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2015 DIGILAW 240 (ORI)

Sankar Prasad Dash v. Manjulata Dash

2015-04-08

B.K.NAYAK

body2015
JUDGMENT : B. K. NAYAK, J. This appeal has been filed challenging the judgment and decree dated 16.03.2010 and 30.03.2010 respectively passed by the learned Civil Judge (Senior Division), Bhubaneswar in Civil Suit No.328 of 2005. 2. Respondent no.1 as plaintiff filed the suit against defendant no.1-respondent no.2 for specific performance of contract for sale of the disputed land measuring Ac.0.05 dec. in plot no.103, under Khata no.1032/288 situated in mouza-Sahid Nagar, Bhubaneswar. The case of the plaintiff is that defendant no.1 holds the disputed property as a lessee under the G.A. Department of Government of Orissa. Defendant no.1 being in urgent need of money proposed to sell the suit property and was in search of a suitable customer. One Rashmirekha Tripathy is the cousin (maternal uncle’s daughter) of defendant no.1. The said Rashmirekha and her husband, Hrusikesh Tripathy were known to the plaintiff and her husband, who are doctors and persuaded them to purchase the suit property. The plaintiff and her husband having agreed, an agreement was entered between the plaintiff and defendant no.1 for sale of the land for a consideration of Rs.23,00,000/-towards land value and Rs.35,200/-towards value of the house standing on the suit land. It was also agreed that at the time of execution of the agreement, the plaintiff would pay to defendant no.1 Rs.5,00,000/- by way of advance consideration. Accordingly, on 15.12.2004 the agreement for sale (Ext.1) was executed by defendant no.1, which was authenticated before the Notary Public, Bhubaneswar. It is further pleaded by the plaintiff that as agreed between the parties the sale of the suit land was to be effected in favour of the plaintiff and her husband jointly. The price agreed being not suitable to the plaintiff’s husband, who was also absent on the date of execution of the agreement, the agreement was executed in favour of only the plaintiff in presence of witnesses. As per the agreement, it was stipulated that the defendant would apply to the G.A. Department for necessary permission for sale of the land in favour of the plaintiff. It is further pleaded that after the parties and witnesses signed and the agreement was attested by the Notary, defendant no.1 demanded Rs.5,00,000/- as advance consideration money. As per the agreement, it was stipulated that the defendant would apply to the G.A. Department for necessary permission for sale of the land in favour of the plaintiff. It is further pleaded that after the parties and witnesses signed and the agreement was attested by the Notary, defendant no.1 demanded Rs.5,00,000/- as advance consideration money. When the plaintiff went through the agreement, she found that it had been prepared contrary to their earlier discussion and the consideration for the land was stated in the agreement to be Rs.31,00,000/-. The plaintiff did not agree to such new terms and was coming back when the witnesses intervened and accordingly, on request of defendant no.1 a fresh written agreement incorporating the original terms as agreed between the parties was prepared, signed and attested by the Notary, which is the suit agreement (Ext.1). It was further stated that the plaintiff was short of money at the time of execution of agreement and she paid a sum of Rs.3,00,000/- to defendant no.1 as advance consideration money, receipt whereof has been acknowledged in the agreement itself. The first agreement in which the consideration was stipulated at Rs.31,00,000/- was taken back by defendant no.1 with intention to destroy the same. The further case of the plaintiff is that about a week after the execution of agreement, the plaintiff paid the remaining sum of Rs.2,00,000/- to the defendant towards part consideration, but did not insist for a receipt from the defendant. As per the agreement, the sale deed was to be executed within three months. Since defendant no.1 did not apply to the G.A. Department for necessary permission for transfer, the plaintiff on 14.02.2005 issued a notice to defendant no.1 requesting him to apply for the permission and at the same time apprehending that defendant no.1 might sell the land to any other person, the plaintiff also published a notice in the daily newspaper (Dharitri) indicating about the agreement of sale. Defendant no.1 however avoided to receive the notice sent by registered post. Hence, the suit was filed for specific performance of contract of sale. 3. During the pendency of the suit, defendant no.1 sold away the suit land to defendant no.2 and, therefore, the plaintiff impleaded defendant no.2 as a party to the suit without amending the plaint any further. 4. Hence, the suit was filed for specific performance of contract of sale. 3. During the pendency of the suit, defendant no.1 sold away the suit land to defendant no.2 and, therefore, the plaintiff impleaded defendant no.2 as a party to the suit without amending the plaint any further. 