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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.
———————–
9

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