9911796707
TMI Blog1999 (8) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 appellant's 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. 3. The appellant-plaintiff filed a suit for specific performance of an agreement to sale dated 11th August, 1960. According to the plea, defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accordingly received a sum of ₹ 3680.00...from the plaintiff and has endorsed the same on the agreement on 21.12.1965. He has further received ₹ 100.00 on 21.3.1966 and ₹ 100.00 on 4.5.1966 and in all ₹ 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 ₹ 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 ₹ 120.00 under R.O. No. being the balance due to the defendant Learned counsel submits this pleading clearly revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit this amount only under the direction of the court, which is not in the present case. 9. 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 one's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot dissolve an essence if already pleaded. 10. 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 ₹ 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? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant 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. 12. 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 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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