V. Ramachandran Nair v. Susan Sabriye Tenberken and Paul Johannas Lambertes and Shissy (RFA No. 838 of 2015 & Cross Objection No.85 of 2016)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 RFA NO. 838 OF 2015 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 29.06.2015 IN O.S.NO. 110/2008 OF SUB COURT, ATTINGAL ``` ## **`APPELLANTS(ADDITIONAL DEFENDANTS 2 & 3 IN THE COURT BELOW:`** ``` 1SUSAN SABRIYE TENBERKEN D/O. KARI GUNTHER TENBERKEN, K.P 11/170/2011, KANAVILAYIL HOUSE, VIVEKANANDA NAGAR, MUKKALLOORMOOLA, OOKKODU P.O., THIRUVANANTHAPURAM DISTRICT. 2PAUL JOHANNAS LAMBERTES, K.P.11//170/2011, KANAVILAYIL HOUSE, VIVEKANANDA NAGAR, MUKKALLOORMOOLA, OOKKODU P.O., THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.N.RATHEESH SMT.SUMA RATHEESH ``` ## **`RESPONDENTS (PLAINTIFF AND THE 1ST DEFENDANT IN THE COURT BELOW:`** ``` 1V.RAMACHANDRAN NAIR, S/O.A.K.VASUDEVAN NAIR,AGED ABOUT 62, KOIKKAL HOUSE, UNITY ROAD, ERNAKULAM DISTRICT-682012. 2SHISSY, W/O.H.SUBHASH,AGED ABOUT 48, RESIDING AT C.P 512/19, SIVA GARDENS, KADAKKAVOOR DESOM, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT- 695 016. BY ADVS.R1 BY SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN SRI.V.RAJENDRAN (PERUMBAVOOR) R2 BY SRI.K.B.PRADEEP ``` ``` THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.08.2021, ALONG WITH CO.85/2016, THE COURT ON 06.07.2022 DELIVERED THE FOLLOWING: ``` R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:2:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 ``` ``` CO NO. 85 OF 2016 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 29.06.2015 IN O.S.NO. 110/2008 OF SUB COURT, ATTINGAL ``` ``` CROSS OBJECTOR/1ST RESPONDENT IN THE APPEAL AND PLAINTIFF IN THE SUIT. ``` ``` V. RAMACHANDRAN NAIR, S/O.A.K.VASUDEVAN NAIR, AGED ABOUT 62 YEARS, 62, KOIKKAL HOUSE, UNITY ROAD, ERNAKULAM DISTRICT BY ADVS. SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN ``` ## **`RESPONDENT/APPELLANTS AND 2ND RESPONDENT/DEFENDANTS:`** 1 `SUSAN SABRIYE TENBERKEN D/O. KARI GUNTHER TENBERKEN, K.P 11/170/2011, KANNIVILAYIL HOUSE, VIVEKANANDA NAGAR, MUKKALLOORMOOLA, OOKKODU P.O., THIRUVANANTHAPURAM DISTRICT 695 003.` 2 `PAUL JOHANNAS LAMBERTES, K.P.11//170/2011, KANNIVILAYIL HOUSE, VIVEKANANDA NAGAR, MUKKALLOORMOOLA, OOKKODU P.O., THIRUVANANTHAPURAM 695 003.` 3 `SHISSY, W/O.H.SUBHASH,AGED 48 YEARS, C.P 512/19, SIVA GARDEN, KADAKKAVOOR DESOM, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT695 011. BY ADVS.R1 AND R2 BY SRI.N.RATHEESH R2 BY SRI.K.B. PRADEEP` **`THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.08.2021, ALONG WITH RFA.838/2015, THE COURT ON 06.07.2022 DELIVERED THE FOLLOWING:`** R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:3:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 838 of 2015 and Cross Objection No.85 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 06[th] day of July, 2022 ## **JUDGMENT** The appeal on hand is filed by additional defendants 2 and 3 challenging the judgment and decree passed by Subordinate Judge’s Court, Attingal (for sort ‘the court below’) in O.S. No.110 of 2008 on 29.06.2015. The respondents are the plaintiff and the 1[st] defendant in the above suit. The appellants are Dutch Nationals and running an Institute for blinds at Thiruvananthapuram under the name and style ‘Brailie without Boarders Charitable Trust’. Suit was filed by the 1[st] respondent in the appeal, seeking for a decree for specific performance of an agreement for sale. The agreement was executed among the plaintiff and the 1[st] defendant for sale of a property owned by the 1[st] defendant for a total sale consideration of Rs.30,00,000/-. Rs.6,00,000/- was paid by the plaintiff to the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:4:- 1[st] defendant towards advance sale consideration. The 1[st] defendant/2[nd] respondent agreed to clear off the liability of the properties, mortgaged with Kilimanoor Land Mortgage Bank, Attingal Branch and agreed to execute the sale deed in favour of the plaintiff/1[st] respondent. As per the request of the 2[nd] respondent/1[st] defendant, the period stipulated in the agreement was extended to another six months. The plaintiff averred in the plaint that he was ready to perform his part of the contract but the 2[nd] respondent/1[st] defendant was not willing to perform her part of the contract evenafter getting the period extended to another six months. The suit was originally filed seeking for a decree of specific performance of Ext.A1. An alternative relief to get back Rs.6,00,000/- already paid as advance amount was also sought. During the pendency of the suit, the plaint schedule property alongwith other properties having an extent of 6 acres was sold by the 2[nd] respondent/1[st] defendant to the appellants who are additional defendants 2 and 3. Accordingly, the plaint was amended by the 1[st] respondent/plaintiff and the appellants were impleaded as additional defendants 2 and 3 in the suit. A declaration was R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:5:- also sought to declare that sale deed No.2548/2009 by virtue of which the property was assigned in favour of additional defendants 2 and 3 as null and void and that it does not affect the right of the plaintiff. 2. Written statement was filed by the 2[nd] respondent/1[st] defendant in the suit contending that agreement dated 27.01.2007 was not executed for sale of property but was executed as security for the advance amount borrowed from the brother of the 1[st] respondent/plaintiff while working as a Manager in Union Bank of India, Attingal Branch. It was further alleged that the plaintiff being a benami of one Mr.Venugopalan Nair, the 1[st] respondent/plaintiff is not entitled to get a decree for specific performance of the agreement. Additional defendants 2 and 3 filed a joint written statement contending that the plaint schedule property alongwith other properties have been purchased by them _bonafide_ as per sale deed Nos.2548/2009 and 2992/2009. Properties were sold for a total consideration of Rs.1,36,99,000/-. The purpose behind the purchase of the properties was to start a college for the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:6:- blind under the Charitable Trust ‘Brailie without Borders ## Charitable Trust’. 