# MAN KAUR (DEAD) BY LRS v. HARTAR SINGH SANGHA

- **Citation:** [2010] 12 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 2010-10-05
- **Case number:** Civil Appeal Nos. 147-148 of 2001
- **Bench:** R.V. Raveendran, Aftab Alam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/man-kaur-dead-by-lrs-v-hartar-singh-sangha-26394
- **Pages:** 36

## Headnote

Specific Relief Act, 1963:
s. 16(c) - Compliance of - Agreement of sale of property c
between parties through their attorney holders - Payment bf
earnest money by plaintiff-vendee - Plaintiff alleging failure
of defendant-vendor to execute sale deed though he was
ready and willing to perform his part of contract - Suit for
specific performance of agreement of sale by plaintiff against D
defendant, through another attorney holder - Suit decreed by
trial court-: Upheld by High Court - On appeal, held; Plaintiff
neither signed agreement of sale nor plaint nor appeared and
gave evidence, about his readiness and willingness -
Plaintiff's attorney holder who executed agreement of sale not
E
examined and one who signed the plaint had no personal
knowledge of the transaction - No evidence of readiness and
willingness of plaintiff to perform his part of the obligations in
terms of the contract, thus, non-compliance of s. 16(c) -
Agreement did not bar specific performance - Plaintiff could
seek the relief subject to proving breach by defendant and
F
plaintiff's readiness and willingness to perform the contract -
Material on record shows that plaintiff committed breach -
Courts below ignored the relevant evidence and drew adverse
inference from the evidence -
Thus, earnest money is
forfeited and plaintiff not entitled for the refund - Decree for
G
specific performance set aside.
s. 16(c) - Specific performance of contract- When barred
- Explained.
515
H
516
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
Specific performance of contract -
Readiness and
willingness to perform - Proving of, by plaintiff - Examination
of persons-attorney holders having personal knowledge about
the transaction - Discussed - Evidence.
8
The appellant-defendant was the owner of certain
property. The respondent-plaintiff was a non-residential
indian. The defendant represented by her husband and
attorney-holder 'KS'(DW 1) entered into an agreement to
sell the said property to the plaintiff represented by
attorney-holder 'PS'. The agreement of sale was signed
C by the attorney holders of the parties. The plaintiff paid
Rs. 10,000/- as earnest money. The plaintiff alleged that
in aspite of notice, the defendant did not execute sale
deed though the plaintiff was ready and willing to perform
his part of the contract and get the sale deed registered •
D by paying the balance consideration. The plaintiff, then
represented by his attorney-holder 'JS'(PW 1) filed a suit
for specific performance of the agreement of sale against
the defendant. The property dealer 'BS' was examined on
PW 2. The trial court decreed the suit. The High Court
E upheld the order passed by the trial court. Therefore, the
appellant filed the instant appeals.
Allowing the appeals, the Court
HELD: 1.1 Section 16(c) of the Specific Relief Act
F 1963 bars the specific performance of a contract in favour
of a plaintiff 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 the terms the
G performance of which has been prevented or waived by
the defendant). Explanation (ii) to Section 16 provides that
for purposes of clause (c) of Section 16, the plaintiff must
aver performance of, or readiness and willingness to
H
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
517
SANGHA
perform, the contract according to its true construction.
A
Thus, in a suit for specific performance, the plaintiff
should not only plead and prove the terms of the
agreement, but should also plead and prove his
readiness and willingness to perform his obligations
under the contract in terms of the contract. [Para 9] (532B
8-E]
1.2 To succeed in a suit for specific performance, the
. plaintiff has to prove: that a valid agreement of sale was
entered by the defendant in his favour and the terms
thereof; that the defendant committed breach. of the
C
· contract; and that he was always ready and willing to
perform his part of the

## Text

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[2010] 12 S.C.R. 515
MAN KAUR (DEAD) BY LRS.
v.
HARTAR SINGH SANGHA
(Civil Appeal Nos. 147-148 of 2001)
OCTOBER 05, 2010
[R.V. RAVEENDRAN AND AFTAB ALAM, JJ.)
