Appreciation of Evidence – in a suit for specific performance – while finding the capacity of plaintiff to pay the balance amount – his statment that he got gold and also purchased other properties too is enough in the absence of serious dispute about the existence of gold – Non production of bills for the gold is not fatal.- Apex court held that In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff.-we are of the view that the High Court erred in interfering with the decree passed by the Trial Court.

(Arising out of S.L.P.(C) No.1701 of 2016)

  1. The appeal by Special Leave is directed against
    the judgment passed by the High Court of Kerala at
    Ernakulam dated 08.10.2015 in RFA No.869 of 2013. The
    appellant is the plaintiff in a suit for specific
    performance which has been decreed by the trial Court
    but on appeal by the defendant dismissed by the
    impugned judgment of the High Court. For the sake of
    convenience, the parties would be referred hereinafter
    as per their status shown in the plaint before the
    trial Court.
  2. There is no dispute that the plaintiff and the
    defendant have indeed entered into an agreement on
    25.04.2007. The agreement (marked as A1), inter alia,
    provided as follows; The property, which was agreed,
    to be sold was mentioned as 75 ¾ cents held by the
    defendant as per assignment deed No.1405 of 1975. The
    property agreed to be sold included all improvements
    thereon including an incomplete RCC house building,
    Well, motor shed etc. Payment of Rs.2,00,000/- as
    advance was recorded. Towards balance consideration the
    plaintiff was to pay the minimum amount of
    Rs.3,00,000/- within four months from 25.04.2007. It
    is further recited that on such payment, the defendant
    will assign land equivalent to Rs.3,00,000/- in favour
    of the person nominated by the plaintiff for the
    portion agreed by both the parties. The consideration
    was fixed at Rs.34,000/- per cent of property to be
    found on actual measurement. The time limit was fixed
    as “till the 24th day of March, 2008”. Time limit was
    expressly mentioned as an essential part of the
    agreement. The assignment was to be executed either in
    favour of the plaintiff or any other person nominated
    by him in writing. Before the execution of the
    assignment deed, the contract further provided that the
    plaintiff shall be convinced of the title of the
    property and other connected things.
  3. It is not in the region of dispute that the
    plaintiff paid Rs.3,00,000/- by cheque on 25.08.2007
    and it is also endorsed in the agreement. Thereafter,
    on 25.01.2008 the defendant sent a lawyers notice to
    the plaintiff. Therein it is stated that the defendant
    holds 75 ¾ cents as per the assignment deed, already
    referred to, which property was agreed to be sold for
    Rs.34,000/- in terms of the agreement and the last date
    of the agreement was fixed as 24.03.2008. It is further
    stated that the plaintiff was to give balance
    consideration by deducting the advance within the
    stipulated time for which the defendant is ready and
    he called upon the plaintiff to get ready for the same
    by that time. It is further stated that the plaintiff
    had orally offered to the defendant in the presence of
    witnesses that he will take assignment of the property
    even before the stipulated date for which the defendant
    is ready.
  4. The plaintiff caused a reply notice to be sent to
    the aforesaid lawyers notice. The reply notice sent was
    dated 18.03.2008. Therein it is relevant to notice
    certain statements. After referring to Ext.A1
    agreement, it is stated that the lawyers notice was
    sent by the defendant without getting the property
    measured or producing and convincing the plaintiff
    about the original title deed No.1405/1975 as well as
    prior documents. It is stated that the plaintiff was
    and is continuously ready and willing to perform his
    part of the agreement right from the beginning till
    then and in future. The statement in the notice, sent
    by the defendant, is denied that the plaintiff will
    take the assignment before the agreed date and it was
    agreed so in the presence of witnesses. It is alleged
    that defendant sent the notice with ulterior motive
    concealing that property had not been measured and
    without producing the original title deed. The
    plaintiff pointed out that the defendant consented to
    measure the property only three days before that date
    i.e. on 16.03.2008 (it may be noticed that reply notice
    is dated 18.03.2008 and it was sent only later). It was
    further stated that the defendant told the plaintiff
    that the total extent of property, as per the document,
    found on measurement was only 70.950 cents. The case
    sought to be set up further is that, according to the
    plaintiff, 1 ½ cents of property was not in the
    possession or ownership of the defendant. Out of the
    70.950 cents of property one cent on the southern
    boundary was alleged to belong to one Kochammu and
    another ½ cent of property on the northern boundary
    belonged to some one else. This information was got by
    plaintiff from reliable source. The plaintiff complains
    in the reply notice that the defendant was insisting
    that he will assign the property only if the
    consideration in full for the said 70.950 cents was
    paid. Objection was taken to the same by the plaintiff.
    Thereafter, it is, inter alia, stated that the
    plaintiff is ready and willing to take the assignment
    of the entire property available as per the original
    document No.1405/1975. The insistence on the part of
    the defendant in withholding the original document is
    stated to be ill-motivated. The plaintiff thereafter
    states that he wished to construct residential house
    building for his own occupation adjacent to the
    property as per agreement which is very close to his
    proposed residence. Plaintiff is alleged to have made
    solid arrangement for the same. It was specifically,
    inter alia, stated that the plaintiff had arranged
    balance consideration and he was continuously ready and
    willing to take the assignment right from the date of
    the agreement i.e. on 24.03.2007 and thereafter in
    future as well.
