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2019 DIGILAW 1011 (ALL)

Bishun Das v. Vinod Kumar

2019-04-19

JASPREET SINGH

body2019
JUDGMENT : Jaspreet Singh, J. 1. This second appeal calls in question the true import and meaning to be ascribed to Section 16(c) of the Specific Relief Act in order to determine whether the first appellate court has rightly construed the finding on readiness and willingness of the plaintiff for the purposes of seeking the specific enforcement of registered agreement to sell dated 06.08.1999. 2. This Court while admitting the above second appeal by means of the order dated 11.02.2011 had admitted the appeal on the following substantial questions of law as reproduced here under:- “II. Whether non framing of point of determination by the first appellant court in the present circumstances of this case has resulted into miscarriage of justice? III. Whether first appellate court has mis-appreciated the material question that if the plaintiff pleads an attempt to prove a false and wrong case for specific performance of the contract the plaintiff becomes dis-entitle to obtain equitable relief under Sections 20 and 21 of the Specific Relief Act, which is absolutely discretion of the Court? IV. Whether the discretion exercised by the trial court to refuse its exercise by the trial court under Sections 21 and 22 of the Specific Relief Act refusing the specific performance of the contract could be reverse by the first appellate court in the special circumstances of the present case where the first appellate court has not set aside the findings recorded by the trial court?” 3. Later by means of the order dated 19.12.2017 this Court framed another substantial question of law which is being reproduced herein after:- “Whether the lower appellate court was justified in returning the finding that the plaintiff-respondent has proved his readiness and willingness and could have returned its finding in this regard without reversing the finding of learned trial court?” 4. Thus this Court has heard the learned counsel for the parties on the merits of the appeal in order to answer the substantial questions of law as framed by this Court. 5. Before adverting to the submissions of the counsel for the respective parties, certain relevant facts giving rise to the above appeal are being noticed first. 6. Thus this Court has heard the learned counsel for the parties on the merits of the appeal in order to answer the substantial questions of law as framed by this Court. 5. Before adverting to the submissions of the counsel for the respective parties, certain relevant facts giving rise to the above appeal are being noticed first. 6. The plaintiff-respondent, Vinod Kumar, had entered in a registered agreement to sell with the defendant-appellant, namely, Bishun Das in respect of property bearing number 371 measuring 0.94 decimal situate in gram Lakhimpur Pargana and District Kheri for a total sale consideration of Rs.1,76,250/-out of which a sum of Rs. 25,000/-was paid as earnest money and the agreement to sell dated 06.08.1999 was executed and duly registered in the office of Sub Registrar, Kheri in Book No.1, Khand 1522 at pages 101 to 129 at serial number 5946. 7. The agreement did not contain any stipulation regarding time being of essence except that the purchaser shall pay the balance sale consideration of Rs.1,51,250/- and shall get the sale deed executed within five months i.e. till December 1999. 8. It was the case of the plaintiff respondent that in pursuance of the aforesaid registered agreement to sell dated 06.08.1999, the plaintiff had further made a payment of Rs.30,000/-to the defendant on 11.12.1999. He asked the defendant to be present in the office of Sub Registrar on 31.12.1999, but the defendant failed to execute the sale deed thereafter the plaintiff had made another payment to the defendant on 12.01.2000 for a sum of Rs.2000/-and Rs.6000/-on 25.01.2000 and while the defendant assured that he would execute the sale deed, however, he evaded. Consequently, the plaintiff, through counsel, sent a notice to the defendant dated 06.01.2000 and the defendant in reply thereto, agreed that he would visit the Registrar Office on 08.02.2000 and execute the sale deed. In the reply given by the defendant-appellant, it was stated that it was the plaintiff who was not willing to get the sale deed executed as he was short of funds and therefore the defendant stated that the plaintiff must bring the balance sale consideration by means of a bank draft or banker cheque alongwith the other necessities to get the sale deed executed. 9. The plaintiff again visited the Registrar Officer on 08.02.2000 as agreed with the defendant, but again defendant did not turn up. 9. The plaintiff again visited the Registrar Officer on 08.02.2000 as agreed with the defendant, but again defendant did not turn up. Finally, it was again decided that the sale deed would be executed on 15.02.2000. However, yet again the sale deed was not executed as the defendant failed to turn up. The plaintiff despite various persuasion could not get the sale deed executed from the defendant. Consequently, he instituted a suit for specific performance of contract dated 10.08.2000 before the Civil Judge (Senior Division), Lakhimpur Kheri registered as case No.133 of 2000. 