1    

Non-Reportable  

 IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.3336 OF 2019  

(Arising out of S.L.P.(C) No.1701 of 2016)  

BHAVYANATH REPRESENTED BY   

POWER OF ATTORNEY HOLDER      …  APPELLANT(S)  

                               VERSUS  

K.V. BALAN (DEAD) THROUGH LRS.      …  RESPONDENT(S)  

J U D G M E N T    

K.M. JOSEPH, J.  

1. The appeal by Special Leave is directed against  

the judgment passed by the High Court of Kerala at  

Ernakulam dated 08.10.2015 in RFA No.869 of 2013. The  

appellant is the plaintiff in a suit for specific  

performance which has been decreed by the trial Court  

but on appeal by the defendant dismissed by the  

impugned judgment of the High Court. For the sake of  

convenience, the parties would be referred hereinafter  

as per their status shown in the plaint before the  

trial Court.

2    

THE AGREEMENT  

2. There is no dispute that the plaintiff and the  

defendant have indeed entered into an agreement on  

25.04.2007. The agreement (marked as A1), inter alia,  

provided as follows; The property, which was agreed,  

to be sold was mentioned as 75 ¾ cents held by the  

defendant as per assignment deed No.1405 of 1975. The  

property agreed to be sold included all improvements  

thereon including an incomplete RCC house building,  

Well, motor shed etc. Payment of Rs.2,00,000/- as  

advance was recorded. Towards balance consideration the  

plaintiff was to pay the minimum amount of  

Rs.3,00,000/- within four months from 25.04.2007. It  

is further recited that on such payment, the defendant  

will assign land equivalent to Rs.3,00,000/- in favour  

of the person nominated by the plaintiff for the  

portion agreed by both the parties. The consideration  

was fixed at Rs.34,000/- per cent of property to be  

found on actual measurement. The time limit was fixed  

as "till the 24th day of March, 2008". Time limit was  

expressly mentioned as an essential part of the  

agreement. The assignment was to be executed either in

3    

favour of the plaintiff or any other person nominated  

by him in writing. Before the execution of the  

assignment deed, the contract further provided that the  

plaintiff shall be convinced of the title of the  

property and other connected things.  

DEVELOPMENTS AFTER THE AGREEMENT  

3. It is not in the region of dispute that the  

plaintiff paid Rs.3,00,000/- by cheque on 25.08.2007  

and it is also endorsed in the agreement. Thereafter,  

on 25.01.2008 the defendant sent a lawyers notice to  

the plaintiff. Therein it is stated that the defendant  

holds 75 ¾ cents as per the assignment deed, already  

referred to, which property was agreed to be sold for  

Rs.34,000/- in terms of the agreement and the last date  

of the agreement was fixed as 24.03.2008. It is further  

stated that the plaintiff was to give balance  

consideration by deducting the advance within the  

stipulated time for which the defendant is ready and  

he called upon the plaintiff to get ready for the same  

by that time. It is further stated that the plaintiff  

had orally offered to the defendant in the presence of  

witnesses that he will take assignment of the property

4    

even before the stipulated date for which the defendant  

is ready.  

4. The plaintiff caused a reply notice to be sent to  

the aforesaid lawyers notice. The reply notice sent was  

dated 18.03.2008. Therein it is relevant to notice  

certain statements. After referring to Ext.A1  

agreement, it is stated that the lawyers notice was  

sent by the defendant without getting the property  

measured or producing and convincing the plaintiff  

about the original title deed No.1405/1975 as well as  

prior documents. It is stated that the plaintiff was  

and is continuously ready and willing to perform his  

part of the agreement right from the beginning till  

then and in future. The statement in the notice, sent  

by the defendant, is denied that the plaintiff will  

take the assignment before the agreed date and it was  

agreed so in the presence of witnesses. It is alleged  

that defendant sent the notice with ulterior motive  

concealing that property had not been measured and  

without producing the original title deed. The  

plaintiff pointed out that the defendant consented to  

measure the property only three days before that date

5    

i.e. on 16.03.2008 (it may be noticed that reply notice  

is dated 18.03.2008 and it was sent only later). It was  

further stated that the defendant told the plaintiff  

that the total extent of property, as per the document,  

found on measurement was only 70.950 cents. The case  

sought to be set up further is that, according to the  

plaintiff, 1 ½ cents of property was not in the  

possession or ownership of the defendant. Out of the  

70.950 cents of property one cent on the southern  

boundary was alleged to belong to one Kochammu and  

another ½ cent of property on the northern boundary  

belonged to some one else. This information was got by  

plaintiff from reliable source. The plaintiff complains  

in the reply notice that the defendant was insisting  

that he will assign the property only if the  

consideration in full for the said 70.950 cents was  

paid. Objection was taken to the same by the plaintiff.  

Thereafter, it is, inter alia, stated that the  

plaintiff is ready and willing to take the assignment  

of the entire property available as per the original  

document No.1405/1975. The insistence on the part of  

the defendant in withholding the original document is  

stated to be ill-motivated. The plaintiff thereafter

6    

states that he wished to construct residential house  

building for his own occupation adjacent to the  

property as per agreement which is very close to his  

proposed residence. Plaintiff is alleged to have made  

solid arrangement for the same. It was specifically,  

inter alia, stated that the plaintiff had arranged  

balance consideration and he was continuously ready and  

willing to take the assignment right from the date of  

the agreement i.e. on 24.03.2007 and thereafter in  

future as well.   

