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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

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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 10 th 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  

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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:-

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1. 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.

2. 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:

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“ 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  

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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  

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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 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  

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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.”

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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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