N. CHANDRASHEKAR Vs. MRS. PAPAMMA

JUDGEMENT

(1.) THIS appeal is directed against a judgment dated 1.1.1994 of the VI Additional City Civil Judge, Bangalore City in O.S. No. 2912 of 1990. The Appellant is the original Plaintiff and he had filed a suit for specific performance against the Defendant alleging that the Defendant who is the owner of a residential house which is the suit property had by an agreement dated 15.11.1989 agreed to sell the property in question to the Plaintiff for a sum of Rs. 98,000/ -. The Plaintiff had on the same date paid a sum of Rs. 10,000/ - as earnest money and a further sum of Rs. 30,000/ - on 8.2.1990. The agreements specify that the balance amount was to be paid within a period of two months. On 8.2.1990, the time was extended up to 6.3.1990. Thereafter, the correspondence indicates that the Plaintiff was asked to remain present by the Defendant at the Sub -Registrar's Office and complete the transaction on 9.4.1990 and the Plaintiff contends that he could not do so because the letter was received by him only on 10.4.1990. It is by the letter dated 16.4.1990, that the Plaintiff once again fixed an appointment for 3.5.1990 before the Sub -Registrar, Guttahalli for the completion of the sale transaction. Whereas it is the Plaintiff's case that since the Defendant had not specified the requirement regarding vacant possession that he did not go to the said place on that date, the Defendant has contended that she was waiting at the Sub - Registrar's Office for the whole of that day and that the Plaintiff did not turn up. By a notice dated 4.5.1990 which is Ex.P -17 the Defendant intimated the Plaintiff that the amount paid by him had been forfeited on the ground that the Plaintiff had failed to honour the terms of the agreement. This briefly is the narration of the background that gave rise to the Plaintiff instituting the suit for specific performance. The Plaintiff has made the usual averments contending that he was ready and willing to perform his obligations under the contract, that the Defendant has committed the breach by not complying and that consequently the Court must pass a decree for specific performance. The defence plea in the written statement essentially revolves around the fact that according to the Defendant the Plaintiff has not exhibited the requisite readiness nd willingness to complete the sale and the Defendant seeks to rely on certain facts, the first of them being that the Defendant had handed over the title deeds to the Plaintiff, the second being that at no stage did the Defendant back out of her obligations by either writing or stating to the Plaintiff that she was unwilling to either receive the balance consideration or execute the sale deed. Lastly what is pointed out is that the Defendant had in fact gone to the Sub -Registrar's Office on 3.5.1990 and that this is the strongest indication of the desire on her part to perform the obligations as spelt out from the agreement. Also, what is pointed out by the Defendant is that there was a double default on the part of the Plaintiff once on the 9th of April and the second time on the 3rd of May on both occasions, when the Plaintiff did not turn up for the execution of the sale deed before the Sub -Registrar. In sum and substance, the defence pleaded is that the Plaintiff was the defaulter and in these circumstances that the Defendant was justified in serving notice on the Plaintiff revoking the agreement. It was also contended by the Defendant that since this was a residential house which was self occupied that she in turn had desired to shift elsewhere and that certain commitments were made to this effect which according to them were dependent on the receipt of sale proceeds from the Plaintiff and it was also contended that because of the timely non -payment by the Plaintiff that the Defendant was unable to complete the second transaction and that she had in turn sustained a loss thereby. This was basically a second line of defence in justification for the Defendant forfeiting the money that had been paid to her by the Plaintiff. The learned trial Judge after recording the evidence evaluated it and considering the position in law, dismissed the suit holding that the Plaintiff was not entitled to a decree for specific performance. The present appeal assails the correctness of that order. After the filing of the appeal, the Appellant has sought to graft on a subsidiary relief as an alternative to the decree for specific performance. This was perhaps because of the observations made in the judgment wherein the trial Court has taken an ultra technical view of the law but it is well settled that where a party approaches a Court for a decree of specific performance that it is equally permissible for the Court if that relief is not granted or if the granting of that relief is inadvisable, to grant a lesser relief after considering the facts and circumstances and evaluating the equities.