Specific Relief Act, 1963:
s. 16(c) - Compliance of - Agreement of sale of property c
between parties through their attorney holders - Payment bf
earnest money by plaintiff-vendee - Plaintiff alleging failure
of defendant-vendor to execute sale deed though he was
ready and willing to perform his part of contract - Suit for
specific performance of agreement of sale by plaintiff against D
defendant, through another attorney holder - Suit decreed by
trial court-: Upheld by High Court - On appeal, held; Plaintiff
neither signed agreement of sale nor plaint nor appeared and
gave evidence, about his readiness and willingness -
Plaintiff's attorney holder who executed agreement of sale not
E
examined and one who signed the plaint had no personal
knowledge of the transaction - No evidence of readiness and
willingness of plaintiff to perform his part of the obligations in
terms of the contract, thus, non-compliance of s. 16(c) -
Agreement did not bar specific performance - Plaintiff could
seek the relief subject to proving breach by defendant and
F
plaintiff's readiness and willingness to perform the contract -
Material on record shows that plaintiff committed breach -
Courts below ignored the relevant evidence and drew adverse
inference from the evidence -
Thus, earnest money is
forfeited and plaintiff not entitled for the refund - Decree for
G
specific performance set aside.
s. 16(c) - Specific performance of contract- When barred
- Explained.
515
H
516
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
Specific performance of contract -
Readiness and
willingness to perform - Proving of, by plaintiff - Examination
of persons-attorney holders having personal knowledge about
the transaction - Discussed - Evidence.
8
The appellant-defendant was the owner of certain
property. The respondent-plaintiff was a non-residential
indian. The defendant represented by her husband and
attorney-holder 'KS'(DW 1) entered into an agreement to
sell the said property to the plaintiff represented by
attorney-holder 'PS'. The agreement of sale was signed
C by the attorney holders of the parties. The plaintiff paid
Rs. 10,000/- as earnest money. The plaintiff alleged that
in aspite of notice, the defendant did not execute sale
deed though the plaintiff was ready and willing to perform
his part of the contract and get the sale deed registered •
D by paying the balance consideration. The plaintiff, then
represented by his attorney-holder 'JS'(PW 1) filed a suit
for specific performance of the agreement of sale against
the defendant. The property dealer 'BS' was examined on
PW 2. The trial court decreed the suit. The High Court
E upheld the order passed by the trial court. Therefore, the
appellant filed the instant appeals.
Allowing the appeals, the Court
HELD: 1.1 Section 16(c) of the Specific Relief Act
F 1963 bars the specific performance of a contract in favour
of a plaintiff 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 the terms the
G performance of which has been prevented or waived by
the defendant). Explanation (ii) to Section 16 provides that
for purposes of clause (c) of Section 16, the plaintiff must
aver performance of, or readiness and willingness to
H
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
517
SANGHA
perform, the contract according to its true construction.
A
Thus, in a suit for specific performance, the plaintiff
should not only plead and prove the terms of the
agreement, but should also plead and prove his
readiness and willingness to perform his obligations
under the contract in terms of the contract. [Para 9] (532B
8-E]
1.2 To succeed in a suit for specific performance, the
. plaintiff has to prove: that a valid agreement of sale was
entered by the defendant in his favour and the terms
thereof; that the defendant committed breach. of the
C
· contract; and that he was always ready and willing to
perform his part of the obligations in terms ,of the
contract. If a plaintiff has to prove that he was always
ready and willing to perform his part of the contract, that
is, to perform his obligations in terms of the contract,
D
necessarily he should step into the witness box and give
evidence that he has all·along been ready and willing to.
perform his part of the contract and subject himself to
cross examination· on that issue. A plaintiff cannot
examine in his place, his attorney holder who did not
E
have personal knowledge either of the transaction or of
his readiness and willingness. Readiness and willingness
refer to the state of mind and conduct of the purchaser,
. as also his capacity and preparedness on the other. One
without the other is not sufficient. Therefore, a third party
F
who has no personal knowledge cannot give evidence
about such readiness and willingness, even if he is an
attorney holder of the person concerned. [Para 11] [535E-H] [536-A]
1.3 The position as to who should give evidence in .G
regard to matters involving personal knowledge was as
follows:
(a) An attorney holder who has signed the plaint and
instituted the suit, but has no personal knowledge of
H
the transaction can only give formal evidence about
A
B
c
D
E
F
G
H
518
SUPREME COURT REPORTS
[2010] 12 S.C.R.
the validity of the power of attorney and the filing of
the suit.
