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PETITIONER: MOTILAL JAIN

       Vs.

RESPONDENT: SMT.RAMDASI DEVI & ORS.

DATE OF JUDGMENT:       20/07/2000

BENCH: Shivaraj V. Patil, S.S.M.Quadri

JUDGMENT:

     J  U  D G M E N T SYED SHAH MOHAMMED QUADRI, J.   Thisappeal,  by special leave, is di rected against the      judgment of  the Gauhati High Court (Assam) in First Appeal No.43  of 1981 passed on October 22, 1990.  The plaintiff in the suit, out  of  which this appeal arises, is the appellant and  the respondents  are  legal representatives of the  defendant  - Ambika Prasad Ram.  Hereinafter the parties will be referred to  as  the plaintiff and the defendant.  The  plaintiff entered  into a contract with the defendant to purchase  the suit  property  for  a consideration of Rs.25,000/-  out  of which  a  sum  of Rs.17,000/- was paid at the  time  of  the execution of the contract on February 20, 1977 (Ext.2);  the balance  of the consideration, Rs.8000/-, was stipulated  to be  paid  within five months from the date of Ext.2, at  the time  of execution of registered sale deed in favour of  the plaintiff.   Alleging  that  the defendant  was  evading  to receive the balance amount of Rs.8000/- and execute the sale deed,  the  plaintiff sent notices through his  advocate  on March  15, 1978 (Ext.5), and again on April 4, 1978  (Ext.3) and  finally  on November 26, 1978 (Ext.4).   The  plaintiff then  filed  the  suit,  T.S.No.36   of  1979,  against  the defendant  in  the court of the Assistant District Judge  of Goalpara  at  Dhubri,  praying  for  a  decree  of  specific performance  of  contract  for  sale of  the  suit  property (Ext.1) and claimed in the alternative damages in the sum of Rs.38,000/-  on  August 10, 1979.  The defendant denied  the execution   of  Ext.2,  receipt  of  Rs.17,000/-   as   part consideration  thereunder, his signature on it and submitted that,  therefore,  the question of avoiding to  execute  the sale  deed  would not arise.  He pleaded that the  appellant was entitled to neither the specific performance of contract nor  the damages, the alternative claim.  On considering the evidence produced by the parties, the trial court found that the  defendant  executed  Ext.2  and decreed  the  suit  for specific  performance  of  Ext.2  on  July  25,  1981.   The defendant  filed  First  Appeal No.43 of  1981  against  the judgment  of  the  trial  court in the  Gauhati  High  Court (Assam).   During  the  pendency  of  the  appeal  the  said defendant died and the respondents were brought on record as his  legal  representatives.  The High Court  confirmed  the finding of the trial court that the defendant executed Ext.2 but  noted:  (i) that the suit was filed after two years  of the  accrual  of  the cause of action on July 21,  1977  and after  about one year of last notice issued on November  26, 1978  (Ext.4);   (ii)  from the averment in the  plaint  the readiness  and willingness could not be inferred;  and (iii) even  assuming that the averment made out the readiness  and

