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PETITIONER: AJAIB SINGH & ORS.

       Vs.

RESPONDENT: SMT.  TULSI DEVI

DATE OF JUDGMENT:       02/08/2000

BENCH: V.N. Khare, J. & S.N. Variava, J.

JUDGMENT:

S.  N.  Variava, J.

   This  Appeal  is against the Judgment dated 27th  April, 1993  passed  by  the Division Bench of the  High  Court  of Delhi.   At the beginning of his submission learned  counsel for  the  Appellants very fairly stated that the  Appellants are  not  challenging  grant  of  specific  performance  and transfer of title to the Respondent in respect of block 67B. This  Appeal  is  therefore confined to the  potion  of  the impugned  Judgment  dealing with Block 67A.  Briefly  stated the facts are as follows :  One Sunder Singh was a displaced person  from  Pakistan.  In 1955 the Government,  under  the policy  of rehabilitation allotted to him block numbers 67-A and  67-B in Malviya Nagar, New Delhi-110017.  In  1957/1958 the  Government offered to Sunder Singh a chance to purchase the properties allotted to him on payment of the cost of the properties as fixed by the Government, with arrears of rent, if  any,  either in lump sum or by annual installments.   In respect  of  plot M-67A and M-67B, the Government fixed  the purchase  price at Rs.  8080/-.  In 1959 the Government gave to  Sunder Singh a final demand notice to make payment under the  Scheme.   Sunder Singh did not have the money  to  make payment  to the Government.  He, therefore, entered into  an Agreement   dated  22nd  June,   1959  with  the  Respondent (herein).   The Agreement recites the fact that Sunder Singh had  been allotted the above two blocks and that he has been given an offer by the Government to purchase these plots and that he is not in a position to pay its purchase price.  The Agreement  recites that the Respondent was eager and willing to  cooperate  with  Sunder Singh and purchase half  of  the property,  namely, block 67B at a price of Rs.  5,000/-  and arrears  of  rent  due  to the  Government.   The  Agreement recites  that  the  Respondent was to make  payment  to  the Government  either  in lump sum or by instalments or in  any form  acceptable  to the Government.  The Agreement  recites that  a sum of Rs.  3,000/- is being paid to Sunder Singh to enable  him to make payment of the first installment to  the Government  and that this amount was to be treated as a loan to Sunder Singh.  The relevant clauses of the Agreement read as  follows :  "1.  That the entire cost of the quarter  and arrears or rent shall be deposited or caused to be deposited with  the government of India by the second party either  in lump  sum or by instalments or by offering claims or by  one or more of these modes at the discretion of the second party or  Shri  D.N.  Kaul husband of the second party.  The  said

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payments  shall  be made in the name of the first party  and all  other steps shall be taken by both the parties to  have the  ownership rights of the quarter in question transferred in  favour  of the first party and registration effected  in his  favour.   The  first  party   shall  refund  a  sum  of Rs.3,000/- only to the second party or her husband Shri D.N. Kaul,  whosoever,  shall  demand the same,  in  five  yearly instalments  of Rs.600/- each year payable on or before  the first day of January each year.  The balance of the purchase price  paid as also the arrears of rent paid shall be deemed and  treated as advance payment of purchase price paid by or on  behalf  of the second party to the first party  for  the portion  67B  agreed to be sold and transferred to  her  and shall represent the full and final consideration therefor.

   Xxx xxx xxx

   2.   That  in case the second party choses to  associate some claiment in the matter of purchase of the said property she  shall be free to do so at her absolute risk and choice. The  first  party  shall  do all that may  be  necessary  or demanded  on  him in the matter of effective association  of the  said claiment with him and the ultimate transfer of 67B in favour of the second party jointly with the said claiment or serverally.

