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PETITIONER: PANDURANG GANPAT TANAWADE

       Vs.

RESPONDENT: GANPAT BHAIRU KADAM & ORS

DATE OF JUDGMENT:       30/07/1996

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) NANAVATI G.T. (J)

CITATION:  1996 SCALE  (5)675

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. Agrawal, J.      Special leave granted.      This appeal arises out of a suit filed by the appellant for specific performance under an agreement for sale of land by Smt. Janabai to the appellant.      Respondents Nos.  1, 3  and 4  are  the  sons  of  Smt. Janabai while  respondent No.  2 is  her daughter-in-law. On February 20, 1975 Smt. Janabai entered into an agreement for the sale  of suit  lands to  the appellant  under which  the appellant agreed to purchase the lands for Rs. 7000/-. A sum of Rs.  2,000/- was paid by the appellant to Smt. Janabai as earnest money.  As per  the agreement the balance amount was to be  paid at  the time  of the execution of the sale deed. The case  of the  appellant is  that on  May 5, 1976 he gave notice to  Smt.  Janabai  to  execute  the  sale  deed.  The appellant paid  a further  sum of Rs. 1000/- to Smt. Janabai on July  30, 1976  and on  August 20, 1977 further amount of Rs. 800/-  was paid  to Maruti,  the son of Smt. Janabai and husband of  respondent No.  2. Thus the appellant paid a sum of Rs.  3,800/- towards  consideration for  the sale  of the land under  the agreement.  The case  of  the  appellant  is further that  on March  13, 1978  after the  death  of  Smt. Janabai, he  sent a  registered  notice  to  the  respondent calling upon  them to execute the sale deed in favour of the appellant and  since they  failed to  comply with  the  said notice, he  filed a  suit for  specific performance  of  the contract in  1978. In  the said  suit of  the appellant  the Civil Judge, Junior Division, Karmala, by his Judgment dated December 10,  1982, declined to grant the relief of specific performance on  the view  that the  transaction was  only  a money lending  transaction and was not agreement for sale of the land.  The trial  court, however, granted a money decree of Rs. 3,800/- in favour of the appellant. On appeal the Vth Extra Assistant  Judge, Solapur, by Judgment dated April 24, 1984, reversing  the finding  of the  trial court, held that

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transaction between  the parties  was an  agreement to sell. The appellate  court, however,  held that  the appellant had not made  necessary averments  in the  plaint as required in form 47 of the Code of Civil Procedure as well as Section 16 (c)  of   the  Specific  Relief  Act  and  consequently  the appellant  was   not  entitled  to  a  decree  for  specific performance. The  appellate court, therefore, maintained the decree of  the trial  court denying  the relief  of specific performance and  affirmed the  decree for Rs. 3,800/- passed in favour  of the  appellant.  The  High  Court,  in  Second Appeal, has agreed with the view of the appellate court that there is non-compliance with the provisions of Section 16(c) of the Specific Relief Act inasmuch as the appellant has not made a specific averment in the plaint that he was ready and willing to perform his part of the cortract.      Shri U.U. Lalit, the learned counsel for the appellant, has assailed  the judgments  of the  appellate court and the High Court and has invited our attention to paragraphs 6 and 10 of the plaint which read as under :-      "6. When  the plaintiff  asked  the      deceased Janabai to execute a sale-      deed, by a registered notice on the      date 5.5.76,  the deceased  Janabai      neither gave  a reply  also to  the      notice nor  even executed  a  sale-      deed.  Thereafter,   the  plaintiff      sent a  reply of  false  contempts.      Therefore, the  plaintiff has filed      this suit against the defendants to      get  executed   a  sale   deed   in      pursuance of  the Deed of Agreement      for sale. The defendant Nos. 1 to 4      have committed breach of conditions      mentioned in  the Deed of Agreement      for sale.      10. As  per the  conditions in  the      Deed of  Agreement  for  sale,  the      plaintiff is  willing to  pay  fees      which is  required for a sale-deed,      cost of  registration and a balance      amount of Rs. 3,200/- (Rupees three      thousand two hundred only)."      In paragraph 6 the appellant has stated that the sent a notice dated  June 5,  1976 to  Smt. Janabai  asking her  to execute the  sale-deed and  that she neither gave a reply to the said  notice nor  executed the  sale-deed. In  the  said paragraph the  appellant has  also stated  that  he  sent  a registered notice  to the  respondents  on  March  13,  1978 asking them  to execute  the  sale-deed  but  they  did  not execute the  sale-deed. In  paragraph 10  the appellant  has stated that  as per  conditions in the deed of agreement for sale the  appellant is willing to pay fees which is required for a  sale-deed, cost  of registration  and  a  balance  of amount of  Rs. 3,  200/-. This  shows that in paragraph 6 of the  plaint   the  appellant  has  averred  that  after  the execution of  the agreement  for sale,  he sent a registered notice dated  May 5,  1976 to  Smt. Janabai  to execute  the sale-deed and  again sent  a notice  dated March 13, 1978 to the respondent asking them to execute the sale-deed, meaning thereby that  the appellant  had been making efforts to have the sale-deed  executed by issuing notices dated May 5, 1976 and March  13,1978. Moreover,  in paragraph  10  a  specific averment  has  been  made  by  the  appellant  that  as  per conditions in  the deed of agreement for sale, he is willing to pay  fees which  is required  for the  sale-deed, cost of