    We further notice that on 24.03.2008, which as per
    Ext.A1 agreement, was to be the “last date” under the
    agreement, the plaintiff and the defendant claimed that
    they were present at the office of the Sub Registrar.
    According to the plaintiff, the defendant was elusive
    and could not be contacted over the phone and he was
    unavailable. The plaintiff filed a complaint before the
    police on 24.03.2008 in the evening. He also followed
    it up with a petition before the Sub Registrar on
    25.03.2008. Within three days from 24.03.2008, that is
    on 27.03.2008, the present suit came to be instituted,
    claiming specific performance. In the plaint, after
    referring to the agreement, the plaintiff has alleged
    that he was always ready and willing to perform his
    obligations. The blame was put at the doorstep of the
    defendant for breaching the contract. The defendant in
    his written statement on the other hand blamed the
    plaintiff for breach and it was his case that plaintiff
    was not ready and willing and he was not ready with the
  5. The trial Court struck the following issues; (1)
    whether the plaintiff was ready and willing to perform
    his part of the contract, (2) whether the defendant
    committed breach and (3) whether the plaintiff is
    entitled to get a decree for specific performance. The
    trial Court, inter alia, found as follows.
    “8. It is true that plaintiff has not
    produced any document to show that he was
    having ready cash covering the balance
    consideration, payable by him under Ext.A1,
    at the relevant time. Of course, certain
    documents are produced to show that presently
    he is having some ready cash in the form of
    fixed deposits and in the form of share
    certificates etc. I do not think that any of
    these documents are much relevant in this
    case for the reason that in the nature of the
    dispute the plaintiff has to prove his
    capacity to pay the balance consideration
    within the period shown in Ext.A1. Production
    of these documents which are admittedly after
    the suit may not have much evidentiary
  6. The trial Court further holds that it is not the
    requirement of law that a vendor in a contract for sale
    has to carry the balance consideration with him always
    till the expiry of the agreement. It is sufficient that
    he has enough source to raise the funds as and when
    required. Rejecting the contention of the defendant,
    that plaintiff did not have money even when he entered
    Ext.A1 agreement, it was noticed that admittedly on the
    date of agreement Rs.2,00,000/- was paid and
    subsequently Rs.3,00,000/- was paid. The explanation
    of plaintiff as to why he did not take the proportionate
    extent on payment of Rs.3,00,000/-, as provided in the
    agreement, was accepted. It was found that the extent
    was not found sufficient on the advise of the engineer
    to start the construction. The case of the plaintiff,
    in fact, is that the idea to purchase the plaint
    schedule property was to start a tuition center by
    making a partnership between himself and his family
    members. Thereafter, it is found as follows in
    paragraph 12:
    “12. Plaintiff has given clear evidence to
    the effect that he had sufficient money with
    him for completing his part. As already
    stated by him, he did not carry the ready
    cash with him through out the period of the
    agreement. The total amount o f consideration
    comes to Rs.25,67,000/-, even if the extent
    is taken as 75 3/4 cents. It is contended
    that plaintiff was only a student at the time
    of Ext.A1. He is so described in Ext.A1 also.
    PW1 says that even at that time he was
    employed. True, one cannot expect that from
    his employment alone he could have mobilized
    the balance consideration. The income tax
    returns filed by him show his salary and
    prove the above fact. But there is ample
    evidence to show that his father was actively
    involved in the transaction. PW1 has deposed
    that his family members were possessing gold
    ornaments worth Rs.25,00,000/- and he was
    having cash amount of Rs.8,00,000/- at the
    relevant time. The defendant has no case that
    the plaintiff was not supported by his
    father. In fact, the active involvement of
    his father in the transaction is rather
    admitted by defendant himself. Plaintiff has
    produced several documents to show that his
    parents are having sufficient properties and
    gold ornaments. Of course, most of them are
    after suit documents. But there is an
    admission made by DW1 that after Ext.A1, the
    plaintiff has purchased an adjacent plot
    measuring 10 cents. Considering the totality
    of the evidence available, I am inclined to
    hold that the plaintiff was having capacity
    to raise the balance consideration had the
    necessity arisen. Therefore, I am inclined to
    accept the evidence of PW1 that he was ready
    with the balance consideration or at least he
    was capable of raising the balance
    consideration as and when required.”
  7. The trial Court thereafter also rendered findings
    on the issue as to whether the defendant had committed
    breach. The contention of the plaintiff that the
    lawyers notice dated 25.01.2008 sent by the defendant
    was issued with ulterior motive was accepted. It was
    found that under Ext.A1 agreement the property was to
    be measured and the actual extent was to be
    ascertained. Before sending lawyers notice, the
    defendant had not got the property measured. It was for
    the defendant to get the property measured. Referring
    to the admissions made by the defendant, it was found
    that he had not taken any step for measuring the
    property. The admission that the defendant was aware
    on the date of Ext.A1 agreement that the entire extent
    of 75 ¾ cent was not available is referred to. The case
    of the defendant that the property was measured by the
    plaintiff on 16.05.2007 was found unacceptable. The
    case of the plaintiff was that on 16.05.2007 he along
    with engineer inspected the site to find out the
    possibility of construction in the extent falling
    proportionately to the amount of Rs.3,00,000/- was
    explored. Defendant was to convince the plaintiff
    regarding the title deed and the tax receipt. The
    plaintiff had got marked Ext.A9 and A10, encumbrance
    certificate. They revealed that mortgage was created
    by the defendant over the property in the year 1983.