10. The defendant appellant contested the above suit and in his written statement, he admitted the execution of the registered agreement to sell. However, his defence was that he had agreed to sell the property since he was in the midst of construction of his house and required funds and it is for the aforesaid reason that he had agreed to sell the property and wanted the payment to be made within a period of five months. It was pleaded by the defendant that time was the essence of the contract and since the plaintiff was unable to get the funds arranged, thus, he could not get the sale deed executed within the time stipulated in the agreement. The defendant denied that there was any agreement between the parties regarding reaching the Registrar Office on 31.12.1999 rather he stated that the plaintiff had stopped the defendant from coming to the Registrar Office on 31.12.1999 as the plaintiff could not arrange for the funds. 11. The defendant admitted receiving the notice of the plaintiff dated 06.01.2000 and stated that he had replied on 01.02.2000 and stated that the plaintiff should come to the Registrar Office on 08.02.2000 alongwith the remaining balance consideration in the shape of demand draft or banker cheque. The defendant stated that he was present in the Registrar Office on 08.02.2000 but the plaintiff did not turn up as a result the sale deed could not be executed. The defendant denied having received the payment of Rs.2000/-as alleged by the plaintiff to be made on 12.01.2000 and a sum of Rs.6000/-on 25.01.2000. The defendant stated that he was present in the Registrar Office on 08.02.2000 but the plaintiff did not turn up as a result the sale deed could not be executed. The defendant denied having received the payment of Rs.2000/-as alleged by the plaintiff to be made on 12.01.2000 and a sum of Rs.6000/-on 25.01.2000. Later the written statement was amended and the defendant stated that the amount of Rs.6000/-was paid by the plaintiff to the brother of the defendant in respect of a different transaction and it had no relation to the registered agreement to sell executed between the parties dated 06.08.1999. The defendant took the plea that the plaintiff had not come to the court with clean hands and was not entitled to the discretionary relief of specific performances since the plaintiff was not ready and willing to perform his part of the contract. 12. Upon the pleadings of the parties, the trial court framed four issues. The parties led their respective evidence both oral and documentary. The trial court after considering the oral and documentary evidence recorded a finding that the plaintiff could only prove the payment of Rs.57,000/-. He could not prove the payment of Rs.6000/-which was alleged by him to have been paid to the defendant rather Rs.6000/-was paid to the brother of the defendant in respect of a different transaction. The trial court also noted that since the defendant in his reply dated 01.02.2000 had stated that the plaintiff must come to the Registrar Office alongwith the balance sale consideration in the shape of demand draft or banker cheque and the plaintiff did not comply with the term of the said reply, it indicated that the plaintiff was not ready or willing to comply with his part of the contract. Moreover, it found that the plaintiff was a property dealer and was deliberately trying to keep the contract entangled in complication and did not want to get the sale deed executed. With the aforesaid findings, the trial court dismissed the suit by means of the judgment and decree dated 26.09.2008. 13. Moreover, it found that the plaintiff was a property dealer and was deliberately trying to keep the contract entangled in complication and did not want to get the sale deed executed. With the aforesaid findings, the trial court dismissed the suit by means of the judgment and decree dated 26.09.2008. 13. The plaintiff preferred a regular civil appeal under Section 96 CPC before the District Judge, Lakhimpur Kheri registered as regular civil appeal No.64 of 2008 wherein it was primarily contended that the trial court had erred in failing to consider that the plaintiff had gone to the Registrar Office on 31.12.1999, 08.02.2000, 15.02.2000 and on all the three occasions, he had carried with him the requisite balance sale consideration but the defendant did not turn up to execute the sale deed and therefore the finding returned by the trial court that the plaintiff was not ready and willing to perform his part of the contract, was erroneous and contrary to the record. 14. Considering the submissions of the learned counsel for the parties and on reappraisal of the evidence, the first appellate court accepted the finding of the trial court that the payment of Rs.57,000/-was proved to have been paid by the plaintiff. It reversed the finding regarding the readiness and willingness and held that the plaintiff had the requisite means and financial resources available to get the sale deed executed and that he was present in the office of the Sub Registrar to get the sale deed executed on three days i.e. 31.12.1999, 08.02.2000 and 15.02.2000 and on the three occasions the defendant did not turn up as a result the sale deed could not be executed. 