Second Appeal No. 474 of 1988

3rd April, 2013

Petitioner Counsel: Mr. V.B. Naik,Mr. Sagar Rane
Respondent Counsel: Mr. R.S. Datar

Cases Cited:
Chand Rani Vs. Kamal Rani, 2008 ALL SCR (O.C.C.) 33 : (1993) 1 SCC 519 [Para 11,22]
Satyanarayana Vs. Yelloji Rao, AIR 1965 SC 1405 [Para 11,22,25]
Aniglase Yohannan Vs. Ramlatha, 2006(1) ALL MR 24 (S.C.) =(2005) 7 SCC 534 [Para 11,23,25]
Motilal Jain Vs. Ramdasi Devi, 2000(4) ALL MR 285 (S.C.)=2000 (6) SCC 420 [Para 11,24]
Veluyudhan Sathyadas Vs. Govindan Dakshyani, 2002 (5) JT 357 [Para 13,24]
Pushparani S. Sundaram Vs. Pauline Manomani James, (2002) 9 SCC 582 [Para 13,24]
His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar, (1996) 4 SCC 526 [Para 16]
Lindsay Petroleum Co. Vs. Prosper Armstrong Hurd, (1874) 5 CP 221 [Para 22]
Caesar Lamare Vs. Thomas Dixon, (1873) 6 HL 414 [Para 22,25]
Raghunath F. Jadhav Vs. Rajendra D. Patil, 2007(3) ALL MR 265=2007 (2) Bom.CR 256 [Para 26]

JUDGMENT

JUDGMENT :- Heard Mr. Naik, learned Senior Counsel and Mr. Rane, learned Counsel for appellants and Mr. Datar, learned Counsel for respondent Nos.1(B) to 1(D) at length.

2. By this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the original plaintiff has challenged the judgment and decree dated 31.03.1987 passed by the learned 5th Additional District Judge, Solapur in Civil Appeal No.262 of 1983. By that order, the learned District Judge partly allowed the Appeal preferred by respondent Nos.1A to 1D. The learned District Judge has quashed and set aside the judgment and decree dated 08.11.1982 passed by the learned Civil Judge Junior Division, Mangalvedha in Regular Civil Suit No.36 of 1978 and decreed the Suit instituted by the appellant for refund of earnest money and rejected his prayer for specific performance of contract. The parties shall, hereinafter be referred to as per their status in the trial Court.

3. The Second Appeal was admitted by this Court on 12.01.1989 on the following substantial questions of law:

"5. The substantial question of law involved in this second appeal is that when the Defendant failed to prove that it was not a money-lending transaction and that the suit transaction is void in view of the provisions of the Bombay Money Lenders Act, the specific performance ought to have been given.

6. Further substantial question of law involved in this second appeal is when the Plaintiff has proved that Respondent-defendant entered into an agreement of sale of the suit land and executed earnest note in his favour embodying terms of contract on 6-5-1976 after accepting the earnest-money."

The relevant and material facts that are necessary for disposal of the present Second Appeal, briefly stated, are as under:

4. It is the case of the plaintiff that Tukaram Genu Gavli, original defendant had agreed to sell land bearing Gat No.144 admeasuring 2 H and 52 Acres situate at Mauje Bhalewadi, Taluka Mangalwedha, District Solapur (for short 'suit land') to the plaintiff for a total consideration of Rs.3,000/-. The said Tukaram executed agreement of sale on 06.05.1976. On the same day, the plaintiff had paid entire consideration to Tukaram. The agreement recited that the permission of the Sub-Divisional Officer, Pandharpur Division is necessary and that the said permission will be obtained by Tukaram. The plaintiff will get the sale deed executed by incurring expenses and the possession was to be handed over at the time of execution of the sale deed. It also recited that if Tukaram fails to execute the sale deed, the plaintiff will be at liberty to approach the Competent Court for getting the sale deed executed. It is his further case that Tukaram had obtained loan and the said loan was not repaid by him. There was, therefore, encumbrances on the suit land. The case of the plaintiff is that since permission of the Sub-Divisional Officer was required under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short 'Act'), the possession was not handed over to him though he had paid the entire consideration and it was agreed by Tukaram to execute the sale deed and handover possession to him after obtaining the permission under the Act. The plaintiff was and is all along ready and willing to perform his part of contract. However, Tukaram did not perform his part of contract and avoided to execute the sale deed. When the plaintiff confronted him on that aspect, Tukaram declined to execute the sale deed. It is in these circumstances, the plaintiff instituted Suit on 06.04.1978 for specific performance of contract dated 06.05.1976.