We further notice that on 24.03.2008, which as per  

Ext.A1 agreement, was to be the "last date" under the  

agreement, the plaintiff and the defendant claimed that  

they were present at the office of the Sub Registrar.  

According to the plaintiff, the defendant was elusive  

and could not be contacted over the phone and he was  

unavailable. The plaintiff filed a complaint before the  

police on 24.03.2008 in the evening. He also followed  

it up with a petition before the Sub Registrar on  

25.03.2008. Within three days from 24.03.2008, that is  

on 27.03.2008, the present suit came to be instituted,  

claiming specific performance. In the plaint, after  

referring to the agreement, the plaintiff has alleged

7    

that he was always ready and willing to perform his  

obligations. The blame was put at the doorstep of the  

defendant for breaching the contract. The defendant in  

his written statement on the other hand blamed the  

plaintiff for breach and it was his case that plaintiff  

was not ready and willing and he was not ready with the  

funds.  

PROCEEDINGS BEFORE THE TRIAL COURT  

5. The trial Court struck the following issues; (1)  

whether the plaintiff was ready and willing to perform  

his part of the contract, (2) whether the defendant  

committed breach and (3) whether the plaintiff is  

entitled to get a decree for specific performance. The  

trial Court, inter alia, found as follows.  

"8. It is true that plaintiff has not  

produced any document to show that he was  

having ready cash covering the balance  

consideration, payable by him under Ext.A1,  

at the relevant time. Of course, certain  

documents are produced to show that presently  

he is having some ready cash in the form of  

fixed deposits and in the form of share  

certificates etc. I do not think that any of  

these documents are much relevant in this  

case for the reason that in the nature of the  

dispute the plaintiff has to prove his  

capacity to pay the balance consideration  

within the period shown in Ext.A1. Production  

of these documents which are admittedly after

8    

the suit may not have much evidentiary  

value."  

6. The trial Court further holds that it is not the  

requirement of law that a vendor in a contract for sale  

has to carry the balance consideration with him always  

till the expiry of the agreement. It is sufficient that  

he has enough source to raise the funds as and when  

required. Rejecting the contention of the defendant,  

that plaintiff did not have money even when he entered  

Ext.A1 agreement, it was noticed that admittedly on the  

date of agreement Rs.2,00,000/- was paid and  

subsequently Rs.3,00,000/- was paid. The explanation  

of plaintiff as to why he did not take the proportionate  

extent on payment of Rs.3,00,000/-, as provided in the  

agreement, was accepted. It was found that the extent  

was not found sufficient on the advise of the engineer  

to start the construction.  The case of the plaintiff,  

in fact, is that the idea to purchase the plaint  

schedule property was to start a tuition center by  

making a partnership between himself and his family  

members. Thereafter, it is found as follows in  

paragraph 12:

9    

"12. Plaintiff has given clear evidence to  

the effect that he had sufficient money with  

him for completing his part. As already  

stated by him, he did not carry the ready  

cash with him through out the period of the  

agreement. The total amount o f consideration  

comes to Rs.25,67,000/-, even if the extent  

is taken as 75 3/4 cents. It is contended  

that plaintiff was only a student at the time  

of Ext.A1. He is so described in Ext.A1 also.  

PW1 says that even at that time he was  

employed. True, one cannot expect that from  

his employment alone he could have mobilized  

the balance consideration. The income tax  

returns filed by him show his salary and  

prove the above fact. But there is ample  

evidence to show that his father was actively  

involved in the transaction. PW1 has deposed  

that his family members were possessing gold  

ornaments worth Rs.25,00,000/- and he was  

having cash amount of Rs.8,00,000/- at the  

relevant time. The defendant has no case that  

the plaintiff was not supported by his  

father. In fact, the active involvement of  

his father in the transaction is rather  

admitted by defendant himself. Plaintiff has  

produced several documents to show that his  

parents are having sufficient properties and  

gold ornaments. Of course, most of them are  

after suit documents. But there is an  

admission made by DW1 that after Ext.A1, the  

plaintiff has purchased an adjacent plot  

measuring 10 cents. Considering the totality  

of the evidence available, I am inclined to  

hold that the plaintiff was having capacity  

to raise the balance consideration had the  

necessity arisen. Therefore, I am inclined to  

accept the evidence of PW1 that he was ready  

with the balance consideration or at least he  

was capable of raising the balance  

consideration as and when required."  

10    

7. The trial Court thereafter also rendered findings  

on the issue as to whether the defendant had committed  

breach. The contention of the plaintiff that the  

lawyers notice dated 25.01.2008 sent by the defendant  

was issued with ulterior motive was accepted. It was  

found that under Ext.A1 agreement the property was to  

be measured and the actual extent was to be  

ascertained. Before sending lawyers notice, the  

defendant had not got the property measured. It was for  

the defendant to get the property measured. Referring  

to the admissions made by the defendant, it was found  

that he had not taken any step for measuring the  

property. The admission that the defendant was aware  

on the date of Ext.A1 agreement that the entire extent  

of 75 ¾ cent was not available is referred to. The case  

of the defendant that the property was measured by the  

plaintiff on 16.05.2007 was found unacceptable. The  

case of the plaintiff was that on 16.05.2007 he along  

with engineer inspected the site to find out the  

possibility of construction in the extent falling  

proportionately to the amount of Rs.3,00,000/- was  

explored. Defendant was to convince the plaintiff  

regarding the title deed and the tax receipt. The

11    

plaintiff had got marked Ext.A9 and A10, encumbrance  

certificate. They revealed that mortgage was created  

by the defendant over the property in the year 1983.  