3. Based on the rival pleadings the court below framed ## issues as follows: - “1. Whether D1 executed a valid agreement for sale in favour of the plaintiff with respect to the plaint schedule property? 2. Whether the prayer for specific performance of contract liable to be granted? 3. Whether the alternative prayer for recovery of money liable to be granted? 4. Whether sale deed No.2548/2009 is null and void and is liable to be declared as such. 5. Whether the prayers for injunction are liable to be granted. 6. Reliefs and costs.” 4. On the side of the plaintiff, himself and a witness were examined respectively as PW1 and PW2 and Exts.A1 to A9 were marked. On the side of the 1[st] defendant herself and two other witnesses were examined as DW1 to DW3 and Exts.B1 and B2 were marked. On the side of additional defendants 2 and 3, DW4 was examined and Exts.B3 to B12 were marked. R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:7:- The court below appreciated the evidence on record and decreed the Suit on terms extracted hereinbelow: - “1. Specific performance of Ext.A1 contract is granted. 2. The plaintiff is ordered to deposit the balance sale consideration of Rs.24,00,000/- (Rupees Twenty four lakhs only) before this court within two months from today with notice to D1. 3. D1 is ordered to execute sale deed with respect to the plaint schedule property in favour of the plaintiff as per Ext.A1 within thirty days from the date of deposit of balance sale consideration by the plaintiff, failing which the plaintiff will be entitled to get the sale deed executed and the property to be delivered through court. 4. The plaintiff is allowed to realize the cost of the suit from D1.” 5. Against the judgment, the 1[st] defendant in the above referred Suit preferred an appeal as R.F.A.No.145 of 2016 and additional defendants 2 and 3, as R.F.A.No.838 of 2015. The appellant in R.F.A.No.145 of 2016 failed to deposit the balance court fee, despite grant of sufficient time for her to pay it, and therefore, the appeal was rejected by an order passed by this Court. The appellant in R.F.A.No.145 of 2016 was the 2[nd] respondent in R.F.A. No.838 of 2015, but, she did not turn up R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:8:- to argue on the day specifically scheduled for hearing and after hearing the appellants and the 1[st] respondent, the case was reserved for judgment. In the meantime, an application was filed by the counsel for the 1[st] defendant/2[nd] respondent in R.F.A.No.838 of 2015 as I.A. No.01/2021 seeking to re-post the appeal for hearing her. The reason stated in the affidavit filed in support of the application was that her counsel could not appear and argue the case when the appeal was posted for final hearing. It is further stated that if a judgment is passed without hearing her it would result in irreparable injury, hardships and loss to her. It was also not stated in the affidavit that she was the appellant in R.F.A.No.145 of 2016 and the appeal filed by her stands rejected by this Court for non payment of balance court fee. 6. This Court allowed I.A. No.01/2021 and granted the applicant an opportunity to advance arguments with a view to render a correct judgment and also to abide by the principles of natural justice. Accordingly, the appeal was notified for re-hearing and parties were heard, once again. R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:9:- 7. Sri.K.B.Pradeep, the learned counsel advanced arguments for the 2[nd] respondent/1[st] defendant. According to him, his contention mainly was based on Section 16(c) of the Specific Relief Act, 1963, which mandates that a court shall not grant a decree for specific performance in favour of a party seeking for that without specific pleadings on ‘readiness’ and ‘willingness’ to perform his part of the contract being raised in the plaint and those also established by cogent and convincing evidence. The learned counsel has relied on a compendium of decisions on the point which are elaborately discussed hereunder. 8. **J.P. Builders and Another (M/s.) v. A. Ramadas Rao and Another [2010 KHC 4912 (SC)]** is relied on by the learned counsel where Apex Court has stated categorically about the implication behind the words ‘ready’ and ‘willing,’ incorporated in Section 16 of the Specific Relief Act, 1963. The Court held the words imply that the person seeking the relief was prepared to carry out the terms of the contract and he must allege and prove a continuous ‘readiness and willingness’ to perform his part of the contract from the date of execution of R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:10:- the contract itself. The court further held that it is settled law that even if the opposite party failed to raise about the lack of pleadings on that line, it being the mandate of Section 16(c) of the Specific Relief Act the plaintiff has to comply that and in case of non-compliance, the court will not grant a decree for specific performance and the Suit would be dismissed. 9. In **Vijaya Bharathi B. v. P. Savitri and Others [2017 KHC 6555 (SC)]** the Apex Court has held that in a suit for specific performance vendee resiling from execution left the Office of the Registrar without registering Power of Attorney in favour of plaintiff’s husband and the plaintiff though aware of the conveyances did not ask for their cancellation, a suit for specific performance having been filed after more than two years from the date of repudiation, the plaintiff cannot be said to be ready and willing to perform her part of the contract and held, not entitled to get the relief of specific performance. 