TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS.versusKALLI RAJA RAO (DEAD) BY LRS. & ORS.

                        [2014] 7 S.C.R. 688


A       TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS.
                                  V.
           KALLI RAJA RAO (DEAD) BY LRS. & ORS.
             (Civil Appeal Nos. 6071-6072 OF 2007)

                      SEPTEMBER 08, 2014
B
          [SUDHANSU JYOTI MUKHOPADHAYA AND
                 PRAFULLA C. PANT, JJ.]

        SPECIFIC PERFORMANCE : Suit for specific
C performance - Clause 16(c) of the Specific Relief Act, 1963
  provides that specific performance of contract cannot be
  enforced in favour of a person 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
D performed by him, other than those terms, the performance
  of which has been prevented or waived by the defendant - In
  the instant case, there was concurrent finding of fact against
  the appellant by both the courts below that the appellant failed
  to prove that he had been ready and willing to perform his part
E of the contract - Suit for specific performance of contractwas
  filed by the appellant after a period of seven years, and it was
  not proved that the appellant had been always ready and
  willing to perform his part of contract - As such, he is not
  entitled to the relief of specific performance of contract -
F Specific Relief Act, 1963 - s.16(c).

       The respondent agreed to sell the suit property for
  Rs. 80,0001-. The agreement of sale disclosed that the
  respondent had taken a loan of Rs. 20,000/- in the year
  1969 and as he could not repay the loan he decided to
G sell his land and the appellant agreed to repay the loan
  amount due from the respondent to the Bank. The
  appellant though made certain payments but failed to
  repay the entire loan amount. The Bank filed a recovery
  suit. In the said suit, the appellant got himself impleaded
H                              688
 , TELIKICHERLASESIBHUSHAN (DEAD) BY LRS. v. KALLI      689
              RAJA RAO (DEAD) BY LRS.
as party. The recovery suit was decreed.                        A

    As the appellant did not fulfill the commitment made
by him regarding the repayment of the loan amount, the
respondent filed a suit against him for recovery of
possession of land which he had delivered to him at the         8
time of agreement of sale. The appellant filed a suit after
seven years of agreement against the respondent for
specific performance of contract.

     The suit by the respondent was dismissed and the
suit filed by the appellant for specific performance of         C
contract was partly allowed with direction to pay back the
amount paid by him towards repayment of loan. The High
Court set aside the order of the trial court pertaining to
suit for possession filed by the respondent. The order of
the trial court relating to the suit for specific performance   D
was upheld. The instant appeals were filed challenging
the order of the High Court.

    Dismissing the appeals, the Court

     HELD: 1. There was concurrent finding of fact              E
against the appellant by both the courts below that the
appellant failed to prove that he had been ready and
willing to perform his part of the contract. Since the
appellant failed to repay the entire loan amount in terms
of the agreement, and the suit filed by the Bank against        F
the debtor for recovery of remaining amount of loan was
decreed, as such, there was ample evidence on record
to hold that the appellant failed to perform his part of
contract, as such, it cannot be said that he is entitled to
the relief of specific performance of contract. The suit for    G
specific performance of contract was filed by the
appellant after a period of seven years, and it is not
proved on the record that the appellant had been always
ready and willing to perform his part of contract. [Para 4]
[693-F-H; 694-A]                                                H
    690      SUPREME COURT REPORTS             (2014] 7 S.C.R.


A      2. Clause 16(c) of the Specific Relief Act, 1963
  provides that specific performance of contract cannot be
  enforced in favour of a person 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
B which are to be performed by him, other than terms the
  performance of which he has been prevented or waived
  by the defendant. In the instant case, due to the failure
  on the part of the appellant to repay the loan in terms of
  the agreement and further considering the fact that not
c only the suit filed by the creditor Bank was decreed
  against the debtor but it attained finality, the Courts below
  have committed no error of law in refusing to decree the
  suit of the appellant for specific performance of contract.
  There is concurrent finding of fact and the same is
D evident from the record that the appellant has failed to
  perform his part of contract. The courts below have not
  erred in law in not granting the relief of specific
  performance of contract to the appellant. [Paras 5, 7] [694-
  B-D; 695-G-H; 696-A]

E       Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC
    534: 2005 (3) Suppl. SCR 440 - held inapplicable.

                        Case Law Reference:

          2005 (3) Suppl. SCR 440     Held           Para 6
F                                     Inapplicable

        CIVIL APPELLATE JURISDICTION : Civil Appeal
    Nos.6071-6072 of 2007.

      From the Judgment and Order dated 15.06.2007 of the
G High Court of Andhra Pradesh in Appeal Suit No.2652 and
  2052 of 1996.

      R. Basant, G. Ramakrishna Prasad, Suyodhan
  Byrapaneni, Wasay Khan, Bharat J. Joshi, Filza Moonis, Kartik
H Ashok for the Appellants.
  TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS. v. KALLI        691
             RAJA RAO (DEAD) BY LRS.

