R KRISHNASAMY NAIDU Vs. AMBROSE

JUDGEMENT

(1.) PLAINTIFF is the appellant. The averments in the amended plaint are briefly as follows: The first defendant is the owner of the suit property having purchased the same on 8.8.1995. One A.X. Devadoss, Power of Attorney of the first defendant entered into an agreement with the plaintiff on 4.4.1980 for the sale of the suit house for a price of Rs.30,000. A sum of Rs. 10,000 was paid on the same date. The agreement provided, inter alia, that the registration should be completed before 31.5.1980 by paying Rs.5,000 to the Power of Attorney and the balance is to be paid directly to the first defendant or her husband or children or to someone who is specially empowered by the first defendant to receive the same. The plaintiff was also put in possession of the property. The Power of Attorney who agreed to produce the title deeds and the encumbrance certificate sought for extension of time for completion of the sale deed, even though the plaintiff was ready to pay Rs.5,000 and conclude the sale. The power of attorney has subsequently issued a notice on 21.1.1981 stating that he was ready to execute the sale deed. But the notice is silent with regard to the availability of the title deeds and encumbrance certificate for perusal by the plaintiff. The plaintiff sent a suitable reply and the Power of Attorney has sent a rejoinder also. The Power of Attorney had shown certain documents to the plaintiff, but not the title deeds or the encumbrance certificate. Notices were exchanged between the plaintiff and the power of attorney. The plaintiff was served with a notice on 18.2.1981 stating that the property has been sold to the second defendant for Rs.34,000 and calling upon him to vacate. The plaintiff has sent a reply. The plaintiff prays for a decree for specific performance of the agreement for sale or in the alternative for recovery of a sum of Rs. 10,000 paid as advance.

(2.) EVEN though the Power of Attorney has filed a written statement, since he was given up his written statement is not given.

(3.) IT is a recognised principle of as laid down in various decisions that continuous readiness and willingness on the part of the plaintiff from date of contract to date of hearing to perform his part of the contract, is necessary and failure to make good the averment brings the inevitable dismissal of the suit. (Vide: Pushparani Shanmughasundaram v. Pauline Manonmani James, (1993)1 L. W. 219. IT is laid down in the edecision reported in Rahat Jan v. Mohammad Usman, A.I.R. 1983 All. 343, as follows: "Sec. 16(c) of the Specific Relief Act, 1963 contains a mandatory provision, according to which no relief for specific performance of the contract can 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. Explanation to this section, further, lays down that the plaintiff should aver and prove his readiness and willingness to perform the contract according to its true construction. Readiness and willingness to perform his part of the contract is to be judged on the true construction of the agreement. The plaintiff cannot add any additional condition for the performance of his part of the contract. The readiness of the plaintiff must be in relation to the real agreement between the parties." The same view has been expressed by a Division Bench of our High Court also in the decision reported in Sankaran, S. v. N. G.Radhakrishnan, (1994)2 L. W. 642, wherein it has been held that the agreement for which readiness and willingness is pleaded, must be the agreement that is sought to be implemented and in terms thereof.