Case: U.N. KRISHNAMURTHY (SINCE DECEASED) THR. LRS Vs. A. M. KRISHNAMURTHY

4. In the plaint, it is pleaded that the original Defendant U.N. Krishnamurthys father, U.R. Narasaiah had executed a will on or about 9th May 1984, bequeathing the suit property to the original Defendant, U.N. Krishnamurthy (since deceased). After the death of his father, U.R. Narasaiah, on 25th April 1987, the original Defendant U. N. Krishnamurthy became the absolute owner of the suit property.5. It is the case of the Appellants that on 11th November 2002, while the original Defendant was getting the suit property whitewashed, a real estate agent Mr. N. Anjappa approached the original Defendant with an offer to arrange the sale of the suit property at a good price.6. As per the pleadings in the plaint, the original Defendant agreed to sell the suit property to the Respondent Plaintiff, in the presence of Mr. N. Anjappa, Mr. S.A. Muralidharan and Mr. M. Murali Reddy. The terms and conditions of the agreement for sale of the suit property were recorded by the original Defendant U.N. Krishnamurthy in his own handwriting in a letter dated 11th November 2002 given by the original Defendant to the Respondent Plaintiff.7. It is the case of the Respondent Plaintiff that the original Defendant agreed to sell the suit property to the Respondent Plaintiff for a consideration of Rs.15,10,000/-, out of which sum of Rs.10,001/- was paid by the Respondent Plaintiff to the original Defendant in advance. It was further agreed between the parties, that the Respondent Plaintiff would get the sale deed registered on or before 15th March 2003, upon payment of the full sale consideration. The agreement was allegedly witnessed by the real estate agent, Mr. N. Anjappa.8. According to the Respondent Plaintiff, the Respondent Plaintiff approached the original Defendant with the balance consideration several times and requested the original Defendant to execute the sale deed in his favour, but the original Defendant kept postponing execution of the sale deed on one pretext or the other.9. On or about 13th February 2003, the Respondent Plaintiff issued a legal notice to the original Defendant through his lawyer stating that the Respondent Plaintiff is ever ready and willing to perform his part of the contract and called upon the original Defendant to execute the sale deed in favour of Respondent Plaintiff after receiving the balance consideration. By a letter dated 10th March 2003 sent in response to the aforesaid legal notice, the original Defendant denied having entered into any oral sale agreement for sale of the suit property.10. On 8th October 2005, the Respondent Plaintiff allegedly approached the original Defendant with a request to receive the balance consideration and to execute the sale deed in favour of the Respondent Plaintiff. It is alleged that the original Defendant went back upon his promise and refused to accede to the request made by the Respondent Plaintiff.11. In the circumstances, on or about 17th October 2005, the Respondent Plaintiff filed the suit. The original Defendant filed a written statement denying the allegations in the plaint. In the written statement, the original Defendant denied the execution of any agreement for sale of the suit property for consideration of Rs.15,10,000/- as alleged.12. The original Defendant has categorically stated that he did not agree to sell the suit property to the Respondent Plaintiff as alleged and that he did not receive any advance on 11th November 2002 as alleged or on any other date. It is the case of the Appellants that there was no concluded contract to sell the suit property. In the written statement it is also pleaded that in any case, the Respondent Plaintiff was never ready or willing to perform his part of the contract.13. The Trial Court framed the following issues:-1. Whether the oral agreement of sale in the 1st week of November, 2002 is true?2. Whether the alleged confirmation letter dated 11.11.2002 is true and valid?3. Whether there is no concluded contract between the plaintiff and defendant is true?4. Whether the plaintiff always ready and willing to perform his part of contract?5. Whether the plaintiff is entitled to get the relief of specific performance and possession?6. To what relief the plaintiff is entitled to?14. The Respondent Plaintiff examined three witnesses and the original Defendant deposed as witness on his own behalf. By a judgment and order dated 30th November 2010, the Trial Court decreed the suit and directed the original Defendant to receive the balance sale consideration of Rs.15 lakhs and execute the sale deed in favour of the Respondent Plaintiff.15. All the issues framed by the Trial Court were answered in favour of the Respondent Plaintiff. The Trial Court found that the Respondent Plaintiff was ready and willing to perform his part of the contract, and thus entitled to the relief of specific performance. The relevant part of judgment of the Trial Court is set out hereinbelow:-21. But I already discussed that the plaintiff is a businessman and he is having sufficient means to pay the amount to the defendant Rs.15,00,000/- also deposited into court. The amount has not shown in Ex. A4 to A6 is not the ground for denying the prayer. The plaintiff is also ready and willing to perform his contract and in view of the above discussions, the plaintiff is entitled the relief of Specific performance and possession of schedule property. Accordingly, I answered the Issues Nos.4 and 5.16. By the impugned judgment and order dated 30th October 2017, the High Court upheld the judgment and decree passed by the Trial Court, holding that the Respondent Plaintiff had always been ready and wiling to perform his part of the contract. The relevant part of the impugned judgment and order reads:-18. The letter dated 11.11.2002 has been marked as Ex. A-1. In Ex. A1 period has been fixed for execution of a registered sale deed. The consistent case of the plaintiff is that despite of repeated demands, the defendant has not come forward to execute a sale deed in favour of the plaintiff and therefore, a legal notice has been issued. Ex.A2 is a copy of the legal notice dated 13.02.2003 and the same has also been received by the defendant. After receipt of the same he has given a false reply notice dated 10.03.2003. Since on the side of the plaintiff, necessary documentary and oral evidence have been let in, it is easily discernible that the plaintiff has always been ready and willing to perform his part of the contract. Therefore, the fourth contention put forth on the side of the appellants/defendant[s] also goes out without merit.20. It has already been discussed in detail that the suit property is the absolute property of the defendant. From the evidence given by the defendant [D.W.1], the Court can very well come to conclusion that the entire transaction is based upon on oral sale agreement emerged between the plaintiff and defendant. Further, the plaintiff has shown his readiness and willingness to perform his part of the contract. Therefore, viewing from any angle, the contentions put forth on the side of the appellants /defendants[s] cannot be accepted.

