http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  644 of 2002

PETITIONER: Shri Rameshwar Prasad (d) By Lrs

RESPONDENT: Shri Basanti Lal

DATE OF JUDGMENT: 07/04/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. 644 OF 2002

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of the  Madhya Pradesh High Court, Indore Bench dismissing LPA No.  16 of 1993 filed by the appellant Rameshwar Prasad.  In this  appeal the legal representatives of Rameshwar Prasad have  been impleaded after his death.  By the impugned judgment  by which two LPAs. i.e. LPA Nos.16 and 19 of 1993 were  disposed of. LPA No.16 of 1993 was filed by Rameshwar  Prasad whereas other LPA was filed by the present respondent  Basanti Lal.   Rameshwar Prasad had filed a suit for the relief  of specific performance of contract.  The trial court granted the  relief of specific performance of the contract.  First appeal  No.45 of 1976 was filed by Basanti Lal, the respondent.  The  appeal was allowed and the judgment and decree of the trial  court was set aside on the following terms:   

a)      That the appellant shall refund the sum of Rs.3000/- as  agreed in Ex. P/3 to the respondent by payment or  deposit in trial court within a period of one month from  today.

b)      That the respondent on payment or deposit of this  amount, shall put the appellant in vacant. possession of  the property covered by Ex. P/3 within a period of 15  days thereafter on analogy of  Section 65 of the Contract  Act.

c)      The appellant shall be liable to pay interest at the rate of  1% per month on this amount in case payment or deposit  is made beyond the period of one month from the date of  default till compliance. d)      The respondent shall be liable to pay mesne profits,  determinable by the trial court in terms of Order 20 Rule  12 of the Code and ordered in the shape of final decree in  that behalf in pursuance of this direction on failure to  deliver possession within 15 days as directed above from  the date of default till delivery of possession.  No claim of  standing crops shall be admissible in view of enjoyment  of usufruct for such a long duration and that possession  shall be delivered along with the standing crops, if in  existence.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

e)      Parties are left to bear their own costs of this appeal as  incurred. Counsel fee on each side shall, on certification,  be Rs.1500/-.

2.      Both Rameshwar Prasad and Basanti Lal preferred  appeals before the Division Bench. By the impugned judgment  so far as the appeal filed by Rameshwar Prasad is concerned  the High Court held that the plaintiff had neither pleaded nor  proved that he was ever ready and willing to pay interest,  having failed to prove the purported waiver of interest, as  claimed, the Division Bench held that the plaintiff has not  established basic ingredients for decree of specific  performance of contract.  On that ground alone the appeal was  dismissed and other points raised were not considered.

3.      Learned counsel for the appellants submitted that the  High Court categorically noted that in paragraph 13 of the  plaint as was shown in the notice sent to the defendant, it was  categorically stated that he was compelled to comply with all  terms and conditions of agreement.  The High Court wrongly  construed the statement and came to the conclusion that the  said statement cannot be construed to mean that plaintiff was  ready to pay the amount of interest, particularly in view of the  stand of the defendant. It was pointed out that in the  paragraph 13 it has been stated that the plaintiff was always  ready and willing and even ready and willing today for  performance of his part of the contract.  

4.      It is submitted that the question of interest of delay was  never raised before the trial court.

5.      Learned counsel for the respondent submitted that there  was dispute as regards the claim of payment of Rs.4,500/-  and if there was delay interest was payable. Plaintiff raised an  absolutely frivolous plea that payment was being made on  behalf of the defendant.

6.      The agreement dated 13.9.1963 contains the following  clause which is of significance:

"Till the payment of instalment, interest  at the rate of Rs.0.75 paise percent shall be  payable on Rs.5,000/- Interest shall be  payable w.e.f. 13.9.1963."

Following averment in the plaint needs to  be quoted:           "That the plaintiff was always ready and  willing to execute the sale deed and fulfill his  part of the contract and is even so today.  The  plaintiff had even informed through his  counsel Sh. U.N. Bhachawat, to the defendant  in reply to his notice dated 7.10.1968 that he  was ready and willing to pay balance amount  of sale consideration of Rs.500 and to comply  the terms of the sale agreement which were  applicable on the plaintiff and the plaintiff was  so ready even before.  The defendant should  execute the sale deed and should get Rs.500/-  from the plaintiff and get the same registered."

7.      There is a specific statement that the plaintiff was willing  to comply with the terms of the sale agreement which were  applicable and was so ready even before.  One of the terms in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

the agreement related to payment of interest.  Therefore the  conclusion of the High Court that there is no specific plea  regarding readiness to pay interest is contrary to the factual  scenario, in view of the categorical averment made in the  plaint.

8.      The provisions of Section 16(c) of the Specific Relief Act,  1963 (in short the ’Act’) are as follows: "Section 16 - Personal bars to relief: Specific performance of a  contract cannot be enforced in favour of a person--  (a)\005\005.  (b)\005\005  (c) who fails to aver and prove that he has 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 terms of the performance of which has been prevented or  waived by the defendant."

The basic principle behind Section 16(c) read with Explanation  (ii) is that any person seeking benefit of the specific  performance of contract must manifest that his conduct has  been blemishless throughout entitling him to the specific  relief. The provision imposes a personal bar.  The Court is to  grant relief on the basis of the conduct of the person seeking  relief.  If the pleadings manifest that the conduct of the  plaintiff entitles him to get the relief on perusal of the plaint he  should not be denied the relief.

9.      Section 16(c) of the Act mandates the plaintiff to aver in  the plaint and establish as the fact by evidence aliunde that he  has always been ready and willing to perform his part of the  contract.  On considering almost identical fact situation it was  held by this Court in Surya Narain Upadhyaya v. Ram Roop  Pandey and Ors. (AIR 1994 SC 105) that the plaintiff had  substantiated his plea.

10.     These aspects were also highlighted in Sugani v.  Rameshwar Das & Anr. (2006 (11) SCC 587).

11.     The High Court’s conclusions are clearly contrary to the  materials on record.  The High Court was wrong in holding  that that there was no indication about the readiness and  willingness to pay interest.  Since the High Court has not  decided the other issues, we set aside the impugned judgment  and remit the matter to it for considering the matter afresh in  accordance with law. The impugned conclusions stand  nullified by this judgment.

12.     As the matter is pending since long, let the High Court  decide the matter as early as practicable preferably by the end  of August, 2008.

13.     The appeal is disposed of accordingly with no orders as to  costs.