# Ram Kishan and others v. Sri Ganeshi

- **Citation:** (2004) 2 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-31
- **Case number:** Second Appeal No. 470 of 1981
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-and-others-v-sri-ganeshi-40263
- **Pages:** 4

## Headnote

Specific Relief Act, 1963-S. 16(C)-Suit
for Specific performance of Contractplaintiff must plead and prove that he
has always been ready or willing to
perform with part of contract-When
plaintiff himself failed to perform his
part of contract, not entitled to a decree
of Specific performance.

Held: Para 6 & 10

From the aforesaid provision of Section
16 (c), it is quite evident that a plaintiff
seeking
specific
relief
of
specific
performance of contract has to aver and
prove that he has performed or has
always been ready or willing to perform
the essential terms of the contract which
are to be performed by him under the
agreement. If on a particular date for
which notice has been given by the party
seeking relief of specific performance of
contract, he himself fails to perform his
part of the contract i.e. the payment of
sale
consideration
to
the
proposed
vendor
before
the
Sub-Registrar,
it
cannot be presumed that the plaintiff
seeking such relief has always been
ready and willing to perform his part of
contract. In this context, the legal
position is well settled.

In view of the aforesaid facts and
circumstances, I find that the plaintiffrespondent, when had failed to perform
his part of the contract in terms of
Section 16 (c) of the Specific Relief Act,
had no right to obtain a decree of
specific performance of agreement in
question
and
the
appeal
of
the
defendant-appellant should be allowed.
Case law discussed:
AIR 1928 PC 208
AIR 1967 SC 868
AIR 1995 SC 945
AIR 1980 All 52

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
590
payment of income tax/advance tax or
self-assessment tax or any other direct tax
cannot be allowed as a deduction.

22. In view of the foregoing
discussions, our answer to the question
nos.1 to 3 and 6 are in the negative, i.e., in
favour of the Revenue and against the
Assessee and our answer to question no.5
is in the affirmative, i.e., in favour of the
Assessee and against the Revenue. So far
question no.4 is concerned, the amount of
Rs.1645092 was not allowable in the
assessment year 1972-73. However, there
was no bar during the assessment year
1972-73 for claiming the deduction of
gratuity under Section 37 of the Act even
if the conditions of Section 36(i)(v) of the
Act have not been complied with. Thus,
our answer to question no.4 is also in the
negative, i.e., in favour of the Revenue
and against the assessee. In view of the
divided success, the parties shall bear
their own costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2004

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Second Appeal No. 470 of 1981

Ram Kishan and others
...Appellant
Versus
Sri Ganeshi

 ...Respondent

Counsel for the Applicant:
Sri B. Malik
Sri V.C. Mishra
Smt. S.V. Mishra

Counsel for the Respondents:
Sri H.N. Sharma

Specific Relief Act, 1963-S. 16(C)-Suit
for Specific performance of Contractplaintiff must plead and prove that he
has always been ready or willing to
perform with part of contract-When
plaintiff himself failed to perform his
part of contract, not entitled to a decree
of Specific performance.

Held: Para 6 & 10

From the aforesaid provision of Section
16 (c), it is quite evident that a plaintiff
seeking
specific
relief
of
specific
performance of contract has to aver and
prove that he has performed or has
always been ready or willing to perform
the essential terms of the contract which
are to be performed by him under the
agreement. If on a particular date for
which notice has been given by the party
seeking relief of specific performance of
contract, he himself fails to perform his
part of the contract i.e. the payment of
sale
consideration
to
the
proposed
vendor
before
the
Sub-Registrar,
it
cannot be presumed that the plaintiff
seeking such relief has always been
ready and willing to perform his part of
contract. In this context, the legal
position is well settled.

In view of the aforesaid facts and
circumstances, I find that the plaintiffrespondent, when had failed to perform
his part of the contract in terms of
Section 16 (c) of the Specific Relief Act,
had no right to obtain a decree of
specific performance of agreement in
question
and
the
appeal
of
the
defendant-appellant should be allowed.
Case law discussed:
AIR 1928 PC 208
AIR 1967 SC 868
AIR 1995 SC 945
AIR 1980 All 52

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. Heard Sri B. Malik, learned
counsel for the appellants. None has
however, appeared on behalf of the
respondent.
http://www.allahabadhighcourt.nic.in
2 All] Ram Kishan and others V. Sri Ganeshi
591
2. This Second Appeal arises out of
the judgment and decree dated 31.1.1981
passed by the 1st Addl. District Judge,
Meerut, whereby he allowed the First
Appeal and set aside the judgment and
decree dated 6.5.1975 passed by the Trial
Court (2nd Addl. Civil Judge).