No entry regarding the clearance of the mortgage was  

found. The case of the defendant that he had obtained  

the release deed was found unacceptable by noting that  

the release deed was neither produced nor there is any  

evidence to prove that fact. Thus, the defendant had  

breached his obligation under the contract. The  

plaintiff got the property measured through the village  

officials on 16.03.2008 in the presence of the  

defendant. The trial Court relied on Ext.A42, the copy  

of the counter, filed by the defendant to interlocutory  

application, filed by the plaintiff, wherein the  

defendant has averred that the plaintiff and his father  

got convinced to the actual extent as 70.950 cents by  

measuring the property. The trial Court found this to  

be a case of the defendant accepting that the  

measurement was done on 16.03.2008. The measurement on  

16.03.2008 was arranged and paid for by the plaintiff.  

It again, according to the trial Court, indicated the  

readiness and willingness on the part of the plaintiff  

and that the defendant was negligent in performing his

12    

part. In Court, the property was got measured by the  

Commissioner with the help of Taluk Surveyor. Ext.C2  

is the report and Ext.C2(a) is the survey plan prepared  

by Commissioner. They show that extent in possession  

of the defendant on the strength of the title deed is  

71.70 cents. 4.25 cents has been taken out from the  

property of the defendant for road. Another extent of  

0.375 cents was found to be in the possession of a  

third party. These facts are found to be admitted by  

defendant as DW1. Measurement in such circumstances was  

found absolutely necessary for the completion of the  

sale transaction. As regards both, the plaintiff and  

defendant, asserting that they were before the Sub  

Registrar on 24.03.2008, the trial Court found no  

meaning in the same. Both sides were aware that without  

measurement it would not have been possible to complete  

the transaction. The plaintiff found on measurement  

that only lesser extent is available. Appearance before  

the Sub Registrar could not be considered as an act  

showing the readiness and willingness, it was found  

both for the plaintiff and the defendant. Dehors this  

act, the trial Court found there were other  

circumstances which proved readiness and willingness

13    

of the plaintiff. No default on the part of the  

plaintiff being found and breach being found on the  

part of the defendant and still further finding no  

undue hardship even being complained of by the  

defendant, the trial Court decreed the suit by  

directing specific relief against the defendant.  

Defendant appealed.  

FINDINGS OF THE HIGH COURT  

8. The High Court, inter alia, has entered into the  

following findings. It referred to para ‘8’ of the  

judgment of the Trial court, which we have extracted.  

In paragraphs 23 and 24, the High Court proceeded  

to discuss the question whether the defendant was in  

breach and this is what the Court proceeded to say:  

"23. In so far as the condition requiring  

measurement of the amount is concerned,  

averments in the plaint itself show that on  

16.3.2008, the land was measured. Although it  

is case of the respondent that it was he who  

got the land measured, the appellant  

contended that it was at his instance, the  

land was measured. Though evidence is lacking  

to conclude this dispute either way, for the  

purpose of this case, we do not think it  

necessary to resolve this controversy for the  

reason that irrespective of who got the land  

measured, fact remains that the land was  

measured and the parties are in agreement  

that on measurement, the extent found was

14    

only 71.750 cents. In other words, this shows  

that as a result of teh measurement carried  

out on 16.3.2008, one of the conditions for  

performance of the agreement was satisfied.  

24. In so far as the title of the appellant  

is concerned, even the respondent plaintiff  

has no case that the appellant did not have  

title or that it was defective and the  

question of handing over the title deds arise  

only at the time of execution of the sale  

deed. This, therefore, means that no fault  

could have been attributed on the part of the  

appellant and therefore, the court could have  

granted a decree for specific performance of  

the agreement only if the respondent had  

satisfied the requirements of section 16(c)  

of the Specific Relief Act. In so far as this  

aspect of the matter is concerned, the  

question is whether the respondent has proved  

his readiness and willingness to perform the  

agreement."  

9. After referring to various decisions of this Court  

and of the High Court, the High Court proceeded to find  

that a finding of breach by the vendor in performing  

his obligations would not be sufficient for a Court to  

decree specific performance. The breach by the  

defendant, in other words, would not absolve the  

plaintiff to allege and prove his readiness and  

willingness to perform his obligations under the  

contract. "Readiness" relates to financial capacity to  

pay consideration whereas "willingness relates to the

15    

state of mind. Following are the findings which we may  

refer to:  

"25. While readiness indicates the fiscal  

capacity of the respondent to perform the  

agreement, willingness indicates his state of  

mind. In so far as readiness is concerned,  

the further question that is required to be  

proved is whether readiness has been proved  

on the evidence available. We have already  

referred to paragraph 8 of the judgment and  

the oral evidence of PW1 which, to our mind,  

do not help the respondent plaintiff to prove  

his case of readiness or his capacity to  

perform the agreement. Turning to the  

documents that are relied on, those documents  

include Exts.A22 and A23 valuation  

certificates of the gold allegedly possessed  

by the respondent's mother and wife, which  

were marked through PW4. Ext.A24 series and  

A25 marked through PW8 are the certificates  

issued about the properties allegedly owned  

by them. These are documents which were  

obtained after 24.3.2008 and are regarding  

the assets owned by the father, mother and  

wife of the respondent plaintiff. The owners  

of these assets have not tendered any  

evidence whether the actually possessed these  

properties at the time when the agreement was  

to be performed and even if they had  

possessed these assets, whether they were  

willing to part with it in order to enable  

the respondent plaintiff to generate funds  

out of it towards the sale consideration  

payable under Ext.A1. There is also no  

averment in the plaint to that effect.  

