1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 79/1997 (1) Smt. Malini V. Parab alias Prabhu, wife of Venktesh Parab alias Prabhu, aged about 39 years, housewife, d/o. Ganesh Shirodkar and her husband, (2) Shri Venktesh Parab alias Prabhu, major, married, truck owner, Both residents of Mirabhag, Bodribag, Curchorem-Goa. ......... Appellants. Versus (1) Shri Prafullakumar R. Deshpande, (since deceased represented by LR's: ) 1a) Smt. Pratima Prafullakumar Deshpande (already on record) 1b) Pratidnya Prafullakumar Deshpande, aged 22 years, daughter, 1c) Rajaram Prafullakumar Deshpande, aged 20 years, son. 1d) Ravindra Prafullakumar Deshpande, aged 20 years, son. All residents of C/o. Ajeet Naik, FF-1, Remnic Colaco Bldg., GAH School Road, Bepquegal, Curchorem, Goa 403 706. (2) Smt. Pratima Prafullakumar Deshpande wife of late Prafullakumar R. Deshpande, d/o. Raia Vaman Bhalgi, housewife, resident of Sanvordem of Sanguem Taluka. (3) Prashant Prafullakumar Deshpande, H.N. T-F-2, Building B. Venktesh Chamber, Curchorem, Goa. ........... Respondents. Shri P. S. Rao, Advocate for the Appellants. Mr. C.A. Coutinho, Advocate for Respondent No.3. 2 CORAM : N.A. BRITTO, J. DATE : 6/06/2008 J U D G M E N T : The plaintiffs' suit for specific performance of agreement dated 13/1/90 has been decreed by the learned Civil Judge, Sr. Division at Quepem by Judgment/Decree dated 24/2/1997. Hence this appeal by the defendants. 2. The parties hereto shall be referred to in the names as they appear in the cause title of the said civil suit. Some admitted facts are required to be stated to dispose of this appeal. 3. The defendants are owners of a property admeasuring 584 sq. metres surveyed under No.128 of Curchorem Village in which they constructed a house. The said plot was purchased by the defendant No.1 earlier by Deed of Sale dated 22/2/1982. By virtue of agreement dated 13/1/90, rectified by another agreement dated 22/2/1990, the defendant No.1 (since expired and now represented by his legal representatives) entered into an agreement of sale with the plaintiffs. It is necessary to refer to some of the clauses of the said agreement. By virtue of clauses (1) and (2), the suit plot along with the house was agreed to be sold to the plaintiffs for a sum of Rs. 2,00,000/-, out of which Rs.10,000/- were paid by a cheque, as earnest 3 money. Clause (3) stipulated that the defendants would hand over the documents, and in fact the Sale Deed dated 22/2/1982 was handed over to the plaintiffs. By virtue of clause (4), the sale deed between the plaintiffs and the defendants was to be executed within 3 to 4 months from the date of production of the occupancy certificate and tax receipt by the defendants from the Municipal Council. By virtue of clause (6) it was agreed that the defendants would not enter into any type of agreement with any other person in respect of the said plot and the said house till the sale deed was executed between the plaintiffs and the defendants. Clause (7) also specifically stipulated that the compensation in money would not be an adequate relief and either of the parties would be entitled to ask for the specific performance of the said agreement. 4. By letter dated 30/1/1991, the defendants sent the occupancy certificate and house tax receipt as stipulated, and called upon the plaintiffs to take immediate steps to execute the sale deed. Thereafter there was silence between both the parties i.e. as far as written word is concerned, though each claims that they approached the other for the purpose of execution of the sale deed. The defendants, thereafter, by letter dated 21/3/1994-Exhibit PW.1/C called upon the plaintiffs to execute the sale deed within a period of 8 days and the plaintiffs by letter dated 31/03/1994-Exhibit PW.1/D told the defendants that they were willing to execute the same and called upon the 4 defendants to fix the time and place. This letter was returned “unclaimed”, but, it has got to be presumed that it was received by the defendants as it was a registered letter sent at correct address of the defendants and a bare denial from the defendants, that it was not received by them, would not be sufficient to rebut the presumption, that was available to the plaintiffs under the relevant provisions of law. 5. Thereafter, the defendants are stated to have entered into another agreement with one Leena Matilda Fernandes, wife of Joaquim Fernandes on 13th June, 1994, and, after the plaintiffs came to know about the same, the plaintiffs filed the suit for specific performance on or about 25th July, 1994. 6. The case of the plaintiffs is that they are ready and willing to execute the sale deed as per the agreement. The case of the defendants is that time was the essence of contract since the defendants were indebted to the Bank of India. It is also the case of the defendants that since the plaintiffs were not coming forward to execute the sale deed and failed to advance Rs. 50,000/- which was agreed to be advanced at the time of execution of the agreement and as the defendants were in serious financial difficulties, they could not wait for the plaintiffs to execute the sale deed at their sweet pleasure and as they got an offer to purchase from the said Joaquim Fernandes for Rs. 3 lacs they entered into an agreement with them on 5 13/06/1994 and after receiving an advance of Rs. 2 lacs they were put in possession of the suit house/property. 