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Sunday, September 21, 2014

Specific Performance sec.16 (c) - failure to discharge Bank Loan as per the agreement of sale - filing suit after 7 years for specific performance after filing a suit for recovery of possession by owner - Both lower courts found that the appellant is at fault - Apex court held that there is concurrent finding of fact and the same is evident from the record that the plaintiff (present appellant) has failed to perform his part of contract, as such, in our opinion, above case law is of little help to the plaintiff/appellant, and the courts below have not erred in law in not granting the relief of specific performance of contract to the plaintiff in OS.No.37 of 1985. For the reasons as discussed above, we find no illegality in the judgment and orders challenged before us. Accordingly, both the appeals are dismissed with costs.= CIVIL APPEAL NOs.6071-6072 OF 2007 TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS ……………APPELLANTS VERSUS KALLI RAJA RAO (DEAD) BY LRS & ORS. ……………RESPONDENTS =2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41892

Specific Performance sec.16 (c) - failure to discharge Bank Loan as per the agreement of sale - filing suit after 7 years for specific performance after filing a suit for recovery of possession by owner - Both lower courts found that the appellant is at fault - Apex court held that there is concurrent finding  of  fact  and the same is evident from the record that the plaintiff  (present  appellant) has failed to perform his part of contract, as such, in our  opinion,  above
case law is of little help  to  the  plaintiff/appellant,  and   the  courts below have not erred  in  law  in  not  granting   the  relief  of  specific performance of contract to the plaintiff in OS.No.37 of 1985. For the reasons as discussed above,  we  find  no  illegality  in  the judgment and orders challenged before us. Accordingly, both the appeals  are dismissed with costs.=


respondent-  Kalli  Raja  Rao
(since dead) agreed to sell the  property  measuring  an  area  of  Ac.19.96
cents situated at Pulla village of Eluru Taluk  for an amount of Rs.80,000/-
 (Rupees eighty thousand only) under the agreement of sale (  Ex.A/1)  dated
10th May, 1980.
The said agreement discloses  that  respondent-  Kalli  Raja
Rao had taken a loan of Rs.20,000/- (Rupees twenty thousand only)  from  the
State Bank of India, Eluru Branch, in the year 1969 and he could  not  repay
the loan, as such,  he intended to sell his land, and the present appellant-
 Telikicherla Sesibhushan  agreed to repay the  loan  amount  with  interest
due from Kalli Raja Rao, to the Bank.
It appears that the appellant  though
made certain payments but failed  to  repay  the  entire  loan  amount  with
interest.
Consequently, the Bank instituted a suit being O.S.No.208 of  1981
against the debtor for recovery of the amount before the Subordinate  Judge,
Eluru.
Later, in the said suit the present appellant got  himself  impleaded
as a party. The suit filed by the Bank  for  recovery  of  Rs.46,408.85  was
decreed  with  interest  on  31st  December,  1986  and  the  same  attained
finality.
Since the commitment made by the appellant was  not  fulfilled  by
him regarding the repayment of the loan amount,  as  such,  Kalli  Raja  Rao
filed  suit being O.S. No.28 of 1985 before  the  Subordinate  Judge,  Eluru
against the appellant for recovery  of  possession  of  land  which  he  had
delivered to him at the time of aforesaid agreement of sale.
On  this,  the
appellant appears to have filed O.S.No.37 of 1985 after a  period  of  seven
years of agreement against  Kalli  Raja  Rao  for  specific  performance  of
contract,  before  the  Subordinate  Judge,  Eluru.  
Both  the  suits   i.e.
O.S.No.28 of 1985 and  O.S.No.37  of  1985  were  disposed  of  vide  common
judgment and order dated 12th June, 1996
The concluding part  of  the  said
judgment and order of the trial court reads as under:

“ 26.  In the result, O.S.No.28/85 is dismissed. The court  fee  payable  on
the plaint in O.S.No.28/85 shall be collected from  out  of  the  estate  of
late Rajarao which will come into the hands of his legal  heirs,  Plaintiffs
2 to 10 . O.S.No.37/85 is partly allowed with the following conditions:-

The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in  the
court within three months from today,  and  the  plaintiff  is  entitled  to
withdraw the above amount to be deposited in the court.

The  plaintiff  shall  surrender  the  possession  of  the  plaint  schedule
properties of the Defendants 2 to 10 within  one  month  from  the  date  of
deposit of Rs.71,552-45 paise to be made by the Defendants 2 to  10  in  the
Court.

In view of the relationship between the parties and in view of  the  present
facts of the case, I am not inclined to make any order as to costs  in  both
the suits.”

