Learned counsel for the appellant submits that
pleadings of respondent do not show use of the words that he
had performed his part of the contract which he was required
to perform under its terms. True it is. These specific words are
missing from the plaint. But that has not made any difference
in the instant case. Pleadings, sometimes, are poor in words or
use different words. But as long as they convey that which
must be conveyed under the law, they cannot be flayed and
flogged as being sapped of legal requirements. The law
relating to pleadings is clear. It is the substance of the
pleadings and not the form that must be seen by the Courts,
for, it is the substance only which matters and which is capable
of conveying to the other side what is intended and meant by a
party. Wordings or phraseology of the pleadings might not be
as desired or might be employed with all hues and colours of
the language. It is the beauty of any language whether English
or Indian that it is capable of conveying same meaning in many
different forms and words. The requirement of Section 16(c)
of the Specific Relief Act, 1963 is that by averments made, it
should be conveyed to the defendant that the plaintiff has
performed essential terms of the contract or has always been
ready and willing to perform his part of contract. This
meaning can possibly be expressed in different words and
forms. Such meaning can also be ascertained from the
expressions and words used even in poorly or inartistically
drafted pleadings by looking into their substance. It all
depends upon what words and expressions have been
employed in pleadings and there cannot be any one fits all
solution for determining which words or expressions in their
cannotions and substance conform to requirements of Section
16(c) and which do not. It is for the Court to determine so in
the facts and circumstances of each case before it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.464 OF 2012
Shaligram s/o. Vitthalrao Sawant,
...VERSUS...
Ramesh s/o. Bhagwan Gawande,
CORAM : S.B. SHUKRE, J.
DATE : 28 th NOVEMBER, 2013 .
Citation;2014(3) ALL M R 235 Bom
Read original judgment here;http://bit.ly/1qHVmX6
1. This appeal is preferred against the judgment and
decree commonly passed in Regular Civil Appeal No.124 of
2009 and Regular Civil Appeal No.125 of 2009 by Adhoc
Washim on 11.4.2012 thereby dismissing the
appeal and confirming the judgment and decree passed in
Regular Civil Suit No.28 of 2000 on 2nd September, 2009 by
Civil Judge, Junior Division, Mangrulpir.
2. The appellant is the original defendant and the
respondent is the original plaintiff. The respondent had filed a
suit for specific performance of contract in respect of land Gat
No.73, area 3.25 hectare, situated at Chikhalgad, Tq.
Mangrulpir, District Washim (in short “suit land”) and in the
alternative for refund of consideration amount of Rs.80,000/.
The respondent had contended that on 27th May, 1998, the
appellant being in need of money for solemnizing marriage of
his daughter, agreed to sell the suit land to him for a
consideration of Rs.80,000/.
He submitted that the appellant
was in possession of the suit land since the year 1975 and it
was allotted to him in the category of ‘exservicemen’.
He
further submitted that on 27.5.1998 itself, he paid the entire
consideration amount to the appellant and in lieu thereof the
possession of the suit land was given to him by the appellant.
The terms of this agreement were also reduced into writing. It
was mentioned that the permission of revenue authorities was
required for transfer of the suit land to the respondent and,
therefore, it was agreed that necessary permission would be
obtained in one near from the date of execution of the
agreement. The respondent further submitted that permission
was not obtained by the appellant and later on it was learnt by
him that the land which was categorized as ClassII
occupancy
at the time of agreement to sell, was converted into ClassI
occupancy land, did not require any permission from the
Collector for transfer of the suit land as per the provisions of
the Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961, in view of said conversion. The respondent further
submitted that he issued notices on 27.12.1999 and 14.1.2000
to the appellant calling upon him to execute the saledeed,
but
to no effect. Therefore, respondent filed a civil suit for specific
performance of contract against the appellant in which he also
claimed alternate relief of refund of earnest money, in case, the
suit was not decreed in his favour.
3. The appellant contested the suit by filing his written
statement. He admitted that the suit land was granted in the
category of ‘exservicemen’
and he also admitted that in the
year 1998 he was to perform marriage of his daughter. He
submitted that for the purpose of marriage of his daughter he
was in need of money of Rs.10,000/and,
therefore, he
approached the respondent with a request to lend him an
amount of Rs.10,000/.
He submitted that respondent did
oblige him, but obtained from him a signed blank paper and
also possession of the suit land, as a security for repayment
of
loan. Thus, the possession of the suit land was delivered to the
respondent on 27th May, 1998. He further submitted that he
repaid the loan amount on 15th November, 1998 and at that
time when he demanded possession of the suit land back from
the respondent, the respondent avoided to deliver possession.
