TMI Blog2005 (9) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff for specific performance of Ext. A1 agreement for sale. His case is that the defendant executed Ext.A1 agreement in his favour agreeing to sell the suit property for a consideration of ₹ 12,000. An advance of ₹ 8,000 was paid on the date of the agreement i.e. 15.2.1978. The period fixed for the execution of the sale deed was six months from the date of the agreement. Though the plaintiff was ready and willing to perform his part of the contract, the defendant was not prepared to execute the sale deed. The defendant resisted the suit contending that though he executed Ext.A1 agreement in favour of the plaintiff, it was executed only as security for the amount paid by the plaintiff to him. It was also contended that the property covered by the agreement is owned by the defendant and his wife jointly and since the property has not been partitioned, the defendant had no legal right to enter into an agreement for the sale of the entire property. The defendant further pleaded that on 15.2.1978 itself, (Ext.B1) the plaintiff had executed an agreement in favour of the defendant agreeing not to enforce the specific performance of the agreement. On these contentions, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concurred with the view. In order to appreciate the rival submissions Section 16(c) needs to be quoted along with the Explanations. The same reads as follows: 16. Personal bars to relief: (a) ......... (b) ......... (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 of the performance of which has been prevented or waived by the defendant. Explanation - For the purpose 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 accordingly to its true construction. In Ardeshir H. Mama v. Flora Sassoon, (AIR 1928 PC 208), the Privy Council observed that where the injured party sued at law for a breach, going to the root of the contract, he thereby elected to treat the contract as at an end himself and as discharged from the obligations. No further performanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While examining the requirement of Section 16(c) this Court in Syed Dastagir v. T.R. Gopalakrishna Settty, [1999] 6 SCC 337 noted as follows: So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the same. `R', however, received earnest money pursuant to the agreement for sale which provided that the balance of consideration would be paid within a month at the time of the execution of the registered sale deed. Under the agreement `R' was under obligation to obtain permission and sanction from the Government before the transfer of leasehold plot. `R' did not take any steps to apply for the sanction from the Government. `A' filed the suit for specific performance of the contract for sale. One of the contentions of `R' was that `A' was not ready and willing to perform his part of the contract. This Court observed that readiness and willingness could not be treated as a straitjacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. It was held that in the absence of any material to show that `A' at any stage was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained, `A' was entitled to a decree for specific performan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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