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PETITIONER: N.P. THIRUGNANAM (D) BY LRS

       Vs.

RESPONDENT: DR. R. JAGAN MOHAN RAO & ORS.

DATE OF JUDGMENT12/07/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  116            1995 SCC  (5) 115  JT 1995 (5)   553        1995 SCALE  (4)465

ACT:

HEADNOTE:

JUDGMENT:                                ORDER      Petitioners are  the legal  representatives  of  N.  P. Thirugnanam, the plaintiff who had entered into an agreement of sale  with the first respondent for himself and on behalf of his  mother, brothers  and sisters  as General  Power  of Attorney holder  to alienate  the house  property in  Madras city for  a total consideration of Rs. 2,30,000/- and paid a sum of  Rs. 10,000/-  as advance.  Till date of execution of the sale-deed,  he came into possession as a tenant agreeing to pay  a sum  of Rs. 1,650/- per month as rent. He laid the suit for  specific performance  with the  averments that the respondents have  evaded  to  execute  the  sale  deed.  The respondents pleaded  that they  were ready  and  willing  to perform their  part of  the contract  and the piaintiffs did not even  pay Rs. 20,000/- further advance as contracted  by December,   1979 to  discharge the mortgage debt due  to the Madras   Corporation.   The   amount   of   Rs. 20,000/- was adjusted towards the rent payable with consent. On adduction of evidence   and  consideration  thereof,  the single judge of the  High Court  found that  the plaintiff  was not ready and willing   to  perform   his part  of the contract giving diverse   reasons. On   appeal  in   OSA  No.  195/83  dated January 3,  1985 the  Division Bench  in a  well  considered judgment dismissed the same.      The first  ground raised  in the SLP is that the decree of dismissal  against the  dead  plaintiff  appellant  is  a nullity. We find no force in the contention. It is true that the plaintiff  died on  December 26,  1994 by which date the arguments in  the appeal were already heard and the judgment was  reserved.   The  counsel  for  the  plaintiff  filed  a Memorandum bringing  to the  notice of  the court the demise under Order 22 Rule 11-A of CPC and prayed for time to bring on  record  the  petitioners  as  legal  representatives  to represent the  estate of the deceased. The court declined to accede to the request.

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   Rule 6 of Order 22 provides that:            "No abatement  by reason  of death      after hearing:-"Notwithstanding anything      contained in the foregoing rules,whether      the   cause of  action survives  or not,      there shall beno abatement  by reason of      the death  of either  party between  the      conclusion   of the   hearing  and   the      pronouncing     of  the  judgement,  but      judgement  may    in  such    case    be      pronounced notwithstanding  the    death      and shall have the same force and effect      as   if it   had been  pronounced before      the death took place." In the  face of the explicit language in Rule 6 of Order 22, there can  be no  abatement by  reason of  the death  of any party  between   the  conclusion  of  the  hearing  and  the pronouncement  of  the  judgement.  It  may  be  pronounced, notwithstanding the death, and shall have the same force and effect as  if judgment  had been pronounced before the death took place. Therefore, the contention that the judgement and decree of  the appellate  court is  a nullity  is devoid  of substance.      It is  next contended  that the  plaintiff  was  always ready and  willing to  perform his  part of the contract. To buttress it,  counsel placed strong reliance on the evidence of PW-2,  who had testified that he was willing and prepared to lend a sum of Rs. 2,00,000/- to the plaintiff on the foot of a  promissory note. It is not necessary for the plaintiff that he  should keep  ready  the  money  on  hand.  What  is relevant and  material is  that he should have the necessary capacity to  raise the  funds and  was ready  and willing to perform  his     part   of  the   contract  which  has  been demonstrated by  the evidence  of PW-2.  We do not accede to the contention.  The trial  judge had pointed out that on an application filed  by the  defendants, a direction was given to the plaintiff by order dated February 11, 1991 to deposit the amount  of Rs.  2,00,000/-  or  furnish  bank  guarantee giving time  up to  March 11, 1991. He neither deposited the amount nor  has given bank guarantee. It was also found that the plaintiff  was dabbling  in real estate business. He had house on  hire purchase  agreement  with  the  T.N.  Housing Board. He  paid only  Rs. 7,750/-  upto 1980.  A sum  of Rs. 29,665/- was  further payable.  He had an agreement with one Annamma Philip for Rs. 49,500/- to sell the said house after purchase from  the Board. Obviously, he had obtained advance and sold  the house  to his vendee on February 7, 1980 after getting a  sale deed executed in his favour. He entered into an agreement  (Ex.p.1) on  9.4.79 to purchase the suit house for Rs.  2,30,000/-. He was not able to pay the loans and he adjusted Rs. 20,000/- which was paid towards arrears of rent and  paid  only  Rs.  1975/-  under  Ex.P.30  for  the  sale consideration of his house. He was unable to pay the rent to the  respondents  and  had  deposited  huge  amount  towards arrears of  rent pursuant to the orders of the courts. PW-2, though professed  to be  willing to   advance a  sum of  Rs. 2,00,000/-,   did not  have  cash  and admitted that  had to obtain Rs.  2,00,000/- by hypothicating his property  and at the same  time was  willing to  lend on  a pronote  to   the plaintiff a  sum of  Rs. 2,00,000/-,  which  was  hard    to believe.     These    circumstances    were    taken    into consideration by  the trial  Judge as  well as  the Division Bench in  concluding that  the plaintiff  was not  ready and willing to perform his part of the contract.      It is  settled law that remedy for specific performance

