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TMI Blog2005 (4) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... a contention that the transaction was of mortgage and the sale stood redeemed and he was discharged from the debt. He moreover prayed for a decree for accounting, but contended that only in the event, such prayer is not granted, he was ready to pay the defendants the said sum of ₹ 45,000/- The averments made in the pleadings must be construed reasonably and so read the statement made as regard purported readiness and willingness to pay the stipulated amount to the defendants according to the conditions mentioned in the agreement cannot be read in isolation. It is now well-settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required u/s 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-Respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. Power of the Appellate Court in intra co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgage filed an application purported to be under Sections 4(e) and 7(f) before the competent authority under the Maharashtra Debt Relief Act, inter alia, for a declaration that he is a 'debtor' thereunder and his debt should be discharged. While the said application was pending, a notice was sent by the plaintiff-Respondents to the Appellants herein wherein the aforementioned transaction was said to be a mortgage. A plea was raised therein that the said debt stood discharged under the provisions of the Maharashtra Debt Relief Act. It was contended that the First Appellant herein had already received more than ₹ 50,000/- out of the income from the said property by way of rent. Despite the same, the Appellants asked for specific performance of the said agreement of re-conveyance. In her reply, the First Appellant offered to reconvey the property on receipt of a further sum of ₹ 4,646/-, which allegedly was spent by her towards repairs of the house. Thereafter, the suit was filed by the Respondents herein in the Court of Civil Judge, Senior Division at Kolhapur on 30.12.1978 which was marked as Civil Suit No.1 of 1979. The Respondents in their plaint raised a plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtgage relief be made in the name of the plaintiff by the defendant on denial it should be done through the court and possession of suit property be given to the plaintiff. (f) The Plaintiff be allowed to amend or alter the plaint, if necessary. The Appellants, however, in their written statement denied and disputed the contentions raised in the Plaint. It was averred that the transaction was for a sale with an agreement of reconveyance. The Appellants denied and disputed that the First Respondent was 'ready to act as per the agreement'. It was contended that he never offered any amount to the Appellants. It was further contended : But plaintiff did not take any steps to reconvey the sale deed as per the notice of the plaintiff. But the plaintiff did nothing. So the Plaintiff has committed a breach of agreement and on that count suit may kindly be dismissed. On the contrary Plaintiff had taken a stand that the suit transaction is mortgaged and from rent received the amount has been satisfied such a wrong and false stand was taken by the Plaintiff. Also before the Tahsildar proceeding was initiated saying that the property is redeemed (Property is released from the debt) fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay if any amount was found due on taking accounts. In my judgment, the aforesaid rival pleas set up by the plaintiffs disentitle them to a decree for specific performance. By setting up these rival pleas they have exhibited their unwillingness to make an unconditional offer to pay which was a pre-requisite condition in the agreement of reconveyance where it was provided that, if after the period of 7 years and within the period of 9 years, the plaintiff paid the amount of ₹ 45,000/- along with incidental charges of the sale deed, the defendants would reconvey the property The Division Bench of the High Court, however, by reason of the impugned judgment reversed the said findings holding that although evidences were led to show that the amount of ₹ 45,000/- paid by the Appellants to the Respondents was a loan but having regard to Section 58(c) of the Transfer of Property Act, the document could not be construed to be a deed of mortgage. The Division Bench differed from the learned Single Judge and the learned Trial Judge on their finding as regard valuation of the property holding that the Respondents had proved that the sale-deed was under- valued, observing : From th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 968) 3 SCR 648], Mahabir Prasad Jain vs. Ganga Singh [(1999) 8 SCC 274], Pushparani S. Sundaram and Others vs. Pauline Manomani James (Deceased) and Others ([(2002) 9 SCC 582], Manjunath Anandappa Urf Shivappa Hanasi vs. Tammanasa and Others [(2003) 10 SCC 390] and Pukhraj D. Jain and Others vs. G. Gopalakrishna [(2004) 7 SCC 251]. Mr. Bhasme would submit that the Division Bench had wrongly interfered with the concurrent findings of fact arrived at by the two courts. Mr. A.V. Sawant, the learned Senior Counsel appearing on behalf of the Respondents, on the other hand, would contend that there is no limitation as regard exercise of jurisdiction by a Division Bench of the High Court while entertaining a Letters Patent Appeal as in such an appeal, the Court is entitled to consider the questions of both fact and law. Reliance, in this behalf, has been placed on Smt. Asha Devi vs. Dukhi Sao and Another [(1974) 2 SCC 492]. Mr. Sawant would submit that the plea that a transaction is a mortgage vis-`-vis an ostensible sale cannot be said to be fraudulent nor dishonest which would debar the court from granting an equitable relief for specific performance of contract. The learned counsel wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. [See Pandit Chunchun Jha vs. Sheikh Ebadat Ali and Another (1955) 1 SCR 174, Shri Bhaskar Waman Joshi and Others vs. Shri Narayan Rambilas Agarwal (deceased) and Others (1960) 2 SCR 117], K. Simrathmull vs. Nanjalingiah