26. In so far Exts.A11 to A16 are concerned,  

these again are fixed deposit receipts issued  

in the year 2012, which also cannot help the  

respondent plaintiff to prove his capacity as  

on 24.3.2008 or any time before that. Among  

the other documents which were relied on by  

the learned counsel for the respondent to

16    

contend that the readiness was proved by him,  

Exts.A17 and A20 show that his father had  

sold certain shares on 3.11.2010. Similarly,  

Ext.A18 shows that the respondent had sold  

his shares on 31.8.2010. Ext.A19 is yet  

another document which show that on  

26.12.2011 his mother had sold certain  

shares. Exts.A26 and 27 are certificates  

issued by the Canara Bank and Union Bank  

again in 2013 when the trial was pending,  

which show that his father had certain funds  

available with him. As in the case of  

Exts.A11 to A16, A22, A23, A24 and A25, all  

these documents would not show that funds  

were available with either of the respondent  

or his parents on 24.3.2008 or any time prior  

thereto. Therefore, these documents also will  

not help the respondent to contend that his  

readiness and willingness were proved by him  

to substantiate his prayer for specific  

performance of Ext.A1 agreement."  

10. On the above reasoning, High Court allowed the  

appeal and decree of the trial Court was set aside.  

11. We have heard Shri K.V. Viswanathan learned senior  

counsel for the appellant/plaintiff besides Shri P.N.  

Ravindran learned senior counsel for the  

respondent/defendant.  

12. Learned senior counsel for the plaintiff points  

out that High Court committed error in interfering with  

the judgment of the trial Court. The principles

17    

relating to compliance with Section 16(c) which  

enshrines the concept of readiness and willingness on  

the part of the plaintiff has not been properly  

appreciated. He submitted that plaintiff had sufficient  

capacity which is what mattered. The law cannot be  

disputed that in a suit for specific performance, the  

plaintiff need not have the amount in cash. What is  

crucial is whether he has the financial capacity to  

perform his obligations. He drew our attention to the  

fact that the plaintiff along with members of his  

family, which consisted of his father, mother and his  

wife, had enough resources. An amount of Rs.5,00,000/-  

was already paid. Even the gold ornaments having regard  

to their value (valued at Rs.24,00,000/-) besides about  

Rs.8,00,000/- in cash held by the plaintiff himself  

would suffice. The Court need not even go into the  

aspect relating to landed properties and other assets  

available. As regards the finding of the High Court  

about the certificates relating to landed property,  

being later in point of time, it is pointed out that  

lands were very much with the members of the family as  

on the date of the agreement and the date when the sale  

was to be executed. The fact that the certificates were

18    

of a later date did not take away the availability of  

these assets. He pointed out that, in fact, the dispute  

actually centered around the extent of property and the  

financial capacity was not in dispute as such.  

13. Per contra, Mr. P.N. Ravindran, learned senior  

counsel drew our attention in paragraph 8 of the trial  

Court which we have already referred to. He further  

submitted that as regards the gold ornaments, the  

plaintiff has not chosen to examine the members of his  

family and without their testimony showing their  

willingness to make available their valuables, apart  

from the availability of the assets, it could not be  

said that the High Court fell into error.  

14. Before we advert to the facts it is appropriate to  

discuss a few decisions of this Court. In Man Kaur  

(Dead) by Lrs. v. Hartar Singh Sangha - (2010) 10 SCC  

512, this Court dealt with the contention of the  

purchaser in that case that the vendor had committed  

the breach and there is no need for the plaintiff to  

prove his readiness and willingness. This is what the  

Court held in paragraph 40:

19    

"40. This contention has no merit. There are  

two distinct issues. The first issue is the  

breach by the defendant - vendor which gives  

a cause of action to the plaintiff to file a  

suit for specific performance. The second  

issue relates to the personal bar to  

enforcement of a specific performance by  

persons enumerated in section 16 of the Act.  

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 the terms the performance of  

which has been prevented or waived by the  

defendant) is barred from claiming specific  

performance. Therefore, even assuming that  

the defendant had committed breach, if the  

plaintiff fails to aver in the plaint or  

prove that he was always ready and willing to  

perform the essential terms of contract which  

are required to be performed by him (other  

than the terms the performance of which has  

been prevented or waived by the plaintiff),  

there is a bar to specific performance in his  

favour. Therefore, the assumption of the  

respondent that readiness and willingness on  

the part of plaintiff is something which need  

not be proved, if the plaintiff is able to  

establish that defendant refused to execute  

the sale deed and thereby committed breach,  

is not correct. Let us give an example. Take  

a case where there is a contract for sale for  

a consideration of Rs.10 lakhs and earnest  

money of Rs.1 lakh was paid and the vendor  

wrongly refuses to execute the sale deed  

unless the purchaser is ready to pay Rs.15  

lakhs. In such a case there is a clear breach  

by defendant. But in that case, if plaintiff  

did not have the balance Rs.9 lakhs (and the  

money required for stamp duty and  

registration) or the capacity to arrange and  

pay such money, when the contract had to  

beperformed, the plaintiff will not be  

entitled to specific performance, even if he  

proves breach by defendant, as he was not

20    

"ready and willing" to perform his  

obligations.”  