From the above quoted para it is clear that the suit filed by Kali Raja  Rao
was dismissed, and the suit filed by the appellant for specific  performance
of contract was not decreed but the amount paid by him towards repayment  of
loan was directed to be paid back to him.=
High court
 51.   In the result, A.S. 2052 of 1996 is dismissed confirming the  decree
and judgment in O.S. 37 of 1985 of the trial  Court.  A.S.2652  of  1996  is
allowed, and consequently O.S.28 of 1985 is decreed  subject  to  fulfilling
of conditions  imposed in the decree in  O.S.37  of  1985  the  vendors  are
entitled to possession on deposit of amount as directed by the trial  Court
=
It is clear from the record  that  there is  concurrent  finding  of
fact  against the present  appellant  by both the  courts  below  that   the
appellant failed to prove that he had been ready and willing to perform  his
part  of  the contract. 
Having gone through the papers on record,  we   find
that since the present appellant failed to repay the entire loan  amount  in
terms of the agreement, and the  suit   filed   by   the  Bank  against  the
debtor    for    recovery    of    remaining    amount    of    loan     was
decreed, as such, there was ample  evidence  on  record  to  hold  that  the
appellant failed to perform his part of contract,  as  such,  it  cannot  be
said that he is entitled to the relief of specific performance of  contract.

It is pertinent to mention here that the suit for  specific  performance  of
contract was filed by  the  plaintiff/appellant  after  a  period  of  seven
years, and it is not proved on  the  record  that  the  plaintiff  had  been
always ready and willing to perform his part of contract.=

 In the case of Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC  534
in which reliance has been placed on behalf of the appellant,  it  has  been
held that where from the pleadings   and  evidence  of  the  parties  it  is
manifest that the plaintiff was ready and willing to  perform  his  part  of
the contract, the relief of specific performance may not be denied  to  him.
 Relevant parts of paragraph 9 and 12 of the said judgment read as under:

“9.    The requirements to be fulfilled  for  bringing  in  compliance  with
Section 16(c) of the Act have been  delineated  by  this  Court  in  several
judgments. Before dealing with the various judgments it is necessary to  set
out the factual position. The agreement for sale was executed  on  15-2-1978
and the period during which the sale was to be completed  was  indicated  to
be [pic]six months. Undisputedly, immediately after the expiry of  the  six-
months’  period,  lawyer’s  notice  was  given  calling  upon  the   present
appellant to execute the sale deed. It is also averred in  the  plaint  that
the plaintiff met the defendant several times and requested him  to  execute
the sale deed. On finding inaction on  his  part,  the  suit  was  filed  in
September 1978. This factual position has been  highlighted  in  the  plaint
itself. The learned Single Judge after  noticing  the  factual  position  as
reflected in the averments in the  plaint  came  to  hold  that  the  plaint
contains  essential  facts  which  lead  to  inference  to  the  plaintiff’s
readiness  and  willingness.  Para  3  of  the  plaint  indicates  that  the
plaintiff was always ready to  get  the  sale  deed  prepared  after  paying
necessary consideration. In para 4 of the plaint, reference  has  been  made
to the lawyer’s notice calling upon the defendant to execute the sale  deed.
In the said paragraph it has  also  been  described  as  to  how  after  the
lawyer’s notice was issued the plaintiff met the defendant. In para 5 it  is
averred that the defendant is bound to execute the sale  deed  on  receiving
the balance amount and the  plaintiff  was  entitled  to  get  the  document
executed by the defendant. It is  also  not  in  dispute  that  the  balance
amount of the agreed consideration was deposited in court simultaneously  to
the filing of the suit.

      Xx         xx          xx
12. 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.”


7.       But in the present case, there is concurrent finding  of  fact  and
the same is evident from the record that the plaintiff  (present  appellant)
has failed to perform his part of contract, as such, in our  opinion,  above
case law is of little help  to  the  plaintiff/appellant,  and   the  courts
below have not erred  in  law  in  not  granting   the  relief  of  specific
performance of contract to the plaintiff in OS.No.37 of 1985.
8.    For the reasons as discussed above,  we  find  no  illegality  in  the
judgment and orders challenged before us. Accordingly, both the appeals  are
dismissed with costs.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41892
                                             REPORTABLE


IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NOs.6071-6072 OF 2007





TELIKICHERLA SESIBHUSHAN
(DEAD) BY LRS                      ……………APPELLANTS

                       VERSUS



KALLI RAJA RAO
(DEAD) BY LRS & ORS.      ……………RESPONDENTS




                             J U D G M E N T



PRAFULLA C.PANT,J.