7. The learned trial Court framed 4 issues. The plaintiffs and the defendants examined one witness each in support of their respective cases and the learned trial Court, after considering the evidence produced, came to the conclusion that the first two issues were proved by the plaintiffs and the next two issues were disproved by the defendants. In other words, the learned trial Court held that the plaintiffs were entitled to the specific performance of the said agreement and directed the defendants to execute the sale deed on payment of Rs.1,90,000/-. The learned trial Court also held that in the absence of any corroborative evidence, the defendants had failed to prove that the suit plot was agreed to be sold to the said Leena Matilda Fernandes, wife of Joaquim Fernandes, out of which Rs.2 lacs were paid and the balance of Rs.1 lac was yet to be paid. 8. The plaintiffs (i.e. PW.1) stated in his evidence before the Court that after the agreement, the plaintiffs requested the defendants to show certain documents and the defendants all the time asked the defendants to wait for some time. PW.1 has admitted the receipt of letter dated 30/1/1990 with which the occupancy certificate and the house tax receipt were sent and has admitted that the plaintiffs did not write to the defendants that they were 6 willing to execute the sale deed, but they had approached the defendants in person on many occasions for the purpose of execution of the sale deed and that he (i.e. PW.1) had on many occasions met the defendants and similarly, the defendants had also come to meet them. He also stated that plaintiff No.1 went to the defendants' house on two occasions along with him. On the other hand, the defendant (i.e. DW.1) stated that the plaintiffs inspite of receiving the notice, did not come forward to execute the sale deed and that he personally contacted the plaintiffs who went on promising to sign the sale deed, but they never came forward and on one occasion, one Laximan Naik was also accompanying him when he went to meet the plaintiffs and finally, the defendants sent the legal notice dated 21/3/1994 asking the plaintiffs to come forward to execute the sale deed within 8 days and in case of default, the amount of Rs.10,000/- would stand forfeited and the agreement would stand terminated. 9. Admittedly, the defendants did not examine the said Laximan Naik in support of their case though it is expected of the parties to produce the best evidence available. The version given on behalf of the plaintiffs and the defendants by their respective witnesses, when tested on the anvil of probabilities shows that it is the version of the plaintiffs which is more plausible and probable. There is no dispute that at the time of execution of the agreement a sum of Rs. 10,000/- was paid by the plaintiffs to the 7 defendants and not only that the defendants had handed over the sale deed of the suit plot to the plaintiffs. The defendants' version that 1 lac was required to be paid at the time of the signing of the agreement and 2 lacs were to be paid at the time of the signing of the sale deed does not at all appear to be correct in the light of clauses 1 and 3 of the agreement which show otherwise. It is true that after the plaintiffs received the occupancy certificate and the house tax receipt by letter dated 30/01/1991, sent by the defendants, the plaintiffs did not write to the defendants fixing a time for the execution of the sale deed, but the fact remains that the defendants also did not call upon the plaintiffs in writing to execute the sale deed. The evidence led on behalf of both the parties has to be seen in the light of the fact that in special civil suit No. 26/89/A which was filed by the State Bank of India against the defendant i.e. appellant no.2 herein, there was an ex-parte injunction granted vide order dated 1/07/1989 and confirmed by order dated 16/4/1990, whereby the defendant was restrained from transferring the suit property. The said suit was subsequently decreed on 27/12/1994 and, if that is so, and if at all the said property could not be transferred in favour of the plaintiffs, it was in view of the restraint placed by the Court against the defendants from transferring the suit property and the suit house in favour of the plaintiffs. There is no explanation from the defendants as to why they waited to send the letter dated 21/3/1994 for over 3 years, which could have been sent much earlier i.e. after the expiry of 3 to 4 months from 30/01/1991. If at all there 8 was delay in execution of the sale deed, the fault appears to have been on the part of the defendants and not on the part of the plaintiffs. The defendants' contention that the sale deed remained without being executed because of the fault of the plaintiffs cannot be accepted. The letter dated 21/03/1994 was sent by the defendants only as an excuse to wriggle out from the said agreement of sale. The plaintiffs had in fact promptly replied to the said letter by their letter dated 31/03/1994 which the defendants are presumed to have received and in any event it could not be said that the fault in not executing the sale deed has to be shouldered by the plaintiffs. 