5. Tukaram resisted the Suit by filing written statement dated 05.09.1978 at exhibit-11. He denied the execution of agreement of sale in favour of the plaintiff on 06.05.1976 or on any other date after accepting amount of Rs.3,000/- from the plaintiff. He further denied the assertions of the plaintiff that since the permission under the provisions of the Act was required, it was agreed between the parties to execute the agreement of sale and after obtaining the permission, it was further agreed to execute the sale deed. It is the case of Tukaram that one Shivaraya L. Chilgonda carries on business of money lending unauthorizedly. He does not have the licence as contemplated under the provisions of the Bombay Money Lenders Act, 1947. As a security for the loan advanced by him, the said Shivaraya takes the documents such as agreement of sale / sale deed and such other similar documents. Shivraya is the relative of the plaintiff. Tukaram had obtained Rs.1,500/- as advance from the said Shivraya and it was agreed to pay interest @ Rs.36/- p.a. (3% p.m.). The said amount was taken by him two months prior to the alleged agreement of sale. Tukaram neither sold the suit land nor plaintiff intended to purchase the suit land as Tukaram did not execute the agreement of sale in favour of the plaintiff. He, therefore, prayed for dismissal of the Suit.

6. In support of the respective cases, the parties led oral as well as documentary evidence. By judgment and decree dated 08.11.1982, the learned trial Judge decreed the Suit and directed Tukaram to execute registered sale deed in favour of the plaintiff within two months from the date of the order at the expense of the plaintiff and deliver the actual possession of the suit land to the plaintiff. If Tukaram failed to execute the sale deed, the plaintiff was entitled to get the registered sale deed through the Court.

7. It appears that during the pendency of the Appeal, Tukaram died and his heirs and legal representatives were brought on record as appellant Nos.1A to 1F. By judgment and decree dated 31.03.1987, the learned District Judge partly allowed the Appeal as set out hereinabove. It is against this decision, the plaintiff has instituted the present Appeal under Section 100 of the C.P.C.

8. In support of this Appeal, Mr. Naik and Mr. Rane invited my attention to the findings recorded by the learned trial Judge as also the learned District Judge. In particular, it was submitted that the learned trial Judge held that plaintiff had established that on 06.05.1976, Tukaram had executed the agreement of sale in his favour and that, on the same date, plaintiff had paid entire consideration of Rs.3,000/- to him. The learned District Judge also held that the plaintiff had proved that Tukaram entered into an agreement of sale on 06.05.1976 after accepting the entire consideration. The Courts below negatived the defence of Tukaram that the document of 06.05.1976 is not an agreement of sale but is a document executed as and by way of security.

9. Mr. Naik further submitted that the learned trial Judge held that the plaintiff is entitled to specific performance of contract. He invited my attention to the assertions made in the plaint as also the evidence adduced by the plaintiff in order to substantiate that the plaintiff was and is all along ready and willing to perform his part of contract.

10. Mr. Naik submitted that insofar as the part of the contract to be performed by the plaintiff is that he was to pay Rs.3,000/- being the total consideration as also after Tukaram obtaining permission from the Competent Authority under the Act, to get the sale deed executed at his expenses. In other words, he submitted that whatever obligation was cast on the plaintiff, he had fulfilled those obligations and in any case, he was and is still ready and willing to perform the obligations that were cast on the plaintiff under the contract. He also invited my attention to Section 54 of the Indian Contract Act, 1872. He invited my attention to the agreement of sale dated 06.05.1976 at exhibit-18 and submitted that under this agreement, the defendant agreed to sell the suit land for Rs.3,000/- to the plaintiff. The plaintiff had paid that amount on the same day. The defendant was to obtain permission of the Deputy Collector and after receipt of permission within two months, the plaintiff was to get the sale deed executed at his expenses and the defendant was to handover the possession to the plaintiff. He submitted that the obligation was cast on the defendant to obtain the permission from the Competent Authority under the Act and unless and until, the defendant performed his part of contract, the plaintiff was not in a position to get the sale deed executed from the defendant. It is only in September 1977, the condition of obtaining permission from the Competent Authority under the provisions of the Act was deleted. After acquiring the knowledge of this development, immediately, the plaintiff had instituted Suit on 06.04.1978. He also relied upon Section 52 of the Indian Contract Act, 1872.