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willingness,  there  was no evidence to prove the  readiness and  willingness  of  the plaintiff.  In that  view  of  the matter,  by the impugned judgment, the High Court set  aside the  judgment  of the trial court with regard to  relief  of specific  performance of the contract (Ext.2) but granted  a decree  for compensation in a sum of Rs.22,094/-(Rs.17,000/- +  1000/- + 4,094/-) with costs.  Mr.Sanjay Parikh,  learned counsel  for  the appellant/plainfiff, challenged  the  said findings  of the High Court.  He submitted that there was no such  delay as to deny the relief of specific performance of Ext.2.  He brought to our notice the averments in the plaint to  show  readiness  and  willingness of  the  plaintiff  to perform  his part of the contract and argued that to  comply with  the  requirements  of Section 16(c)  of  the  Specific Relief  Act, 1963, the plaint need not be in Forms 47 and 48 of Appendix A to Code of Civil Procedure and relied upon the decision  of  this Court in Ramesh Chandra Chandiok  &  Anr. Vs.   Chuni  Lal Sabharwal (dead) by his Lrs.  & Ors.   [AIR 1971  SC 1238] and a recent judgment of this Court of  three Judges Bench in Syed Dastagir Vs.  T.R.  Gopalakrishna Setty [1999  (6)  SCC  337].   He referred to  that  part  of  the judgment  of  the trial court where the evidence of  Motilal Jain  (PW 1) and Ahindra Nath Choudhury (PW 2) was discussed in  proof of the readiness and willingness of the appellant. Mr.N.R.   Choudhary,  learned  counsel for  the  respondent, contended  that paras 6 and 11 of the plaint do not  conform to  Forms  47  and 48 of the First Schedule of the  Code  of Civil  Procedure and relied upon the decisions of this Court in  Ouseph  Varghese Vs.  Joseph Aley & Ors.  [1969 (2)  SCC 539] and Abdul Khader Rowther Vs.  P.K.Sara Bai & Ors.  (AIR 1990  SC 682).  He argued that the trial court ought to have framed  an issue regarding readiness and willingness of  the appellant  but it failed to do so, therefore, the decree  of the trial court was rightly set aside by the High Court.  He further  contended  that the conduct of the appellant  whose wife  is  the tenant in the suit property in  bringing  into existence  Ext.2 which was denied by the defendant, did  not justify  granting  of  discretionary   relief  of   specific performance  and the High Court had rightly denied the same. Here,  the  short point is whether the impugned judgment  of the  High  Court  is sustainable in law.  The  first  ground which the High Court took note of is the delay in filing the suit.   It may be apt to bear in mind the following  aspects of   delay  which  are  relevant  in  a  case  of   specific performance of contract for sale of immovable property:  (i) Delay  running  beyond  the   period  prescribed  under  the Limitation  Act;  (ii) Delay in cases where though the  suit is  within the period of limitation, yet :  (a) due to delay the third parties have acquired rights in the subject-matter of  suit;   (b) in the facts and circumstances of the  case, delay  may give rise to plea of waiver or otherwise it  will be  inequitable to grant a discretionary relief.  Here  none of   the  above  mentioned   aspects  applies.   That  apart factually  also,  the High Court proceeded on  an  incorrect assumption  with  regard  to  cause of  action.   Ext.2  was executed on February 20, 1977 and under it the sale deed was to  be executed on or before July 19, 1977.  The last notice was  issued on November 26, 1978 and from that date the suit was  filed only after nine months and not after more than  a year  as noted by the High Court.  Therefore on the facts of this  case  the  ground of delay cannot be invoked  to  deny relief  to the plaintiff.  The other contention which  found favour  from the High Court, is that plaint averments do not show that the plaintiff was ready and willing to perform his part of the contract and at any rate there is no evidence on