15. Considering the aforesaid, the first appellate court found that the plaintiff was both ready and willing to perform his part of the contract and that the sale deed was not executed because of the indifference of the defendant. Consequently, while reversing the judgment and decree passed by the trial court it allowed the appeal and decreed the suit by means of the judgment and decree dated 28.10.2010 directing the defendant to receive the balance sale consideration of Rs.1,19,250/-and execute the sale deed in pursuance of the registered agreement to sell dated 06.08.1999 within a period of one month. 16. 16. The defendant appellant has assailed the aforesaid judgment of reversal by means of the present second appeal and primarily assailing the judgment, Sri Hari Om Singh learned counsel for the appellant has contended as under:- (i) The first appellate court has committed an error in not framing the points of determination which has resulted in miscarriage of justice (ii) The major thrust of the submission of Sri Hari Om Sngh learned counsel for the appellant is that it was the bounden duty of the court to consider the averments regarding readiness and willingness and even though if this issue is not raised as defence yet it is the condition precedent for the court to take note of and only then it gets the jurisdiction to decree a suit for specific performance. He went on to urge that the plaintiff had not approached the court with clean hands; inasmuch as he was short of funds and was not in a position to get the sale deed executed. The plaintiff had failed to establish that he was ready and willing to get the deed executed. Moreover, when the defendant had made a specific request that the balance sale consideration be paid to him by means of the bank draft or banker cheque to be handed over at the Registrar Office on 08.02.2000 and the plaintiff did not adhere to the same, it clearly indicated that he was not ready and willing and moreover on account of shortage of funds he could not get the sale deed executed within the period as envisaged in the agreement dated 06.08.1999. 17. Learned counsel for the appellant further contended that the time was the essence of the contract; inasmuch as the defendant had agreed to sell the property on the understanding that as he was a need of funds as his house was under consideration, thus the limit of five months was introduced in the agreement since admittedly the plaintiff did not get the sale deed executed within the period of five months, therefore, he was not entitled to the discretionary relief and this aspect of the matter has not been considered by the first appellate court, who has committed an error in setting aside the judgment without reversing the finding which has resulted in miscarriage of justice and accordingly the second appeal deserves to be allowed. 18. 18. Per contra Sri Vivek Raj Singh learned counsel for the respondent plaintiff has urged that the plaintiff has always been ready and willing to perform his part of the contract. He has specifically pleaded that he was always ready and willing to perform his part of the contract and in furtherance thereof he had paid a sum of Rs.30,000/-to the defendant in the month of December 1999 and as agreed between the parties the sale deed was to be executed on 31.12.1999, on which date, the plaintiff alongwith the balance sale consideration and carrying excess money for purchase of stamp duty and expenses had gone to the Registrar Office but the defendant did not turn up. He further urged that even in the month of January 2000, the plaintiff had paid a sum of Rs.2000/-to the defendant on 12.01.2000 and this was subsequent to the date of the notice which was sent by the plaintiff to the defendant dated 06.01.2000. Thus when the plaintiff had issued a notice on 06.01.2000 to the defendant making a clear statement that despite having agreed to come to the Registrar Office on 31.12.1999, the defendant failed and he was called upon to receive the balance sale consideration and execute the sale deed. It indicated that the plaintiff was ready and willing to perform his part of the contract. Moreover, after the service of notice the defendant received Rs.2000/-from the plaintiff and issued the receipt in his own hand writing which also indicated that the plaintiff was always ready to willing and perform his part of the contract and moreover time, was not the essence of the contract. It was further urged by Sri Vivek Raj Singh that the defendant gave a reply to the notice on 01.02.2000 and himself agreed to execute the sale deed on 08.02.2000. Thus, it clearly established the fact that neither the time was the essence of the contract nor even if it would have been then by the conduct of the defendant, he had extended the same and therefore the defendant was not entitled to take this ground regarding time being the essence of the contract to resist the decree which has been passed against him. 19. 