Specific Performance sec.16 (c) – failure to discharge Bank Loan as per the agreement of sale – filing suit after 7 years for specific performance after filing a suit for recovery of possession by owner – Both lower courts found that the appellant is at fault – Apex court held that there is concurrent finding of fact and the same is evident from the record that the plaintiff (present appellant) has failed to perform his part of contract, as such, in our opinion, above
case law is of little help to the plaintiff/appellant, and the courts below have not erred in law in not granting the relief of specific performance of contract to the plaintiff in OS.No.37 of 1985. For the reasons as discussed above, we find no illegality in the judgment and orders challenged before us. Accordingly, both the appeals are dismissed with costs.=
respondent- Kalli Raja Rao
(since dead) agreed to sell the property measuring an area of Ac.19.96
cents situated at Pulla village of Eluru Taluk for an amount of Rs.80,000/-
(Rupees eighty thousand only) under the agreement of sale ( Ex.A/1) dated
10th May, 1980.
The said agreement discloses that respondent- Kalli Raja
Rao had taken a loan of Rs.20,000/- (Rupees twenty thousand only) from the
State Bank of India, Eluru Branch, in the year 1969 and he could not repay
the loan, as such, he intended to sell his land, and the present appellant-
Telikicherla Sesibhushan agreed to repay the loan amount with interest
due from Kalli Raja Rao, to the Bank.
It appears that the appellant though
made certain payments but failed to repay the entire loan amount with
interest.
Consequently, the Bank instituted a suit being O.S.No.208 of 1981
against the debtor for recovery of the amount before the Subordinate Judge,
Eluru.
Later, in the said suit the present appellant got himself impleaded
as a party. The suit filed by the Bank for recovery of Rs.46,408.85 was
decreed with interest on 31st December, 1986 and the same attained
finality.
Since the commitment made by the appellant was not fulfilled by
him regarding the repayment of the loan amount, as such, Kalli Raja Rao
filed suit being O.S. No.28 of 1985 before the Subordinate Judge, Eluru
against the appellant for recovery of possession of land which he had
delivered to him at the time of aforesaid agreement of sale.
On this, the
appellant appears to have filed O.S.No.37 of 1985 after a period of seven
years of agreement against Kalli Raja Rao for specific performance of
contract, before the Subordinate Judge, Eluru.
Both the suits i.e.
O.S.No.28 of 1985 and O.S.No.37 of 1985 were disposed of vide common
judgment and order dated 12th June, 1996.
The concluding part of the said
judgment and order of the trial court reads as under:
“ 26. In the result, O.S.No.28/85 is dismissed. The court fee payable on
the plaint in O.S.No.28/85 shall be collected from out of the estate of
late Rajarao which will come into the hands of his legal heirs, Plaintiffs
2 to 10 . O.S.No.37/85 is partly allowed with the following conditions:-
The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in the
court within three months from today, and the plaintiff is entitled to
withdraw the above amount to be deposited in the court.
The plaintiff shall surrender the possession of the plaint schedule
properties of the Defendants 2 to 10 within one month from the date of
deposit of Rs.71,552-45 paise to be made by the Defendants 2 to 10 in the
Court.
In view of the relationship between the parties and in view of the present
facts of the case, I am not inclined to make any order as to costs in both
the suits.”
From the above quoted para it is clear that the suit filed by Kali Raja Rao
was dismissed, and the suit filed by the appellant for specific performance
of contract was not decreed but the amount paid by him towards repayment of
loan was directed to be paid back to him.=
High court
51. In the result, A.S. 2052 of 1996 is dismissed confirming the decree
and judgment in O.S. 37 of 1985 of the trial Court. A.S.2652 of 1996 is
allowed, and consequently O.S.28 of 1985 is decreed subject to fulfilling
of conditions imposed in the decree in O.S.37 of 1985 the vendors are
entitled to possession on deposit of amount as directed by the trial Court
=
It is clear from the record that there is concurrent finding of
fact against the present appellant by both the courts below that the
appellant failed to prove that he had been ready and willing to perform his
part of the contract.
