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Thursday, March 16, 2017

suit for specific performance of the agreement against the appellant.= Coming first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason. 35) First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the written statement nor in first appeal before the High Court and nor in grounds of appeal in this Court. 36) Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea. 37) Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court. 38) It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here. 39) Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable. 40) Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 05.03.1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31.12.1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10.01.1990. 41) For the aforementioned reasons, we find no merit in the first submission of learned counsel for the appellant, which is rejected. 42) Coming now to the second and third submission of learned counsel for the appellant, we are of the considered opinion that it has also no merit and hence deserve to be rejected for more than one reason. 43) First, the plaintiff had pleaded the necessary requirements of Section 16 (c) of the Specific Relief Act, 1963 read with the requirement of Forms 47, 48 and Article 54 of the Limitation Act in the plaint; Second, the defendant did not dispute the execution of agreement with the plaintiff and, in fact, entered in correspondence with the plaintiff for incorporation of some clauses therein; Third, the plaintiff proved her readiness and willingness to perform her part of agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence; Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior to execution of sale deed in terms of agreement dated 05.03.1989 and was, therefore, required to pay balance sum of Rs.1,47,200/- to the defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed; Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from the LIC; Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property; and Eighth, once it was held that the defendant committed breach in avoiding to execute the agreement, whereas the plaintiff performed her part of agreement and was ready and willing to perform her part, the Trial Court was justified in exercising its discretion in favour of the plaintiff by passing a decree for specific performance of agreement against the defendant. 44) In our view, none of these findings could be assailed as being either perverse or de hors the evidence or against any provision of law and nor these findings could be assailed on the ground that no judicial man could ever reach to such conclusion. 45) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that the plaintiff did not come to the Court with clean hands and hence the suit is liable to be dismissed. 46) In our view, both the Courts below rightly rejected this submission. There is no evidence to sustain the submission. On the other hand, we find that it is the defendant, who despite accepting the substantial money (more than 50%) towards sale consideration from the plaintiff, avoided executing the sale deed on one or other false pretext.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.2714 OF 2008


Mrs. A. Kanthamani                       ….Appellant(s)

                                   VERSUS

Mrs.  Nasreen Ahmed              …Respondent(s)


                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by the defendant against the judgment  and  final
order dated 27.10.2006 passed by the High Court of Judicature at  Madras  in
A.S. No. 127 of 2000 by which the High Court dismissed the appeal  filed  by
the appellant herein with costs confirming the  decree  and  judgment  dated
30.10.1998 passed in O.S. No. 6420 of 1996 by  the  VIII  Additional  Judge,
City Civil Court, Chennai, which decreed the respondent’s suit for  specific
performance of the agreement against the appellant.
2)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in this appeal.
3)    The appellant-defendant is the  owner  of  the  property  situated  at
No.191, Lloyds Road, Chennai-86.  She entered into  an  agreement  for  sale
with the respondent-plaintiff on 05.03.1989 in respect of a part  of  ground
floor of the said property described in Schedule ‘B’ to the plaint  together
with 1/3rd undivided share in the property described in Schedule ‘A’  for  a
total sale consideration of Rs.3,43,200/-.   On  the  same  day,  a  sum  of
Rs.1,30,000/- was paid by the respondent as advance money to the  appellant.
Thereafter, the respondent paid Rs. 20,000/- towards sale  consideration  to
the appellant on 03.04.1989, Rs.  10,000/-  on  04.05.1989,  Rs.  15,000  on
03.07.1989, Rs. 15,000/- on 06.07.1989 and Rs. 16,000/-  on  16.08.1989.  So
far as the balance  amount was concerned, the respondent agreed to  pay  the
same on or before 31.12.1989 to the  appellant.  It  was  alleged  that  the
appellant also orally agreed to sell to the respondent  an  additional  area
of 132.25 sq.ft. at the ground floor and 4 of undivided share and  for  that
additional property, the respondent paid a sum of Rs.46,000/- as an  advance
money.
4)    On 10.11.1989, the respondent sent a draft sale deed to the  appellant
for an area measuring 847.25  sq.ft.  and  one  1/2  undivided  share.   The
appellant though agreed to sell the additional extent of  land  orally,  she
refused to do so  and  returned  the  draft  sale  deed  on  04.12.1989  for
approval of the respondent by treating the sum of Rs.46,000/-  paid  by  her
for additional extent as further advance for the earlier written  agreement.

