Ram Awadh
& Ors Vs. Achhalbardtjbey & ANR [2000] INSC 34 (1 February 2000)
S.P.Bharucha,
N.S.Hegde, Ruma Pal
BHARUCHA,
J:
This
appeal stands referred to a. Bench of three Judges because the two learned
Judges who heard i't earlier found difficulty In following the judgment of a
Bench of two learned - Judges in Jugra Singh & Anr vs. Labh Singh &
ors,. [(1995) 2 SCC 31].
It 1s
not necessary to go into any great detail insofar as the facts are concerned.
The appellants before us are the legal representatives of a subsequent
purchaser of certain property. They were defendants to a suit by one Bachna. for
specific performance of an earlier agreement to sell that property to her. She
had not pleaded in her plaint that she was ready and willing to perform her part
of the agreement, but that plea was later introduced by way of an amendment.
The question now is in regard to whether she or her legal representatives were,
in fact, at all material times ready and willing to perform their part .of ^ ,
^ that agreement. The first appellate court declined to periint the present
appellants to plead and contend that..Bachna and her legal representatives were
never prepared to perform their part of the agreement and, for this purpose. It
reeled upon the judgment of this Court In the case of Jugraj Singh. The High
Court, In second appeal, affirmed that-view.
In Jugraj
Singh's case, upon substantially similar facts, this Court noted Section 16(c)
of the Specific Relief Act and the dictum of the Privy Council in Ardeshir H.Mama
vs. F^ora Sasson (56 . Ind App 360) that in a suit for specific performance the
averment of readiness and willingness on the plaintiff's part, upto"the dafe
of the decree, was necessary. It a^so noted that thi's Court in Gomathi nayagam
P i1 ^ a i vs. Palaniswami Nadar ((1967) 1 SCR 227] had held that it was for
the plaintiff in a suit for specific performance "to establish that he
was, since the date of the contract, continuously ready and willing to perform
his part of the contract. If he faiTs to do so, his claim for specific
performance must fall Jugraj Singh's case, however, held: ..* - f. ::, i-.. "
"That plea is specifically avanable to the vendor/defendant. It 1s
personal to him. The ^subsequent purchasers have got only the right to defend
their purchase on the premise that they have no prior knowledge of the
agreement of sa)e with the plaintiff. They are bona tide purchasers for
valuable consideration. Though they are necessary parties to the suit, since
any decree obtained by the plaintiff would be binding on the subsequent
purchasers, the -3- plea that the plaintiff must always be ready and willing to
perform his part of the contract must be available only to the vendor or his iega^
representatives, but not to the subsequent purchasers. " The decision In Jugraj
Singh's case was noted by a Bench of -two learned Judges In LakhIRam vs. Tr-ikha
Ram [(1998) 2 SCC 720] and doubted, but the appeal there was decided on another
point. .- Section 16 of the Specific Performance Act reads:
"16.
Personal bars to relief.--- Specific performance of a contract cannot be
enforced In favour of a person (a) x x xx X (b) x x xx x (c) who falls 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 has been prevented or waived by the
defendant." The obligation imposed by Section -16 1s upon the court not to
grant specific performance to a plaintiff who has not met the requirements of
clauses (a), (b) and (c) thereof. Acourt may not, therefore, grant to a
plaintiff who has failed to aver and to prove -that he has performed or has
always been ready and willing to perform his part of the agreement the specific
performance whereof he seeks.
There
1s, therefore, no question of the plea being available to one defendant and not
to another. It is open ..." ' ' -4- to any defendant to contend and
establish that the mandatory requirement of Section 16(c) has not been complied
with and It 1s for the court to determirte whether It has or has not been
complied with .:^nd,- depending upon its conclusion, decree or decline to
decree the suit.' We are of the view that the decision in Jugraj Singh's case
1s erroneous. In the circumstances, it becomes necessary to remand the suit ta.the
trial coyrt,name1y the Court of the Munsif, Gyanpur, Varanasi, to consider
whether or not it has been established that the original '.plaintiff Bachna and
her legal representatives had proved that they had performed or were always
ready and willing to perform the terms of the agreement for sale in Bachna's favour.
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