Reasoning:
21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration of Rs.15,00,000/-.26. In Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512,  this Court held that:40. …..A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not ready and willing to perform his obligations.27. In Pt. Prem Raj v. D.L.F. Housing and Construction (Private) Ltd. And Anr. AIR 1968 SC 1355  cited by Mr. Venugopal, this Court speaking through Ramaswamy J. held that it is well-settled 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 if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon 55 IA 300, at pg. 372 : AIR 1928 PC 208 .31. In Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243,  this Court held that a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the contract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The Court would necessarily have to arrive at the finding that the Plaintiff all along were, and still are ready and also willing to perform their part of the contract, taking into account the entirety of the pleadings as also the evidence brought on record. To quote this Court:-So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.32. In K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1,  Justice B.P. Jeevan Reddy said that grant of the relief of specific performance is discretionary and the Court is not bound to grant it. This Court further held that though time is not of essence to a contract relating to transfer of property, such contracts need to be completed within a reasonable time period. Thus the time element cannot be completely ignored.34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526  cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar (2018) 3 SCC 658 .36. In Malluru Mallappa v. Kuruvathappa (2020) 4 SCC 313,  this Court observed and held:-13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179]  , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756]  , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476  : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259] ]14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.37. In H.P. Pyarejan v. Dasappa (supra), Justice Arijit Pasayat speaking for this Court reversed the judgment of the High Court holding that High Court did not provide reasoning for its conclusion that Plaintiff was ready and willing to perform his part of contract. To arrive at such conclusion the Court had relied upon Cort v. Ambergate etc. and Rly. Co (1851) 117 ER 1229 where Lord Campbell observed that in common sense, the meaning of such an averment of readiness and willingness must be that the non-completion of contract was not the fault of the Plaintiff.38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court we cannot be oblivious to reality – and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation.34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526  cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar (2018) 3 SCC 658 .35. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan (1999) 8 SCC 396,  and H.P. Pyarejan v. Dasappa (2006) 2 SCC 496  where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon AIR 1928 PC 208 .36. In Malluru Mallappa v. Kuruvathappa (2020) 4 SCC 313,  this Court observed and held:-13. It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see : Santosh Hazariv. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179]  , Madhukar v. Sangram [Madhukar v. Sangram, (2001) 4 SCC 756]  , B.M. Narayana Gowda v. Shanthamma [B.M. Narayana Gowda v. Shanthamma, (2011) 15 SCC 476  : (2014) 2 SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259] ]14. A first appeal under Section 96 CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature.18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.37. In H.P. Pyarejan v. Dasappa (supra), Justice Arijit Pasayat speaking for this Court reversed the judgment of the High Court holding that High Court did not provide reasoning for its conclusion that Plaintiff was ready and willing to perform his part of contract. To arrive at such conclusion the Court had relied upon Cort v. Ambergate etc. and Rly. Co (1851) 117 ER 1229 where Lord Campbell observed that in common sense, the meaning of such an averment of readiness and willingness must be that the non-completion of contract was not the fault of the Plaintiff.38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court we cannot be oblivious to reality – and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation.41. In K.S. Vidyanadam v. Vairavan (supra) this Court held:10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time- limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519]  : (SCC p. 528, para 25)… it is clear 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 in a reasonable time if the conditions are (evident?): (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 other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised...43. In Saradamani Kandappan (supra) this Court reiterated that (i) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored; (ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation, by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.45. The Respondent Plaintiff has relied upon the notice dated 13.02.2003 and evidences of PW2 & PW3 to prove that he was always ready and willing to perform his part of the contract. Even though it may be true that the Respondent Plaintiff had deposited the balance sale consideration in court on 06.04.2010, it cannot be ignored that such deposit was made by him seven years after 15.3.2003, being the date by which the sale had to be concluded. No evidence has been adduced on behalf of the Respondent Plaintiff as to how the Respondent Plaintiff was in a position to pay or make arrangements for payment of the balance sale consideration within time. The Courts below also erred in not adjudicating upon this vital issue except to make a sweeping observation that, given that the Respondent Plaintiff was a businessman he had sources to arrange the balance funds. Careful study of balance sheet dated 31.03.2003 of the Respondent Plaintiff would demonstrate that he did not have sufficient funds to discharge his part of contract.46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiffs balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiffs readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiffs readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: -45. …Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act…48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract.50. In Bhavyanath v. K.V. Balan (2020) 11 SCC 790 cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore, Bhavyanath v. K.V. Balan (supra) is of no assistance to the Respondent Plaintiff.