According to him, the agreement dated 27th May, 1998 was
sham and bogus. He also submitted that without permission of
the Collector, the suit land could not be transferred and,
therefore, the whole transaction was void, ab initio. Some
other grounds were also taken by him for challenging the suit
transaction. On all these grounds, he urged that suit deserved
to be dismissed with costs. He also filed a counterclaim
for
recovery of possession of suit land.
4. The trial Court found that the respondent had duly
proved the execution of the agreement dated 27.5.1998 for
sale of the suit land by appellant to the respondent for a
consideration of Rs.80,000/and
that the appellant had
received the entire amount of Rs.80,000/in
lieu of which he
had delivered possession of the suit land to the respondent and
the respondent having performed his part of the contract, was
entitled to a decree of specific performance of contract
conditionally. The appellant’s counterclaim
for possession of
the suit land, however, was rejected. Accordingly, the trial
Court by its judgment and decree dated 2nd September, 2009
decreed the suit and dismissed the counterclaim
for
possession. The trial Court directed the appellant to apply for
necessary permission for transfer of the suit land and gave
liberty to the respondent to apply for such a permission, if the
appellant failed to apply for it within the time stipulated by the
Court. Two separate appeals were filed against the said
judgment and decree of the trial Court. Regular Civil Appeal
No.124 of 2009 was against the dismissal of counterclaim
of
the appellant and Regular Civil Appeal No.125 of 2009 was
against decree for specific performance of contract. The
appellate Court confirmed the findings of facts recorded by the
trial Court and dismissed both the appeals, thereby confirming
the decree of the trial Court.
5. This appeal came to be admitted by this Court on 1st
October, 2012 upon the following substantial question of law :
“Whether the Courts below have committed an
error in passing a decree for specific performance
of contract in the absence of their (sicthere)
being a pleading of the readiness and willingness
to perform the part of the contract by the
respondent/plaintiff.”
6. I have heard Mr.S.A.Marathe, learned counsel for the
appellant and Mr.A.P.Tathod, learned counsel for the
respondent. With their assistance, I have gone through the
memo of appeal and record of the trial Court.
7. The substantial question of law relates to necessity of
making any specific averment by the respondent in the plaint,
as regards performance by him his part of the contract or his
readiness and willingness to perform remaining part of the
contract. Learned counsel for the appellant has submitted that
in view of mandatory nature of the provision contained in
Section 16(c) of the Specific Relief Act, 1963 (in short, ‘the
Act’) such an averment was necessary and since it was not
made in a specific manner by the appellant, the suit ought to
have failed and it should not have been decreed by the trial
Court and confirmed by the appellate Court. Learned counsel
for the respondent submits that although this is the mandatory
requirement of law, this very requirement of law can be seen
from the overall pleadings in the plaint to have been fulfilled in
the instant matter and, therefore, there would be no reason for
this Court to interfere with the decrees passed by both the
Courts below.
8. Section 16(c) of the Act is reproduced
as under :
“16. Personal bars to relief.Specific
performance of a contract cannot be enforced in
favour of a person (
a).................................
(b).................................
(c) 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
terms the performance of which has been
prevented or waived by the defendant.
Explanation.For
the purposes of clause (c),(
i) where a contract involves the payment
of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in
Court any money except when so directed by the
Court;
(ii) the plaintiff must aver performance of,
or readiness and willingness to perform, the
contract according to its true construction.”
9. It is clear that the provision is very specific. It lays
down a rule limiting enforcement of specific performance of
contract in two situations. Firstly, it states that specific
performance of contract cannot be enforced in favour of a
person who fails to aver and prove that he has performed his
part of the contract as regards essential terms thereof.
Secondly, it also prohibits enforcement of the specific
performance in a situation where the plaintiff fails to aver and
prove that he has been always ready and willing to perform the
essential terms of the contract which are to be performed by
him. This provision also makes it clear that these averments
must be made according to true construction of the contract. It
has been held to be mandatory in nature. In the absence of
any pleadings made on these lines and proved by the plaintiff,
no specific performance of contract can be awarded. This is
the law wellsettled
now.
10. Now, it would have to be seen whether or not the
averments made by the respondent were according to true
construction of the contract. For its determination, it would be
useful to refer to the essential terms of the agreement of sale,
which has been duly proved by the respondent vide Exhibit62.
A close perusal of this agreement discloses three essential
terms, namely : i) payment of consideration of Rs.80,000/,
ii)
delivery of possession of the suit land, and iii) obtaining of
permission for sale of the suit land from the Government.
11. The first term, obviously, was to be performed by the
respondent, he being the purchaser. For fulfillment of other
two terms, it would naturally fall upon the appellant to
perform them, he being the owner in possession of the suit
land. This agreement itself indicated that the only essential
term which was required to be fulfilled by the respondent was
performed by him by making payment of full consideration
amount. It further indicated that second term, which was to be
performed by appellant, was also performed by him then and
there as it mentioned that possession was delivered. So, what
remained to be performed post agreement of sale was
obtaining of permission from the Government and that was to
be done by the appellant.
