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2025 DIGILAW 610 (KAR)

Kumari Manjula v. R. Yellamma

2025-06-27

JYOTI MULIMANI

body2025
JUDGMENT : Jyoti Mulimani, J. Sri.C.S.Prem Kumar, counsel on behalf of Sri.Vijaya Krishna Bhat, M., for the appellants and Sri.Jay Kishan Sharma and Sri.Gopal Singh, counsel for respondents 1 to 4, and Sri. Nataraj, counsel for respondents 5(B to D), have appeared in person. 2. This is an appeal from the Court of XI Addl. City Civil Judge, Bangalore City. 3. For convenience's sake, the parties are referred to as per their status and rankings before the Trial Court. 4. The plaint averments are these: The defendants are the owners in possession and enjoyment of a residential house property bearing Site No.52, Municipal No.7, measuring East - West 25 feet North - South 30 feet, consisting of ground, first and second floor situated at 6 th cross road, 2 nd street, Kempapura Agrahara, Bengaluru. The defendants, for their legal necessity, jointly and severally offered to sell the said property to the plaintiff for a valuable sale consideration of Rs.11,00,000/- and executed a registered sale agreement on 21.11.2005 and received Rs. 7,00,000/- on the same day from the plaintiff towards part payment of sale consideration. As per the terms of the agreement, the defendants agreed to execute a registered sale deed in favor of the plaintiff within 24 months from the date of the sale agreement. The defendants also handed over title deeds and other relevant documents to the plaintiff. The plaintiffs were always ready and willing to perform their part of the contract and to get the sale deed registered in their favor by paying the balance sale consideration amount. However, the defendants postponed the same on one or another pretext. Hence, the plaintiffs were constrained to issue a legal notice on 24.03.2007 calling upon the defendants to execute the sale deed. However, the said notice was returned as unserved. Thereafter, the notice issued under a certificate of posting was served on the defendants. Despite the same, the defendants neither complied with the notice nor gave a reply. Hence, the plaintiffs were constrained to take shelter under the Court of law and filed a suit for the relief of specific performance. After service of the suit summons, the defendants appeared through their counsel and filed a common written statement asserting that they are the absolute owners in possession of the suit schedule property. They denied the execution of the sale agreement and denied the receipt of amount of Rs.7,00,000/-. After service of the suit summons, the defendants appeared through their counsel and filed a common written statement asserting that they are the absolute owners in possession of the suit schedule property. They denied the execution of the sale agreement and denied the receipt of amount of Rs.7,00,000/-. Urging other contentions, the defendants specifically contended that they needed money; hence, they intended to mortgage the property, and one Mr.Anand Kumar took them to the sub-registrar office and, without explaining the contents of the papers, got them to sign the documents. The defendants contended that they were under the impression that they were executing a mortgage deed; however, they came to know that it was an agreement for sale. Among other grounds, they prayed for dismissal of the suit. Based on the above pleadings, the Trial Court framed issues. The parties led evidence and documents were exhibited. The Trial Court vide Judgment and Decree dated 14.09.2016 dismissed the suit. Hence, the plaintiffs have filed the present appeal under Section 96 of the CPC. 5. Counsel Sri.C.S.Prem Kumar, for the appellants, submits that the Judgment and Decree of the Trial Court is contrary to the law and documentary and oral evidence on record. Next, he submits that the Trial Court seriously erred in dismissing the suit by holding that the plaintiffs had no financial capacity to pay the balance sale consideration, and they have not proved their readiness and willingness. A further submission is made that the Trial Court seriously erred in concluding that the plaintiffs have not produced any documents to show that they were having balance amount of Rs.4,00,000/- along with them. Counsel contended that in a suit for specific performance, the plaintiff need not show the availability of hard cash with him/her, but it is sufficient to demonstrate that they had the capacity and means to raise the funds to pay the balance sale consideration. Counsel vehemently contended that the Trial Court seriously erred in holding that the time of two years fixed in the agreement shows that the plaintiffs were not ready with the balance sale consideration. Counsel submits that it is the discretion of the parties to fix the period to complete the sale transaction. Lastly, he submits that viewed from any angle, the Judgment and Decree