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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.543 OF 2021
(Arising out of SLP (C) No(s).9175/2020
KADUPUGOTLA VARALAKSHMI APPELLANT(S)
VERSUS
VUDAGIRI VENKATA RAO & ORS. RESPONDENT(S)
WITH
CIVIL APPEAL NO.544 OF 2021
(Arising out of SLP (C) No(s) 1944/2021
O R D E R
Application for substitution is allowed.
Leave granted.
These appeals arise out of the judgment and order dated
20-04-2020 passed by the High Court of Andhra Pradesh at
Amravati in A.S. No. 531/2008.
Civil suit1 seeking specific performance of agreement
dated 09.10.2004 was dismissed by the Trial Court holding
inter alia that the plaintiff had failed to prove the
genuineness of the agreement dated 09.10.2004 and that the
appellant herein was a bonafide purchaser for consideration
without notice of said agreement dated 09.10.2004.
In paragraph 15 onwards of its judgment, the Trial
Court also noted certain facts touching upon the question of
1 O.S. No.209 of 2006 in the Court of Senior Civil Judge, Vizianagaram filed by
respondent no.1 in both appeals – Vudagiri Venkata Rao.
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readiness and willingness on part of the plaintiff.
In the first appeal arising therefrom, the matter was
considered by the High Court under Point No.2, in paragraphs
70 to 76 of its judgment as under:
“POINT No.2:-
70. The evidence of the appellant as P.W.1 is that
he was ready and willing to perform his part of the
contract in terms of Ex.A1. Reasons are assigned
while discussing point No.1 that the appellant had
established that he was in a position to raise
necessary funds to perform his part of the contract
under Ex.A1. In Ex.A2 notice, he clearly stated that
he was ready and willing to perform his part of the
contract thereunder and called upon the 1st
respondent to perform his part of the contract upon
receiving balance sale consideration and to execute
a regular sale deed as well as to get it registered.
References to these circumstances are also made in
the plaint, though specific averments to the effect
that the appellant was always ready and willing to
perform his part of the contract are not brought out
in the plaint. Nonetheless the manner in which the
appellant expressed his readiness and willingness in
so many words in the plaint as well as in Ex.A2
notice clarify the situation and making out this
omission insignificant.
71.The nature of defence of denial of execution of
Ex.A1 set up by the 1st respondent, without referring
or denying that the appellant was always ready and
willing to perform his part of the contract is a
factor to be considered in this respect.
72. The learned counsel for the appellant placed
reliance in Narinderjit Singh vs. North Star Estate
Promoters Limited [(2012) 5 SCC 712 26] in this
respect. In given facts and circumstances, referring
to denial of agreement of sale set up as defence in
a suit for specific performance, it is observed in
this ruling that objection that the plaintiff is not
ready and willing to perform his part of the
contract under agreement for sale, cannot stand. It
was thus observed that the defendant could not have
raised a plea relating to want of readiness and
willingness on the part of the plaintiff to perform
his part of the contract.
73. Further reliance is placed by the learned
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counsel for the appellant in this context in Silvey
and others vs. Arun Varghese and another[(2008) 11
SCC 45], apart from a judgment of Punjab & Haryana
High Court in Santa Singh v. Binder Singh and others
[2006 SCC OnLine P&H 442].
74. Contentions are also advanced on behalf of the
appellant, referring to the defence of 3rd
respondent, who is subsequent purchaser of the suit
property under Ex.B4 that she cannot raise such
objection. Reliance is placed in this context in M.
M.S.Investments, Madurai and others vs. V. Veerappan
and others [(2007) 9 SCC 660] . In para-6 of this
ruling, it is observed as under:
“6. Questioning the plea of readiness and
willingness is a concept relatable to an
agreement. After conveyance the question of
readiness and willingness is really not relevant.
Therefore, the provision of the specific Relief
Act, 1963 (in short “the Act”) is not
applicable.”
75. In Jugraj Singh and another vs. Labh Singh and
others[(1995) 2 SCC 31] in this respect it is observed
in para 5 referring to the celebrated judgment in
Gomathinayagam Pillai v. Palaniswami Nadar{AIR 1967 SC
868 ] as under:
“5. This Court in Gomathinayagam Pillai v.
Palaniswami Nadar quoting with approval Ardeshir
case (AIR 1928 PC 208) had held as follows:
“But the respondent has claimed a decree for
specific performance and it is for him to
establish that he was , since the date of the
contract, continuously ready and willing to
perform his part of the contract. If he failed to
do so, his claim for specific performance must
fail.”
