1 sa-276-94.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

SECOND APPEAL NO.276 OF 1994

Vishnu Ramkrishna Doiphode ...Appellant

(Org. Plaintiff)

-VERSUS-

Vitthal Bhau Doiphone, deceased

by 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 Patil

Advocate for Respondent Nos.1(B) to 1(E) :- Mr. V. D.Sapkal, Sr.

Advocate, i/b Mr. S. R. Sapkal

Advocate for Respondent No.1 A : Mr. C. K. Shinde

…

CORAM :ROHIT W. JOSHI, J.

DATED : 27

th

FEBRAURY 2025, 2024.

JUDGMENT :

1.The present Second Appeal is admitted vide order dated

06.09.1995 on the following substantial question of law:-

(i) Whether readiness and willingness of the plaintiff to 2025:BHC-AUG:7706

2 sa-276-94.odt

perform his part of the contract is not evident from his

conduct and his pleading is substantial question of law.

2.The appellant is the original plaintiff. He had filed a suit for

specific performance of contract against the defendant being Regular

Civil Suit No.130 of 1980. Likewise the defendant had also filed a suit

being Regular Civil Suit No.40 of 1981 against the plaintiff seeking

cancellation of the agreement for sale. Learned Tribunal has decided

both the suits together by consolidating them and recording common

evidence. Both the suits are decided by common judgment dated

06.08.1984. The learned Trial Court has granted decree for specific

performance in favour of plaintiff and has dismissed the suit for

cancellation of agreement filed by the defendant. Aggrieved by the said

decrees passed against him, the defendant filed two separate appeals

being Regular Civil Appeal No.374 of 1984 challenging the decree for

specific performance of contract passed in Regular Civil Suit No.130 of

1980 and Regular Civil Appeal No.432 of 1984 challenging the decree

dismissing Regular Civil Suit No.40 of 1981 which was filed for

cancellation of agreement. The learned First Appellate Court has partly

allowed Regular Civil Appeal No. 374 of 1984 by substituting decree for

specific performance of contract with a decree for refund of sale

consideration of Rs.3,000/- with interest. As regards Regular Civil

3 sa-276-94.odt

Appeal No.432 of 1984, the appeal is dismissed. In such circumstances,

the present appeal is filed by the original plaintiff challenging judgment

and decree passed in Regular Civil Appeal No.374 of 1984 whereby

decree for specific performance of contract came to be refused and

decree for refund of part sale consideration which was paid is granted.

It will be pertinent to mention that the defendant has not challenged

decree passed in Regular Civil Appeal No.432 of 1984 which came to be

dismissed.

3.The plaintiff and defendant have entered into agreement for sale

dated 04.11.1977 with respect to suit property for a consideration of

Rs.11,725/-. It is necessary to mention that the plaintiff had earlier

advanced a sum of Rs.5,000/-, initially a sum of Rs.4,000/- followed by

an amount of Rs. 1,000/- to the defendant. The defendant has executed

two documents of mortgage by conditional sale dated 26.03.1974 for a

sum of R.4,000/- and 10.05.1974 for a sum of Rs.1,000/-. On

04.11.1977 i.e. the date of agreement for sale the plaintiff had paid a

sum of Rs.2,500/- to the defendant. Amount of Rs. 5,000/- paid earlier

in 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 on

31.01.1978 which is also admitted by the defendant. It must also be

mentioned that the case of the defendant as regards the agreement to

4 sa-276-94.odt

sale dated 04.11.1977 is that the said agreement was executed as a

collateral security for repayment of loan of Rs.7,500/- and that the said

agreement for sale was never intended to be acted upon. In other

words, the case of the defendant is that the agreement for sale dated

04.11.1977 is a sham document which was created in order to

camouflage the loan transaction.

4.The plaintiff claims that he had tried to contact the defendant on

several occasions requesting him to sell the suit property in compliance

of the aforesaid agreement. However, since the defendant avoided to

execute the sale deed, the plaintiff issued a notice dated 25.05.1978

calling upon the defendant to receive the balance sale consideration

and to execute the sale deed with respect to suit property in his favour.

5.Since the defendant did not execute the sale deed the plaintiff

has filed suit for specific performance of contract against the defendant

being Regular Civil Suit No.130 of 1980. After the said suit was filed

the defendant has also filed a suit for cancellation of the agreement

being Regular Civil Suit No.40 of 1989. As stated above, both the suits

were clubbed together and tried together. Based on rival pleadings

issues were framed and the parties led evidence on the issues so

framed. After recording the evidence and hearing rival arguments the

5 sa-276-94.odt

learned Trial Court was pleased to allow the suit for specific

performance of contract filed by the plaintiff thereby directing the

defendant to execute sale deed with respect to suit property in favour

of the plaintiff by accepting the balance sale consideration of

Rs.3,725/- on or before 10

th

September 1984. As regards the suit of

defendant, the same was dismissed. The learned Trial Court has

recorded that the plaintiff had proved his case by leading proper

evidence. It is held that ingredients of Section 16(c) of the Specific

Relief Act with respect to pleadings and evidence regarding readiness

and willingness were fully satisfied by the plaintiff.

6.As stated above, the defendant carried both these decrees in

Appeal under Section 96 of the Code of Civil Procedure, 1908 before

the District Court. The learned Fourth Additional District Judge,

Ahmednagar decided both the Appeals by a common judgment. The

learned First Appellate Court has dismissed the Appeal arising out of

Suit filed by defendant for cancellation of agreement. However, as

regards the appeal arising out of suit for specific performance of

contract, the learned first appellate court has held that the pleadings in

the plaint did not specify the requirements of Section 16(c) of the

Specific Relief Act and therefor decree for specific performance could

not have been granted. Accordingly, the decree for specific performance

6 sa-276-94.odt

was set aside and instead relief of refund of Rs.3,000/- along with

interest was granted. In such circumstances, the present Second Appeal

has been filed by the original plaintiff in which the question of law

quoted above has been framed vide order dated 06.09.1995 while

admitting the appeal.

7.The learned Advocate for the appellant Mr. K. D. Bade Patil

contends that the plaint averments were sufficient to meet the

requirement of Section 16(c) of the Specific Relief Act. He has drawn

my attention to the plaint to demonstrate that out of total sale

consideration of Rs.11,725/-, sum of Rs.8,050/- was already paid and

the plaintiff was repeatedly requesting the defendant to execute sale

deed of the suit property in his favour. He points out that it was further

pleaded that since the defendant avoided to execute the sale deed, legal

notice was issued on 25.05.1978 for the said purpose. He then states

that since the legal notice also did not serve the purpose, ultimately the

civil suit was filed on 11.07.1980. His contention with respect to

pleadings is that the form of pleadings should not be seen. The

pleadings are required to be meaningfully interpreted. He contends that

the pleadings if meaningfully interpreted would clearly indicate that

the plaintiff has categorically averred that he was always ready and

willing to perform his part of the contract. He further draws attention

7 sa-276-94.odt

to the evidence to demonstrate that statement regarding readiness and

willingness is made by the plaintiff in his examination in chief and that

the said statement is not even challenged in the cross examination. He

has also drawn my attention to the plaint in civil suit filed by the

defendant, wherein, it is stated that the plaintiff was a man of means.

He sums up the contention stating that the pleadings in the plaint and

conduct of the plaintiff clearly signifies readiness and willingness.

According to him, the pleadings and evidence on record are sufficient

to satisfy the mandate of Section 16(c) of the Specific Relief Act.

8.Per contra, Mr. V. D. Sapkal, the learned Senior Advocate for the

respondent contends that the plaintiff had two financial obligations

under the agreement, firstly to make payment of balance sale

consideration and secondly to make payment of half of the charges

towards stamp duty and registration charges for the sale deed. He

contends that there is no statement in the plaint to the effect that

plaintiff was ready to bear half of the stamp duty and registration

charges. He also submits that the plaint averments at best will

demonstrate readiness and willingness on the part of plaintiff till the

date 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 on

the part of plaintiff. According to him, the plaint averments do not

8 sa-276-94.odt

disclose continuous and uninterrupted readiness and willingness on the

part of plaintiff to perform his part of the contract from the date of

agreement till final adjudication of the Suit. As regards the evidence, he

states that the plaintiff has failed to produce any documents on record

to demonstrate his capacity to discharge financial obligations under the

agreement. He has placed strong reliance on the judgment of the

Hon’ble Supreme Court in the matter of U. N. Krishnamurthy V/s. A. M.

Krishnamurthy reported in (2023) 11 SCC 775 in support of his

contention.

