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PETITIONER: SYED DASTAGIR

       Vs.

RESPONDENT: T.R. GOPALAKRISHNASETTY

DATE OF JUDGMENT:       11/08/1999

BENCH: A.P.Misra, B.N.Kirpal, S.Rajendra Babu

JUDGMENT:

A.P. Misra,J.

     The  short  question raised in this appeal is, how  to construe a plea of readiness and willingness to perform to sub-serve  to  the  requirement  of  Section  16(c)  of  the Specific  Relief Act, 1963 (hereinafter referred to as  The Act) and the interpretation of its explanation.

     This appeal arises out of an Order dated 22nd October, 1986  passed  by  the High Court of Karnataka  allowing  the Second   Appeal   No.954   of  1975   in   favour   of   the respondent-defendant   by  dismissing  the   suit   of   the plaintiff-appellant for specific performance of an agreement to  sell.   This  resulted  into  setting  aside  concurrent findings  of  both  the  courts   below  which  decreed  the appellants  suit.   For  this  the  sole  ground  was  that appellant  did not aver in his plaint that he was ready  and willing  to  perform  his  part  of  the  contract.   Before adverting  to this issue, it is necessary to give some  bare facts.

     The  appellant-plaintiff  filed  a suit  for  specific performance of an agreement to sale dated 11th August, 1960. According  to the plea, defendant entered into an  agreement to  sell the properties for the consideration of  Rs.9500/-. As  per  stipulation in the agreement, the plaintiff  agreed for  an  adjustment of the mortgage amount of Rs.5000/-  and paid  Rs.500/-  to  the  defendant-respondent  towards  part consideration  on the same date when the said agreement  was executed.   On this payment, only Rs.4000/- remained as  the balance  amount  to be paid and on this payment a sale  deed was to be executed.  As per plea, the defendant subsequently received  a  sum of Rs.3680/- on and off from  13.1.1961  to 21.12.1965  from  the  plaintiff which is  endorsed  on  the agreement  to  sale on the 21.12.1965.  The  plaintiff  also paid  to  the  defendant Rs.100/- on 21.3.1965  and  another Rs.100/-  on  4.5.1966.  Thus, in all out of  the  aforesaid balance  amount of Rs.4000/-, the plaintiff paid  Rs.3880/-. It  is  also  averred  that these  payments  are  also  duly recorded  in  the  account  book  of  the  defendant.   When plaintiff approached the defendant to receive the balance of Rs.120/- towards sale price and to execute the sale deed the defendant  evaded  and  hence left with no  option  a  legal notice was served on the defendant.

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     The  trial  court held that the alleged  agreement  to sell  (Ex.P.1)  was  executed by the defendant  for  a  sale consideration  of  Rs.9500/-  and the  defendant  agreed  to execute  sale  deed  on  receipt of the  balance  amount  of Rs.4000/-,  and that defendant did receive all the aforesaid amounts  except  Rs.120/- which also plaintiff  tendered  in court.   Hence,  the  suit   for  specific  performance  was decreed.   The  appellate  court  also  confirmed  the  said findings.   However,  the High court set aside the  findings only on the ground that the plaintiff had not averred in his pleading  specifically  that  he was ready  and  willing  to perform  his  part of the contract which is mandatory  under Section 16 (c) of the aforesaid Act.

     Mr.   S.S.   Javali,  Learned Senior counsel  for  the appellant submitted, firstly, that the High Court should not have  interfered  with  the   concurrent  findings  of  fact recorded  by both the courts below.  Secondly, even on facts there  exists  sufficient  pleadings which conforms  to  the requirement  of Section 16(c) of the Act.  On the other hand learned  counsel  for  the defendant  stoutly  defended  the impugned order.  He submits that the High Court was right to take  up this pure question of law which goes at the root of the  controversy and it rightly held there was no such  plea thus dismissed the suit.