4. Defendant no.1 filed his written statement stating that it had been agreed that the suit land be sold in favour of the plaintiff and her husband for a consideration of Rs.31,00,000/-and accordingly agreement was executed and notarized before the Notary Public on 15.12.2004. On the same day, the plaintiff requested defendant no.1 to execute another agreement for sale in respect of the suit property indicating the consideration amount at Rs.23,35,200/-for the purpose of securing a bank loan and for getting permission for sale from G.A. Department and accordingly another agreement was prepared, but defendant no.1 did not sign the same. Thus, as per plaintiff’s request two agreements were executed on 15.12.2004. It is further stated that though it had been agreed between the parties that Rs.5,00,000/-shall be paid as advance consideration money, not a single pie was paid by the plaintiff or her husband. The so called sale agreement (Ext.1) was taken away by the plaintiff, who started playing with the defendant. It is stated that the plaintiff has not come to the court in clean hands and, therefore, she is not entitled to the discretionary, equitable relief of specific performance. It is stated that the suit agreement is manufactured one in which the plaintiff has substituted some new typed pages. It is specifically denied that defendant no.1 agreed to sell the suit land to the plaintiff for Rs.23,35,200/- and that he would himself apply to the G.A. Department for necessary permission for transfer. Since there was no such understanding the defendant did not file application before the G.A. Department for permission. It is also denied that the plaintiff paid Rs.3,00,000/- on the date of the agreement and Rs.2,00,000/- about a week later to defendant no.1. It is stated that since there was no such agreement to sell the property for Rs.23,35,200/-, there was no question of making an application by the defendant for permission and that the notice issued to defendant no.1 and the notice published in the newspaper by the plaintiff was intended to create some evidence in her favour. It is stated that since there was no such agreement to sell the property for Rs.23,35,200/-, there was no question of making an application by the defendant for permission and that the notice issued to defendant no.1 and the notice published in the newspaper by the plaintiff was intended to create some evidence in her favour. It was also stated that the suit was bad for non-joinder of the G.A. Department, Government of Orissa as a party and for want of cause of action. 5. Defendant no.2 filed a separate written statement stating that the plaintiff having not raised any allegation and not sought for any relief against him and that all allegations being against defendant no.1, the latter has to reply the same. It was further stated that in order to meet his legal necessity defendant no.1 agreed to sell and accordingly applied to the Government in G.A. Department for transfer of the suit property in favour of defendant no.2 and that the Government having accorded permission, defendant no.1 executed and registered sale deed in his favour on 27.08.2007 and delivered possession of the property to him. After his purchase, defendant no.2 mutated the suit land in his name and has got corrected R.O.R. and been paying land Revenue. 6. On the basis of the pleadings of the parties, the trial court framed four issues and on consideration of the evidence came to hold that the sale deed executed by defendant no.1 in favour of defendant no.2 of the suit property during the pendency of the suit is void and that defendant no.1 had entered into agreement with the plaintiff and that the plaintiff was ready and willing to perform her part of the contract. Accordingly, the Court passed the decree directing defendant no.1 to execute and register sale deed in favour of the plaintiff upon receipt of the balance consideration amount of Rs.18,35,200/- from her after receipt of permission from the G.A. Department, Government of Orissa within a period of two months. It was also directed that defendant no.1 shall cooperate with the plaintiff in obtaining the permission by way of filing joint application before the G.A. Department. 7. Learned counsel for the appellant (defendant no.2) raised the following contentions. It was also directed that defendant no.1 shall cooperate with the plaintiff in obtaining the permission by way of filing joint application before the G.A. Department. 7. Learned counsel for the appellant (defendant no.2) raised the following contentions. (i) Plaintiff having admitted about execution of another agreement between the parties on 15.12.2004 for a consideration amount of Rs.31,00,000/- and that her husband having joined as an intending purchaser in the suit agreement (Ext.1) but having not signed the same and that three middle pages of Ext.1 having not been signed by the defendant or the plaintiff, there is serious doubt about the real intention of the parties and the genuineness and validity of Ext.1 and, therefore, the plaintiff was not entitled to the discretionary, equitable relief. (ii) As per the stipulation in Ext.1, the plaintiff was to apply to the G.A. Department for permission and she having admittedly not made any application for permission and she having not pleaded and proved that she was all along ready with the balance consideration money, it cannot be said that she was ready and willing to perform her part of the contract. (iii) The land being obtained from Government by defendant no.1 by way of lease, the same cannot be sold without the permission of the Government and that the court cannot direct the Government to accord permission. (iv) Defendant no.2 being a bonafide purchaser for value without notice of the agreement between the plaintiff and defendant no.1, he has acquired valid title to the suit land and his interest cannot be affected. 