19. Sri Vivek Raj Singh has further contended that the financial capacity of the plaintiff was never challenged by the defendant despite the same the plaintiff made a clear deposition in his examination-in-chief to the effect that he had taken the necessary money alongwith him to the Registrar Office to pay the defendant for getting the sale deed executed. 20. The plaintiff also examined one Neeraj Agarwal as P.W.2 who also deposed clearly that the plaintiff had taken money alongwith him to the Registrar Office on 31.12.1999, 08.02.2000 and 15.02.2000, thus both the witnesses were cross-examined and there has been no contradiction in their statement which could erase the fact that the plaintiff did not have a requisite means or the funds to get the sale deed executed. It has further been urged that in the agreement itself, there was no condition that the balance sale consideration would be paid through a banker cheque or bank draft and throughout, the transactions have been done in cash and it was the requisite sum which was carried by the plaintiff in cash on the three dates before the Registrar Office and therefore all this clearly amplified the fact that the plaintiff was always ready and willing to perform his part of the contract and it is only the defendant who was trying to delay the same, hence the first appellate court was justified in passing the decree which does not require any interference from this Court. 21. Learned counsel for both the parties have placed reliance on the decision of the Apex Court in the case of J. P. Builders and another Vs. A. Ram Das and another reported in 2011 Vol.(1) SCC page 429. 22. Sri Hari Om Singh while elaborating his submission has relied on paragraphs 22 and 23 of the case of J. P. Builders (supra) to buttress his submission that the word ready and willing imply that a person is prepared to carry out the terms of the contract while the word ‘readiness’ relates to the financial capacity. The word ‘willingness’ relates to the conduct of the parties who wants the performance and therefore unless and until both readiness and willingness not only is averred but also proved till then the decree of specific performance cannot be passed. Thus the submission is that the plaintiff has failed to prove the readiness and willingness, hence the decree is bad. The word ‘willingness’ relates to the conduct of the parties who wants the performance and therefore unless and until both readiness and willingness not only is averred but also proved till then the decree of specific performance cannot be passed. Thus the submission is that the plaintiff has failed to prove the readiness and willingness, hence the decree is bad. 23. The Court has considered the submission of the learned counsel for the parties and has carefully perused the record. 24. In order to crystallize the controversy, certain facts which are not disputed, are, the agreement dated 06.08.1999. It is also not disputed that a sum of Rs.25,000/-was paid at the time of execution of agreement and that a sum of Rs.30,000/-was paid by the plaintiff to the defendant in December, 1999. The controversy arises as to whether the plaintiff has been ready and willing to perform his part of the contract and as to whether the time was the essence of the contract in order to consider the aforesaid two aspects of the matter and also whether a discretionary relief of specific performance can be granted to the plaintiff when it was refused by the trial court in light of Sections 21 and 22 of the Specific Relief Act. 25. It would indicate from the record that the registered agreement to sell does not contain any reason why the defendant wanted to sell the property in question. The agreement does not mention that the period of five months enumerated therein shall be the essence of the contract. There is no consequence mentioned in case if the period of five months is flouted by the parties; inasmuch as generally if time is made the essence of the contract, a penalty is provided that in case if the obligation is not performed within the time mentioned in the agreement either the agreement would stand cancelled or unenforcible or/and the earnest money would stand forfeited. The agreement does not contain any such condition or clause. 26. From the pleadings of the parties, it is clear that the plaintiff has clearly averred in paragraphs 7 to 10 of the plaint that he was always ready and willing to perform his part of the contract. The agreement does not contain any such condition or clause. 26. From the pleadings of the parties, it is clear that the plaintiff has clearly averred in paragraphs 7 to 10 of the plaint that he was always ready and willing to perform his part of the contract. This is further substantiated by his statement in the examination-in-chief which was filed by the plaintiff bearing paper No.Ka 30 wherein positive assertions have been made that the plaintiff was ready and willing and has continuously been ready and willing even today to get the contract specifically enforced and to comply with his obligation. 27. In the backdrop of the pleadings, it cannot be said that there is any fault as far as the averments are concerned, now the only issue that require consideration is whether in light of the evidence lead by the parties, the finding returned by the first appellate court can be sustained or not. It is in view of the above that the court has meticulously gone through the evidence available on the record. 