    No entry regarding the clearance of the mortgage was
    found. The case of the defendant that he had obtained
    the release deed was found unacceptable by noting that
    the release deed was neither produced nor there is any
    evidence to prove that fact. Thus, the defendant had
    breached his obligation under the contract. The
    plaintiff got the property measured through the village
    officials on 16.03.2008 in the presence of the
    defendant. The trial Court relied on Ext.A42, the copy
    of the counter, filed by the defendant to interlocutory
    application, filed by the plaintiff, wherein the
    defendant has averred that the plaintiff and his father
    got convinced to the actual extent as 70.950 cents by
    measuring the property. The trial Court found this to
    be a case of the defendant accepting that the
    measurement was done on 16.03.2008. The measurement on
    16.03.2008 was arranged and paid for by the plaintiff.
    It again, according to the trial Court, indicated the
    readiness and willingness on the part of the plaintiff
    and that the defendant was negligent in performing his
    part. In Court, the property was got measured by the
    Commissioner with the help of Taluk Surveyor. Ext.C2
    is the report and Ext.C2(a) is the survey plan prepared
    by Commissioner. They show that extent in possession
    of the defendant on the strength of the title deed is
    71.70 cents. 4.25 cents has been taken out from the
    property of the defendant for road. Another extent of
    0.375 cents was found to be in the possession of a
    third party. These facts are found to be admitted by
    defendant as DW1. Measurement in such circumstances was
    found absolutely necessary for the completion of the
    sale transaction. As regards both, the plaintiff and
    defendant, asserting that they were before the Sub
    Registrar on 24.03.2008, the trial Court found no
    meaning in the same. Both sides were aware that without
    measurement it would not have been possible to complete
    the transaction. The plaintiff found on measurement
    that only lesser extent is available. Appearance before
    the Sub Registrar could not be considered as an act
    showing the readiness and willingness, it was found
    both for the plaintiff and the defendant. Dehors this
    act, the trial Court found there were other
    circumstances which proved readiness and willingness
    of the plaintiff. No default on the part of the
    plaintiff being found and breach being found on the
    part of the defendant and still further finding no
    undue hardship even being complained of by the
    defendant, the trial Court decreed the suit by
    directing specific relief against the defendant.
    Defendant appealed.
  8. The High Court, inter alia, has entered into the
    following findings. It referred to para ‘8’ of the
    judgment of the Trial court, which we have extracted.
    In paragraphs 23 and 24, the High Court proceeded
    to discuss the question whether the defendant was in
    breach and this is what the Court proceeded to say:
    “23. In so far as the condition requiring
    measurement of the amount is concerned,
    averments in the plaint itself show that on
    16.3.2008, the land was measured. Although it
    is case of the respondent that it was he who
    got the land measured, the appellant
    contended that it was at his instance, the
    land was measured. Though evidence is lacking
    to conclude this dispute either way, for the
    purpose of this case, we do not think it
    necessary to resolve this controversy for the
    reason that irrespective of who got the land
    measured, fact remains that the land was
    measured and the parties are in agreement
    that on measurement, the extent found was
    only 71.750 cents. In other words, this shows
    that as a result of teh measurement carried
    out on 16.3.2008, one of the conditions for
    performance of the agreement was satisfied.
  9. In so far as the title of the appellant
    is concerned, even the respondent plaintiff
    has no case that the appellant did not have
    title or that it was defective and the
    question of handing over the title deds arise
    only at the time of execution of the sale
    deed. This, therefore, means that no fault
    could have been attributed on the part of the
    appellant and therefore, the court could have
    granted a decree for specific performance of
    the agreement only if the respondent had
    satisfied the requirements of section 16(c)
    of the Specific Relief Act. In so far as this
    aspect of the matter is concerned, the
    question is whether the respondent has proved
    his readiness and willingness to perform the
  10. After referring to various decisions of this Court
    and of the High Court, the High Court proceeded to find
    that a finding of breach by the vendor in performing
    his obligations would not be sufficient for a Court to
    decree specific performance. The breach by the
    defendant, in other words, would not absolve the
    plaintiff to allege and prove his readiness and
    willingness to perform his obligations under the
    contract. “Readiness” relates to financial capacity to
    pay consideration whereas “willingness relates to the
    state of mind. Following are the findings which we may
    refer to:
    “25. While readiness indicates the fiscal
    capacity of the respondent to perform the
    agreement, willingness indicates his state of
    mind. In so far as readiness is concerned,
    the further question that is required to be
    proved is whether readiness has been proved
    on the evidence available. We have already
    referred to paragraph 8 of the judgment and
    the oral evidence of PW1 which, to our mind,
    do not help the respondent plaintiff to prove
    his case of readiness or his capacity to
    perform the agreement. Turning to the
    documents that are relied on, those documents
    include Exts.A22 and A23 valuation
    certificates of the gold allegedly possessed
    by the respondent’s mother and wife, which
    were marked through PW4. Ext.A24 series and
    A25 marked through PW8 are the certificates
    issued about the properties allegedly owned
    by them. These are documents which were
    obtained after 24.3.2008 and are regarding
    the assets owned by the father, mother and
    wife of the respondent plaintiff. The owners
    of these assets have not tendered any
    evidence whether the actually possessed these
    properties at the time when the agreement was
    to be performed and even if they had
    possessed these assets, whether they were
    willing to part with it in order to enable
    the respondent plaintiff to generate funds
    out of it towards the sale consideration
    payable under Ext.A1. There is also no
    averment in the plaint to that effect.