8. Learned counsel appearing for plaintiff-respondent no.1, on the other hand, submits that the appellant as subsequent purchaser has no locus standi to file this appeal and that he having not pleaded that he was a bonafide purchaser for value without notice of the agreement for sale he is debarred from raising such contention. It is also submitted on behalf of respondent no.1 that permission for sale of the land by the State Government in the G.A. Department is not a condition precedent for grant of decree for specific performance and, therefore, there is no compulsion to issue specific direction to the G.A. Department to grant permission for sale in favour of the plaintiff. It is also stated that the agreement (Ext.1) is a genuine and valid agreement. 9. It is also stated that the agreement (Ext.1) is a genuine and valid agreement. 9. From the contentions raised, the following points arise for consideration: (i) Whether the appeal at the instance of defendant no.2, the lis pendens purchaser is maintainable? (ii) whether Ext.1 is a valid agreement and enforceable in law? (iii) Whether the plaintiff has succeeded in proving that she was ready and willing to perform her part of the contract and defendant no.1 failed to perform his part? (iv) Whether the grant of permission for sale by the G.A. Department is a condition precedent for decree of specific performance of contract for sale? (v) Whether the appellant is entitled to protection as a bonafide purchaser for value without notice of the contract of sale between the plaintiff and defendant no.1? 10. The first point of determination is whether defendant no.2 has locus standi to file the appeal challenging the judgment and decree passed by the court below. It is the contention of the learned counsel for respondent no.1 that defendant no.2 being a lis pendens purchaser, he does not acquire any interest in the property in question and, therefore, he has no right to challenge the decree in appeal. A lis pendens transfer is not void abnitio. The purchaser does acquire the interest of his vendor in the suit property subject to the result of the suit. In the event, the plaintiff’s suit gets dismissed, the interest derived by the lis pendens purchaser from the vendor becomes absolute and unqualified and the transaction continues to be valid. Defendant no.1 having already transferred the suit property during the pendency of the suit in favour of defendant no.2 after receiving the consideration amount may not be interested to prefer the appeal against the decree for specific performance of contract for sale. In such circumstances, it cannot be said that defendant no.2, lis pendens purchaser, who has been impleaded as a party-defendant to the suit by the plaintiff, cannot be said to have no remedy against the decree which affects his interest. Defendant no.2 having been impleaded as a party to the suit he has a right of appeal against the decree. Even under Order 22 Rule-10, C.P.C. an assignee or transferee from a party to a suit can with the leave of the court, prosecute the suit on behalf of the transferor. Defendant no.2 having been impleaded as a party to the suit he has a right of appeal against the decree. Even under Order 22 Rule-10, C.P.C. an assignee or transferee from a party to a suit can with the leave of the court, prosecute the suit on behalf of the transferor. Section 146, C.P.C. also confers a right on the transferee to take up or continue with any proceeding or application which could have been made by or against his transferor. The Hon’ble Supreme Court in the decision reported in (2004) 2 SCC 601 : Raj Kumar v. Sardarilal and others has held as follows: “10.The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filling of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 C.P.C. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further, the expression “claiming under” is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule-10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendent elite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.” Evidently in the instant case, defendant no.1 has himself not preferred any appeal. Defendant no.2 was impleaded as a party defendant to the suit by the plaintiff. In such view of the matter and having regard to the provision of Section 146, C.P.C., it must be held that defendant no.2 has locus standi to prefer this appeal. 