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TMI Blog2009 (2) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... , the original defendant. An agreement of sale was entered into by and between the appellant and the said Ramesh Chand Khanna in terms whereof the suit land was agreed to be sold at the rate of ₹ 325/- per sq. yd. A sum of ₹ 30,000/- was paid by way of advance. 4. It now stands admitted that on or about 7.12.1981, an application was filed in terms of Section 27 of the Urban Land Ceiling and (Regulation) Act, 1970. The said application was rejected. It is also not in dispute that a suit was filed by one Bahadur Hussain against the original defendant. The said suit was decreed in favour of the said Shri Bahadur Hussain. 5. Defendant Nos. 5 and 6 entered into a deed of sale dated 31.10.1981 with the said Ramesh Chand Khanna (since deceased) for a land measuring 217 sq. yds. for a consideration calculated at the rate of ₹ 48,000/- per bigha wherefor negotiation had to be entered into for settlement of the dispute by and between Ramesh Chand Khanna and the said Bahadur Hussain. Only after execution of the deed of sale, a notice was issued by the appellant asking Shri Khanna to execute a deed of sale in his favour. The suit for specific performance was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A1, agreement of sale? 2) Whether sixth defendant is bona fide purchaser of the suit schedule property having paid her consideration in good faith and without notice of the original contract? And 3) Whether the discretion of this Court ought not to be exercised in favour of the plaintiff for specific performance of Ex.A1? 7. The Court in a suit for specific performance of contract is required to pose unto itself the following questions, namely: (1) Whether the agreement of sale is valid and binding on both the vendor and the vendee; and (2) Whether the plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963 (hereinafter referred to for the sake brevity as `the Act'). 8. It was, however, held that readiness and willingness on the part of the plaintiff to perform her part of contract having been conveyed in a telegraphic notice (Exhibit A3); it was obligatory on the part of the plaintiff --appellant to examine herself in the suit and as she did not examine herself, the legal requirements envisaged under Section 16(c) of the Act cannot be said to have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d without notice in as much as DW1 categorically stated that defendant No. 1 had no knowledge of the said agreement for sale. So far as the third point which fell for determination of the learned Judge of the High Court is concerned, it was held that as the 6th defendant had purchased the property as far back as on 31.10.1981 and had been in possession enjoyment thereof for more than 30 years, it was not a case where the discretionary jurisdiction in terms of Section 20 of the Act should be exercised in her favour. 9. Mr. Uday .U. Lalit, learned senior counsel appearing on behalf of the appellant, in support of this appeal would urge: 1) It was not necessary for the plaintiff to examine herself as her husband who was her General Power of Attorney holder was examined and particularly having regard to Section 120 of the Indian Evidence Act. 2) For the purpose of establishing the plea of readiness and willingness on the part of the vendee, it was not necessary to prove that she had enough liquid cash in her hand inasmuch as for the said purpose it would be sufficient to show that she could arrange such an amount for payment of consideration at the appropriate stage. 3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a a period of three years wherefrom it would be evident that he was not at all material times ready and willing to perform his part of contract. 11. Execution of the agreement and/or genuineness thereof is not in question. Plaintiff indisputably in view of Section 16(c) of the Specific Relief Act, 1963 was required to make requisite averments that she had all along been and still is ready and willing to perform her part of the contract and also establish the same. Shri Khanna in his written statement took a specific defence that as the property was in litigation, plaintiff developed cold feet and did not evince any interest to complete the sale transaction by paying the balance of sale consideration. Even after selling the property, allegedly, the plaintiff's representative was asked to take back the amount of ₹ 30,000/-. 12. We would, at this stage, notice the averments made in the said agreement for sale dated 4.12.1978: (i) That after obtaining the permission from Ceiling Officer, I shall execute registration in favour of the Purchaser within 2 months. It shall be my responsibility to obtain the permission from the Ceiling Office. (ii) That the sale p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the name of the purchaser was not disclosed but then it was open to the plaintiff to ask for other and better particulars of the said statements. Why she had to wait for a period of more than three years for impleading the subsequent purchasers as parties has not been explained. Even an application for injunction was filed only in September 1985. According to her husband, she came to learn about the sale of property in the name of defendant No. 5 only on 29.9.1986. Why an inquiry was not made in the Registration Office although the deed of sale was a registered one again defies anybody's comprehension. Readiness and willingness on the part of the plaintiff, therefore, is required to be considered from the aforementioned backdrop of events. 17. Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; 18. It is also a well settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. [See Ram Awadh (Dead) by LRs. and Ors. v. Achhaibar Dubey and Anr. [2000]1SCR566 ] 19. We are, however, in agreement with Mr. Lalit that for the aforementioned purpose it was not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof. It may also be correct to contend that only because the plaintiff who is a Muslim lady, did not examine herself and got examined on her behalf, her husband, the same by itself would lead to a conclusion that she was not ready and willing to perform her part of contract. 20. If the plaintiff has failed to establish that she had all along been ready and willing to perform her part of contract, in our opinion, it would not be necessary to enter into the question as to whether the defendant Nos. 5 and 6 were bona fide subsequent purchasers for value without notice or not. 21. Furthermore, grant of decree for specific performance of contract is di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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