     So  far  the first point, we felt as this goes to  the root and being pure question of law, argued at length before the High Court, without objection being raised, it would not be  proper,  on the facts and circumstances of this case  to accede to this submission for the appellant.  Thus, the only question  to  which we are adverting is, the  second  point, viz.,  whether  the plea of the plaintiff is  sufficient  to conform  to  the requirement of the aforesaid  section.   In other  words,  could  it  be  construed  to  be  a  plea  of readiness and willingness.  The submission is there exists sufficient  plea  to construe it to be a plea of  readiness and  willingness  to perform in terms of the said  section. He  referred  in  support to the following  pleadings.   The relevant portion of which is quoted hereunder:-

     The  defendant has entered into an agreement with the plaintiff  on  1.8.1960       for  a  consideration  of Rs.9,500.00  the plaintiff has agreed to that  on adjustment   of  the  mortgage   amount  of  Rs.5000.00  and Rs.500.00  paid  towards advance payment of the sale  price, that  on payment of the obtaining sum of Rs.4000.00 and off, he  would  execute  a proper sale deed  conveying  the  suit schedule  properties.      the defendant has  accordingly OOAreceived  a sum of Rs.3680.00     from the plaintiff and has  endorsed  the same on the agreement on 21.12.1965.   He has further received Rs.100.00 on 21.3.1966 and Rs.100.00 on 4.5.1966  and  in all Rs.3880.00.  These payments  are  also duly  written up in the account book of the defendant.   The plaintiff  approached  the defendant to receive the  balance amount  of Rs.120.00 towards the sale price and execute  the proper  sale  and  he agreed.  He evaded and hence  a  legal notice  was issued on 23.2.1967 calling upon him to  perform his  part of the contract.      He (plaintiff) has today deposited  in  Court  Rs.120.00 under R.O.  No.   being  the balance due to the defendant

     Learned  counsel submits this pleading clearly reveals

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that the plaintiff has performed his part of the contract by paying  the total balance amount except Rs.120/-, which  was tendered  in Court.  Thus nothing was left for the plaintiff to  perform  his  part under the contract, and such  a  plea cannot  but to be construed to conform to the requirement of Section  16(c).   He  submits  what  better  readiness  and willingness could be said than from the aforesaid plea.  He submits,  it is not necessary to further express in  literal words  that  plaintiff is ready and willing to perform  his part of the contract.

     He places reliance in Mithu Khan v.  Pipariyawali, AIR 1986  M.P.   39, Trimbak v.  Nivratti, AIR 1985 Bom.128  and Kamdev v.  Devendra Kumar, AIR 1979 Gau.65.

     On  the other hand, learned counsel for the respondent submits,  in the absence of averment of the actual words  by the  plaintiff in his pleading, i.e., ready and willing  to perform  his part under the contract, which is mandatory in nature,  the plaintiff disentitles himself to any relief  in view of Section 16(c).  His submission with reference to the explanation  of Section 16(c) is, even if any balance amount as  in  the present case Rs.120/- had been tendered  by  the plaintiff  in Court, that cannot be construed to comply with the provisions of the aforesaid Section.  He emphasised, the use  of word except when so directed by the Court used  in the  explanation  (i) of the aforesaid Section,  means  such payment  could  only be construed to be such, if he  deposit this  amount only under the direction of the court, which is not in the present case.

     So  whole gamut of issue raised is, how to construe  a plea  specially with reference to Section 16(c) and what are the  obligations  which  the plaintiff has  to  comply  with reference  to his plea and whether the plea of the plaintiff could  not be construed to conform to the requirement of the aforesaid  Section,  or does this section  require  specific words to be pleaded that he has performed or has always been ready  and  is willing to perform his part of the  contract. 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.  Such an expression  may  be  pointed, precise,  some times vague but still could be gathered  what he  wants  to  convey  through only  by  reading  the  whole pleading,  depends on the person drafting a plea.  In  India most  of  the pleas are drafted by counsels hence  aforesaid difference  of  pleas  which inevitably differ from  one  to other.   Thus, to gather true spirit behind a plea it should be  read  as  a  whole.  This does  not  distract  one  from performing his obligations as required under a statute.  But to test, whether he has performed his obligations one has to see  the  pith  and substance of a plea.   Where  a  statute requires  any fact to be pleaded then that has to be pleaded may  be  in any form.  Same plea may be stated by  different persons  through  different  words  then  how  could  it  be constricted  to  be only in any particular  nomenclature  or word.   Unless statute specifically require for 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) 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

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in  letter and form.  So to insist for mechanical production of  the exact words of an statute is to insist for the  form rather  than essence.  So absence of form cannot dissolve an essence if already pleaded.