11. The plaintiff asserted that it was agreed between her and defendant no.1 that the suit property shall be sold to the plaintiff for a consideration of Rs.23,35,200/-, out of which Rs.23,00,000/- is said to be the value of the land and Rs.35,200/-is the value of the house standing on the suit land. Nothing emerges from the pleading and evidence of the parties as to the nature of the house that was standing on the suit land at the time of the agreement between the parties. Defendant no.1 stated that it was agreed between the parties that the suit land would be sold in favour of the plaintiff and her husband jointly for a consideration of Rs.31,00,000/-with further stipulation that on the date of execution of the agreement earnest money of Rs.5,00,000/-would be paid by the intending purchasers to defendant no.1. It is also the case of defendant no.1 that on 15.12.2004 such an agreement was executed between him and the plaintiff, but he had not received the advance consideration of Rs.5,00,000/- from the plaintiff. It is also the case of defendant no.1 that on 15.12.2004 such an agreement was executed between him and the plaintiff, but he had not received the advance consideration of Rs.5,00,000/- from the plaintiff. It is also stated that on the request of the plaintiff he had executed another agreement on that day indicating therein the consideration money for the suit land to be Rs.23,35,200/- for the purpose of facilitating the plaintiff for securing bank loan and getting permission for sale from the G.A. Department. The plaintiff has admitted in her pleadings and evidence that defendant no.1 was entrusted to prepare the agreement and as per their understanding, the plaintiff along with witnesses went to the Notary on 15.12.2004 and they signed on the agreement which had already been prepared, without going through the contents thereof. But when defendant no.1 demanded payment of earnest money of Rs.5,00,000/-, the plaintiff did not agree and went through the agreement and found that stipulations were contrary to the understanding between the parties in that consideration for the land had been mentioned as Rs.31,00,000/- in the agreement for which the plaintiff did not agree to such new term and was coming back. However, on the intervention of the witnesses another agreement was executed between her and defendant no.1 stipulating the agreed consideration amount of Rs.23,35,200/- and such agreement was also attested by the same Notary and Rs.3,00,000/-was paid to defendant no.1 as earnest money. 12. Admittedly, two agreements were executed between the plaintiff and defendant no.1 on the same day, i.e., 15.12.2004 stipulating two different amounts of consideration and earnest money for the suit land and both the agreements were attested by the same Notary Public. The fact that two agreements stipulating two different considerations amount for the self-same land between the same parties indicating two different amounts of payment of earnest money by the plaintiff to defendant no.1 were signed casts a doubt on the genuineness of the suit agreement (Ext.1) with regard to the real intention of the parties about the terms and conditions of the agreement for sale. Another suspicious feature of Ext.1 is that the agreement runs to five pages and only on the first page indicating the description of the parties to the agreement and the last page have been signed by the parties and the witnesses and the middle three pages, i.e., pages-2, 3 and 4 which contain the terms and conditions of the agreement have not at all been signed by anybody except bearing the seal and signature of the Notary Public, namely, Sarat Kumar Bhuyan. True it is that a contract may be reduced into writing, or may be oral, or can be spelt out from correspondences exchanged between the contracting parties, but where a contract/agreement for sale between the parties is reduced to writing, all pages of the written agreement should be signed by the parties or at least by the vendor. Genuine doubt may arise with regard to stipulations contained in the pages/sheets not signed by the vendor, unless the contents thereof are admitted. The original of the other written agreement stipulating the consideration money at Rs.31,00,000/- has not seen the light of the day. Defendant no.1, however produced a xerox copy thereof before the trial court marked as “XX” for identification and has also filed a similar xerox copy in this appeal with a petition (Misc. Case No.323 of 2014) to accept the original as additional evidence. But the original was not filed. Hence the petition is rejected. The document marked “XX” also consists of five pages, all bearing the seal and signature of the Notary, Sarat Kumar Bhuyan and curiously enough only the first and last page have been signed by the plaintiff, defendant no.1 and the very same witnesses, namely, Rasmi Prava Tripathy and Goura Prasad Nanda. The three middle pages have not at all been signed by the parties and the witnesses. On a bare perusal it is found that the signatures of the parties and witnesses in Ext.1 and in the agreement marked “XX” perfectly match. Since the execution of the agreement stipulating the consideration amount