5)    Thereafter on 15.12.1989, the appellant sent another draft  sale  deed
for approval of the respondent by removing clauses 18 and 27 and with  minor
changes.  Since these deleted clauses referred to clauses 17 and 24  of  the
agreement of sale, the respondent approved the first draft  which  contained
these clauses.
6)    On  27.12.1989,  the  appellant  wrote  a  letter  to  the  respondent
insisting upon her to approve her second draft on or before 31.12.1989.
7)    The respondent approved the second draft sale deed and sent it to  the
appellant on 28.12.1989 by speed post and also enclosed a  letter  from  the
LIC sanctioning loan of Rs.1 lakh in her  favour.   The  respondent  further
informed that she is willing to bring the balance of sale  consideration  at
the time of registration of the sale deed.
8)    On  30.12.1989,  the  respondent  sent  a  legal  notice  through  her
advocate calling upon the appellant to execute and register  the  sale  deed
on or before 10.01.1990 in her favour.
9)    By  letter  dated  03.01.1990  through  her  advocate,  the  appellant
refused to sell the property to the respondent and cancelled the agreement.
10)   The respondent then filed a suit against the appellant  on  10.01.1990
seeking  specific  performance  of  the  agreement.  The  plaint   contained
aforementioned pleadings. It was alleged that  the  respondent  was  and  is
ready and willing to perform her part of the agreement and has, in fact,  so
performed. It was alleged that it was the appellant who  failed  to  perform
her part without  any  justification  and  hence  committed  breach  of  the
agreement thereby entitling the respondent to claim specific performance  of
the agreement in  relation  to  suit  house.  The  appellant  filed  written
statement.
11)   Considering the plaint and written statement, the trial  Court  framed
five issues and one additional issue which are as under:
Whether it is true that the defendant agreed to sell the  schedule  property
and an extent  of  132.25  sq.ft.  along  with  ½  undivided  share  to  the
plaintiff?

Whether it is true that the time is the essence of the contract?

Whether it is true that the plaintiff was  ready  to  perform  her  part  of
contract in the agreement?

Whether  the  plaintiff  is  entitled  for       the  relief   of   specific
performance?

What is the relief, the plaintiff entitled for?


Additional issue framed on 31.07.1998:
Whether the plaintiff acted in a manner contradictory and  in  violation  of
agreement?