   3.   That on the transfer of ownership rights in respect of  the  said quarter in favour of the first party he  shall immediately  transfer or cause to be transferred in  respect of the portion 67B as detailed hereinbefore in favour of the second  party  for  the above referred to  consideration  of Rupees five thousand and the amount of arrears of rent to be paid  to Government or total amount paid on account of  cost of 67A & B and arrears of rent in full and final settlement, whichever  be  less,  irrespective of the fact  whether  the amount  is  paid in cash or in verified claims or partly  in one  or partly in the other form.  The said sum shall be the full  and  final  and adequate consideration  for  the  said portion of the property.

   4.   That  the  amount  paid or caused  to  be  paid  or deposited  on account of purchase price and arrears of  rent in  respect of the above quarter 67 A&B with the  Government of  India shall be treated as the first charge of the second party  and  her  husband  the said Shri D.N.   Kaul  on  the property  so  long as 67B is not effectively transferred  to the 2nd party and Rs.3,000/- repaid to them.

   5.  That if the first party fails to refund the said sum of  Rupees three thousand to the second party as  stipulated and  if  anyone instalment due remains unpaid after 30  days R.A.D.,  notice in that behalf the entire sum of  Rs.3,000/- or  balance due shall become due at once and on the  failure on  the part of the first party to repay the same within  15 days  next,  he  shall  transfer the other  portion  of  the property  namely,  67A also to the second party or the  said Shri D.N.  Kaul or her nominee for the said consideration of Rs.3,000/-  and  give  her/him or their nominee  vacant  and peaceful  possession  thereof  and have a deed  of  transfer executed  and  registration duly effected before the  proper registering authority.

   Xxx xxx xxx

   8.   That in case the first party shall fail to  execute

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his  part  of  the agreement and fail  to  transfer  quarter No.67B  to  the  second party and execute sale deed  in  her favour and have it duly registered he shall be liable to pay the  second  party a sum of rupees five thousand,  plus  the aforesaid  amount  paid or caused to be paid by  the  second party  to  the Government in respect of the said quarter  on account of purchase price and arrears of rent and the monies spent  on  improvement and additions, as liquadated  damages without  prejudice to the second party’s right to demand the specific  performance  of  this agreement and  to  have  the specified  share  i.e.   Quarter  No.   67B  transferred  to herself  compulsorily  through  a Court of  Law.   The  same provisions  shall  apply if and when the right to  have  the quarter No.67A transferred in favour of second party or Shri D.N.   Kaul  arises  and  the first party  fails  to  do  so effectively.

   9.   That  in case the allotment in favour of the  first party  in  respect of the said quarter is cancelled for  any reason   whatsoever  and  the   purpose  of  this  agreement frustrated  the first party shall refund to the second party any  amount  paid or caused to be paid to the Government  in respect  of  the  said quarter and cost of  improvement  and additions  made  by the second party within three months  of the  said fact coming to the second party’s notice  together with interest @ 6% per annum."

   Thus  under this Agreement the Respondent had taken  the obligation  of making payment to the Government the cost  of the  quarters,  interest  thereon and the arrears  of  rent. Also  the Respondent was put in possession of block 67B.  It is  clear  that the transfer of ownership right  could  only take  place  when  the said Sunder Singh became  the  owner. Under  his Agreement with the Government Sunder Singh  could only  become  owner if the cost of the flat and  arrears  of rent  were paid in full.  Therefore transfer of title  could only  take  place  if Respondent performed  her  obligations under the Agreement and paid the entire cost of flat and all arrears  of  rent.  It is also to be seen that Sunder  Singh was  only required to repay a sum of Rs.  3,000/-.  This  is because  the  balance amount of was to be consideration  for transfer  of block 67B in favour of the Respondent.  On 30th December,  1959, the Sunder Singh entered into an  Agreement with  the Government.  This Agreement provided that the cost of the plot was Rs.  8080/-, out of which a sum of Rs.1616/- had already been received on 22nd June, 1959.  The Agreement provided  that  the  balance was to be paid  in  installment along  with interest.  Clause (1) of the Agreement  provides that  the  balance  of the purchase price was a sum  of  Rs. 8108/7  paisa  and  that there was to be  interest  on  this amount.  The Agreement provides that the same was to be paid in 7 yearly installments, the first installment being due on 22nd  June,  1960.  The Agreement also provided that if  the default  was committed in payment of any instalment then the Government  could  by notice in writing forthwith  determine the  Agreement and resume possession of the premises.   Thus the  Respondent  was to pay a sum of Rs.  8108/7 paisa  with interest thereon in 7 yearly installments to the Government. As  the  first instalment was to be paid on 22nd June,  1960 the  last instalment would have to be paid on or before 22nd June,  1966.   Sunder Singh died on 20th October, 1964.   He was  survived  by  his  wife Gurnam  Kaur  and  the  present Appellants.  After the death of Sunder Singh both the Blocks were  allotted to his wife.  It appears that there was  some dispute  between  Gurnam  Kaur   and  the  Respondent.   The

