FAQUIR CHAND AND ANR.versusSUDESH KUMARI

A                           FAQUIR CHAND AND ANR.
                                      v.
                               SUDESH KUMARI

                               SEPTEMBER 21. 2006

B           [DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.]


          Specific Relief Act, 1963--Section 16(c)-Suit for specific performance
    of contract-Plaintiff everready and willing to perform his part of obligation
C   under the contract-Continuous readiness and willingness seen from conduct
    of the plaintiff as a whole-Suit therefore rightly decreed by Courts below.

          Kespondent filed suit for specific performance of a sale agreement. The
    question which arose for consideration in the present appeal is whether
    Respondent was ever ready and willing to perform his part of the obligation
D   under the agreement of sale and hence the Courts below were justified in
    decreeing the suit filed by him for specific performance.

          Disposing of the appeal, the Court

          HELD: I.I. The language under Section 16(c) of the Specific Relief Act,
E   1963 does not require any specific phraseology but only that the plaintiff must
    aver that he has performed or has always been ready and willing to perform
    his part of the contract. Therefore, the compliance with the readiness and
    willingness has to be in spirit and substance and not in letter and form.
                                                                         (468-E-F(

F         1.2. The continuous readiness and willingness could very well be seen
    in the instant case from the conduct of the plaintiff as a whole. The first
    agreement was entered into between the parties on 17.6.1985 and the last
    date to execute the sale deed was 14.11.1985. The second agreement was
    executed on 9.4.1987 and the last date to execute the sale deed was 13.6.1987.
G   Again, the time was extended at the instance of the defendant up to 30.10.1987.
    Since the sale deed was not executed, the respondent was compelled to file
    the suit on 26.11.1987. Thereafter, the appellant issued a notice to the
    respondent on 7.1.1988. Also the respondent has deposited the entire sale
    consideration into the Court on 18.5.1999. He was also present in the
    Registrar's office for registration of the document. However, the appellant-
H                                        466
            FAQUIR CHAND v. SUDESH KUMAR! [LAKSHMANAN, J.]                    467

    d-.fendant was not present at the Registrar's Office. A careful perusal of the    A
    pleadings, the evidence and the documents filed in this case would only go to
· · show that the respondent was ever ready and willing to perform his part of
    the obligation under the agreement. The decree passed by the High Court
    confirming the decree of the lower courts does not suffer from any infirmities.
                                                               (468-F-H; 469-A-Bl     B
        1.3. To some extent, the delay is also attributable to the Respondent.
  Therefore, the appellant is to be suitably compensated. The Respondent is
  directed to pay the appellant a sum of Rs. 1,00,000/- (Rupees one lakh only)
  within three months, failing which the suit filed by the respondent for specific
  performance shall stand dismissed automatically. If the amount is paid within       C
  the time as stipulated, the appellant shall execute the sale deed in favour of
  the respondent without any further delay. Also on execution of the sale deed,
  the appellant shall also handover peaceful, vacant possession of the suit
  property to the respondent. (469-D-Fl

        Kanshi Ram v. Om Prakash Jawal and Ors., (1996( 4 SCC 593, referred           D
  to.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4223 of2006.

       From the Final Order dated 17.2.2003 of the High Court of Punjab and
  Haryana at Chandigarh in R.S.A. No. 408/2003.
                                                                                      E
        Amar Vivek, Jasbir Singh Malik and S.K. Sabharwal for the Appellant.

        P.N. Puri, Dhiraj and R.K. Joshi for the Respondent.

        The Judgment of the Court was delivered by

        DR. AR. LAKSHMANAN, J. Leave granted.                                         F

        The unsuccessful defendant is the appellant before us. The respondent
 herein filed a suit for specific performance or in the alternative for damages.
 All the three courts below, on a consideration of the entire materials placed,
 both oral and documentary, decreed the suit for specific performace. Before          G
 us Mr. Amar Vivek, learned counsel for the appellants argued that in the
 absence of pleading to readiness and willingness to execute a sale deed; the
 suit for specific performance of an agreement cannot be decreed. We have
 carefully gone through the judgments rendered by the three courts below.
 The High Court on a consideration of the entire material placed before it was
 of the view that no interference was called for in the second appeal.                H
    468                    SUPREME COURT REPORTS (2006] SUPP. 6 S.C.R.