10. In **Meenakshisundaram P. v. P. Vijayakumar and Another [2018 KHC 6232 (SC)]** relied on by the learned counsel it was held by the Apex Court that law is very clear that the plaintiff must plead and prove his readiness and willingness R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:11:- to perform his part of the contract all throughout, i.e., right from the date of the contract, till the date of hearing of the suit. 11. In **Mehboob-Ur-Rehman (Dead) Through Lrs. v. Ahsanul Ghani [2019 KHC 6180 (SC)]** the Apex Court held that in a suit for specific performance of contract, if the plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of the contract, the suit is bound to fail on that ground alone. The court further held that in a suit for specific performance of contract when the plaintiff makes an application for amendment of the plaint at the first appellate stage on such ground being raised by the defendant, the court can take such attempt on the part of the plaintiff, to improve the plaint and insert phraseology of his readiness and willingness, too late in the day for filling up a lacuna in his case. Late attempt to improve the pleadings of the plaint at the appellate stage was found by the court as a futile exercise and liable only to be rejected for its impropriety. 12. In **Kalawati (D) Through Lrs. and Others v. Rakesh Kumar and Others** [2018 KHC 6112 (SC)], the Apex Court has held that the law on the subject of specific R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:12:- performance of contract is quite clear and it is not necessary to cite dozens of judgments delivered by the Court on that point. The Apex Court held that, when the respondent was not in a position to pay the balance sale consideration, he was neither ready nor willing to perform his part of the agreement and the High Court is erred in setting aside the judgment and decree passed by the trial court. 13. In **Hari Steel and General Industries Ltd. and Another v. Daljit Singh and Others** [2019 KHC 6487 (SC)] the Apex Court has held that categorical and unconditional admissions by the appellants regarding entering into agreement/contract itself cannot be viewed in isolation, without considering the further objections raised by the appellants that certain pages in the agreement are fabricated. In case the appellant succeeds in proving that the agreement is fabricated as claimed by him, post trial it goes to the root of the case on the claim of the plaintiffs. 14. In **Ravi Setia v. Madan Lal and Others [2019 KHC 7014 (SC)]** the Apex Court has held in a case where the plaintiff did not aver in the application seeking specific R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:13:- performance of contract that he was ready and willing to perform his obligations and was prevented by some special circumstances from doing so, a certificate issued by Sub Registrar certifying the attendance of the plaintiff before him cannot be construed as conclusive evidence of readiness and willingness. But plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct alongwith all other attendant surrounding circumstances in the facts of the case, doubtful and would dis-entitle him from obtaining the discretionary relief of specific performance. It was further held in the case that the plaintiff was required to plead sufficient, substantial and cogent grounds while seeking extension of time for deposit because otherwise it becomes a question of his conduct alongwith all other attendant surrounding circumstances in the facts of the case. 15. In **Ferrodous Estates (Pvt.) Ltd. v. P.Gopirathnam (Dead) and Others [2020 KHC 6584 (SC)** ] the Apex Court has held that a suit filed for specific performance within limitation, cannot be dismissed on the sole R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:14:- ground of delay or latches. In **Atma Ram V. Charanjit Singh [2020 KHC 6134 (SC)]** the Apex Court held that the fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub Registrar on 07.10.1996 to show that he was present there for the purpose of completion of the transaction within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. 16. This Court is very much convinced from the above decisions relied on by the learned counsel for the 1[st] defendant/2[nd] respondent that it is incumbent upon the court wherein a suit for specific performance has been filed and pending to look primarily into the plaint averments to see whether precise pleadings about readiness and willingness to perform his part of the contract are incorporated and also be convinced from the evidence adduced by the party seeking for the relief that those are established. Section 16 (c) of the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:15:- Specific Relief Act being relevant in the context is extracted hereinbelow: ## **“16. Personal bars to relief:** Specific performance of a - contract cannot be enforced in favour of a person (a)xxx (b)xxx (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),— (i) 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; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” The indication from the wordings of the provision extracted above was that the court in seizin of a suit for specific performance cannot grant such a decree, if the plaintiff failed R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:16:- to raise a cogent and precise plea in the plaint that he was and is always ready and willing to perform his part of the contract and to establish the same by cogent and convincing evidence. 