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Respondent  filed  Suit  No.  328 of 1965  for  a  permanent injunction   against  Gurnam  Kaur   restraining  her   from disposing  of  the property.  Thereafter on 1st June,  1968, the  Respondent  filed a Suit No.  14 of 1968  for  specific performance  of  the Agreement dated 22nd June, 1959.   This Suit  was filed under Order 33 Civil Procedure Code  praying that she be allowed to sue in forma pauparise.  In the Suit, after setting out the above mentioned history, it is averred as follows:- "Shri Sunder Singh before his death did not pay any  instalments  on account of the loan advanced to him  as mentioned  herein before which under the agreement  entitles the  plaintiff to claim the transfer of House No.M/67-A also in  her favour on payment of the money due to the Government (emphasis supplied).

   Thus  it  is  to  be seen that  even  according  to  the Respondent/Plaintiff  she  is  entitled to transfer  of  the block  No.   67-A, only on payment of all money dues to  the Government.   Thereafter  in  para 10 of the plaint,  it  is stated that under the aforesaid Agreement, the Plaintiff has paid  all  sums due to the Government.  It is  obvious  that such  an averment is made because the Respondent knows  that unless  and until all sums are paid by her to the Government there  could  not be specific performance of  the  Agreement dated  22nd June, 1959 by transferring block 67A in favor of the  Respondent.   A  reading of further  averments  in  the Plaint  make  it clear that the  Respondent/Plaintiff  knows that  she  has  not made payment of all amounts due  to  the Government.  This is clear from the fact that the Respondent then  goes on to aver that the heirs of Sunder Singh are not delivering  the challans in respect of the payment due after the  last  payment  made by her and that she  is  ready  and willing  to  fulfil the terms of contract in respect of  any residuary  obligations.   In para 13(a) it is  averred  that since  the entire sale price of 67-A and 67-B had been paid, the  Defendants  were  bound to convey the property  to  the Plaintiff.   In  para  14, it is then averred as  follows  : "14.   The cause of action accrued on 2.12.65 when the  last payment was made and the plaintiff expressed her willingness to pay any other sum due to the Government on behalf of Shri Sunder Singh or the defendant no.1."

   The  Plaint  was amended on 28th of October, 1971.   The averment that the last payment was made on 2.12.1965 has not been  changed.   Therefore the Respondent/Plaintiff came  to Court and maintained that she had not made any payment after 2nd  of  December, 1965.  It must be mentioned that  in  the Plaint no details or particulars are given as to when and on what  dates  and in what amounts payments were made  by  the Respondent/Plaintiff.    To  be   remembered  that  specific performance  could  only be granted provided that the  party asking  for  specific performance has always been ready  and willing  and has performed their part of the obligation.  As seen  above  under the Agreement the Respondent was to  make payment of the costs of the block and arrears of rent to the Government.  This included not just the sum of Rs.8108/- due towards  the  costs of the blocks and interest  thereon  but also  the arrears of rent.  If the Respondent has  committed breaches  and did not pay the amounts to the Government then the  Government  may or may not have revoked  the  Agreement dated  30th December, 1959 and/or forfeited all amounts  and recovered possession.  If there is non payment then it could not  be  said that the Respondent had been always ready  and willing  and had always performed her part of the Agreement. The  fact that the Government did not forfeit would not have