28. As far as the issue regarding time being essence of the contract is concerned, it is now fairly settled that generally in a contracts relating to immovable properties time is not the essence of contract unless it is specifically made applicable. In the present case, as already noted above, the agreement is absolutely silent on the point that the time was the essence of the contract. Moreover even on the perusal of the evidence, the defendant also could not establish that the agreement was dependent on the fact that in case if the money was not paid to him within a period of five months then he could have forfeited the amount. Moreover, the conduct of the defendant indicates that after the lapse of five months, he accepted a sum of Rs.2000/-from the plaintiff on 12.01.2000 and thereafter in reply to the notice the defendant himself agreed to execute the sale deed on 08.02.2000 which clearly indicates the intention that time was never the essence of the contract. 29. Moreover, the conduct of the defendant indicates that after the lapse of five months, he accepted a sum of Rs.2000/-from the plaintiff on 12.01.2000 and thereafter in reply to the notice the defendant himself agreed to execute the sale deed on 08.02.2000 which clearly indicates the intention that time was never the essence of the contract. 29. This Court is fortified in its view in light of the legal principles considered by the Apex Court on the point in issue from the decision of the Apex Court in the case of Chand Rani v Kamal Rani (1993) 1 SCC 519 held as under:- "It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language." Hon'ble the Apex Court in the case of N. Srinivasa v. Kuttukaran Machine Tools Ltd. (2009) 5 SCC 182 held as under:- “in the contract relating to immovable property, time cannot be the essence of the contract", the appellant put forth the contention that in all contracts relating to sale of immovable property, time stipulated for performance, even if expressed to be the essence, has to be read as not being the essence of the contract and consequently the contract does not become voidable by the failure to perform before the specified time. A careful reading of the said decision would show that the sentence relied on (occurring in para 31) apparently was not the statement of legal position, but a conclusion on facts regarding the contract that was being considered by the Court in that case, with reference to its terms. A careful reading of the said decision would show that the sentence relied on (occurring in para 31) apparently was not the statement of legal position, but a conclusion on facts regarding the contract that was being considered by the Court in that case, with reference to its terms. In fact the legal position is differently stated in para 27 of the said decision:- "In a contract for sale of immovable property, normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect, the said presumption can be rebutted. It is well settled that to find out whether time was the essence of the contract, it is better to refer the terms and conditions of the contract itself." 30. Taking into consideration the earlier judgment on the point in issue, Hon'ble the Apex Court in the case of Saradamani Kandappan vs. S. Rajalakshmi and others (2011) SCC 18 in para 26 held as under:- "Relying upon the earlier decisions of this Court in Gomathinayagam Pillai v. Palaniswami Nadar AIR 1967 SC 868 and Govind Prasad Chaturvedi v. Hari Dutt Shastri (1977) 2 SCC 539 held that fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. Where the contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. Thereafter, this Court held that even if time is not the essence of the contract, the Court may infer that it is to be performed in a reasonable time : (i) from the express terms of the contract; (ii) from the nature of the property ; and (iii) from the surrounding circumstances as, for example, the object of making the contract. The intention to treat time as the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not the essence in contract for sale of land." 30. Now coming to the issue of readiness and willingness, it will be relevant to note that the aforesaid is contained in Section 16 of the Specific Relief Act which for ready reference is reproduced herein after:- “Section 16. Now coming to the issue of readiness and willingness, it will be relevant to note that the aforesaid is contained in Section 16 of the Specific Relief Act which for ready reference is reproduced herein after:- “Section 16. Personal bars to relief:-Specific performance of a contract cannot be enforce in favour of a person:- (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the elation intended to be established by the contract; or (c) 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, other than terms the performance of which has been prevented or waived by the defendant. Explanation:-For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” 31. Amongst the above mentioned three clause, this Court is more concerned with the clause (c). It has now been settled that the word ready and willing has specific connotation; inasmuch as readiness has reference to financial capacity while willingness relates to the conduct of the plaintiff wanting specific performance. ‘Willingness’ is merely mental process while ‘readiness’ is something to do with translating the will into action and is preceded by necessary preparation of being in a position to be able to perform the obligation for getting the contracts specifically enforced. 