(Emphasis supplied)  

15. Taking up the issue relating to measurement of the  

property, let us examine the matter in some detail. In  

Ext.A1 agreement the defendant had agreed to sell 75 ¾  

cents acquired under document No.1405/1975. The price  

was fixed as Rs.34,000/- per cent. The extent was no  

doubt to be found on actual measurement. The trial  

Court found that though it is not stipulated as to who  

will carry measurement, but the defendant being in  

possession he was, to undertake the measurement. The  

defendant, when he was examined as DW1, has inter alia  

stated as follows; For the purpose of determination of  

sale consideration property had to be measured. He  

further states that after one week of the date of  

execution of the agreement Gopi brought a person and  

measured the property. When he saw the measuring  

activity, he went to the property and asked for a copy  

of the measurement details, but was not given. We  

proceed on the basis that the reference to Gopinath,  

is none other than the father of the plaintiff. He  

admits that these facts are not stated in the written

21    

statement. He states that he did not know about the  

measurement of the property on 16.03.2008. There was  

no opportunity to get the plaint schedule property  

measured before the same was to be assigned. He  

specifically states that he has not convinced them the  

actual measurement of the plaint schedule property. He  

further states that no measurement of the plaint  

schedule property was done before the expiry of the  

agreement period. He further states that he has not got  

measured the extent of property after execution of the  

agreement. He states that he does not remember about  

the statement in Ext.A42 about the extent of the  

property being convinced of by the plaintiff and his  

father to be 70.950 cents. He specifically states that  

it is not right to say that the plaint schedule property  

has been got measured on 16.03.2008. He states that he  

was not present at that time. We would think that the  

High Court was in error in holding that on measurement  

being carried on 16.03.2008, one of the conditions for  

the performance of agreement was satisfied if it is  

meant to find that the defendant had carried out the  

obligations under the contract. It is noticed from  

paragraph 23 of the impugned judgment that contrary to

22    

his deposition, which we have adverted to as DW1, it  

was contended on behalf of the defendant that the  

measurement on 16.03.2008 was at his instance. It is  

noticed that under Ext.A1 agreement the extent was  

stated to be 75 ¾ cents, under a particular assignment  

deed. The consideration was undoubtedly fixed with  

regard to the actual extent at the rate of Rs.34,000/-  

per cent. It is clear that the measurement was  

essential for executing the conveyance and the  

performance of further mutual obligations. When the  

lawyers notice was caused to be sent on 24.01.2008 by  

the defendant, he adverts to 75 ¾ cents. There is no  

reference of any measurement having been done on  

16.05.2007. We are inclined to find that it was the  

plaintiff who took the initiative and the property  

indeed was measured on 16.03.2008. We are further  

inclined to agree with the trial Court that the  

plaintiff, it is who financed the measurement by making  

payment as he claimed. Testimony of the witness  

accepted by the trial Court, which has had opportunity  

to watch the demeanour of the witness is not to be  

likely shaken by the appellate court.  

23    

16. Still further the next finding by the High Court  

is contained in paragraph 24 of its judgment. The Court  

proceeds to hold that even the plaintiff has no case  

that the defendant did not have title or that it was  

defective and the question of handing over title deed  

arises only on the execution of the sale deed and  

therefore no fault could be attributed to the  

defendant.  

17. In this regard there are two aspects which we would  

think has not been considered by the High Court. We  

have adverted to the statements in the reply notice  

sent dated 18.03.2008 by the plaintiff. The measurement  

took place on 16.03.2008. On measurement it appears to  

have been found that the extent available with the  

defendant was 70.950 cents. However, plaintiff found  

that one cent out of the 70.950 cents was not with the  

defendant and instead was with one Kochammu and half  

of cent was with somebody else in the northern side.  

However, when this was brought to the notice of  

defendant, according to plaintiff, he wanted payment  

on the basis that he had the whole of 70.950 cents.  

Therefore, the said question related to the title of

24    

the defendant, a question relating to the exact extent  

available for being conveyed. Secondly and far more  

importantly, admittedly there was a mortgage over the  

plaint schedule property created in 1983 by the  

defendant. Encumbrance certificates produced by the  

plaintiff has been relied upon by the trial Court to  

find that the mortgage had not been cleared. The  

defendant in his evidence as DW1 sets up the case that  

the mortgage was cleared and release deed was available  

with him. It is at his home. On the one hand, the  

encumbrance certificates did disclose the mortgage and  

they did not reveal the clearing of the mortgage. The  

defendant on the other hand, though setting up the case  

that the debt was paid of and mortgage was got released  

but did not choose to produce the evidence which was  

in his possession.  

18. The High Court has overlooked this aspect and came  

to the conclusion that there was no dispute relating  

to the title. Under Ext.A1 agreement, it was incumbent  

upon the defendant to convince the plaintiff about the  

title of the property and other connected things. No  

doubt, the plaintiff had made a demand for the original

25    

title deeds relating to the property, as he wanted to  

use them for the purpose of taking a loan in connection  

with his proposed construction. This we do not think  

he was entitled under the contract and if the defendant  

refused the title deeds we would not be in a position  

to blame him. We are, therefore, of the view that the  

High Court has fallen into an error in reversing the  

finding that the defendant was in breach of his  

obligations.    