A         The learned counsel for the appellant at the time of hearing, placed
    reliance on Section 16 of the Specific Relief Act. In order to appreciate the
    rival submissions, Section 16(c) needs to be quoted along with explanation.
    The same reads as follows:

            "16. Personal bars to relief :- * * * * *
B
            (a) - (b) * * *   * * •
            (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 perfonned by him, other than terms the performance
C           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 ·
D               court:
                (ii) the plaintiff must aver performance of, or readiness and
                willingness to perform, the contract according to its true
                construction."

E       The language under Section 16(c) of the Act, in our view, does not
  require any specific phraseology but only that the plaintiff must aver that he
  has performed or has always been ready and willing to perform his part of
  the contract. Therefore, the compliance with the readiness and willingness
  has to be in spirit and substance and not in letter and form. The continuous
F readiness willingness could very well be seen in the instant case from the
  conduct of the plaintiff as a whole. The first agreement was entered into
  between the parties on 17 .6.1985 and the last date to execute the sale deed
  was 14.11.1985. The second agreement was executed on 9.4.1987 and the last
  date to execute the sale deed was 13.6.1987. Again, the time was extended at
  the instance of the defendent up 30. I0.1987 Since the sale deed was not
G executed, the respondent herein was compelled to file the suit on 26.11.1987.
  Thereafter, the appellant herein issued a notice to the plaintiff, respondent
  herein, on 7. 1.1988 and at Exhibit 'P-5'. It is also not in dispute that the
  respondent herein has deposited the entire sale consideration into the Court
  on 18.5.1999. He was also present in the Registrar's office for registration of
  the document. However, the appellant-defendant was not present at the
H
             FAQUIR CHAND v. SUDESH KUMAR! [LAKSHMANAN, J.]                   469

Registrar's Office A careful perusal of the pleadings, the evidence and the          A
documents filed in this case would only go to show that the respondent-
plaintiff was ever ready and willing to perform his part of the obligation under
the a~reement. The decree passed by the High Court confinning the decree
of the lower courts does not suffer from any infirmities. We, therefore, have
no hesitation to dismiss the appeal.
                                                                                     B
       The learned coun.sel for the appellant cited judgment of this court in
 Kanshi Ram v. Om Prakash Jawal and Ors., reported in [1996] 4 SCC 593,
 and submitted that rise - in price of the property during the pendency of the
 suit should aslo be taken into consideration and the couts below ought to
 have refused to decree the suit for specific perfonnance and ought to have          C
 exercised its jurisdiction in passing an order of granting alternative prayer for
 damages. It is now submitted that at the Bar that the porperty value has gone
up several times and that if the property is sold it would fetch more than Rs.
65· 70 lakhs. We do not propose to go into the correctness of this submission
 in regard to the valuation of the suit property. To some extent, the delay is
also attributable to the respondent herein. Therefore, in our view, the appellant-   D
defendant is to be suitably compensated. W..; therefore, direct the respondent
herein to pay the appellant herein a sum of Rs. I 00,00/- (Rupees one lakh only)
within three months from today, failing which the suit filed by the respondent
herein for specific performance shall stand dismissed automatically. If the
amount is paid within the time as stipulated, the appellant herein shall execute     E
the sale deed in favour of the respondent herein without any further delay.
We also it make it clear that on excution of the sale deed, the appellant-
defendant shall also handover peaceful, vacant possession of the suit property
to the respondent herein. The appellant-defendant will be at liberty to withdraw
the amount, which has already been deposited by the respondent in the
Court.                                                                               F
         The Civil Appeal stands disposed of accordingly with no orders as to
costs.

B.B.B.                                                     Appeal disposed of.