Case: RAVI SETIA Vs. MADAN LAL

2. The plaintiff filed a suit for specific performance of agreement for sale dated 10.11.1989 with regard to 2/3 rd of the lands owned by defendants 1 and 2 as Defendant No. 3 declined to sign the agreement. Rs. 50,000/- was paid as earnest money and the balance consideration of Rs.3,10,490/- was to be paid at the time of execution. The agreement provided for execution of the sale deed on or before 30.04.1990. The Trial Court decreed the suit holding that the plaintiff had remained present in the office of the Sub-Registrar for registration of the sale documents on 30.04.1990, but defendant nos. 1 and 2 did not appear for execution. During the pendency of the proceedings, defendant nos. 1 and 2 sold the lands to defendant nos. 4 to 7 by three separate sale deeds dated 16.01.1991. The first appeal by the defendants was dismissed holding that defendant nos. 4 to 7 were not bonafide purchasers. Thus, the present appeal2. The plaintiff filed a suit for specific performance of agreement for sale dated 10.11.1989 with regard to 2/3 rd of the lands owned by defendants 1 and 2 as Defendant No. 3 declined to sign the agreement. Rs. 50,000/- was paid as earnest money and the balance consideration of Rs.3,10,490/- was to be paid at the time of execution. The agreement provided for execution of the sale deed on or before 30.04.1990. The Trial Court decreed the suit holding that the plaintiff had remained present in the office of the Sub-Registrar for registration of the sale documents on 30.04.1990, but defendant nos. 1 and 2 did not appear for execution. During the pendency of the proceedings, defendant nos. 1 and 2 sold the lands to defendant nos. 4 to 7 by three separate sale deeds dated 16.01.1991. The first appeal by the defendants was dismissed holding that defendant nos. 4 to 7 were not bonafide purchasers. Thus, the present

Reasoning: 5. We have considered the submissions on behalf of the parties and have also been taken through the orders under appeal. Defendants nos. 1 to 3 owned 61 karnals 17 marlas of lands in Village Gumjal, Tehsil Abohar, District Ferozpur. Defendant no.3 having refused to sign the agreement for sale dated 10.11.1989, the plaintiff instituted a suit for enforcement of the agreement with regard to the 2/3 rd share of defendants 1 and 2. The sale deed was to be executed on or before 30.04.1990. The Trial Court and the First Appellate Court arrived at the finding of readiness and willingness on part of the plaintiff solely on basis of a certificate produced by them from the Sub-Registrar confirming their presence before him on 30.04.1990 for execution. Apart from the same, no further evidence was led by the plaintiff to demonstrate readiness and willingness including the continuous capacity for discharge of the balance consideration. The plaintiff in its application before the Sub- Registrar stated that he had required defendants 1 and 2 to be present for registration on 25.06.1990. No evidence whatsoever has been led by the plaintiff in support of the same. We are of the considered opinion that in the circumstances the certificate from the office of the Sub-Registrar cannot be construed as conclusive evidence to non-suit defendants 1 and 2. The findings to that effect are therefore held to be unsustainable10. The grant of relief for specific performance under Section 16 (1)(c) of the Act is a discretionary and equitable relief. Under Section 16 (1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations14. According to normal human prudence, land price escalates over time. Unless it be a situation of a distress sale, no land owner will sell his land for a lesser price than what may have been recorded in an agreement for sale. The fact that the defendants nos.1 and 2 subsequently sold the land on 16.01.1991 to defendants nos.4 to 7 at a lesser price, due to personal necessity, also mitigates against the plea of the plaintiff that he was ready and willing to perform his part of the obligations under the contract15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law.16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest at the rate of 7 per cent9. There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that in the facts and circumstances of the present case, the failure of the plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning interest, are all but evidence of incapacity on part of the plaintiff to perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal12. In our opinion, had the plaintiff deposited the amount after expiry of the time but during the pendency of the appeal, as held in Ramankutty Guptan vs. Avara, (1994) 2 SCC 642 ,  entirely different considerations may have arisen. The judgement in any event is based on its own peculiar facts and circumstances6. Defendant nos. 1 and 2 by registered notices dated 28.05.1990 and 12.06.1990 required the plaintiff to get the sale deed executed by 25.06.1990. The plaintiff does not dispute that the communication was properly addressed and sent through registered acknowledgement due. If it was returned back with the endorsement that the plaintiff was not available at his home, defendants 1 and 2 were not required to do anything further. If the plaintiff was of the opinion that the endorsement was wrong, it was for him to have contended so and led necessary evidence in this regard. The Trial Court rightly did not disbelieve defendants 1 and 2, but without returning any finding in that regard preferred to rely on the unsubstantiated claim of the plaintiff of having been present before the Sub-Registrar on 30.04.1990. The said finding is also held to be unsustainable.