proceeded to hold that as the time was not the essence of the contract and as the relief of alternative relief cannot bar the Court from granting the relief of specific performance, the said reasons led the lower Appellate Court to disagree with the view taken by the Trial Court on his aspect. 29. In my view, the said reasoning of the lower Appellate Court is totally contrary to the evidence on record and the facts and circumstances of this case particularly taken into account, the different stand taken by the plaintiff at different stages of his suit. No doubt, as has I been brought to my notice by the learned Counsel for the respondent, the Apex Court in the case of P.C. Varghese, has held that alternative plea for refund of earnest amount and damage cannot itself be a bar to claim decree for specific performance of contract. No doubt, as has I been brought to my notice by the learned Counsel for the respondent, the Apex Court in the case of P.C. Varghese, has held that alternative plea for refund of earnest amount and damage cannot itself be a bar to claim decree for specific performance of contract. At the same time, it is also a well-settled law that failure of the purchaser to pay the sufficient Court fee cannot lead to an inference of in-capacity to pay the consideration and therefore refusing the relief of specific performance for such amount is not proper, in view of the law laid down by the Apex Court in another decision in Surya Narain Upadhyayas case. 30. Nevertheless, notwithstanding the various decisions referred to by the learned Counsel for the respondent, in the instant case, the facts and circumstances will have to be taken note of and it is on the said material one will have to arrive at the conclusion as to the readiness and willingness having been proved by the plaintiff. The Trial Court has considered all the material placed before it and various circumstances which have been referred to above and has held that when the plaintiff was unable to pay the Court fee and when the plaintiff therefore gave up his prayer for specific performance by seeking into converting the suit into one of recovery of money and later the plaintiffs yet another application seeking for further amendment of the plaint and continue to failure to pay the Court fee of Rs. 1,000/- for a long period of time and the deficit Court fee having been paid on 4-12-1997, all these factors therefore led the Trial Court to infer that the plaintiff had no financial capacity at any point of time to perform his part of the contract and he was not ready and willing continuously to discharge his obligations. The said view taken by the Trial Court cannot be termed as perverse or unreasonable. 31. The said view taken by the Trial Court cannot be termed as perverse or unreasonable. 31. As the material placed before the Trial Court has clearly established that the plaintiff had failed to prove that he was continuously ready and willing to perform his part of the contract, the law laid down by this Court in the aforementioned case i.e., N. Venkatappa, will come into play and as has been held in the said case, that, in order to get the relief of decree of specific performance, the plaintiff must allege in the plaint his continuous readiness from the date of contract till the date of hearing of the suit. In the instant case, the very stand taken by the plaintiff at different stages of the suit by filing number of applications namely I.A. Nos. 4 and 6 and the suit itself having been filed almost at the close of three years from the date of agreement, all these factors therefore led the Trial Court to hold that the plaintiff had failed to establish his readiness and willingness to perform his part of the contract. The said finding being based on proper consideration of the pleadings, the evidence and the conduct of the plaintiff himself, the lower Appellate Court could not have interfered with the said finding of the Trial Court and the reasoning given by the lower Appellate Court cannot but be termed as unreasonable and against the evidence on record. 32. The fact that the plaintiff gave up his relief of specific performance and confined the suit into one of recovery of money itself shows, that the prayer of the plaintiff, for seeking restoration of the claim that he had relinquished, should not have been entertained particularly in view of the bar contained in Section 13 of the Karnataka Court Fees and Suits Valuation Act, 1958. However, as the amendment sought by the plaintiff as per LA. However, as the amendment sought by the plaintiff as per LA. No. 6 of 1996 came to be allowed and the appellant having not questioned the same in subsequent proceedings though he had no notice of the said application being allowed, yet not Withstanding the above facts, insofar as the readiness and Willingness on the part of the plaintiff is concerned, the view taken by the Trial Court is just and reasonable and the learned Judge of the Trial Court has rightly applied the judicial principles, in refusing to grant the relief of specific performance. The said discretionary view taken by the Trial Court is neither unreasonable for capricious in the light of the facts and circumstances of this case. The lower Appellate Court therefore was not justified in granting the decree for specific performance in the light of the very admitted material on record, which indicates that the plaintiff totally gave up the prayer for specific performance, being unable to pay the Court fee. As such, the substantial question of law raised for consideration is answered in the negative and I pass the following order: (a) Appeal is allowed; (b) The judgment of the lower Appellate Court is set aside and that the Trial Court stands restored. No costs.