for the property at Rs.31,00,000/-has been admitted by the plaintiff, this Court felt it necessary to go through the contents of the copy of the agreement marked “XX”. Since the execution of the agreement stipulating the consideration amount for the property at Rs.31,00,000/-has been admitted by the plaintiff, this Court felt it necessary to go through the contents of the copy of the agreement marked “XX”. Recital in page-2 of the said agreement which is of utmost importance, runs as under: “AND WHEREAS the Agreement executed as per the request of the Intending purchaser, by both the parties earlier today, and documented before Sri S.K. Bhuyan, Notary, Bhubaneswar in respect of this Transaction shall be valid only for Bank Loan and G.A. Permission purposes. But all transactions etc will be performed as per the terms of this Agreement.” The recital as aforesaid makes it clear that the suit agreement (Ext.1) was anterior in point of time and, therefore, it finds mention in the recital and the purpose of its execution has been indicated in the recital itself, meaning thereby, the stipulations made in ext.1 did not express the real intention of the parties with regard to the contract of sale, but it was executed only for availing a bank loan by the plaintiff and for getting permission for sale from the G.A. Department. It is common knowledge that in case of transfer of Government lease hold land by the lessee to another person, the Government charges a certain percentage of sale consideration. In other words, the more the sale consideration for the land, the Government charges for permission would be more. It, therefore, appears more probable that a lesser amount of consideration was stipulated in Ext.1 in order to pay less Government charges. The plaintiff states that the agreement stipulating the consideration for the property at Rs.31,00,000/- did not reflect what was really agreed between the parties and that she and the witnesses signed the agreement without reading its contents and when defendant no.1 demanded payment of earnest money of Rs.5,00,000/-, the plaintiff thereafter only went through the contents of the agreement to find to her surprise that consideration amount has been mentioned as Rs.31,00,000/- and the earnest money to be Rs.5,00,000/- and, therefore, did not agree to pay the earnest money and that when she was backing out, on the intervention of the witnesses and the request of defendant no.1 a fresh agreement (Ext.1) was executed stipulating the consideration at Rs.23,00,000/- and payment of earnest money of Rs.3,00,000/-. This story of the plaintiff appears wholly unreliable for the reason that it is the admitted case of the plaintiff that the final negotiations with regard to the agreement was made on 14.12.2004 in the house of the witness, Rasmi Prava Tripathy, where the consideration was settled at Rs.23,00,000/-for the property and the earnest money was fixed at Rs.5,00,000/- to be paid to defendant no.1 on the date of execution of the agreement and the execution of agreement was fixed to the very next day, i.e., 15.12.2004. In case plaintiff agreed to pay Rs.5,00,000/-as earnest money on the very next day, it must be understood that she was ready with at least Rs.5,00,000/-to be paid to defendant no.1 as earnest money. In case she was short of money on 14.12.2004 she would not have agreed to pay earnest money Rs.5,00,000/- on the next day, or at least the earnest money amount would have been settled at anything less than Rs.5,00,000/- or she could have asked for more time for arranging Rs.5,00,000/-. But on the very next day, she came to the Notary only with earnest money of Rs.3,00,000/- without even intimating the same to defendant no.1. The plaintiff is a well educated person being a doctor by profession and it cannot be believed that she as well as the witnesses signed the agreement, copy whereof marked “XX”, without going through the same. Her explanation that she went through contents of the document only when defendant no.1 demanded payment of earnest money of Rs.5,00,000/- is not acceptable because since on the very previous day, it had been agreed between them that the plaintiff would pay defendant no.1 earnest money of Rs.5,00,000/-, there was nothing surprising if defendant no.1 demanded payment of the said amount after execution of the agreement. It appears more reasonable and probable for the reasons aforesaid that Ext.1-agreement did not reflect the real intention of the parties to the same and that it was executed for other purposes as indicated in the recital of the other agreement on the same day. This appears more probable in view of the evidence of P.W.2, Rasmi Prava Tripathy, who acted as a mediator between plaintiff and defendant no.1 in negotiating contract of sale between them and stated in her cross-examination that on 13.12.2004 defendant no.1 received Rs.5,00,000/-, which is nobody’s case. 13. This appears more probable in view of the evidence of P.W.2, Rasmi Prava Tripathy, who acted as a mediator between plaintiff and defendant no.1 in negotiating contract of sale between them and stated in her cross-examination that