Gowder, AIR 1963 SC 1182; Mushir Mohammed Khan (supra); and Tamboli Ramanlal Motilal (supra)], The plaintiff in a suit for specific performance of contract may raise an alternative plea that the transaction is a mortgage by way of conditional sale but he must be ready and willing either to repay the debt or pay the amount of consideration as agreed upon. In the instant case, the First Respondent herein, however, raised a specific plea that he was a debtor and that the deed of mortgage was executed only because the Appellants were not licensed money lenders. He not only approached the competent authority under the Maharashtra Debt Relief Act for a declaration that he was a debtor and stood discharged from his debt, but also in the plaint he sought for a decree for possesion of the suit land on the premise that the provisions of the Maharashtra Debt Relief Act were attracted. He even asked for a decree of accounting. It may be true that the plaintiff had made alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pleadings must be construed reasonably and so read the statement made as regard purported readiness and willingness to pay the stipulated amount to the defendants according to the conditions mentioned in the agreement cannot be read in isolation. In his examination-in-chief although he stated : I am and I was ready to pay the consideration as per the agreement. I am ready to pay the consideration amount of ₹ 45,000/-. I was also ready to pay the said sum. I am also ready to pay the costs of the registration of the sale deed . but in his cross-examination, he admitted : I am not doing any business or work, since last 10 years. I have no source of income. I have no bank account. I am not to receive any amounts from any one. I have no amount with me. I am money less since last 10 years. At the time of giving notice (9.6.1978) I have no my own accounts. It is not true to say that I was never ready and willing to pay the sums of the defendants, for the reconveyance of the suit house. The learned trial Judge further noticed the following statement of te plaintiffs in paragraph 18 of the cross-examination : It is my prayer in the suit that the suit property is to redeemed withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain sequence. Therein it was found that certain arrangements had been made by the Respondent therein for paying the amount due. It was held that so long as Nathulal did not carry out his part of contract, Phoolchand could not be called upon to pay the balance of the price and it was in that situation held that latter at all relevant time was ready to perform his part of contract. The said decision also has no application in the instant case. In Smt. Indira Kaur (supra), this Court merely held that for determining the question as regard readiness and willingness on the part of the plaintiff to perform his part of contract, the Court must examine the position of both the parties. This Court did not say, as was submitted by Mr. Sawant, that the conduct of both the parties must be taken into consideration. In that case, the defendant's contention that he had not received the notice of the plaintiff was held to be incorrect, as despite his alleged receipt of notice, he admitted to have visited the Sub-Registrar's office on 16.8.1977. In that situation it was held that the defendant was not ready and willing to perform his part of contract. It was held that as of fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has to pay to the defendant must of necessity be proved to be available... Yet again in Manjunath Anandappa (supra), this Court held : 27. The decisions of this Court, therefore, leave no manner of doubt that a plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made by the plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with. In Pukhraj D. Jain (supra), it was held : 6. Section 16(c) of the Specific Relief Act lays down that specific performance of a 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 perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court, thus, posed a wrong question unto itself. It also failed to take into consideration the statement of the plaintiff in his cross-examination and in particular paragraphs 12 and 19 thereof in their proper perspective. The statements made by the plaintiff before the court, if read as a whole would clearly show that he was neither in a position to raise any fund. He proceeded on the basis that he was not required to pay any amount. The Division Bench furthermore misdirected itself in holding : The test would be whether the Plaintiff was in a position to pay the money on direction by the court and not whether he had the money. No such question was ever put to him to suggest that if he was called upon by the Court to deposit the money, he had no means to deposit the money or make it available for deposit. It was for the plaintiff to prove his readiness and willingness to pay the stipulated amount and it was not for the Appellants to raise such question. The Division Bench furthermore considered irrelevant facts in holding that the plaintiff deposited the amount of ₹ 60,000/- in the Court of Appeal to arrive at the conclusion that the plaintiff-Appellant was ready a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty from his own observation. For this reason they would be reluctant to differ from the learned Judge in this instance if his conclusion on the issue under consideration had turned on the impression made by Jamsetji in the witness- box . Yet in Manjunath Anandappa (supra), it was held : It is now also well settled that a court of appeal should not ordinarily interfere with the discretion exercised by the courts below. The question also came up for consideration in Collector of Customs, Bombay vs. Swastic Woollens (P) Ltd. and Others [(1988) Supp. SCC 796] An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under Section 130-E of the Act though in relation to the rate of duty of customs or to the value of the goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the na ..... 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