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any bearing on the factum of Respondent not having performed her  obligations  under the Agreement.  The wife  of  Sunder Singh  and  other  heirs filed a written  statement  raising various contentions with which, we are really not concerned. However  in  para  6 of the written statement  they  made  a categoric statement that after the death of Sunder Singh the Respondent  had  not paid any amounts to the Government  but that  the  wife, Gurnam Kaur, had deposited all the  amounts with  the Government.  Respondent/Plaintiff did not get  any Issue  raised  on  this  claim of  the  Appellants.   To  be remembered   that  the   Respondent/Plaintiff  was   herself claiming  that  the  last payment had been made  by  her  on 2.12.1965.   The  trial court, therefore, did not raise  any Issue   on   the  question  as  to  whether   or   not   the Respondent/Plaintiff had paid all amounts to the Government. However,  an  Issue  was  raised as to whether  or  not  the Agreement  could  be specifically performed.   In  answering this Issue it would have been necessary for the Court to see not  just readiness and willingness, at all stages, but also whether  in fact the Respondent/Plaintiff had performed  her part  of the to Agreement.  In this context the question  of payments  m  ade  the Government under the Agreement  was  a vital  aspect.   Even  though no specific Issue  was  raised evidence  has  been led on this aspect.  The husband of  the Respondent  was  examined  as  PW5.   In  his  evidence  he, inter-alia,  states  as  follows:  The  balance  amount  in respect  of property No.  67A and 67B was to be deposited on behalf  of Sunder Singh with the Deptt.  Of  Rehabilitation, Jam  Nagar, New Delhi.  .The entire amount in  respect of  67A has been deposited and there remains any balance  we were  ready  to  pay  the  same  and  still  ready  to  pay. .We  have  receipts of the amounts deposited  by  us. Thus  even in evidence the only statement is that the entire amount in respect of 67A had been deposited.  Payment had to be  made for both 67A as well as 67B.  There is no statement that  full  payment is made.  The fact that the  husband  of Respondent  deposes  that they are ready and willing to  pay the  balance also shows that to their knowledge all  amounts due have not been paid by them.  Thus even in evidence there is  an  admission  that  the  entire  amount  had  not  been deposited  by the Respondent with the Government.  On behalf of  the  Respondent/Plaintiff one S.B.  Lal, Upper  Division Clerk  of the Government was examined as PW-4.  He had  been examined to show that full payments had been made in respect of  blocks  67-A and B.  This witness, amongst other  things points  out  that  towards  the cost of the flat  a  sum  of Rs.2221.10  was  deposited  on 25th March, 1968.   In  cross examination  he is asked whether he can tell the name of the persons  who had deposited the amounts.  He states that  the amount was deposited in the name of the same person in whose favour  the  sale was to take place.  This evidence  coupled with the admitted position that the last payment was made by the  Respondent/Plaintiff  on  2nd  December  1965  and  the evidence  of  Respondents  husband (set out  above)  clearly established  that the Respondent/Plaintiff had not performed their  obligation  and  had  not made all  payments  as  was required  to  be  done  under   the  Agreement.   Under  the circumstances  it could never have been said that they  were always  ready  and  willing  to perform their  part  of  the Agreement.   This aspect unfortunately was lost sight off by the  trial court.  In spite of the clear evidence on  record to  show  that  the Respondent/Plaintiff had  not  performed their  part  of the Agreement, the trial court  decreed  the suit  on  30th of September, 1978.  The trial Court  granted specific  performance  not only in respect of Block 67B  but

