Case: Biswanath Ghosh(Dead By Lrs.)  Vs. Gobinda Ghosh

rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment." 31. In the case of Cort and Gee vs. The Ambergate, Nottingham and Bostonand Eastern Junction Railway Company, (1851) 17 Queens Bench Reports 127, the Court observed that "In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants. What more can reasonably be required by the parties for whom the goods are to be manufactured If, having accepted a part, they are unable to pay for the residue, and have resolved not to accept them, no benefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. " 32. In sum and substance, in our considered opinion, the readiness andwillingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive. 33. In the background of the principles discussed hereinbefore, we shall now consider the conduct of the plaintiffs-appellants and the act done by them in performance of their part of obligations. These may be summarizedas under: i) Admittedly on 1.12.1964, two documents were executed viz. the sale deed in favour of the defendants on payment of Rs.3,000/-.ii) An agreement of re-conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time;iii) Before the expiry of the time stipulated in the deed of re- conveyance, the plaintiffs send a notice through a lawyer informing the defendants that as per the terms of the agreement of re-conveyance the plaintiffs tendered the amount of Rs.3,000/- and requested them to execute the sale deed. The defendants deferred the date and time on one pretext or another. In the same notice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount.iv) The defendants-respondents on 29.4.1968 sent reply to the plaintiffs notice stating that that they are ready to execute and register the sale deed in favour of the plaintiffs, but because of the paddy grown on the land it could be done after some time. The reply dated 29.4.1968 is reproduced hereinbelow:"NOTICETo1. Sree Biswanath Ghosh2. Sri Guru Pada Ghosh3. Tarak Dasi Ghosh of Village Narikela, P.O. GaighataUnder instructions and advice of my clients Sri Narendra Nath Ghosh, and Sri Harendra Nath Ghosh and in reply of the said notice dated 22.4.68. I am to intimate you that the averments and contents of the said notice under reply regarding offer of Rs. 3000/- by you and to requesting them that after harvesting of the crops after the expiry of moth of Pous in respect of the land in question and to execute and register the said sale deed are altogether false.That the land in question under the said notice my clients has shown Aush Paddy on the 4th day of Baisak within the knowledge of you and without any objection and the said paddy seeds have grown to some extent my clients are ready to execute and register the sale deed in favour of you at our own cost after acknowledged receipt of the said amount of Rs. 3000/- from my clients within ensuring month of Bhadra after harvesting the said paddy dated 29.4.68.Sd/- Rabindra Nath Dutta Advocate29.4.68"v) The plaintiffs again sent a notice on 6.6.1968 referring the reply dated 29.4.1968 and requesting the defendants to execute the sale deed after harvesting the paddy. The said letter is also extracted hereinbelow:"From:NirendraNath Basu, Advocate, Bongaon, P.O. Dt. 24 ParganasTo,1. Sri Narendra Nath Ghosh) Sons of Late Hazari Lai Ghosh2. Sri Harendra Nath Ghosh) Residents of Village Narikela, P.O. Gaighata, Dt. 24 Parganas, Dated at Bongaon on the 6th day of June, 1968.Sir,In pursuance of the letter dated 29/4/1968 sent on behalf of your Advocate Rabindra Nath Dutta under instruction of my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri Tarak Basi Ghosh. You are informed that after harvest the Aush Paddy within the month of Bhadra and within the said month acknowledged receipt a sum of Rs. 3000/- in cash from my client and execute and register a sale deed in favour of my client and deliver vacant possession in favour of my clients otherwise you will be liable for all costs and damages dated 6.6.68. Sd/- Narendra Nath Basu Advocate, Bongaon Dated 6.6.68 P.S. Gaighata, Mouza- Narikela Settlement Plot No. 189 of .46 decimals. Settlement Plot No. 566 of .42 decimals out of .84 dec. Settlement Plot No. 416 of .14 decimals Settlement 413 of. 15 decimals. Total 1.17 acre of land. Sd/-vi) In spite of assurance, when the defendants failed to execute the sale deed, the plaintiffs filed the suit on 7.5.1970 before the Munsif, Bongaon stating therein that the plaintiffs have every right to reconvey and to take possession of the suit land. Although the suit was dismissed, but in appeal the First Appellate Court while dismissing the appeal by Judgment dated 16.12.1985 mentioned in the order that the plaintiffs have deposited the money as per directions of learned Munsif before the date fixed in the judgment passed for specific performance. 34. From the aforementioned sequence of facts and events, it can besafely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]From perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely Kobala and the agreement of re-conveyance. It also reveals that there were exchange of letters (Exhibit B and B1) whereupon the defendants-respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have conveyance of the suit land after harvest on payment of Rs.3000/- (Exhibit B2). The defendant also replied to such letter (Exhibit B3) agreeing to reconvey the suit land after the harvest.From perusal of the judgment passed by the High Court, it reveals that the High Court, after referring Section 16 and Section 20 of the Specific Relief Act and relying on the decision of the Supreme Court, came to the conclusion that since the readiness and willingness have not been averred and proved, both the Trial Court and First Appellate Court committed error in decreeing the suit for specific performance. The High Court further observed that by converting a suit under Section 36 of the Bengal Money lenders Act into a suit for specific performance, basically the nature and character of the suit was changed and such amendments have been wrongly allowed in favour of thefind force in the submission of Mr. Sanyal.The aforesaid order shows that the High Court while admitting the appeal has not formulated any substantial question of law and it was only after the arguments were concluded some questions of law were formulated and the appeal was decided by passing the impugned judgment.23. The law is well settled by catena of decisions of this Court that jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involves substantial question of law. Section 100 of the Code casts a mandate on the High Court to first formulate substantial question of law at the time of admission of the appeal. In other words, a duty is cast on the High Court to formulate substantial question of law before hearing the appeal. Since the same has not been done, the impugned judgment is vitiated in law.24. On the question of readiness and willingness, the High Court after relying upon some decisions of this Court allowed the appeal and set aside the judgment and decree of the Trial Court and the First Appellate Court.In our considered opinion, the High Court has committed error of lawin setting aside the judgment and decree of the Trial Court and the First Appellate Court on the basis of aforesaid finding.In sum and substance, in our considered opinion, the readiness andwillingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive.From the aforementioned sequence of facts and events, it can besafely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief