High Court

Legal Reasoning

1sa-276-94.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABADSECOND APPEAL NO.276 OF 1994Vishnu Ramkrishna Doiphode ...Appellant (Org. Plaintiff)-VERSUS-Vitthal Bhau Doiphone, deceasedby his heirs(A) Anjanabai Vithhal Doiphode(B) Laxmibai Ambadas Walhekar(C ) Parubai Baba Aragade(D) Shobha Sonyabapu Khandagale(E) Suman Bhaginath Kardile...Respondents (Org. Defendant). . .Advocate for the Appellant :- Mr. K. D. Bade PatilAdvocate for Respondent Nos.1(B) to 1(E) :- Mr. V. D.Sapkal, Sr.Advocate, i/b Mr. S. R. SapkalAdvocate for Respondent No.1 A : Mr. C. K. Shinde…CORAM :ROHIT W. JOSHI, J.DATED : 27th FEBRAURY 2025, 2024.JUDGMENT :1.The present Second Appeal is admitted vide order dated06.09.1995 on the following substantial question of law:-(i) Whether readiness and willingness of the plaintiff to 2sa-276-94.odtperform his part of the contract is not evident from hisconduct and his pleading is substantial question of law.2.The appellant is the original plaintiff. He had filed a suit forspecific performance of contract against the defendant being RegularCivil Suit No.130 of 1980. Likewise the defendant had also filed a suitbeing Regular Civil Suit No.40 of 1981 against the plaintiff seekingcancellation of the agreement for sale. Learned Tribunal has decidedboth the suits together by consolidating them and recording commonevidence. Both the suits are decided by common judgment dated06.08.1984. The learned Trial Court has granted decree for specificperformance in favour of plaintiff and has dismissed the suit forcancellation of agreement filed by the defendant. Aggrieved by the saiddecrees passed against him, the defendant filed two separate appealsbeing Regular Civil Appeal No.374 of 1984 challenging the decree forspecific performance of contract passed in Regular Civil Suit No.130 of1980 and Regular Civil Appeal No.432 of 1984 challenging the decreedismissing Regular Civil Suit No.40 of 1981 which was filed forcancellation of agreement. The learned First Appellate Court has partlyallowed Regular Civil Appeal No. 374 of 1984 by substituting decree forspecific performance of contract with a decree for refund of saleconsideration of Rs.3,000/- with interest. As regards Regular Civil 3sa-276-94.odtAppeal No.432 of 1984, the appeal is dismissed. In such circumstances,the present appeal is filed by the original plaintiff challenging judgmentand decree passed in Regular Civil Appeal No.374 of 1984 wherebydecree for specific performance of contract came to be refused anddecree for refund of part sale consideration which was paid is granted.It will be pertinent to mention that the defendant has not challengeddecree passed in Regular Civil Appeal No.432 of 1984 which came to bedismissed. 3.The plaintiff and defendant have entered into agreement for saledated 04.11.1977 with respect to suit property for a consideration ofRs.11,725/-. It is necessary to mention that the plaintiff had earlieradvanced a sum of Rs.5,000/-, initially a sum of Rs.4,000/- followed byan amount of Rs. 1,000/- to the defendant. The defendant has executedtwo documents of mortgage by conditional sale dated 26.03.1974 for asum of R.4,000/- and 10.05.1974 for a sum of Rs.1,000/-. On04.11.1977 i.e. the date of agreement for sale the plaintiff had paid asum of Rs.2,500/- to the defendant. Amount of Rs. 5,000/- paid earlierin the year 1974 was also treated as a part of sale consideration.Thereafter, the plaintiff has paid a sum of Rs.500/- to the defendant on31.01.1978 which is also admitted by the defendant. It must also bementioned that the case of the defendant as regards the agreement to 4sa-276-94.odtsale dated 04.11.1977 is that the said agreement was executed as acollateral security for repayment of loan of Rs.7,500/- and that the saidagreement for sale was never intended to be acted upon. In otherwords, the case of the defendant is that the agreement for sale dated04.11.1977 is a sham document which was created in order tocamouflage the loan transaction. 4.The plaintiff claims that he had tried to contact the defendant onseveral occasions requesting him to sell the suit property in complianceof the aforesaid agreement. However, since the defendant avoided toexecute the sale deed, the plaintiff issued a notice dated 25.05.1978calling upon the defendant to receive the balance sale considerationand to execute the sale deed with respect to suit property in his favour.5.Since the defendant did not execute the sale deed the plaintiffhas filed suit for specific performance of contract against the defendantbeing Regular Civil Suit No.130 of 1980. After the said suit was filedthe defendant has also filed a suit for cancellation of the agreementbeing Regular Civil Suit No.40 of 1989. As stated above, both the suitswere clubbed together