      B. Adinarayana Rao, Adinarayana Rao, D. Bharat Kumar,     A
. Sayooj.Mohandas M,. Abhijit Sengupta, Dharmendra Kumar
 iSinha, Vikramjit Banerjee, P.S. Sudheer, Rishi Maheshwari,
  Bharat Sood, Raj Kumar Kaushik, S. Udaya Kumar Sagar,
  Bina Madhavan, Shivendra Singh, Lawyer's Knit & Co. for the
  Repondents.                                                   B

     Respondents in Person.·

     The Judgment of the Court was delivered by

      PRAFULLA C.PANT, J. 1. These two appeals are              C
 directed against the common judgment and order dated 15th
 June, 2007 passed by the High Court of Andhra Pradesh in
 Appeal Suit Nos.2652 and 2052 of 1996.

     2. We have heard learned counsel for the parties and
 perused the papers on record.                                   D

      3. The factual matrix of the case is that respondent- Kalli
 Raja Rao (since dead) agreed to sell the property measuring
 an area of Ac.19.96 cents situated at Pulla village of Eluru Taluk
 for an amount of Rs.80,000/- (Rupees eighty thousand only) E
 under the agreement of sale ( Ex.A/1) dated 10th May, 1980.
 The said agreement discloses that respondent- Kalli Raja Rao
 had taken a loan of Rs.20,000/- (Rupees twenty thousand only)
 from the State Bank of India, Eluru Branch, in the year 1969
 and he could not repay the loan, as such, he intended to sell' . F
 his land, and the present appellant- Telikicherla Sesibhushan
 agreed to repay the loan amount with interest due from Kalli
 Raja Rao, to the Bank. It appears that the appellant though
 made certain payments but failed to repay th.e entire loan
 amount with interest. Consequently, the Bank instituted a suit G
 being O.S.No.208 of 1981 against the debtor for recovery of
 the amount before the Subordinate Judge, Eluru. Later, in the
 said suit the present appellant got himself impleaded as a party.
 The suit filed by the Bank for recovery of Rs.46,408.85 was
 decreed with interest ort31st December, 1986 and the same H
     692         SUPREME COURT REPORTS                [2014] 7 S.C.R.

 A attained finality. Since the commitment made by the appellant
    was not fulfilled by him regarding the repayment of the loan
   amount, as such, Kalli Raja Rao filed suit being O.S. No.28 of
    1985 before the Subordinate Judge, Eluru against the appellant
   for recovery of possession of land which he had delivered to
 a  him at the time of aforesaid agreement of sale. On this, the
   appellant appears to have filed O.S.No.37 of 1985 after a
    period of seven years of agreement against Kalli Raja Rao for
   specific performance of contract, before the Subordinate Judge,
    Eluru. Both the suits i.e. O.S.No.28 of 1985 and O.S.No.37 of
   1985 were disposed of vide common judgment and order
 C dated 12th June, 1996. The concluding part of the said
   judgment and order of the trial court reads as under:

           " 26. In the result, O.S.No.28/85 is dismissed. The court
           fee payable on the plaint in O.S.No.28/85 shall be collected
 D         from out of the estate of late Rajarao which will come into
           the hands of his legal heirs, Plaintiffs 2 to 10. O.S.No.37/
           85 is partly allowed with the following conditions:-

            1.    The Defendants 2 to 10 shall deposit an amount of
.E                Rs. 71,552-45 paise in the court within three months
                  from today, and the plaintiff is entitled to withdraw
                  the above amount to be deposited in the court.

            2.    The plaintiff shall surrender the possession of the
                  plaint schedule properties of the Defendants 2 to
F                 10 within one month from the date of deposit of
                  Rs.71,552-45 paise to be made by the Defendants
                  2 to 10 in the Court.

        · In view of the relationship between the parties and in view
G         of the present facts of the case, I am not inclined to make
          any order as to costs. in both the suits."

         From the above quoted para it is clear that the suit filed
     by Kali Raja Rao was dismissed, and the suit filed by the
     appellant for specific performance of contract was not decreed
H
  TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS. v. KALLI              693
   RAJA,RAO (QEAD) BY LRS. [PRAFULLA C. PANT, J.]
but the amount paid by him towards repayment of loan was                A
directed to be paid back to him. It appears that both the parties
preferred appeals against the aforesaid judgment and decree
passed by the trial court, and the same were disposed of
together by the High Court witn the following concluding
paragraph:                                                              B

    " 51. In the result, A.S. 2052 of 1996 is dismissed
    confirming the decree and judgment in O.S. 37of1985 of
    the trial Court. A.S.2652 of 1996 is allowed, and
    consequently O.S.28 of 1985 is decreed subject to fulfilling        C
    of conditions imposed in the decree in O.S.37of1985 the
    vendors are entitled to possession on deposit of amount
    as directed by the trial Court. The vendors are entitled to
    mesne profits to be determined on a separate application
    to be filed before the trial Court. The vendors are entitled
    to mesne profits to be determined on a separate                     D
    application to be filed before the trial Court from the date
    of suit O.S.28 of 1985 till the date of possession.
    However, while evaluating mesne profits the amounts
    deposited by virtue of this Court's order namely Rs.50,000/
    - per year should be given effect to. The vendors are               E
    entitled to withdraw the amounts deposited by the vendee
    pursuant to the orders of this Court."

