PADMAKUMARI & ORS.versusDASAYYAN &ORS.

                          [2015] 5 S.C.R. 56


A                     PADMAKUMARI & ORS.

                                   v.
                         DASAYYAN &ORS.
B                  (Civil Appeal No. 3570 of 2015)

                            APRIL 7, 2015

          [V. GOPALA GOWDA AND C. NAGAPPAN, JJ.]
c
          Specific Relief Act, 1963 - ss. 16(c) and 19(b) -
   Specific Performance of unregistered agreement for sale -
  Between plaintiff and defendant Nos. 1 to 11 - Balance sale
  consideration not paid by the plaintiff within the time i.e. nine
o months which was agreed upon - Thereafter the property in
  question sold by defendant Nos. 1to11 to defendant Nos.
   12 to 15 (appellants) by a registered sale-deed by paying
  the sale consideration amount- Suit for specific performance
  by plaintiff - Decreed by courts below - On appeal, held:
E Finding of facts by courts below was contrary to the terms
  and conditions of the agreement, pleadings and the evidence
  on record - Time was the essence of the contract and the
  plaintiff failed to perform the part of the agreement by not
  paying the balance sale consideration within stipulated period
F agreed upon - Plaintiff has also not complied with the
  mandatory 1ega/ requirement provided uls. 16(c) because
  the pleadings of the plaintiff were not in conformity with Order
  6 Rule 3 and Clause 3 of Form No. 4 7 in Appendix A of CPC
G - Respondent Nos. 12 to 15 were bonafide purchasers and
  thus were protected u/s. 19(b) - Thus the suit for specific
  performance was not liable to be decreed - Code of Civil
  Procedure, 1908- Or. 6 r. 3; Appendix A Form 4 7 clause 3.

           Allowing the appeal, the Court
H
                                 56
    PADMAKUMAR & ORS. v. DASAYYAN & ORS.                 57


      HELD: 1. It is not correct to say that time was not A
the essence of the contract as defendant Nos. 1 to 11
themselves have failed to perform their part of the
agreement i.e. by measuring the suit schedule property.
The question of taking measurement would not arise,
before the plaintiff performed his part of the contract B
regarding the balance consideration within the period
stipulated in the agreement. Undisputedly, that had not
been done by the plaintiff within the stipulated time and
the notice was issued by the plaintiff only after one C
year, therefore, the plaintiff has not adhered to the
time which is stipulated to pay the balance
consideration amount to defendant Nos. 1 to 11 which
is very important legal aspect which was required to be
considered by the Courts below at the time of o
determining the rights of the parties and pass the
impugned judgment. The finding of fact by courts below
is contrary to the terms and conditions of the agreement,
pleadings and the evidence on record. [Para 16 and 17]
[69-G-H; 70-B-D, E]                                       E

  Gomathinayagam Pillai & Ors. vs. Palaniswami Nadar
  AIR (1967) SC 868; Chand Rani (D) by Lrs. vs. Kamal
  Rani (D) by Lrs. (1993) 1 SCC 519: 1992 (3) Suppl.
  SCR 798 - relied on.                                    F

  Gomathinayagam Pillai & Ors. vs. Palaniswami Nadar
  AIR (1967) SC 868; Harold Wood Brick Company Ltd.
  vs. Ferris (1935) King's Bench Division 198;
  Sa~damani Kandappan vs. S. Rajalakshmi & Ors. AIR       G
  (2011) SC 3234 - referred to.

      2. The pleadings of the plaintiff is not in conformity
with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in
Appendix 'A'. The plaintiff has thus not complied with H
 58       SUPREME COURT REPORTS               [2015] 5 S.C.R.


A the legal requirement which is mandatory as provided
  under Section 16 (c) of the Specific Relief Act. [Paras
  18 and 19] [70-F-G; 71-B]

      Jugraj Singh &Anr. vs. Labh Singh & Ors. (1995) 2 SCC
B     31:1994 (6) Suppl. SCR 168; Ram Awadh vs.
      Achhaibar Dubey (2000) 2 SCC 428: 2000 (1)
      SCR 566; Ouseph Varghese vs. Joseph Aley & Ors.
      (1969) 2 SCC 539; Abdul KhaderRowthervs. P.K. Sara
      Bai & Ors. (1989) 4 SCC 313; Pushparani S. Sundaram
c     & Ors. vs. Pauline Manomani James (D) & Ors. (2002)
      9 SCC 582 ; Manju Nath Anandappa Urf Shivappa
      Hansai vs. Tammanasa & Ors. (2003) 10 SCC
      390: 2003 (2) SCR 1068 - relied on.