and tried together. Based on rival pleadingsissues were framed and the parties led evidence on the issues soframed. After recording the evidence and hearing rival arguments the 5sa-276-94.odtlearned Trial Court was pleased to allow the suit for specificperformance of contract filed by the plaintiff thereby directing thedefendant to execute sale deed with respect to suit property in favourof the plaintiff by accepting the balance sale consideration ofRs.3,725/- on or before 10th September 1984. As regards the suit ofdefendant, the same was dismissed. The learned Trial Court hasrecorded that the plaintiff had proved his case by leading properevidence. It is held that ingredients of Section 16(c) of the SpecificRelief Act with respect to pleadings and evidence regarding readinessand willingness were fully satisfied by the plaintiff.6.As stated above, the defendant carried both these decrees inAppeal under Section 96 of the Code of Civil Procedure, 1908 beforethe District Court. The learned Fourth Additional District Judge,Ahmednagar decided both the Appeals by a common judgment. Thelearned First Appellate Court has dismissed the Appeal arising out ofSuit filed by defendant for cancellation of agreement. However, asregards the appeal arising out of suit for specific performance ofcontract, the learned first appellate court has held that the pleadings inthe plaint did not specify the requirements of Section 16(c) of theSpecific Relief Act and therefor decree for specific performance couldnot have been granted. Accordingly, the decree for specific performance 6sa-276-94.odtwas set aside and instead relief of refund of Rs.3,000/- along withinterest was granted. In such circumstances, the present Second Appealhas been filed by the original plaintiff in which the question of lawquoted above has been framed vide order dated 06.09.1995 whileadmitting the appeal.7.The learned Advocate for the appellant Mr. K. D. Bade Patilcontends that the plaint averments were sufficient to meet therequirement of Section 16(c) of the Specific Relief Act. He has drawnmy attention to the plaint to demonstrate that out of total saleconsideration of Rs.11,725/-, sum of Rs.8,050/- was already paid andthe plaintiff was repeatedly requesting the defendant to execute saledeed of the suit property in his favour. He points out that it was furtherpleaded that since the defendant avoided to execute the sale deed, legalnotice was issued on 25.05.1978 for the said purpose. He then statesthat since the legal notice also did not serve the purpose, ultimately thecivil suit was filed on 11.07.1980. His contention with respect topleadings is that the form of pleadings should not be seen. Thepleadings are required to be meaningfully interpreted. He contends thatthe pleadings if meaningfully interpreted would clearly indicate thatthe plaintiff has categorically averred that he was always ready andwilling to perform his part of the contract. He further draws attention 7sa-276-94.odtto the evidence to demonstrate that statement regarding readiness andwillingness is made by the plaintiff in his examination in chief and thatthe said statement is not even challenged in the cross examination. Hehas also drawn my attention to the plaint in civil suit filed by thedefendant, wherein, it is stated that the plaintiff was a man of means.He sums up the contention stating that the pleadings in the plaint andconduct of the plaintiff clearly signifies readiness and willingness.According to him, the pleadings and evidence on record are sufficientto satisfy the mandate of Section 16(c) of the Specific Relief Act. 8.Per contra, Mr. V. D. Sapkal, the learned Senior Advocate for therespondent contends that the plaintiff had two financial obligationsunder the agreement, firstly to make payment of balance saleconsideration and secondly to make payment of half of the chargestowards stamp duty and registration charges for the sale deed. Hecontends that there is no statement in the plaint to the effect thatplaintiff was ready to bear half of the stamp duty and registrationcharges. He also submits that the plaint averments at best willdemonstrate readiness and willingness on the part of plaintiff till thedate of issuance of notice and that after the date of issuance of notice,there is no statement in the plaint to infer readiness and willingness onthe part of plaintiff. According to him, the plaint averments do not 8sa-276-94.odtdisclose continuous and uninterrupted readiness and willingness on thepart of plaintiff to perform his part of the contract from the date ofagreement till final adjudication of the Suit. As regards the evidence, hestates that the plaintiff has failed to produce any documents on recordto demonstrate his capacity to discharge financial obligations under theagreement. He