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registration and the balance amount of Rs. 3,200/-. The said averments clearly  contain a  statement about  the readiness and willingness  on the part of the appellant to perform his part of the contract under the agreement for sale. Apart from  the said  averments in  the plaint, we find that the appellant,  in his  deposition  before  the  court,  has stated:-      "I  issued   notice  to   heirs  of      Janabai to execute the sale deed. I      was ready  to pay  remaining amount      and  act   as  per  agreement.  The      defendants did not execute the sale      deed as per notice. They replied my      notice (Exh. 50). As defendants are      not willing  to  execute  the  sale      deed I  have filed  this suit. I am      ready  to   pay  remaining   amount      immediately.  I  am  ready  to  pay      costs as per agreement."      Respondent No.  1, also  in his  deposition before  the court, has stated :-      "It  is  true  that  plaintiff  was      ready for  sale-deed, but I was not      ready."      In view  of the  aforesaid statements  of the appellant and respondent  No. 1  as well as the averments contained in paragraphs 6  to 10  of the plaint, it must be held that the appellant has  not only averred, but has also proved that he was ready  and willing  to perform  his part of the contract under the  agreement for  sale. The  appellant court and the High Court  were, therefore,  in error  in holding  that the appellant and  failed to  comply with  the  requirements  of Section 16(c)  of the  Specific Relief Act and the appellant must be  held entitled  to a decree for specific performance of the  contract in  the suit filed by him. We find that the possession of  the land  was delivered  to the  appellant in 1976 at  the time of execution of the agreement for sale and he is  in possession  of the  same and has been enjoying the same since  then. Having  regard to  the depreciation in the value of  the rupee  during this  period, we  feel that  the appellant should be required to pay a sum of Rs. 16,000/- in lieu of the balance amount of Rs. 3,200/- payable by him.      For the  reasons aforementioned,  the suit for specific performance filed by the appellant is decreed subject to the appellant depositing  in  the  trial  court  a  sum  of  Rs. 16,000/- along  with the stamp duty and registration charges for the  execution of  the sale  deed within a period of one month from  the date of this judgment. The respondents shall execute the sale-deed in respect of the suit lands in favour of the appellant within one month of the deposit of the said amounts. In  the event  of the  failure on  the part  of the appellant to  deposit the  said amounts within the period of one  month,   the  judgment   under  appeal   shall   remain undisturbed. The appeal is disposed of accordingly. No order as to costs.