Having gone through the papers on record, we find
that since the present appellant failed to repay the entire loan amount in
terms of the agreement, and the suit filed by the Bank against the
debtor for recovery of remaining amount of loan was
decreed, as such, there was ample evidence on record to hold that the
appellant failed to perform his part of contract, as such, it cannot be
said that he is entitled to the relief of specific performance of contract.
It is pertinent to mention here that the suit for specific performance of
contract was filed by the plaintiff/appellant after a period of seven
years, and it is not proved on the record that the plaintiff had been
always ready and willing to perform his part of contract.=
In the case of Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC 534
in which reliance has been placed on behalf of the appellant, it has been
held that where from the pleadings and evidence of the parties it is
manifest that the plaintiff was ready and willing to perform his part of
the contract, the relief of specific performance may not be denied to him.
Relevant parts of paragraph 9 and 12 of the said judgment read as under:
“9. The requirements to be fulfilled for bringing in compliance with
Section 16(c) of the Act have been delineated by this Court in several
judgments. Before dealing with the various judgments it is necessary to set
out the factual position. The agreement for sale was executed on 15-2-1978
and the period during which the sale was to be completed was indicated to
be [pic]six months. Undisputedly, immediately after the expiry of the six-
months’ period, lawyer’s notice was given calling upon the present
appellant to execute the sale deed. It is also averred in the plaint that
the plaintiff met the defendant several times and requested him to execute
the sale deed. On finding inaction on his part, the suit was filed in
September 1978. This factual position has been highlighted in the plaint
itself. The learned Single Judge after noticing the factual position as
reflected in the averments in the plaint came to hold that the plaint
contains essential facts which lead to inference to the plaintiff’s
readiness and willingness. Para 3 of the plaint indicates that the
plaintiff was always ready to get the sale deed prepared after paying
necessary consideration. In para 4 of the plaint, reference has been made
to the lawyer’s notice calling upon the defendant to execute the sale deed.
In the said paragraph it has also been described as to how after the
lawyer’s notice was issued the plaintiff met the defendant. In para 5 it is
averred that the defendant is bound to execute the sale deed on receiving
the balance amount and the plaintiff was entitled to get the document
executed by the defendant. It is also not in dispute that the balance
amount of the agreed consideration was deposited in court simultaneously to
the filing of the suit.
Xx xx xx
12. The basic principle behind Section 16(c) read with Explanation (ii) is
that any person seeking benefit of the specific performance of contract
must manifest that his conduct has been blemishless throughout entitling
him to the specific relief. The provision imposes a personal bar. The Court
is to grant relief on the basis of the conduct of the person seeking
relief. If the pleadings manifest that the conduct of the plaintiff
entitles him to get the relief on perusal of the plaint he should not be
denied the relief.”
7. But in the present case, there is concurrent finding of fact and
the same is evident from the record that the plaintiff (present appellant)
has failed to perform his part of contract, as such, in our opinion, above
case law is of little help to the plaintiff/appellant, and the courts
below have not erred in law in not granting the relief of specific
performance of contract to the plaintiff in OS.No.37 of 1985.
8. For the reasons as discussed above, we find no illegality in the
judgment and orders challenged before us. Accordingly, both the appeals are
dismissed with costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.6071-6072 OF 2007
TELIKICHERLA SESIBHUSHAN
(DEAD) BY LRS ……………APPELLANTS
VERSUS
KALLI RAJA RAO
(DEAD) BY LRS & ORS. ……………RESPONDENTS
J U D G M E N T
PRAFULLA C.PANT,J.
1. These two appeals are directed against the common judgment and order
dated 15th June, 2007 passed by the High Court of Andhra Pradesh in Appeal
Suit Nos.2652 and 2052 of 1996.
2. We have heard learned counsel for the parties and perused the papers
on record.