on 13.12.2004 defendant no.1 received Rs.5,00,000/-, which is nobody’s case. 13. It is pleaded by the plaintiff that she and her husband intended to purchase the property jointly and accordingly the agreement was drafted in favour of both, but as price of the land did not suit him, her husband did not like to purchase the land and, therefore, did not sign the agreement even though he was described as a joint purchaser with her. It is also stated that her husband was not available in Orissa on the date of execution of agreement. Such contention of the plaintiff seems untrustworthy for the reason that since final agreement was reached between the parties on 14.12.2004 for sale of the property to the intending joint purchasers at Rs.23,00,000/- and accordingly her husband’s name was mentioned as a joint purchaser with the plaintiff in the agreement (Ext.1), it must be presumed that plaintiff’s husband had knowledge about the price settled and, therefore, he could not have reason to back out on the ground that the price did not suit him. That apart, in case plaintiff’s husband was not available in Orissa on 15.12.2004, the plaintiff should have intimated the said fact to defendant no.1 and requested him for deferring the execution of the agreement till the arrival of her husband. At least when she went through the agreements and found that her husband’s name has been described as an intending co-purchaser with her, she could have asked the defendant to execute another agreement with the plaintiff alone for the same price. But she only signed the agreement and her husband did not sign, though he was the co-purchaser with her. This suspicious feature of the agreement also raises doubt on the genuineness and validity of the suit agreement, Ext.1. In view of such serious doubts about the genuineness of Ext.1, the plaintiff would not be entitled to the discretionary relief of specific performance of contract for sale. 14. This suspicious feature of the agreement also raises doubt on the genuineness and validity of the suit agreement, Ext.1. In view of such serious doubts about the genuineness of Ext.1, the plaintiff would not be entitled to the discretionary relief of specific performance of contract for sale. 14. It has been held by a division Bench of this Court in the decision reported in 50 (1980) CLT 77: Sri hari Sahu alias Hari Charan Shaw v. Smt. Haripriya Ojha that the plaintiff in a suit for specific performance has to allege and if the fact was traversed, must prove his continuous readiness and willingness, from date of the contract to the time of the hearing, to perform his part of the contract. Failure to make good such averment bring with it the inevitable dismissal of the suit. In this respect, the division Bench relied upon the Privy Council decision reported in AIR 1928 P.C.208 :Ardeshir H. Mama v. Flora Sassoon and the decision of the Hon’ble Supreme Court reported in AIR 1967 SC 868 : Gomathinayagam Pillai and others v. Palaniswami Nadar and quoted proficiently therefrom in paragraph-6 of their judgment to the following effect : “6. It was held by the Judicial Committee of the Privy Council in the case of Ardesir H. Hama v. Flora Sassoon : “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 readings 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. ……….. Although so far as the Act (Specific Relief Act) is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (section 24 (b) is the nearest), it seems invariably to have been recognized, and, on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same. See e.g, Karsandas v. Chhotalal, A. I. R. 1924 Bom. 199. See e.g, Karsandas v. Chhotalal, A. I. R. 1924 Bom. 199. And, with this fact in view, section 19 of the Act becomes in the present investigation all important.…………” The aforesaid dicta of the Judicial Committee were in clear terms approved by the Supreme Court in the case of Gomathinayagam pillai and others v. palaniswami Nadar, Justice Shah, as the learned Judge then was, after quoting the observations of the Judicial Committee stated: “The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. On this part of the case the Trial Court record a clear finding against the respondent that he was at no time ready and willing to perform his part of the contract. The High Court did not consider the effect of this finding upon the claim of the respondent and without expressing dissent with that finding granted a decree for specific performance to the respondent.” 