17. Sri.P. Raveendran Pillai, the learned counsel on behalf of the plaintiff/1[st] respondent in the appeal has contended that the arguments advanced by the learned counsel Sri.K.B.Pradeep on behalf of the 1[st] defendant in the suit/ the 2[nd] respondent in the appeal cannot be given credit to, since the appeal filed by her as R.F.A. No.145 of 2016 has already been rejected by this Court vide judgment dated 04.02.2021, on failure of the appellant to pay the balance court fee. According to him, when the appeal filed by the 2[nd] respondent/1[st] defendant in the suit itself stands rejected, it would only have the impact of non-filing of an appeal by the party. According to him, the dictum in **Jailabdeen v. Mohammed [1991 (1) KLT 639]** fortifies his contention **.** The learned counsel has invited this Court to the factual matrix of the case to convince that when an independent appeal filed by the respondent is dismissed earlier, he cannot file a memorandum of Cross Objection in the appeal filed by the appellant. According to the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:17:- learned counsel, in the case relied on, after dismissing his independent appeal, the respondent filed a Cross Objection in the appeal filed by the appellant and the court held that the Cross Objection will not sustain in law for the dismissal of the independent appeal. It was an appeal from a money decree. The learned counsel canvassed for discarding the arguments advanced by the learned counsel for the 2[nd] respondent/1[st] defendant. The learned counsel further contended that the decisions relied on by the learned counsel for the 2[nd] respondent/1[st] defendant cannot be taken to have any material impact in the matter of adjudication of the appeal on hand, since the independent appeal filed by the 1[st] defendant/2[nd] respondent raising contentions of identical nature has already been rejected. 18. In reply to the arguments advanced as above, Sri.K.B.Pradeep, the learned counsel for the 2[nd] respondent/1[st] defendant has contended on the strength of Order XLI Rule 2 and Rule 33 of Code of Civil Procedure, 1908 (for short ‘the CPC’) that the power of the appellate court is very wide and it can adjudicate probable grounds than those incorporated by a R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:18:- party in the Appeal Memorandum and even those urged later with the leave of the court. 19. Sri.Raveendran Pillai, the learned counsel for the 1[st] respondent/plaintiff has clarified that under Rule (2) of Order XLI CPC the appellate court is empowered to consider all probable grounds in the appeal preferred by the appellant and not that of the 1[st] defendant, whose independent appeal itself stands rejected by this Court for non-payment of balance court fee. 20. Sri.N. Retheesh, the learned counsel for the appellants in the appeal on hand urged on the basis of grounds E, F and G in the Appeal Memorandum that challenge was also raised by the appellant against the exercise of the discretionary power of the court below to grant a decree for specific performance of Ext.A1 agreement and the probability to grant only the alternative prayer of the plaintiff for return of the money paid as advance sale consideration. According to the learned counsel, since the above grounds are incorporated in the Appeal Memorandum filed by him, this Court, as appellate court must have to look into the question whether a decree for R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:19:- specific performance of the contract was granted by the court below in favour of the 2[nd] respondent on appreciation of the evidence on record in the proper perspective and also relying on the dictums of the Apex Court. According the learned counsel, the argument advanced by Sri.K.B.Pradeep, the learned counsel for the 1[st] defendant/2[nd] respondent assumes relevance in the context and it is incumbent upon this Court to consider those also in the backdrop of the grounds raised in the Appeal Memorandum, herein above referred to. 21. Sri.Raveendran Pillai, the learned counsel for the 1[st] respondent/plaintiff has contended in negation of the arguments advanced by Sri.K.B.Pradeep that there has been specific pleading in the plaint on readiness and willingness to perform his part of the contract, which could not be denied by the defendants in their written statement filed in the suit. Learned counsel has invited the attention of this Court to Paragraphs 5 and 10 of the amended plaint in O.S.No.110 of 2008 to contend that pleadings on readiness and willingness as envisaged under Section 16 (c) of the Specific Relief Act are taken in the plaint by the plaintiff. According to him the plaintiff R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:20:- has filed proof affidavit in lieu of examination in chief and while being cross examined as PW1 not even an attempt was made either by the 1[st] defendant or defendants 2 and 3 to controvert his version on readiness and willingness to purchase the property as per Ext.A1. According to him, when the version of PW1 stands uncontroverted by any of the defendants either in the written statements filed by them or during cross examination, the version of the plaintiff can be relied on to take a view that he has successfully discharged his burden to establish his readiness and willingness in the matter of performance of his part of the contract. According to him, the non denial by any of the defendants of the pleadings on readiness and willingness of the plaintiff, in the written statements filed by any of them itself tantamount to admission of the version of the plaintiff on readiness and willingness. 