Motilal
Jain Vs. Smt.Ramdasi Devi & Ors [2000] INSC 374 (20 July 2000)
S.V.Patil,
S.S.M.Quadri
L.I.T.J
J U D G M E N T SYED SHAH MOHAMMED QUADRI, J. This appeal, by special leave, is
directed against the judgment of the Gauhati High Court (Assam) in First Appeal No.43 of 1981
passed on October 22,
1990. The plaintiff in
the suit, out of which this appeal arises, is the appellant and the respondents
are legal representatives of the defendant - Ambika Prasad Ram. Hereinafter the
parties will be referred to as the plaintiff and the defendant. The plaintiff
entered into a contract with the defendant to purchase the suit property for a
consideration of Rs.25,000/- out of which a sum of Rs.17,000/- was paid at the
time of the execution of the contract on February 20, 1977 (Ext.2); the balance
of the consideration, Rs.8000/-, was stipulated to be paid within five months
from the date of Ext.2, at the time of execution of registered sale deed in favour
of the plaintiff. Alleging that the defendant was evading to receive the
balance amount of Rs.8000/- and execute the sale deed, the plaintiff sent
notices through his advocate on March 15, 1978 (Ext.5), and again on April 4, 1978 (Ext.3) and finally on November 26, 1978 (Ext.4). The plaintiff then filed
the suit, T.S.No.36 of 1979, against the defendant in the court of the
Assistant District Judge of Goalpara at Dhubri, praying for a decree of
specific performance of contract for sale of the suit property (Ext.1) and
claimed in the alternative damages in the sum of Rs.38,000/- on August 10, 1979. The defendant denied the execution
of Ext.2, receipt of Rs.17,000/- as part consideration thereunder, his
signature on it and submitted that, therefore, the question of avoiding to
execute the sale deed would not arise. He pleaded that the appellant was
entitled to neither the specific performance of contract nor the damages, the
alternative claim. On considering the evidence produced by the parties, the
trial court found that the defendant executed Ext.2 and decreed the suit for
specific performance of Ext.2 on July 25, 1981. The defendant filed First Appeal No.43 of 1981 against the
judgment of the trial court in the Gauhati High Court (Assam). During the pendency of the appeal
the said defendant died and the respondents were brought on record as his legal
representatives. The High Court confirmed the finding of the trial court that
the defendant executed Ext.2 but noted: (i) that the suit was filed after two
years of the accrual of the cause of action on July 21, 1977 and after about
one year of last notice issued on November 26, 1978 (Ext.4); (ii) from the
averment in the plaint the readiness and willingness could not be inferred; and
(iii) even assuming that the averment made out the readiness and willingness,
there was no evidence to prove the readiness and willingness of the plaintiff.
In that view of the matter, by the impugned judgment, the High Court set aside
the judgment of the trial court with regard to relief of specific performance
of the contract (Ext.2) but granted a decree for compensation in a sum of
Rs.22,094/-(Rs.17,000/- counsel for of the findings of of the such delay of as
Ext.2. He of brought to show of readiness perform his of part with the of
requirements Relief Act, of 1963, of Appendix of A decision of of this 1971 SC
of 1238] Judges Bench of in [1999 (6) of SCC judgment of of the Jain (PW of 1)
in proof of of Mr.N.R. of Choudhary, contended that of paras to Forms of 47
Civil Procedure of and in Ouseph of Varghese 539] and of Abdul 1990 SC of 682).
framed
an of issue appellant but of it the trial of court further contended of that
wife is of the existence Ext.2 of which justify granting of of performance and
of the Here, the of short the High of Court which the of High suit. of It of of
delay performance of of contract Delay running of beyond Limitation Act; of
(ii) is within of the the third of parties of suit; of delay may of give be
inequitable of to of of the factually also, of the assumption with of regard
executed on of February to be of executed was issued of on was filed of only
year as of noted this case of the relief to of the favour from of the show that
of the part of of the record to of prove placing reliance of on In that of
case, sale of of the oral agreement of and to which of the subsequent pleading
of and Court pointed of out should conform of to the Code of of Abdul Khaders
of case struck by of this case A of agreed was not of having Government nor of
was however, received of earnest for sale of which would be of paid the
registered of sale obligation to of obtain Government before of the not take of
any Government. of A the contract of for was that of A of the of contract.
willingness
could of not and that of had circumstances relevant of to party concerned. of
material to of show willing to of perform have the of necessary would be of
executed entitled to of a That decision of was this Court of in held that of in
keep in of mind science but of an law of of ones India most of of they inevitably
of differ gather true of spirit whole and of to obligations, one of has plea. of
It requires a of plea any form. of No to take of such Specific Relief of Act,
phraseology but of only has performed of or his part of of and willingness of
has in letter of and readiness of and mathematical formula of which If the of
averments indicate the of readiness fulfil his of part is subject- of matter
differently worded of will and willingness of of performance of of contract
perusal of of paras the readiness of and obligation which of he balance of of
consideration.
the
defendant of to Rs.8000/- and of execute Patna (Bihar) of at to his of place support of of
his Special Leave Petition (crl.) of The consideration at of the no reason of
why consideration of of Rs.8,000/- his favour. of We that the of conduct relief
of of specific Mr.Choudhary of that compensation in of lieu disentitled to of
claim contract, is of to claim was of in Specific Relief of Act, claims damages
of in contract as of alternative not entitled of to contract itself. of Court
is of sustainable judgment and of decree judgment of of the accordingly we of
do the trial of court.
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