has placed strong reliance on the judgment of theHon’ble Supreme Court in the matter of U. N. Krishnamurthy V/s. A. M.Krishnamurthy reported in (2023) 11 SCC 775 in support of hiscontention.9.I have heard the respective submissions as above. I have perusedthe pleadings of the parties, their depositions on record, the exhibiteddocuments and judgments delivered by the learned Trial Court andlearned First Appellate Court. The plaint averments indicate that theplaintiff has initially made averments about amount of Rs. 5,000/-advanced by him to the defendants and the two documents of mortgageby conditional sale executed by the defendant in his favour. Theplaintiff then states that the defendant had decided to sell the suitproperty and had approached him in that regard. It is averred that theparties arrived at agreement under which plaintiff was to purchase anddefendant was to sell the suit property for a consideration ofRs.11,725/- and further that the amount of Rs.5,000/- received by the 9sa-276-94.odtdefendant earlier was to be adjusted towards the total saleconsideration. The plaintiff has stated that on 04.11.1977, at the timeof execution of the agreement, he had paid a further sum of Rs.2,500/-to the defendant and thereafter a further amount of Rs.500/- on31.01.1978 on the request of the defendant. He has alleged thatthereafter a small amount of Rs.50/- was also paid to the defendant athis request. He has thereafter stated that he was persuaded thedefendant to execute the sale deed in his favour time and again,however, since the defendant avoided he was constrained to issue alegal notice and the suit was being filed because the defendant did notexecute the sale deed despite receiving the notice. Since, thecontroversy in the matter pertains to the pleadings, it will beappropriate to reproduce relevant portion from the plaint which isreferred and reproduced by the learned First Appellate Court, whichreads as under :-“Thereafter, the plaintiff asked the defendant several times toregister the permanent purchase deed of the disputed land bytaking the remaining Rs. (3675) Three Thousand Six HundredSeventy Five remaining with the plaintiff as the price of the landand registering it in writing, but the defendant refused to do so.Thereafter, the plaintiff served a notice through his lawyer on 25thMay 1978 and informed him to register the permanent purchasedeed of the land immediately by taking the remaining Rs. (3675)/-Three Thousand Six Hundred Seventy Five with the plaintiff as theprice of the land, but the defendant did not execute sale deed of thesaid property in favour of the plaintiff, therefore, the plaintiff's suitis to register the purchase deed of the disputed land in the name ofthe plaintiff as per the agreement made with the plaintiff.” 10sa-276-94.odt10.The plaint averment as quoted above convey that according tothe plaintiff he had made repeated inquiries from the defendant withrespect to execution and registration of the sale deed in his favour byaccepting balance sale consideration of Rs. 3,675/-, however, thedefendant gave evasive replies and avoided to do the needful.Therefore, the plaintiff issued legal notice on 25.05.1978 and informedthe defendant to receive the balance sale consideration of Rs.3,675/-from the plaintiff and immediately execute the sale deed with respectto suit property in his favour. Since the defendant did not execute saledeed with respect to suit property in favour of the plaintiff, he wasconstrained to file the suit for execution of sale deed with respect tosuit property in his favour as per the agreement executed betweenplaintiff and defendant. 11.These pleadings according to the learned Trial Court weresufficient to satisfy the requirement of Section 16 (c) of the SpecificRelief Act. The learned Trial Court has also referred to the evidence andhas arrived at a satisfaction that the suit for specific performance wasrequired to be decreed.12.However, the learned First Appellate Court has found that thepleadings only suggested readiness and willingness on the part of the 11sa-276-94.odtplaintiff till the date of issuance of notice and that there was nostatement in the plaint as regards readiness and willingness on the partof the plaintiff to perform his part of the contract from the date ofissuance of legal notice till the date of filing of suit. In that view of thematter, the learned First Appellate Court reversed the decree for specificperformance of contract and passed a judgment for refund of saleconsideration. 