Full Judgment Text
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PETITIONER:
HIS HOLINESS ACHARYA SWAMIGANESH DASSJI.
Vs.
RESPONDENT:
SHRI SITA RAM THAPAR
DATE OF JUDGMENT: 30/04/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 AIR 2095 1996 SCC (4) 526
JT 1996 (5) 460 1996 SCALE (4)476
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This is an illustrious case of dilatory tactics by the
petitioner who entered into the contract to purchase the
land of 500 sq. yds. in the heart of the city of Delhi by
agreement dated February 27,1975. The hard fact is that the
defendant was in dire need of money to celebrate his
daughter’s marriage on may 16, 1975. The agreement was that
the draft sale deed should be finalized with in seven days
and sale deed registered. Time is, therefore, the essence of
the contract in this case. The defendant insisted upon
payment of consideration in cash. The respondent sent the
approved draft sale deed immediately but the petitioner did
not give final draft as contemplated by the agreement since
he had to obtain the income tax clearance certificate which
he did not obtain. Ext. 5 and 9, the letters written by the
respondent was always willing to have the sale deed executed
but the petitioner delayed the execution of the sale deed on
one pretext or the other petitioner did not give any reply
to any of the tow letters. The learned single Judge as also
the Division Bench of the High Court have in extenso one
into the evidence and found that the petitioner was not
ready and willing to perform his part of the contract. He
did not have necessary cash for payment of the amount. The
petitioner has produced before the Division Bench by way of
additional evidence, his account to show that he has got one
lakh and odd. Even that fell short of the required amount.
What is material in this case is that the respondent was in
dire need of cash to calebrate the marriage of his daughter.
The petitioner did not offer ash to the respondent. Under
those circumstances, the High Court was clearly right in
saying that the petitioner was not ready and willing to
perform his part of the contract under clause (c) of Section
16 of the Specific Relief Act.
There is a distinction between deadiness to perform the
contract and willingness to perform the contract. By
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readiness may be meant the capacity of the plaintiff to
perform the contract which includes his financial position
to pay the purchase price. For contract, the conduct has to
be properly scrutinised. There is no documentary proof that
the plaintiff had ever funds to pay the balance of
consideration. Assuming that he had the funds, he has to
prove his willingness to perform his part of the contract.
According to the terms of the agreement, the plaintiff was
to supply the draft sale deed to the defendant within 7 days
of the execution of the agreement, i.e., by 27.2.1975. The
draft sale deed was not returned after being duly approved
by the petitioner. The factum of readiness and willingness
to perform plaintiff’s part of the party and the attending
circumstances. The court may infer from the facts and
circumstances whether the plaintiff was ready and was always
ready and willing to perform his part of the contract. The
facts of this case would amply demonstrate that the
petitioner/plaintiff was no ready no capacity to perform his
part of the contract as he had no financial capacity to payt
the consideration in cash as contracted and intended to bit
for the time which disentitles him as time is the essence of
the contract.
It is sought to be contended by Mr. B.K. Mehta, learned
senior counsel appearing for the petitioner that the
petitioner has performed the essential terms of the
contract. Essential terms of the contract is that he has to
return the approved draft sale deed which he has already
returned to him. But amendment sought in the sale deed is
not of material particulars and is not an essential term
and, therefore, the High Court was in error in considering
this aspect of the matter. We find no force in the
contention. The essential term of the contract is executing
the sale deed with in stipulated period. He did not perform
his part of the contract within stipulated time. The High
Court was right in refusing to enforce the contract. It
being discretionary remedy the High Court has exercised
sound judicial discretion to the relief of specific
performance of the contract.
The Special Leave petition is accordingly dismissed.