of the Trial Court is liable to be set aside. Counsel submits that it is the discretion of the parties to fix the period to complete the sale transaction. Lastly, he submits that viewed from any angle, the Judgment and Decree of the Trial Court is liable to be set aside. Counsel, therefore, submits that the appeal may be allowed and the plaintiffs' suit may be decreed. Counsel placed reliance on the following decisions: I. R. SHAMA NAIK VS. G. SRINIVAIAH - SLP (CIVIL)NO.13933/2021. II. JAMAL VS. NARESH KUMAR - RSA 856/2015 (PUNJAB AND HARYANA, CHANDIGARH). III. R. KANDASAMY (SINCE DEAD) & OTHERS VS.T.R.K. SARASWATHY AND ANOTHER WITH M/S.ABT LIMITED VS. T.R.K. SARASWATHY AND OTHERS - CIVIL APPEAL NO.3015/2013. IV. SUKHBIR SINGH AND OTHERS VS. BRIJ PAL SINGH AND OTHERS - (1997) 2 SCC 200. V. P. DAIVASIGAMANI VS. S. SAMBANDAN - AIR2022 SC 5009. VI. HIS HOLINESS ACHARYA SWAMI GANESH DASSJI VS. SITA RAM THAPAR - (1996) 4 SCC 526 . VII. SATYA JAIN (DEAD) THROUGH LRS AND OTHERS VS. ANIS AHMED RUSHDIE (DEAD) THROUGH LRS. AND OTHERS - (2013) 8 SCC 131 . 6. Counsel Sri.Jay Kishan Sharma, for respondents 1 to 4, justified the Judgment and Decree of the Trial Court. Next, he submits that the Trial Court is justified in answering Issue No.3 in the negative. A further submission is made that the plaintiff must prove the readiness and willingness throughout the decree, and a mere oral statement is not sufficient. He submits that, in the present case, plaintiffs have only averred that they were ready and willing to perform their part of the contract, but have failed to prove the same till the date of the decree. Counsel vehemently contends that the Trial Court has erred in concluding that defendants failed to prove that the agreement for sale is a mortgage deed, and it was obtained in collusion with one Mr.Anand Kumar. Lastly, he submits that the Trial Court extenso, referred to the material on record and rightly dismissed the suit. The appellants have not made any grounds to interfere with the Judgment of the Trial Court. Counsel, therefore, submits that the appeal may be dismissed. Counsel for respondents 1 to 4 submits that a memo of citation has been filed furnishing the proposition of law, and the same may be placed on record. Memo is placed on record and perused the proposition of law with care. Counsel, therefore, submits that the appeal may be dismissed. Counsel for respondents 1 to 4 submits that a memo of citation has been filed furnishing the proposition of law, and the same may be placed on record. Memo is placed on record and perused the proposition of law with care. Counsel for respondents 5(B to D) justified the Judgment and Decree of the Trial Court and submits that the appeal may be dismissed. Heard the arguments and perused the appeal papers and the records with care. 7. The short point that requires consideration is whether dismissal of the suit is just and proper. 8. The facts are sufficiently said and do not require reiteration. The issue falls within a narrow compass and relates to the refusal to grant the relief of specific performance. In this case, the plaintiffs sued to enforce the specific performance of a Contract to execute a conveyance in respect of the suit property. Suffice it to note that the Trial Court framed as many as five issues, and the issue relating to the execution of the sale agreement was answered in plaintiffs'favor. In this appeal, the main contention on behalf of the plaintiffs relates to the factum of readiness and willingness. A good deal of argument is canvassed about ready and willing. Let me consider the same. The law is well-settled that the plaintiff must aver as well as prove his readiness and willingness to perform his part of the obligation. The controversy revolves around readiness and willingness; hence, let us quickly glance at the distinction between the two. The distinction between readiness and willingness is that the former has reference to financial capacity, and the latter to the conduct of the plaintiff wanting specific performance. While ‘willingness’ is merely a mental process, ‘readiness’ is something to do with translating that will into action and is preceded by the necessary preparation of being in a position to be ready. In other words, while ‘willingness’ may be something to do mainly with a person’s mental process to do an act, the readiness implies proximity of such willingness and its ultimate physical manifestation. 'Readiness' must, in all cases, be backed by ‘willingness’ and its imminent physical action is demonstrated when it is about to be put into action. 9. In other words, while ‘willingness’ may be something to do mainly with a person’s mental process to do an act, the readiness implies proximity of such willingness and its ultimate physical manifestation. 'Readiness' must, in all cases, be backed by ‘willingness’ and its imminent physical action is demonstrated when it is about to be put into action. 