9.I have heard the respective submissions as above. I have perused

the pleadings of the parties, their depositions on record, the exhibited

documents and judgments delivered by the learned Trial Court and

learned First Appellate Court. The plaint averments indicate that the

plaintiff has initially made averments about amount of Rs. 5,000/-

advanced by him to the defendants and the two documents of mortgage

by conditional sale executed by the defendant in his favour. The

plaintiff then states that the defendant had decided to sell the suit

property and had approached him in that regard. It is averred that the

parties arrived at agreement under which plaintiff was to purchase and

defendant was to sell the suit property for a consideration of

Rs.11,725/- and further that the amount of Rs.5,000/- received by the

9 sa-276-94.odt

defendant earlier was to be adjusted towards the total sale

consideration. The plaintiff has stated that on 04.11.1977, at the time

of 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/- on

31.01.1978 on the request of the defendant. He has alleged that

thereafter a small amount of Rs.50/- was also paid to the defendant at

his request. He has thereafter stated that he was persuaded the

defendant to execute the sale deed in his favour time and again,

however, since the defendant avoided he was constrained to issue a

legal notice and the suit was being filed because the defendant did not

execute the sale deed despite receiving the notice. Since, the

controversy in the matter pertains to the pleadings, it will be

appropriate to reproduce relevant portion from the plaint which is

referred and reproduced by the learned First Appellate Court, which

reads as under :-

“Thereafter, the plaintiff asked the defendant several times to

register the permanent purchase deed of the disputed land by

taking the remaining Rs. (3675) Three Thousand Six Hundred

Seventy Five remaining with the plaintiff as the price of the land

and registering it in writing, but the defendant refused to do so.

Thereafter, the plaintiff served a notice through his lawyer on 25th

May 1978 and informed him to register the permanent purchase

deed of the land immediately by taking the remaining Rs. (3675)/-

Three Thousand Six Hundred Seventy Five with the plaintiff as the

price of the land, but the defendant did not execute sale deed of the

said property in favour of the plaintiff, therefore, the plaintiff's suit

is to register the purchase deed of the disputed land in the name of

the plaintiff as per the agreement made with the plaintiff.”

10 sa-276-94.odt

10.The plaint averment as quoted above convey that according to

the plaintiff he had made repeated inquiries from the defendant with

respect to execution and registration of the sale deed in his favour by

accepting balance sale consideration of Rs. 3,675/-, however, the

defendant gave evasive replies and avoided to do the needful.

Therefore, the plaintiff issued legal notice on 25.05.1978 and informed

the defendant to receive the balance sale consideration of Rs.3,675/-

from the plaintiff and immediately execute the sale deed with respect

to suit property in his favour. Since the defendant did not execute sale

deed with respect to suit property in favour of the plaintiff, he was

constrained to file the suit for execution of sale deed with respect to

suit property in his favour as per the agreement executed between

plaintiff and defendant.

11.These pleadings according to the learned Trial Court were

sufficient to satisfy the requirement of Section 16 (c) of the Specific

Relief Act. The learned Trial Court has also referred to the evidence and

has arrived at a satisfaction that the suit for specific performance was

required to be decreed.

12.However, the learned First Appellate Court has found that the

pleadings only suggested readiness and willingness on the part of the

11 sa-276-94.odt

plaintiff till the date of issuance of notice and that there was no

statement in the plaint as regards readiness and willingness on the part

of the plaintiff to perform his part of the contract from the date of

issuance of legal notice till the date of filing of suit. In that view of the

matter, the learned First Appellate Court reversed the decree for specific

performance of contract and passed a judgment for refund of sale

consideration.

13.In my considered opinion, the learned First Appellate Court has

adopted a hyper technical approach. Section 16(c) does not require the

plaintiff to reproduce the words mentioned in the section itself in the

plaint. All that is required is, intention should be conveyed by the

plaintiff as regards readiness and willingness to perform his part of the

contract. It will be appropriate to refer the judgment of the Hon’ble

Supreme Court in the matter of Syed Dastagir Vs. T. R. Gopalakrishna

Setty, reported in (1999) 6 SCC 337, wherein the Hon’ble Supreme

Court has observed that although section 16(c) of the Specific Relief

Act is a mandatory provision, the section does not require that the

plaintiff must use specific words mentioned in the section, in the plaint.

The Hon’ble Court has held that pleadings are merely expression of

thoughts through words which are at time precise and at times vague.

However, if the intention can be gathered by reading of the pleadings,

12 sa-276-94.odt

that by itself should be sufficient. These observations have been made

in the context of a suit for specific performance of contract. It will be

profitable to reproduce paragraphs Nos.9, 12 and 13 for ready

reference:-

9.So the whole gamut of the 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 in reference to his

plea and whether the plea of the plaintiff could not be construed to

confirm 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 it could be gathered what he wants to convey through

only by reading the whole pleading, depending on the person

drafting a plea. In India most of the pleas are drafted by counsel

hence the 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. The 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 a statute specifically requires 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 in letter and

form. So to insist for a mechanical production of the exact words of

a statute is to insist for the form rather than the essence. So the

absence of form cannot dissolve an essence if already pleaded.