32. ‘Willingness’ is merely mental process while ‘readiness’ is something to do with translating the will into action and is preceded by necessary preparation of being in a position to be able to perform the obligation for getting the contracts specifically enforced. 32. In order to establish the readiness and willingness, the plaintiff must examine himself to prove the same and lead oral evidence of the fact that the plaintiff was ready and willing, which has to be examined by the court in order to ascertain the consistency of the testimony to ascertain whether the deposition of the plaintiff and his witnesses fits with the rest of the evidence and probabilities of the case to enable the court to come to a conclusion whether the plaintiff is ready and willing to perform his part of the contract. 33. It is in this context, if the evidence lead by the parties in the present case is noted, it would be found that the plaintiff has clearly averred that he had the necessary means and funds which he carried with him to the Registrar Office to get the sale deed executed first on 31.12.1999 then in furtherance of the reply sent by the defendant on 08.02.2000 and then on 15.02.2000. It is not only mere averment but the plaintiff has also filed the receipts to indicate that he got his presence registered in the office of the Sub Registrar and had obtained receipts thereof. The same has been brought on record as paper No.Ga.1/26, Ga.1/26/2 and Ga.1/26/3. 34. The defendant cross examined the plaintiff wherein he stated that though he has an account in the District Cooperative Bank but he also keeps money at his residence. In his cross-examination, the plaintiff clearly stated that he had the money available with him since December 1999 so much so that he had paid a sum of Rs.30,000/-in cash to the defendant in December itself and had agreed to pay the balance sale consideration on 31.12.1999 later on 08.02.2000 and 15.02.2000 and and on the said dates the plaintiff had gone to the Registrar Office alongwith the requisite money and had also got his presence noted but the defendant did not come to execute the sale deed. The plaintiff also examined another witness, namely, Neeraj Agarwal who also in his cross examination clearly stated that the plaintiff had taken the money and he had accompanied the plaintiff to the Registrar Office but the defendant did not reach as a consequence the sale deed could not be executed. Thus, the plaintiff had gone to the Registrar Office on three dates, got his presence noted while the financial capacity is not seriously disputed and there is positive evidence to state that he had taken the money and was present on three dates and the defendant did not reach the Registrar Office as a consequence the sale deed could not be executed. Moreover upon the appraisal of the defendant’s evidence he has merely made bald averments to the effect that it was never agreed between the parties to be at the Registrar Office on 31.12.1999. He stated that he was present in the Registrar Office on 08.02.2000 but failed to adduce any evidence to indicate his presence in the Registrar Office. He also failed to indicate that he was present and the plaintiff had not come to get the deed executed and what measures were taken by the defendant rather he remained silent whereas the plaintiff again had gone to the Registrar Office on 15.02.2000 as the defendant had assured that on account of being ill, he could not reach the Registrar Office on 08.02.2000 and would come on 15.02.2000 to execute the sale deed. 35. The defendant did not produce any other witness of fact nor did he even issue a notice putting the plaintiff to caution that despite agreement the plaintiff was not present on 08.02.2000 while the defendant waited for him at the Registrar Office. The defendant neither gave a notice terminating the contract by spelling his reasons for doing so. 36. From the evidence, it is also evident that the defendant had stated that it is only after 08.02.2000 that he decided not to execute the sale deed, therefore, the totality of the circumstances indicate that up till 08.02.2000 time was not the issue at all in between the parties. The plaintiff has been able to substantiate that he was present in the Registrar Office with the money but it was the defendant who did not reach there. The plaintiff has been able to substantiate that he was present in the Registrar Office with the money but it was the defendant who did not reach there. Merely to say in the reply dated 01.02.2000 by the defendant that the plaintiff must bring the balance sale consideration in bank draft or banker cheque and since the plaintiff did not bring any bank draft/banker cheque the same would result in treating the plaintiff not being ready and willing is not sustainable since the mode of payment was never agreed in between the parities. It was merely a proposition extended by the defendant but not accepted by the plaintiff rather it is not even prescribed in the registered agreement, which could be made enforceable. Moreover, the entire transactions between the parties were being conducted in cash coupled with the fact that the defendant could not establish nor could elicit any contradiction in the testimony of the plaintiff which could cast a doubt over his financial capacity. 