22. Section 16 (c) of the Specific Relief Act also provides for a bar against enforcebility of specific performance. It says that specific performance of a contract cannot be enforced in favour of person who fails to aver and prove that he has performed or has always been ready and willing to perform the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:21:- essential terms of the contract which are required to be performed by him, under the contract, other than the terms, the performance of which has been prevented or waived by the defendant. In Ext.A1 the parties to it have agreed to abide by certain reciprocal promises. As provided in Sub-section (c) of Section 16 of the Specific Relief Act, the plaintiff who seeks for grant of a decree of specific performance in his favour has to convince the court that he has performed or has always been ready and willing to perform the essential terms of the contract which he is bound to perform and also that certain terms under the contract could not be performed by him in view of the restraint or waiver by the defendant. The provision supra makes it clear that a plaintiff intending to get a decree of specific performance of contract, has to convincingly make it clear to the court approached by him that he had been and is always, ready and willing to perform the essential terms of the contract incorporated in the agreement for sale to be performed by him and to establish those before that court convincingly by cogent and reliable evidence. R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:22:- 23. As rightly pointed by Sri.K.B.Pradeep, the learned counsel, Order XLI Rule 2 CPC and Rule 33 CPC confer ample power to this Court, being the first appellate court to deal with the above issue which is crucial and important in the matter of grant of a decree for specific performance. It is pertinent to note that grounds have also been projected in the Appeal Memorandum on the above issue by the appellants who are additional defendants 2 and 3. What can be gathered from Rule 2 of Order XLI CPC was that for want of plea and proof regarding readiness and willingness to perform the terms of contract meant to be performed by the plaintiff under the agreement for sale the court will be barred from granting a decree for specific performance. It being the burden of the plaintiff to establish, the failure of the defendant to deny or cross examine the plaintiff on the point, will not save him. It is the burden of the plaintiff to plead and establish “readiness” and “willingness” envisaged under Section 16 (c) of the Specific Relief Act in the true meaning and spirit intended by those. It is for the plaintiff to satisfatorily discharge the burden, by adducing cogent and convincing evidence. The failure of the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:23:- defendant to raise a plea against readiness and willingness will not exempt the plaintiff from discharging his burden, which is very crucial and relevant to be discharged in a suit for specific performance. What the court has to see is whether the plaintiff has satisfactorily discharged the burden and not that a stand of denial has been taken by the defendant. Plaintiff cannot take the advantage of weakness of the defendant to raise a plea on the contrary or raise a challenge against it. Therefore, being the first appellate court, this Court is bound to look into the question whether the decree for specific performance was granted by the court below in favour of the 1[st] respondent/plaintiff after having appreciated the evidence on record in its correct perspective and applied its mind to the various decisions rendered by the Apex Court and various High Courts as well, on the point. 24. Some relevant aspects are required to be considered by this Court while evaluating the legality, propriety and infirmity of the judgment under challenge. This Court has to see whether the pleadings in Paragraph Nos.5 and 10 of the amended plaint in O.S.No.110 of 2008 on the files of R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:24:- Subordinate Judge's Court, Attingal are sufficient and satisfactory to suit the mandatory requirements envisaged under Section 16 (c) of the Act. The relevant paragraphs in the plaint in O.S.No.110 of 2008 are extracted hereinbelow for a proper evaluation: “5. The plaintiff was and is ready to perform the terms of the contract which are to be performed by him.” “10. It is respectfully submitted that as per the terms of the agreement, defendant is bound to convey the property by making it freed from all encumbrances. The plaintiff is even now willing to purchase the plaint schedule property in accordance with the terms of the Agreement for Sale.” 25. In Paragraph No.5 it has been stated that the plaintiff was and is ready to perform the terms of the contract which are to be performed by him. In Paragraph No.10 it has been stated that the plaintiff is even now willing to purchase the plaint schedule property in accordance with the terms of the agreement for sale. Prior to delving on the sufficiency and adequacy of the pleadings in the plaint on readiness and willingness, an understanding of the meaning given to those by the Apex Court as well as various other High Courts in the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:25:- ## decisions cited by the learned counsel for the appellant being inevitable, are discussed hereunder. ## 26. The Apex Court in **J.P. Builders and Another** ## **(M/s)** supra, held : “9. The words “ready” and “willing” imply that the person was prepared to carry out the terms of the contract. The distinction between “readiness” and “willingness” is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.” ## In paragraph 12 of the above judgment, the Apex Court has observed further : “12. S.16(c) of the Specific Relief Act, 1963 mandates “readiness and willingness” on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous “readiness and willingness” to perform the contract on his part from the date of the contract. The onus is on the plaintiff. It has been rightly considered by this Court in R.C. Chandiok and Another V. Chuni Lal Sabharwal and Others, 1970(3) SCC 140 that “readiness and willingness” cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. It is settled law that even R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:26:- in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with S.16(c) of the Specific Relief Act and when there is noncompliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties.” Therefore, in the view of the Apex Court ‘readiness and willingness’ to perform the part of the contract has to be ascertained from the entirety of the facts and circumstances indicative of the intention and conduct of the party concerned. 