1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.575/2006. Shyamrao Ghagbaji Giradkar ..vs.. Rajkumar Keshavrao Bambal and anr. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 15th February, 2008. 1. Heard Mr.M.P.Khajanchi, Advocate for the appellant and Mr.S.Y.Deopujari, Advocate for the respondents. 2. This second appeal is preferred by the defendant against whom a decree for Specific Performance has been passed. It is alleged that an agreement took place on 6/1/1992 and the sale-deed was to be executed on 30/5/1992. The sale-deed could not be executed on 30/5/1992 as was agreed. It is alleged that the plaintiff paid sum of Rs.5000/- to the defendant on 1/6/1992. It is the case of the plaintiff that the defendant was to remove the name of one of the co-owners, which was recorded in the revenue 2 record. The defendant did not do so. Ultimately the plaintiff issued a notice to the defendant on 6/10/1993 calling upon the defendant to execute the sale-deed. Ultimately, the plaintiff was required to file the suit for Specific Performance of the Contract. 3. The plaintiff instituted the suit for specific performance. The appellant/defendant's contention was that the respondent/plaintiff himself was not ready and willing to take the sale-deed. He has not shown his promptness in taking the sale-deed. The defendant also denies that there was any condition of removal of name of defendant no.2 from the revenue record. 4. The courts below have concurrently found that the plaintiff was always ready and willing to perform his part of contract and it is defendant who did not care to perform his part of contract. Holding so, both the courts have passed a decree for specific performance of contract. 5. The learned counsel for the appellant/defendant submits that there is no proper averment in the plaint itself that the plaintiff was always ready and willing to perform his part of contract and the pleadings of the plaintiff are not as per format given in appendix 'A' of Code of Civil Procedure. The learned counsel for the appellant/defendant 3 particularly submits that as per format No.48 in appendix 'A', the plaintiff does not aver that he had paid the amount and that he demanded the transfer and subsequently also the plaintiff once again demanded the transfer of the field in his favour. He relied on decision of the Supreme Court reported in (2003) 10 SCC 390 (Manjunath Anandappa URF Shivappa Hanasi ..vs.. Tammanasa and ors.). Although the pleadings of the plaintiff may not have been drafted as contemplated by format no.47 and 48, yet one will find from the pleadings that the plaintiff certainly avers that he was ready and willing to perform his part of contract. Not only he has averred but it appears from the conduct of the plaintiff that subsequent to the agreement of sale he even paid Rs. 5000/- to the defendant on 1/6/1992. While looking to the question of readiness and willingness, the court has to necessarily look into the contract and find out what each party is required to do. As far as the plaintiff- purchaser is concerned, it appears from the agreement itself that apart from paying money to appellant/defendant, the plaintiff is not required to do anything in the matter. Although it is clear from the agreement of sale that the sale-deed was to be executed by 30/5/1992, but subsequent to this date it is the defendant who accepted the sum of Rs.5000/- from the plaintiff which apparently goes to show that the time was not the essence of the contract. Had it 4 been an essence, the defendant would not have accepted the amount and the fact that he so accepted suggests that the parties still intended to extend the time for conclusion of the contract by execution of the sale-deed. As a result, the second decision which is reported in (1997)3 SCC 11 (High Court of Judicature at Allahabad through its Registrar ..vs.. Raj Kishore Yadav and ors.) has no bearing on the case at hand. 6. Learned counsel for the respondent, on the other hand, has placed a decision before me, which is reported in 2006 SC 2172 ((Mst.Sugani ..vs.. Rameshwar Das and Arn.). In this recent judgment, the Supreme Court has observed that the basic principle behind Section 16(c) read with Explanation 2 is that any person seeking benefit of Specific Performance of Contract must manifest that his conduct has been unblemished throughout for entitling him to specific performance. The court has to grant the relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the sale-deed, he should not be denied the relief. In the instant case, the courts below have concurrently found that the pleadings of the plaintiff were enough to conclude that he was ready and willing to perform part of contract. It is clear from the pleadings of the plaintiff that he was always ready and willing to perform his part of contract. Had he not 5 been ready and willing, as is alleged, he would not have subsequently paid a sum of Rs.5000/- to the defendant. His conduct in paying Rs.5000/- to the defendant subsequent to the date of agreement clearly goes to show that he was and he always intended to take sale-deed. The evidence, therefore, also has been rightly considered by the courts below. The Supreme Court in Mst.Sugani's case has pointed out that the Supreme Court had struck a different note with regard to the format of the pleadings in a case reported in (1970) 3 SCC 140. Obviously, Therefore, it is clear that the pleadings should be enough to find out if the plaintiff was and is ready and willing to perform his part of contract. If that can be gathered from the pleadings read as a whole, then there should be no difficulty in granting decree for specific performance and bar under Section 16(c) would not come in the way. In the instant case, as pointed by the courts below, the plaintiff has shown his readiness and willingness. On the other hand, it is observed by the courts below that it was defendant, who did not remove the name of the person whose name was appearing in the revenue record and the plaintiff was insisting upon the defendant to do so. 7. The written statement filed by the defendant no.2 in the instant case clearly indicates that the defendant no.2 also has some share in the suit 6 property because she has admitted the claim of the plaintiff and has demanded that she should be paid her share out of the consideration that may be paid after execution of the sale-deed. It is precisely averred by the plaintiff that the defendant had agreed to obtain the signatures of others who were interested in the suit property. The defendant has specifically denied this aspect even though it is so mentioned in the agreement of sale. In fact, therefore, it could be said that it was the defendant who was reluctant to execute the sale-deed and on that pretext avoided the execution of sale deed. I, therefore, do not find that the appeal needs to be admitted. There is no substantial question of law involved in the appeal. The appeal is dismissed in limine. JUDGE pzc