IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 233 of 2001. Judgment reserved on 6th July, 2010. Decided on: 21st July, 2010. _______________________________________________________ Smt. Ruldi Devi ….Appellant. Versus Smt. Anju alias Manju and another ……..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. S.S. Mittal, Senior Advocate with Mr. Surinder Parkash Sharma, Advocate. For respondent No.1 : Mr. B.N. Sharma, Advocate. For respondent No.2 : Mr. O.P. Sharma, Senior Advocate with Mr. K.R. Kashyap, Advocate. __________________________________________________________ SURINDER SINGH, J. Appellant was a plaintiff before the learned District Judge. She on the basis of agreement to sell Ex.PW1/A, filed a suit for possession against the defendant/ respondent No.1 by way of specific performance with consequential relief of injunction with respect to house No.202, Ward No.1, Ram Shila, Akhara Bazar, Kullu, District Kullu, in short “the suit property”. The learned District Judge held that the appellant herein had committed the breach of agreement by not paying the agreed instalments in time, consequently, respondent No.1 had to sell her land to respondent No.2 on a lesser amount, thus the earnest money stood forfeited. Whether reporters of the Local papers are allowed to see the judgment? . - 2 - Therefore, the suit was dismissed vide its detailed judgment passed in Civil Suit No.1 of 1998. 2. Precisely, the facts giving rise to the instant appeal are that respondent No.1 Anju alias Manju entered into agreement on 8.11.1995 to sell the suit property to the appellant for a sum of Rs.3,30,000/- and also received the earnest money to the tune of Rs.70,000/- from the appellant. The balance amount was agreed to be paid in instalments, the first instalment commencing from March, 1996, second was to be paid in August, 1996 and third in October, 1996 and the balance of Rs.1,30,000/- on or before December 31, 1996. Written agreement was executed to this effect. In compliance, the appellant is alleged to have tendered the agreed instalments to respondent No.1 aforesaid in first week of every month in time, but the said respondent kept on dillydallying the matter and did not accept it. Finally, she tendered an amount of Rs.2,60,000/- to her on 31.12.1997. The said respondent promised to visit the office of Sub Registrar, Kullu for the execution of the sale deed. The appellant reached there, but defendant/ respondent No.1 intentionally did come there and defrauded her. Thus the suit was filed for specific performance of the contract and possession of the house as aforesaid. 3. It is averred that after receiving the notice, the suit property was sold to respondent No.2 for a sum of Rs.1,05,000/- which was a Sham transaction, without consideration and collusive to defeat the rights of the - 3 - appellant. Thus, the subsequent sale is not binding upon her and the appellant had been always ready and willing to perform her part of agreement, but respondent No.1 did not comply with the terms and conditions, as such in the suit above relief was sought. 4. Respondent No.1 put in appearance and filed the written statement. She admitted the execution of the agreement aforesaid, but specifically denied the tendering of the instalments as alleged. But, however, her case was that she required money as she had to repay the loan amount and to meet the expenses to defend her son who was in jail. Despite repeated requests the appellant did not make the payment of instalments, therefore, the earnest money which paid to her also stood forfeited and the said agreement was cancelled. According to her, she was in need of money, thus sold the suit property on less amount to respondent No.2. She also denied that the appellant offered Rs.2,60,000/- on 31.12.1997. She categorically stated that the appellant was not willing and ready to perform her part of the agreement. Having denied the cause of action, questioned the locus standi of the appellant to file suit, therefore, prayed for dismissal of the suit. 5. Respondent No.2 vide his separate written statement claimed to have purchased the suit property for a sum of Rs.1,05,000/-. He also averred that he made improvements and spent huge money thereupon and claimed himself to be a bonafide purchaser in good faith for - 4 - a valuable consideration to the knowledge of the appellant. He also took up the objection of mis-joinder of necessary parties vis-a-vis questioned her locus-standi to maintain the suit against him. 6. From the pleadings of the parties, they were put on trial on the following issues:- 1. Whether the defendant has committed breach of sale agreement dated 8.11.1995, if so, its effect? OPP. 2. Whether the suit is bad for mis-joinder of necessary parties? OPD. 3. Whether the plaintiff is estopped to file the suit by her own act, conduct and acquiescence? If so, its effect? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit? OPD-2. 5. Whether the defendant No.2 is a bonafide purchaser of the property for consideration? If so, its effect? OPD-2. 6. Whether the suit property is different to that of sold to defendant-2? If so its effect? OPD-2. 7. Relief. 7. After the complete trial, the learned District Judge held that the appellant was not entitled for the decree of specific performance of contract as she herself was guilty of not performing part of contract nor ever offered balance sale consideration as was agreed by her under the agreement, in which time was the essence of the contract. Hence after returning the findings on issues No.3 to 5 in affirmative and on other issues in negative, the suit - 5 - was dismissed, against which the present appeal has been filed. 8. Shri S.S. Mittal, learned Senior Advocate duly assisted by Shri Surinder Parkash Sharma, vehemently argued that the evidence on record clearly proved that the plaintiff had been tendering the instalments as agreed between the parties, but respondent No.1 did not honour and accept it, later when she was served in the suit, she sold the suit property to respondent No.2 without any necessity on a lesser amount, during the pendency of the lis, malafidely. The sale deed Ext.DA in favour of said respondent No.2 was executed only to deprive of the plaintiff from her legal right. He also canvassed that the learned trial Court ignored the important facts proved on record and wrongly placed reliance on the statements of the witnesses of the respondents and that the said transaction is hit by Section 52 of the Transfer of Property Act, further that the execution of the agreement and the receipt of the earnest money to the tune of Rs.70,000/- stood admitted by respondent No.1, therefore, the other relief claimed by the appellant could not have been ignored. 