     Returning to the facts of the present case we find the aforesaid  pleading  recites that all balance amount of  the consideration  under  the  contract  has been  paid  by  the plaintiff  of which there is an endorsement by the defendant except the balance amount of Rs.120/- about which also there is  a  specific  plea that he has tendered the same  in  the Court.   It is true in the pleading the specific word ready and  willing  to perform in this nomenclature is not  there but can aforesaid plea, could be read that plaintiff was not ready  to willing to perform his part of his obligation?  In other  words,  can it be said he has not pleaded that he  is ready and willing to perform his part?  Courts cannot draw any  inference  in abstract or to give such hyper  technical interpretation  to  defeat a claim of  specific  performance which  defeats the very objective for which the said Act was enacted.   The  Section makes it obligatory to  a  plaintiff seeking  enforcement  of specific performance, that he  must not  only  come with clean hands but there should be a  plea that  he has performed or has been and is ready and  willing to  perform  his  part of the obligation.   Unless  this  is there,  Section  16 (c) creates a bar to the grant  of  this discretionary  relief.   As we have said for this it is  not necessary  to  plea  by any specific words, if  through  any words  it  reveals  the  readiness and  willingness  of  the plaintiff  to perform his part of obligation then it  cannot be said there is non-compliance of the said Section.

     Section  16(c)  of  the Specific Relief Act,  1963  is quoted  hereunder  :-  16.   Personal bars  to  relief.   - Specific  performance  of a contract cannot be  enforced  in favour of a person -

     (a) xxx xxx xxx

     (b) xxx xxx xxx]

     (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 the performance of which  has  been prevented or waived by the defendant.

     Explanation.  - For the purposes of clause (c), -

     (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant  or  to deposit in court any money except when  so directed by the court;

     (ii)  the  plaintiff  must  aver  performance  of,  or readiness and willingness to perform, the contract according to its true construction.

     It  is  significant that this explanation  carves  out contract which involves payment of money as a separate class from  Section 16(c).  Explanation (i) uses the words  it is not  essential  for the plaintiff to actually tender to  the defendant  or  to deposit in court any money except when  so

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directed by the court.  This speaks in negative term what is not  essential for plaintiff to do.  This is more in support of  plaintiff  that he need not tender to the  defendant  or deposit  in  Court any money but the plaintiff must (as  per explanation  ii) at least aver his performance or  readiness and  willingness to perform his part of the contract.   This does  not  mean that unless the court directs the  plaintiff cannot  tender the amount to the defendant or deposit in the Court.   Plaintiff  can  always  tender the  amount  to  the defendant or deposit it in court, towards performance of his obligation  under the contract.  Such tender rather exhibits willingness  of  the  plaintiff to perform his part  of  the obligation.   What is not essential only means need not do but  does  not  mean  he  cannot do  so.   Hence,  when  the plaintiff  has  tendered the balance amount of  Rs.120/-  in court  even  without  courts order it cannot  be  construed adversely  against  the  plaintiff  under  explanation  (i). Hence,  we  do not find any merit in the submission  of  the learned counsel for the respondents.

     In  interpreting  a  pleading wherever  there  be  two possible interpretations, then the one which defeats justice should  be  rejected and the one which sub-serve to  justice should be accepted.

     It  was  held in the case of Ramesh Chandra v.   Chuni Lal, AIR 1971 SC 1238, that readiness and willingness cannot be  treated  as  a strait-jacket formula.  This have  to  be determined  from  the  entirety of facts  and  circumstances relevant  to  the  intention  and   conduct  of  the   party concerned.   Finally, we have no hesitation to hold that the pleading  as  made  by  the plaintiff  not  only  shows  his readiness  and willingness to perform his part of obligation under  the  contract but by tendering total amount shows  he has  performed his part of the obligation.  We also construe such  a plea to be a plea of readiness and willingness  as required  under  Section 16 (c).  In view of  the  aforesaid findings  we hold that the High Court committed an error  by defeating  the claim of the plaintiff on the basis of  wrong interpretation of his plea in terms of the said Section.

     Accordingly,  the  impugned  order of the  High  Court dated 22nd October, 1986 is set aside and the plaintiff suit as  decreed  by  both the courts below  is  confirmed.   The appeal is, accordingly, allowed.

     In  view  of the facts and circumstances of the  case, costs on the parties.