TMI Blog2003 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. Defendant No. 3, the appellant herein, purchased the suit property by reason of a registered deed of sale dated 15.5.1984 for valuable consideration of ₹ 50,000/-. The plaintiff on or about 15.5.1984 admittedly made an enquiry in the C.T.S. Office to obtain the C.T.S. extract of the suit property, when he came to learn that the defendant already executed a registered sale deed in respect of the suit property in favour of the appellant whereupon he served a notice dated 8.8.1984 upon Defendant Nos. 1 and 2 demanding specific performance of the said agreement of sale dated 1.10.1978. As regards cause of action, in the Plaint it was stated: The cause of action to this suit arose on 8.8.1984 when the plaintiff got served the notice to the defendants demanding specific performance of agreement of sale dated 1.10.1978 and when the defendants failed to execute the sale deed in favour of the plaintiff. 3. It is not in dispute that the plaintiff in his plaint did not make any averment as regard his readiness and willingness to perform his part of the control as is mandatorily required in terms of Section 16(c) of the Specific Relief Act, 1963. He merely alleged: After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the impugned judgment solely on the ground that defendant No. 1 did not contest the suit. The learned counsel would submit that an averment in terms of Section 16(c) of the Specific Relief Act, 1963 is mandatory. Strong reliance in this regard was placed on Syed Dastagir v. T.R. Gopalakrishna Setty AIR1999SC3029 . 8. The learned counsel would next contend that, in any event, having regard to the fact that the trial court as also the first appellant court did not exercise their discretionary jurisdiction in terms of Section 20 of the said Act, the high court should not have interfered therewith. 9. Mr. Mohale urged that although time was not the essence of contract, but it was obligatory on the part of the plaintiff to file a suit within a reasonable time. Reliance in this connection has been placed on K.S. Vidyanandam and Ors. v. Vairavan reported in: AIR1997SC1751 . 10. Mr. Amarendra Sharan, the learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that having regard to the statements by the Plaintiff made in Paragraph 6 of the plaint, as referred to hereinbefore, as also in his deposition wherein he stated that even on that day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed. Apart from the fact that the date of the purported demand has not been disclosed, admittedly no such demand was made upon defendant No. 1. We may notice, at this juncture, that the plaintiff in his evidence admitted that defendant No. 1 had revoked the power of attorney granted in favour of defendant No. 2. In his deposition, he merely stated that such revocation took place after the agreement for sale was executed. If he was aware of the fact that the power of attorney executed in favour of defendant No. 2 was revoked, the question of any demand by him upon the defendant No. 2 to bring the defendant No. 1 for execution of the agreement for sale would not arise at all. Furthermore, indisputably the said power of attorney was not a registered one. Defendant No. 2, therefore, could not execute a registered deed of sale in his favour. The demand, if any, for execution of the deed of sale in terms of the agreement of sale could have been, thus, made only upon the Defendant No. 1, the owner of the property. The balance consideration of ₹ 10,000/- also could have tendered only to Defendant No. 1. As indicated hereinbefore, the purported notice was issued only on 8.8.1984, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract. 19. In Abdul Khader Rowther v. P.K. Sara Bai and Ors.: 1989(43)ELT797(SC) this Court followed Ouseph Varghese (supra) holding: His plaint does not contain the requisite pleadings necessary to obtain a decree for specific performance. This equitable remedy recognized by the Specific Relief Act cannot be had on the basis of such pleadings and evidence. 20. The question again came up for consideration before a three Judge bench of this Court in Syed Dastagir v. T.R. Gopalakrishna Setty: AIR1999SC3029 . 21. Therein also the earlier decisions of this Court in Abdul Khader Rowther (supra) and Ouseph Varghese (supra) were not referred to. However, inter alia noticing R.C. Chandiok (supra), this Court observed: 13. It was held in the case of R.C. Chandiok v. Chuni Lal Sabharwal: [1971]2SCR573 that readiness and willingness cannot be treated as a strait-jacket formula. This has to be determined from the entirety of the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready and willing to perform his part? Courts cannot draw any inference in the abstract or to give such hypertechnical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then cannot be said there is non-compliance of the said section. (Emphasis supplied) 24. This Court further noticed that despite Explanation appended to Section 16(c), the plaintiff can always tender the amount to the defendant to deposit in the court for performance towards the contract under the obligation of the contract with a view to exhibit to perform his part of obligation. 25. The afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved. 6. Next and the only other circumstance relied upon is about the tendering of ₹ 5000, which was made on 2.3.1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case the only other payment made by the plaintiff was ₹ 5000 at the time of execution of the agreement of sale. Thus, the total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but it has to be proved so. It is not in dispute that except for a plea there is no other evidence on record to prove the same except the two circumstances. It is there that mere absence of a plaintiff coming in the witness box by itself may not be a factor to conclude that he was not ready and willing in a given case as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discriminatory relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discriminatory relief. 31. In Veeravee Ammal v. Seeni Ammal AIR2001SC2920 the law is stated in the following terms: 11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal Rani AIR1993SC1742 held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case. 12. In K.S. Vidyanandam v. Vairavan AIR1997SC1751 this Court held: Even where ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. v. Jaipur Traders Corporation Pvt. Ltd. [2002]3SCR445 this Court observed: 9. We are of the view that the High Court failed to address itself to certain crucial factors which disentitles the plaintiff to equitable relief. The High Court reversed a well-considered judgment of the trial court without adverting to the reasoning of the trial court except in a cursory manner. In the view we are taking, it is not necessary for us to dilate on various legal issues debated before us. We shall proceed on the basis that in law the plaintiff could annul the contract of sale before the act of registration got completed and title passed to the appellant. We shall further assume that the plaintiff in fact rescinded the contract with effect from the date of expiry of the time stipulated in the fourth and final notice dated 3-7-1973. If such rescission or termination of contract is not justifiable on facts or having regard to the conduct of the plaintiff, the equitable relief under Section 27 or 31 of the Specific Relief Act has to be denied to the plaintiff, no further question arises for consideration. In such a case, the appellants' plea has to be accepted and the suit is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case . 38. Yet again in Gujarat Steel Tubes Ltd., etc. v. Gujarat Steel Tubes Mazdoor, Sabha and Ors. (1980)ILLJ137SC the law is stated in the following terms: 73. While the remedy under Article 226 is extraordinary and is of Anglo-Saxon vintage, it is not a carbon copy of English processes. Article 226 is a sparing surgery but the lancet operates where injustice suppurates. While traditional restrains like availability of alternative remedy hold back the court, and judicial power should not ordinarily rush in where the other two branches fear to tread, judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the court's province and the remedy is appropriate to the judicial process. There is a native hue about Article 226, without being anglophilic or Anglophobic in attitude. Viewed from this jurisprudential perspective, we have to be cautious both in not overstep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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