IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2852 OF 2010 [Arising out of SLP (C) No. 19025 of 2008]

            SHAMIM JAHAN                    .... APPELLANT

Versus

           SHAMBHU PRASAD            .... RESPONDENT   

ORDER

1. Leave granted.

2. This appeal is directed against the judgment and decree dated  

18th April,  2008,  passed  by  the  High  Court  of  Judicature  at  

Allahabad  reversing  the  judgment  and  decree  passed  by  the  

First Appellate  Court as also by the trial  Court.   By the said  

judgment and decree,  the  suit  of  the plaintiff-appellant stood  

dismissed.

3. The appellant herein filed a suit on the basis of an agreement to  

sell in respect of a plot of land praying for specific performance

of  the  said  agreement  on  the  ground  that  the  respondent-

defendant had failed to perform his part of the contract.  The  

consideration  money  which  was  fixed  in  terms  of  the  said  

agreement was Rs. 1,17,000/- and on the date of entering into  

the said agreement an advance money of            Rs. 15,000/-  

only  was  paid  by  the  plaintiff-appellant  to  the  defendant-

respondent.  There was a recital  in the said agreement to the  

effect that since the plaintiff does not have enough money with  

her, an amount of Rs. 15,000/- is being paid by the appellant to  

the  respondent  as  advance  money,  the  balance  sale  

consideration would be paid by 30th April, 1992, whereupon the  

defendant would execute the sale-deed and on his failure  get  

the same executed through Court.

4. The plaintiff-appellant in the plaint has pleaded that she was  

always ready and willing to perform her part of the contract but  

the  defendant  failed  to  execute  the  sale-deed  despite  the  

issuance of a legal notice to him and, therefore, a decree should  

be  passed  in  her  favour  granting  a  decree  of  specific  

performance  of  the  agreement.   The  respondent-defendant  

contested the suit by filing a written statement.  On the basis of  

the pleadings of the parties, six issues were framed by the trial  

Court.  The parties led their evidence and on completion and

recording of the evidence, arguments were heard and the trial  

Court by its judgment and decree dated 04.09.1998 decreed the  

suit granting a decree of specific performance of the agreement.

5. Being  aggrieved  by  the  aforesaid  judgment  and  decree,  the  

respondent  herein  filed  an  appeal  before  the  First  Appellate  

Court which affirmed the judgment and decree  passed by the  

trial Court and dismissed the appeal.

6. Still being aggrieved, the respondent had filed an appeal before  

the High Court of Judicature at Allahabad and by the aforesaid  

impugned judgment and decree both the judgments of the trial  

Court  as  also  of  the  First  Appellate  Court  were  set  aside  by  

allowing  the  appeal.   The  High  Court  held  the  plaintiff  –  

appellant  entitled  to  recover  Rs.  30,000/-,  i.e.,  double  the  

amount of advance money paid by her (Rs. 15,000/- towards  

principal amount and Rs. 15,000/- towards interest) which the  

defendant-respondent  was  directed  to  pay  within  a  period  of  

four months.

7. As  against  the  aforesaid  judgment  and  decree,  the  present  

appeal  is  filed  on  which  we  have  heard  the  learned  counsel  

appearing for the parties and have scrutinized the documents  

placed on record.

8. Counsel  appearing  for  the  appellant  submitted  that  the  

judgment and decree passed by the trial Court and affirmed by  

the First Appellate Court should not have been interfered with  

by the High Court as the findings of fact recorded by the two  

courts below could not be said to be perverse or in any manner  

illegal.  It is also submitted that time being not the essence of  

the contract,  the issuance of notice by the appellant showing  

her readiness and willingness to perform her part of the contract  

should  have  been  accepted  by  the  High  Court  as  sufficient  

compliance of the requirement as provided for under Section 16  

of the Specific Relief Act, 1963 and, therefore, the interference  

by the High Court in the manner as aforesaid was unjustified  

and thus liable to be set aside and quashed.

9. Counsel appearing for the respondent has, however, submitted  

that the High Court was right and justified in setting aside the  

judgment and decree  passed by the Courts below as the said  

judgments  wrongly  placed  the  burden  on  the  respondent-

defendant  to  prove  that  the  plaintiff-appellant  was  not  ready  

and willing to purchase the property and, therefore, the findings  

recorded by the Courts below are illegal and setting aside the  

same by the High Court is just and legal.

10.In  order  to  appreciate  the  aforesaid  contentions,  we  have  

considered the materials on record including the agreement to  

sell.   A bare  look at the aforesaid  agreement  to sell  which is  

Exhibit 15 would indicate that the aforesaid agreement  to sell  

was  entered  into  between  the  parties  for  a  total  sale  

consideration of Rs. 1,17,000/-.  It  is also revealed  therefrom  

that the plaintiff-appellant did not have enough money in hand  

to pay the sale consideration and therefore, she could just pay  

Rs. 15,000/- only as the advance money and therefore a specific  

stipulation  was  made  in  the  agreement  that  the  remaining  

amount of Rs. 1,02,000/- would be paid by 30th April, 1992,  

upon receipt of which the respondent would be duty bound to  

execute the sale-deed without any objection in her favour.  And  

if that is not done, the vendee would get the sale-deed executed  

and  registered  in  her  favour  by  depositing  the  money  in  the  

Court.

11.Counsel appearing for the appellant has vehemently submitted  

that the aforesaid stipulation does not indicate that time was  

essence  of  the  contract.   But  the  real  issue  that  falls  for  

consideration  in  the  present  appeal  is  as  to  whether  the  

appellant  was  ready  and  willing  to  perform  her  part  of  the  

contract and in what manner she has been able to prove and

establish the said fact.

12.Although it is not disputed that an advance money of      Rs.  

15,000/-  was  paid  by  the  appellant  there  was  a  stipulation  

made in the said agreement to sell that the balance amount of  

Rs. 1,02,000/- would be paid by 30th April, 1992.  There is no  

cogent and concrete evidence on record to indicate that on the  

said relevant date the appellant had the said balance amount of  

sale consideration available with her to enable her to pay the  

amount.   This was essential to show that she was ready and  

willing to perform her part of the contract.  There is nothing on  

record to show that any notice was issued to the respondent on  

or about the same time to execute the sale-deed  after receiving  

the amount of balance consideration.  In fact, the notice was  

only issued after expiry of about 2 years and 4 months from the  

said date.  No other evidence has been led to indicate that the  

appellant  had  that  much  of  amount  available  in  her  bank  

account or otherwise on the said date as would have enabled  

her to pay the said balance sale consideration.

13.As  stated  hereinabove,  notice  came  to  be  issued  by  the  

appellant only after expiry of about 2 years and 4 months of the  

date  stipulated  in  the  agreement  for  making  payment  of  the

amount.  There is no correspondence between the parties placed  

on record to indicate that the parties were seeking for extension  

of time or otherwise and, therefore,  it cannot be said that the  

appellant has been able  to prove  and establish her readiness  

and  willingness  to  perform  her  part  of  the  contract.   The  

findings arrived at by the High Court, therefore, cannot be said  

to be in any manner illegal.

14.Having held  thus, we are  of  the  considered opinion that the  

judgment and decree passed by the High Court does not suffer  

from  any  infirmity.   No  other  issue  either  arises  for  our  

consideration or is being urged by the learned counsel for the  

parties.

15.The appeal therefore has no merit and is dismissed.    

     …………………………………J. [Dr. Mukundakam Sharma ]

S...................………………..J.                                  [C.K. PRASAD ]

New Delhi, March 30, 2010.