12. The pleadings in the plaint show that respondent had
pleaded that on the day of execution of the agreement to sell
i.e. 27th May, 1998 itself, he had made payment of the said
consideration amount in its entirety. This pleading has and for
that matter the pleadings required to be made as per Section
16(c) have to be interpreted in the light of explanation (ii) to
Section 16(c). Explanation (ii) lays down that the averment
must be made according to true construction of the contract.
According to Websters Comprehensive Dictionary Deluxe
Encyclopedic Edition (First Indian Reprint 2001) the word
‘true’ has been assigned the meaning as faithful to fact or
reality; not false or erroneous. In concise Oxford English
Dictionary, Twelfth Edition (Indian), ‘true’ is defined to mean,
‘in accordance with fact or reality. It is clear that the
expression ‘true construction’ used in the explanation (ii) to
Section 16(c) means construction or interpretation which is
faithful to facts and realities emerging from the contract. It is
the construction which is not based upon facts or
circumstances extraneous to the contract. Such construction
must be made by reading the essential terms of the contract all
together and not in piecemeal
manner, in accordance with
their ordinary and natural meaning. One of the facts and
realities of essential terms of the agreement (Exhibit62)
was
that there was just one obligation on the part of respondent to
fulfill and that was of payment of full amount of
consideration. Therefore, when respondent pleaded he paid
full amount of consideration, in effect, he conveyed that he had
performed his part of the contract. It would then follow that
the requirement of first part of Section 16(c) was complied
with and necessity of fulfilling second part requirement of
Section 16(c) relating to averment of readiness and willingness
to perform those essential terms which were to be performed
by respondent did not arise, as nothing had remained to be
performed by the respondent. Whatever was required to be
performed was for the appellant only. It was also not
appellant’s case that something had remained to be performed
by the respondent. His defence was that there was no
agreement of sale and he had signed one blank stamp paper
and had delivered possession to secure loan and interest
thereon. Both the Courts below have concurrently held that
requirements of Section 16(c) as regards averments have been
fulfilled by the respondent and rightly so.
13. Learned counsel for the appellant submits that
pleadings of respondent do not show use of the words that he
had performed his part of the contract which he was required
to perform under its terms. True it is. These specific words are
missing from the plaint. But that has not made any difference
in the instant case. Pleadings, sometimes, are poor in words or
use different words. But as long as they convey that which
must be conveyed under the law, they cannot be flayed and
flogged as being sapped of legal requirements. The law
relating to pleadings is clear. It is the substance of the
pleadings and not the form that must be seen by the Courts,
for, it is the substance only which matters and which is capable
of conveying to the other side what is intended and meant by a
party. Wordings or phraseology of the pleadings might not be
as desired or might be employed with all hues and colours of
the language. It is the beauty of any language whether English
or Indian that it is capable of conveying same meaning in many
different forms and words. The requirement of Section 16(c)
of the Specific Relief Act, 1963 is that by averments made, it
should be conveyed to the defendant that the plaintiff has
performed essential terms of the contract or has always been
ready and willing to perform his part of contract. This
meaning can possibly be expressed in different words and
forms. Such meaning can also be ascertained from the
expressions and words used even in poorly or inartistically
drafted pleadings by looking into their substance. It all
depends upon what words and expressions have been
employed in pleadings and there cannot be any one fits all
solution for determining which words or expressions in their
cannotions and substance conform to requirements of Section
16(c) and which do not. It is for the Court to determine so in
the facts and circumstances of each case before it.
14. In the instant case, the respondent pleaded that he
had paid an amount of Rs.80,000/to
the respondent on the
very day of execution of agreement to sell and that the
agreement to sell could not be executed on 27.5.1998 because
the appellant was to obtain permission for sell of the suit land
from the Government. This can be seen from pleadings
appearing in paragraph 2 of the plaint and they are reproduced
as under :“
The plaintiff on the very day paid Rs.80,000/to
the defendant and the same fact is mentioned in
the Isarpawati. As the land Gat No.73 old Suvery
No.16/1 was granted to him by the Government.
The defendant agreed to apply for permission for
the transaction from Government and therefore,
the saledeed
was not executed on that date.”
15. Substance of these pleadings, in the light of essential
terms of the contract, If I may repeat, is that respondent did his
part of the contract and expected the appellant to perform his
part of the contract so that saledeed
could be executed. This
was also understood well by the appellant, as the evidence on
record shows, causing him no prejudice in his defence.