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also  for 67A.  The heirs of Sunder Singh then filed Regular First  Appeal No.123 of 1981 in the Delhi High Court.   This was  dismissed  by the impugned Judgment on 27th  of  April, 1993.   The  portion of the impugned Judgment  dealing  with this aspect reads as follows:- "The main ground urged by the learned  counsel for the appellant Shri R.L.  Tandon  before us  was  that  on a proper consideration  of  the  agreement respondent-  plaintiff  failed  to perform her part  of  the agreement  and was not entitled to invoke the provisions  of Specific Relief Act in her favour."

   In  rejecting  this argument the High Court has held  as follows   :    "It   is  the    admitted   case   that   the respondent-plaintiff  made  payments  on various  dates  and according  to Shri Tandon the respondent made payment of Rs. 8240.04  and  Rs.  255.59 till 2nd December,  1965.   Though according  to  the respondent she made payments, yet in  the suit  the  total cost of the property was not mentioned  but during  the hearing of the appeal counsel for the respondent filed  C.M.P.   No.   346 of 1993.  Notice of the  same  was issued  to the counsel for the appellant who filed reply  to the  said  application.  This application was filed  by  the respondent  to clarify the controversy raised in relation to the  amount  of  Rs.   2221.10 paid  on  25th  March,  1968. According  to the counsel for the appellant the said  amount was  paid  by the appellant and according to the  respondent the  amount was not paid in 1968 but in 1965 that too by the respondent.   According to the respondent there is some over writing  which  shows  that the number ’5’ was  written  and thereafter ’8’ was over written on the same which makes 1965 to  1968.  We think that at this stage it is not material to go into the controversy as in the written statement filed by the  appellants  no  where  stated that they  had  made  the payment  of  the  said amount.  Moreover,  if  we  carefully examine  the  agreement to sell which is Ext.P1/1 which  was drafted by Shri S.  Watel, Advocate who was also examined as P.W.1.  Shri Watel in his testimony has stated that the said agreement  was  drafted at the instance of Sunder Singh  and plaintiff.   The said agreement specifically states that the said  Sunder Singh was not in a position to pay the purchase price  of  the said quarter or the first instalment  thereof and  after Sunder Singh received the final demand notice for payment  of the first instalment to the Government with  the warning  that in case of non- payment the quarter would  not be  transferred to him with the consequence that it will  be auctioned  and  sold  to  a third  party.   Further  on  the agreement  says that for the aforesaid reasons Sunder  Singh wanted to associate someone with him for the purchase of the said  quarter in order to be able to continue to occupy  the same  and own at least a part of the said property.  It  was further  stipulated  in  the agreement that  respondent  was eager  and  willing  to  cooperate  with  Sunder  Singh  and purchase  half  of  the premises, namely,  M/67-B  with  its kitchen, bath, lavatory and a common wall between m/67-A and M/67-B  at  a price of Rs.5000/- and arrears of rent due  in respect  of the property to be paid to the Government in the account  of  Sunder  Singh in cash.   Sunder  Singh  further assured that he was entering into the said agreement for the betterment  of his family and out of necessity.  In view  of the unequivocal terms of the agreement and in the absence of any  specific  plea raised in the written statement  by  the appellant  that  they had paid the aforesaid amount  of  Rs. 2221.10 it is too late in the day for them to take up such a plea."