13.In my considered opinion, the learned First Appellate Court hasadopted a hyper technical approach. Section 16(c) does not require theplaintiff to reproduce the words mentioned in the section itself in theplaint. All that is required is, intention should be conveyed by theplaintiff as regards readiness and willingness to perform his part of thecontract. It will be appropriate to refer the judgment of the Hon’bleSupreme Court in the matter of Syed Dastagir Vs. T. R. GopalakrishnaSetty, reported in (1999) 6 SCC 337, wherein the Hon’ble SupremeCourt has observed that although section 16(c) of the Specific ReliefAct is a mandatory provision, the section does not require that theplaintiff must use specific words mentioned in the section, in the plaint.The Hon’ble Court has held that pleadings are merely expression ofthoughts through words which are at time precise and at times vague.However, if the intention can be gathered by reading of the pleadings, 12sa-276-94.odtthat by itself should be sufficient. These observations have been madein the context of a suit for specific performance of contract. It will beprofitable to reproduce paragraphs Nos.9, 12 and 13 for readyreference:-9.So the whole gamut of the issue raised is, how to construe aplea specially with reference to Section 16(c) and what are theobligations which the plaintiff has to comply with in reference to hisplea and whether the plea of the plaintiff could not be construed toconfirm to the requirement of the aforesaid Section, or does thissection require specific words to be pleaded that he has performedor has always been ready and is willing to perform his part of thecontract. In construing a plea in any pleading, Courts must keep inmind that a plea is not an expression of art and science but anexpression through words to place fact and law of ones case for arelief. Such an expression may be pointed, precise, some timesvague but still it could be gathered what he wants to convey throughonly by reading the whole pleading, depending on the persondrafting a plea. In India most of the pleas are drafted by counselhence the aforesaid difference of pleas which inevitably differ fromone to other. Thus, to gather true spirit behind a plea it should beread as a whole. This does not distract one from performing hisobligations as required under a statute. But to test, whether he hasperformed his obligations, one has to see the pith and substance of aplea. Where a statute requires any fact to be pleaded then that hasto be pleaded may be in any form. The same plea may be stated bydifferent persons through different words; then how could it beconstricted to be only in any particular nomenclature or word.Unless a statute specifically requires a plea to be in any particularform, it can be in any form. No specific phraseology or language isrequired to take such a plea. The language in Section 16(c) does notrequire any specific phraseology but only that the plaintiff must averthat he has performed or has always been and is willing to performhis part of the contract. So the compliance of “readiness andwillingness” has to be in spirit and substance and not in letter andform. So to insist for a mechanical production of the exact words ofa statute is to insist for the form rather than the essence. So theabsence of form cannot dissolve an essence if already pleaded.12.In interpreting a pleading wherever there be two possibleinterpretations, then the one which defeats justice should berejected and the one which subserves to justice should be accepted.13.It was held in the case of R. C. Chandiok V. Chuni LalSabharwal, that readiness and willingness cannot be treated as astrait-jacket formula. This has to be determined from the entirety ofthe facts and circumstances relevant to the intention and conduct of 13sa-276-94.odtthe party concerned. Finally, we have no hesitation to hold that thepleading as made by the plaintiff not only shows his readiness andwillingness to perform his part of the obligation under the contractbut by tendering the total amount shows he has performed his partof the obligation. We also construe such a plea to be a plea of“readiness and willingness” as required under Section 16(c). In viewof the aforesaid findings we hold that the High Court committed anerror by defeating the claim of the plaintiff on the basis of a wronginterpretation of his plea in terms of the said Section. 