16. The trial Court in fact elaborately dealt with this
aspect of the case by following the law laid down by the
Hon’ble Apex Court in the cases of Kedar Lal Seal and
another vs. Hari Lal Seal, reported in AIR 1952 SC 47 and
Madan Gopal Kanodia vs. Mamraj Maniram and others,
reported in AIR 1976 SC 461 when it held that the pleadings
could not be interpreted in a pedantic and meticulous manner
so as to defeat the genuine claims on trivial grounds. The trial
Court followed the law laid down in the case of Kedarlal
(supra) that the Court should be slow to throw out a claim on a
mere technicality of pleadings when substance of things is
there and no prejudice would be caused to the other side,
however, clumsily or inartistically the plaint may be worded.
The trial Court also placed its reliance upon the observations
by the learned Single Judge of this Court in the case of Hariba
Babu Babar and anr. vs. Appasaheb Dadu Nagargoje,
reported in 2007(5) Mh.L.J. 260 (para 14), that for gathering
the true spirit behind a plea, it should be read as a whole and
to test whether the plaintiff has performed his obligation, one
has to see the pith and substance of the plea. These findings of
the trial Court have also been confirmed by first appellate
Court. Findings of both these Courts are consistent with
settled law of pleadings and requirements of Section 16(c) of
the Act seen in the light of its explanation (ii). Thus, I see no
reason to take a different view in the matter. Besides, these
findings are based upon the appreciation of evidence available
on record. They are not the result of nonconsideration
of any
relevant evidence or consideration of any evidence not
admissible in law. They, therefore, cannot be termed as
perverse and as such leave no scope for this Court to make any
interference with them. The argument of learned counsel for
the appellant made in this behalf, therefore, cannot be
accepted.
17. Learned counsel for the appellant has forcefully
argued that question of absence of specific pleadings as regards
performance of part of contract by the appellant ought to have
been examined by both the Courts below in the context of the
defence taken by the appellant. He submitted that it was the
case of the appellant that the sale transaction was nominal,
having been entered into between the parties only as a security
for repayment of loan of Rs.10,000/and
that the respondent
had filed a case before the Assistant Registrar, Cooperative
Societies seeking a declaration that the real transaction of the
agreement to sell was of security of loan. He submits that with
this defence, it became obvious that the appellant was avoiding
to perform his part of contract and, therefore, it was necessary
for the respondent to have further pleaded that the appellant
had failed to perform his part of contract. Learned counsel for
the respondent submits that there is no such requirement
under Section 16(c) of the Act.
18. Perusal of Section 16(c) of the Act will amply show
that it does not lay down any rule that the plaintiff should also
make an averment in words that there is a failure on the part
of the defendant to perform essential terms of the contract.
Such a pleading can be gathered from the facts and
circumstances of the case and when it cannot be, there would
be no cause of action to file the suit. In the present suit
general pleadings of the respondent and conduct of the
appellant did show that appellant was not ready and willing to
perform his part of the contract. Besides, the appellant also did
not prove that there was no cause of action to file the suit.
Therefore, I find no merit in the said argument of learned
counsel for the appellant.
19. Learned counsel for the appellant has also referred to
me cases of Raj Kishore (dead) by L.Rs. vs. Prem Singh and
others, reported in AIR 2011 SC 382 and Bal Krishna & Anr.
vs. Bhagwan Das (dead) by L.Rs. & Ors., reported in AIR
2008 SC 1786 to strengthen his argument that in a suit for
specific performance, averment as to readiness and willingness
is mandatory. In fact, I have already held that this is the
settled principle of law and it is mandatory in nature. But,
here the question involved is not so much about the absence of
necessary averment, but is about the form of averment which is
already present in the plaint. In the said case of Raj Kishore, as
per the terms of the agreement, plaintiff was required to repay
an amount Rs.6,000/borrowed
by him from the defendant to
get the land in question transferred back to him. It was in this
background of the agreement that it was found that the
averment as regards readiness and willingness to perform part
of the contract was necessary on the part of the plaintiff
therein, as something had remained to be done. In the
aforesaid case of Bal Krishna also, some part of the contract
had remained to be performed by the plaintiff. Therefore, in
that case, it became necessary for the plaintiff to make a
specific averment in the plaint as regards readiness and
willingness to perform the contract. These facts clearly
distinguish themselves from the facts of the instant case,
wherein nothing had remained to be performed by the
respondent. Therefore, in my respectful submissions, both
these cases would not help the appellant in any manner.
20. In the circumstances, I find that the respondent had
sufficiently pleaded in the plaint that he had performed his part
of contract and the Courts below cannot be said to have
committed an error in passing a decree for specific
performance of contract in the absence of pleading of readiness
and willingness to perform the part of the contract by the
respondent/plaintiff. The substantial question of law is
answered accordingly. There is no substance in the appeal and
it must fail.
