In the first place, learned counsel submitted
that since the respondent (plaintiff) did not seek a
declaration that the termination of agreement is bad
in law, mere suit for specific performance of the
agreement was not maintainable in law and was,
therefore, liable to be dismissed on this short
ground. In other words, the submission was that it
was obligatory upon the respondent (plaintiff) to
have sought a declaration in the suit that the
termination of the agreement made by the appellant
(defendant) vide his notice dated 03.01.1989 is bad
and along with such relief, the respondent(plaintiff)
should also have claimed a relief of specific
performance of the agreement to make the suit
maintainable. It was urged that since such relief
was not claimed by the plaintiff, the suit for specific
performance of the agreement simpliciter was not
maintainable. In support of this submission,
learned counsel placed reliance on the decision of
this Court in I.S. Sikander (Dead) by LRs. Vs. K.
Subramani & Ors., (2013) 15 SCC 27.
Fourth, the decision relied on by the learned
counsel for the appellant in the case of I.S.
Sikander (supra) turns on the facts involved therein
and is thus distinguishable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2714 OF 2008
Mrs. A. Kanthamani
V
Mrs. Nasreen Ahmed
Citation: AIR 2017 SC 1236
1) This appeal is filed by the defendant against
the judgment and final order dated 27.10.2006
passed by the High Court of Judicature at Madras
in A.S. No. 127 of 2000 by which the High Court
dismissed the appeal filed by the appellant herein
with costs confirming the decree and judgment
dated 30.10.1998 passed in O.S. No. 6420 of 1996
by the VIII Additional Judge, City Civil Court,
Chennai, which decreed the respondent’s suit for
specific performance of the agreement against the
appellant.
2) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
3) The appellant-defendant is the owner of the
property situated at No.191, Lloyds Road,
Chennai-86. She entered into an agreement for sale
with the respondent-plaintiff on 05.03.1989 in
respect of a part of ground floor of the said property
described in Schedule ‘B’ to the plaint together with
1/3rd undivided share in the property described in
Schedule ‘A’ for a total sale consideration of
Rs.3,43,200/-. On the same day, a sum of
Rs.1,30,000/- was paid by the respondent as
advance money to the appellant. Thereafter, the
respondent paid Rs. 20,000/- towards sale
consideration to the appellant on 03.04.1989, Rs.
10,000/- on 04.05.1989, Rs. 15,000 on 03.07.1989,
Rs. 15,000/- on 06.07.1989 and Rs. 16,000/- on
16.08.1989. So far as the balance amount was
concerned, the respondent agreed to pay the same
on or before 31.12.1989 to the appellant. It was
alleged that the appellant also orally agreed to sell
to the respondent an additional area of 132.25 sq.ft.
at the ground floor and 4 of undivided share and for
that additional property, the respondent paid a sum
of Rs.46,000/- as an advance money.
4) On 10.11.1989, the respondent sent a draft
sale deed to the appellant for an area measuring
847.25 sq.ft. and one 1/2 undivided share. The
appellant though agreed to sell the additional extent
of land orally, she refused to do so and returned the
draft sale deed on 04.12.1989 for approval of the
respondent by treating the sum of Rs.46,000/- paid
by her for additional extent as further advance for
the earlier written agreement.
5) Thereafter on 15.12.1989, the appellant sent
another draft sale deed for approval of the
respondent by removing clauses 18 and 27 and with
minor changes. Since these deleted clauses referred
to clauses 17 and 24 of the agreement of sale, the
respondent approved the first draft which contained
these clauses.
6) On 27.12.1989, the appellant wrote a letter to
the respondent insisting upon her to approve her
second draft on or before 31.12.1989.
7) The respondent approved the second draft sale
deed and sent it to the appellant on 28.12.1989 by
speed post and also enclosed a letter from the LIC
sanctioning loan of Rs.1 lakh in her favour. The
respondent further informed that she is willing to
bring the balance of sale consideration at the time
of registration of the sale deed.
8) On 30.12.1989, the respondent sent a legal
notice through her advocate calling upon the
appellant to execute and register the sale deed on or
before 10.01.1990 in her favour.
9) By letter dated 03.01.1990 through her
advocate, the appellant refused to sell the property
to the respondent and cancelled the agreement.
4Page 5
10) The respondent then filed a suit against the
appellant on 10.01.1990 seeking specific
performance of the agreement. The plaint contained
aforementioned pleadings. It was alleged that the
respondent was and is ready and willing to perform
her part of the agreement and has, in fact, so
performed. It was alleged that it was the appellant
who failed to perform her part without any
justification and hence committed breach of the
agreement thereby entitling the respondent to claim
specific performance of the agreement in relation to
suit house. The appellant filed written statement.
11) Considering the plaint and written statement,
the trial Court framed five issues and one additional
issue which are as under:
1) Whether it is true that the defendant
agreed to sell the schedule property
and an extent of 132.25 sq.ft. along
with ½ undivided share to the
plaintiff?
2) Whether it is true that the time is
the essence of the contract?
3) Whether it is true that the plaintiff
was ready to perform her part of
contract in the agreement?
5Page 6
4) Whether the plaintiff is entitled for
the relief of specific performance?
5) What is the relief, the plaintiff
entitled for?
Additional issue framed on 31.07.1998:
1) Whether the plaintiff acted in a manner
contradictory and in violation of
agreement?