3. The facts giving rise to this appeal
in brief are that the respondent-plaintiff
had filed a suit for specific performance
of contract of sale, which was hotly
contested by the appellants-defendants in
the trial court. At the trial stage, it was
held that the plaintiff-respondent had
failed to establish on record that he was
ready to perform the essential terms of the
contract, which were to be performed by
him and accordingly, the trial court
dismissed the suit against which the First
Appeal was preferred. The 1st Appellate
Court held that though, it is sufficiently
established on record and it is clear from
the evidence available that on the date
fixed i.e. 28.12.1971, both the parties had
visited the Office of Sub-Registrar for
registration of the sale deed to be
executed in pursuance to the agreement in
question, but the plaintiff on that date did
not possess the required consideration
with him as to enable the appellantdefendant to execute the sale deed. As
such, the very execution of the sale deed
was shelved. Inspite of recording this
finding of facts, the 1st Appellate Court
has found favour with the plaintiff and set
aside the Trial Court's decree on the
ground
of
subsequent
notice
dated
29.12.1971
given
by
the
plaintiff
requesting the appellant-defendant to
again visit the Office of Sub-Registrar on
7.1.1972 for execution of the sale deed on
which date he did not go for registration
and execution of the said transfer. Thus,
taking
no
notice
of
the
aforesaid
concluded findings of fact that on
28.12.1971, the plaintiff was not ready
with sufficient money to get the sale deed
executed in his favour when both the
parties were present at the Sub-Registrar's
Office and unreasonably giving undue
weightage to the subsequent notice the 1st
Appellate Court erroneously found it
more justifiable in law to decree the suit
and granted the relief for specific
performance of the agreement in question.

4. Aggrieved with the aforesaid
judgment, the present appeal has been
preferred.

5. From the aforementioned facts
and circumstances, it so appears that the
learned 1st Appellant Judge has given
scant importance rather no importance to
the provisions of Section 16(c) of the
Specific Relief Act, 1963 which enjoins
upon the plaintiff seeking the relief of
specific performance of contract, to
perform his part of the contract, in the
following words:-

Personal
bars
to
relief.-
Specific
performance of a contract cannot be
enforced in favour of a person-
(c) who fails to aver and prove that he
has performed or has always been ready
and willing to perform the essential terms
of the contract which are to be performed
by him, other than terms the performance
of which has been prevented or waived by
the defendant.

6. From the aforesaid provision of
Section 16 (c), it is quite evident that a
plaintiff seeking specific relief of specific
performance of contract has to aver and
prove that he has performed or has always
been ready or willing to perform the
essential terms of the contract which are
to be performed by him under the
agreement. If on a particular date for
which notice has been given by the party
seeking relief of specific performance of
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
592
contract, he himself fails to perform his
part of the contract i.e. the payment of
sale consideration to the proposed vendor
before the Sub-Registrar, it cannot be
presumed that the plaintiff seeking such
relief has always been ready and willing
to perform his part of contract. In this
context, the legal position is well settled.

7. The Privy Council in Ardeshir H.
Mama Vs. Flora Sassoon, AIR 1928 PC
208, has held that in a suit for specific
performance the averment of readiness
and willingness on plaintiff's part up to
the date of the decree is necessary. The
Supreme Court in Gomathinavagam
Pillai Vs. Palaniswami Nadar, AIR 1967
S.C. 868, has held as below:-

"But the respondent has claimed a
decree for specific performance and it is
for him to establish that he was, since the
date of the contract, continuously ready
and willing to perform his part of the
contract. If he fails to do so, his claim for
specific performance must fail".

8. In Jugraj Singh and another Vs.
Labh Singh and others, AIR 1995 S.C.
945, the Apex Court has propounded the
law under Section 16 (c) in the following
words:-

"Section 16 (c) of the Specific Relief
Act, 1963 provides that the plaintiff must
plead and prove that he has always been
ready and willing to perform his part of
the essential terms of the contract. The
continuous readiness and willingness at
all stages from the date of the agreement
till the date of the hearing of the suit need
to be proved. The substance of the matter
and surrounding circumstances and the
conduct of the plaintiff must be taken into
consideration in adjudging readiness and
willingness to perform the plaintiff's part
of the contract."