21. In view of above, appeal stands dismissed with costs.
Print Page
pleadings of respondent do not show use of the words that he
had performed his part of the contract which he was required
to perform under its terms. True it is. These specific words are
missing from the plaint. But that has not made any difference
in the instant case. Pleadings, sometimes, are poor in words or
use different words. But as long as they convey that which
must be conveyed under the law, they cannot be flayed and
flogged as being sapped of legal requirements. The law
relating to pleadings is clear. It is the substance of the
pleadings and not the form that must be seen by the Courts,
for, it is the substance only which matters and which is capable
of conveying to the other side what is intended and meant by a
party. Wordings or phraseology of the pleadings might not be
as desired or might be employed with all hues and colours of
the language. It is the beauty of any language whether English
or Indian that it is capable of conveying same meaning in many
different forms and words. The requirement of Section 16(c)
of the Specific Relief Act, 1963 is that by averments made, it
should be conveyed to the defendant that the plaintiff has
performed essential terms of the contract or has always been
ready and willing to perform his part of contract. This
meaning can possibly be expressed in different words and
forms. Such meaning can also be ascertained from the
expressions and words used even in poorly or inartistically
drafted pleadings by looking into their substance. It all
depends upon what words and expressions have been
employed in pleadings and there cannot be any one fits all
solution for determining which words or expressions in their
cannotions and substance conform to requirements of Section
16(c) and which do not. It is for the Court to determine so in
the facts and circumstances of each case before it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.464 OF 2012
Shaligram s/o. Vitthalrao Sawant,
...VERSUS...
Ramesh s/o. Bhagwan Gawande,
CORAM : S.B. SHUKRE, J.
DATE : 28 th NOVEMBER, 2013 .
Citation;2014(3) ALL M R 235 Bom
Read original judgment here;http://bit.ly/1qHVmX6
1. This appeal is preferred against the judgment and
decree commonly passed in Regular Civil Appeal No.124 of
2009 and Regular Civil Appeal No.125 of 2009 by Adhoc
Washim on 11.4.2012 thereby dismissing the
appeal and confirming the judgment and decree passed in
Regular Civil Suit No.28 of 2000 on 2nd September, 2009 by
Civil Judge, Junior Division, Mangrulpir.
2. The appellant is the original defendant and the
respondent is the original plaintiff. The respondent had filed a
suit for specific performance of contract in respect of land Gat
No.73, area 3.25 hectare, situated at Chikhalgad, Tq.
Mangrulpir, District Washim (in short “suit land”) and in the
alternative for refund of consideration amount of Rs.80,000/.
The respondent had contended that on 27th May, 1998, the
appellant being in need of money for solemnizing marriage of
his daughter, agreed to sell the suit land to him for a
consideration of Rs.80,000/.
He submitted that the appellant
was in possession of the suit land since the year 1975 and it
was allotted to him in the category of ‘exservicemen’.
He
further submitted that on 27.5.1998 itself, he paid the entire
consideration amount to the appellant and in lieu thereof the
possession of the suit land was given to him by the appellant.
The terms of this agreement were also reduced into writing. It
was mentioned that the permission of revenue authorities was
required for transfer of the suit land to the respondent and,
therefore, it was agreed that necessary permission would be
obtained in one near from the date of execution of the
agreement. The respondent further submitted that permission
was not obtained by the appellant and later on it was learnt by
him that the land which was categorized as ClassII
occupancy
at the time of agreement to sell, was converted into ClassI
occupancy land, did not require any permission from the
Collector for transfer of the suit land as per the provisions of
the Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961, in view of said conversion. The respondent further
submitted that he issued notices on 27.12.1999 and 14.1.2000
to the appellant calling upon him to execute the saledeed,
but
to no effect. Therefore, respondent filed a civil suit for specific
performance of contract against the appellant in which he also
claimed alternate relief of refund of earnest money, in case, the
suit was not decreed in his favour.
3. The appellant contested the suit by filing his written
statement. He admitted that the suit land was granted in the
category of ‘exservicemen’
and he also admitted that in the
year 1998 he was to perform marriage of his daughter. He
submitted that for the purpose of marriage of his daughter he
was in need of money of Rs.10,000/and,
therefore, he
approached the respondent with a request to lend him an
amount of Rs.10,000/.
He submitted that respondent did
oblige him, but obtained from him a signed blank paper and
also possession of the suit land, as a security for repayment
of
loan. Thus, the possession of the suit land was delivered to the
respondent on 27th May, 1998. He further submitted that he
repaid the loan amount on 15th November, 1998 and at that
time when he demanded possession of the suit land back from
the respondent, the respondent avoided to deliver possession.