37. Moreover, the positive statement of the plaintiff that he had carried money to the Registrar Office and the defendant himself was not present was not controverted by cogent evidence. While the defendant could not establish his own presence at the Registrar Office on 08.02.2000. Only if he had gone there, could he know whether the plaintiff really did or did not have the money to get the sale deed executed. In absence of above, it is now not open for the defendant to state that the plaintiff was not ready and willing to perform his part of the contract. 38. The defendant also did not demand any payment of the sale consideration by sending any notice after December 1999 rather it was the plaintiff who sent the notice in January 2000 and also paid Rs.2000/-in January 2000 which was accepted and then defendant sent a reply in February 2000 fixing 08.02.2000 as date upon which he would execute the sale deed. All these instances together indicate the readiness and willingness of the plaintiff and that time was not the essence in between the parties. 39. The Apex court in the case of Azhar Sultana Vs. All these instances together indicate the readiness and willingness of the plaintiff and that time was not the essence in between the parties. 39. The Apex court in the case of Azhar Sultana Vs. B. Rajmani and others reported in (2009) 17 SCC 27 considering the question of readiness and willingness has held that it is not essential to show the cash or the document regarding the financial capacity such as pass-book or accounts statement especially when the defendant has not made any effort to raise the plea or to summon the said document from the plaintiff. Relevant extract is being quoted:- “It was not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof.” 40. The Apex court in the case of Gurdial Kaur Vs. Piara Singh reported in (2008) 14 SCC 735 considering the question of readiness and willingness has held as under:- “It is, however, trite that, even for the said purpose, the entirety of the plaint must be taken into consideration. If upon reading the plaint in its entirety, the Court comes to the conclusion that for all intent and purport, the requirements of Section 16(c) of the Specific Relief Act stood complied with, no exception thereto can be taken. We have noticed hereinbefore that the First Appellate Court inter alia opined that not only the plaintiff has expressed his readiness to purchase the land, his willingness to do so can be culled out from other averments made in the plaint as and in particular the one where he had stated that he had gone to the Registration Office for getting the deed of sale executed and registered but it was the defendant, who did not turn up thereafter. He has also fulfilled the criteria of his readiness and willingness to perform his part of the contract as not only he had paid a sum of Rs. 7,000/-on the date of the execution of the agreement, he had deposited a balance sum of Rs. 8,000/-on the date of presentation of the plaint. As a vendee what he could do was to offer the balance amount of consideration to the vendor and make arrangements for getting the sale deed executed and registered. 7,000/-on the date of the execution of the agreement, he had deposited a balance sum of Rs. 8,000/-on the date of presentation of the plaint. As a vendee what he could do was to offer the balance amount of consideration to the vendor and make arrangements for getting the sale deed executed and registered. If he has done all that, we are of the opinion that the Court of First Appeal was right in holding that he was ready and willing to perform his part of the contract.” 41. It is in this backdrop, if the principles laid down by the Apex Court in the case of J. P. Builder (supra) is considered in light of the discussion above, it would indicate that the continuous readiness and willingness on the part of the plaintiff is duly substantiated and the finding returned by the first appellate court is based on cogent and material evidence available on record. 