12.In interpreting a pleading wherever there be two possible

interpretations, then the one which defeats justice should be

rejected and the one which subserves to justice should be accepted.

13.It was held in the case of R. C. Chandiok V. Chuni Lal

Sabharwal, that readiness and willingness cannot be treated as a

strait-jacket formula. This has to be determined from the entirety of

the facts and circumstances relevant to the intention and conduct of

13 sa-276-94.odt

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 the obligation under the contract

but by tendering the 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 a wrong

interpretation of his plea in terms of the said Section.

14.What is apparent from the facts of the case is that the plaintiff

has averred that he tried to contact the defendant repeatedly for

execution of sale deed, he also issued a legal notice, and on failure on

the part of defendant to comply, the plaintiff filed suit for specific

performance of contract. This in my mind is sufficient to satisfy the

ingredients of Section 16 so far as pleadings are concerned. The last

sentence in the quoted extract of plaint which is referred to by the

learned First Appellate Court clearly conveys readiness and willingness

on the part of the plaintiff after issuing the legal notice.

15.In my considered opinion the learned First Appellate Court has

taken a hyper technical view while interpreting the pleadings. The

interpretation of pleadings by the trial court is reasonable and in

accordance with the settled legal principals with respect to law of

pleadings. The conclusion drawn by the learned First Appellate Court

that pleadings convey readiness and willingness only till the date of

issuance of notice dated 25.05.1978 and not thereafter is recorded

without taking into consideration the averment in plaint that because

14 sa-276-94.odt

the 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 the

respondent has also vehemently contented that there is no evidence

worth mentioning to demonstrate that the plaintiff had financial

capacity to perform his financial obligation under the contract. The

learned senior Counsel contends that there is no material to prove that

the plaintiff was ready and willing to pay the balance sale consideration

to the defendant in terms of the contract. Mr. Sapkal contends that

readiness implies financial capability which could be proved only by

producing documents such as Bank Statements etc. He contends that

since the plaintiff has not produced any such documents showing his

financial capability, the decree for specific performance of contract

could not have been granted.

17.At the outset, it must have mentioned that the suit for specific

performance of contract and the suit for cancellation of contract filed

by the defendant have been tried together. The defendant has made a

statement in paragraph 2 of the plaint that the plaintiff is a rich person

who is engaged in business of money lending although without a

license. The said statement in the plaint of the Suit filed by the

15 sa-276-94.odt

defendant by itself is sufficient to hold that the plaintiff was a man of

means. It will be profitable to refer to the judgment of the Hon’ble

Supreme Court in the matter of Nagindas Ramdas Vs. Dalpatram

Ichharam alias Brijram and Ors. reported in (1974) 1 SCC 242, wherein

the Hon’ble Supreme Court has referring to admissions in the pleadings

observed as under :-

“27.… Admissions, if true and clear, are by far the best proof of

the facts admitted. Admissions in pleadings or judicial admissions,

admissible under Section 58 of the Evidence Act, made by the

parties or their agents at or before the hearing of the case, stand

on a higher footing than evidentiary admissions. The former class

of admissions are fully binding on the party that makes them and

constitute a waiver of proof. They by themselves can be made the

foundation of the rights of the parties. On the other hand,

evidentiary admissions which are receivable at the trial as

evidence, are by themselves, not conclusive. They can be shown to

be wrong.”

18.Apart from this, it also needs to be mentioned that the plaintiff

has made a categorical statement in the examination in chief that he

was ready and willing to pay the balance consideration in order to

obtain sale deed of the suit property. This statement is not challenged

by the defendant in the cross examination of the plaintiff. It is well

settled that when a statement made in examination-in-chief is not

challenged during the course of cross-examination of the witness, it is

deemed that the other party admits and accepts the correctness of the

statement made in examination-in-chief. The emphasis in the cross

examination was to try to establish that the agreement in question was

16 sa-276-94.odt

in fact a camouflage for mortgage.

19.It will also be pertinent to mention that it is not even the case of

the defendant that the plaintiff did not have the means to discharge his

financial obligations under the agreement. It needs to be mentioned

that out of the total sale consideration of Rs.11,725/-, sum of

Rs.8,000/- was admittedly received by the defendant, amount of

Rs.3,275/- merely was remaining.

20.It is now well settled by a catena of judgments that the plaintiff

in a suit for specific performance must not demonstrate that he was

always having the necessary cash amount in order to make payment of

balance sale consideration to satisfy the ingredients of Section 16(c).

