HIS HOLINESS ACHARYA SWAMI GANESH DASSJI versus SH. SITA RAM THAPAR

Citation: [1996] SUPP. 2 S.C.R. 111 · Decided: 30-04-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Dismissed
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Judgment (excerpt)

HIS HOLINESS ACHARYA SWAMI GANESH DASSJI 
A 
v. 
SH. SITA RAM THAPAR 
APRIL 30, 1996 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
B 
Specific Relief Act, 1963 : 
S. 16 clause (cf-Agreement for sale of property-Draft sale deed to be 
finalised within seven days and registered-Party not ready and willing to pay C 
cash as agreed upon-Time is the essence of the Contract-Since he did not 
peifomz his part of the contract within the stipulated time, High Court was 
right in refusing to enforce the contract. 
CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) 
No. 9679 of 1996. 
D 
From the Judgment and Order dated 9.2.96 of the Delhi High Court 
in R.F.A. (OS) No. 22 of 1980. 
B.K. Mehta, N.N. Keswani and R.N. Keshwani for the Petitioner. 
R. Venkataramani, S.M. Garg and K.L. Arya for the Respondent. 
The following Order of the Court was delivered : 
E 
This is an illustrious case of dilatory tactics by the petitioner who 
entered into contract to purchase the land of 500 sq. yds. in the he";rt of F 
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 finalised within seven days and sale deed registered. Time is, 
therefore, the essence of the contract in this case. The defendant insisted G 
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 certification which he did not obtain. Ext. 5 and 9, the letters 
written by the respondent do clearly indicate that respondent was always 
willing to have the sale deed executed but the petitioner delayed the H 
111 
112 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
A 
execution of the sale deed on one pretext or the other. Petitioner did not 
give any reply to any of the two letters. The learned single Judge as also 
the Division Bench of the High Court have in extenso gone 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 
B 
c 
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 celebrate the 
marriage of his daughter. The petitioner did not offer cash to the respon-
dent. 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 readiness to perform the contract and 
willingness to perform the contract. By readiness may be meant the 
D capacity of the plaintiff to perform the contract which includes his financial 
position to pay the purchase price. For determining his willingness to 
perform his part of the contract, the conduct has lo 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 
E 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 
plaintiffs part of the contract is to be adjudged with reference to the 
F 
conduct 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 parf of the contract. The facts of 
this case would amply demonstrate that the petitioner/plaintiff was not 
ready nor capacity lo perform his part of the contract as he had no financial 
capacity to pay the consideration in cash as contracted and intended to 
G bite for the time which disentitlcs him as time is the essence of the contract. 
It is sought lo be contended by Mr. B.K. Mehta, learned senior 
counsel appear.ing for the petitioner that the petitioner has performed the 
H 
essent
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