BISWANATH GHOSH (DEAD) BY LRS. AND OTHERS versus GOBINDA GHOSH ALIAS GOBINDHA CHANDRA GHOSH AND OTHERS

Citation: [2014] 3 S.C.R. 1097 · Decided: 14-03-2014 · Supreme Court of India · Bench: J.S. KHEHAR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2014] 3 S.C.R. 1097 
BISWANATH GHOSH (DEAD) BY LRS. AND OTHERS 
v. 
GOBINDA GHOSH ALIAS GOBINDHA CHANDRA GHOSH 
AND OTHERS 
(Civil Appeal No. 3672 of 2007) 
MARCH 14, 2014 
[JAGDISH SINGH KHEHAR AND M.Y. EQBAL, JJ.) 
A 
B 
SPECIFIC RELIEF ACT, 1963: s.16(c) - Specific 
performance - Readiness and willingness to perform contract C 
- Held: For compliance of s. 16(c) of the Act, it is not necessary 
for the plaintiff to aver in the same words/used in the section 
i.e. ready and willing to perform the contract - The readiness 
and willingness of person seeking performance means that 
the person claiming performance has kept the contract D 
subsisting with preparedness to fulfill his obligation and accept 
the performance when the time for performance arrive - In the 
instant case, the sequence of facts and events showed that 
the plaintiffs-appellants were always ready and willing to 
discharge their obligation and perform their part of the 
E 
agreement - Therefore, there was sufficient compliance of the 
requirements of s.16(c) of the Act on their part. 
CODE OF CIVIL PROCEDURE, 1908: s.100 - Second 
appeal - Substantial question of law - Held: Jurisdiction of F 
High Court to entertain a second appeal is confined only to 
such appeal which involves substantial question· of law. 
The plaintiff-appellants took a loan of Rs. 3000 from 
the defendants-respondents and executed a registered 
kobala dated 24.11.1964. On a same day, a registered 
G 
Ekrarnama was also executed between them stipulating 
the terms of re-conveyance on payment of the loan 
amount by the appellants to the respondents. In 1990, the 
appellants filed a suit for recovery against the 
1097 
H 
1098 
SUPREME COURT REPORTS 
[2014] 3 S.C.R. 
A respondents under the Bengal Money Lenders Act, 1940. 
The Munsif dismissed the suit. On appeal, the matter was 
remanded back to the Munsif with a direction to the trial 
court to allow the appellants an opportunity for amending 
the plaint and to add the prayer of specific performance 
s of the contract and pass fresh judgment in accordance 
with law. 
The appellant amended the plaint adding the prayer 
of specific performance of contract to transfer the suit 
property in terms of the agreement for reconveyance. The 
C Munsif allowed the amendment application and finally 
decreed the suit holding that the suit was not barred by 
limitation by holding that the order of amendment related 
back to the date of institution of the suit. The appeal 
before first appellate court was dismissed. The High 
D Court allowed the second appeal. Hence the instant 
appeal. 
Allowing the appeal, the Court 
E 
HELD: 1. The judgment of remand passed by the first 
appellate court in first round of appeal revealed that both 
the parties made their submission on the interpretation 
of two documents, namely Kobala and the agreement of 
re-conveyance. It also revealed that there were exchange 
of letters whereupon the defendants-respondents in the 
F reply letter expressed their willingness to reconvey the 
land but after harvest of aushpaddy on the suit land. 
Thereafter, the plaintiff issued another letter agreeing to 
have conveyance of the suit land after harvest on 
payment of Rs.3000/-. The defendant also replied to such 
G letter agreeing to reconvey the suit land after the harvest. 
From these finding, it is evidently clear that a direction 
was issued to the Munsif to allow the plaintiff to amend 
the plaint. The appellate court also gave opportunity to 
the defendants-respondents for filing additional written 
H statement. The plaint was amended and a relief for a 
BISWANATH GHOSH (DEAD) BY LRS. v. GOBIN DA GHOSH 1099 
ALIAS GOBINDHA CHANDRA GHOSH 
decree of specific performance was added in the said 
A 
suit. The Munsif decreed the suit for specific performance 
holding that the suit was not barred by limitation. [Paras 
7, 9 and 10] [1105-C-E; 1107-B-E] 
B 
2. The judgment passed by the High Court revealed 
that the High Court, after referring to Section 16 and 
Section 20 of the Specific Relief Act held that since the 
readiness and willingness have not been averred and 
proved, both the Munsif and first appellate court 
committed error in decreeing the suit for specific 
performance. The High Court further observed that by 
C 
converting a suit under Section 36 of the Bengal Money 
lenders Act into a suit for specific performance, basically 
the nature and character of the suit was changed and 
such amendment was wrongly 

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