CHUNNI LAL Vs. SUDESH RANI AND ANOTHER

JUDGEMENT

(1.) CM No.14052-C of 2015 For the reasons stated in the application, the same is allowed and the appeal is restored to file.

(2.) In the manner of assessment of plaintiff's readiness, the court took note of two following circumstances: (i) The agreement had been executed on 12.08.1997 on payment of Rs. 2 lakhs @ Rs. 1 lakh each for the defendants 1 and 2 and the balance of Rs. 8,24,500/- was required to be paid on or before 30.09.1997. Admittedly, the amount had not been paid and it was in evidence that the plaintiff did not have the said money. The inference was possible by virtue of the fact that fresh agreement had been written on 05.11.1997 which stipulated that the plaintiff was liable to pay also interest of Rs. 24,000/- for non-payment of the balance of consideration as originally agreed. A fresh target date was fixed for completion of sale till 31.01.1998. The court, therefore, observed that fresh agreement itself proved that he did not have adequate balance as originally agreed on 12.08.1997; (ii) At the trial, it was elicited in evidence by the plaintiff that his claim to be ready and willing to pay the balance could not be true. The plaintiff would state that 31.01.1998 and 01.02.1998 were public holidays and he waited at the Registrar's office on 02.02.1998 for getting the sale deed registered. He stated in the cross-examination that he had withdrawn money from his bank for payment of the balance of consideration but did not produce the bank passbook or any other evidence to prove that he had with him the necessary resources to pay the balance of sale consideration.

(3.) It is most essential that the readiness and willingness is not merely symbolic in the sense of a necessary averment in the plaint but it is also proved when such readiness is put to test. The counsel would argue that Section 16(c) of Specific Relief Act does not require the cash to be actually tendered in court, unless the court directs the plaintiff to do so. The point is well taken but if he was attempting to prove the readiness by a statement that he had withdrawn the money from the bank just on that date, it was imperative that he produced proof for the same. This becomes relevant by virtue of the past conduct of the plaintiff who admittedly did not have the balance of consideration within the time originally agreed, namely, 30.09.1997 and a fresh document itself came to be executed with recital that the plaintiff would be liable to pay interest for the amount not paid within time. The court was justified in finding that there had been no readiness and willingness by the past conduct and his own evidence about the availability of cash which was not proved in the manner that became essential.