15. In the instant case, with regard to her readiness and willingness, the plaintiff has pleaded in paragraph-13 of the plaint as under: “the plaintiff reiterates that she was all along and still is ready and willing to perform her part of the contract that is to say, to pay the balance consideration of Rs.18,35,200/-(Rupees Eighteen lakhs Thirty five thousand and Two hundred only)” In her evidence in chief on affidavit she has made exactly identical statement as has been averred in her pleading. It may be noted that the plaintiff has never before filing the suit called upon defendant no.1 showing her readiness and willingness to pay the balance consideration money and asking him to receive the same and execute and register sale deed in her favour. She all along contended that in the suit agreement (Ext.1), it was stipulated that defendant no.1 would file application before the G.A. Department seeking permission for the sale. But Ext.1 rather reveals that it was the plaintiff and not defendant no.1, who had to apply to the G.A. Department seeking permission. She had issued notice dated 14.02.2005 (Ext.3) and dated 01.03.2005 (Ext.5) to defendant no.1 only asking him to make necessary application to the G.A. Department seeking permission for sale, contrary to the stipulation in Ext.1. But Ext.1 rather reveals that it was the plaintiff and not defendant no.1, who had to apply to the G.A. Department seeking permission. She had issued notice dated 14.02.2005 (Ext.3) and dated 01.03.2005 (Ext.5) to defendant no.1 only asking him to make necessary application to the G.A. Department seeking permission for sale, contrary to the stipulation in Ext.1. The notices as aforesaid do not indicate that the plaintiff was ready with the balance consideration money, nor did she call upon defendant no.1 to execute and register the sale deed on receipt of balance consideration. Thus, it is clear that before filing the suit, the plaintiff had not shown her readiness and willingness to perform her part of the contract. In her evidence also though she merely stated that she was ready to pay the balance consideration amount of Rs.18,35,200/-, she had not furnished any material that she had kept the amount ready with her or in deposit. The mere statement that she was ready and willing would not be enough to discharge the burden with regard to proof of continuous readiness and wiliness. The nature of pleading and evidence led by the plaintiff does not satisfy the requirement of law as seen above. Therefore, the plaintiff is also not entitled to the relief for want of adequate pleading and proof with regard to her continuous readiness and willingness to perform her part of the contract. 16. Learned counsel for respondent no.1 (plaintiff) has relied upon some decisions including the decision of the apex Court in the case of Har Narain (Dead) by LRs v. Mam Chand (Dead) by LRs. & Ors : 2010 (II) CLR (SC) 1071 in which it had been held that a lis pendens purchaser cannot claim benefit of provisions of Section 19(b) of the Specific Relief Act. That is to say, the lis pendens purchaser cannot claim that he was a bonafide purchaser for value without notice of the contract of sale between the plaintiff and the vendor. It is unnecessary to advert to all those decisions on the point, since I accept the contention raised by the learned counsel for respondent no.1 that defendant no.2-appellant has neither pleaded nor led any evidence to the effect that he was a bonafide purchaser for value without notice of the contract of sale between the plaintiff and defendant no.1. It is unnecessary to advert to all those decisions on the point, since I accept the contention raised by the learned counsel for respondent no.1 that defendant no.2-appellant has neither pleaded nor led any evidence to the effect that he was a bonafide purchaser for value without notice of the contract of sale between the plaintiff and defendant no.1. For want of such pleading and proof the appellant’s contention for getting benefit of Section 19(b) of Specific Relief Act cannot be accepted. 17. The only other question, that is, whether the grant of permission for sale by the G.A. Department of the Government is a condition precedent for decree of specific of performance of contract of sale or not is not necessary to be answered since it is rendered academic in view of the findings given in the preceding paragraphs. 18. With regard to payment of earnest money (advance consideration) of Rs.5,00,000/-by the plaintiff to defendant no.1 this Court accepts the finding of the trial court, but for a different reason. Since defendant no.1 contended that under the agreement for sale the consideration was fixed at Rs.31,00,000/- and for that he relied upon the copy of the agreement marked as “XX” before the court below, wherein it is recited that defendant no.1 received earnest money of Rs.5,00,000/- from the plaintiff, refuting defendant no.1’s denial in Court, I hold that he has received earnest money of Rs.5,00,000/-. 19. In view of my finding that the suit agreement (Ext.1) is not a genuine and valid document and does not reflect the real intention of the plaintiff and defendant no.1 with regard to the agreement and that the plaintiff has failed to adequately plead and prove her continuous readiness and wiliness to perform her part of contract, it is held that she is not entitled to the relief of specific performance. Therefore, I set aside the impugned judgment and decree. On the contrary, I direct that defendant no.1 shall refund to the plaintiff Rs.5,00,000/- taken by him as earnest money with 9% simple interest per annum from the date of the agreement, i.e., 15.12.2004. The payment shall be made within three months. The RFA is accordingly disposed of. Parties are to bear their respective costs.