12) After considering the documentary evidence
led in by both the parties, the Trial Court, vide
judgment and decree dated 30.10.1998 in O.S.
No.6420 of 1996, decreed the respondent’s suit and
passed the decree for specific performance of the
agreement against the appellant. It was held that
the time was not the essence of the contract. It was
further held that the Plaintiff (Respondent) was
always ready and willing to perform the agreement
and, in fact, performed her part while it was the
defendant (appellant) who tried to scuttle away from
the agreement. It was further held that the
respondent is entitled to a decree for specific
performance of contract on the basis of sale
6Page 7
agreement dated 05.03.1989 in respect of the plaint
schedule property and accordingly the appellant
was given two months’ time to execute the sale deed
and the respondent was given one month’s time to
deposit the balance sale consideration of
Rs.1,47,200/-.
13) Aggrieved by the aforesaid judgment, the
defendant filed an appeal to the High Court. By
impugned judgment dated 27.10.2006, the High
Court dismissed the appeal and confirmed the
decree and judgment dated 30.10.1998 passed by
the trial Court in O.S. No. 6420 of 1996.
14) Against the said judgment, the
appellant(defendant) has filed this appeal by way of
special leave petition before this Court.
15) Heard Mr. Mohan Parasaran, learned senior
counsel for the appellant and Mr. R.
Balasubramanian, learned senior counsel for the
respondent.
7Page 8
16) Mr. Mohan Parasaran, learned senior counsel
for the appellant while assailing the legality and
correctness of the impugned judgment essentially
argued three points.
17) In the first place, learned counsel submitted
that since the respondent (plaintiff) did not seek a
declaration that the termination of agreement is bad
in law, mere suit for specific performance of the
agreement was not maintainable in law and was,
therefore, liable to be dismissed on this short
ground. In other words, the submission was that it
was obligatory upon the respondent (plaintiff) to
have sought a declaration in the suit that the
termination of the agreement made by the appellant
(defendant) vide his notice dated 03.01.1989 is bad
and along with such relief, the respondent(plaintiff)
should also have claimed a relief of specific
performance of the agreement to make the suit
maintainable. It was urged that since such relief
was not claimed by the plaintiff, the suit for specific
performance of the agreement simpliciter was not
maintainable. In support of this submission,
learned counsel placed reliance on the decision of
this Court in I.S. Sikander (Dead) by LRs. Vs. K.
Subramani & Ors., (2013) 15 SCC 27.
18) In the second place, learned counsel attacked
the findings on merits. He took us to the evidence of
the parties and made an attempt to point out that
both the Courts below committed error in holding
that the plaintiff was ready and willing to perform
her part of the agreement. Learned counsel
contended that from the evidence, it is clear that the
plaintiff was neither ready nor willing to perform her
part of the agreement and nor she had money with
her to pay towards balance consideration to the
defendant to get the sale deed executed in her
favour in terms of the agreement. It was urged that
the plaintiff did not come to the Court with clean
hands inasmuch as she insisted upon the terms,
9Page 10
which were neither agreed upon and nor they were
part of the agreement.
19) In the third place, learned counsel contended
that since two Courts below did not properly
appreciate the evidence and that too in a case where
the plaintiff had come to the Court with unclean
hands, the discretionary relief of grant of specific
performance of agreement ought not to have been
granted to such plaintiff and instead the suit
merited dismissal.
20) In reply, learned counsel for the respondent
(plaintiff) while opposing the appeal contended that
no case for any interference in the impugned
judgment is made out. It was his submission that
both the Courts below rightly held that the plaintiff
was able to make out a case of breach of agreement
committed by the defendant; and secondly, she had
performed her part of the agreement thereby rightly
held to have fulfilled the twin requirement of
"readiness and willingness" as provided under
10Page 11
Section 16 (c) of the Specific Relief Act, 1963.
Learned counsel urged that since the issue relating
to the maintainability of suit was neither raised in
the written statement nor in the appeal before the
High Court and nor even in this appeal but was
raised for the first time in submission, hence the
same could not be allowed to be raised for the first
time in this Court. Lastly, learned counsel
submitted that since the two Courts below
answered all the issues on facts in favour of the
plaintiff by properly appreciating the evidence, such
findings being concurrent in nature, are binding on
this Court. It was more so when the findings did not
suffer from any perversity, much less extreme
perversity or illegality or arbitrariness, requiring any
interference by this Court.
21) Having heard learned counsel for the parties
and on perusal of the record of the case, we find no
force in any of the submissions of the learned
counsel for the appellant (defendant).
11Page 12
22) Before we proceed to examine the issues
involved in the appeal, it is necessary to take note of
some of the relevant provisions of the Acts and the
decisions rendered by the Courts, which govern the
controversy.
23) The filing of the suit for specific performance of
an agreement/contract is governed by Section 16(c)
of the Specific Relief Act, 1963 read with Article 54
of the Schedule to the Limitation Act, 1963. Form
Nos. 47 and 48 of Appendix‘A’ to Code of Civil
Procedure, 1908 prescribe the format of the plaint
for such suit.