42. This Court finds that the ground upon which the trial court dismissed the suit was that the plaintiff was a property dealer and wanted to entangle the contract in complication is a finding based on surmises; inasmuch as it does not find support from the material available on record. The second finding returned by the trial court that the plaintiff did not adhere to the payment mode as stated by the defendant in its reply dated 01.02.2000 also does not bear from the record and for the reason already discussed above that it was neither an agreed prescribed mode as mentioned in the agreement rather it was a mere proposition of one party which could not be made binding on the other especially in light of the fact that the parties were conducting the entire transactions in cash and once the defendant himself did not visit the Registrar Office on 08.02.2000, he had no means of knowing whether the plaintiff did possess the requisite finance or not and therefore the findings of the trial court were not sustainable and the first appellate court while considering the entire matter in its correct prospective has reversed the same. 43. As far as the discretion is concerned, it cannot be said that the case set up by the plaintiff is based on falsehood which dis-entitled him to the discretionary remedy of specific relief. 44. 43. As far as the discretion is concerned, it cannot be said that the case set up by the plaintiff is based on falsehood which dis-entitled him to the discretionary remedy of specific relief. 44. It was the defendant who pleaded falsely by denying the receiving of the amount of Rs.2000/-and Rs.6000/-respectively especially when he had issued a receipt for Rs.2000/-in his own handwriting. 45. The mere fact that the plaintiff stated that he had paid Rs.6000/-which was proved but it was found that the same was in respect of a different transaction will not castigate the plaintiff to an extent to deprive him of the decree. 46. The trial court refused the decree primarily on the ground that the plaintiff could not establish his readiness and willingness and not on the ground of falsity of his claim. 47. Thus once it is found that plaintiff was ready and willing and this having been affirmed by this court, then the decree cannot be refused on a mere feeble plea of the defendant that the plaintiff introduced a false case, which needless to say could not be established by the defendant. 48. Thus, this Court is of the view that the findings of the first appellate court regarding the plaintiff being ready and willing is based on proper appreciation and appraisal of the evidence and this court accepts the same. No perversity could be pointed out which could persuade this Court to set aside the findings returned by the first appellate court. 49. No perversity could be pointed out which could persuade this Court to set aside the findings returned by the first appellate court. 49. Lastly, the submission of the learned counsel for the appellant that the points for determination has not been framed which has resulted in miscarriage of justice is quite incorrect; inasmuch as this Court had the occasion to consider the spirit of Order XLI Rule 31 CPC in the case of Dalla vs. Nanhu, reported in 2019 (1) ADJ Page 246 and it was held as under:- "The spirit of the provision is to ensure that the appellate Court must record reasons for the decisions and is to focus attention of the Court to rival contentions of the parties which arise for determinations and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which the decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal conferred by Section 100 CPC. Applying the ratio of the aforesaid judgments as mentioned above, if the judgment passed by the lower appellate court is perused, it indicates that the lower appellate Court has discussed the narration of facts of the case of the parties to the lis, the submission urged by the parties, the legal principles applicable and involved and has also given its finding in support of its conclusions". "In order to successfully canvass the point of noncompliance of Order XLI Rule 31 CPC, it is not mere non framing of points of determination alone, but consequent failure of justice must also be established occasioned to a party. The purpose and object of incorporating Section 99 CPC is to prevent mischief, which may be caused by the reversal of the decree in a case of this kind. The purpose and object of incorporating Section 99 CPC is to prevent mischief, which may be caused by the reversal of the decree in a case of this kind. Thus, unless and until the non-compliance of Order XLI and Rule 31 CPC is of such a nature that it affects the merits of the case or the jurisdiction of the Court or the soul of the provision is robbed by not discussing the bare facts, issues arising therefrom, the rival points urged and recording of reasons upon which the judgment is based, till then minor infraction of the aforesaid provision will not give a latitude to a party to assail a judgment and seek its reversal only on this infraction under Section 100 CPC." 50. Since the learned counsel for the appellant could not point out that any submission or point raised by the appellant which was not considered by the first appellate court nor it could be pointed out that the judgment of the first appellate court has not assigned reason thus in view of the law laid in the case of Dalla (supra) the submission of the learned counsel for the appellant fails. Accordingly, the judgment and decree passed by the first appellate court dated 28.10.2010 in Regular Civil Appeal No.64 of 2008 is upheld and affirmed as a consequence the second appeal fails and is dismissed. There shall be no order as to costs. 51. The record of the trial court be returned to the court concerned within a period of two weeks.