D         3. The non-compliance of the contract regarding
  payment of balance consideration to defendant Nos. 1
  to 11 on the part of the plaintiff within nine months is an
  undisputed fact and further the agreement of sale is not
  registered, as is evidenced from the encumbrance
E certificate obtained by defendant Nos. 12 to 15 before
  they entered into an agreement (Exhibit B-1 ). Both
  the Courts below have recorded an erroneous finding
  on the non-existent fact holding that the agreement of
F sale in favour of the plaintiff is a registered document.
  More so, defendant Nos. 12 to 15 before entering into
  the agreement with defendant Nos. 1 to 11 have
  made proper verification from the competent authority
  to purchase the part of the suit schedule property and
G got the agreement of sale (Exhibit B-1) executed in their
  favour, from defendant Nos. 1 to 11 and thereafter, they
  got the sale-deed registered by paying sale consideration
  amount. Thus, the purchase of the suit- schedule
  property by defendant Nos. 12 to 15 for a valuable
H
     PADMAKUMAR &ORS. v. DASAYYAN & ORS.                   59


consideration is established. Both the Courts below A
have omitted to consider this important piece of
pleadings as also the material evidence on record,
thereby the concurrent finding recorded on the
contentious issues has been rendered erroneous in
law and is liable to be set aside. Therefore, the reliance B
placed upon Section 19(b) of the Specific Relief Act as
they being the bona-fide purchasers, the specific
performance of contract cannot be enforced against
the transferees. Defendant Nos. 12 to 15 being the C
transferee as they have purchased the suit schedule
property for value and have paid the money in good
faith and without notice of the original contract. [Paras
20 and 21) [71-E-H; 72-A-F]
                                                           D
                    Case law reference

AIR (1967) SC 868         referred to.        Para 9, 15

(1935) King's Bench
Division 198              referred to.        Para 9       E
AIR (2011) SC 3234        referred to.        Para 9

1994(6) Suppl. SCR 168 relied on.             Para 10

2000 (1) SCR 566          relied on.          Para 10       F

(1969) 2 sec 539          relied on.          Para 10

(1989) 4 sec 313          relied on.          Para 10
                                                           G
(2002) 9 sec 582          relied on.          Para 10

2003 (2) SeR 1068         relied on.          Para 10

1992 (3) Suppl. seR 798          relied on.   Para 15
                                                           H
60          SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A          CIVILAPPELLATE JURISDICTION: Civil Appeal No.
     3570 of2015

         From the Judgment and Order dated 08.02.2007 of the
  Madurai Bench of Madras High Court in Appeal Suit No. 646
B of 1994

           Thomas P. Joseph, M. Gireesh Kumar, Ankur S Kulkarni,
     Sriram P., Vishnu Shankar, Vijay Kumar for the Appellant.

            V. Balachandran for the Respondent.
c
            The Judgment of the Court was delivered by

            V. GOPALA GOWDA, J. 1. Leave granted.

D        2. The concurrent finding of fact recorded by the High
  Court of Madras, Bench at Madurai, in Appeal Suit No. 646 of
  1994 affirming the judgment and decree dated 15.06.1994
  passed in O.S. No. 63 of 1993 on the file of Sub Court,
  Kuzhithurai District is under challenge in this appeal by
E defendant Nos. 12 to 15 urging various legal grounds.

              3. For the sake of convenience, the ranks of the parties
     assigned in the plaint filed before the trial court is adverted to
     in this judgment.
F
          4. Defendant Nos. 1 to 11 entered into an agreement
  of sale on 19.04.1992 in favour of the plaintiff and executed an
  unregistered agreement agreeing to sell the suit schedule
  property measuring 2.08 acres of land belonging to them. The
G total sale consideration amount is Rs. 65,000/-. Advance
  amount of Rs. 2, 0001- was agreed to be paid for execution of
  sale and the remaining balance consideration is agreed to be
  paid within nine months from the date of agreement of sale.
  Undisputedly, the remaining balance sale consideration is not
H
      PADMAKUMAR & ORS. v. DASAYYAN & ORS.                            61
             [V. GOPALAGOWDA, J.]