  11. In so far Exts.A11 to A16 are concerned,
    these again are fixed deposit receipts issued
    in the year 2012, which also cannot help the
    respondent plaintiff to prove his capacity as
    on 24.3.2008 or any time before that. Among
    the other documents which were relied on by
    the learned counsel for the respondent to
    contend that the readiness was proved by him,
    Exts.A17 and A20 show that his father had
    sold certain shares on 3.11.2010. Similarly,
    Ext.A18 shows that the respondent had sold
    his shares on 31.8.2010. Ext.A19 is yet
    another document which show that on
    26.12.2011 his mother had sold certain
    shares. Exts.A26 and 27 are certificates
    issued by the Canara Bank and Union Bank
    again in 2013 when the trial was pending,
    which show that his father had certain funds
    available with him. As in the case of
    Exts.A11 to A16, A22, A23, A24 and A25, all
    these documents would not show that funds
    were available with either of the respondent
    or his parents on 24.3.2008 or any time prior
    thereto. Therefore, these documents also will
    not help the respondent to contend that his
    readiness and willingness were proved by him
    to substantiate his prayer for specific
    performance of Ext.A1 agreement.”
  12. On the above reasoning, High Court allowed the
    appeal and decree of the trial Court was set aside.
  13. We have heard Shri K.V. Viswanathan learned senior
    counsel for the appellant/plaintiff besides Shri P.N.
    Ravindran learned senior counsel for the
  14. Learned senior counsel for the plaintiff points
    out that High Court committed error in interfering with
    the judgment of the trial Court. The principles
    relating to compliance with Section 16(c) which
    enshrines the concept of readiness and willingness on
    the part of the plaintiff has not been properly
    appreciated. He submitted that plaintiff had sufficient
    capacity which is what mattered. The law cannot be
    disputed that in a suit for specific performance, the
    plaintiff need not have the amount in cash. What is
    crucial is whether he has the financial capacity to
    perform his obligations. He drew our attention to the
    fact that the plaintiff along with members of his
    family, which consisted of his father, mother and his
    wife, had enough resources. An amount of Rs.5,00,000/-
    was already paid. Even the gold ornaments having regard
    to their value (valued at Rs.24,00,000/-) besides about
    Rs.8,00,000/- in cash held by the plaintiff himself
    would suffice. The Court need not even go into the
    aspect relating to landed properties and other assets
    available. As regards the finding of the High Court
    about the certificates relating to landed property,
    being later in point of time, it is pointed out that
    lands were very much with the members of the family as
    on the date of the agreement and the date when the sale
    was to be executed. The fact that the certificates were
    of a later date did not take away the availability of
    these assets. He pointed out that, in fact, the dispute
    actually centered around the extent of property and the
    financial capacity was not in dispute as such.
  15. Per contra, Mr. P.N. Ravindran, learned senior
    counsel drew our attention in paragraph 8 of the trial
    Court which we have already referred to. He further
    submitted that as regards the gold ornaments, the
    plaintiff has not chosen to examine the members of his
    family and without their testimony showing their
    willingness to make available their valuables, apart
    from the availability of the assets, it could not be
    said that the High Court fell into error.
  16. Before we advert to the facts it is appropriate to
    discuss a few decisions of this Court. In Man Kaur
    (Dead) by Lrs. v. Hartar Singh Sangha – (2010) 10 SCC
    512, this Court dealt with the contention of the
    purchaser in that case that the vendor had committed
    the breach and there is no need for the plaintiff to
    prove his readiness and willingness. This is what the
    Court held in paragraph 40:
    “40. This contention has no merit. There are
    two distinct issues. The first issue is the
    breach by the defendant – vendor which gives
    a cause of action to the plaintiff to file a
    suit for specific performance. The second
    issue relates to the personal bar to
    enforcement of a specific performance by
    persons enumerated in section 16 of the Act.