3. The factual matrix of the case is that respondent- Kalli Raja Rao
(since dead) agreed to sell the property measuring an area of Ac.19.96
cents situated at Pulla village of Eluru Taluk for an amount of Rs.80,000/-
(Rupees eighty thousand only) under the agreement of sale ( Ex.A/1) dated
10th May, 1980. The said agreement discloses that respondent- Kalli Raja
Rao had taken a loan of Rs.20,000/- (Rupees twenty thousand only) from the
State Bank of India, Eluru Branch, in the year 1969 and he could not repay
the loan, as such, he intended to sell his land, and the present appellant-
Telikicherla Sesibhushan agreed to repay the loan amount with interest
due from Kalli Raja Rao, to the Bank. It appears that the appellant though
made certain payments but failed to repay the entire loan amount with
interest. Consequently, the Bank instituted a suit being O.S.No.208 of 1981
against the debtor for recovery of the amount before the Subordinate Judge,
Eluru. Later, in the said suit the present appellant got himself impleaded
as a party. The suit filed by the Bank for recovery of Rs.46,408.85 was
decreed with interest on 31st December, 1986 and the same attained
finality. Since the commitment made by the appellant was not fulfilled by
him regarding the repayment of the loan amount, as such, Kalli Raja Rao
filed suit being O.S. No.28 of 1985 before the Subordinate Judge, Eluru
against the appellant for recovery of possession of land which he had
delivered to him at the time of aforesaid agreement of sale. On this, the
appellant appears to have filed O.S.No.37 of 1985 after a period of seven
years of agreement against Kalli Raja Rao for specific performance of
contract, before the Subordinate Judge, Eluru. Both the suits i.e.
O.S.No.28 of 1985 and O.S.No.37 of 1985 were disposed of vide common
judgment and order dated 12th June, 1996. The concluding part of the said
judgment and order of the trial court reads as under:
“ 26. In the result, O.S.No.28/85 is dismissed. The court fee payable on
the plaint in O.S.No.28/85 shall be collected from out of the estate of
late Rajarao which will come into the hands of his legal heirs, Plaintiffs
2 to 10 . O.S.No.37/85 is partly allowed with the following conditions:-
The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in the
court within three months from today, and the plaintiff is entitled to
withdraw the above amount to be deposited in the court.
The plaintiff shall surrender the possession of the plaint schedule
properties of the Defendants 2 to 10 within one month from the date of
deposit of Rs.71,552-45 paise to be made by the Defendants 2 to 10 in the
Court.
In view of the relationship between the parties and in view of the present
facts of the case, I am not inclined to make any order as to costs in both
the suits.”
From the above quoted para it is clear that the suit filed by Kali Raja Rao
was dismissed, and the suit filed by the appellant for specific performance
of contract was not decreed but the amount paid by him towards repayment of
loan was directed to be paid back to him. It appears that both the parties
preferred appeals against the aforesaid judgment and decree passed by the
trial court, and the same were disposed of together by the High Court with
the following concluding paragraph:
“ 51. In the result, A.S. 2052 of 1996 is dismissed confirming the decree
and judgment in O.S. 37 of 1985 of the trial Court. A.S.2652 of 1996 is
allowed, and consequently O.S.28 of 1985 is decreed subject to fulfilling
of conditions imposed in the decree in O.S.37 of 1985 the vendors are
entitled to possession on deposit of amount as directed by the trial Court.
The vendors are entitled to mesne profits to be determined on a separate
application to be filed before the trial Court. The vendors are entitled
to mesne profits to be determined on a separate application to be filed
before the trial Court from the date of suit O.S.28 of 1985 till the date
of possession. However, while evaluating mesne profits the amounts
deposited by virtue of this Court’s order namely Rs.50,000/- per year
should be given effect to. The vendors are entitled to withdraw the amounts
deposited by the vendee pursuant to the orders of this Court.”