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record  to prove it.  Mr.Choudhary developed that contention placing reliance on the decision in Vargheses case (supra). In  that  case, the plaintiff pleaded an oral  contract  for sale of the suit property.  The defendant denied the alleged oral  agreement and pleaded a different agreement in  regard to  which the plaintiff neither amended his plaint nor filed subsequent  pleading  and it was in that context  that  this Court  pointed out that the pleading in specific performance should  conform to Forms 47 and 48 of the First Schedule  of the  Code  of  Civil Procedure.  That view was  followed  in Abdul  Khaders case (supra).  However, a different note was struck  by  this Court in Chandioks case (supra).  In  that case A agreed to purchase from R a lease hold plot.  R was  not  having  lease of the land in his favour  from  the Government  nor  was  he in possession of  the  same.   R, however,  received  earnest money pursuant to the  agreement for  sale  which provided that the balance of  consideration would be paid within a month at the time of the execution of the registered sale deed.  Under the agreement R was under obligation  to  obtain  permission  and  sanction  from  the Government  before the transfer of lease hold plot.  R did not  take  any  steps  to apply for the  sanction  from  the Government.   A filed the suit for specific performance of the  contract  for sale.  One of the contentions of the  R was  that A was not ready and willing to perform his  part of  the  contract.  This Court observed that  readiness  and willingness could not be treated as a strait- jacket formula and that had to be determined from the entirety of facts and circumstances  relevant to the intention and conduct of  the party  concerned.   It was held that in the absence  of  any material  to  show that A at any stage was not  ready  and willing  to perform his part of contract or that he did  not have  the  necessary  funds for payment when the  sale  deed would  be executed after the sanction was obtained, A  was entitled  to a decree for specific performance of  contract. That  decision  was relied upon by a three Judges  Bench  of this  Court in Syed Dastagirs case (supra), wherein it  was held  that in construing a plea in any pleading, courts must keep  in  mind that a plea is not an expression of  art  and science  but  an expression through words to place fact  and law  of ones case for a relief.  It is pointed out that  in India  most  of the pleas are drafted by counsel  and  hence they  inevitably  differ  from one to the other;   thus,  to gather  true  spirit  behind a plea it should be read  as  a whole  and  to test whether the plaintiff has performed  his obligations,  one  has to see the pith and substance of  the plea.   It  was  observed, Unless  a  statute  specifically requires  a plea to be in any particular form, it can be  in any  form.  No specific phraseology or language is  required to  take such a plea.  The language in Section 16(c) of  the Specific  Relief  Act,  1963 does not require  any  specific phraseology  but  only that the plaintiff must aver that  he has  performed or has always been and is willing to  perform his  part of the contract. So the compliance of  readiness and  willingness has to be in spirit and substance and  not in  letter  and form. It is thus clear that an averment  of readiness   and  willingness  in  the   plaint  is   not   a mathematical formula which should only be in specific words. If  the  averments  in  the plaint as  a  whole  do  clearly indicate  the readiness and willingness of the plaintiff  to fulfil  his part of the obligations under the contract which is  subject-  matter  of the suit, the fact  that  they  are differently  worded will not militate against the  readiness and  willingness  of  the plaintiff in a  suit  of  specific performance  of  contract for sale.  In the instant  case  a

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perusal  of paras 6 to 11 of the plaint do clearly  indicate the  readiness  and willingness of the plaintiff.  The  only obligation  which  he  had  to comply with  was  payment  of balance  of  consideration.  It was stated that he  demanded the  defendant  to receive the balance of  consideration  of Rs.8000/-  and execute the sale deed.  The defendant was  in Patna  (Bihar) at the time of notices and when he came  back to  his place the plaintiff filed the suit against him.   In support  of his case, he adduced the evidence of PW 1 and PW 2.   The  plaintiff  had  parted   with  two-third  of   the consideration  at the time of execution of Ext.2.  There  is no  reason  why  he would not pay the balance  of  one-third consideration of Rs.8,000/- to have the property conveyed in his  favour.  We are not persuaded to accept the  contention that  the  conduct of the plaintiff disentitles him  to  the relief  of  specific  performance.  The last  contention  of Mr.Choudhary   that  because  the   plaintiff  has   claimed compensation  in  lieu  of  specific performance  so  he  is disentitled  to  claim  the   specific  performance  of  the contract,  is  to be noted to be rejected.  The  plaintiffs claim was in accord with the provisions of Section 21 of the Specific  Relief  Act, 1963.  Merely because  the  plaintiff claims  damages  in  a  suit  for  specific  performance  of contract as alternative relief, it cannot be said that he is not  entitled to the main relief of specific performance  of contract  itself.   None  of the reasons given by  the  High Court  is  sustainable in law to justify setting  aside  the judgment  and decree of the trial court.  Consequently,  the judgment  of  the High Court is liable to be set  aside  and accordingly  we do so and restore the judgment and decree of the  trial  court.   Inasmuch as the plaintiff  had  already deposited  the  balance  of consideration  pursuant  to  the judgment   and  decree  of  the   trial  court,  the   legal representatives  of  the defendant (respondents herein)  are ordered  to execute the sale deed in favour of the plaintiff within three months from today.  The appeal is allowed.  The plaintiff  is  entitled  to  receive   his  cost  from   the defendant/respondents.