That plea is specifically available to the vendor/
defendant. It is 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 sale with the
plaintiff. They are bona fide 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 plea that the plaintiff must
always be ready and willing to perform his part of
the contract must be available only to the vendor
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or his legal representatives, but not to the
subsequent purchasers....”
76. Therefore, in the light of the above legal position,
it is not open for the 3rd respondent to raise this plea.
Thus, on the material it has to be held that the appellant
did succeed in making out that he was ready and willing to
perform his part of the contract under Ex.A1 at all
material times against the 1st respondent. Thus, this point
is answered.”
Thus, the submissions advanced on behalf of the appellant i.e.
subsequent purchaser were not taken into account on the premise
that it would not be open to a subsequent purchaser to challenge
the readiness and willingness on part of the plaintiff. The High
Court had relied upon the decision of this Court rendered in
Jugraj Singh and Another vs. Labh Singh and Others [(1995) 2 SCC
31] to come to such conclusion.
It must be stated here that the principles laid down in
Jugraj Singh and Another (supra) were not accepted by a larger
Bench of this Court. The relevant discussion in paragraph 6 in the
case of Ram Awadh (Dead) by Lrs. and Others vs.Achhaibar Dubey and
Another [(2000) 2 SCC428] was as under:
“6. The obligation imposed by Section 16 is upon the
court not to grant specific performance to a plaintiff
who has not met the requirements of clauses (a), (b)
and (c) thereof. A court 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 is, therefore, no
question of the plea being available to one defendant
and not to another. It is open to any defendant to
contend and establish that he mandatory requirement of
Section 16(c) has not been complied with and it is for
the court to determine whether it has or has not been
complied with and, depending upon its conclusion,
decree or decline to decree the suit. We are of the
view that the decision in Jugraj Singh case [(1995) 2
SCC 31] is erroneous.”
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Learned counsel appearing for the plaintiff - respondent
no.1 sought to support on facts the conclusion arrived by the
High Court on the issue of readiness and willingness.
However, the fact remains that the entire perspective with
which the matter was considered by the High Court was clearly
erroneous and as the observations made by the High Court in
paragraph 76 disclose, the High Court went on the footing that it
was not open to the appellant i.e. subsequent purchaser to raise
any submissions on the issue of readiness and willingness. Thus,
the judgment under challenge clearly fell in serious error.
We, therefore, deem it appropriate to set aside the
decision of the High Court and remit the matter for fresh
consideration on merits.
These appeals are, therefore, allowed, the judgment under
challenge is set aside and First Appeal being A.S. No.531 of 2008
is restored to the file of the High Court to be decided afresh on
merits.
No order as to costs.
……………………………J.
[UDAY UMESH LALIT]
……………………………J.
[INDIRA BANERJEE]
……………………………J.
[K.M. JOSEPH]
New Delhi;
February 16, 2021.
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ITEM NO.9 Court 4 (Video Conferencing) SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9175/2020
(Arising out of impugned final judgment and order dated 20-04-2020
in AS No. 531/2008 passed by the High Court Of Andhra Pradesh At
Amravati)
KADUPUGOTLA VARALAKSHMI Petitioner(s)
VERSUS
VUDAGIRI VENKATA RAO & ORS. Respondent(s)
(FOR ADMISSION and I.R. and
IA No. 72331/2020 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT; IA No. 75121/2020 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
WITH
SLP(C) No. 1944/2021 (XII-A)
(FOR ADMISSION and I.R. and IA No.14100/2021-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.14102/2021-APPLICATION FOR
SUBSTITUTION and IA No.14101/2021-EXEMPTION FROM FILING O.T.)
Date : 16-02-2021 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE K.M. JOSEPH
For Petitioner(s) Mr. A. Ramalingeswara Rao, Sr. Advocate,
Ms. E. R. Sumathy, AOR and
Ms. S. Spandana Reddy, advocate -[for
SLP(C) No. 1944/2021]
Mr. Raavi Yogesh Venkata, AOR
Ms. Snigdha Singh [Adv.]
Mr. Saurabh Ahluwalia [Adv.]
For Respondent(s) Mr. G. Ramakrishna Prasad, AOR
Mr. Suyodhan Byrapaneni, Adv.
Ms.Filza Moonis, Adv.(R-1)
Mr. A. Ramalingeswara Rao, Sr. Advocate,
Ms. E. R. Sumathy, AOR and
Ms. S. Spandana Reddy, advocate - for
Respondent Nos. 2.1, 2.2, 3.
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UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
These appeals are allowed in terms of the signed
order.
Pending applications, if any, shall stand disposed of.
(INDU MARWAH) (VIRENDER SINGH)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)