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   At  this  stage  itself it must be noted that  the  High Court  has fallen in error in observing that in the  written statement  there is no specific plea regarding payment  made by the heirs of Sunder Singh.  As has been pointed out above it  has  been specifically pleaded that after the  death  of Sunder Singh (i.e.  in 1964) the Appellants have been making payment to the Government.  Of course they do not state what amount  was  paid or that Rs.  2221.10 was paid.   But  then Respondent/Plaintiff  has also nowhere set out what payments were  made  by  her and when.  To be  remembered  upto  this stage,  except  for making vague statement that amounts  had been made paid, Respondent/Plaintiff had given no details or particulars  of  payments alleged to have been made by  her. Upto  this  stage the Respondent/Plaintiff  was  maintaining that the last payment made by her was on 2nd December, 1965. The  controversy,  referred  to  by the  High  Court,  arose because  in the course of their arguments and in the written submission  Appellants  relied on the deposition of  PW4  to show  that a sum of Rs.  2221.10 had been paid on 25th March 1968  for the cost of the flat.  It was submitted that as it was  an admitted position that the last payment made by  the Respondent   was   on  2nd   December  1965,  this   clearly established  that  all  payments had not been  made  by  the Respondent/Plaintiff.   This  had  a direct bearing  on  the question  of performance by the Respondent/Plaintiff and the question  of  readiness  and willingness.  If  correct  this would  establish that the Respondent/Plaintiff had failed to perform  her  part  of the Agreement and was  therefore  not entitled  to specific performance.  The Respondent/Plaintiff then  filed  CMP  No.   346 of 1993.  In this  CMP,  it  was averred  as  follows :  "4.  That it is submitted  that  the applicant/respondent  varily believing that there might have been  some typing error in the paper book as supplied by the appellants,  had applied for inspection of the file that was inspected  on 11.2.1993.  Inspection of the file showed that in  the  original statement of PW-4 recorded as  on  6.9.73, there  is an evidently on over writing in ink in the floures which  has not been initialled by any authorised person  and it  is  evident that the figure "5" in the original copy  of the testimony of PW-4 has been changed to "8".

   5.   That it is thus evident that there is some possible tampering  of the record.  The respondent is not to gain  by the  said change of date.  The over writing shows that first the  number "5" was written and thereafter "8" over  written on the same.

   6.   That  it  is submitted that before  coming  to  any conclusion,  either  way, it would be necessary and also  in the  interests  of  justice  for   this  Hon’ble  Courts  to adjudicate  upon  the said fact.  It is also submitted  that probability  of  the date being 25.3.1965 is  in  consonance with  the  stand  of  the plaintiff in  pleadings,  and  her testimony  through PW-5 and also the deposition of the DW-2, all  of  which lead in the irresistible conclusion that  the said  date has to be 25.3.65 instead of 25.3.1968  (emphasis supplied).

   7.   That accordingly, the present application is  being filed  before  your  Lordships, so that this fact  could  be noted  by this Hon’ble Court, while considering the case and the  case  be decided on the basis of the said date  in  the testimony  of PW-4 being read as 25.3.65 instead of 25.3.68. For  this, appropriate directions will have to be issued  by this Hon’ble Court."

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   Thus  it is to be noted that realising that the evidence of  PW-4  read with the case in the Plaint  would  establish that  the last payment had been made by Appellants and  that this  would clearly show that she had not performed her part of  the  Agreement  and  thus   not  entitled  to   specific performance the Respondent/Plaintiff initially tries to make out  a case that there was typing error in the paper book; that  there was some over writing in the original testimony of  PW-4 and that there is some possible tampering of  the record.  Most importantly it is averred that probability of the  date being 25.3.1965 is in consonance with the stand of the  Plaintiff in pleadings.  Thus even at this stage it  is being  maintained  that no payments were made after  2nd  of December,  1965.   To be noted that at this stage it is  not being   claimed  that  any  payments   were  made   by   the Respondent/Plaintiff  after  1965.  The High Court has  also noted  the  submissions made before it.  They have been  set out  above but necessitate repetition:  "Though according to the  respondent she made payments, yet in the suit the total cost  of  the  property  was not mentioned  but  during  the hearing  of  the  appeal counsel for  the  respondent  filed C.M.P.   No.346  of 1993.  Notice of the same was issued  to the  counsel  for the appellant who filed reply to the  said application.   This application was filed by the  respondent to  clarify the controversy raised in relation to the amount of  Rs.  2221.10 paid on 25th March, 1968.  According to the counsel  for  the appellant the said amount was paid by  the appellant and according to the respondent the amount was not paid  in  1968  but  in 1965 that  too  by  the  respondent. According to the respondent there is some over writing which shows that the number "5" was written and thereafter "8" was over written on the same which makes 1965 to 1968.  We think that  at  this  stage  it is not material  to  go  into  the controversy  as  in  the  written  statement  filed  by  the appellants no where stated that they had made the payment of the said amount."