24) The Specific Relief Act, 1877 which stood
repealed by the Act of 1963 did not contain
provision analogues to Section 16(c). Yet in the
absence of any such provision, its requirements
used to be considered mandatory in the suits for
specific performance by virtue of law laid down by
the Privy Counsel in a celebrated case of Ardeshir
H. Mama vs Flora Sasoon, AIR 1928 PC 208. It is
12Page 13
in this Case which went to Privy Council from
Indian Courts, Their Lordships laid down the
following principle:
“In a suit for specific performance on
the other hand, he treated and was required
by the Court to treat the contract as still
subsisting. He had in that suit to allege, and
if the fact was traversed, he was 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. Failure to make good that averment
brought with it the inevitable dismissal of his
suit. Thus it was that the commencement of
an action for damages being, on the principle
of such cases as Clough v. London and North
Western Railway Co. (1871) L.R. 7 Ex. 26 and
Law v. Law (1905) 1 Ch. 140 a definite
election to treat the contract as at an end, no
suit for specific, performance, whatever
happened to the action, could thereafter be
maintained by the aggrieved plaintiff. He had
by his election precluded himself even from
making the averment just referred to proof of
which was essential to the success of his suit.
The effect upon an action for damages for
breach of a previous suit for specific
performance will be apparent after the
question of the competence of the Court
itself to award damages in such a suit has
been touched upon.”
25) The Act of 1963 then made the aforesaid
requirement a statutory one by enacting Section 16
(c), which reads as under: -
“16. Personal bars to relief- Specific
performance of a contract cannot be enforced
in favour of a person-
(a)…………………..
13Page 14
(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)-
a) 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;
b) the plaintiff must aver performance of,
or readiness and willingness to perform, the
contract according to its true construction.”
26) Therefore, the plaint which seeks the relief of
specific performance of the agreement/contract
must contain all requirements of Section 16 (c) read
with requirements contained in Form Nos. 47 and
48 of Appendix ‘A’ of C.P.C.
27) Article 54 of the Limitation Act provides a
period of 3 year for filing a suit for specific
performance of contract/agreement. A period of 3
years is required to be counted from the date fixed
by the parties for the performance, or if no such
date is fixed, when the plaintiff has noticed that the
14Page 15
performance is refused. The plaint should,
therefore, also have necessary pleading satisfying
the requirement of Article 54.
28) The expression "readiness and willingness" has
been the subject matter of interpretation in many
cases even prior to its insertion in Section 16 (c) of
the Specific Relief Act, 1963. While examining the
question as to how and in what manner, the
plaintiff is required to prove his financial readiness
so as to enable him to claim specific performance of
the contract/agreement, the Privy Council in a
leading case which arose from the Indian Courts
(Bombay) in Bank of India Limited & Ors. Vs.
Jamsetji A.H. Chinoy and Chinoy and Company,
AIR 1950 PC 90, approved the view taken by Chagla
A.C.J., and held inter alia that " it is not necessary
for the plaintiff to produce the money or vouch a
concluded scheme for financing the transaction to
prove his readiness and willingness.”
15Page 16
29) The following observations of the Privy Council
are apposite:
“21…………..Their Lordships agree with
this conclusion and the grounds on which it
was based. It is true that the plaintiff 1
stated that he was buying for himself, that he
had not sufficient ready money to meet the
price and that no definite arrangements had
been made for finding it at the time of
repudiation. But in order to prove himself
ready and willing a purchaser has not
necessarily to produce the money or to vouch
a concluded scheme for financing the
transaction. The question is one of fact, and
in the present case the Appellate Court had
ample material on which to found the view it
reached. Their Lordships would only add in
this connection that they fully concur with
Chagla A.C.J. when he says:
"In my opinion, on the evidence
already on record it was
sufficient for the court to come
to the conclusion ' that plaintiff
1 was ready and willing to
perform his part of the contract.
It was not necessary for him to '
work out actual figures and
satisfy the court what specific
amount a bank would have
advanced on the mortgage of his
property and the pledge of these
shares. I do not think that any
jury--if the matter was left to
the jury in England--would have
come to the conclusion that a
man, " in the position in which
the plaintiff was, was not ready
and willing to pay the purchase
price of the shares which he had
bought from defendants 1 and
2."
16Page 17
For the foregoing reasons, their
Lordships answer question(4) in the
affirmative.”
(Emphasis supplied)
30) This Court in Sukhbir Singh & Ors. Vs. Brij
Pal Singh & Ors., AIR 1996 SC 2510=(1997) 2 SCC
200 followed the aforesaid principle with these
words:
“5. Law is not in doubt and it is not a
condition that the respondents should have
ready cash with them. The fact that they
attended the Sub-Registrar’s office to have
the sale deed executed and waited for the
petitioners to attend the office of the
Sub-Registrar is a positive fact to prove that
they had necessary funds to pass on
consideration and had with them the needed
money with them for payment at the time of
registration. It is sufficient for the
respondents to establish that they had the
capacity to pay the sale consideration. It is
not necessary that they should always carry
the money with them from the date of the
suit till the date of the decree. It would,
therefore, be clear that the courts below have
appropriately exercised their discretion for
granting the relief of specific performance to
the respondents on sound principles of law.”
31) Keeping these broad principles of law in mind,
which are now fairly well settled, let us examine the
facts of this case.
17Page 18
32) At the outset, we may observe that this Court
is loath to undertake the task of appreciating the
evidence in an appeal filed under Article 136 of the
Constitution of India. It is more so when such
appeal arises out of the judgment, which has
recorded concurrent findings of fact.