1.    These two appeals are directed against the common judgment  and  order
dated 15th June, 2007 passed by the High Court of Andhra Pradesh  in  Appeal
Suit Nos.2652 and 2052 of 1996.
2.    We have heard learned counsel for the parties and perused  the  papers
on record.
3.    The factual matrix of the case is  that  respondent-  Kalli  Raja  Rao
(since dead) agreed to sell the  property  measuring  an  area  of  Ac.19.96
cents situated at Pulla village of Eluru Taluk  for an amount of Rs.80,000/-
 (Rupees eighty thousand only) under the agreement of sale (  Ex.A/1)  dated
10th May, 1980. The said agreement discloses  that  respondent-  Kalli  Raja
Rao had taken a loan of Rs.20,000/- (Rupees twenty thousand only)  from  the
State Bank of India, Eluru Branch, in the year 1969 and he could  not  repay
the loan, as such,  he intended to sell his land, and the present appellant-
 Telikicherla Sesibhushan  agreed to repay the  loan  amount  with  interest
due from Kalli Raja Rao, to the Bank.  It appears that the appellant  though
made certain payments but failed  to  repay  the  entire  loan  amount  with
interest. Consequently, the Bank instituted a suit being O.S.No.208 of  1981
against the debtor for recovery of the amount before the Subordinate  Judge,
Eluru. Later, in the said suit the present appellant got  himself  impleaded
as a party. The suit filed by the Bank  for  recovery  of  Rs.46,408.85  was
decreed  with  interest  on  31st  December,  1986  and  the  same  attained
finality. Since the commitment made by the appellant was  not  fulfilled  by
him regarding the repayment of the loan amount,  as  such,  Kalli  Raja  Rao
filed  suit being O.S. No.28 of 1985 before  the  Subordinate  Judge,  Eluru
against the appellant for recovery  of  possession  of  land  which  he  had
delivered to him at the time of aforesaid agreement of sale.  On  this,  the
appellant appears to have filed O.S.No.37 of 1985 after a  period  of  seven
years of agreement against  Kalli  Raja  Rao  for  specific  performance  of
contract,  before  the  Subordinate  Judge,  Eluru.  Both  the  suits   i.e.
O.S.No.28 of 1985 and  O.S.No.37  of  1985  were  disposed  of  vide  common
judgment and order dated 12th June, 1996. The concluding part  of  the  said
judgment and order of the trial court reads as under:

“ 26.  In the result, O.S.No.28/85 is dismissed. The court  fee  payable  on
the plaint in O.S.No.28/85 shall be collected from  out  of  the  estate  of
late Rajarao which will come into the hands of his legal  heirs,  Plaintiffs
2 to 10 . O.S.No.37/85 is partly allowed with the following conditions:-

The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in  the
court within three months from today,  and  the  plaintiff  is  entitled  to
withdraw the above amount to be deposited in the court.

The  plaintiff  shall  surrender  the  possession  of  the  plaint  schedule
properties of the Defendants 2 to 10 within  one  month  from  the  date  of
deposit of Rs.71,552-45 paise to be made by the Defendants 2 to  10  in  the
Court.

In view of the relationship between the parties and in view of  the  present
facts of the case, I am not inclined to make any order as to costs  in  both
the suits.”


From the above quoted para it is clear that the suit filed by Kali Raja  Rao
was dismissed, and the suit filed by the appellant for specific  performance
of contract was not decreed but the amount paid by him towards repayment  of
loan was directed to be paid back to him. It appears that both  the  parties
preferred appeals against the aforesaid judgment and decree  passed  by  the
trial court, and the same were disposed of together by the High  Court  with
the following concluding paragraph:


51.   In the result, A.S. 2052 of 1996 is dismissed confirming the  decree
and judgment in O.S. 37 of 1985 of the trial  Court.  A.S.2652  of  1996  is
allowed, and consequently O.S.28 of 1985 is decreed  subject  to  fulfilling
of conditions  imposed in the decree in  O.S.37  of  1985  the  vendors  are
entitled to possession on deposit of amount as directed by the trial  Court.
 The vendors are entitled to mesne profits to be determined  on  a  separate
application  to be filed before the trial Court.  The vendors  are  entitled
to mesne profits to be determined on a  separate  application  to  be  filed
before the trial Court  from the date of suit O.S.28 of 1985 till  the  date
of  possession.  However,  while  evaluating  mesne  profits   the   amounts
deposited by virtue of  this  Court’s  order  namely  Rs.50,000/-  per  year
should be given effect to. The vendors are entitled to withdraw the  amounts
deposited by the vendee pursuant to the orders of this Court.”