   This  shows  that even during arguments before the  High Court  it  was maintained that this payment of Rs.   2221.10 was  made  in  1965  by the  Respondent.   Even  during  the arguments  it  had been submitted that the date 1968  was  a mistake  and  that  originally number "5"  was  written  and thereafter  it was over written with "8".  If Respondent had made  payment  of this sum she would have a receipt for  it. The Respondent would know with certainty on what date it was paid.  Most importantly at this stage it is not claimed that any  payment  was made by the Respondent after 2nd  December 1965.   It appears that the Appellants then produced  before the  High Court receipts to show that they had made payments towards   the  cost  of  the   flat  on  25th  March   1968. Unfortunately  the  High Court has dealt with  an  important aspect most cursorarily and wrongly refused to look into it. Before  this Court Respondent has filed a counter  affidavit dated  27th  July,  1995.   In   para  15  of  this  counter affidavit,  it  is  averred  as  follows  :   "In  fact  the following  payments were made by the respondent, the details of which are given below :-

   PAYMENT  MADE TOWARDS HOUSE NO.M-67/A & B MALVIYA NAGAR, NEW DELHI:

   Payments from 1959 to 1965 :

   1.   Rs.1,616.00 On 22.6.1959 2.  Rs.1,149.00 On 1960 3.

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Rs.1,158.00  On  18.2.1963  4.  Rs.600.00  On  14.5.1963  5. Rs,.558.00  On  17.6.1963  6.    Rs.3,158.39  On   2.12.1965 ________________  Total  :  Rs.8,239.39 ________________  B) PAYMENT  MADE  TOWARDS RENT WATER CHARGES  INTEREST,  GROUND RENT ETC.

   1.  Rs.101.90 On 30.2.1959 2.  Rs.44.00 On 30.12.1959 3. Rs.9.00  On 30.2.1959 4.  Rs.20.00 On 2.12.1965 5.   Rs.2.00 On  25.3.1968 6.  Rs.2,237.10 On 25.3.1968 7.  Rs.55.80  On. 25.3.1968   8.   Rs.20.00  On   25.3.1968   9.Rs.922.05   On 25.3.1987