19. We have noticed the law to be that it does not  

suffice for the plaintiff in a suit for specific  

performance to establish that the defendant was in  

breach to seek a decree for specific relief. The  

plaintiff must further establish, if it is contested  

that he was ready and willing from the date of the  

contract to perform his obligations.   

20. In a contract, a contract usually embodies mutual  

obligations. The order of performance of obligations  

by the parties to the contract would have an impact on  

the aspect relating to readiness and willingness  

undoubtedly. In fact, readiness and willingness on the  

part of plaintiff makes its appearance right from the

26    

time of the reply notice sent by the plaintiff and  

continued in his pleadings. We are, however, concerned  

in this case only with the aspect relating whether he  

has proved despite what he might have established  

against the defendant that he was ready to perform his  

obligations. To begin with, the plaintiff has filed the  

suit on 27.03.2008. It must be remembered that under  

Ext.A1 agreement, the last date for executing the sale  

deed was 24.03.2008. This means on the third day of the  

date fixed under the contract on the allegation that  

the defendant resiled from the promise to execute the  

sale deed, the plaintiff has knocked at the doors of  

the Court seeking specific relief.  

21. The second thing which no doubt appears in favour  

of the plaintiff is that on the date of the agreement,  

which was 25.04.2007, admittedly an amount of  

Rs.2,00,000/- was paid as advance within four months  

of the agreement, again, indisputably a further sum of  

Rs.3,00,000/- came to be paid by the plaintiff and  

accepted by the defendant. The further question that  

arises, however, is whether the High Court was right  

in holding that the plaintiff was not in a position to

27    

perform the financial obligations under the contract.  

At this juncture, let us examine the state of the  

evidence adduced by the parties.  

22. The plaintiff has examined himself as PW1 and  

further examined eight other witnesses. He has also  

marked Ext.A1 to A42. The defendant has examined  

himself as DW1. There are other Court exhibits which  

are related to financial position of the plaintiff.  

23. Not unnaturally, we must first look to what the  

plaintiff has deposed before the Court. The plaintiff  

says, inter alia, as follows in his cross-examination;  

During the period of Ext.A1 agreement I was a student.  

He added that he had a part time teaching job and  

consultancy service. The plaintiff claimed that he was  

a teacher in an academy. He produced income tax  

returns. He was asked the following questions. At the  

time of the filing of the suit, you have not produced  

any document showing availability of money required for  

taking assignment of the property. Whether there is any  

specific reason for the same (Question)? There is no  

specific reason for the same (Answer). Is there any

28    

reason for not stating in the plaint in what way the  

amount required was arranged (Question)? No special  

reasons (Answer). How much amount was arranged by you  

on 24.03.2008 to take assignment of plaint schedule  

property (Question)? There was gold jewelry worth  

Rs.24,00,000/- held by myself and my family members.  

Besides, about Rs.8,00,000/- was arranged in cash also  

(Answer). He states that he has understood that the  

main dispute in this case is that he was not having the  

capacity to raise the consideration as per Ext.A1  

agreement. Another question which was put to the  

plaintiff is as follows. Apart from producing certain  

documents on 02.02.2013 showing availability of funds,  

you have not produced any other document before that  

to show funds (Question)? No (Answer).  

24. We must notice that Shri K.V. Viswanathan, learned  

senior counsel would submit that High Court has  

appreciated aforesaid question and answer erroneously.  

He pointed out that actually when the plaintiff  

answered 'no', it should be understood the meaning was  

that he was denying the suggestion that the plaintiff  

had not produced any document to show funds. He would

29    

submit that had the answer been yes, it could be  

inferred that there was no document. The plaintiff  

continues and states six documents being Ext.A11 to A16  

are of the year 2012. The number of shares are not  

mentioned in Ext.A17. The plaintiff has further  

apparently, with reference to income tax returns Ext.35  

and 36, stated that income has been shown as  

Rs.1,18,000/- and Rs.1,32,000/- for the assessment  

years 2007-08 and 2008-09 respectively. No doubt there  

is no mention about his investments and shares in the  

income tax returns. Plaintiff claimed that during the  

year 2004-05 his income was about Rs.30,000/- and  

during 2005 the same was around Rs.60,000/-. He joined  

an academy as a teacher in the year 2006. He resigned  

from the same during the year 2011. During the period  

2006-08 he purchased and sold 22 cents of land.  

Plaintiff does not remember the price at which the  

property was purchased. He denied the suggestion that  

he was not having the money to purchase the property  

admeasuring 70.950 cents or as reduced by 1 ½ cents.  

He was having required amount then and now and he was  

ready and willing to take the property, he deposed.  

30    

25. PW2 is a Managing Director of financial company.  

He has produced and marked Ext.A19 certificate relating  

to shares held by the mother of the plaintiff.  

26. PW3 is a Depository Participant of a broker. He  

was examined to prove the shares held by his mother.  

He states that he came to depose on being asked to do  

so by Gopinathan (father of the plaintiff).  