    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 the terms the performance of
    which has been prevented or waived by the
    defendant) is barred from claiming specific
    performance. Therefore, even assuming that
    the defendant had committed breach, if the
    plaintiff fails to aver in the plaint or
    prove that he was always ready and willing to
    perform the essential terms of contract which
    are required to be performed by him (other
    than the terms the performance of which has
    been prevented or waived by the plaintiff),
    there is a bar to specific performance in his
    favour. Therefore, the assumption of the
    respondent that readiness and willingness on
    the part of plaintiff is something which need
    not be proved, if the plaintiff is able to
    establish that defendant refused to execute
    the sale deed and thereby committed breach,
    is not correct. Let us give an example. Take
    a case where there is a contract for sale for
    a consideration of Rs.10 lakhs and earnest
    money of Rs.1 lakh was paid and the vendor
    wrongly refuses to execute the sale deed
    unless the purchaser is ready to pay Rs.15
    lakhs. In such a case there is a clear breach
    by defendant. But in that case, if plaintiff
    did not have the balance Rs.9 lakhs (and the
    money required for stamp duty and
    registration) or the capacity to arrange and
    pay such money, when the contract had to
    beperformed, the plaintiff will not be
    entitled to specific performance, even if he
    proves breach by defendant, as he was not
    “ready and willing” to perform his
    (Emphasis supplied)
  17. Taking up the issue relating to measurement of the
    property, let us examine the matter in some detail. In
    Ext.A1 agreement the defendant had agreed to sell 75 ¾
    cents acquired under document No.1405/1975. The price
    was fixed as Rs.34,000/- per cent. The extent was no
    doubt to be found on actual measurement. The trial
    Court found that though it is not stipulated as to who
    will carry measurement, but the defendant being in
    possession he was, to undertake the measurement. The
    defendant, when he was examined as DW1, has inter alia
    stated as follows; For the purpose of determination of
    sale consideration property had to be measured. He
    further states that after one week of the date of
    execution of the agreement Gopi brought a person and
    measured the property. When he saw the measuring
    activity, he went to the property and asked for a copy
    of the measurement details, but was not given. We
    proceed on the basis that the reference to Gopinath,
    is none other than the father of the plaintiff. He
    admits that these facts are not stated in the written
    statement. He states that he did not know about the
    measurement of the property on 16.03.2008. There was
    no opportunity to get the plaint schedule property
    measured before the same was to be assigned. He
    specifically states that he has not convinced them the
    actual measurement of the plaint schedule property. He
    further states that no measurement of the plaint
    schedule property was done before the expiry of the
    agreement period. He further states that he has not got
    measured the extent of property after execution of the
    agreement. He states that he does not remember about
    the statement in Ext.A42 about the extent of the
    property being convinced of by the plaintiff and his
    father to be 70.950 cents. He specifically states that
    it is not right to say that the plaint schedule property
    has been got measured on 16.03.2008. He states that he
    was not present at that time. We would think that the
    High Court was in error in holding that on measurement
    being carried on 16.03.2008, one of the conditions for
    the performance of agreement was satisfied if it is
    meant to find that the defendant had carried out the
    obligations under the contract. It is noticed from
    paragraph 23 of the impugned judgment that contrary to
    his deposition, which we have adverted to as DW1, it
    was contended on behalf of the defendant that the
    measurement on 16.03.2008 was at his instance. It is
    noticed that under Ext.A1 agreement the extent was
    stated to be 75 ¾ cents, under a particular assignment
    deed. The consideration was undoubtedly fixed with
    regard to the actual extent at the rate of Rs.34,000/-
    per cent. It is clear that the measurement was
    essential for executing the conveyance and the
    performance of further mutual obligations. When the
    lawyers notice was caused to be sent on 24.01.2008 by
    the defendant, he adverts to 75 ¾ cents. There is no
    reference of any measurement having been done on
    16.05.2007. We are inclined to find that it was the
    plaintiff who took the initiative and the property
    indeed was measured on 16.03.2008. We are further
    inclined to agree with the trial Court that the
    plaintiff, it is who financed the measurement by making
    payment as he claimed. Testimony of the witness
    accepted by the trial Court, which has had opportunity
    to watch the demeanour of the witness is not to be
    likely shaken by the appellate court.
  18. Still further the next finding by the High Court
    is contained in paragraph 24 of its judgment. The Court
    proceeds to hold that even the plaintiff has no case
    that the defendant did not have title or that it was
    defective and the question of handing over title deed
    arises only on the execution of the sale deed and
    therefore no fault could be attributed to the
  19. In this regard there are two aspects which we would
    think has not been considered by the High Court. We
    have adverted to the statements in the reply notice
    sent dated 18.03.2008 by the plaintiff. The measurement
    took place on 16.03.2008. On measurement it appears to
    have been found that the extent available with the
    defendant was 70.950 cents. However, plaintiff found
    that one cent out of the 70.950 cents was not with the
    defendant and instead was with one Kochammu and half
    of cent was with somebody else in the northern side.
    However, when this was brought to the notice of
    defendant, according to plaintiff, he wanted payment
    on the basis that he had the whole of 70.950 cents.
    Therefore, the said question related to the title of
    the defendant, a question relating to the exact extent
    available for being conveyed. Secondly and far more
    importantly, admittedly there was a mortgage over the
    plaint schedule property created in 1983 by the
    defendant. Encumbrance certificates produced by the
    plaintiff has been relied upon by the trial Court to
    find that the mortgage had not been cleared. The
    defendant in his evidence as DW1 sets up the case that
    the mortgage was cleared and release deed was available
    with him. It is at his home. On the one hand, the
    encumbrance certificates did disclose the mortgage and
    they did not reveal the clearing of the mortgage. The
    defendant on the other hand, though setting up the case
    that the debt was paid of and mortgage was got released
    but did not choose to produce the evidence which was
    in his possession.
  20. The High Court has overlooked this aspect and came
    to the conclusion that there was no dispute relating
    to the title. Under Ext.A1 agreement, it was incumbent
    upon the defendant to convince the plaintiff about the
    title of the property and other connected things. No
    doubt, the plaintiff had made a demand for the original
    title deeds relating to the property, as he wanted to
    use them for the purpose of taking a loan in connection
    with his proposed construction. This we do not think
    he was entitled under the contract and if the defendant
    refused the title deeds we would not be in a position
    to blame him. We are, therefore, of the view that the
    High Court has fallen into an error in reversing the
    finding that the defendant was in breach of his
  21. We have noticed the law to be that it does not
    suffice for the plaintiff in a suit for specific
    performance to establish that the defendant was in
    breach to seek a decree for specific relief. The
    plaintiff must further establish, if it is contested
    that he was ready and willing from the date of the
    contract to perform his obligations.