paid on or before 18.04.1993. On 3.02.1993, defendant Nos.            A
12 to 15 entered into an unregistered agreement (marked as
Exhibit 8-1) with defendant Nos. 1 to 11 to purchase the suit
schedule property. As per the said unregistered agreement,
the property is agreed to be sold for Rs. 80,000/-. Advance
amount of Rs. 10,000/-was also paid to defendant Nos. 1 to            B
11. On 19.04.1993, the suit schedule property Sale Deed No.
75of1993 (marked as Exhibit B-3) was executed by defendant
Nos. 1 to 11 in favour of defendant Nos. 12 to 15. Out of the
sale consideration of Rs. 80,000/- a sum of Rs. 10,000/- is           C
paid as advance amount, a further sum of Rs. 30,000/- is paid
at the time of execution of the sale deed, remaining Rs. 40,000/
- is retained to be paid in favour of defendant Nos. 1 to 11,
free of interest, within one month from the date of disposal of
I.A. No. 208of1990 in A.S. No. 95of1990 pending on the file           D
of District Court Nagarcoil. The appeal was filed challenging
the decree for partition in O.S. No. 11 of 1978.

         5. The plaintiff got issued the legal notice (Exhibit A-3)
on 29.04.1993 to defendant Nos. 1 to 15 demanding execution           E
of the sale deed as per the agreement (ExhibitA-1 ). Defendant
Nos. 12 to 15 replied vide Exhibit 8-7. The other defendants
did not reply to the demand made by the plaintiff, therefore, he
was constrained to institute original suit on 14.06.1993 before
the Sub Court Kuzhithurai. The written statements were filed          F
by all the defendants denying the claim of the plaintiff inter alia
contending that the time is the essence of the contract as per
unregistered agreement of sale (ExhibitA-1 ). As the plaintiff
had agreed to pay remaining sale consideration of Rs. 63,000/
- within nine months from the date of agreement, the same             G
has not been paid. Since there is breach of contract on the
part of the plaintiff and, therefore, he is not entitled for decree
of specific performance in respect of the suit schedule property.
Further, it is pleaded that the plaintiff has not shown his           H
62        SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A readyness and willingness to perform his part of the contract,
  as required under Section 16(c) of the Specific Relief Act,
  therefore, defendant Nos. 1 to 11 contended that the plaintiff
  is not entitled for a decree of specific performance of the suit
  schedule property. Defendant Nos. 12 to 15 denied the plaint
B averments, however, specifically pleaded that they are the bona
  fide purchasers of the part of the suit schedule property and
  they are protected under Section 19(b) of the Specific Relief
  Act. On the basis of the said pleadings the case went for trial.
C Before the trial court the plaintiff and defendants were
  examined in support of their respective claim and counter
  claim. The trial court on the basis of the pleadings and evidence
  adduced on record has formulated the following four issues:

         (i)    Whether specific performance of the contract as
D
                sought by plaintiff is allowable?

         (ii)   Is sale deed dated 19.04.1993 valid?

         (iii) Have 012 to 015 purchased the suit property in
E              good faith?

         (iv) What are the reliefs plaintiff is entitled?

         6. The trial court on the basis of pleadings and the
F evidence produced on record has appreciated and answered
  the Issue Nos. 1 and 2 in favour of the plaintiff. Issue No. 3 was
  answered against defendant Nos. 12 to 15 and, accordingly,
  answered Issue No. 4 and passed the decree of specific
  performance in favour of the plaintiff in respect of the suit
G schedule property with certain directions to him.

          7. Aggrieved of the said judgment and decree of the
  learned trial judge, defendant Nos. 12 to 15 preferred an appeal
  before the High Court raising certain grounds inter alia urging
H that findings and reasons recorded on the contentious issue
      PADMAKUMAR & ORS. v. DASAYYAN & ORS.                         63
             [V. GOPALAGOWDA, J.]

Nos. 1 to 3 are erroneous in law and are liable to be set aside A
and prayed to set aside the judgment and decree of the trial
court and disposal of the appeal suit instituted by them. On the
basis of the rival legal contentions, the High Court has
formulated certain points and the same have been answered
in favour of the plaintiff by assigning reasons, rejecting the legal B
contentions urged in the Appeal Suit on behalf of defendant
Nos. 1 to 15. The concurrent finding recorded in the impugned
judgment of the High Court is under challenge in this appeal
urging certain grounds and prayed to set aside the impugned ~
judgment and decree.