27. PW4 is a Government Gold Valuer of Income Tax  

department and he has proved Ext.A22 valuation report  

issued to the mother of the plaintiff after examining  

her gold ornaments. He has also proved Ext.A23  

valuation report, issued to the wife of the plaintiff,  

after examining her gold ornaments. In cross-

examination he would also state that he has not  

received summons from the court, but was asked by  

Gopinathan (father of the plaintiff). He states that  

he has previous acquaintance with Gopinathan. He came  

for valuation and thus he knew him. He states further  

in cross-examination that the mother and wife of the  

plaintiff came to him for valuation along with  

Gopinathan. He further states that they neither

31    

produced nor he demanded the bills or receipts relating  

to the gold ornaments he valued that day. He further  

states that they did not produce any document showing  

ownership of the gold ornaments mentioned in Ext.A22  

and A23 jewelery produced for valuation. In  

reexamination, he points out that Gopinathan, who came  

on the date of the gold valuation was sitting in the  

Court.  

28. PW5 is the Branch Manager of the Syndicate Bank.  

He has marked Ext.A41. In cross-examination he states  

that the loans were availed on 14.07.2012 and  

22.03.2012. He further states that Syndicate Bank  

advances loan at the rate of Rs.2100/- per gram of  

gold. The two loans were given for agricultural  

purposes.  

29. PW6 is the Manager of Union Bank and he approved  

Ext.A27. Again he is produced to prove gold loan which  

is issued for agricultural purposes. The loan was  

issued on 12.01.2013. The loan was given at the rate  

of Rs.2000/- per gram of gold.  

32    

30. PW7 is the Chairman and Managing Director of  

Financial Chits Company. He proved Ext.A17, 18, 20 and  

21. In cross-examination he states he knows Gopinathan.  

He states that he (Gopinathan) is practising as an  

accountant and auditor in the next building. He states  

that the shares held by him as per Ext.A20 was  

transferred from his name on 03.11.2010. At present  

Gopinathan and his son, the plaintiff, did not hold any  

shares in the companies. The value of one share he  

states is Rs.100/-. The plaintiff is not having any  

share as per Ext.A17. He is holding only 250 shares.   

31. PW8 has proved Ext.A24 and A25 reports. He claims  

to be the valuer of property. He has valued as on 2008.  

He denied the allegation that the present fair value  

is less than the value shown in the report. When he was  

asked what is the fair value of the properties, as  

determined by the government, the answer was that he  

has to verify. On similar lines was the answer in  

respect of another piece of land. In answer to the  

question whether he was ever verified the fair value  

of the survey, the answer is in negative. Gopinathan  

was known to him since last 12 years and he described

33    

him as an auditor. He says that he is not acquainted  

to his son (apparently the plaintiff).  

32. PW-9 is the Manager of Canara Bank and he proved  

Ext.A26 certificate. Apparently, it related to a gold  

loan.  

33. Coming to the evidence of defendant, we notice the  

following inter alia; He was aware that as on the date  

of agreement the extent of plaint schedule property did  

not have an extent of 75 ¾ cents. He says that he knew  

right from the date of the agreement that the plaintiff  

is not having money to purchase the plaint schedule  

property. When he was asked what was the reason for  

sending the lawyers notice on 25.01.2008, his answer  

was as follows: It was heard that plaintiff is trying  

to resell the plaint schedule property to third parties  

as he was not having money to purchase the same, hence,  

the said notice was sent. He further states that he did  

not know anything about the schedule of witnesses  

submitted in the Court by him including the names of  

witnesses as (1) Rajesh and (2) Muhammed. He says that  

he does not remember the fact that in the counter to  

the injunction petition, he had stated that the

34    

plaintiff told Rajesh to find prospective buyers for  

reselling the plaint schedule property on piecemeal  

basis. He further states that anyhow Rajesh and  

Muhammed were not examined as witnesses before the  

Court. He denies that plaintiff was ready with the  

money to purchase the plaint schedule property.  

34. The plaintiff on the date of the suit in the year  

2007 was 21 years. The agreement would show that the  

witnesses to the agreement are one Manoharan, who is  

none other than the son of the defendant and the other  

witness is Gopinathan, the father of the plaintiff. The  

trial Court has entered a finding that Gopinathan was  

actively involved in the contract. We have eluded to  

the fact that Gopinathan was a witness to the agreement  

to safely conclude that the father of the plaintiff was  

in the know of things and he was involved in the  

transaction. We have referred to Gopinathan, figuring  

in the deposition to arrive at the conclusion that the  

plaintiff, though the actual party to the agreement,  

the moving force and one who intended to support the  

plaintiff was his father. The assets which are relied  

on by the plaintiff to establish his financial capacity

35    

would appear to belong to the close relatives of the  

plaintiff, namely, his father, his mother and his wife.  

We must recall that in his deposition PW1, when he was  

asked as to on what basis he would claim that he had  

the financial capacity on 24.03.2008, his answer was  

that he had gold ornaments which were worth about  

Rs.24,00,000/- and he had about Rs.8,00,000/- in cash  

having regard to the payment of Rs.5,00,000/- by way  

of advance and further payment to be made, after making  

the advance, if Rs.24,00,000/- worth of gold being in  

the possession of the plaintiff’s family members  

besides Rs.8,00,000/- was there, certainly that would  

suffice to establish the case of the plaintiff about  

his financial capacity and readiness to perform the  

contract. The law is certainly not that the purchaser  

in a suit for specific relief must prove that he was  

having cash with him from the date of the agreement  

till the relevant date. What is important is that he  

had the capacity to allow the deal to go through. If  

gold was available, as claimed, we would think that on  

a pragmatic view of the matter, it may be idle to  

contend that it could not be converted into cash either  

by immediate sale or by raising a loan.