  22. In a contract, a contract usually embodies mutual
    obligations. The order of performance of obligations
    by the parties to the contract would have an impact on
    the aspect relating to readiness and willingness
    undoubtedly. In fact, readiness and willingness on the
    part of plaintiff makes its appearance right from the
    time of the reply notice sent by the plaintiff and
    continued in his pleadings. We are, however, concerned
    in this case only with the aspect relating whether he
    has proved despite what he might have established
    against the defendant that he was ready to perform his
    obligations. To begin with, the plaintiff has filed the
    suit on 27.03.2008. It must be remembered that under
    Ext.A1 agreement, the last date for executing the sale
    deed was 24.03.2008. This means on the third day of the
    date fixed under the contract on the allegation that
    the defendant resiled from the promise to execute the
    sale deed, the plaintiff has knocked at the doors of
    the Court seeking specific relief.
  23. The second thing which no doubt appears in favour
    of the plaintiff is that on the date of the agreement,
    which was 25.04.2007, admittedly an amount of
    Rs.2,00,000/- was paid as advance within four months
    of the agreement, again, indisputably a further sum of
    Rs.3,00,000/- came to be paid by the plaintiff and
    accepted by the defendant. The further question that
    arises, however, is whether the High Court was right
    in holding that the plaintiff was not in a position to
    perform the financial obligations under the contract.
    At this juncture, let us examine the state of the
    evidence adduced by the parties.
  24. The plaintiff has examined himself as PW1 and
    further examined eight other witnesses. He has also
    marked Ext.A1 to A42. The defendant has examined
    himself as DW1. There are other Court exhibits which
    are related to financial position of the plaintiff.
  25. Not unnaturally, we must first look to what the
    plaintiff has deposed before the Court. The plaintiff
    says, inter alia, as follows in his cross-examination;
    During the period of Ext.A1 agreement I was a student.
    He added that he had a part time teaching job and
    consultancy service. The plaintiff claimed that he was
    a teacher in an academy. He produced income tax
    returns. He was asked the following questions. At the
    time of the filing of the suit, you have not produced
    any document showing availability of money required for
    taking assignment of the property. Whether there is any
    specific reason for the same (Question)? There is no
    specific reason for the same (Answer). Is there any
    reason for not stating in the plaint in what way the
    amount required was arranged (Question)? No special
    reasons (Answer). How much amount was arranged by you
    on 24.03.2008 to take assignment of plaint schedule
    property (Question)? There was gold jewelry worth
    Rs.24,00,000/- held by myself and my family members.
    Besides, about Rs.8,00,000/- was arranged in cash also
    (Answer). He states that he has understood that the
    main dispute in this case is that he was not having the
    capacity to raise the consideration as per Ext.A1
    agreement. Another question which was put to the
    plaintiff is as follows. Apart from producing certain
    documents on 02.02.2013 showing availability of funds,
    you have not produced any other document before that
    to show funds (Question)? No (Answer).
  26. We must notice that Shri K.V. Viswanathan, learned
    senior counsel would submit that High Court has
    appreciated aforesaid question and answer erroneously.
    He pointed out that actually when the plaintiff
    answered ‘no’, it should be understood the meaning was
    that he was denying the suggestion that the plaintiff
    had not produced any document to show funds. He would
    submit that had the answer been yes, it could be
    inferred that there was no document. The plaintiff
    continues and states six documents being Ext.A11 to A16
    are of the year 2012. The number of shares are not
    mentioned in Ext.A17. The plaintiff has further
    apparently, with reference to income tax returns Ext.35
    and 36, stated that income has been shown as
    Rs.1,18,000/- and Rs.1,32,000/- for the assessment
    years 2007-08 and 2008-09 respectively. No doubt there
    is no mention about his investments and shares in the
    income tax returns. Plaintiff claimed that during the
    year 2004-05 his income was about Rs.30,000/- and
    during 2005 the same was around Rs.60,000/-. He joined
    an academy as a teacher in the year 2006. He resigned
    from the same during the year 2011. During the period
    2006-08 he purchased and sold 22 cents of land.
    Plaintiff does not remember the price at which the
    property was purchased. He denied the suggestion that
    he was not having the money to purchase the property
    admeasuring 70.950 cents or as reduced by 1 ½ cents.
    He was having required amount then and now and he was
    ready and willing to take the property, he deposed.
  27. PW2 is a Managing Director of financial company.
    He has produced and marked Ext.A19 certificate relating
    to shares held by the mother of the plaintiff.
  28. PW3 is a Depository Participant of a broker. He
    was examined to prove the shares held by his mother.
    He states that he came to depose on being asked to do
    so by Gopinathan (father of the plaintiff).