11. Mr. Naik submitted that the learned District Judge reversed the decree passed by the trial Court on the following grounds viz. (i) that there was great delay in filing the Suit; (ii) that the plaintiff is not ready and willing to perform his part of contract; and (iii) that the said findings are based upon the conjecture and surmises. The learned District Judge further held that non-filing of the Suit immediately after execution of the agreement of sale or within reasonable time amounts to waiver. The learned District Judge committed serious error in denying the relief of specific performance under Section 20 of the Specific Relief Act, 1963. Tukaram did not make out a case falling under clauses (b) and (c) of sub-section (2) of Section 20 thereof. In other words, he submitted that the learned District Judge has not properly exercised the discretion, and therefore, it is capable of being corrected by this Court. In support of his submissions, he relied upon the following judgments:

(i) Chand Rani Vs. Kamal Rani, (1993) 1 SCC 519 : [2008 ALL SCR (O.C.C.) 33] and in particular paragraph 25 thereof to contend that time is not essence of contract;

(ii) Satyanarayana Vs. Yelloji Rao, AIR 1965 SC 1405 and in particular paragraphs 6 to 8, 11 and 12 thereof to contend that mere delay in filing the Suit cannot be a sufficient ground to refuse relief, and that the proof of waiver or abandonment of right is not a pre-condition for its refusal;

(iii) Aniglase Yohannan Vs. Ramlatha, (2005) 7 SCC 534 : [2006(1) ALL MR 24 (S.C.)] and in particular paragraphs 2, 3, 10 and 12 thereof to contend that the pleadings of the plaintiff manifest his conduct has been blemishless throughout entitling him to the relief of specific performance. He submitted that the plaintiff had paid entire consideration on the date of execution of agreement of sale thereby showing his readiness to perform his part of contract and his financial capacity. Insofar as willingness is concerned, the plaintiff's conduct is not blameworthy so as to deny him the relief of specific performance;

(iv) Motilal Jain Vs. Ramdasi Devi, 2000 (6) SCC 420 : [2000(4) ALL MR 285 (S.C.)], and in particular, paragraph 6 thereof to contend in the facts and circumstances of the present case that there is no delay giving rise to a plea of waiver. The learned District Judge, however, committed serious error in holding that the plaintiff has waived his right to claim relief of specific performance.

12. Finally, he submitted that the findings recorded by the learned District Judge are inconsistent inasmuch as after having held that the plaintiff has established that the defendant had executed an agreement of sale and also the plaintiff had paid entire consideration, and that, Tukaram failed to prove that the agreement of sale was a money-lending transaction and that the same was executed as a collateral security for the money-lending transaction, for the selfsame reasons, the learned District Judge ought to have held that the plaintiff proved that he was ready and willing to perform his part of contract. In other words, he submitted that the findings recorded by the learned District Judge against point Nos.1 and 2 are inconsistent with the findings recorded against point Nos.4 and 5. He, therefore, submitted that the impugned order passed by the learned District Judge deserves to be set aside and the decree passed by the trial Court deserves to be restored.

13. On the other hand, Mr. Datar supported the impugned order. He invited my attention to Section 20 of the Specific Relief Act and submitted that mere establishing execution of the agreement of sale is not sufficient to grant a decree of specific performance if the circumstances as indicated in Section 20 thereof exist in the present case. If the circumstances as indicated in Section 20 exists, the Court while exercising discretion is justified to grant a lesser or limited relief to the plaintiff. The learned District Judge has exercised sound discretion in view of the circumstances which have been brought on record through the evidence of the parties. He further submitted that the conduct of the plaintiff is not blemishless. It is the case of the plaintiff that on the date of the agreement of sale dated 06.05.1976, he had paid entire consideration. One of the conditions stipulated in the agreement of sale was that the defendant was to obtain permission under the Act from the Deputy Collector. He submitted that the plaintiff was fully aware of the encumbrances on the property and despite that, he had paid entire consideration on the date of agreement of sale. In support of his submissions, he relied upon the following judgments:

(i) Veluyudhan Sathyadas Vs. Govindan Dakshyani, 2002 (5) JT 357; &

(ii) Pushparani S. Sundaram Vs. Pauline Manomani James, (2002) 9 SCC 582.

14. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record as also the original record. Before I deal with the submissions advanced by the learned Counsel appearing for the parties, it is necessary to note the findings recorded by the Courts below. As noted earlier, the learned trial Judge held that the plaintiff had proved that the defendant had agreed to sell suit land for consideration of Rs.3,000/- to him on 06.05.1976 and that the plaintiff had paid Rs.3,000/- to Tukaram. The learned trial Judge also negatived the defence of Tukaram that he had received Rs.1,500/- from Shivraya, attesting witness to the agreement of sale and the said witness got an agreement of sale executed in the name of the plaintiff. In other words, the learned trial Judge did not accept the plea of the defendant that the agreement of sale was executed as a security for repayment of amount of Rs.1,500/- received by the defendant from Shivraya. The learned District Judge also held that the plaintiff has proved that the defendant Tukaram had entered into an agreement of sale and also received amount of Rs.3,000/- on 06.05.1976 and that the defendant failed to prove that the said transaction was the money-lending transaction and that the transaction that was entered into was a collateral security for a money-lending transaction between Tukaram and Shivraya.

15. The trial Court held that the plaintiff is ready and willing to perform his part of contract and is, therefore, entitled to relief of specific performance. As against this, the learned District Judge held that the plaintiff was not ready and willing to perform his part of contract and is, therefore, not entitled to relief of specific performance. The controversy is, therefore, narrowed down only to the question as to whether the plaintiff is ready and willing to perform his part of contract and whether the learned District Judge has rightly exercised the discretion.

16. In the case of His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar, (1996) 4 SCC 526, the Apex Court has interpreted the expression 'readiness and willingness' occurring in Section 16(c) of the Specific Relief Act, 1963. The Apex Court observed that readiness means the capacity of the plaintiff or rather financial capacity of the plaintiff. Willingness is referable to the conduct of the party. In the present case, the Courts below after appreciating the evidence on record have concurrently recorded a finding of fact that the plaintiff had paid entire consideration of Rs.3,000/- on 06.05.1976. The Courts below have also recorded a finding of fact that the transaction entered into between the plaintiff and Tukaram on 06.05.1976 is an agreement of sale and not a transaction as a collateral security for repayment of the amount. The only question is whether the conduct of the plaintiff is such as to disentitle him the relief of specific performance. As noted earlier, the learned trial Judge decreed the Suit and the Appellate Court in exercise of powers under Section 20 of the Specific Relief Act, 1963 denied the relief of specific performance on the ground that the conduct of the plaintiff was not without any blemish. The said aspect is considered by the learned District Judge in paragraph 11 of the impugned order. The learned District Judge has given the following reasons:

a. The plaintiff was working as a labourer in a mill for the last 35 years. He owns a field at Mauje Bhalewadi, which is cultivated by P.W.4 Shivraya. In other words, the plaintiff is unable to personally cultivate his own field.

b. Though the plaintiff had paid entire consideration, he did not demand possession of the suit land.

c. Plaintiff's witness Bhau Ganesh Karthekar admitted that there was no talk about sale of the suit lands when the document was scribed. P.W. 3 Ganesh Gokhale admitted that the plaintiff used to come to him for preparing documents and there may be 7-8 Sathekhats (agreements of sale), which were written by him for the plaintiff.

d. P.W.4 Shivraya admitted in his evidence that people of Bhalewadi had made complaint against him that he is doing money-lending business without valid licence during the period of emergency.

17. After considering the evidence of these witnesses examined on behalf of the plaintiff that the learned District Judge held the plaintiff was set up as stooge by Shivraya and the document was executed in favour of the plaintiff at the instance of the said witness. The learned District Judge also found that the plaintiff had no capacity to enter into so many transactions of purchasing several fields as he was merely a mill labourer (in view of admission of P.W.3 Gokhale that at the instance of the plaintiff, he had written 7 to 8 agreements of sale). There is no evidence to show that the plaintiff had other source of income which could have enabled him to enter into transactions of purchase of so many agricultural lands. Now, in view of these findings, it is necessary to consider the testimony of the witness is examined by the plaintiff.

18. The plaintiff had examined himself as P.W.1 at exhibit-16. In the examination-in-chief, he admitted that at the time of agreement of sale, Tukaram, Shivsharan, Shivraya and Gokhale as also the defendant and his son were present. The said agreement of sale was written by one Bhau Kavthekar and Tukaram had affixed his thumb impression over the agreement of sale. Shivraya, Shivsharan, Gokhale and Mahadeo are the attesting witnesses. He denied the suggestion that the agreement of sale was executed by Tukaram to him out of the transaction of Shivraya Chilgonda and the defendant. He also denied suggestion that he is related to Shivraya and that Tukaram had obtained Rs.1,500/- from Shivraya and for the security of that amount, the agreement of suit land was executed by Tukaram in his favour. He denied that the agreement of sale is a document of Daam Duppat. He asserted that he was and is still ready and willing to perform his part of contract and inspite of request, Tukaram declined to execute the sale deed, and therefore, he was constrained to institute the Suit.