9. Contra, the learned Counsel for the respondents supported the legality of issue-wise findings of the learned trial Court. - 6 - 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 11. Before considering the legal question, I consider it necessary to refer to the agreement Ext.PW-1/A executed inter se the appellant and respondent No.1. Infact, the agreement aforesaid stands proved and the payment of Rs.70,000/- and earnest money is also proved to have been received by respondent No.1. True nature and the terms of the agreement Ext.PW-1/A are that on receipt of the entire balance amount as agreed to be paid in instalments, the last instalment consideration amount was to be paid on 31.12.1997. Thereafter respondent No.1 was required to get the sale deed executed, registered and hand over possession, failing which the appellant was held entitled to seek the relief by filing the suit at the cost of respondent No.1, whereas if the appellant shall cause any default in making the payment by instalments as agreed, the earnest money paid to respondent No.1 shall be forfeited. 12. The words used in the agreement leave no room of any doubt that the appellant was required to make the payment of the instalments in the manner mentioned in the agreement aforesaid. The possession of the suit property to the appellant was dependent on the regular agreed payments of all the instalments. - 7 - 13. The question as to whether the appellant had paid or was ready and willing to pay the instalments to respondent No.1 in accordance with the agreement needs consideration. The case of the appellant as disclosed in the plaint is that she had been tendering the instalments to respondent No.1 in the first week of agreed months, but respondent No.1 did not accept the amount and on 31.12.1997 she tendered the total amount of Rs.2,60,000/- due to her and respondent No.1 told her to visit the Sub Registrar’s office at Kullu where she also would reach, but in fact she did not come there. Thus, without serving any notice upon respondent No.1, the suit was instituted on 6.1.1998. 14. Appellant examined herself as PW-1 before the trial Court and she tried to set up a new case contrary to her pleadings. She stated that she had made the payments of each and every instalment as agreed to, in the presence of PW2 Jindu Ram, one Gulabu Ram and Sher Singh. Significantly, but its reference was not made in her plaint for that no cogent explanation was offered. Not only this, she set altogether a new case in her evidence. 15. Respondent No.1 as DW-1 testified that the appellant did not make the payment, if any, of the installments as alleged. It was nowhere particularly suggested to her in the cross-examination that the instalments were paid in the presence of PW-2 Jindu Ram and others as alleged. DW-2 Sunita Devi stated that she had - 8 - gone to the house of the appellant alongwith respondent No.1 to demand the instalments, but the appellant did not make any payment. 16. In fact, Section 16 (c) of the Specific Relief Act, 1963 contains mandatory provisions, according to which, no relief for specific performance of the contract can be enforced in favour of a person 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. Explanation to this Section, further lays down that the plaintiff should aver and prove his readiness and willingness to perform the contract according to its true construction. Plaintiff’s readiness and willingness must be in accordance with the terms of the agreement. The plaintiff cannot add any additional condition for the performance of his part of the contract. The readiness and willingness of the plaintiff to perform the contract should, therefore, be in accordance with the terms contained in the agreement. The readiness of the plaintiff must also be in relation to the real agreement between the parties. If it transpires that the real agreement is not what the plaintiff alleges and the readiness and willingness which the plaintiff displayed was not in relation to the agreement, the plaintiff would be within the mischief of the doctrine of readiness and willingness to perform the contract and he will not be entitled to any relief. - 9 - 17. In the case in hand, there is a marked differentia between the pleadings and proof. Both are poles apart. The averments made in the plaint were not in consonance with the evidence led. The appellant’s insistence for making the payments and executing the sale deed as pleaded and proved were also not in accordance with the terms of the agreement. Evidence led beyond and contrary to the pleadings is required to be ignored. Once it is so done, the averments made in the plaint remains unsubstantiated thus her claim is bound to fail. 18. On examining the record, I find that the appellant failed to perform her part of contract. She even did not send the notice when respondent No.1 refused to accept the instalments and allegedly failed to execute the sale deed. It also stands proved on record that the son of respondent No.1 was convicted by the learned trial Court for an offence punishable under Section 307 of the Indian Penal Code, as per judgment Ext.DX and the appeal was pending in the High Court which came to be finally decided in the year 1997 vide judgment Ext.DY. It can reasonable be inferred that she was in dire need of money and in her wisdom thought it proper to sell the suit property to respondent No.2. at a lesser rate. Further, respondent No.1 also testified that she had to repay the loan, which fact has not been disputed in cross-examination by the appellant. - 10 - 19. Since respondent No.1 had to sell the suit property at lesser price as the appellant failed to pay the instalments when the said respondent was in dire need thereof, the non-payment by the appellant entitles respondent No.1 to treat it as a breach committed by the vendee, as respondent No.1 suffered a loss and even not gained on account of frustration of the contract. Therefore, the appellant rightly held not entitled for the recovery of the earnest money paid to respondent No.1, which stood forfeited for the breach of terms of the agreement. As such, I do not find any force in this appeal, therefore, dismissed with costs being without any merit. July 21, 2010. (Surinder Singh), J. (rc)