According to him, the agreement dated 27th May, 1998 was
sham and bogus. He also submitted that without permission of
the Collector, the suit land could not be transferred and,
therefore, the whole transaction was void, ab initio. Some
other grounds were also taken by him for challenging the suit
transaction. On all these grounds, he urged that suit deserved
to be dismissed with costs. He also filed a counterclaim
for
recovery of possession of suit land.
4. The trial Court found that the respondent had duly
proved the execution of the agreement dated 27.5.1998 for
sale of the suit land by appellant to the respondent for a
consideration of Rs.80,000/and
that the appellant had
received the entire amount of Rs.80,000/in
lieu of which he
had delivered possession of the suit land to the respondent and
the respondent having performed his part of the contract, was
entitled to a decree of specific performance of contract
conditionally. The appellant’s counterclaim
for possession of
the suit land, however, was rejected. Accordingly, the trial
Court by its judgment and decree dated 2nd September, 2009
decreed the suit and dismissed the counterclaim
for
possession. The trial Court directed the appellant to apply for
necessary permission for transfer of the suit land and gave
liberty to the respondent to apply for such a permission, if the
appellant failed to apply for it within the time stipulated by the
Court. Two separate appeals were filed against the said
judgment and decree of the trial Court. Regular Civil Appeal
No.124 of 2009 was against the dismissal of counterclaim
of
the appellant and Regular Civil Appeal No.125 of 2009 was
against decree for specific performance of contract. The
appellate Court confirmed the findings of facts recorded by the
trial Court and dismissed both the appeals, thereby confirming
the decree of the trial Court.
5. This appeal came to be admitted by this Court on 1st
October, 2012 upon the following substantial question of law :
“Whether the Courts below have committed an
error in passing a decree for specific performance
of contract in the absence of their (sicthere)
being a pleading of the readiness and willingness
to perform the part of the contract by the
respondent/plaintiff.”
6. I have heard Mr.S.A.Marathe, learned counsel for the
appellant and Mr.A.P.Tathod, learned counsel for the
respondent. With their assistance, I have gone through the
memo of appeal and record of the trial Court.
7. The substantial question of law relates to necessity of
making any specific averment by the respondent in the plaint,
as regards performance by him his part of the contract or his
readiness and willingness to perform remaining part of the
contract. Learned counsel for the appellant has submitted that
in view of mandatory nature of the provision contained in
Section 16(c) of the Specific Relief Act, 1963 (in short, ‘the
Act’) such an averment was necessary and since it was not
made in a specific manner by the appellant, the suit ought to
have failed and it should not have been decreed by the trial
Court and confirmed by the appellate Court. Learned counsel
for the respondent submits that although this is the mandatory
requirement of law, this very requirement of law can be seen
from the overall pleadings in the plaint to have been fulfilled in
the instant matter and, therefore, there would be no reason for
this Court to interfere with the decrees passed by both the
Courts below.
8. Section 16(c) of the Act is reproduced
as under :
“16. Personal bars to relief.Specific
performance of a contract cannot be enforced in
favour of a person (
a).................................
(b).................................
(c) 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
terms the performance of which has been
prevented or waived by the defendant.
Explanation.For
the purposes of clause (c),(
i) where a contract involves the payment
of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in
Court any money except when so directed by the
Court;
(ii) the plaintiff must aver performance of,
or readiness and willingness to perform, the
contract according to its true construction.”
9. It is clear that the provision is very specific. It lays
down a rule limiting enforcement of specific performance of
contract in two situations. Firstly, it states that specific
performance of contract cannot be enforced in favour of a
person who fails to aver and prove that he has performed his
part of the contract as regards essential terms thereof.
Secondly, it also prohibits enforcement of the specific
performance in a situation where the plaintiff fails to aver and
prove that he has been always ready and willing to perform the
essential terms of the contract which are to be performed by
him. This provision also makes it clear that these averments
must be made according to true construction of the contract. It
has been held to be mandatory in nature. In the absence of
any pleadings made on these lines and proved by the plaintiff,
no specific performance of contract can be awarded. This is
the law wellsettled
now.
10. Now, it would have to be seen whether or not the
averments made by the respondent were according to true
construction of the contract. For its determination, it would be
useful to refer to the essential terms of the agreement of sale,
which has been duly proved by the respondent vide Exhibit62.
A close perusal of this agreement discloses three essential
terms, namely : i) payment of consideration of Rs.80,000/,
ii)
delivery of possession of the suit land, and iii) obtaining of
permission for sale of the suit land from the Government.
11. The first term, obviously, was to be performed by the
respondent, he being the purchaser. For fulfillment of other
two terms, it would naturally fall upon the appellant to
perform them, he being the owner in possession of the suit
land. This agreement itself indicated that the only essential
term which was required to be fulfilled by the respondent was
performed by him by making payment of full consideration
amount. It further indicated that second term, which was to be
performed by appellant, was also performed by him then and
there as it mentioned that possession was delivered. So, what
remained to be performed post agreement of sale was
obtaining of permission from the Government and that was to
be done by the appellant.