33) However, since in this case, leave was granted
and at the time of hearing, learned counsel for the
parties took us through the evidence in support of
their submissions, we considered it proper to peruse
the evidence with a view to find out as to whether
impugned judgment suffers from any error on facts
or/and law?
34) Coming first to the submission of the learned
counsel for the appellant about the maintainability
of suit, in our considered view, it has no merit for
more than one reason.
35) First, as rightly argued by learned counsel for
the respondent, the objection regarding the
maintainability of the Suit was neither raised by the
defendant in the written statement nor in first
appeal before the High Court and nor in grounds of
appeal in this Court.
36) Second, since no plea was raised in the written
statement, a fortiori, no issue was framed and, in
consequence, neither the Trial Court nor the High
Court could render any finding on the plea.
37) Third, it is a well-settled principle of law that
the plea regarding the maintainability of suit is
required to be raised in the first instance in the
pleading (written statement) then only such plea
can be adjudicated by the Trial Court on its merits
as a preliminary issue under Order 14 Rule 2 of the
CPC. Once a finding is rendered on the plea, the
same can then be examined by the first or/and
second appellate Court.
38) It is only in appropriate cases, where the Court
prima facie finds by mere perusal of plaint
allegations that the suit is barred by any express
provision of law or is not legally maintainable due to
any legal provision; a judicial notice can be taken to
avoid abuse of judicial process in prosecuting such
suit. Such is, however, not the case here.
39) Fourth, the decision relied on by the learned
counsel for the appellant in the case of I.S.
Sikander (supra) turns on the facts involved therein
and is thus distinguishable.
40) Lastly, the suit filed by the respondent seeking
specific performance of the agreement dated
05.03.1989 was maintainable for the reason that
the cause of action to file the suit arose on the
expiry of period mentioned in the agreement
(31.12.1989) for its performance as provided in
Article 54 of the Limitation Act and it was rightly
filed immediately within 10 days on 10.01.1990.
41) For the aforementioned reasons, we find no
merit in the first submission of learned counsel for
the appellant, which is rejected.
42) Coming now to the second and third
submission of learned counsel for the appellant, we
are of the considered opinion that it has also no
merit and hence deserve to be rejected for more
than one reason.
43) First, the plaintiff had pleaded the necessary
requirements of Section 16 (c) of the Specific Relief
Act, 1963 read with the requirement of Forms 47,
48 and Article 54 of the Limitation Act in the plaint;
Second, the defendant did not dispute the execution
of agreement with the plaintiff and, in fact, entered
in correspondence with the plaintiff for
incorporation of some clauses therein; Third, the
plaintiff proved her readiness and willingness to
perform her part of agreement and also proved her
financial capacity to purchase the suit property by
adducing adequate evidence; Fourth, the plaintiff
had paid more than Rs.2 lacs to the defendant prior
to execution of sale deed in terms of agreement
dated 05.03.1989 and was, therefore, required to
pay balance sum of Rs.1,47,200/- to the defendant;
Fifth, on admitted facts, therefore, the plaintiff had
paid more than 50% of the sale consideration to the
defendant before the due date of execution of sale
deed; Sixth, the plaintiff had also proved that she
had the requisite financial capacity to pay the
balance sale consideration to the defendant
inasmuch as she had arranged the funds by
obtaining loan from the LIC; Seventh, the plaintiff
filed the suit immediately on expiry of the period
within 10 days to show her readiness and
willingness to purchase the property; and Eighth,
once it was held that the defendant committed
breach in avoiding to execute the agreement,
whereas the plaintiff performed her part of
agreement and was ready and willing to perform her
part, the Trial Court was justified in exercising its
discretion in favour of the plaintiff by passing a
decree for specific performance of agreement against
the defendant.
44) In our view, none of these findings could be
assailed as being either perverse or de hors the
evidence or against any provision of law and nor
these findings could be assailed on the ground that
no judicial man could ever reach to such
conclusion.
45) We also do not find any merit in the
submission of the learned counsel for the appellant
when he contended that the plaintiff did not come to
the Court with clean hands and hence the suit is
liable to be dismissed.
46) In our view, both the Courts below rightly
rejected this submission. There is no evidence to
sustain the submission. On the other hand, we find
that it is the defendant, who despite accepting the
substantial money (more than 50%) towards sale
consideration from the plaintiff, avoided executing
the sale deed on one or other false pretext.
47) We also do not find any merit in the
submission of the learned counsel for the appellant
when he contended that since the plaintiff was
insisting for execution of sale deed in relation to
some more portions, which did not form part of the
agreement and hence it should have been held that
the plaintiff committed the breach of the agreement
and not the defendant.
48) In our view, the two Courts below rightly
repelled this submission by holding that the plaintiff
did not claim any relief in relation to the property
which was not the subject matter of agreement and
confined his relief only in relation to the property
which formed the subject matter of agreement dated
05.03.1989. We thus find no good ground to differ
with this finding of the two Courts below. It was
rightly recorded.
49) In our considered view, the two Courts below,
therefore, rightly rendered the aforementioned
findings in favour of the plaintiff and we find no
difficulty in concurring with the findings, which in
our view do not call for any interference by this
Court.
50) In the light of foregoing discussion, we find no
merit in the appeal. It is accordingly dismissed with
cost quantified at Rs.10,000/- payable by the
appellant to the respondent.
………...................................J.