12)   After  considering  the  documentary  evidence  led  in  by  both  the
parties, the Trial Court, vide judgment and decree dated 30.10.1998 in  O.S.
No.6420 of 1996, decreed the respondent’s suit and  passed  the  decree  for
specific performance of the agreement against the  appellant.  It  was  held
that the time was not the essence of the  contract.   It  was  further  held
that the Plaintiff (Respondent) was always ready and willing to perform  the
agreement and, in fact, performed  her  part  while  it  was  the  defendant
(appellant) who tried to scuttle away from the agreement.   It  was  further
held that the respondent is entitled to a decree  for  specific  performance
of contract on the basis of sale agreement dated 05.03.1989  in  respect  of
the plaint schedule property and accordingly the  appellant  was  given  two
months’ time to execute the sale deed  and  the  respondent  was  given  one
month’s time to deposit the balance sale consideration of Rs.1,47,200/-.
13)   Aggrieved by the aforesaid judgment, the defendant filed an appeal  to
the High Court.  By impugned  judgment  dated  27.10.2006,  the  High  Court
dismissed the appeal and confirmed the decree and judgment dated  30.10.1998
passed by the trial Court in O.S. No. 6420 of 1996.
14)   Against the said judgment, the  appellant(defendant)  has  filed  this
appeal by way of special leave petition before this Court.
15)   Heard Mr. Mohan Parasaran, learned senior counsel  for  the  appellant
and Mr. R. Balasubramanian, learned senior counsel for the respondent.
16)   Mr. Mohan Parasaran, learned senior counsel for  the  appellant  while
assailing the legality and correctness of the impugned judgment  essentially
argued three points.
17)   In  the  first  place,  learned  counsel  submitted   that  since  the
respondent (plaintiff)  did not seek a declaration that the  termination  of
agreement is  bad  in  law,  mere  suit  for  specific  performance  of  the
agreement was not maintainable in law and  was,  therefore,   liable  to  be
dismissed on this short ground. In other words, the submission was  that  it
was obligatory upon the respondent (plaintiff) to have sought a  declaration
in the suit that the termination of the  agreement  made  by  the  appellant
(defendant) vide his notice dated 03.01.1989 is  bad  and  along  with  such
relief, the respondent(plaintiff) should  also  have  claimed  a  relief  of
specific performance of the agreement to make  the  suit  maintainable.   It
was urged that since such relief was not claimed by the plaintiff, the  suit
for specific performance of the agreement simpliciter was not  maintainable.
In support of this  submission,  learned  counsel  placed  reliance  on  the
decision of this Court in I.S. Sikander (Dead) by LRs. Vs.  K.  Subramani  &
Ors., (2013) 15 SCC 27.
18)   In the second place, learned counsel attacked the findings on  merits.
He took us to the evidence of the parties and made an attempt to  point  out
that both the Courts below committed error in  holding  that  the  plaintiff
was ready and willing to perform her part of the agreement. Learned  counsel
contended that from the  evidence,  it  is  clear  that  the  plaintiff  was
neither ready nor willing to perform her part of the agreement and  nor  she
had money with her to pay towards balance consideration to the defendant  to
get the sale deed executed in her favour in terms of the agreement.  It  was
urged that the plaintiff  did  not  come  to  the  Court  with  clean  hands
inasmuch as she insisted upon the terms, which were neither agreed upon  and
nor they were part of the agreement.
19)   In the third place, learned counsel contended that  since  two  Courts
below did not properly appreciate the evidence and that too in a case  where
the plaintiff had come to the Court with unclean  hands,  the  discretionary
relief of grant of specific performance of agreement ought not to have  been
granted to such plaintiff and instead the suit merited dismissal.
20)   In  reply,  learned  counsel  for  the  respondent  (plaintiff)  while
opposing the appeal contended that no  case  for  any  interference  in  the
impugned judgment is made out. It was his submission that  both  the  Courts
below rightly held that the plaintiff was able to make out a case of  breach
of agreement committed by the defendant; and  secondly,  she  had  performed
her part of the agreement thereby rightly held to have  fulfilled  the  twin
requirement of "readiness and willingness" as provided under Section 16  (c)
of the Specific Relief Act, 1963.  Learned  counsel  urged  that  since  the
issue relating to the maintainability of suit  was  neither  raised  in  the
written statement nor in the appeal before the High Court and  nor  even  in
this appeal but was raised for the first time in submission, hence the  same
could not be allowed to be raised for the first time in this Court.  Lastly,
learned counsel submitted that since the two Courts below answered  all  the
issues on facts in favour of the  plaintiff  by  properly  appreciating  the
evidence, such findings being concurrent in  nature,  are  binding  on  this
Court. It was more so when the findings did not suffer from any  perversity,
much less extreme perversity or illegality or arbitrariness,  requiring  any
interference by this Court.
21)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we find no force  in  any  of  the  submissions  of  the
learned counsel for the appellant (defendant).
22)   Before we proceed to examine the issues involved in the appeal, it  is
necessary to take note of some of the relevant provisions of  the  Acts  and
the decisions rendered by the Courts, which govern the controversy.
23)    The  filing  of   the   suit   for   specific   performance   of   an
agreement/contract is governed by Section 16(c) of the Specific Relief  Act,
1963 read with Article 54 of the Schedule to the Limitation Act, 1963.  Form
Nos. 47 and 48 of Appendix‘A’ to Code of  Civil  Procedure,  1908  prescribe
the format of the plaint for such suit.
24)   The Specific Relief Act, 1877 which stood repealed by the Act of  1963
did not contain provision analogues to Section 16(c). Yet in the absence  of
any such provision, its requirements used to be considered mandatory in  the
suits for specific performance by virtue of  law  laid  down  by  the  Privy
Counsel in a celebrated case of Ardeshir H. Mama vs Flora Sasoon,  AIR  1928
PC 208. It is in this Case which went to Privy Council from  Indian  Courts,
Their Lordships laid down the following principle:
 “In a suit for specific performance on the other hand, he treated  and  was
required by the Court to treat the contract as still subsisting. He  had  in
that suit to allege, and if the fact  was  traversed,  he  was  required  to
prove a continuous readiness and willingness, from the date of the  contract
to the time of the hearing, to perform the contract on his part. Failure  to
make good that averment brought with it  the  inevitable  dismissal  of  his
suit. Thus it was that the commencement of an action for damages  being,  on
the principle of such cases as Clough v. London and  North  Western  Railway
Co. (1871) L.R. 7  Ex.  26 and  Law  v.  Law (1905)  1  Ch.  140 a  definite
election to treat  the  contract  as  at  an  end,  no  suit  for  specific,
performance,  whatever  happened  to  the  action,   could   thereafter   be
maintained by the aggrieved plaintiff. He  had  by  his  election  precluded
himself even from making the averment just referred to proof  of  which  was
essential to the success of his suit. The effect upon an action for  damages
for breach of a previous suit for  specific  performance  will  be  apparent
after the question of the competence of the Court itself  to  award  damages
in such a suit has been touched upon.”