12. The pleadings in the plaint show that respondent had
pleaded that on the day of execution of the agreement to sell
i.e. 27th May, 1998 itself, he had made payment of the said
consideration amount in its entirety. This pleading has and for
that matter the pleadings required to be made as per Section
16(c) have to be interpreted in the light of explanation (ii) to
Section 16(c). Explanation (ii) lays down that the averment
must be made according to true construction of the contract.
According to Websters Comprehensive Dictionary Deluxe
Encyclopedic Edition (First Indian Reprint 2001) the word
‘true’ has been assigned the meaning as faithful to fact or
reality; not false or erroneous. In concise Oxford English
Dictionary, Twelfth Edition (Indian), ‘true’ is defined to mean,
‘in accordance with fact or reality. It is clear that the
expression ‘true construction’ used in the explanation (ii) to
Section 16(c) means construction or interpretation which is
faithful to facts and realities emerging from the contract. It is
the construction which is not based upon facts or
circumstances extraneous to the contract. Such construction
must be made by reading the essential terms of the contract all
together and not in piecemeal
manner, in accordance with
their ordinary and natural meaning. One of the facts and
realities of essential terms of the agreement (Exhibit62)
was
that there was just one obligation on the part of respondent to
fulfill and that was of payment of full amount of
consideration. Therefore, when respondent pleaded he paid
full amount of consideration, in effect, he conveyed that he had
performed his part of the contract. It would then follow that
the requirement of first part of Section 16(c) was complied
with and necessity of fulfilling second part requirement of
Section 16(c) relating to averment of readiness and willingness
to perform those essential terms which were to be performed
by respondent did not arise, as nothing had remained to be
performed by the respondent. Whatever was required to be
performed was for the appellant only. It was also not
appellant’s case that something had remained to be performed
by the respondent. His defence was that there was no
agreement of sale and he had signed one blank stamp paper
and had delivered possession to secure loan and interest
thereon. Both the Courts below have concurrently held that
requirements of Section 16(c) as regards averments have been
fulfilled by the respondent and rightly so.
13. Learned counsel for the appellant submits that
pleadings of respondent do not show use of the words that he
had performed his part of the contract which he was required
to perform under its terms. True it is. These specific words are
missing from the plaint. But that has not made any difference
in the instant case. Pleadings, sometimes, are poor in words or
use different words. But as long as they convey that which
must be conveyed under the law, they cannot be flayed and
flogged as being sapped of legal requirements. The law
relating to pleadings is clear. It is the substance of the
pleadings and not the form that must be seen by the Courts,
for, it is the substance only which matters and which is capable
of conveying to the other side what is intended and meant by a
party. Wordings or phraseology of the pleadings might not be
as desired or might be employed with all hues and colours of
the language. It is the beauty of any language whether English
or Indian that it is capable of conveying same meaning in many
different forms and words. The requirement of Section 16(c)
of the Specific Relief Act, 1963 is that by averments made, it
should be conveyed to the defendant that the plaintiff has
performed essential terms of the contract or has always been
ready and willing to perform his part of contract. This
meaning can possibly be expressed in different words and
forms. Such meaning can also be ascertained from the
expressions and words used even in poorly or inartistically
drafted pleadings by looking into their substance. It all
depends upon what words and expressions have been
employed in pleadings and there cannot be any one fits all
solution for determining which words or expressions in their
cannotions and substance conform to requirements of Section
16(c) and which do not. It is for the Court to determine so in
the facts and circumstances of each case before it.
14. In the instant case, the respondent pleaded that he
had paid an amount of Rs.80,000/to
the respondent on the
very day of execution of agreement to sell and that the
agreement to sell could not be executed on 27.5.1998 because
the appellant was to obtain permission for sell of the suit land
from the Government. This can be seen from pleadings
appearing in paragraph 2 of the plaint and they are reproduced
as under :“
The plaintiff on the very day paid Rs.80,000/to
the defendant and the same fact is mentioned in
the Isarpawati. As the land Gat No.73 old Suvery
No.16/1 was granted to him by the Government.
The defendant agreed to apply for permission for
the transaction from Government and therefore,
the saledeed
was not executed on that date.”
15. Substance of these pleadings, in the light of essential
terms of the contract, If I may repeat, is that respondent did his
part of the contract and expected the appellant to perform his
part of the contract so that saledeed
could be executed. This
was also understood well by the appellant, as the evidence on
record shows, causing him no prejudice in his defence.