        8. Mr. Thomas P. Joseph, learned counsel for defendant
Nos. 12to15 (appellants herein) questioned the correctness
of the concurrent finding of fact recorded on the contentious
                                                                    0
issues raised by the defendants, which the High Court has
answered in favour of the plaintiff, contending that as per the
unregistered agreement there is a clause stipulating the time
of nine months for payment of balance consideration of Rs.
63,000/- to defendant Nos. 1 to 11 out of the total sale E
consideration of Rs. 65,000/-, which has not been complied
with by the plaintiff. Under Section 55 of the Indian Contract
Act, 1872 once the time is specified in the agreement, time is
the essence of the contract and the parties shall adhere to the
same. Non-adherence of the said contract rendered the F
contract repudiated, therefore, the plaintiff is not entitled for a
decree of specific performance.

       9. Learned counsel for defendant Nos. 12 to 15 relied
upon the judgments of this Court in the cases of G
Gomathinayagam Pillai & Ors. vs. Palaniswami Nadar, AIR
(1967) SC 868 para 4, Harold Wood Brick Company Ltd. vs.
Ferris, (1935) King's Bench Division 198, Saradamani
Kandappan vs. S. Rajalakshmi & Ors., AIR (2011) SC 3234
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64        SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A para25.

           10. Another ground urged by learned counsel for
  defendant Nos. 12 to 15 is that the pleadings on behalf of the
  plaintiff must be strictly in conformity with Order 6 Rule 3 of the
B Code of Civil Procedure ("CPC" for short) which provides Form
  of pleadings and placed strong reliance upon Clause 3 of Form
  No. 47 in Appendix 'A' which reads thus:

      "The plaintiff has been and still is ready and willing
c     specifically to perform the agreement on his part of which
      the defendant has had notice".

  He further places reliance upon the plaint averments at para
  6, which is quoted hereinafter, submitted that the said
o averments are not strictly in conformity with Order 6 Rule 3
  CPC of Form 47 of the aforesaid clause, therefore, the plaintiff
  has not shown readyness and willingness which is the condition
  precedent as required under Section 16(c) of the Specific
  Relief Act, that has been ignored by both the Courts below,
E therefore, the concurrent finding recorded by the High Court in
  the absence of this important aspect of the case has not only
  rendered the finding erroneous in law but the same are contrary
  to the judgments of this Court. Learned counsel placed strong
  reliance upon the following judgments in the cases of Jug raj
F Singh &Anr. vs. Labh Singh & Ors., (1995) 2 SCC 31 at para
  6, Ram Awadh vs. Achhaibar Dubey, (2000) 2 SCC 428,
  Ouseph Varghese vs. Joseph Aley & Ors., (1969) 2 SCC
  539, Abdul Khader Rowther vs. P.K. Sara Bai & Ors., (1989)
G 4 SCC 313, Pushparani S. Sundaram & Ors. vs. Pauline
  Manomani James (D) & Ors., (2002) 9 SCC 582, Manju Nath
  Anandappa Urf Shivappa Hansai _vs. Tammanasa &
  Ors.,(2003) 10 SCC 390 paras 15, 17 and 18.

           11. The last legal contention urged by learned counsel
H
      PADMAKUMAR & ORS. v. DASAYYAN & ORS.                       65
             [V. GOPALAGOWDA, J.]

for defendant Nos. 12 to 15 (appellants herein) is that the courts A
below have erred in law in not noticing the right conferred upon
defendant Nos. 12 to 15 under Section 19(b) of the Specific
Relief Act as they are bona fide purchasers since they, after
proper verification and obtaining the clarification of the property
in question, have paid full consideration to defendant Nos. 1 B
to 11 towards the property in question, therefore, the concurrent
finding of the High Court not noticing this important aspect of
the matter while affirming the judgment and decree passed by
the trial court rendered the finding erroneous in law and, C
therefore, the same are liable to be set aside.