25)   The Act of 1963 then made the aforesaid requirement  a  statutory  one
by enacting Section 16 (c), which reads as under: -
“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 the performance of which  has  been
prevented or waived by the defendant.

Explanation – For the purposes of clause(c)-
a)    where a contract involves the payment of money, it  is  not  essential
for the plaintiff to actually tender to  the  defendant  or  to  deposit  in
court any money except when so directed by the court;

b)    the plaintiff must aver performance of, or readiness  and  willingness
to perform, the contract according to its true construction.”

26)   Therefore, the plaint which seeks the relief of  specific  performance
of the agreement/contract must contain all requirements of  Section  16  (c)
read with requirements contained in Form Nos. 47 and 48 of Appendix  ‘A’  of
C.P.C.
27)   Article 54 of the Limitation Act provides  a  period  of  3  year  for
filing a suit for specific performance of contract/agreement. A period of  3
years is required to be counted from the date fixed by the parties  for  the
performance, or if no such date is fixed, when  the  plaintiff  has  noticed
that the performance is refused. The plaint  should,  therefore,  also  have
necessary pleading satisfying the requirement of Article 54.
28)   The expression  "readiness  and  willingness"  has  been  the  subject
matter of interpretation in many  cases  even  prior  to  its  insertion  in
Section 16 (c) of  the  Specific  Relief  Act,  1963.  While  examining  the
question as to how and in what manner, the plaintiff is  required  to  prove
his financial readiness so as to enable him to  claim  specific  performance
of the contract/agreement, the Privy Council in a leading case  which  arose
from the Indian Courts  (Bombay)  in  Bank  of  India  Limited  &  Ors.  Vs.
Jamsetji A.H. Chinoy and Chinoy and Company, AIR 1950 PC  90,  approved  the
view taken by Chagla  A.C.J.,  and  held  inter  alia  that   "  it  is  not
necessary for the plaintiff to  produce  the  money  or  vouch  a  concluded
scheme  for  financing  the  transaction  to   prove   his   readiness   and
willingness.”
29)   The following observations of the Privy Council are apposite:
“21…………..Their Lordships agree with  this  conclusion  and  the  grounds  on
which it was based. It is true that the  plaintiff  1  stated  that  he  was
buying for himself, that he had not  sufficient  ready  money  to  meet  the
price and that no definite arrangements had been made for finding it at  the
time of repudiation. But in order to  prove  himself  ready  and  willing  a
purchaser has not necessarily to produce the money or to vouch  a  concluded
scheme for financing the transaction. The question is one of  fact,  and  in
the present case the Appellate Court had ample material on  which  to  found
the view it reached. Their Lordships would only add in this connection  that
they fully concur with Chagla A.C.J. when he says:

