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PETITIONER:

SYED DASTAGIR

Vs.

RESPONDENT:

T.R. GOPALAKRISHNASETTY

DATE OF JUDGMENT: 11/08/1999

BENCH:

A.P.Misra, B.N.Kirpal, S.Rajendra Babu

JUDGMENT:

A.P. Misra,J.

The short question raised in this appeal is, how to

construe a plea of readiness and willingness to perform to

sub-serve to the requirement of Section 16(c) of the

Specific Relief Act, 1963 (hereinafter referred to as The

Act) and the interpretation of its explanation.

This appeal 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

appellants 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.

The appellant-plaintiff filed a suit for specific

performance of an agreement to sale dated 11th August, 1960.

According to the plea, defendant entered into an agreement

to sell the properties for the consideration of Rs.9500/-.

As per stipulation in the agreement, the plaintiff agreed

for an adjustment of the mortgage amount of Rs.5000/- and

paid Rs.500/- to the defendant-respondent towards part

consideration on the same date when the said agreement was

executed. On this payment, only Rs.4000/- remained as the

balance amount to be paid and on this payment a sale deed

was to be executed. As per plea, the defendant subsequently

received a sum of Rs.3680/- on and off from 13.1.1961 to

21.12.1965 from the plaintiff which is endorsed on the

agreement to sale on the 21.12.1965. The plaintiff also

paid to the defendant Rs.100/- on 21.3.1965 and another

Rs.100/- on 4.5.1966. Thus, in all out of the aforesaid

balance amount of Rs.4000/-, the plaintiff paid Rs.3880/-.

It is also averred that these payments are also duly

recorded in the account book of the defendant. When

plaintiff approached the defendant to receive the balance of

Rs.120/- towards sale price and to execute the sale deed the

defendant evaded and hence left with no option a legal

notice was served on the defendant.

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The trial court held that the alleged agreement to

sell (Ex.P.1) was executed by the defendant for a sale

consideration of Rs.9500/- and the defendant agreed to

execute sale deed on receipt of the balance amount of

Rs.4000/-, and that defendant did receive all the aforesaid

amounts except Rs.120/- which 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.

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 counsel for the defendant stoutly defended the

impugned order. He submits that the High Court was right to

take up this pure question of law which goes at the root of

the controversy and it rightly held there was no such plea

thus dismissed the suit.

So far the first point, we felt as this goes to the

root and being pure question of law, argued at length before

the High Court, without objection being raised, it would not

be proper, on the facts and circumstances of this case to

accede to this submission for the appellant. Thus, the only

question to which we are adverting is, the second point,

viz., whether the plea of the plaintiff is sufficient to

conform to the requirement of the aforesaid section. In

other words, could it be construed to be a plea of

readiness and willingness. The submission is there exists

sufficient plea to construe it to be a plea of readiness

and willingness to perform in terms of the said section.

He referred in support to the following pleadings. The

relevant portion of which is quoted hereunder:-

The defendant has entered into an agreement with the

plaintiff on 1.8.1960 for a consideration of

Rs.9,500.00 the plaintiff has agreed to that on

adjustment of the mortgage amount of Rs.5000.00 and

Rs.500.00 paid towards advance payment of the sale price,

that on payment of the obtaining sum of Rs.4000.00 and off,

he would execute a proper sale deed conveying the suit

schedule properties. the defendant has accordingly

OOAreceived a sum of Rs.3680.00 from the plaintiff

and

has endorsed the same on the agreement on 21.12.1965. He

has further received Rs.100.00 on 21.3.1966 and Rs.100.00 on

4.5.1966 and in all Rs.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 Rs.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 Rs.120.00 under R.O. No. being the

balance due to the defendant

Learned counsel submits this pleading clearly reveals

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that the plaintiff has performed his part of the contract by

paying the total balance amount except Rs.120/-, which was

tendered in Court. Thus nothing was left for the plaintiff

to perform his part under the contract, and such a plea

cannot but to be construed to conform to the requirement of

Section 16(c). He submits what better readiness and

willingness could be said than from the aforesaid plea. He

submits, it is not necessary to further express in literal

words that plaintiff is ready and willing to perform his

part of the contract.

He places reliance in Mithu Khan v. Pipariyawali, AIR

1986 M.P. 39, Trimbak v. Nivratti, AIR 1985 Bom.128 and

Kamdev v. Devendra Kumar, AIR 1979 Gau.65.

