IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 AS.No. 694 of 1996(S) ------------------------------ OS.701/1993 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): (PLAINTIFF IN OS. NO.701/93 OF THE SUB COURT, PALAKKAD ---------------------- SELVARAJ, S/O. KUNJANDI, BUSINESS, RAKKALATH HOUSE, PORAKOTTIL, THANDISSERI AMSOM, PALAKKAD TALUK. BY ADV. SRI.R.D.SHENOI, SMT.SUSHEELA R.BHATT RESPONDENT(S): (IST DEFENDANT IN THE LOWER COURT) ------------------------- NARAYANAN, S/O. RANGANADHAN PILLA, BUSINESS, KIZHAKKETHARA, PALLAVOOR AMSOM AND DESOM, CHITTUR TALUK. ADV. SRI.G.HARIHARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/01/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.5188/1996 IN AS. NO.694/1996 Dismissed 13.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- A.S.No. 694 OF 1996 --------------------------------- Dated this the 13th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge, Palakkad in O.S.No. 701/1993. The suit is one for specific performance of a contract. It is the case of the plaintiff that an agreement has been entered into whereby the 1st defendant had agreed to sell the property to the plaintiff for Rs. 35,000/- and a registered agreement was entered into between the plaintiff and the 1st defendant. 2. It is alleged that Rs. 30,000/- was paid and the stipulation was to pay the balance consideration and get the document registered on or before 30.10.1993. The plaintiff had sent a lawyer notice expressing his readiness to pay the balance and purchase the property. Therefore he had requested the 1st defendant to get ready with execution of the assignment deed after vacating the 2nd defendant from the plaint schedule premises. On the other hand defendant would contend that the property will fetch an amount of Rs. 2,00,000/- and it is not an agreement for sale of the property. The 1st defendant was badly in need of some amount and therefore A.S. 694/96 -2- he had executed a document and there was no intention to sell the property. It is also contended that the plaintiff is not entitled to the decree as prayed for. 3. In the trial court PWs. 1 and 2, Dws. 1 and 2 were examined. Exts. A1, A2 and B1 were marked. On analysis of the materials, the trial court held that there was no specific pleading with respect to the readiness and willingness to perform the contract and therefore disallowed the prayer for specific performance, but granted a decree for return of the amount. 4. The points that arise for determination are: 1. Whether the finding of the trial court that there is non compliance of the statutory requirements regarding readiness and willingness is correct? 2. Whether the trial court was right in rejecting the prayer for specific performance? Points 1 & 2: At the out set, I may like to state that in a suit of this nature it is the first and foremost duty of the court to arrive at a decision regarding the nature of the document, when there is a specific contention raised in the written statement that it was never A.S. 694/96 -3- intended to be an agreement for sale but only as a document to receive a loan of Rs. 30,000/-. Only after entering into a finding on that, the further questions really raise for determination. But the trial court proceeded with the matter holding that there is non compliance of the statutory requirements contemplated under Section 16(c) of the Specific Relief Act which states that there must be an averment with respect to the readiness and willingness to perform his part of the contract. The learned counsel for the appellant had taken me through the pleadings, the notice and the various decisions on the point. Ext. A1 is the agreement. It is a registered agreement whereby there is an agreement for sale of the property for Rs. 35,000/-. Rs. 30,000/- is advanced and the plaintiff is bound to pay the balance of Rs. 5,000/- and get the document registered and similarly the defendant is under an obligation to execute the document. The document is dated 1.4.1993 and the period expires on 30.10.1993. Thereafter the plaintiff issued Ext. A2 notice. It is dated 13.10.93, wherein there is a specific intimation that the plaintiff is prepared to pay balance consideration of Rs. 5,000/- for the purpose of getting the document executed and he had also demanded that the 1st A.S. 694/96 -4- defendant should show the documents of title etc. and also get the tenant vacated from the premises of the property. No reply is sent to this notice. Thereafter the plaint is filed. 5. The terms of the agreement as well as the contends of the notice are copied in the plaint but unfortunately the specific word of readiness and willingness to perform the part of the contract is not specifically stated. It has to be remembered that a perusal of the entire plaint would reveal that the case of the plaintiff is to the effect that he had entered into an agreement for sale and that he had issued a notice, Ext. A2 and he had stated therein that he is prepared to pay balance consideration of Rs. 5,000/- and had requested the defendant to full fill his part of the contract. So in other words the notice gives an intimation of the absolute readiness and willingness on the part of the plaintiff to perform the contract. It has to be also remembered that the only obligation that is left to the plaintiff for execution of the document is to pay the balance consideration and get the document registered. So it is under these circumstances and pleadings one may have to look into the matter. It is true that there is a prescription of a form regarding the filing of a suit for specific performance and the trial court had relied upon A.S. 694/96 -5- the decision of the apex court reported in Ouseph Varghese v. Joseph Aley and others [1969 (2) SCC 539]. There the