[R.K. AGRAWAL]
….……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 6, 2017
that since the respondent (plaintiff) did not seek a
declaration that the termination of agreement is bad
in law, mere suit for specific performance of the
agreement was not maintainable in law and was,
therefore, liable to be dismissed on this short
ground. In other words, the submission was that it
was obligatory upon the respondent (plaintiff) to
have sought a declaration in the suit that the
termination of the agreement made by the appellant
(defendant) vide his notice dated 03.01.1989 is bad
and along with such relief, the respondent(plaintiff)
should also have claimed a relief of specific
performance of the agreement to make the suit
maintainable. It was urged that since such relief
was not claimed by the plaintiff, the suit for specific
performance of the agreement simpliciter was not
maintainable. In support of this submission,
learned counsel placed reliance on the decision of
this Court in I.S. Sikander (Dead) by LRs. Vs. K.
Subramani & Ors., (2013) 15 SCC 27.
Fourth, the decision relied on by the learned
counsel for the appellant in the case of I.S.
Sikander (supra) turns on the facts involved therein
and is thus distinguishable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2714 OF 2008
Mrs. A. Kanthamani
V
Mrs. Nasreen Ahmed
Citation: AIR 2017 SC 1236
1) This appeal is filed by the defendant against
the judgment and final order dated 27.10.2006
passed by the High Court of Judicature at Madras
in A.S. No. 127 of 2000 by which the High Court
dismissed the appeal filed by the appellant herein
with costs confirming the decree and judgment
dated 30.10.1998 passed in O.S. No. 6420 of 1996
by the VIII Additional Judge, City Civil Court,
Chennai, which decreed the respondent’s suit for
specific performance of the agreement against the
appellant.
2) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
3) The appellant-defendant is the owner of the
property situated at No.191, Lloyds Road,
Chennai-86. She entered into an agreement for sale
with the respondent-plaintiff on 05.03.1989 in
respect of a part of ground floor of the said property
described in Schedule ‘B’ to the plaint together with
1/3rd undivided share in the property described in
Schedule ‘A’ for a total sale consideration of
Rs.3,43,200/-. On the same day, a sum of
Rs.1,30,000/- was paid by the respondent as
advance money to the appellant. Thereafter, the
respondent paid Rs. 20,000/- towards sale
consideration to the appellant on 03.04.1989, Rs.
10,000/- on 04.05.1989, Rs. 15,000 on 03.07.1989,
Rs. 15,000/- on 06.07.1989 and Rs. 16,000/- on
16.08.1989. So far as the balance amount was
concerned, the respondent agreed to pay the same
on or before 31.12.1989 to the appellant. It was
alleged that the appellant also orally agreed to sell
to the respondent an additional area of 132.25 sq.ft.
at the ground floor and 4 of undivided share and for
that additional property, the respondent paid a sum
of Rs.46,000/- as an advance money.
4) On 10.11.1989, the respondent sent a draft
sale deed to the appellant for an area measuring
847.25 sq.ft. and one 1/2 undivided share. The
appellant though agreed to sell the additional extent
of land orally, she refused to do so and returned the
draft sale deed on 04.12.1989 for approval of the
respondent by treating the sum of Rs.46,000/- paid
by her for additional extent as further advance for
the earlier written agreement.
5) Thereafter on 15.12.1989, the appellant sent
another draft sale deed for approval of the
respondent by removing clauses 18 and 27 and with
minor changes. Since these deleted clauses referred
to clauses 17 and 24 of the agreement of sale, the
respondent approved the first draft which contained
these clauses.
6) On 27.12.1989, the appellant wrote a letter to
the respondent insisting upon her to approve her
second draft on or before 31.12.1989.
7) The respondent approved the second draft sale
deed and sent it to the appellant on 28.12.1989 by
speed post and also enclosed a letter from the LIC
sanctioning loan of Rs.1 lakh in her favour. The
respondent further informed that she is willing to
bring the balance of sale consideration at the time
of registration of the sale deed.
8) On 30.12.1989, the respondent sent a legal
notice through her advocate calling upon the
appellant to execute and register the sale deed on or
before 10.01.1990 in her favour.
9) By letter dated 03.01.1990 through her
advocate, the appellant refused to sell the property
to the respondent and cancelled the agreement.
4Page 5
10) The respondent then filed a suit against the
appellant on 10.01.1990 seeking specific
performance of the agreement. The plaint contained
aforementioned pleadings. It was alleged that the
respondent was and is ready and willing to perform
her part of the agreement and has, in fact, so
performed. It was alleged that it was the appellant
who failed to perform her part without any
justification and hence committed breach of the
agreement thereby entitling the respondent to claim
specific performance of the agreement in relation to
suit house. The appellant filed written statement.
11) Considering the plaint and written statement,
the trial Court framed five issues and one additional
issue which are as under:
1) Whether it is true that the defendant
agreed to sell the schedule property
and an extent of 132.25 sq.ft. along
with ½ undivided share to the
plaintiff?
2) Whether it is true that the time is
the essence of the contract?
3) Whether it is true that the plaintiff
was ready to perform her part of
contract in the agreement?
5Page 6
4) Whether the plaintiff is entitled for
the relief of specific performance?
5) What is the relief, the plaintiff
entitled for?
Additional issue framed on 31.07.1998:
1) Whether the plaintiff acted in a manner
contradictory and in violation of
agreement?