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is an  equitable remedy  and is  in the  discretion  of  the court, which  discretion requires  to be exercised according to  settled   principles  of  law  and  not  arbitrarily  as adumbrated under  s.20 of  the Specific Relief Act 1963 (for short, ’the  Act’). Under  s.20, the  court is  not bound to grant the  relief just  because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and  prove that  he had  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 those terms the  performance of which has been prevented or waived by the  defendant. The  continuous readiness and willingness on the  part of  the plaintiff  is a  condition precedent to grant the relief of specific performance. This  circumstance is  material  and  relevant  and  is  required    to  be  be considered by the court while granting or refusing  to grant the relief.  If the plaintiff fails to either aver  or prove the same,  he must  fail. To  adjudge whether the  plaintiff is   ready and  willing to perform his part of the contract, the court  must take  into consideration the conduct  of the plaintiff prior   and subsequent  to the filing of  the suit alongwith other  attending circumstances.  The  amount    of consideration  which he  has to  pay  to  the defendant must of necessity be proved to be available. Right from the  date of   the execution   till  date of  the decree he must prove that he  is ready and has always been willing to perform his part of    the  contract.  As  stated,  the  factum  of  his readiness   and willingness   to  perform   his part  of the contract is  to be adjudged with reference to the conduct 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 contract.      In view  of the  aforesaid factual  findings and of the legal position, the High Court has rightly concluded thus:            We have no hesitation in recording      the agreement  with  the finding  of the      learned single Judge that  the plaintiff      has hopelessly  failed and  shown rather      reluctance   than readiness  to  perform      his part  of the contract. In  the facts      that are noticed in the judgement of the      trial   court, which   are extracted  by      us     as  above,   the  only   possible      conclusion  is    that  the    plaintiff      really  had   rather  reluctant     than      willing  to perform  his part  of the        contract  and   was at  no time  ready      with   either   money   or resources  to      fulfill his  part of  the contract.  The      other circumstances  which   are noticed      by  the  learned  single  Jude  and  are      detailed by  him in  the judgement go to      show that  the very  idea   of  entering      into an   agreement   with   the   first      defendant alone   when  the    plaintiff      appellant   was   already informed about      the death   of  Dr.  R.  Surya  Rao  and      the devolution  of   his interest   upon      the   first defendant,   his mother, his      brothers and    his  sisters,    was  to      somehow     or  other   enter  upon  the      property, but,  the stipulated rent also      was not   paid  by  the plaintiff to the      defendants. The  trial court  has  noted

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    that   there was  no legal necessity for      the defendants  to   part with  the suit      property and  held against the plaintiff      that   the      very   contract      was      speculative  in nature and  entered into      by   the   plaintiff   who   has    been      dabbling in   real  estate  transactions      without     the  means   to  purchase  a      substantial  immovable  property    like      the  suit property and we agree with the      same."      This finding  is well  supported  from  the  facts  and circumstances and  being  a  finding  of  fact,  we  see no infirmity in  the judgement  warranting granting  of  leave. Accordingly, the special leave petition is dismissed.