        12. Learned counsel appearing on behalf of the plaintiff
(Respondent No. 1 herein) sought to justify the impugned
judgment and decree of the High Court contending that the
                                                                  0
High Court in exercise of its appellate jurisdiction examined
the correctness of the finding rendered by the trial court on the
contentious issues on proper appreciation of the pleadings
and evidence on record and the same has been reaffirmed by
the High Court by assigning valid and cogent reasons, hence, E
there is no ground for this Court to interfere with the same in
exercise of its appellate jurisdiction as there is either
miscarriage of justice or error in the judgment and decree and,
therefore, he prayed to dismiss the appeal.
                                                                  F
        13. Learned counsel for the plaintiff placing strong
reliance upon paragraphs of the plaint in support of the
contention that the plaintiff has averred relevant pleadings with
regard to the non compliance of the condition enumerated in
the agreement of sale by defendant Nos. 1 to 11 in non- G
measuring the suit schedule property before calling upon the
plaintiff to pay the balance sale consideration amounts to
breach on the part of the defendants. This plea has not been
specifically denied by them in their written statement as
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66        SUPREME COURT REPORTS                      [2015] 5 S.C.R.


A required under Order 8 Rule 5 CPC, therefore, he submitted
  that both the courts below have rightly examined the case on
  proper evaluation of the pleadings and evidence on record
  and rightly granted the decree in favour of the plaintiff and the
  same need not be interfered with by this Court in exercise of
B this Court's jurisdiction.

          14. With reference to the aforesaid rival legal
  contentions, we are required to examine the correctness of
  the concurrent finding recorded on the question of stipulation
C of period to perform the contract by the plaintiff to pay the
  balance consi~eration of Rs. 63,000/- on the basis of which
  he was awarded the decree of specific performance. We have
  carefully examined this aspect in the backdrop of the recitals
  contained in the unregistered agreement to sell the suit
0
  schedule property to the plaintiff. As could be seen from the
  said agreement the plaintiff has agreed for payment of the
  balance sale consideration amount within nine months from
  the date of execution of the agreement to sell. The relevant
E recitals of Exhibit A 1 are extracted hereunder for better
  appreciation of the contentions urged in this regard by the
  learned counsel on behalf of defendant Nos. 12 to 15:

      "You are willing to purchase this schedule of property for
F     Rs. 65,000/-. As we were fully aware that there was no
      possibility to purchase this property for a higher price by
      anybody else, we also were willing to sell for the same
      amount and hence we received an advance of Rs. 2,000/
      - from the total price. This amount of Rs. 2,000/- is
G     received to relieve us a little from our debt trap. You should
      pay the balance of consideration Rs. 63.000/-within 9
      months."

                                            (emphasis supplied)
H
      PADMAKUMAR & ORS. v. DASAYYAN & ORS.                          67
             [V. GOPALAGOWDA, J.]

        15. The above clause in the agreement to sell clearly A
indicates that the plaintiff has agreed to perform his part of
the contract by paying balance consideration amount of Rs.
63,000/-within nine months. This clause falls within the first
part of Article 54 of the Limitation Act, 1963. In support of this
contention learned counsel for defendant Nos. 12 to 15 has B
placed strong reliance upon the judgments of this Court. It would
be suffice to refer to the case of Gomathinayagam Pillai and
Ors. vs. Palaniswami Nadar, AIR 1967 SC 868. Para 9 of the
said judgment reads as under:
                                                                    c
  "9. The Trial Judge apparently confused two independent
  issues one of default in performance of the contract by
  the respondent and the other of readiness and willingness
  of the respondent to carry out his part of the contract. As
                                                                    D
  observed earlier, if time is not of the essence of the
  contract, default occurs when a party serves a notice
  making time of the essence and requires the other party
  within a reasonable time fixed by the notice to carry out
  the terms of the contract, and the party served with the          E
  notice fails to comply with the requisition. In this case no
  such notice was served, and from the mere delay in
  calling upon appellants 1 & 2 to complete the contract,
  default on the part of the respondent cannot be inferred.
  But the Trial Court also came to the conclusion that the          F
  conduct of the respondent as evidenced by his statement
  and his witnesses proved that he was not ready and
  willing to perform his part of the contract. This the Court
  inferred from the delay of three months after April 30,
  1959 and the evidence given by the respondent to explain          G
  that delay and other circumstances."