apex court held that: “in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable”. The apex court had considered this matter in the decision reported in Motilal Jain v. Smt.Ramdasi Devi & others [JT 2000 (8) SC 59], wherein the court has taken into consideration the Ouseph Varghese's case. In para 7 of the judgment the apex court held that in Vargese's case the case was based an oral agreement and the defendant pleaded a different agreement in regard to which the plaintiff neither amended his plaint nor filed subsequent pleading. Under these circumstances the apex court held the compliance of the mandatory forms of Section 47 and 48 of the First Schedule of the Code of Civil Procedure. In this decision the apex court has held that: “The language in Section 16(c) of the Specific Relief Act, 1963 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 A.S. 694/96 -6- perform his part of the contract. So the compliance of “readiness and willingness” has to be in the spirit and substance and not in letter and form. It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words.” 6. To further strengthening the argument the learned counsel had further relied upon the decision of the apex court reported in Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and others [AIR 1997 SC 463]. Therein the Supreme Court held that readiness and willingness to perform can be gathered from the following: It was a case where there was “averment in the plaint that the purchaser had sent notice to the seller to execute the sale deed. There has been also averment by the buyer that as per the agreement he is willing to pay fees required for sale deed, costs of registration and balance amount of sale deed”. It was further stated that “there was a statement in the deposition before the Court by purchaser that he had sent notices to seller and was willing to pay fees as aforesaid and balance amount immediately”. In such circumstances the Supreme Court held that buyer not only A.S. 694/96 -7- averred but also proved that he was ready and willing to perform his part of contract as required under Section 16(c). The learned counsel then cited the decision reported in Narayan Nagorao v. Amrit Haribhau [AIR 1957 BOMBAY 241]. It was a case where there was a express statement in the notice regarding willingness to perform the part of the contract. It was held that: “In the circumstances the failure of the plaintiff to express specifically in clear terms his readiness and willingness to perform his part of the contract did not disentitle him to specific performance.” So in the process of time the strictness of pleadings under Section 16(c) had undergone changes and when the total materials available would show that there has been the readiness and willingness to perform the part of the contract by the plaintiff is sufficient. The absence of pleadings in the prescribed form does not disentitle the plaintiff to get a decree for specific performance of the contract. 7. In view of this, let me analyse from the dictum laid down in the above decisions whether in this particular case there is sufficient materials to establish the readiness and willingness and which can be read into as a pleading as well. It has to be stated that in the A.S. 694/96 -8- plaint, notice had been extracted in toto and there is a recital that the plaintiff had sent notice to the defendant intimating “ So statement in the notice is reiterated in the plaint and therefore it gives a clear indication to the defendant about the same. While construing the law of pleadings it is a settled proposition that isolated reading of some sentence in the pleading is not the procedure to be done but the entire pleadings has to be read and the substance has to be gathered from the same. So a meticulous reading of the plaint would itself indicate that there is a pleading with respect to the readiness and willingness which is contemplated under law. But it could have been stated precisely and specifically so that the confusion should have been averted. Further it has also to be gathered that the defendant even did not bother to send a reply notice to the said notice. So from these discussions I hold that the trial court was not right in throwing out the case for A.S. 694/96 -9- specific performance on the ground that there has been no pleading with respect to readiness and willingness to perform the part of the contract. I set aside that finding. 8. Unfortunately this court cannot pass a final judgment in the suit for the reason that so many other points require to be answered on facts. First of all there has to be a finding with respect to the enforceability of Ext. A1 agreement on the basis of the contention raised by the defendant in the written statement. Secondly the court has to arrive at a finding, who has committed the breach of contract. Thereafter the court has to consider whether in the given circumstances the plaintiff is entitled for a decree for specific performance in the light of the large number of decisions rendered by courts. Thereafter a final decision has to be taken regarding the entitlement of the plaintiff to get a decree for specific performance or not. 9. Therefore the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court for fresh consideration on the question discussed in the previous paragraphs and thereafter dispose of the matter in accordance with law. If the parties intend to adduce documentary or further oral evidence in A.S. 694/96 -10- support of their respective contentions they may be permitted to do so and matter be disposed of thereafter as expeditiously as possible considering the factum that the litigation has started way back in 1993. Parties are directed to appear before the court below on 24.2.2009. M.N. KRISHNAN,JUDGE vkm