36    

35. We must, however, deal with certain other  

contentions before we come to a conclusion in this  

regard. The defendant has undoubtedly a case that the  

gold ornaments though claimed to be that of the mother  

and the wife of the plaintiff, without examining them  

as witnesses and without their deposition showing that  

they had those gold ornaments in their possession and  

that they were willing to employ them for the purpose  

of generating funds for the plaintiff, the Court cannot  

conclude the matter in favour of the plaintiff. We  

would think that it may be true that in a case of this  

nature and in view of the context, it may have been  

more appropriate that the relatives were examined.  

Their non-examination, however, may not fatal to the  

plaintiff. It must be realized that the relatives  

involved are none other than the mother and the wife  

of the plaintiff. Though subsequent their inclination  

can be inferred from their going to the valuer PW4. In  

such circumstances, we would think, it may be carrying  

matters a little too far to decline specific relief,  

particularly which was granted by the trial Court in  

its discretion to contend that the mother and the wife

37    

have not come forward to express their willingness to  

make available ornaments for the purpose of the  

plaintiff. In fact, no suggestion is seen put to the  

plaintiff about the same.  

36. The further question may, however, arise as on the  

relevant date whether the gold ornaments having the  

value of Rs.24,00,000/- was available with the mother  

and the wife of the plaintiff. We have noticed the  

deposition of PW4. He has stated that neither the bills  

nor receipts relating to the gold ornaments were  

produced. No documents relating to the ownership of the  

gold ornaments were also produced. Could it be said,  

therefore, that the gold ornaments never belonged to  

the mother and the wife of the plaintiff and the  

valuation report is therefore robbed of any value that  

might otherwise be attached to it.  

37. It is here we may notice that the family of the  

plaintiff was possessed of considerable assets even  

otherwise in terms of landed property. We further  

notice that the plaintiff has proceeded to purchase  

another 10 cents during the period when the contract

38    

was in existence (relied upon by the trial Court to  

establish the readiness and willingness in terms of  

capacity apparently).  

38. A1 contract is dated 25.04.2007. Plaintiff was, no  

doubt, 21 years of age. His father Gopinathan was a  

witness to A1. Knowing these facts, defendant entered  

into the agreement, and what is more, received Rs.2  

lakhs on the date of the agreement. Further, a sum of  

Rs.3 lakhs was received under the agreement on  

25.08.2007. The property is measured on 16.03.2008. On  

the third day from 24.03.2008, which was the last day  

for the execution of the sale deed, i.e., on  

27.03.2008, the suit came to be filed. After the  

advance paid by the plaintiff is deducted, the balance  

amount including the stamp duty and expenses would not  

exceed Rs.24 lakhs. There was the testimony of the  

plaintiff as to how he intended to pay the  

consideration on 24.03.2008. There was evidence of  

plaintiff having gold ornaments with him and family  

members worth about Rs.24 lakhs and cash of about Rs.8  

lakhs. It also appeared that one of the family members  

of the appellant had lands in her name. Even the

39    

appellant purchased other land during the period of  

contract. In regard to the statement by the plaintiff  

that gold ornaments worth about Rs.24 lakhs were held  

by him and family members and there was cash of about  

Rs. 8 lakhs, the plaintiff is not cross-examined as  

such. At any rate, there is no serious dispute raised  

when he was cross-examined in this regard. There is no  

question raised about the family members not making  

available the gold ornaments or that it was not  

available with them. The non-availability of bills  

relating to the gold jewellery to prove ownership as  

such may not be in the facts of this case fatal to the  

plaintiff.  

39. Having regard to the totality of the facts present,  

we are of the view that the High Court erred in  

interfering with the decree passed by the Trial Court.  

We notice that the appellant has deposited the sum of  

Rs.19,37,8000/- (balance amount) with the Government  

Treasury immediately after judgment dated 10.06.2013.  

While we are inclined to direct specific relief in  

favour of the appellant, we are of the view that we  

should also direct that interest at the rate of 6 per

40    

cent on Rs.19,37,8000/- from 27.03.2008 (date of suit)  

till date of deposit (in Government Treasury) should  

be directed to be paid over and above the balance amount  

to the respondents in exercise of our power under  

Article 142 of the Constitution of India. Hence, we  

allow the appeal, set aside the judgment of the high  

Court and restore the decree passed by the Trial Court,  

subject to the following modifications.  

40. We further direct that appellant shall pay a sum  

calculated at 6 per cent per annum on Rs.19,37,800/-  

from 27.03.2008 till the date of deposit in Government  

Treasury in 2013 also, apart with the balance to be  

paid. The respondents can withdraw the balance payment  

(i.e., Rs.19,37,800/-) as also amount calculated at 6  

per cent on Rs.19,37,800/- as aforesaid. The balance,  

if any, in the Government Treasury, can be withdrawn  

by the appellant. If the amount in the Government  

Treasury does not attract interest, the appellant shall  

deposit the amount of interest as calculated within 10  

weeks from today which can be withdrawn by the  

respondents. It is only after payment of interest as  

aforesaid, that the conveyance deed need be executed.  

41    

41.  The parties shall bear their own costs.  

.......................J.  

                     (ASHOK BHUSHAN)  

.......................J.  

                    (K.M. JOSEPH)  

New Delhi,  

September 12, 2019.