(b) If the attorney holde'r has done any act or handled
any transactions, in pursuance of the power of
attorney granted by the principal, he may be
examined as a witness to prove those acts or
transactions. If the attorney holder alone has
personal knowledge of such acts and transactions
and not the principal, the attorney holder shall be
examined, if those acts and transactions have to be
proved.
(c) The attorney holder cannot depose or give
evidence in place of his principal for the acts done
by the principal or transactions or dealings of the
principal, of which principal alone has personal
knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated in the
transaction and has no personal knowledge of the
transaction, and where the entire transaction has
been handled by an attorney holder, necessarily the
attorney holder alone can give evidence in regard to
the transaction. This frequently happens in case of
principals carrying on business through authorized
managers/attorney holders or persons residing
abroad managing their affairs through their attorney
holders.
(e) Where the entire transaction has been conducted
through a particular attorney holder, the principal
has to examine that attorney holder to prove the
transaction, and not a different or subsequent
attorney holder.
(f) Where different attorney holders had dealt with the
matter at different stages of the transaction, if
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
519
SANGHA
evidence has to be led as to what transpired at those
A
different stages, all the attorney holders will have to
be examined.
(g) Where the law requires or contemplated the
plaintiff or other party to a proceeding, to establish
or prove something with reference to his 'state of 8
mind' or 'conduct', normally the person concerned
alone has to give evidence and not an attorney
holder. There is however a recognized exception to
this requirement. Where all the affairs of a party are
completely managed, transacted and looked after by
C
an attorney (who may happen to be a close family
member), it may be possible to accept the evidence
of such attorney even with reference to bona fides
or 'readiness and willingness'. [Para 12) [536-8-H)
[537-A-D]
I
0
. 1.4 In the instant case, the matter was handled by
different persons at different points of time on behalf of
the plaintiff-the negotiations and execution of agreement
on 20.10.1978 were handled by the plaintiff's attorney
holder 'PS'; on 7.6.1979, the plaintiff was personally
E
present and dealt with the matter himself; and from
1.3.1980, the matter was dealt with by the plaintiff's new
attorney holder-PW 1. The plaintiff neither signed the
agreement of sale nor signed the plaint nor gave
evidence, in particular, about his readiness and
F
willingness. The agreement of sale was executed by the
plaintiff's attorney holder 'PS' who was not examined.
The plaint was signed by the plaintiff's attorney holderPW 1 in whose favour the plaintiff had executed the
power of attorney on 1.3.1980 and who had no personal
G
knowledge of the transaction. PW 1 was not aware of the
execution of the agreement, nor what happened till the
last date fixed for performance had elapsed, nor what
transpired on 7.6.1979. PW1 clearly s~ted in his evidence
that he was not aware of anything that transpired prior H ·
520
SUPREME COURT REPORTS
[2010) 12 S.C.R.
A to 1.3.1980 when the power of attorney was executed in
his favour. Nothing of relevance transpired after 1.3.1980
except the issue of the suit notice dated 5.3.1980. He did
not know whether the defendant committed breach nor
did he know about the readiness and willingness of the
B plaintiff. Therefore, the evidence of PW 1 is of no
assistance in a suit for specific performance except to
prove that he was authorized by the plaintiff to file a suit
for specific performance. [Para 13] [537-G-H] [538-A-D and
F-G]
c
1.5 The plaintiff, who ought to have given evidence,
never appeared and gave evidence. As his attorney
holder PW 1 had no knowledge of the transaction, the
plaintiff solely relied on the evidence of the property
dealer-PW 2 to prove the execution of the agreement, the
D terms of the agreement, his readiness and willingness to
perform the agreement and the alleged breach by the
defendant. But PW 2 cannot become a substitute for the
·plaintiff to give evidence about the finances or intentions
or the readiness and willingness of the plaintiff which
E were within the personal knowledge of the plaintiff. PW
2 was a property dealer engaged by the plaintiff and
supporting the plaintiff. He was not an attorney holder
acting on behalf of the plaintiff. Therefore, neither the
evidence of PW 1 nor the evidence of PW2 could be relied
F upon to prove that plaintiff was always ready and willing
to perform his obligations, in terms of the contract.