19. In cross-examination, he admitted that he was working in the mill at Solapur since last 35-56 years and that he has no residential house at Village Bhalewadi (where the suit land is situated). His son has house at Mangalwedha. He denied that brother of Shivraya and his son run cloth shop at Mangalwedha in partnership. He further denied the suggestion that he was not acquainted with Tukaram prior to the suit transaction. He however admitted that Shivraya looks after his agricultural lands at Mangalwedha. He further admitted that the 7/12 extract of the suit land shows the encumbrances of society and Tagai. However, he did not ascertain the exact amount of encumbrances. In the plaint, it is asserted that though the entire consideration was paid by the plaintiff on 06.05.1976, the sale deed could not be registered on the same date as there were encumbrances on the suit land as also permission was required under the provisions of the Act. He admitted that he came to know in the year 1977 that condition of obtaining permission for sale deed was deleted.

20. The plaintiff also examined P.W.4 Shivraya Laxman Chilgonda. In the examination-in-chief, he deposed that the plaintiff had paid an amount of Rs.3,000/- to Tukaram in his presence. Kavthekar had written that agreement of sale and he read over it to Tukaram and thereafter Tukaram had put thumb impression. He signed that agreement of sale as attesting witness. Other witness Ganesh Gokhale also signed it and Mahade Tukaram, Pandurang and Shirsharan had also signed that document as attesting witnesses. In the cross-examination, he admitted that there was charge of society over the suit land. He further denied the suggestion that he was dealing in money-lending business at Bhalewadi. He however admitted that in the days of emergency, people of Bhalewadi had complained about his money-lending business without licence. He denied that for the security of money-lending, he used to get the document of agreement of sale executed from the people. He also denied that he had lent Rs.1,500/- to Tukaram and after two months, he got the documents of Daam Duppat executed in favour of the plaintiff from Tukaram. He denied that he charged 3% interest per month over the amount of Rs.1,500/- and that he took leading part in getting the agreement of sale executed from Tukaram in favour of the plaintiff.

21. As noted earlier, the plaintiff in cross-examination clearly admitted that he did not ascertain the exact amount of encumbrances over the suit land. As against this, P.W.4 Shivraya admitted that there was charge of society over the suit land. It is curious to note that the intending purchaser is not aware of the exact amount of encumbrances on the suit land. This is to be appreciated on the backdrop of the fact that the plaintiff had paid entire consideration of Rs.3,000/- on the date of execution of the sale deed. It is also material to note that as the permission was necessary under the Act, possession could not have been handed over to the plaintiff. In these circumstances, it is necessary to appreciate the conduct of the plaintiff. On one hand, he parted with amount of Rs.3,000/- on 06.05.1976 without getting possession of the suit land. The amount of Rs.3,000/- was by no means a small amount in the year 1976. A person will not part with entire consideration unless he ascertains encumbrances over the suit land as also obtains possession. Even accepting the case of the plaintiff that possession could not have been handed over to him despite paying the entire consideration as the permission was required to be obtained first, nonetheless after execution of agreement of sale on 06.05.1976, the plaintiff would have made attempts by calling upon the defendant-Tukaram either to obtain permission or at least apply to the concerned authority for permission. No such evidence is brought on record. It is not in dispute that the plaintiff did not issue any notice or enter into any correspondence with Tukaram calling upon him either to apply for permission or to execute the sale deed. It is also material to note that the condition to obtain permission was deleted and this fact came to his knowledge in the year 1977. Despite that, the plaintiff did not call upon the defendant to execute the sale deed by issuing any notice. As noted earlier, the Suit is instituted on 06.04.1978. Considering the evidence of the plaintiff as also of P.W.4 Shivraya, it is evident that Shivraya knows more about the transaction than the plaintiff himself. In my opinion, considering the testimony of the plaintiff and P.W.4 Shivraya, the conclusion drawn by the learned District Judge that the conduct of the plaintiff was not without any blemish cannot be faulted with. Though the plaintiff had established his readiness to perform his part of contract, in the facts and circumstances of the present case, the plaintiff has failed to establish his willingness to perform the contract. After considering the testimony of the witnesses examined by the plaintiff, the learned District Judge held that the plaintiff was set up as stooge by Shivraya. I do not find that the learned District Judge committed any error in arriving at this conclusion. The learned District Judge while allowing the appeal observed that though the plaintiff had paid entire consideration, he did not demand possession of the suit land. It is material to note that the agreement was entered into on 06.05.1976. One of the conditions was of obtaining permission from Deputy Collector. The plaintiff could not have insisted to handover possession in the absence of permission. The learned District Judge also observed that P.W.3 Gokhale admitted that he prepared 7 to 8 Sathekhats (agreements of sale) for the plaintiff. However, those agreements were not brought on record. These reasons given by the learned District Judge, in my opinion, are not incorrect.