The other judgments relied upon by the learned counsel
reiterate the same proposition. It would be worthwhile to extract
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68       SUPREMECOURTREPORTS                      [2015] 5 S.C.R.


A paragraph No. 22 of the judgment in the case of Chand Rani
  (D) by Lrs. vs. Kamal Rani (D) by Lrs., (1993) 1 SCC 519,.
  which reads as follows:

     "22. In Hind Construction Contractors case (1979) 2
B    SCC 70) quoting Halsbury's Laws of England, this Court
     observed at pages 1154-55 as under:

     "In the latest 4th edn. of Halsbury's Laws of England in
     regard to building and engineering contracts the
c    statement of law is to be found in Vol. 4, Para 1179,
     which runs thus:

     '1179. Where times is of the essence of the contract. -
     The expression time is of the essence means that a
D    breach of the condition as to the time for performance
     will entitle the innocent party to consider the breach as a
     repudiation of the contract. Exceptionally, the completion
     of the work by a specified date may be a condition
     precedent to the contractor's right to claim payment. The
E    parties may expressly provide that time is of the essence
     of the contract and where there is power to determine
     the contract on a failure to complete by the specified
     date, the stipulation as to time will be fundamental. Other
     provisions of the contract may, on the construction of
F    the contract, exclude an inference that the completion
     of the works by a particular date is fundamental; time
     is not of the essence where sum is payable for each
     week that the work remains incomplete after the date
     fixed, nor where the parties contemplate a
G
     postponement of completion.

          Where time has not been made of the essence of
     the contract or, by reason of waiver, the time fixed has
     ceased to be applicable, the employer may by notice
H
       PADMAKUMAR & ORS. v. DASAYYAN & ORS.                      69
              [V. GOPALAGOWDA, J.]

   fix a reasonable time for the completion of the work          A
   and dismiss the contractor on a failure to complete by
   the date so fixed.'      (emphasis supplied)

        It will be clear from the aforesaid statement of law
   that even where the parties have expressly provided that      B
   time of the essence of the contract such a stipulation will
   have to be read along with other provisions of the
   contract and such other provisions may, on construction
   of the contract, exclude the inference that the completion
   of the work by a particular date was intended to be           c
   fundamental; for instance, if the contract were to include
   clauses providing for extension of time in certain
   contingencies or for payment of fine or penalty for every
   day or week the work undertaken remains unfinished on
                                                                 D
   the expiry of the time provided in the contract such
   clauses would be construed as rendering ineffective the
   express provision relating to the time being of the
   essence of contract.. The emphasis portion of the
   aforesaid statement of law is based on Lamprell v.            E
   Billericay Union [(1849) 3 Exch 283, 308]; Webb v.
   Hughes [(1870) LR 10 Eq 281] and Charles Rickards
   Ltd. v. Oppenheim.[ [1950] t K.B. 616]."

           16. The said legal contention urged on behalf of F
  defendant Nos. 12 to 15 has been strongly rebutted by learned
  counsel on behalf of the plaintiff contending that the question
  of payment of balance consideration amount of Rs. 63,000/-
  within nine months would have arisen after the terms and
  conditions of the contract agreed upon by defendant Nos. 1 to G
  11 if they had measured the suit schedule property. They have
· not discharged their part of the contract stipulated in the
  agreement to sell, therefore, it is urged by him that time was
  not the essence of the contract as defendant Nos. 1 to 11
                                                                 H
70         SUPREME COURT REPORTS                     [2015] 5 S.C.R.

A themselves have failed to perform their part of the agreement.

             17. The said contention urged on behalf of the plaintiff
     is unacceptable to us that the question of taking measurement
     would not arise before the plaintiff perform his part of the
B    contract regarding the balance consideration within the period
     stipulated in the agreement. Undisputedly, that had not been
     done by the plaintiff in the instant case within the stipulated
     time and the notice was issued by the plaintiff only after one
     year, therefore, the plaintiff has not adhered to the time which
C    is stipulated to pay the balance consideration amount to
     defendant Nos. 1 to 11 which is very important legal aspect
     which was required to be considered by the Courts below at
     the time of determining rights of the parties and pass the
     impugned judgment. The Courts below have ignored this
0
     important aspect of the matter while answering the contentious
     Issue Nos. 1 and 2 in favour of the plaintiff and granted decree
     of specific performance in respect of the suit schedule property.
     The said finding of fact is contrary to the terms and conditions
E    of the agreement, pleadings and the evidence on record.
     Accordingly, we answer the said issues in favour of defendant
     Nos. 12 to 15 after setting aside the concurrent finding of fact
     recorded by the High Court.

