IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.530 of 2009 Neshar Ahmad & Anr. Versus Baban Dubey & Anr. For the appellants: Dr. Anshuman & Mrs. Rita Kumari Upadhaya. ---------------------------------- 9 1-8-2011 Heard the learned counsel appearing on behalf of the appellants. This appeal has been filed against the judgment and decree dated 14-10-2009 passed in Title Appeal No. 60 of 1993 by the Additional District Judge, FTC II, Siwan, reversing the judgment and decree dated 18th June, 1993, passed by Subordinate Judge 1st, Siwan in Title Suit No. 208 of 1986. The plaintiffs, who are respondents here, had filed the suit for specific performance of contract against the defendants, who are appellants here, praying for a decree and direction to the defendants to execute a sale deed with respect to the suit land in favour of the plaintiffs after taking the consideration amount of Rs. 7500/- and further prayer was for delivery of possession of the suit land. The plaintiffs case is based upon the agreement by which the defendants had obtained a sale deed from the plaintiffs in their favour with the condition that if the 2 plaintiffs would return the consideration amount within a period of seven years then they would reconvey the suit land to the plaintiffs. The plaintiffs, accordingly, executed the sale deed dated 2-7-79 and the defendants, in turn, executed a deed of agreement. The case of the plaintiffs is that before the expiry of the period they approached defendant no.1 with the consideration amount and requested him to take the amount and execute the sale deed as agreed. But, they did not honour the terms of the agreement and did not execute the sale deed which facts have led to the filing of the present suit. The defendants appeared and in their written statement they accepted the execution of the deed of agreement by them, but they contested the case of the plaintiffs on the ground that the plaintiffs had never approached them with the consideration amount and never requested them to execute the sale deed. The defendants further specifically pleaded that the plaintiffs never tendered on 11-6-1986 the consideration amount to the defendant no.1 as claimed and the defendant no.1 never told the plaintiffs that defendant no.2 would return back on 30-6- 1990 and thereafter both of them would execute the sale 3 deed after taking the consideration amount. In short the defendants have denied the tender of money as claimed by the plaintiffs within time and have raised their defence on the assertion that the time was the essence of the contract. The learned Subordinate Judge after hearing the parties and considering the evidence on record came to the finding that the plaintiffs never tendered the money within the stipulated period which was the essence of the contract(Ext.1). It was further held that the plaintiffs never sent any legal representative requesting the defendant to accept the consideration amount of Rs.7500/-. The learned trial court has thus concluded that there was no legal tender at all on the part of the plaintiffs to discharge their part of the contract and in absence of such legal tender, which was the essence of agreement, as per Ext.1 within the stipulated period, the defendants cannot be faulted for not honouring the terms of the agreement. The learned trial court has also recorded the finding that non-deposit of Rs.7500/- in Court at the time of filing of the suit itself established that the plaintiffs were never ready and willing to discharge their part of the contract. In appeal, the appellate court considered the 4 evidence on record and after hearing the submissions on behalf of the parties came to the finding that there was tender of money to the defendants who promised to execute the sale deed on 30-6-1986 after the return of the defendant no.2 from Arabian country but on 30-6-1986 the execution of the sale deed was declined on the pretext of non-return of the defendant no.2. Further, in view of Explanation 1 of Section 16(C) of the Specific Relief Act the appellate court below has held that a plaintiff, in a suit for specific performance of contract, is not required to actually tender to the defendant or to deposit in Court any money in case of a contract involving payment of money. The appellate court below on the basis of the aforesaid Explanation has come to the finding that the trial court has misdirected itself in dismissing the suit on the basis of its finding regarding absence of legal tender of the consideration money and the failure on the part of the plaintiffs to deposit the said consideration in Court at the time of filing of the suit. The appellate court on analysis of the evidence has also concluded that the time was not essence of the contract and the plaintiffs are entitled to have the deed executed in their favour by the defendants as they have established their 5 readiness to perform their part of contract and there was breach of contract on the part of the defendants. The learned counsel appearing on behalf of the appellants has submitted firstly that the simple statement in the pleading regarding the readiness and willingness to perform their part of the contract by the plaintiffs is not sufficient rather such pleading will have to be proved in order to get the decree in the suit for specific performance of contract. The learned counsel has thus submitted that even if the plaintiffs’ statement might be there in the plaint, but the appellate court has erred in law in not appreciating the evidence which shows that the statement has not been bonafide.It is the contention of the learned counsel for the appellants that in a case of judgment of reversal it is always incumbent upon the appellate court to reconsider the evidence and meet the reasonings of the trial court. The judgment of the appellate court has also been assailed on the ground of non-consideration of five decisions cited on behalf of the defendants in support of their case. After hearing the submission on behalf of the appellants and perusing the judgments of both the courts below it appears that the trial court has dismissed the suit 6 mainly on two counts i.e., absence of tender of consideration amount by the plaintiffs to the defendants within time and failure by the plaintiffs to deposit the said amount in court at the time of filing of the suit presuming that the time was essence of the contract. No other finding has been recorded by the trial court. The appellate court, in view of Explanation 1 to Section 16(C) of the Specific Relief Act has rightly come to the conclusion that the trial court has misdirected itself in dismissing the suit on both the counts with wrong presumption that the time was essence of the contract. The reference to the Explanation 1 to Section 16(C) of the Specific Relief Act by the appellate court is also apt in the facts of the case. Further from the judgment of the appellate court it is clear that it has considered the evidence of the parties and reached its finding on the basis of that consideration that the plaintiffs have, in fact, tendered the money to the defendants who had declined to execute the sale deed on false pretext. Therefore it cannot be said that the appellate court below has failed to meet the reasonings assigned by the trial court for dismissing the suit. The appellate court has full jurisdiction to reconsider and reach to an independent finding on the 7 basis of facts and law and evidence on the record. Nothing could be shown during the course of argument that the findings recorded by the appellate court are perverse. Non- discussion of the decisions cited on behalf of the appellants by the appellate court in view of its finding cannot be said to be momentous enough to invite interference by this Court and more so, in view of the fact that all those decisions deal with the nature and scope of Section 16(C) of the Specific Relief Act and have no bearing on the main controversy in the suit. As such, I do not find any substantial question of law arising in this appeal for consideration, which is, accordingly, dismissed. roy ( V. Nath, J.)