14.What is apparent from the facts of the case is that the plaintiffhas averred that he tried to contact the defendant repeatedly forexecution of sale deed, he also issued a legal notice, and on failure onthe part of defendant to comply, the plaintiff filed suit for specificperformance of contract. This in my mind is sufficient to satisfy theingredients of Section 16 so far as pleadings are concerned. The lastsentence in the quoted extract of plaint which is referred to by thelearned First Appellate Court clearly conveys readiness and willingnesson the part of the plaintiff after issuing the legal notice.15.In my considered opinion the learned First Appellate Court hastaken a hyper technical view while interpreting the pleadings. Theinterpretation of pleadings by the trial court is reasonable and inaccordance with the settled legal principals with respect to law ofpleadings. The conclusion drawn by the learned First Appellate Courtthat pleadings convey readiness and willingness only till the date ofissuance of notice dated 25.05.1978 and not thereafter is recordedwithout taking into consideration the averment in plaint that because 14sa-276-94.odtthe defendant did not execute sale deed despite receiving the notice,the plaintiff was constrained to file the suit for specific performance.16.Apart from the pleadings, the learned Senior Counsel for therespondent has also vehemently contented that there is no evidenceworth mentioning to demonstrate that the plaintiff had financialcapacity to perform his financial obligation under the contract. Thelearned senior Counsel contends that there is no material to prove thatthe plaintiff was ready and willing to pay the balance sale considerationto the defendant in terms of the contract. Mr. Sapkal contends thatreadiness implies financial capability which could be proved only byproducing documents such as Bank Statements etc. He contends thatsince the plaintiff has not produced any such documents showing hisfinancial capability, the decree for specific performance of contractcould not have been granted. 17.At the outset, it must have mentioned that the suit for specificperformance of contract and the suit for cancellation of contract filedby the defendant have been tried together. The defendant has made astatement in paragraph 2 of the plaint that the plaintiff is a rich personwho is engaged in business of money lending although without alicense. The said statement in the plaint of the Suit filed by the 15sa-276-94.odtdefendant by itself is sufficient to hold that the plaintiff was a man ofmeans. It will be profitable to refer to the judgment of the Hon’bleSupreme Court in the matter of Nagindas Ramdas Vs. DalpatramIchharam alias Brijram and Ors. reported in (1974) 1 SCC 242, whereinthe Hon’ble Supreme Court has referring to admissions in the pleadingsobserved as under :- “27.… Admissions, if true and clear, are by far the best proof ofthe facts admitted. Admissions in pleadings or judicial admissions,admissible under Section 58 of the Evidence Act, made by theparties or their agents at or before the hearing of the case, standon a higher footing than evidentiary admissions. The former classof admissions are fully binding on the party that makes them andconstitute a waiver of proof. They by themselves can be made thefoundation of the rights of the parties. On the other hand,evidentiary admissions which are receivable at the trial asevidence, are by themselves, not conclusive. They can be shown tobe wrong.”18.Apart from this, it also needs to be mentioned that the plaintiffhas made a categorical statement in the examination in chief that hewas ready and willing to pay the balance consideration in order toobtain sale deed of the suit property. This statement is not challengedby the defendant in the cross examination of the plaintiff. It is wellsettled that when a statement made in examination-in-chief is notchallenged during the course of cross-examination of the witness, it isdeemed that the other party admits and accepts the correctness of thestatement made in examination-in-chief. The emphasis in the crossexamination was to try to establish that the agreement in question was 16sa-276-94.odtin fact a camouflage for mortgage. 19.It will also be pertinent to mention that it is not even the case ofthe defendant that the plaintiff did not have the means to discharge hisfinancial obligations under the agreement. It needs to be mentionedthat out of the total sale consideration of Rs.11,725/-, sum ofRs.8,000/- was admittedly received by the defendant, amount ofRs.3,275/- merely was remaining. 20.It is now well settled by a catena of judgments that the plaintiffin a suit for specific performance must not demonstrate that he wasalways having the necessary cash amount in order to make payment ofbalance sale consideration to satisfy the ingredients of Section 16(c).The over all conduct of the plaintiff needs to be seen to determine as towhether who was ready to willing to perform his part of the contract.The plaintiff in the present case is a man of means according to thedefendant himself. The plaintiff has paid around more than 2/3rd of thesale consideration. The conduct of plaintiff demonstrates eagerness onhis part to complete the transaction. In my considered opinion, theplaintiff has satisfactorily proved that he was all the while ready andwilling to perform his part of the contract. 