F         18. The second important legal contention raised by
  defendant Nos. 12 to 15 is that the pleadings of the plaintiff is
  not in conformity with Order 6 Rule 3 CPC, clause 3 of Form
  No. 47 in Appendix 'A', extracted hereinabove. By a careful
  reading of paragraph 6 of the plaint makes it very clear that
G the averment as provided under clause 3 is not in stricto sensu
  complied with by the plaintiff. The same is evidenced from the
  averments made at paragraph 6 of the plaint which reads thus:

        "6. The plaintiff is ready and willing to perform his part of
H       the contract by paying the balance of sale consideration
      PADMAKUMAR & ORS. v. DASAYYAN & ORS.                        71
             [V. GOPALAGOWDA, J.]

   of Rs. 63,000/-and take the sale deed in accordance             A
   with the provisions of the agreement deed dated
   19.04.1992."

        19. Upon a careful reading of the abovesaid paragraph
we have to hold that the plaintiff has not complied with the legal B
requirement which is mandatory as provided under Section
16 (c) of the Specific Relief Act. Section 16(c) fell for
consideration and has been interpreted by this Court in a
number of cases, referred to supra, upon which reliance has
rightly been placed and the said decisions are applicable to C
the fact situation in support of defendant Nos. 12 to 15 and,
therefore, we have to hold that the concurrent finding of fact
recorded by the High Court on Issue No. 1 is erroneous in law
and is liable to be set aside.
                                                                   D
         20. The last contention urged is whether defendant Nos.
 12 to 15 (the appellants herein) are protected under Section
 19(b) of the Specific Relief Act as they being the bona fide
purchasers. Learned counsel for defendant Nos. 12 to 15 has
rightly invited our attention that the non-compliance of the E
contract regarding payment of balance consideration to
defendant Nos. 1 to 11 on the part of the plaintiff within nine
months is an undisputed fact and further the agreement of sale
is not registered, as is evidenced from the encumbrance F
certificate obtained by defendant Nos. 12 to 15 before they
entered into an agreement (Exhibit 8-1 ). Both the Courts below
have erroneously recorded an erroneous finding on the non
existent fact holding that the agreement of sale in favour of the
plaintiff is a registered document which, in fact, is not true. The G
same is evidenced from the encumbrance certificate. More
so, defendant Nos. 12 to 15 before entering into the agreement
with defendant Nos. 1 to 11 have made proper verification from
the competent authority to purchase the part of the suit schedule
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72          SUPREME COURT REPORTS                 [2015] 5 S.C.R.


A property and got the agreement of sale (Exhibit B-1) executed
  in their favour, from defendant Nos. 1 to 11 and thereafter, they
  got the sale deed registered by paying sale consideration
  amount. As could be seen from the agreement of sale and
  registered sale deed, which is marked as Exhibit B-3, it is
B very clear that defendant Nos. 12 to 15 have paid the sale
  consideration amount of the property, therefore, the reliance
  placed upon Section 19(b) of the Specific Relief Act as they
  being the bona fide purchasers, the specific performance of
C contract cannot be enforced against the transferees. Defendant
  Nos. 12 to 15 being the transferee as they have purchased
  the suit schedule property for value and have paid the money
  in good faith and without notice of the original contract.

          21. In view of the aforesaid facts, the purchase of the
D suit schedule property by defendant Nos. 12 to 15 for a valuable
  consideration is established by the above defendants by
  adducing evidence on their behalf before the trial court. Both
  the Courts below have omitted to consider this important piece
E of pleadings as also the material evidence on record thereby
  the concurrent finding recorded on the contentious issues has
  been rendered erroneous in law and is liable to be set aside.
  Accordingly, we answer the said issues in favour of defendant
  Nos. 12to15.
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          22. For the reasons stated supra, defendant Nos. 12
  to 15 (appellants herein) must succeed.Accordingly the appeal
  is allowed, the impugned judgments and decrees of the High
  Court and the trial court are hereby set aside and the suit is
G dismissed. There shall be no order as to costs.

     Kalpana K. Tripathy                             Appeal allowed.




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