"In my opinion, on the evidence already on record it was sufficient for  the
court to come to the conclusion ' that plaintiff 1 was ready and willing  to
perform his part of the contract. It was not necessary for  him  to  '  work
out actual figures and satisfy the court what specific  amount a bank  would
have advanced on the mortgage of  his  property  and  the  pledge  of  these
shares. I do not think that any jury--if the matter was left to the jury  in
England--would have come to the conclusion that a man, " in the position  in
which the plaintiff was, was not ready  and  willing  to  pay  the  purchase
price of the shares which he had bought from defendants 1 and 2."

For the  foregoing  reasons,  their  Lordships  answer  question(4)  in  the
affirmative.”
(Emphasis supplied)

30)   This Court in Sukhbir Singh & Ors. Vs. Brij  Pal  Singh  &  Ors.,  AIR
1996 SC 2510=(1997) 2 SCC 200 followed the aforesaid  principle  with  these
words:
“5. Law is not in doubt and it is  not  a  condition  that  the  respondents
should have ready cash with them. The  fact  that  they  attended  the  Sub-
Registrar’s office to have  the  sale  deed  executed  and  waited  for  the
petitioners to attend the office of the Sub-Registrar is a positive fact  to
prove that they had necessary funds to pass on consideration  and  had  with
them the needed money with them for payment at the time of registration.  It
is sufficient for the respondents to establish that they  had  the  capacity
to pay the sale consideration. It is not necessary that they  should  always
carry the money with them from the date of the suit till  the  date  of  the
decree.  It  would,  therefore,  be  clear  that  the  courts   below   have
appropriately  exercised  their  discretion  for  granting  the  relief   of
specific performance to the respondents on sound principles of law.”

31)   Keeping these broad principles of law in mind, which  are  now  fairly
well settled, let us examine the facts of this case.