27. In **Vijaya Bharathi B** supra, the Apex Court has gone to the extent of holding that inordinate delay in filing the suit for specific performance from the date of repudiation would convey to the court that the plaintiff was not ready and willing to perform her part of the contract and the decree for specific performance has to be declined to her. 28. In **Meenakshisundaram P** supra, the Apex Court has held that the plaintiff must plead and prove his readiness R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:27:- and willingness to perform his part of the contract all throughout, i.e, right from the date of the contract till the date of hearing of the suit. 29. In **Mehboob-Ur-Rehman (Dead) Through Lrs** supra, the Apex Court held that in a suit for specific performance of contract if by way of the amendment of the plaint, the 1[st] plaintiff sought to insert the phraseology readiness and willingness in the first appeal, it would only tantamount to improvisation of the pleadings at a later stage and the proposed move of the plaintiff, being only an attempt to fill up the lacuna in his case at the appellate stage, the appellate court is justified in rejecting the application seeking amendment. 30. The discussions above would make it clear that the plaintiff in his pursuit to obtain a decree for specific performance, if he had already performed his part under the agreement for sale, has to adduce evidence to convince the court on that aspect and in case his part is yet to be complied with, evidence must be adduced to establish that he was and has always been ready and willing to discharge his part of the R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:28:- contract to get the sale deed executed in his favour. Therefore, in the decisions dealt with as above, the Apex Court has interpreted the meaning of the terms “readiness” and “willingness” and the extent of evidence required by the plaintiff to adduce. On a view of paragraph Nos.5 and 10 of the amended plaint extracted above, this Court is convinced that there is total want of plea on ‘readiness’ and ‘willingness’ as envisaged under Section 16(c) of the Act. While being examined as PW1 also the plaintiff was not categoric on the part to be performed by him as per the terms agreed to in Ext.A1. The plaintiff has also no case that the performance of his part of the contract as per Ext.A1 was defeated on account of the default of the defendant. As revealed from the terms of the agreement, marked in evidence in the suit as Ext.A1, the plaintiff has to pay the balance sale consideration to seek for execution of the sale deed in his favour. His part to be performed being so, he has to plead in the plaint that suffiicent money to pay the balance sale consideration was maintained by him and it has been and is still with him, or else that he had R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:29:- identified the immediate resources to avail the same and those are still there to avail the money. 31. Even in notices issued as Exts.A2 and A3 also he has not stated anything about the manner in which he was ready and willing to perform his part of the contract. It is for him to establish his readiness and willingness in the matter of performance of his part in the contract by adducing proper and cogent evidence. It is for him to convince the court that he had been and is ready always with the cash to be paid as balance sale consideration or that the resource to accumulate the money for payment of balance sale consideration is within his reach at the very moment he is called upon to do so by the court. True that money need not be deposited before the court but the plaintiff has to establish convincingly that he is capable to pay the balance sale consideration at any point of time, if demanded by the court. As held by the Apex Court, he has to adduce evidence to show that money was with him and also is, to pay the balance sale consideration ever since the date of institution of the suit till the date on which, the suit is heard for final disposal. R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:30:- 32. Sri.Raveendran Pillai, the learned counsel for the 1[st] respondent/ plaintiff has contended that the plaintiff did not choose to go to the extent of establishing his readiness and willingness as stated above, for failure of the defendant to deny or dispute his pleadings in the plaint and to cross examine him on the point. According to him, the above conduct of the defendants would tantamount to admission on the plea of the plaintiff that he was and has always been ready and willing to perfom his part of the contract. The dictum of the Apex Court in **J.P. Builders and Another (M/s.)