10. The first submission made by the learned Counsel on behalf of the defendants is that the plaintiffs failed to plead and prove that they were ready and willing to perform their part of the obligation under the contract which was a condition precedent to grant the relief of specific performance and in the absence of the same, the plaintiffs would not have been entitled to the specific performance of the contract. On behalf of the defendants, it is further submitted that by letter dated 30/1/1990, the occupancy certificate and the house tax were sent to the plaintiffs and the plaintiffs were required to execute the deed of sale within 3 to 4 months from the receipt of the said documents and since there was no communication from the plaintiffs until 31/3/1994, the plaintiffs would not have been entitled for the specific performance of the agreement. It is further submitted that the time was the 9 essence of the contract and, in any event, by virtue of letter dated 21/3/1994, the time was made essence of the contract and the plaintiffs having failed to complete the transaction within the stipulated time, the plaintiffs would not be entitled to the specific performance of the contract. In support of the submissions, the learned Counsel on behalf of the defendants has placed reliance on several decisions and particularly on the case of Pushparani S. Sundaram and ors. vs. Pauline Manomani James (deceased) and ors., (2002) 9 SCC 582, wherein the Apex Court has stated that the plaintiffs must aver and prove that either he has actually performed or that he was always ready and willing to perform his essential obligations under the contract and merely filing suit for specific performance and taking the plea that he was ready and willing by themselves are not sufficient to satisfy the requirements of Section 16(c) of the Specific Relief Act, 1963. The Apex Court in the aforesaid decision has also stated that readiness and willingness to perform the essential terms of contract could be inferred from totality of circumstances or conduct of plaintiff. That was case where there were two circumstances sought to be proved, one was that immediately after the exemption was given by the Ceiling Authorities on 31/3/1982, the suit was filed in April, 1982 and the other was the tendering of Rs.5000/- to the defendant after execution of the agreement of sale, and, the Apex Court, after considering the said two circumstances came to the conclusion that the said two circumstances even if taken together, is too weak a filament to stand 10 even to build an image of readiness and willingness. The Apex Court also observed in that case, that not only the plaintiff had not stepped into the witness box, but had not even sent any communication or notice to the defendant about his willingness to perform his part of the contract. 11. The next contention of the defendants is that the time was the essence of the contract and in any event that it was made so by virtue of letter dated 21/03/1994. 12. The Apex Court in Govind Prasad Chaturvedi V/s. Hari Dutt Shastri and Anr. (AIR 1977 SC 1005) has stated that: The fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. In coming to the conclusion, the Apex Court relied upon its earlier decision in the case of Gomanthinayagam Pillai V/s. Palaniswami Nadar (AIR 1967 SC 868) on which reliance has been placed on behalf of the defendants. In the case of Gomanthinayagam Pillai (supra), the Apex Court has further stated that if time is not of essence originally, it can be made of essence even subsequently by serving notice on the other party. In the case of Smt. Chand 11 Rani (dead) by LR's V/s. Smt. Kamal Rani (dead) by LR's (AIR 1993 SC 1742), the Constitution Bench of the Apex Court after taking into consideration several of its previous decisions has come to the conclusion that: In the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed within a reasonable time if the conditions are : 1. from the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example : the object of making the contract. In Manjunath Anandappa urf Shivappa Hanasi V/s. Tammanasa 7 Ors. (2003 (10) SCC 390), the Apex Court observed that: It is incumbent upon the plaintiff both to aver and prove that he had all along been ready and willing to perform the essential terms of contract which were required to be performed by him. In Syed Dastagir V/s. T.R. Gopalkrishna Setty (1999 (4) ALL MR 286), the Apex Court referring to Section 16(c) of the Specific Relief Act, 1963 observed that: 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 on one's case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to 12 test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded. 13. The plaintiffs did plead in para 12 of the plaint that they were ready and willing to execute the sale deed as per agreement