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PETITIONER: HIS HOLINESS ACHARYA SWAMIGANESH DASSJI.

       Vs.

RESPONDENT: SHRI SITA RAM THAPAR

DATE OF JUDGMENT:       30/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 2095            1996 SCC  (4) 526  JT 1996 (5)   460        1996 SCALE  (4)476

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This is  an illustrious case of dilatory tactics by the petitioner who  entered into  the contract  to purchase  the land of  500 sq.  yds. in  the heart of the city of Delhi by agreement dated  February 27,1975. The hard fact is that the defendant was  in  dire  need  of  money  to  celebrate  his daughter’s marriage  on may 16, 1975. The agreement was that the draft  sale deed  should be finalized with in seven days and sale deed registered. Time is, therefore, the essence of the contract  in this  case.  The  defendant  insisted  upon payment of  consideration in  cash. The  respondent sent the approved draft  sale deed immediately but the petitioner did not give  final draft as contemplated by the agreement since he had  to obtain the income tax clearance certificate which he did  not obtain. Ext. 5 and 9, the letters written by the respondent was always willing to have the sale deed executed but the petitioner delayed the execution of the sale deed on one pretext  or the  other petitioner did not give any reply to any  of the tow letters. The learned single Judge as also the Division  Bench of  the High  Court have  in extenso one into the  evidence and  found that  the petitioner  was  not ready and  willing to  perform his  part of the contract. He did not  have necessary  cash for payment of the amount. The petitioner has  produced before the Division Bench by way of additional evidence, his account to show that he has got one lakh and  odd. Even  that fell short of the required amount. What is  material in this case is that the respondent was in dire need of cash to calebrate the marriage of his daughter. The petitioner  did not  offer ash  to the respondent. Under those circumstances,  the High  Court was  clearly right  in saying that  the petitioner  was not  ready and  willing  to perform his part of the contract under clause (c) of Section 16 of the Specific Relief Act.      There is a distinction between deadiness to perform the contract  and   willingness  to  perform  the  contract.  By

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readiness may  be meant  the capacity  of the  plaintiff  to perform the  contract which  includes his financial position to pay  the purchase price. For contract, the conduct has to be properly  scrutinised. There is no documentary proof that the  plaintiff   had  ever  funds  to  pay  the  balance  of consideration. Assuming  that he  had the  funds, he  has to prove his  willingness to  perform his part of the contract. According to  the terms  of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the  execution of  the agreement, i.e., by 27.2.1975. The draft sale  deed was  not returned after being duly approved by the  petitioner. The  factum of readiness and willingness to perform  plaintiff’s part  of the party and the attending circumstances. The  court  may  infer  from  the  facts  and circumstances whether the plaintiff was ready and was always ready and  willing to  perform his part of the contract. The facts  of   this  case  would  amply  demonstrate  that  the petitioner/plaintiff was no ready no capacity to perform his part of the contract as he had no financial capacity to payt the consideration  in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract.      It is sought to be contended by Mr. B.K. Mehta, learned senior  counsel   appearing  for  the  petitioner  that  the petitioner  has   performed  the   essential  terms  of  the contract. Essential  terms of the contract is that he has to return the  approved draft  sale deed  which he  has already returned to  him. But  amendment sought  in the sale deed is not of  material particulars  and is   not an essential term and, therefore,  the High  Court was in error in considering this  aspect  of  the  matter.  We  find  no  force  in  the contention. The  essential term of the contract is executing the sale  deed with in stipulated period. He did not perform his part  of the  contract within  stipulated time. The High Court was  right in  refusing to  enforce the  contract.  It being discretionary  remedy the  High  Court  has  exercised sound  judicial   discretion  to   the  relief  of  specific performance of the contract.      The Special Leave petition is accordingly dismissed.