4. It is clear from the record that there is concurrent finding of
fact against the present appellant by both the courts below that the
appellant failed to prove that he had been ready and willing to perform his
part of the contract. Having gone through the papers on record, we find
that since the present appellant failed to repay the entire loan amount in
terms of the agreement, and the suit filed by the Bank against the
debtor for recovery of remaining amount of loan was
decreed, as such, there was ample evidence on record to hold that the
appellant failed to perform his part of contract, as such, it cannot be
said that he is entitled to the relief of specific performance of contract.
It is pertinent to mention here that the suit for specific performance of
contract was filed by the plaintiff/appellant after a period of seven
years, and it is not proved on the record that the plaintiff had been
always ready and willing to perform his part of contract.
5. Clause (c) of the Specific Relief Act, 1963 provides that specific
performance of contract cannot be enforced in favour of a person 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 he has been
prevented or waived by the defendant. In the present case, as discussed
above, due to the failure on the part of the appellant to repay the loan in
terms of the agreement dated 10th May, 1980 (Ex.A.1) and further
considering the fact that not only the suit being O.S.No.208 of 1981 filed
by the creditor Bank was decreed against the debtor but it attained
finality, the Courts below have committed no error of law in refusing to
decree the suit of the appellant for specific performance of contract.
6. In the case of Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC 534
in which reliance has been placed on behalf of the appellant, it has been
held that where from the pleadings and evidence of the parties it is
manifest that the plaintiff was ready and willing to perform his part of
the contract, the relief of specific performance may not be denied to him.
Relevant parts of paragraph 9 and 12 of the said judgment read as under:
“9. The requirements to be fulfilled for bringing in compliance with
Section 16(c) of the Act have been delineated by this Court in several
judgments. Before dealing with the various judgments it is necessary to set
out the factual position. The agreement for sale was executed on 15-2-1978
and the period during which the sale was to be completed was indicated to
be [pic]six months. Undisputedly, immediately after the expiry of the six-
months’ period, lawyer’s notice was given calling upon the present
appellant to execute the sale deed. It is also averred in the plaint that
the plaintiff met the defendant several times and requested him to execute
the sale deed. On finding inaction on his part, the suit was filed in
September 1978. This factual position has been highlighted in the plaint
itself. The learned Single Judge after noticing the factual position as
reflected in the averments in the plaint came to hold that the plaint
contains essential facts which lead to inference to the plaintiff’s
readiness and willingness. Para 3 of the plaint indicates that the
plaintiff was always ready to get the sale deed prepared after paying
necessary consideration. In para 4 of the plaint, reference has been made
to the lawyer’s notice calling upon the defendant to execute the sale deed.
In the said paragraph it has also been described as to how after the
lawyer’s notice was issued the plaintiff met the defendant. In para 5 it is
averred that the defendant is bound to execute the sale deed on receiving
the balance amount and the plaintiff was entitled to get the document
executed by the defendant. It is also not in dispute that the balance
amount of the agreed consideration was deposited in court simultaneously to
the filing of the suit.
Xx xx xx
12. The basic principle behind Section 16(c) read with Explanation (ii) is
that any person seeking benefit of the specific performance of contract
must manifest that his conduct has been blemishless throughout entitling
him to the specific relief. The provision imposes a personal bar. The Court
is to grant relief on the basis of the conduct of the person seeking
relief. If the pleadings manifest that the conduct of the plaintiff
entitles him to get the relief on perusal of the plaint he should not be
denied the relief.”
7. But in the present case, there is concurrent finding of fact and
the same is evident from the record that the plaintiff (present appellant)
has failed to perform his part of contract, as such, in our opinion, above
case law is of little help to the plaintiff/appellant, and the courts
below have not erred in law in not granting the relief of specific
performance of contract to the plaintiff in OS.No.37 of 1985.
8. For the reasons as discussed above, we find no illegality in the
judgment and orders challenged before us. Accordingly, both the appeals are
dismissed with costs.
….…………………………………………..J
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J
(PRAFULLA C. PANT)
NEW DELHI,
SEPTEMBER 8, 2014.
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