9. In Har Pratap Singh and another
Vs. Satya Narain Misra and another,
AIR 1980 Allahabad 52, the readiness
and willingness of a party to perform the
essential term of a contract has been
projected in the following words:-

"The readiness and willingness of a
party to perform the essential term of a
contract to be performed by him, and
which is required to be averred and
proved under clause (c) of Sec. 16 has to
be a real readiness and willingness,
backed by the capacity to do so. A person
who is incapable of performing the
essential term of a contract to be
performed by him cannot be said to be
ready or willing to perform it however
much he may say that he is ready and
willing to perform it. It is well settled that
the
provisions
of
Section
16
are
mandatory."

10. In the aforesaid view of the
matter, when it was amply clear even to
the Lower Appellate Court that on a given
date, the plaintiff was not fully ready to
perform his part of contract when both the
parties had visited the office of SubRegistrar for execution of the sale deed,
the said Court does not appear to be
legally justified to have passed a decree in
favour of such plaintiff, who had failed in
terms of aforesaid Section 16 (c) of the
Specific Relief Act. On the other hand,
the trial court appears to be fully justified
in
not
granting
relief
of
specific
performance when it found that on
28.12.1971, inspite of the parties visiting
the office of the Sub-Registrar for
execution of the sale deed, the plaintiff
failed to perform his part of contract. The
suit was rightly dismissed at the trial stage
and there was no legal or otherwise
equitable justification for the 1st Appellate
Court to have decreed the suit after setting
aside the decree passed by the trial court.
http://www.allahabadhighcourt.nic.in
2 All] Smt. Savinay Jain V. Motor Accident Claim Tribunal, Mainpuri
593

In view of the aforesaid facts and
circumstances, I find that the plaintiffrespondent, when had failed to perform
his part of the contract in terms of Section
16 (c) of the Specific Relief Act, had no
right to obtain a decree of specific
performance of agreement in question and
the appeal of the defendant-appellant
should be allowed.

In the result, this appeal is allowed
and the judgment and decree dated
31.1.1981 passed by the 1st Appellate
Court is hereby set aside. The decree of
the trial court dated 6.5.1975 is hereby
restored.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.3.2004

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 32863 of 2004

Smt. Savinay Jain

...Petitioner
Versus
Motor Accident Claim Tribunal, Mainpuri

 ...Respondent

Counsel for the Petitioner:
Sri Y.K. Srivastava

Counsel for the Respondent:

Motor
Vehicles
Act,
1988-Award
of
Compensation-Part of amount directed
to be invested for one year in fixed
deposit-Application for withdrawal of
same on vague grounds rejected-Writ
against-Held, Tribunal while disbursing
amount has to act in interest of claimant,
as per guidelines laid down by apex
court-Submission that if no condition is
put
in award
subsequently
tribunal
cannot while releasing amount direct for
investment of amount on take any other
safety measures cannot be accepted.

Held: Para 7 & 8

Thus the Tribunal while disbursing the
amount has to act in the interest of the
claimant in accordance with the guide
lines laid down by the Apex Court. The
submission that if no condition is put in
the award subsequently Tribunal cannot
while releasing the amount direct for
investment of the amount or take any
other
safety
measures
cannot
be
accepted.

However, according to the guidelines as
laid down by the Apex Court itself, it is
open for the claimant to make an
application and on sufficient reasons, the
Tribunal can always release the amount.
In the present case, the Tribunal has
rejected the amount. In the present
case, the Tribunal has rejected the
application of the petitioner observing
that no details of the business or other
important work has been disclosed in the
application. Copy of the application has
been filed as annexure 3 to the writ
petition which clearly shows that there
was no details of the purpose for which
amount was sought to be withdrawn. No
error
has
been
committed
by
the
Tribunal
in
rejecting
such
vague
application which do not mention any
details or purpose for which amount was
sought to be withdrawn.
Case law discussed:
1994 ACJ 1 (SC)
(1991) 4 SCC 584
1983 ACJ 57 (Guj)

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioner.

By this writ petition, the petitioner
has prayed for quashing order dated
31.7.2004 passed by Motor accident
Claim Tribunal by which the application
of the petitioner for release of the amount
deposited with Tribunal has been rejected.