Rameshwar Prasad (D) by LRS Vs. Shri Basanti Lal  INSC 592 (7 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CIVIL APPEAL NO. 644 OF 2002 Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of the Madhya Pradesh High
Court, Indore Bench dismissing LPA No.
16 of 1993 filed by the appellant Rameshwar Prasad. In this appeal the legal
representatives of Rameshwar Prasad have been impleaded after his death. By the
impugned judgment by which two LPAs. i.e. LPA Nos.16 and 19 of 1993 were
disposed of. LPA No.16 of 1993 was filed by Rameshwar Prasad whereas other LPA
was filed by the present respondent Basanti Lal. Rameshwar Prasad had filed a
suit for the relief of specific performance of contract. The trial court
granted the relief of specific performance of the contract. First appeal No.45
of 1976 was filed by Basanti Lal, the respondent. The appeal was allowed and
the judgment and decree of the trial court was set aside on the following
That the appellant shall refund the
sum of Rs.3000/- as agreed in Ex. P/3 to the respondent by payment or deposit in
trial court within a period of one month from today.
That the respondent on payment or
deposit of this amount, shall put the appellant in vacant. possession of the
property covered by Ex. P/3 within a period of 15 days thereafter on analogy of
Section 65 of the Contract Act.
The appellant shall be liable to pay
interest at the rate of 1% per month on this amount in case payment or deposit
is made beyond the period of one month from the date of default till compliance.
The respondent shall be liable to pay mesne profits, determinable by the
trial court in terms of Order 20 Rule 12 of the Code and ordered in the shape
of final decree in that behalf in pursuance of this direction on failure to
deliver possession within 15 days as directed above from the date of default
till delivery of possession. No claim of standing crops shall be admissible in
view of enjoyment of usufruct for such a long duration and that possession
shall be delivered along with the standing crops, if in existence.
Parties are left to bear their own
costs of this appeal as incurred. Counsel fee on each side shall, on
certification, be Rs.1500/-.
2. Both Rameshwar Prasad and Basanti Lal preferred appeals before the
Division Bench. By the impugned judgment so far as the appeal filed by
Rameshwar Prasad is concerned the High Court held that the plaintiff had
neither pleaded nor proved that he was ever ready and willing to pay interest,
having failed to prove the purported waiver of interest, as claimed, the
Division Bench held that the plaintiff has not established basic ingredients
for decree of specific performance of contract. On that ground alone the appeal
was dismissed and other points raised were not considered.
3. Learned counsel for the appellants submitted that the High Court
categorically noted that in paragraph 13 of the plaint as was shown in the
notice sent to the defendant, it was categorically stated that he was compelled
to comply with all terms and conditions of agreement. The High Court wrongly
construed the statement and came to the conclusion that the said statement
cannot be construed to mean that plaintiff was ready to pay the amount of
interest, particularly in view of the stand of the defendant. It was pointed
out that in the paragraph 13 it has been stated that the plaintiff was always
ready and willing and even ready and willing today for performance of his part
of the contract.
4. It is submitted that the question of interest of delay was never raised
before the trial court.
5. Learned counsel for the respondent submitted that there was dispute as
regards the claim of payment of Rs.4,500/- and if there was delay interest was
payable. Plaintiff raised an absolutely frivolous plea that payment was being
made on behalf of the defendant.
6. The agreement dated 13.9.1963 contains the following clause which is of
"Till the payment of instalment, interest at the rate of Rs.0.75 paise
percent shall be payable on Rs.5,000/- Interest shall be payable w.e.f.
Following averment in the plaint needs to be quoted:
"That the plaintiff was always ready and willing to execute the sale
deed and fulfill his part of the contract and is even so today. The plaintiff
had even informed through his counsel Sh. U.N. Bhachawat, to the defendant in
reply to his notice dated 7.10.1968 that he was ready and willing to pay
balance amount of sale consideration of Rs.500 and to comply the terms of the
sale agreement which were applicable on the plaintiff and the plaintiff was so
ready even before. The defendant should execute the sale deed and should get
Rs.500/- from the plaintiff and get the same registered."
7. There is a specific statement that the plaintiff was willing to comply with
the terms of the sale agreement which were applicable and was so ready even
before. One of the terms in the agreement related to payment of interest.
Therefore the conclusion of the High Court that there is no specific plea
regarding readiness to pay interest is contrary to the factual scenario, in
view of the categorical averment made in the plaint.
8. The provisions of Section 16(c) of the Specific Relief Act, 1963 (in
short the 'Act') are as follows:
"Section 16 - Personal bars to relief: Specific performance of a
contract cannot be enforced in favour of a person--
(a).(b) (c) 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, other than terms of the performance of which has been
prevented or waived by the defendant."
The basic principle behind Section 16(c) read with Explanation (ii) is that
any person seeking benefit of the specific performance of contract must
manifest that his conduct has been blemishless throughout entitling him to the
specific relief. The provision imposes a personal bar. The Court is to grant
relief on the basis of the conduct of the person seeking relief. If the
pleadings manifest that the conduct of the plaintiff entitles him to get the
relief on perusal of the plaint he should not be denied the relief.
9. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and
establish as the fact by evidence aliunde that he has always been ready and
willing to perform his part of the contract. On considering almost identical
fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop
Pandey and Ors. (AIR 1994 SC 105) that the plaintiff had substantiated his
10. These aspects were also highlighted in Sugani v. Rameshwar Das & Anr. (2006 (11) SCC 587).
11. The High Court's conclusions are clearly contrary to the materials on
record. The High Court was wrong in holding that that there was no indication
about the readiness and willingness to pay interest. Since the High Court has
not decided the other issues, we set aside the impugned judgment and remit the
matter to it for considering the matter afresh in accordance with law. The
impugned conclusions stand nullified by this judgment.
12. As the matter is pending since long, let the High Court decide the
matter as early as practicable preferably by the end of August, 2008.
13. The appeal is disposed of accordingly with no orders as to costs.
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