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

3. The plaintiffs-appellants in need of money took a loan of Rs.3,000/- from the defendants-respondents and executed a registered Kobala dated 24.11.1964. On the same day, a registered Ekrarnama was also executed between the parties stipulating the terms of re-conveyance on payment of the loan amount by the appellants to the respondents.4. In the year 1970, the appellants filed a suit being Title Suit No.215 of 1970 against the defendants before the Sub-Divisional Munsif, Bangaon under Section 36 of the Bengal Money Lenders Act, 1940. The said suit was resisted by the defendants-respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out-sale of the suit property and possession was also delivered to the respondents. The learned Munsif in terms of the judgment dated 20.12.1973 dismissed the suit. The plaintiffs then filed appeal against the said judgment being Title Appeal No.350 of 1974. The learned Additional District Judge, upon hearing the parties, allowed the appeal and remanded the matter back to the Trial Court with a direction to the Trial Court to allow the plaintiffs-appellants an opportunity for amending the plaint and to add prayer for specific performance of the contract and to pass fresh judgment in accordance with law.5. Consequent upon the remand, the appellants amended the plaint by filing application on 1.3.1975 adding prayer for specific performance of contract to transfer the suit property in terms of the agreement for re- conveyance. The said application for amendment was allowed and the learned Munsif framed additional issues, and after considering the evidence on record finally decreed the suit holding that the suit was not barred by limitation. The court of Munsif held that the order for amendment related back to the date of institution of the suit and, therefore, the suit cannot be held to be barred by limitation. Aggrieved by the said judgment and decree, the defendants-respondents filed appeal being Title Appeal No.836 of 1983, which was dismissed on merit by the First Appellate Court. The respondents then filed Second Appeal, which was finally allowed in favour of the defendant-respondents and the judgment and decree passed by both the courts of Munsif and the Additional District Judge have been set aside. Hence, this appeal by special leave by the plaintiff-appellants.

Reasoning:
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