12) After considering the documentary evidence
led in by both the parties, the Trial Court, vide
judgment and decree dated 30.10.1998 in O.S.
No.6420 of 1996, decreed the respondent’s suit and
passed the decree for specific performance of the
agreement against the appellant. It was held that
the time was not the essence of the contract. It was
further held that the Plaintiff (Respondent) was
always ready and willing to perform the agreement
and, in fact, performed her part while it was the
defendant (appellant) who tried to scuttle away from
the agreement. It was further held that the
respondent is entitled to a decree for specific
performance of contract on the basis of sale
6Page 7
agreement dated 05.03.1989 in respect of the plaint
schedule property and accordingly the appellant
was given two months’ time to execute the sale deed
and the respondent was given one month’s time to
deposit the balance sale consideration of
Rs.1,47,200/-.
13) Aggrieved by the aforesaid judgment, the
defendant filed an appeal to the High Court. By
impugned judgment dated 27.10.2006, the High
Court dismissed the appeal and confirmed the
decree and judgment dated 30.10.1998 passed by
the trial Court in O.S. No. 6420 of 1996.
14) Against the said judgment, the
appellant(defendant) has filed this appeal by way of
special leave petition before this Court.
15) Heard Mr. Mohan Parasaran, learned senior
counsel for the appellant and Mr. R.
Balasubramanian, learned senior counsel for the
respondent.
7Page 8
16) Mr. Mohan Parasaran, learned senior counsel
for the appellant while assailing the legality and
correctness of the impugned judgment essentially
argued three points.
17) In the first place, learned counsel submitted
that since the respondent (plaintiff) did not seek a
declaration that the termination of agreement is bad
in law, mere suit for specific performance of the
agreement was not maintainable in law and was,
therefore, liable to be dismissed on this short
ground. In other words, the submission was that it
was obligatory upon the respondent (plaintiff) to
have sought a declaration in the suit that the
termination of the agreement made by the appellant
(defendant) vide his notice dated 03.01.1989 is bad
and along with such relief, the respondent(plaintiff)
should also have claimed a relief of specific
performance of the agreement to make the suit
maintainable. It was urged that since such relief
was not claimed by the plaintiff, the suit for specific
performance of the agreement simpliciter was not
maintainable. In support of this submission,
learned counsel placed reliance on the decision of
this Court in I.S. Sikander (Dead) by LRs. Vs. K.
Subramani & Ors., (2013) 15 SCC 27.
18) In the second place, learned counsel attacked
the findings on merits. He took us to the evidence of
the parties and made an attempt to point out that
both the Courts below committed error in holding
that the plaintiff was ready and willing to perform
her part of the agreement. Learned counsel
contended that from the evidence, it is clear that the
plaintiff was neither ready nor willing to perform her
part of the agreement and nor she had money with
her to pay towards balance consideration to the
defendant to get the sale deed executed in her
favour in terms of the agreement. It was urged that
the plaintiff did not come to the Court with clean
hands inasmuch as she insisted upon the terms,
9Page 10
which were neither agreed upon and nor they were
part of the agreement.
19) In the third place, learned counsel contended
that since two Courts below did not properly
appreciate the evidence and that too in a case where
the plaintiff had come to the Court with unclean
hands, the discretionary relief of grant of specific
performance of agreement ought not to have been
granted to such plaintiff and instead the suit
merited dismissal.
20) In reply, learned counsel for the respondent
(plaintiff) while opposing the appeal contended that
no case for any interference in the impugned
judgment is made out. It was his submission that
both the Courts below rightly held that the plaintiff
was able to make out a case of breach of agreement
committed by the defendant; and secondly, she had
performed her part of the agreement thereby rightly
held to have fulfilled the twin requirement of
"readiness and willingness" as provided under
10Page 11
Section 16 (c) of the Specific Relief Act, 1963.
Learned counsel urged that since the issue relating
to the maintainability of suit was neither raised in
the written statement nor in the appeal before the
High Court and nor even in this appeal but was
raised for the first time in submission, hence the
same could not be allowed to be raised for the first
time in this Court. Lastly, learned counsel
submitted that since the two Courts below
answered all the issues on facts in favour of the
plaintiff by properly appreciating the evidence, such
findings being concurrent in nature, are binding on
this Court. It was more so when the findings did not
suffer from any perversity, much less extreme
perversity or illegality or arbitrariness, requiring any
interference by this Court.
21) Having heard learned counsel for the parties
and on perusal of the record of the case, we find no
force in any of the submissions of the learned
counsel for the appellant (defendant).
11Page 12
22) Before we proceed to examine the issues
involved in the appeal, it is necessary to take note of
some of the relevant provisions of the Acts and the
decisions rendered by the Courts, which govern the
controversy.
23) The filing of the suit for specific performance of
an agreement/contract is governed by Section 16(c)
of the Specific Relief Act, 1963 read with Article 54
of the Schedule to the Limitation Act, 1963. Form
Nos. 47 and 48 of Appendix‘A’ to Code of Civil
Procedure, 1908 prescribe the format of the plaint
for such suit.
