P. MEENAKSHISUNDARAM versus P. VIJAYAKUMAR & ANR.

Citation: [2018] 6 S.C.R. 667 · Decided: 28-03-2018 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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P. MEENAKSHISUNDARAM
v.
P. VIJAYAKUMAR & ANR.
(Civil Appeal Nos. 3353-3354 of 2018)
MARCH 28, 2018
[R. BANUMATHI AND UDAY UMESH LALIT, JJ.]
Specific performance: Appellant had mortgaged the suit
property with a bank and the bank had initiated recovery
proceedings – Meanwhile, appellant entered into a sale agreement
to sell the suit property to respondent no.1 and pursuant thereto,
respondent no.1 made some payments also – Thereafter, dispute
arose between the parties and respondent no.1 filed suit for
specific performance – Trial Court held in favour of respondent
no.1 and directed appellant to execute sale deed – High Court
dismissed the appeals holding that appellant had not disclosed about
the existence of encumbrance which came to the knowledge of
respondent no.1 subsequently and that there was readiness and
willingness on the part of respondent no.1 – On appeal, held: The
understanding between the parties as on date when the sale
agreement was entered into was reflected in a communication of
respondent no.1 which clearly showed that the existence of the
encumbrance was a well known fact – In the face of such clear
understanding under which the suit agreement was entered into,
the High Court completely erred in ignoring the entire case put
forth on the part of the appellant – The facts on record disclosed
that there were recurring delays on part of respondent no.1 – There
are no details in the plaint as to what exactly respondent no.1 had
done towards fulfillment of his obligations and completion of the
transaction – Further, there was an arrangement between the
parties by which respondent no.1 was to make payment of Rs.13.5
lakhs to the bank directly and Rs.6 lakhs to the appellant, however,
the facts do not indicate any observance of these conditions – In
fact, the amount of Rs.13.5 lakhs was independently deposited and
discharge was obtained by the appellant – Therefore, issue whether
respondent no.1 was ready and willing to perform his part of the
contract is answered against him and suit for specific performance
   [2018] 6 S.C.R. 667
667
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
preferred by the respondent no.1 is dismissed – The case put up by
respondent no.1 that he was put in possession pursuant to an
arrangement is also doubtful – If respondent no.1 was put in
possession of the suit property pursuant to the arrangement as in
the suit agreement, his corresponding obligation under such
arrangement was two fold namely to pay off the dues to the Bank
directly and pay rest of the sum to the appellant – There is nothing
on record which could be consistent with discharge of such
obligation on part of respondent no.1 – Appellant is entitled to
recovery of possession – Possession.
Specific performance: Readiness and willingness to perform
the contract – Held: As regards suit for specific performance, the
law is very clear that plaintiff must plead and prove his readiness
and willingness to perform his part of the contract all through i.e.,
right from the date of the contract till the date of hearing of the suit.
Allowing the appeals, the Court
HELD: 1. If respondent No.1 was well aware about the
existence of encumbrance over the suit property at the time when
suit agreement was entered into, he cannot thereafter submit to
the contrary.  In the face of such clear understanding under which
the suit agreement was entered into, the High Court was
completely in error in observing that the entire case put forth on
the part of the appellant was required to be summarily thrown
out. [Para 7] [679-E, F]
2.  The assertion made by respondent No.1 of the plaint is
a mere assertion without any relevant details as to what exactly
he had done towards fulfillment of his obligations and completion
of the transaction.  Respondent No.1 had completely failed in his
obligations and was not ready and willing to perform his part of
the contract.  Even going by the case set up by respondent No.1,
that around 29.07.2002 an arrangement was arrived at, under
which out of the balance amount Rs.19.5 lakhs, Rs. 13.5 lakhs
were to be made over by respondent No.1 to the Bank directly
and rest of the sum of Rs.6 lakhs was to be paid to the appellant
in cash, the facts do not indicate any observance of these
conditions.  Beyond filing an application for impleadment which
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came to be dismissed, respondent No.1 did not take any step.
The amount of Rs.13.5 lakhs was independently deposited and
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