** supra assumes much relevance in the context to convince that even in the absence of a specific plea by the opposite party challenging or controverting the readiness and willingness of the plaintiff, it being a prime and pre-requirement of the plaintiff under Section 16(c) of the Act to plead and prove those and non compliance with the statutory mandate, would only disentitle him for the decree. The suit is liable to be dismissed in such a context. Therefore, the weakness of the defendant will not be a basis for the plaintiff to canvass that he was successful in establishing the mandate of Section 16 (c) of the Specific Relief R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:31:- Act and entitled to get a decree for specific performance of Ext.A1. 33. The discussion above would make it clear that the court below has not appreciated the evidence on its record in the correct perspective. It overlooked the mandate of Section 16 (c) of the Act and failed to follow the dictums laid down by the Apex Court as well as various High Courts on the point. This Court has no hesitation in the context on hand to hold that the judgment passed by the court below and the decree it granted suffer and are liable to be set aside. 34. Then the question remains, whether the appellants who are additional defendants 2 and 3 are entitled to get any reliefs. The court below has discarded the contentions of additional defendants 2 and 3 that they are bonafide purchasers. The pleadings of additional defendants 2 and 3 in their written statement and the evidence adduced by them before the court below would make it clear that the plaint schedule property was purchased by them for a huge consideration of Rs.1,36,99,000/- and that too _pendete lite._ R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:32:- 35. The Cross Objector is none other than Sri.V.Ramachandran Nair, the 1[st] respondent in R.F.A.No.838/2015 and plaintiff in the Original Suit. Respondents 1 and 2 are the appellants and respondent No.3 is the 2[nd] respondent in the appeal. 36. For the sake of convenience the parties in the Cross Objection are referred to hereinafter as the plaintiff and the defendants 1 and additional defendants 2 and 3 in accordance with their respective status in the Original Suit. 37. The main contention raised by the Cross Objector was that defendants 2 and 3 purchased the property for their charitable activities to protect the interest of the blind and are conducting charity activities stand established by Exts.B11 and B12 magazines. According to the Cross Objector plaint schedule property measuring 3 acres and 95 cents was agreed to be sold to the plaintiff by the 1[st] defendant for a total consideration of 30 lakhs on 27.01.2007. Thereafter 1[st] defendant evaded from her duties to execute the agreement for sale despite receipt of a sum of Rs.6,00,000/- as advance consideration from the plaintiff on 26.04.2007. Therefore, a R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:33:- lawyer notice was issued to the 1[st] defendant. Response was not there for the lawyer notice and therefore O.S.No.110/2008 was instituted on 03.05.2008 before the vacation Bench of District Court, Thiruvananthapuram which was lateron transferred to Sub Court, Attingal on cessation of vacation. By an order of temporary injunction passed in I.A.No.2347/2008 filed in the suit by the plaintiff, the 1[st] defendant was restrained from alienating the plaint schedule property. The said order was communicated to the jurisdictional Sub Registrar and published in Kerala Kaumudi Daily dated 06.07.2009. Violating the order of temporary injunction, on 28.08.2009 the 1[st] defendant, by document Nos.2548/2009 and 2992/2009 sold the plaint schedule property and some other properties to additional defendants 2 and 3. In the written statement filed in the suit, 1[st] defendant had contended that she had signed the agreement for sale on being directed to do so by one Mr.Venugopalan Nair, after informing that the same was for the purpose of availing a loan. After the sale of property, the plaint was amended and the transferees were impleaded as additional defendants 2 and 3 and sale deed No.2548/2009 executed R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:34:- alone was challenged as null and void. The learned Sub Judge decreed the suit. The finding against appellant as incorporated in Paragraphs 41 to 44 of the judgment are extracted hereunder: “41. Defendants 2 and 3 contend that they purchased the property for the charitable trust and the trust is carrying out charitable activities to protect the interests of the blind. It is contended that defendants 2 and 3 are conducting appreciable charitable activities. Reference was made to Ext.B11 and B12 magazines. 42. It is not in dispute that it was during the pendency of the suit that defendants 2 and 3 purchased the property. Section 52 of the Transfer of Property Act,1882 applies. The transfer of property in favour of D2 and D3 cannot affect the right of the plaintiff to seek for specific performance as per Ext.A1. That is the mandate of rule of Lis Pendens as contained in Section 52 of the Act. The fact that defendants 2 and 3 are carrying out charitable activities is not a ground to deny the relief of specific performance to the plaintiff. 43. Defendants 2 and 3 contend that they purchased the property without notice to Ext.A1. R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:35:- But, that will not exclude the operation of Section 52 of the Transfer of Property Act. 44. This is a case where the plaintiff contracted to purchase the property as per Ext.A1 and paid substantial amount towards sale consideration. The plaintiff has been ready and willing to perform his part of the contract. The mere fact that the charitable trust purchased the property during the pendency of the suit cannot dis-entitle the plaintiff to the relief of specific performance. It is my considered view that no ground has been made out to deny the relief of specific performance to the plaintiff and this is a fit case in which the discretion of this court has to be exercised in favour of granting the relief of specific performance.” On the basis of the finding extracted above, the learned Sub Judge answered issue No.2 in favour of the plaintiff and decreed the suit for specific performance. According to the learned Sub Judge, the plaint schedule property was sold by the 1[st] defendant in favour of additional defendants 2 and 3. 