24) The Specific Relief Act, 1877 which stood
repealed by the Act of 1963 did not contain
provision analogues to Section 16(c). Yet in the
absence of any such provision, its requirements
used to be considered mandatory in the suits for
specific performance by virtue of law laid down by
the Privy Counsel in a celebrated case of Ardeshir
H. Mama vs Flora Sasoon, AIR 1928 PC 208. It is
12Page 13
in this Case which went to Privy Council from
Indian Courts, Their Lordships laid down the
following principle:
“In a suit for specific performance on
the other hand, he treated and was required
by the Court to treat the contract as still
subsisting. He had in that suit to allege, and
if the fact was traversed, he was 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. Failure to make good that averment
brought with it the inevitable dismissal of his
suit. Thus it was that the commencement of
an action for damages being, on the principle
of such cases as Clough v. London and North
Western Railway Co. (1871) L.R. 7 Ex. 26 and
Law v. Law (1905) 1 Ch. 140 a definite
election to treat the contract as at an end, no
suit for specific, performance, whatever
happened to the action, could thereafter be
maintained by the aggrieved plaintiff. He had
by his election precluded himself even from
making the averment just referred to proof of
which was essential to the success of his suit.
The effect upon an action for damages for
breach of a previous suit for specific
performance will be apparent after the
question of the competence of the Court
itself to award damages in such a suit has
been touched upon.”
25) The Act of 1963 then made the aforesaid
requirement a statutory one by enacting Section 16
(c), which reads as under: -
“16. Personal bars to relief- Specific
performance of a contract cannot be enforced
in favour of a person-
(a)…………………..
13Page 14
(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)-
a) 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;
b) the plaintiff must aver performance of,
or readiness and willingness to perform, the
contract according to its true construction.”
26) Therefore, the plaint which seeks the relief of
specific performance of the agreement/contract
must contain all requirements of Section 16 (c) read
with requirements contained in Form Nos. 47 and
48 of Appendix ‘A’ of C.P.C.
27) Article 54 of the Limitation Act provides a
period of 3 year for filing a suit for specific
performance of contract/agreement. A period of 3
years is required to be counted from the date fixed
by the parties for the performance, or if no such
date is fixed, when the plaintiff has noticed that the
14Page 15
performance is refused. The plaint should,
therefore, also have necessary pleading satisfying
the requirement of Article 54.
28) The expression "readiness and willingness" has
been the subject matter of interpretation in many
cases even prior to its insertion in Section 16 (c) of
the Specific Relief Act, 1963. While examining the
question as to how and in what manner, the
plaintiff is required to prove his financial readiness
so as to enable him to claim specific performance of
the contract/agreement, the Privy Council in a
leading case which arose from the Indian Courts
(Bombay) in Bank of India Limited & Ors. Vs.
Jamsetji A.H. Chinoy and Chinoy and Company,
AIR 1950 PC 90, approved the view taken by Chagla
A.C.J., and held inter alia that " it is not necessary
for the plaintiff to produce the money or vouch a
concluded scheme for financing the transaction to
prove his readiness and willingness.”
15Page 16
29) The following observations of the Privy Council
are apposite:
“21…………..Their Lordships agree with
this conclusion and the grounds on which it
was based. It is true that the plaintiff 1
stated that he was buying for himself, that he
had not sufficient ready money to meet the
price and that no definite arrangements had
been made for finding it at the time of
repudiation. But in order to prove himself
ready and willing a purchaser has not
necessarily to produce the money or to vouch
a concluded scheme for financing the
transaction. The question is one of fact, and
in the present case the Appellate Court had
ample material on which to found the view it
reached. Their Lordships would only add in
this connection that they fully concur with
Chagla A.C.J. when he says:
"In my opinion, on the evidence
already on record it was
sufficient for the court to come
to the conclusion ' that plaintiff
1 was ready and willing to
perform his part of the contract.
It was not necessary for him to '
work out actual figures and
satisfy the court what specific
amount a bank would have
advanced on the mortgage of his
property and the pledge of these
shares. I do not think that any
jury--if the matter was left to
the jury in England--would have
come to the conclusion that a
man, " in the position in which
the plaintiff was, was not ready
and willing to pay the purchase
price of the shares which he had
bought from defendants 1 and
2."
16Page 17
For the foregoing reasons, their
Lordships answer question(4) in the
affirmative.”
(Emphasis supplied)
30) This Court in Sukhbir Singh & Ors. Vs. Brij
Pal Singh & Ors., AIR 1996 SC 2510=(1997) 2 SCC
200 followed the aforesaid principle with these
words:
“5. Law is not in doubt and it is not a
condition that the respondents should have
ready cash with them. The fact that they
attended the Sub-Registrar’s office to have
the sale deed executed and waited for the
petitioners to attend the office of the
Sub-Registrar is a positive fact to prove that
they had necessary funds to pass on
consideration and had with them the needed
money with them for payment at the time of
registration. It is sufficient for the
respondents to establish that they had the
capacity to pay the sale consideration. It is
not necessary that they should always carry
the money with them from the date of the
suit till the date of the decree. It would,
therefore, be clear that the courts below have
appropriately exercised their discretion for
granting the relief of specific performance to
the respondents on sound principles of law.”
31) Keeping these broad principles of law in mind,
which are now fairly well settled, let us examine the
facts of this case.
17Page 18
32) At the outset, we may observe that this Court
is loath to undertake the task of appreciating the
evidence in an appeal filed under Article 136 of the
Constitution of India. It is more so when such
appeal arises out of the judgment, which has
recorded concurrent findings of fact.