On the other hand, learned counsel for the respondent

submits, in the absence of averment of the actual words by

the plaintiff in his pleading, i.e., ready and willing to

perform his part under the contract, which is mandatory in

nature, the plaintiff disentitles himself to any relief in

view of Section 16(c). His submission with reference to the

explanation of Section 16(c) is, even if any balance amount

as in the present case Rs.120/- had been tendered by the

plaintiff in Court, that cannot be construed to comply with

the provisions of the aforesaid Section. He emphasised, the

use of word except when so directed by the Court used in

the explanation (i) of the aforesaid Section, means such

payment could only be construed to be such, if he deposit

this amount only under the direction of the court, which is

not in the present case.

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 ones

case for a relief. Such an expression may be pointed,

precise, some times vague but still could be gathered what

he wants to convey through only by reading the whole

pleading, depends on the person drafting a plea. In India

most of the pleas are drafted by counsels hence aforesaid

difference of pleas which inevitably differ from one to

other. Thus, to gather true spirit behind a plea it should

be read as a whole. This does not distract one from

performing his obligations as required under a statute. But

to test, whether he has performed his obligations one has to

see the pith and substance of a plea. Where a statute

requires any fact to be pleaded then that has to be pleaded

may be in any form. Same plea may be stated by different

persons through different words then how could it be

constricted to be only in any particular nomenclature or

word. Unless statute specifically require for a plea to be

in any particular form, it can be in any form. No specific

phraseology or language is required to take such a plea.

The language in Section 16 (c) does not require any specific

phraseology but only that the plaintiff must aver that he

has performed or has always been and is willing to perform

his part of the contract. So the compliance of Readiness

and willingness has to be in spirit and substance and not

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in letter and form. So to insist for mechanical production

of the exact words of an statute is to insist for the form

rather than essence. So absence of form cannot dissolve an

essence if already pleaded.

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 Rs.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? Courts cannot draw

any inference in abstract or to give such hyper technical

interpretation to defeat a claim of specific performance

which defeats the very objective for which the said Act was

enacted. The Section makes it obligatory to a plaintiff

seeking enforcement of specific performance, that he must

not only come with clean hands but there should be a plea

that he has performed or has been and is ready and willing

to perform his part of the obligation. Unless this is

there, Section 16 (c) creates a bar to the grant of this

discretionary relief. As we have said for this it is not

necessary to plea by any specific words, if through any

words it reveals the readiness and willingness of the

plaintiff to perform his part of obligation then it cannot

be said there is non-compliance of the said Section.

Section 16(c) of the Specific Relief Act, 1963 is

quoted hereunder :- 16. Personal bars to relief. -

Specific performance of a contract cannot be enforced in

favour of a person -

(a) xxx xxx xxx

(b) xxx xxx xxx]

(c) 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 performed by

him, other than terms the performance of which has been

prevented or waived by the defendant.

Explanation. - For the purposes of clause (c), -

(i) where a contract involves the payment of money, 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;

(ii) the plaintiff must aver performance of, or

readiness and willingness to perform, the contract according

to its true construction.

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

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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 (as per

explanation ii) at least aver his performance or readiness

and willingness to perform his part of the contract. This

does not mean that unless the court directs the plaintiff

cannot tender the amount to the defendant or deposit in the

Court. Plaintiff can always tender the amount to the

defendant or deposit it in court, towards performance of his

obligation under the contract. Such tender rather exhibits

willingness of the plaintiff to perform his part of the

obligation. What is not essential only means need not do

but does not mean he cannot do so. Hence, when the

plaintiff has tendered the balance amount of Rs.120/- in

court even without courts order it cannot be construed

adversely against the plaintiff under explanation (i).

Hence, we do not find any merit in the submission of the

learned counsel for the respondents.

In interpreting a pleading wherever there be two

possible interpretations, then the one which defeats justice

should be rejected and the one which sub-serve to justice

should be accepted.

It was held in the case of Ramesh Chandra v. Chuni

Lal, AIR 1971 SC 1238, that readiness and willingness cannot

be treated as a strait-jacket formula. This have to be

determined from the entirety of facts and circumstances

relevant to the intention and conduct of the party

concerned. Finally, we have no hesitation to hold that the

pleading as made by the plaintiff not only shows his

readiness and willingness to perform his part of obligation

under the contract but by tendering total amount shows he

has performed his part of the obligation. We also construe

such a plea to be a plea of readiness and willingness as

required under Section 16 (c). In view of the aforesaid

findings we hold that the High Court committed an error by

defeating the claim of the plaintiff on the basis of wrong

interpretation of his plea in terms of the said Section.

Accordingly, the impugned order of the High Court

dated 22nd October, 1986 is set aside and the plaintiff suit

as decreed by both the courts below is confirmed. The

appeal is, accordingly, allowed.

In view of the facts and circumstances of the case,

costs on the parties.