and they were willing to pay the balance of Rs. 1.9 lacs at the time of execution. Firstly, it must be stated that the very manner in which clause no.4 was worded namely that the sale deed would be executed within 3 to 4 months from the date of the production of the occupancy certificate and the tax receipt shows that the parties did not intend that time would be the essence of the contract. Moreover, if the defendants had understood that time was the essence of the contract, one fails to understand as to why the defendants waited for more than 3 years to send the said letter dated 21/03/1994 and in case time was the essence of the contract the defendants would have themselves sent the said letter after the expiry of the stipulated time of 3 to 4 months after letter dated 30/01/1991. The defendants have not explained as to how they could have 13 executed the said deed in favour of the plaintiffs after the earlier ex-parte order was confirmed on 16/04/1990 in CMA No. 90/89 in CS No. 26/89. The letter dated 21/03/1994 was promptly replied to by the plaintiffs and even assuming that time was essence of the contract, the sale deed remained without being executed because of the said Civil Suit filed against the defendants and the plaintiffs cannot be blamed for not executing the said deed within a reasonable time. The defendants cannot be allowed to take advantage of their own default. All that section 16(c) requires is that the plaintiff should aver in the plaint and establish as a fact by evidence aliunde that he has always been willing to perform his part of the contract. What is to be seen is the pith and substance of the plea and not the form it is taken. Considering the facts of the case, the plaintiffs have pleaded and proved the requirements of Section 16(c) of the Specific Relief Act. If at all the Apex Court in Smt. Chand Rani (dead) by LR's (supra) held that time was the essence of the contract it was because the word “only” was used twice over to (a) qualify the amount of Rs. 98,000/- and to (b) qualify the period of 10 days. If time was made the essence of contract by letter dated 21/03/2004 in this case, the plaintiffs have immediatly reacted to the same calling upon the defendants to fix the time and place for execution of the sale deed. Plaintiffs therefore cannot be blamed for breaching the contract. 14. It is also contended on behalf of the defendants that the plaintiffs 14 approached the Court with unclean hands in that the plaintiffs did not disclose in their plaint about the receipt of the defendants' letter dated 30/01/1991. It is true that the plaintiffs did not plead about the said letter dated 30/01/1991. However, the fact remains that in the cross-examination, the plaintiffs' witness immediately admitted the receipt of the said letter and only because the plaintiffs did not plead the said fact, in my view it would not be the sufficient reason to disentitle the plaintiffs from obtaining equitable relief. 15. The defendants' contention that the suit is barred by limitation also needs to be rejected. Firstly, the defendants did not raise the plea of limitation in their written statement. The defendants' contention that the last date for execution of the sale deed would have ended on 30/05/1991 cannot be accepted as already observed. Admittedly, both the parties did not treat that time was the essence of the contract between them and as already stated, this is reflected in the contents of the defendants' letter dated 21/03/1994, which letter the defendants' could have sent much earlier i.e. soon after 30/01/1991 in case that was the last date by which the sale deed was to be executed. In Pukhraj D. Jain & Ors. V/s. G. Gopalkrishna (2004 (7) SCC 251) on which reliance has been placed on behalf of the defendants, the Apex Court has stated that: Article 54 of the Limitation Act provides for a limitation of three years for instituting a suit for specific performance of a 15 contract. This period of three years has to be reckoned from the date fixed for the performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused. In the case of Mst. Sugani V/s. Rameshwar Das & Anr. (2006(6) ALL MR (SC) 28), the Apex Court has again reiterated that in terms of Article54 the starting point of limitation is three years from the date when a date is fixed and since in that case no date was fixed the execution of the agreement was denied. In the case at hand, the plaintiffs had clearly averred that the cause of action for filing of the suit arose on 6/04/1994 when the defendants refused to comply the notice for execution of the sale deed in favour of the plaintiffs. The defendants had not specifically denied the said averments of para 15 of the plaint, but merely stated that they had not received notice dated 31/03/1994 on 6/04/1994 which, as already observed, is presumed to have been received by the defendants and therefore the suit which was filed on 25/07/1994 could not be said to have been time barred. 16. On behalf of the defendants, it is also contended that the learned trial Court could not have granted relief of possession to the plaintiffs against the third party in