38. The Cross Objector has also contended that issue No.4 “Whether the sale deed No.2548/2009 is null and void and is liable to be declared as such.” was also answered by the court R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:36:- below in the negative. According to him, the finding and the reasoning for arriving at such a finding contained in Paragraphs 49, 50 and 51 of the impugned judgment are wrong and illegal. The Cross Objection was filed seeking to reverse the above finding. 39. According to the Cross Objector he had also produced the certified copy of the proceedings of the Inspector General of Registration obtained under the Right to Information Act, 2005 by which it was specifically observed that the impugned sale deed is squarely against Foreign Exchange Management Act, 1999 (for short ‘FEMA’) and without obtaining due sanction of the Reserve Bank of India and is therefore liable to be cancelled by the jurisdictional Collector, as the Deputy Inspector General of Registration has no power to do so. 40. He also filed an interlocutory application with a prayer to mark the document as Ext.A10. Accordingly modification of the decree and judgment on the above counts was sought. 41. The plaintiff in the Original Suit had also sought for a declaration that the sale deed executed by defendant No.1 in favour of additional defendants 2 and 3, bearing No.2548/09 is R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:37:- null and void and that it does not affect the right of the plaintiff to get specific performance as per agreement dated 27.01.2007. The plaintiff also sought for a decree of permanent prohibitory injunction to restrain the 1[st] defendant from alienating the property. Plaintiff also sought for an alternative relief of recovery of advance amount. 42. As per the pleadings of the plaintiff in the Suit after obtaining an order of temporary injunction against the 1[st] defendant restraining him from alienating the plaint schedule property and while the order was in force that the property was sold in favour of additional defendants 2 and 3. According to him, therefore the sale deed is hit by Section 52 of the Transfer of Property Act, 1882 (for short ‘the T.P Act’) and therefore is invalid. It was pleaded that the additional defendants purchased the plaint schedule property with full knowledge of the agreement. 43. According to additional defendants 2 and 3, the purchasers of the property from the 1[st] defendant, the property was purchased without any knowledge about Ext.A1 agreement for sale allegedly executed among the Cross R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:38:- Objector/plaintiff and defendant No.1. According to them the property was purchased for a sale consideration excessive than that was allegedly agreed in Ext.A1. Accordingly, their claim was that they are only _bonafide_ purchasers for valid consideration. The court below observed that purchasing of the property by the defendant being during the pendency of the suit is hit by Section 52 of the T.P Act and that by itself will not make the sale deed executed as 2548/2009 in favour of additional D2 and D3, null and void. The court also observed that when the property was sold during pendency of the suit the consequences contemplated under Section 52 of the T.P Act alone would follow. The court also found accordingly that the impugned sale deed cannot be declared null and void and as such the prayer for declaration was declined. 44. The court below was also declined to consider the prayer of the plaintiff that the sale deeds stand executed in favour of additional defendants 2 and 3 who are foreign nationals are hit by FEMA,1999. The court below’s reluctance to declare as prayed for was based on the factum apprised to it by the defendant that a pleading to that effect was not taken R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:39:- up in the plaint. It is settled law that without a plea be specifically raised on that count in the plaint a consideration on that cannot be done by the court. Plaintiff cannot also canvass for such a consideration. 45. The Cross Objector now sought to mark an additional document which speaks about the above aspect as Ext.A10. This Court is declined to receive the additional document as Ext.A10 for the above reason itself. 46. The court below is perfectly justified in holding that properties being purchased during pendency of the Suit, the consequences contemplated under Section 52 T.P Act alone would follow. 47. This Court is declined to interfere with the finding of the court below in the above regard. This Court has allowed the appeal by reversing the impugned judgment and decree. 48. Cross objection fails for the reasons discussed above and is also liable to be dismissed. 49. This Court has already decided to reverse the judgment and the decree of specific performance stands granted in favour of the plaintiff and is inclined to allow O.S. R.F.A. No. 838 of 2015 & Cross Objection No.85 of 2016 -:40:- No.110 of 2008 to the extent of granting a decree for refund of Rs.6,00,000/- stands paid as advance sale consideration as per the terms in Ext.A1, with interest at the rate of 12% per annum from the date of filing of the Original Suit till the date of realisation from the 1[st] defendant in the Suit. A decree is passed to the effect. In the result, Appeal is allowed and cross objection is dismissed. No order as to costs. Sd/- **MARY JOSEPH, JUDGE** NAB