22. Insofar as the judgment relied by the appellant in the case of Chand Rani, [2008 ALL SCR (O.C.C.) 33] (supra) is concerned, in that case, the Apex Court has held that in the case of sale of immovable property, there is no presumption as to time being the essence of contract. In the present case, the learned District Judge has recorded a finding that the time is not essence of contract and I do not find that the learned District Judge has committed any error in arriving at this conclusion. In the case of Satyanarayana (supra), the Apex Court considered various judgments including the judgment in the case of Lindsay Petroleum Co. Vs. Prosper Armstrong Hurd, (1874) 5 CP 221 and after quoting the passage from that judgment observed that the said passage indicates that either waiver or conduct equivalent to waiver along with delay may be a ground for refusing to give a decree for specific performance. The Apex Court also considered the judgment in the case of Caesar Lamare Vs. Thomas Dixon (1873) 6 HL 414 and observed as under:

"The conduct of the party applying for relief is always an important element for consideration."

23. In the case of Aniglase Yohannan, [2006(1) ALL MR 24 (S.C.)] (supra), it is observed in paragraph 12 that the basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, he should not be denied the relief. In paragraph 13 of that report, it was observed that Section 16(c) of the said Act mandates that the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of contract.

24. Mr. Naik relied upon the judgment in the case of Motilal Jain, [2000(4) ALL MR 285 (S.C.)] (supra) to contend that the plaintiff had not waived his right to get relief of specific performance. In view of the findings recorded by me, in my opinion, these judgments relied by him do not advance the case of the plaintiff. As against this, in the case of Veluyudhan Sathyadas (supra), the Apex Court held that mere establishing the fact that the agreement of sale has been entered into that by itself, is not sufficient to grant a decree for specific performance and if the circumstances as indicated in Section 20 exist in a particular suit, the Court ought to certainly exercise its discretion in favour of the defendant and give lesser or limited relief to the plaintiff. In the case of Pushparani (supra), the Apex Court has held that merely because the plaintiff has averred the readiness and willingness to perform his part of contract is not sufficient, he has to lead evidence to substantiate that plea. As noted earlier, though the plaintiff had established his readiness to perform his part of contract, in the facts and circumstances of the case, I am satisfied that he has not established his willingness to perform the part of the contract.

25. In the case of Satyanarayana (supra), the Apex Court considered various judgments including that of Caesar Lamare (supra) wherein it was observed that "the conduct of the party applying for relief is always an important element for consideration". In Aniglase Yohannan, [2006(1) ALL MR 24 (S.C.)] (supra), the Apex Court observed in paragraph 12 that the basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. In paragraph 13 of that report, it was observed that Section 16(c) of the said Act mandates that the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of contract. If the tests laid down by the Apex Court are applied in the facts and circumstances of the present case and having regard to the conduct of the plaintiff, I am of the opinion that the learned District Judge has rightly exercised discretion under Section 20 of the Specific Relief Act, which does not require to be corrected by the Court of Appeal.

26. In the case of Raghunath F. Jadhav Vs. Rajendra D. Patil, 2007 (2) Bom.C.R. 256 : [2007(3) ALL MR 265], in paragraph 16, it was observed that while dealing with a case for specific performance of the agreement, the Court should examine whether, by reference to Section 20 of the Specific Relief Act, that was a fit case for exercising discretion of specific performance or not. The statutory guidelines incorporated in Section 20 should be in the forefront of the mind of the Court. All facts and circumstances should be meticulously considered, keeping in view that the Court is not bound to grant specific performance merely because it is lawful to do so. Th emotive behind the litigation should also enter judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to give an unfair advantage to the plaintiff.

27. In the result, Appeal fails and the same is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Appeal dismissed.