  29. PW4 is a Government Gold Valuer of Income Tax
    department and he has proved Ext.A22 valuation report
    issued to the mother of the plaintiff after examining
    her gold ornaments. He has also proved Ext.A23
    valuation report, issued to the wife of the plaintiff,
    after examining her gold ornaments. In crossexamination he would also state that he has not
    received summons from the court, but was asked by
    Gopinathan (father of the plaintiff). He states that
    he has previous acquaintance with Gopinathan. He came
    for valuation and thus he knew him. He states further
    in cross-examination that the mother and wife of the
    plaintiff came to him for valuation along with
    Gopinathan. He further states that they neither
    produced nor he demanded the bills or receipts relating
    to the gold ornaments he valued that day. He further
    states that they did not produce any document showing
    ownership of the gold ornaments mentioned in Ext.A22
    and A23 jewelery produced for valuation. In
    reexamination, he points out that Gopinathan, who came
    on the date of the gold valuation was sitting in the
  30. PW5 is the Branch Manager of the Syndicate Bank.
    He has marked Ext.A41. In cross-examination he states
    that the loans were availed on 14.07.2012 and
    22.03.2012. He further states that Syndicate Bank
    advances loan at the rate of Rs.2100/- per gram of
    gold. The two loans were given for agricultural
  31. PW6 is the Manager of Union Bank and he approved
    Ext.A27. Again he is produced to prove gold loan which
    is issued for agricultural purposes. The loan was
    issued on 12.01.2013. The loan was given at the rate
    of Rs.2000/- per gram of gold.
  32. PW7 is the Chairman and Managing Director of
    Financial Chits Company. He proved Ext.A17, 18, 20 and
  33. In cross-examination he states he knows Gopinathan.
    He states that he (Gopinathan) is practising as an
    accountant and auditor in the next building. He states
    that the shares held by him as per Ext.A20 was
    transferred from his name on 03.11.2010. At present
    Gopinathan and his son, the plaintiff, did not hold any
    shares in the companies. The value of one share he
    states is Rs.100/-. The plaintiff is not having any
    share as per Ext.A17. He is holding only 250 shares.
  34. PW8 has proved Ext.A24 and A25 reports. He claims
    to be the valuer of property. He has valued as on 2008.
    He denied the allegation that the present fair value
    is less than the value shown in the report. When he was
    asked what is the fair value of the properties, as
    determined by the government, the answer was that he
    has to verify. On similar lines was the answer in
    respect of another piece of land. In answer to the
    question whether he was ever verified the fair value
    of the survey, the answer is in negative. Gopinathan
    was known to him since last 12 years and he described
    him as an auditor. He says that he is not acquainted
    to his son (apparently the plaintiff).
  35. PW-9 is the Manager of Canara Bank and he proved
    Ext.A26 certificate. Apparently, it related to a gold
  36. Coming to the evidence of defendant, we notice the
    following inter alia; He was aware that as on the date
    of agreement the extent of plaint schedule property did
    not have an extent of 75 ¾ cents. He says that he knew
    right from the date of the agreement that the plaintiff
    is not having money to purchase the plaint schedule
    property. When he was asked what was the reason for
    sending the lawyers notice on 25.01.2008, his answer
    was as follows: It was heard that plaintiff is trying
    to resell the plaint schedule property to third parties
    as he was not having money to purchase the same, hence,
    the said notice was sent. He further states that he did
    not know anything about the schedule of witnesses
    submitted in the Court by him including the names of
    witnesses as (1) Rajesh and (2) Muhammed. He says that
    he does not remember the fact that in the counter to
    the injunction petition, he had stated that the
    plaintiff told Rajesh to find prospective buyers for
    reselling the plaint schedule property on piecemeal
    basis. He further states that anyhow Rajesh and
    Muhammed were not examined as witnesses before the
    Court. He denies that plaintiff was ready with the
    money to purchase the plaint schedule property.
  37. The plaintiff on the date of the suit in the year
    2007 was 21 years. The agreement would show that the
    witnesses to the agreement are one Manoharan, who is
    none other than the son of the defendant and the other
    witness is Gopinathan, the father of the plaintiff. The
    trial Court has entered a finding that Gopinathan was
    actively involved in the contract. We have eluded to
    the fact that Gopinathan was a witness to the agreement
    to safely conclude that the father of the plaintiff was
    in the know of things and he was involved in the
    transaction. We have referred to Gopinathan, figuring
    in the deposition to arrive at the conclusion that the
    plaintiff, though the actual party to the agreement,
    the moving force and one who intended to support the
    plaintiff was his father. The assets which are relied
    on by the plaintiff to establish his financial capacity
    would appear to belong to the close relatives of the
    plaintiff, namely, his father, his mother and his wife.
    We must recall that in his deposition PW1, when he was
    asked as to on what basis he would claim that he had
    the financial capacity on 24.03.2008, his answer was
    that he had gold ornaments which were worth about
    Rs.24,00,000/- and he had about Rs.8,00,000/- in cash
    having regard to the payment of Rs.5,00,000/- by way
    of advance and further payment to be made, after making
    the advance, if Rs.24,00,000/- worth of gold being in
    the possession of the plaintiff’s family members
    besides Rs.8,00,000/- was there, certainly that would
    suffice to establish the case of the plaintiff about
    his financial capacity and readiness to perform the
    contract. The law is certainly not that the purchaser
    in a suit for specific relief must prove that he was
    having cash with him from the date of the agreement
    till the relevant date. What is important is that he
    had the capacity to allow the deal to go through. If
    gold was available, as claimed, we would think that on
    a pragmatic view of the matter, it may be idle to
    contend that it could not be converted into cash either
    by immediate sale or by raising a loan.