32)   At the outset, we may observe that this Court is  loath  to  undertake
the task of appreciating the evidence in an appeal filed under  Article  136
of the Constitution of India. It is more so when such appeal arises  out  of
the judgment, which has recorded concurrent findings of fact.
33)   However, since in this case, leave was granted  and  at  the  time  of
hearing, learned counsel for the parties took us  through  the  evidence  in
support of  their  submissions,  we  considered  it  proper  to  peruse  the
evidence with a view to find out as to  whether  impugned  judgment  suffers
from any error on facts or/and law?
34)   Coming first  to  the  submission  of  the  learned  counsel  for  the
appellant about the maintainability of suit, in our considered view, it  has
no merit for more than one reason.
35)   First, as rightly argued by learned counsel for  the  respondent,  the
objection regarding the  maintainability of the Suit was neither  raised  by
the defendant in the written statement nor in first appeal before  the  High
Court and nor in grounds of appeal in this Court.
36)   Second,  since  no  plea  was  raised  in  the  written  statement,  a
fortiori, no issue was framed and, in consequence, neither the  Trial  Court
nor the High Court could render any finding on the plea.
37)   Third, it is a well-settled principle of law that the  plea  regarding
the maintainability of suit is required to be raised in the  first  instance
in the pleading (written statement) then only such plea can  be  adjudicated
by the Trial Court on its merits as a preliminary issue under Order 14  Rule
2 of  the CPC. Once a finding is rendered on the plea, the same can then  be
examined by the first or/and second appellate Court.
38)   It is only in appropriate cases, where the Court prima facie finds  by
mere perusal of plaint allegations that the suit is barred  by  any  express
provision of law or is not legally maintainable due to any legal  provision;
a judicial notice can be  taken  to  avoid  abuse  of  judicial  process  in
prosecuting such suit. Such is, however, not the case here.
39)   Fourth, the  decision  relied  on  by  the  learned  counsel  for  the
appellant in the case of I.S. Sikander (supra) turns on the  facts  involved
therein and is thus distinguishable.
40)   Lastly, the suit filed by the respondent seeking specific  performance
of the agreement dated 05.03.1989 was maintainable for the reason  that  the
cause of action to file the suit arose on the expiry of period mentioned  in
the agreement (31.12.1989) for its performance as provided in Article 54  of
the Limitation Act and it was rightly filed immediately within  10  days  on
10.01.1990.
41)   For the  aforementioned  reasons,  we  find  no  merit  in  the  first
submission of learned counsel for the appellant, which is rejected.
42)   Coming now to the second and third submission of  learned counsel  for
the appellant, we are of the considered opinion that it has  also  no  merit
and hence deserve to be rejected for more than one reason.
43)   First,  the  plaintiff  had  pleaded  the  necessary  requirements  of
Section 16 (c) of the Specific Relief Act, 1963 read  with  the  requirement
of Forms 47, 48 and Article 54 of the Limitation Act in the plaint;  Second,
the defendant did not dispute the execution of agreement with the  plaintiff
and,  in  fact,  entered  in   correspondence   with   the   plaintiff   for
incorporation of some clauses  therein;  Third,  the  plaintiff  proved  her
readiness and willingness to perform her part of agreement and  also  proved
her financial capacity to purchase the suit property  by  adducing  adequate
evidence; Fourth, the  plaintiff  had  paid  more  than  Rs.2  lacs  to  the
defendant prior to execution of  sale  deed  in  terms  of  agreement  dated
05.03.1989 and was, therefore, required to pay balance sum of  Rs.1,47,200/-
to the defendant; Fifth, on admitted facts,  therefore,  the  plaintiff  had
paid more than 50% of the sale consideration to  the  defendant  before  the
due date of execution of sale deed;  Sixth, the plaintiff  had  also  proved
that she had the requisite  financial  capacity  to  pay  the  balance  sale
consideration to the defendant inasmuch as she  had arranged  the  funds  by
obtaining loan  from  the  LIC;   Seventh,  the  plaintiff  filed  the  suit
immediately on expiry of the period within 10 days  to  show  her  readiness
and willingness to purchase the property; and Eighth, once it was held  that
the defendant  committed  breach  in  avoiding  to  execute  the  agreement,
whereas the plaintiff performed her part of  agreement  and  was  ready  and
willing to perform her part, the Trial Court  was  justified  in  exercising
its discretion in favour of the plaintiff by passing a decree  for  specific
performance of agreement against the defendant.
44)   In our view, none of these findings could be assailed as being  either
perverse or de hors the evidence or against any provision  of  law  and  nor
these findings could be assailed on the ground that no  judicial  man  could
ever reach to such conclusion.
45)   We also do not find  any  merit  in  the  submission  of  the  learned
counsel for the appellant when he contended that the plaintiff did not  come
to the Court with clean hands and hence the suit is liable to be dismissed.
46)   In our view, both the Courts below rightly rejected  this  submission.
There is no evidence to sustain the submission.  On the other hand, we  find
that it is the defendant, who despite accepting the substantial money  (more
than 50%) towards sale consideration from the plaintiff,  avoided  executing
the sale deed on one or other false pretext.
47)   We also do not find  any  merit  in  the  submission  of  the  learned
counsel for the appellant when he contended that  since  the  plaintiff  was
insisting for execution of sale deed in  relation  to  some  more  portions,
which did not form part of the agreement and hence it should have been  held
that the plaintiff committed  the  breach  of  the  agreement  and  not  the
defendant.
48)   In our view, the two Courts below rightly repelled this submission  by
holding that the plaintiff did not claim  any  relief  in  relation  to  the
property which was not the subject matter  of  agreement  and  confined  his
relief only in relation to the property which formed the subject  matter  of
agreement dated 05.03.1989. We thus find no good ground to differ with  this
finding of the two Courts below. It was rightly recorded.
49)   In our considered view,  the  two  Courts  below,  therefore,  rightly
rendered the aforementioned findings in favour of the plaintiff and we  find
no difficulty in concurring with the findings, which  in  our  view  do  not
call for any interference by this Court.
50)   In the light of foregoing discussion, we find no merit in the  appeal.
It is accordingly dismissed with cost quantified at Rs.10,000/-  payable  by
the appellant to the respondent.

………...................................J.
                                  [R.K. AGRAWAL]


….……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 6, 2017
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