33) However, since in this case, leave was granted
and at the time of hearing, learned counsel for the
parties took us through the evidence in support of
their submissions, we considered it proper to peruse
the evidence with a view to find out as to whether
impugned judgment suffers from any error on facts
or/and law?
34) Coming first to the submission of the learned
counsel for the appellant about the maintainability
of suit, in our considered view, it has no merit for
more than one reason.
35) First, as rightly argued by learned counsel for
the respondent, the objection regarding the
maintainability of the Suit was neither raised by the
defendant in the written statement nor in first
appeal before the High Court and nor in grounds of
appeal in this Court.
36) Second, since no plea was raised in the written
statement, a fortiori, no issue was framed and, in
consequence, neither the Trial Court nor the High
Court could render any finding on the plea.
37) Third, it is a well-settled principle of law that
the plea regarding the maintainability of suit is
required to be raised in the first instance in the
pleading (written statement) then only such plea
can be adjudicated by the Trial Court on its merits
as a preliminary issue under Order 14 Rule 2 of the
CPC. Once a finding is rendered on the plea, the
same can then be examined by the first or/and
second appellate Court.
38) It is only in appropriate cases, where the Court
prima facie finds by mere perusal of plaint
allegations that the suit is barred by any express
provision of law or is not legally maintainable due to
any legal provision; a judicial notice can be taken to
avoid abuse of judicial process in prosecuting such
suit. Such is, however, not the case here.
39) Fourth, the decision relied on by the learned
counsel for the appellant in the case of I.S.
Sikander (supra) turns on the facts involved therein
and is thus distinguishable.
40) Lastly, the suit filed by the respondent seeking
specific performance of the agreement dated
05.03.1989 was maintainable for the reason that
the cause of action to file the suit arose on the
expiry of period mentioned in the agreement
(31.12.1989) for its performance as provided in
Article 54 of the Limitation Act and it was rightly
filed immediately within 10 days on 10.01.1990.
41) For the aforementioned reasons, we find no
merit in the first submission of learned counsel for
the appellant, which is rejected.
42) Coming now to the second and third
submission of learned counsel for the appellant, we
are of the considered opinion that it has also no
merit and hence deserve to be rejected for more
than one reason.
43) First, the plaintiff had pleaded the necessary
requirements of Section 16 (c) of the Specific Relief
Act, 1963 read with the requirement of Forms 47,
48 and Article 54 of the Limitation Act in the plaint;
Second, the defendant did not dispute the execution
of agreement with the plaintiff and, in fact, entered
in correspondence with the plaintiff for
incorporation of some clauses therein; Third, the
plaintiff proved her readiness and willingness to
perform her part of agreement and also proved her
financial capacity to purchase the suit property by
adducing adequate evidence; Fourth, the plaintiff
had paid more than Rs.2 lacs to the defendant prior
to execution of sale deed in terms of agreement
dated 05.03.1989 and was, therefore, required to
pay balance sum of Rs.1,47,200/- to the defendant;
Fifth, on admitted facts, therefore, the plaintiff had
paid more than 50% of the sale consideration to the
defendant before the due date of execution of sale
deed; Sixth, the plaintiff had also proved that she
had the requisite financial capacity to pay the
balance sale consideration to the defendant
inasmuch as she had arranged the funds by
obtaining loan from the LIC; Seventh, the plaintiff
filed the suit immediately on expiry of the period
within 10 days to show her readiness and
willingness to purchase the property; and Eighth,
once it was held that the defendant committed
breach in avoiding to execute the agreement,
whereas the plaintiff performed her part of
agreement and was ready and willing to perform her
part, the Trial Court was justified in exercising its
discretion in favour of the plaintiff by passing a
decree for specific performance of agreement against
the defendant.
44) In our view, none of these findings could be
assailed as being either perverse or de hors the
evidence or against any provision of law and nor
these findings could be assailed on the ground that
no judicial man could ever reach to such
conclusion.
45) We also do not find any merit in the
submission of the learned counsel for the appellant
when he contended that the plaintiff did not come to
the Court with clean hands and hence the suit is
liable to be dismissed.
46) In our view, both the Courts below rightly
rejected this submission. There is no evidence to
sustain the submission. On the other hand, we find
that it is the defendant, who despite accepting the
substantial money (more than 50%) towards sale
consideration from the plaintiff, avoided executing
the sale deed on one or other false pretext.
47) We also do not find any merit in the
submission of the learned counsel for the appellant
when he contended that since the plaintiff was
insisting for execution of sale deed in relation to
some more portions, which did not form part of the
agreement and hence it should have been held that
the plaintiff committed the breach of the agreement
and not the defendant.
48) In our view, the two Courts below rightly
repelled this submission by holding that the plaintiff
did not claim any relief in relation to the property
which was not the subject matter of agreement and
confined his relief only in relation to the property
which formed the subject matter of agreement dated
05.03.1989. We thus find no good ground to differ
with this finding of the two Courts below. It was
rightly recorded.
49) In our considered view, the two Courts below,
therefore, rightly rendered the aforementioned
findings in favour of the plaintiff and we find no
difficulty in concurring with the findings, which in
our view do not call for any interference by this
Court.
50) In the light of foregoing discussion, we find no
merit in the appeal. It is accordingly dismissed with
cost quantified at Rs.10,000/- payable by the
appellant to the respondent.
………...................................J.
[R.K. AGRAWAL]
….……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 6, 2017
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