  38. We must, however, deal with certain other
    contentions before we come to a conclusion in this
    regard. The defendant has undoubtedly a case that the
    gold ornaments though claimed to be that of the mother
    and the wife of the plaintiff, without examining them
    as witnesses and without their deposition showing that
    they had those gold ornaments in their possession and
    that they were willing to employ them for the purpose
    of generating funds for the plaintiff, the Court cannot
    conclude the matter in favour of the plaintiff. We
    would think that it may be true that in a case of this
    nature and in view of the context, it may have been
    more appropriate that the relatives were examined.
    Their non-examination, however, may not fatal to the
    plaintiff. It must be realized that the relatives
    involved are none other than the mother and the wife
    of the plaintiff. Though subsequent their inclination
    can be inferred from their going to the valuer PW4. In
    such circumstances, we would think, it may be carrying
    matters a little too far to decline specific relief,
    particularly which was granted by the trial Court in
    its discretion to contend that the mother and the wife
    have not come forward to express their willingness to
    make available ornaments for the purpose of the
    plaintiff. In fact, no suggestion is seen put to the
    plaintiff about the same.
  39. The further question may, however, arise as on the
    relevant date whether the gold ornaments having the
    value of Rs.24,00,000/- was available with the mother
    and the wife of the plaintiff. We have noticed the
    deposition of PW4. He has stated that neither the bills
    nor receipts relating to the gold ornaments were
    produced. No documents relating to the ownership of the
    gold ornaments were also produced. Could it be said,
    therefore, that the gold ornaments never belonged to
    the mother and the wife of the plaintiff and the
    valuation report is therefore robbed of any value that
    might otherwise be attached to it.
  40. It is here we may notice that the family of the
    plaintiff was possessed of considerable assets even
    otherwise in terms of landed property. We further
    notice that the plaintiff has proceeded to purchase
    another 10 cents during the period when the contract
    was in existence (relied upon by the trial Court to
    establish the readiness and willingness in terms of
    capacity apparently).
  41. A1 contract is dated 25.04.2007. Plaintiff was, no
    doubt, 21 years of age. His father Gopinathan was a
    witness to A1. Knowing these facts, defendant entered
    into the agreement, and what is more, received Rs.2
    lakhs on the date of the agreement. Further, a sum of
    Rs.3 lakhs was received under the agreement on
    25.08.2007. The property is measured on 16.03.2008. On
    the third day from 24.03.2008, which was the last day
    for the execution of the sale deed, i.e., on
    27.03.2008, the suit came to be filed. After the
    advance paid by the plaintiff is deducted, the balance
    amount including the stamp duty and expenses would not
    exceed Rs.24 lakhs. There was the testimony of the
    plaintiff as to how he intended to pay the
    consideration on 24.03.2008. There was evidence of
    plaintiff having gold ornaments with him and family
    members worth about Rs.24 lakhs and cash of about Rs.8
    lakhs. It also appeared that one of the family members
    of the appellant had lands in her name. Even the
    appellant purchased other land during the period of
    contract. In regard to the statement by the plaintiff
    that gold ornaments worth about Rs.24 lakhs were held
    by him and family members and there was cash of about
    Rs. 8 lakhs, the plaintiff is not cross-examined as
    such. At any rate, there is no serious dispute raised
    when he was cross-examined in this regard. There is no
    question raised about the family members not making
    available the gold ornaments or that it was not
    available with them. The non-availability of bills
    relating to the gold jewellery to prove ownership as
    such may not be in the facts of this case fatal to the
  42. Having regard to the totality of the facts present,
    we are of the view that the High Court erred in
    interfering with the decree passed by the Trial Court.
    We notice that the appellant has deposited the sum of
    Rs.19,37,8000/- (balance amount) with the Government
    Treasury immediately after judgment dated 10.06.2013.
    While we are inclined to direct specific relief in
    favour of the appellant, we are of the view that we
    should also direct that interest at the rate of 6 per
    cent on Rs.19,37,8000/- from 27.03.2008 (date of suit)
    till date of deposit (in Government Treasury) should
    be directed to be paid over and above the balance amount
    to the respondents in exercise of our power under
    Article 142 of the Constitution of India. Hence, we
    allow the appeal, set aside the judgment of the high
    Court and restore the decree passed by the Trial Court,
    subject to the following modifications.
  43. We further direct that appellant shall pay a sum
    calculated at 6 per cent per annum on Rs.19,37,800/-
    from 27.03.2008 till the date of deposit in Government
    Treasury in 2013 also, apart with the balance to be
    paid. The respondents can withdraw the balance payment
    (i.e., Rs.19,37,800/-) as also amount calculated at 6
    per cent on Rs.19,37,800/- as aforesaid. The balance,
    if any, in the Government Treasury, can be withdrawn
    by the appellant. If the amount in the Government
    Treasury does not attract interest, the appellant shall
    deposit the amount of interest as calculated within 10
    weeks from today which can be withdrawn by the
    respondents. It is only after payment of interest as
    aforesaid, that the conveyance deed need be executed.
  44. The parties shall bear their own costs.
    (K.M. JOSEPH)
    New Delhi,
    September 12, 2019.