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TMI Blog2025 (4) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ri ("original defendant" / "seller") was allotted the subject property by the People's Cooperative House Construction Society Limited ("Society") vide a registered sub-lease dated 2nd April 1968. 3.2. On 25th January 2008, an unregistered Agreement to Sell with respect to the subject property was executed between the "Respondent No.1-buyer"-plaintiff and the seller for a total sale consideration of Rs. 25,00,000/- (Rupees Twenty Five Lakhs). At the time of the execution of the Agreement to Sell, the Respondent No.1- buyer paid a sum of Rs.2,51,000/- (Rupees Two Lakh Fifty One Thousand) in cash to the seller and issued three post-dated cheques worth Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand). 3.3. It is the case of Respondent No.1-buyer that when she visited the subject property along with her husband on 11th February 2008, the tenants of the seller created a scuffle and forced them to return. In the circumstance, the Respondent No.1-buyer issued legal notices dated 23rd February 2008 and 23rd April 2008, expressing her intention to pay the balance sale consideration and to get the property registered in her favour. 3.4. Upon the failure of the seller to execute the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior counsel for the appellant, stated that the signatures of the seller on the Agreement to Sell dated 25th January 2008 had been fraudulently obtained by Respondent No.3 herein. He stated that the seller-defendant signed some blank papers believing the same to be related to the Will that she had executed in favour of the appellant on 23rd September 2002. 5. He stated that upon the discovery of the Agreement to Sell dated 25th January 2008 on 5th February 2008, the seller made a criminal complaint dated 6th February 2008 with the Inspector of Police-cum-Station House Officer, Kankarbagh, Patna that her signatures had been fraudulently obtained on the Agreement to Sell dated 25th January 2008. 6. He stated that on 7th February 2008, the seller wrote a letter to Respondent No.1-buyer cancelling the Agreement to Sell dated 25th January 2008 enclosing therewith five demand drafts dated 7th February 2008 amounting to Rs. 2,11,000/- (Rupees Two Lakh Eleven Thousand) in lieu of the cash and two of the three post-dated cheques of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) each, which were issued by the Respondent No.1-buyer. 7. He pointed out that the Respondent No.1-buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Lakh Fifty Thousand) were issued, there was no sufficient balance in her account. He contended that the conduct of the Respondent No.1-buyer in encashing the demand drafts proved that she was not ready or willing to perform the contract. In support of his contentions, he relied upon the judgments of this Court in Mehboob-Ur-Rehman (Dead) through Legal Representatives vs. Ahsanul Ghani, (2019) 19 SCC 415 and C.S. Venkatesh vs. A.S.C. Murthy (Dead) by Legal Representatives and Ors., (2020) 3 SCC 280. SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1 11. Per contra, Mr. Mungeshwar Sahoo, learned senior counsel for the Respondent No.1-buyer stated that the suit had been decreed in favour of the Respondent No.1-buyer by the Trial Court after rightly appreciating the evidence and a sale deed had been executed subsequently in favour of the Respondent No.1-buyer upon deposit of Rs. 24,61,000/- (Rupees Twenty Four Lakh Sixty One Thousand) before the Trial Court. He contended that the judgment and decree passed by the Trial Court had been rightly upheld by the High Court. He stated that the entire case of the appellant in the present proceedings is based upon reappreciation of evidence and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 2008 cancelling the Agreement to Sell dated 25th January 2008 enclosing therewith five demand drafts dated 7th February 2008 totaling to Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) (in lieu of the cash paid by the Respondent No.1-buyer) along with two of the three post-dated cheques of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) each, which had been issued initially by the Respondent No.1-buyer. Further, the third post-dated cheque which was not returned to the Respondent No.1-buyer had not been encashed. The Respondent No.1- buyer has admitted that the letter dated 7th February 2008 had been received prior to filing of the suit for specific performance and five demand drafts dated 7th February 2008 totaling to Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) had been encashed in July, 2008 after institution of the subject suit on 5th May 2008, without raising any objection with respect to the difference in the cash amount and the demand drafts furnished by the seller. 16. It is settled law that under the Act, 1963, prior to the 2018 Amendment, specific performance was a discretionary and equitable relief. In Kamal Kumar vs. Premlata Joshi and Ors., (2019) 3 SCC 704, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the intention of the Respondent No.1-buyer as a purchaser to perform his part of the contract, which is inferred by scrutinising the conduct of the Respondent No.1-buyer /purchaser, including attending circumstances. 18. Continuous readiness and willingness on the part of the Respondent No.1-buyer /purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree. A few of the said judgments are reproduced hereinbelow : - A. In Gomathinayagam Pillai and Ors. vs. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under:- "6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evidence brought on records." (emphasis supplied) E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under:- "16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so..." (emphasis supplied) F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved." (emphasis supplied) 19. Consequently, the readiness and willingness of the buyer to go ahead with the sale of the property at the time of the institution of the suit loses its relevance, if the Respondent No.1-buyer is unable to establish that the readiness and willingness has continued throughout the pendency of the suit. 20. After examination of the pleadings and evidence in the present suit as well as the conduct of the Respondent No.1-buyer, this Court is unable to agree with Respondent No.1-buyer that she was willing to perform the Agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further finds that the seller had admittedly issued a letter dated 7th February 2008 cancelling the Agreement to Sell dated 25th January 2008, prior to the filing of the subject suit on 5th May 2008. Even though the demand drafts enclosed with the letter dated 07th February, 2008 were subsequently encashed in July, 2008, yet this Court is of the view that it was incumbent upon the Respondent No.1-buyer to seek a declaratory relief that the said cancellation is bad in law and not binding on parties for the reason that existence of a valid agreement is sine qua non for the grant of relief of specific performance. 25. This Court in I.S. Sikandar (Dead) By LRs. v. K. Subramani and Others, (2013) 15 SCC 27 has held that in absence of a prayer for a declaratory relief that the termination of the agreement is bad in law, the suit for specific performance of that agreement is not maintainable. Though subsequently, this Court in A. Kanthamani Vs. Nasreen Ahmed, (2017) 4 SCC 654 has held that the declaration of law in I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) regarding non-maintainability of the suit in the absence of a challenge to letter of termination is confined to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is this. An issue of maintainability of a suit strikes at the root of the proceedings initiated by filing of the plaint as per requirements of Order VII Rule 1, CPC. If a suit is barred by law, the trial court has absolutely no jurisdiction to entertain and try it. However, even though a given case might not attract the bar envisaged by section 9, CPC, it is obligatory for a trial court seized of a suit to inquire and ascertain whether the jurisdictional fact does, in fact, exist to enable it (the trial court) to proceed to trial and consider granting relief to the plaintiff as claimed. No higher court, much less the Supreme Court, should feel constrained to interfere with a decree granting relief on the specious ground that the parties were not put specifically on notice in respect of a particular line of attack/defence on which success/failure of the suit depends, more particularly an issue touching the authority of the trial court to grant relief if the 'jurisdictional fact' imperative for granting relief had not been satisfied. It is fundamental, as held in Shrisht Dhawan (supra), that assumption of jurisdiction/refusal to assume jurisdiction would depend on existence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the respondent is not entitled to the relief of specific performance. 27. Consequently, this Court is of the opinion that absent a prayer for declaratory relief that termination/cancellation of the agreement is bad in law, a suit for specific performance is not maintainable. APPELLANT HAS THE LOCUS STANDI TO FILE THE APPEAL 28. The preliminary objection raised by the Respondent No.1-buyer that the issue of her readiness and willingness should not be examined by this Court as the appellant lacked the locus standi to file the present appeal as she did not have any right, interest or title over the subject property is misconceived on facts. The appellant was impleaded as defendant no. 3 in the subject suit as she is a beneficiary under the Will dated 23rd September 2002 executed by the original owner/seller, whereby the subject property has been bequeathed in her favour. Consequently, the appellant, being a necessary and interested party to the lis, has the locus to file the present appeal. Further, the onus to establish readiness and willingness is on the Respondent No.1-buyer and the failure to establish the same disentitles the Respondent No.1-buyer from the equitable and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell, 1990). Dealing with the question of "clean hands" the learned author opined that where the plaintiff is shown to have materially misled the court or to have abused its process, or to have attempted to do so, the discretionary relief of specific performance can be denied to him. In laying down this principle, the learned author relied on a decision of the English Court in Armstrong v. Sheppard & Short Ltd. [(1959) 2 QB 384 : (1959) 3 WLR 84 : (1959) 2 All ER 651 (CA)], QB at p. 397. (See Spry, Equitable Remedies, p. 243.) 60. This Court has also taken the same view in Arunima Baruah v. Union of India [(2007) 6 SCC 120] . At p. 125, para 12 of the Report, this Court held that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of a material fact. This Court, of course, held that what is a material fact, suppression whereof would disentitle the suitor to obtain a discretionary relief, would depend upon the facts and circumstances of each case. However, by way of guidance this Court held that a material fact would mean that fact which is material for the purpose of determination of the lis. 61. Following the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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