17sa-276-94.odt21.The Hon’ble Supreme Court in the matter of Mrs. A. KanthamaniV/s. Mrs. Nasreen Ahmed reported in (2017) 4 SCC 654 has held that itis not necessary for the plaintiff to be always possessed with funds or todemonstrate that he was always having the money to perform his partof the contract. It will be pertinent to mention here that in the said casemore than 50% of the sale consideration was already paid by theplaintiff. Similar is the case in the present appeal where the appellanthad paid more than 2/3rd of the total agreed sale consideration. Thepresent case stands on a higher pedestal because financial capability ofthe plaintiff was never challenged either in the written statement or incross examination and further in the suit filed by the defendant, thesaid fact was admitted in the plaint itself.22.In the judgment relied upon by learned Senior CounselMr.Sapkal, the agreement for sale was for total consideration ofRs.15,10,000/-. Out of which the plaintiff had paid an amount paltrysum of Rs. 10,001/- to the defendant towards advance. The balancesale consideration was to be paid at the time of sale deed. In thiscontext the Hon’ble Supreme Court has held that it is necessary for theplaintiff to plead and prove that he was equipped with adequate fundsto discharge his part of the contract. Out of the total sale considerationof Rs.11,725/-, the plaintiff has already paid a sum of Rs.8,000/-. He 18sa-276-94.odthas demonstrated his intention to pay balance sale consideration to getthe sale deed executed in his favour. He is undisputedly a man ofmeans. In that view of the matter in my considered opinion thecontention of Mr. Sapkal as regards failure on the part of the plaintiff toprove his readiness and willingness is required to be rejected.23.It also needs to be mentioned that whereas the learned Counselfor the appellant has raised issue about failure on the part of theappellant to produce any documentary evidence such as bank accountstatement etc. to demonstrate his financial capabilities. The defendantalso did not issue any notice for production of documents while the suitwas pending. In such circumstances, as has been held by the Hon’bleSupreme Court in the matter of Basavaraj Vs. Padmavathi & Anr.reported in 2023(2) MHLJ 645, adverse inference cannot be drawnagainst the appellant for not producing documentary evidenceregarding financial capabilities on record, particularly, in view of thefact that financial capability was not disputed and was rather admitted.24.It is well settled that a decree for specific performance is a matterof discretion of the Court. The learned Trial Court has exercised thisdiscretion in granting decree for specific performance of contract. Thediscretion exercised by the Trial Court can call for interference by the 19sa-276-94.odtlearned Appellate Court only when discretion is not exercised inaccordance with law. When an Appellate Court interferes withdiscretionary orders or decrees passed by Trial Courts it is necessary todeal with the reasons that weigh with the Trial Court in passing theorder. The learned First Appellate Court has reversed the discretionaryrelief of specific performance granted by the learned Trial Courtwithout dealing with the reasons recorded by the learned Trial Court inits judgment. As is held by the Hon’ble Supreme Court in the case ofSantosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs. reported in(2001) 3 SCC 179, while writing a reversing judgement it is duty of theAppellate Court to come to close quarters with the reasons recorded bythe Trial Court while granting relief. This duty needs to be followedwith a greater rigor in appeals arising out of reliefs granted by TrialCourt in exercise by their discretion. The learned First Appellate Courthas not dealt with the reasons recorded by the learned Trial Court whilepassing the decree for specific performance of contract. The learnedFirst Appellate Court has clearly erred in this regard.25.In view of the reasons recorded above, in my opinion, thesubstantial question of law needs to be answered in favour of theappellant/plaintiff. The pleadings and conduct of the appellant/plaintiffas is established from the evidence on record is sufficient to infer that 20sa-276-94.odtthe appellant/plaintiff was ever ready and willing to perform his part ofthe contract and is entitled to decree for specific performance ofcontract. In the result, the Second Appeal is allowed in the followingterms:-(i)The judgment and decree dated 18.07.1994 passed by thelearned Fourth Additional District Judge, Ahmednagar inRegular Civil Appeal No.374 of 1984 is quashed and set aside. (ii)The judgement dated 06.08.1994 passed by the learnedJoint Civil Judge Junior Division, Shevgaon in Regular Civil SuitNo.130 of 1980 is restored.(iii)Parties to bear their own costs.[ROHIT W. JOSHI J.]Narwade