4.      It is clear from the record  that  there is  concurrent  finding  of
fact  against the present  appellant  by both the  courts  below  that   the
appellant failed to prove that he had been ready and willing to perform  his
part  of  the contract. Having gone through the papers on record,  we   find
that since the present appellant failed to repay the entire loan  amount  in
terms of the agreement, and the  suit   filed   by   the  Bank  against  the
debtor    for    recovery    of    remaining    amount    of    loan     was
decreed, as such, there was ample  evidence  on  record  to  hold  that  the
appellant failed to perform his part of contract,  as  such,  it  cannot  be
said that he is entitled to the relief of specific performance of  contract.
It is pertinent to mention here that the suit for  specific  performance  of
contract was filed by  the  plaintiff/appellant  after  a  period  of  seven
years, and it is not proved on  the  record  that  the  plaintiff  had  been
always ready and willing to perform his part of contract.
5.    Clause (c) of the Specific Relief Act,  1963  provides  that  specific
performance of contract cannot 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, other than terms the performance  of  which  he  has  been
prevented or waived by the defendant.  In the  present  case,  as  discussed
above, due to the failure on the part of the appellant to repay the loan  in
terms of the agreement dated 10th May, 1980            (Ex.A.1) and  further
considering the fact that not only the suit being O.S.No.208 of  1981  filed
by the creditor  Bank  was  decreed  against  the  debtor  but  it  attained
finality, the Courts below have committed no error of  law  in  refusing  to
decree the suit of the appellant for specific performance of contract.
6.    In the case of Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC  534
in which reliance has been placed on behalf of the appellant,  it  has  been
held that where from the pleadings   and  evidence  of  the  parties  it  is
manifest that the plaintiff was ready and willing to  perform  his  part  of
the contract, the relief of specific performance may not be denied  to  him.
 Relevant parts of paragraph 9 and 12 of the said judgment read as under:

9.    The requirements to be fulfilled  for  bringing  in  compliance  with
Section 16(c) of the Act have been  delineated  by  this  Court  in  several
judgments. Before dealing with the various judgments it is necessary to  set
out the factual position. The agreement for sale was executed  on  15-2-1978
and the period during which the sale was to be completed  was  indicated  to
be [pic]six months. Undisputedly, immediately after the expiry of  the  six-
months’  period,  lawyer’s  notice  was  given  calling  upon  the   present
appellant to execute the sale deed. It is also averred in  the  plaint  that
the plaintiff met the defendant several times and requested him  to  execute
the sale deed. On finding inaction on  his  part,  the  suit  was  filed  in
September 1978. This factual position has been  highlighted  in  the  plaint
itself. The learned Single Judge after  noticing  the  factual  position  as
reflected in the averments in the  plaint  came  to  hold  that  the  plaint
contains  essential  facts  which  lead  to  inference  to  the  plaintiff’s
readiness  and  willingness.  Para  3  of  the  plaint  indicates  that  the
plaintiff was always ready to  get  the  sale  deed  prepared  after  paying
necessary consideration. In para 4 of the plaint, reference  has  been  made
to the lawyer’s notice calling upon the defendant to execute the sale  deed.
In the said paragraph it has  also  been  described  as  to  how  after  the
lawyer’s notice was issued the plaintiff met the defendant. In para 5 it  is
averred that the defendant is bound to execute the sale  deed  on  receiving
the balance amount and the  plaintiff  was  entitled  to  get  the  document
executed by the defendant. It is  also  not  in  dispute  that  the  balance
amount of the agreed consideration was deposited in court simultaneously  to
the filing of the suit.

      Xx         xx          xx
12. 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.”


7.       But in the present case, there is concurrent finding  of  fact  and
the same is evident from the record that the plaintiff  (present  appellant)
has failed to perform his part of contract, as such, in our  opinion,  above
case law is of little help  to  the  plaintiff/appellant,  and   the  courts
below have not erred  in  law  in  not  granting   the  relief  of  specific
performance of contract to the plaintiff in OS.No.37 of 1985.
8.    For the reasons as discussed above,  we  find  no  illegality  in  the
judgment and orders challenged before us. Accordingly, both the appeals  are
dismissed with costs.




     ….…………………………………………..J
     (SUDHANSU JYOTI MUKHOPADHAYA)



   ………………………………………………J
                           (PRAFULLA C. PANT)

NEW DELHI,
SEPTEMBER  8, 2014.
-----------------------
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