      4. It is clear from the record that there is concurrent finding
of fact against the present appellant by both the courts below          F
that the appellant failed to prove that he had been ready and
willing to perform his part of the contract. Having gone through
the papers on record, we find that since the present appellant
failed to repay the entire loan amount in terms of the agreement,
and the suit filed by the Bank against the debtor for recovery          G
of remaining amount of loan was decreed, as such, there was
ample evidence on record to hold that the appellant failed to
perform his part of contract, as such, it cannot be said that he
is entitled to the relief of specific performance of contract. It is
pertinent to mention here that the suit for specific performance        H
    694       SUPREME COURT REPORTS                 [2014] 7 S.C.R.


A of contract was filed by the plaintiff/appellant after a period of
  seven years, and it is not proved on the record that the plaintiff
  had been always ready and willing to perform his part of
  contract.

       5. Clause (c) of the Specific Relief Act, 1963 provides that
8
  specific performance of contract cannot be enforced in favour
  of a person 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 he has been prevented
C or waived by the defendant. In the present case, as discussed
  above, due to the failure on the part of the appellant to repay
  the loan in terms of the agreement dated 10th May, 1980
  (Ex.A.1) and further considering the fact that not only the suit
  being O.S.No.208 of 1981 filed by the creditor Bank was
D decreed against the debtor but it attained finality, the Courts
  below have committed no error of law in refusing to decree the
  suit of the appellant for specific performance of contract.

       6. In the case of Aniglase Yohannan vs. Ramlatha & Ors.
E (2005) 7 SCC 534 in which reliance has been placed on behalf
  of the appellant, it has been held that where from the pleadings
  and evidence of the parties it is manifest that the plaintiff was
  ready and willing to perform his part of the contract, the relief
  of specific performance may not be denied to him. Relevant
F parts of paragraph 9 and 12 of the said judgment read as under:

          "9. The requirements to be fulfilled for bringing in
          compliance with Section 16(c) of the Act have been
          delineated by this Court in several judgments. Before
          dealing with the various judgments it is necessary to set
G         out the factual position. The agreement for sale was
          executed on 15-2-1978 and the period during which the
          sale was to be completed was indicated to be six months.
          Undisputedly, immediately after the expiry of the six-
          months' period, lawyer's notice was given calling upon the.
H         present appellant to execute the sale deed. It is also
 TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS. v. KALLI         695
  RAJA RAO (DEAD) BY LRS. [PRAFULLA C. PANT, J.]
    averred in the plaint that the plaintiff met the defendant A
    several times and requested him to execute the sale deed.
    On finding inaction on his part, the suit was filed in
    September 1978. This factual position has been
    highlighted in the plaint itself. The learned Single Judge
    after noticing the factual position as reflected in the B
    averments in the plaint came to hold that the plaint contains
    essential facts which lead to inference to the plaintiffs
    readiness and willingness. Para 3 of the plaint indicates
    that the plaintiff was always ready to get the sale deed
    prepared after paying necessary consideration. In para 4 c
    of the plaint, reference has been made to the lawyer's
    notice callin upon the defendant to execute the sale deed.
    In the said aragraph it has also been described as to how
    after the I    er'~ notice was issued the plaintiff met the
    defendant In pa/a 5 it is averred that the defendant is bound
                                                                  0
    to e~ecu e the ,Sale deed on receiving the balance amount
  · and th plaintiff was entitled to get the document executed
    by the defendant. It is also not in dispute that the balance
    amount of the agreed consideration was deposited in court
    simultaneously to the filing of the suit. ·      ·
                                                                  E
    Xx                          xx               xx
    12. 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 F
    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 G
    perusal of the plaint he should not be denied the relief."

     7. But in the present case, there is concurrent finding of
fact and the same is evident from the record that the plaintiff
(present appellant) has failed to perform his part of contract,
as such, in our opinion, above case law is of little help to the H
    696       SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A   plaintiff/appellant, and the courts below have not erred in law
    in not granting the relief of specific performance of contract to
    the plaintiff in OS.No.37 of 1985.

         8. For the reasons as discussed above, we find no illegality
    in the judgment and orders challenged before us. Accordingly,
8   both the appeals are dismissed with costs.
    Devika Gujral                                  Appeals dismissed.