16. The trial Court in fact elaborately dealt with this
aspect of the case by following the law laid down by the
Hon’ble Apex Court in the cases of Kedar Lal Seal and
another vs. Hari Lal Seal, reported in AIR 1952 SC 47 and
Madan Gopal Kanodia vs. Mamraj Maniram and others,
reported in AIR 1976 SC 461 when it held that the pleadings
could not be interpreted in a pedantic and meticulous manner
so as to defeat the genuine claims on trivial grounds. The trial
Court followed the law laid down in the case of Kedarlal
(supra) that the Court should be slow to throw out a claim on a
mere technicality of pleadings when substance of things is
there and no prejudice would be caused to the other side,
however, clumsily or inartistically the plaint may be worded.
The trial Court also placed its reliance upon the observations
by the learned Single Judge of this Court in the case of Hariba
Babu Babar and anr. vs. Appasaheb Dadu Nagargoje,
reported in 2007(5) Mh.L.J. 260 (para 14), that for gathering
the true spirit behind a plea, it should be read as a whole and
to test whether the plaintiff has performed his obligation, one
has to see the pith and substance of the plea. These findings of
the trial Court have also been confirmed by first appellate
Court. Findings of both these Courts are consistent with
settled law of pleadings and requirements of Section 16(c) of
the Act seen in the light of its explanation (ii). Thus, I see no
reason to take a different view in the matter. Besides, these
findings are based upon the appreciation of evidence available
on record. They are not the result of nonconsideration
of any
relevant evidence or consideration of any evidence not
admissible in law. They, therefore, cannot be termed as
perverse and as such leave no scope for this Court to make any
interference with them. The argument of learned counsel for
the appellant made in this behalf, therefore, cannot be
accepted.
17. Learned counsel for the appellant has forcefully
argued that question of absence of specific pleadings as regards
performance of part of contract by the appellant ought to have
been examined by both the Courts below in the context of the
defence taken by the appellant. He submitted that it was the
case of the appellant that the sale transaction was nominal,
having been entered into between the parties only as a security
for repayment of loan of Rs.10,000/and
that the respondent
had filed a case before the Assistant Registrar, Cooperative
Societies seeking a declaration that the real transaction of the
agreement to sell was of security of loan. He submits that with
this defence, it became obvious that the appellant was avoiding
to perform his part of contract and, therefore, it was necessary
for the respondent to have further pleaded that the appellant
had failed to perform his part of contract. Learned counsel for
the respondent submits that there is no such requirement
under Section 16(c) of the Act.
18. Perusal of Section 16(c) of the Act will amply show
that it does not lay down any rule that the plaintiff should also
make an averment in words that there is a failure on the part
of the defendant to perform essential terms of the contract.
Such a pleading can be gathered from the facts and
circumstances of the case and when it cannot be, there would
be no cause of action to file the suit. In the present suit
general pleadings of the respondent and conduct of the
appellant did show that appellant was not ready and willing to
perform his part of the contract. Besides, the appellant also did
not prove that there was no cause of action to file the suit.
Therefore, I find no merit in the said argument of learned
counsel for the appellant.
19. Learned counsel for the appellant has also referred to
me cases of Raj Kishore (dead) by L.Rs. vs. Prem Singh and
others, reported in AIR 2011 SC 382 and Bal Krishna & Anr.
vs. Bhagwan Das (dead) by L.Rs. & Ors., reported in AIR
2008 SC 1786 to strengthen his argument that in a suit for
specific performance, averment as to readiness and willingness
is mandatory. In fact, I have already held that this is the
settled principle of law and it is mandatory in nature. But,
here the question involved is not so much about the absence of
necessary averment, but is about the form of averment which is
already present in the plaint. In the said case of Raj Kishore, as
per the terms of the agreement, plaintiff was required to repay
an amount Rs.6,000/borrowed
by him from the defendant to
get the land in question transferred back to him. It was in this
background of the agreement that it was found that the
averment as regards readiness and willingness to perform part
of the contract was necessary on the part of the plaintiff
therein, as something had remained to be done. In the
aforesaid case of Bal Krishna also, some part of the contract
had remained to be performed by the plaintiff. Therefore, in
that case, it became necessary for the plaintiff to make a
specific averment in the plaint as regards readiness and
willingness to perform the contract. These facts clearly
distinguish themselves from the facts of the instant case,
wherein nothing had remained to be performed by the
respondent. Therefore, in my respectful submissions, both
these cases would not help the appellant in any manner.
20. In the circumstances, I find that the respondent had
sufficiently pleaded in the plaint that he had performed his part
of contract and the Courts below cannot be said to have
committed an error in passing a decree for specific
performance of contract in the absence of pleading of readiness
and willingness to perform the part of the contract by the
respondent/plaintiff. The substantial question of law is
answered accordingly. There is no substance in the appeal and
it must fail.
21. In view of above, appeal stands dismissed with costs.
No comments:
Post a Comment