9. Reverting to the facts of the case, the plaintiffs issued a legal notice on 24.03.2007 and called upon the defendants to perform their part of the contract. Before the Trial Court, the plaintiffs specifically contended that they were ready and willing to perform their part of the contract and pay the balance consideration. Even in this Court, they have adhered to the said contention. Counsel for the respondents contends that the legal notice issued is a counterblast to the Police complaint and the plaintiffs were not ready and willing to perform their part of the contract from the date of the agreement till the decree. The onus of proof of being ready and willing to perform his part of the contract from the date of the contract to the date of filing of the suit is on the plaintiff. An averment that the plaintiff is ready and willing to perform his part of the contract is sufficient compliance with Section 16(c) of the Specific Relief Act. It is not necessary for the plaintiff to further aver that he had made a demand upon the defendant to execute the sale deed on a particular date. Nor is it necessary that the plaintiff must have averred his readiness and willingness in the notice, if he has sent one. Readiness and willingness of a person seeking performance, in a case where time is provided for performance, means that the person claiming performance has kept the contract subsisting with preparedness to fulfill their obligations, and accepts performance when the time for performance arrives. In the present case, time was the essence of the contract. Two years were fixed for the completion of the contract. The Trial Court, despite holding that the plaintiffs had proved the agreement, erroneously concluded that the plaintiffs were not ready and willing to perform their part of the contract solely on the ground that the plaintiffs had failed to furnish the documents to show that they were having the balance amount to complete the transaction. The Trial Court, despite holding that the plaintiffs had proved the agreement, erroneously concluded that the plaintiffs were not ready and willing to perform their part of the contract solely on the ground that the plaintiffs had failed to furnish the documents to show that they were having the balance amount to complete the transaction. The finding and the conclusion about the financial capacity are untenable in law. The reason is apparent. The law is settled that a purchaser, to succeed in a suit for specific performance, need not show that he had the consideration money with him, nor that he had arrangements for it, but that he was ready and willing to go through with the contract. The question is one of fact. The plaintiff purchaser doesn't need to vouch for a concluded scheme for financing the transaction. A buyer is sufficiently 'ready' when he is in a position to borrow money to make payment of the price. No adverse inference can be drawn against the plaintiff about his readiness and willingness for the non-production of accounts, or for not filing any passbook. The agreement for sale is dated 21.11.2005, and time was the essence of the contract, and the plaintiffs have proved the agreement for sale. Taking note of the oral and documentary evidence, it can be safely held that the plaintiffs have proved their readiness and willingness to perform their part of the contract, as well as the default committed by the defendants despite the requests and demands and issuance of legal notice for the execution of the sale deed. Hence, this Court is of the view that the plaintiffs must succeed. 10. Lastly, counsel for the respondents submits that the Trial Court has erred in answering Issue No.2 in the Negative. They argued to contend that there was a mortgage deed and not an agreement for sale. In my view, the finding as regards Issue No.2 is just and proper. Counsel for the respective parties placed reliance on several decisions, but I do not think the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid decisions. For the reasons stated above, this Court holds that the suit of the plaintiffs must be decreed with costs. 11. The Judgment and Decree dated 14.09.2016 passed by the XI Addl. Each decision turns on its facts. The present case is also tested in light of the aforesaid decisions. For the reasons stated above, this Court holds that the suit of the plaintiffs must be decreed with costs. 11. The Judgment and Decree dated 14.09.2016 passed by the XI Addl. City Civil Judge, Bengaluru City in O.S.No.4000/2007 is set aside. The suit of the plaintiffs is decreed with costs. The defendants are directed to execute the sale deed on receiving the balance consideration of Rs.4,00,000/- within three months from the date of this order, failing which the plaintiffs are to secure the sale deed through the Court. The Registry concerned is hereby directed to draw the decree accordingly.