   Therefore,  now  for  the first time the  Respondent  is claiming that some payments had been made by her in 1968 and 1987.   She is now claiming that the sum of Rs.  2221.10 was paid  by her.  To be remembered that in the Plaint there  is specific  averment that the last payment made by her was  on 2nd  December,  1965.  Even before the High Court her  stand was  that the last payment was made on 2nd December, 1965  . Before  High  Court an application was filed to  the  effect that  the  evidence of PW4 had been tampered with  and  that date  should  not  be 25th March, 1968 but  should  be  25th March,  1965.  The counter affidavit now filed shows that on 25th   March,  1965,  no  payment   has  been  made  by  the Respondent.   This was to her knowledge.  If she had not any made  payment on 25th March 1968 and if she had made payment on 25th March 1968 why claim that there was tampering and/or error  and that the correct date should be 25th March  1965. On  solemn  affirmation it is stated before the  High  Court that  the date of payment of Rs.  2221.10, in the deposition of  PW-4,  should be 25th of March, 1965.  Before  the  High Court  it  is  claimed  by  the  Respondent/Plaintiff   that payments  were  made on 25th March, 1965.  It is thus  clear that  the Respondent/Plaintiff has not made this payment  on 25th  March  1968.   This is also clear from the  fact  that receipts  for  this payment are with the Appellants.  It  is not the Respondents case that any receipt was handed over by them  to the Appellants.  To be remembered that Sunder Singh had  died in 1964.  Therefore these could not be part of the three  receipts alleged to have been handed over to him.  It is  clear that the Respondent/Plaintiff is making  averments as are convenient to her without any regard for truth.  This conduct would preclude Respondent from getting any equitable relief.   However  in this case even otherwise it  is  clear that Respondent had not performed her part of the Agreement. Thus  there  never was any readiness and  willingness.   She could  thus not get specific performance.  There is  another reason  why the discretionary relief of specific performance should  not be granted.  This Suit is for enforcement of Cl. 5 of the Agreement.  For sake of convenience Cl.  5 is again set  out  herein.   It reads as follows:  5.  That  if  the first  party  fails to refund the said sum of  Rupees  three thousand  to  the second party as stipulated and  if  anyone instalment  due remains unpaid after 30 days R.A.D.,  notice in  that behalf the entire sum of Rs.3,000/- or balance  due shall  become due at once and on the failure on the part  of the  first  party to repay the same within 15 days next,  he shall transfer the other portion of the property namely, 67A also  to the second party or the said Shri D.N.  Kaul or her nominee  for  the said consideration of Rs.3,000/- and  give her/him  or  their  nominee vacant and  peaceful  possession thereof   and  have  a  deed   of  transfer   executed   and registration  duly  effected before the  proper  registering authority.

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   Thus under this clause The Respondent could have given a R.A.D.   notice of 30 days for non payment of instalment.  A notice  dt.   1st May 1962 was given.  However it is  fairly admitted that the suit is not based on that notice.  Had the suit been based on that notice it would be time barred.  The averments   in  the  suit  make   it  clear  that   specific performance  of transfer of Block 67A is sought on basis  of non  return  of  Rs.  3000.  However whilst the sum  of  Rs. 3000  was to be returned the Respondent had to make  payment of  costs of the Blocks with interest thereon and arrears of rent.   It would hardly be equitable to hold the  Appellants liable for default to repay Rs.  3000 when they have already had  to pay Rs.  2221.10 in order to prevent termination and forfeiture.   Neither the trial court nor the High Court has given  the  Appellants credit/benefit of this  payment  even though  the  admissions  and the evidence showed  that  this payment  had  been made by them.  If out of the sum  of  Rs. 3000  a  major amount of Rs.  2221.10 has been paid  by  the Appellant it would be most inequitable to direct transfer of Block  67A by granting specific performance.  In our view it is  clear that Respondent/Plaintiff had not performed  their part  of  the  Agreement.  There was thus no  readiness  and willingness  on the part of the Respondent/Plaintiff.   Both the trial court and the High Court have clearly erred in law and  on  facts  by  granting  specific  performance  to  the Respondent/Plaintiff  and directing transfer of Block 67A in her  favor.  It is also inequitable to do so.  In our  view, the  judgment of the trial court and the judgment dated 27th April,  1993  of the High Court cannot be sustained to  this extant.   The  portions of the Judgments  granting  specific performance    by   transfer   of     Block   67A   to   the Respondent/Plaintiff require to be and are hereby set aside. However  as  it  is fairly admitted there has been  sale  of Block 67B to the Respondent/Plaintiff and to that extant she is  entitled to have Block 67B transferred to her name.  The decree  of the Courts below is affirmed to this extant.   As set  out above the Respondent/Plaintiff has not been  honest with  the  Court.  Whilst no punitive action need  be  taken against  her, in our view this is a fit case where she  must be  made to bear the cost of the other side not just  before this  Court  but  also before the trial court and  the  High Court.   There  will  be an Order accordingly.   The  Appeal stands disposed off accordingly.