The over all conduct of the plaintiff needs to be seen to determine as to

whether 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 the

defendant himself. The plaintiff has paid around more than 2/3

rd

of the

sale consideration. The conduct of plaintiff demonstrates eagerness on

his part to complete the transaction. In my considered opinion, the

plaintiff has satisfactorily proved that he was all the while ready and

willing to perform his part of the contract.

17 sa-276-94.odt

21.The Hon’ble Supreme Court in the matter of Mrs. A. Kanthamani

V/s. Mrs. Nasreen Ahmed reported in (2017) 4 SCC 654 has held that it

is not necessary for the plaintiff to be always possessed with funds or to

demonstrate that he was always having the money to perform his part

of the contract. It will be pertinent to mention here that in the said case

more than 50% of the sale consideration was already paid by the

plaintiff. Similar is the case in the present appeal where the appellant

had paid more than 2/3

rd

of the total agreed sale consideration. The

present case stands on a higher pedestal because financial capability of

the plaintiff was never challenged either in the written statement or in

cross examination and further in the suit filed by the defendant, the

said fact was admitted in the plaint itself.

22.In the judgment relied upon by learned Senior Counsel

Mr.Sapkal, the agreement for sale was for total consideration of

Rs.15,10,000/-. Out of which the plaintiff had paid an amount paltry

sum of Rs. 10,001/- to the defendant towards advance. The balance

sale consideration was to be paid at the time of sale deed. In this

context the Hon’ble Supreme Court has held that it is necessary for the

plaintiff to plead and prove that he was equipped with adequate funds

to discharge his part of the contract. Out of the total sale consideration

of Rs.11,725/-, the plaintiff has already paid a sum of Rs.8,000/-. He

18 sa-276-94.odt

has demonstrated his intention to pay balance sale consideration to get

the sale deed executed in his favour. He is undisputedly a man of

means. In that view of the matter in my considered opinion the

contention of Mr. Sapkal as regards failure on the part of the plaintiff to

prove his readiness and willingness is required to be rejected.

23.It also needs to be mentioned that whereas the learned Counsel

for the appellant has raised issue about failure on the part of the

appellant to produce any documentary evidence such as bank account

statement etc. to demonstrate his financial capabilities. The defendant

also did not issue any notice for production of documents while the suit

was pending. In such circumstances, as has been held by the Hon’ble

Supreme Court in the matter of Basavaraj Vs. Padmavathi & Anr.

reported in 2023(2) MHLJ 645, adverse inference cannot be drawn

against the appellant for not producing documentary evidence

regarding financial capabilities on record, particularly, in view of the

fact that financial capability was not disputed and was rather admitted.

24.It is well settled that a decree for specific performance is a matter

of discretion of the Court. The learned Trial Court has exercised this

discretion in granting decree for specific performance of contract. The

discretion exercised by the Trial Court can call for interference by the

19 sa-276-94.odt

learned Appellate Court only when discretion is not exercised in

accordance with law. When an Appellate Court interferes with

discretionary orders or decrees passed by Trial Courts it is necessary to

deal with the reasons that weigh with the Trial Court in passing the

order. The learned First Appellate Court has reversed the discretionary

relief of specific performance granted by the learned Trial Court

without dealing with the reasons recorded by the learned Trial Court in

its judgment. As is held by the Hon’ble Supreme Court in the case of

Santosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs. reported in

(2001) 3 SCC 179, while writing a reversing judgement it is duty of the

Appellate Court to come to close quarters with the reasons recorded by

the Trial Court while granting relief. This duty needs to be followed

with a greater rigor in appeals arising out of reliefs granted by Trial

Court in exercise by their discretion. The learned First Appellate Court

has not dealt with the reasons recorded by the learned Trial Court while

passing the decree for specific performance of contract. The learned

First Appellate Court has clearly erred in this regard.

25.In view of the reasons recorded above, in my opinion, the

substantial question of law needs to be answered in favour of the

appellant/plaintiff. The pleadings and conduct of the appellant/plaintiff

as is established from the evidence on record is sufficient to infer that

20 sa-276-94.odt

the appellant/plaintiff was ever ready and willing to perform his part of

the contract and is entitled to decree for specific performance of

contract. In the result, the Second Appeal is allowed in the following

terms:-

(i)The judgment and decree dated 18.07.1994 passed by the

learned Fourth Additional District Judge, Ahmednagar in

Regular Civil Appeal No.374 of 1984 is quashed and set aside.

(ii)The judgement dated 06.08.1994 passed by the learned

Joint Civil Judge Junior Division, Shevgaon in Regular Civil Suit

No.130 of 1980 is restored.

(iii)Parties to bear their own costs.

[ROHIT W. JOSHI J.]

Narwade