(2.) AT the hearing, after referring to the oral evidence and the correspondence the Appellant's learned Advocate submitted that his client was at all times ready and willing to pay the balance money and the explanation given by him for the non -appearance of the Plaintiff when called upon to complete the sale transaction on 9.4.1990 was that the letter asking the Plaintiff to remain present on that date was only received on 10.4.1990. This appears to be the correct position and therefore, the Plaintiff cannot really be faulted for what happened. Next, the learned Advocate submitted that as far as 6.5.1990 is concerned, that the evidence on record and the correspondence and particularly the relevant clauses of the agreement Ex.P -1 would justify the Plaintiff's contention that the Defendant was obliged to satisfy the Plaintiff that vacant possession of the premises was in fact possible as on 3.5.1990 and according to the learned Advocate, since the Defendant had not done so that his client was justified in not going to the Sub Registrar's Office and completing the sale on that date. It is his submission that in the case of an immovable property, particularly residential premises, if the vacant possession is not assured that the party is not obliged to complete the sale deed and he referred to the document Ex.P -1 in support of his contention in this regard. It is true that Clause (vi) of the agreement does stipulate that the Vendor shall hand over the vacant possession of the property to the purchaser at the execution of the sale deed and the learned Advocate submitted that it was condition precedent for the Defendant to have demonstrated this to the Plaintiff before receiving the balance payment and completing the sale. In sum and substance, what is vehemently contended is that the trial Court was manifestly in error in having refused a decree on the simple facts of the present case and the learned Advocate has submitted that the decision requires to be reversed. The learned Advocate who represents the Respondent i.e. the original Defendant has submitted that the most important ingredient in law namely the fact that the Plaintiff was ready and willing to perform his obligations under the contract has very rightly been held not to have been satisfied by the trial Court. What he demonstrates is that the agreement was originally entered into on 15.11.1989 and that on 8.2.1990 the time was mutually extended up to 6.3.1990. It is his submission that if the Plaintiff was genuine and serious about completing the sale transaction that this was the deadline within which it ought to have been done and he submits that the bonafides of the Defendant are apparent from the fact that she still agreed as and by way of a concession to complete the transaction by 9.4.1990 and that the Plaintiff was certainly on the wrong side of the law in not having complied within this time -frame. While there can be little dispute about the fact that the letter did not reach the Plaintiff before 9.4.1990, the learned Advocate in the course of his submissions contended that the law casts a higher obligation on the purchaser in cases of this type because it is the purchaser who has to get the money ready and indicate when the purchaser will complete the sale and he further contends that in the present instance the obligation to purchase the stamp paper and get the document drawn up was also on the Plaintiff and he submits that irrespective of the date on which the letter was received that there is nothing on record to indicate that the Plaintiff had taken any steps in this regard. What he further contends is that the Plaintiff was finally called upon to comply with his obligations by 3.5.1990 which again was an extended concession on the part of the Defendant and he submits that even on this date there was complete silence on the part of the Plaintiff. He refutes the argument regarding the question of vacant possession by pointing out that there is nothing on record to indicate that this was the reason why the Plaintiff remained absent and it is his submission that the Court must uphold the findings of the trial Court that even though the Plaintiff has repeatedly stated that he was ready and willing to perform his obligations that his action speaks larger than his words and that it was abundantly clear that he did not desire to complete the sale within the stipulated period of time.

(3.) THOUGH this aspect of the case has been vehemently elaborated, I do not propose to attach undue importance to it for only one reason namely that when the Plaintiff stated that he had obtained the money and kept it with him in the house, the cross -examination was not pursued and consequently, it will have to be left at the position that the Defendant accepted this explanation. These are all questions of fact and if the Plaintiff was not rigorously grilled in the witness box and if it was not demonstrated that this statement was either false or doubtful, it is not open at the appellate stage to call this issue into question. In any event, the law on the point is now well defined and the Courts have held that it is not absolutely essential in such situations for the Plaintiff to have demonstrated that the money had been physically procured and the Supreme Court has virtually concluded the issue while holding that if the Plaintiff indicates that the party even had the capacity to raise the funds, that it would be sufficient.