Therefore, though there were necessary averments in the
plaint about the readiness and willingness of the plaintiff,
and though PW1 and PW2 gave evidence about his
G readiness and willingness, the suit fails for failure to
comply with section 16(c) of the Specific Relief Act, as
there was no acceptable or valid evidence of such
readiness and willingness of the plaintiff to perform his
part of the obligations in terms of the contract. [Para 14]
H [538-G-H] [539-A-D]
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
521
SANGHA
N.P. Thirugnanam v. R. Jagan Mohan Rao AIR 1996 SC
A
116; Pushparani S.Sundaram v. Pauline Manomani James
2002 (9) SCC 582; Manjunath Anandappa v. Tammanasa
2003 (10) sec 390, relied on.
P.D'Souza v. Shondrilo Naidu 2004 (6) SCC 649;
B
Aniglase Yohannan v. Ramlatha 2005 (7) SCC 534 -
distinguished.
Vidhyadhar v. Manikrao 1999 (3) SCC 573; Janki
Vashdeo Bhojwani vs. lndusind Bank Ltd. 2005 (2) SCC 217;
Shankar Finance & Investments vs. State of AP (2008) 8
C
sec 536 - referred to. . .
2.1 For a plaintiff to seek specific performance of a
contract of sale relating to immovable property, and for
a court to grant such specific performance, it is not o
necessary that the contract should contain a specific
provision that in tJ'le event of breach, the aggrieved party
will be entitled to specific performance. The Act makes it
clear that if the ·legal requirements for seeking specific
enforcement of a contract are made out, specific
E
performance could be enforced as provided in the Act
even in the absence of a specific term for specific
performance in the contract. It is evident from section 23
of the Act that even where the agreement of sale contains
only a provision for payment of damage~ ,0r liquidated
damages in case of breach and does n·ot contain any
provision for specific performance, the party in breach
cannot contend that in view of specific provision for
payment of damages, and in the absence of a provision
F
for specific performance, the court cannot grant specific
performance. But where the provision naming an amount G
to be paid in case of breach is intended to give to the party
in default an option to pay money in lieu of specific
performance, then specific performance may not be
permissible. [Para 18] [541-F-H] [542-A-B]
H
522
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
2.2 In the instant case, the agreement does not
specifically provide for specific performance nor does it
bar specific performance. It provides for payment of
damages in the event of breach by either party. The
provision for damages in the agreement is not intended
B to provide the vendor an option of paying money in lieu
of specific performance. Therefore, the plaintiff would be
entitled to seek specific performance (even in the
absence of a specific provision therefor) subject to his
proving breach by the defendant and that he was ready
c and willing to perform his obligation under the contract,
in terms of the contract. [Para 19] [543-F-H]
3.1 The time fixed for the performance in the
agreement was 20.12.1978. But time was not considered
by the parties, to be essence of the contract. The
D correspondence clearly showed that defendant's
attorney holder OW 1 was willing to perform the contract
on 7.6.1979, nearly six months after the last date
stipulated in the agreement. [Para 20] [544-A-B]
E
3.2 PW 2 attempted to give some evidence about the
readiness and willingness of the plaintiff. But the
evidence of PW 2 cannot be a substitute for the evidence
of the plaintiff regarding the plaintiff's readiness and
willingness. The correspondence between PW 2 and OW
F 1 demonstrates that the version and stand of OW 1
appears to be more probable and correct. The
correspondence clearly established that the plaintiff was
not ready and willing to get the sale deed executed within
the time prescribed or even as on 7.6.1979 which was the
G last day of the extended period. The evidence also
demonstrates that the plaintiff was not in a position to
perform the contract as PW 2 admitted in his evidence
that the purchaser had to purchase the stamp paper and
that on 7.6.1979, the stamp paper was not purchased;
H
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
523
SANGHA
and that the plaintiff had in his bank account Rs.1, 14,000/
A
- but that amount was not drawn from the bank. PW 2 and
PW 1 also referred to the assets owned by the plaintiff.
Such evidence is of no assistance in the absence of
evidence as to availability of money for purchase and
about the readiness and willingness of plaintiff to perform
B
the contract. There is also somethipg doubtful about the
version given by PW 2 in his evidence as to what
happened at the Sub-Registrar's office on 7.6.1979. [Paras
21 and 22] [545-B-C and G-H] [546-A-C]
3.3 The submission that in terms of the agreement,
C
the defendant had to furnish an NOC from Chandigarh
Administration, as also ULC clearance and income tax
clearance required for the sale and there was nothing to
show that she had obtained them and, therefore, the
question of the plaintiff proving his readiness and
D
willingness to perform his obligations did not arise,
cannot be accepted. A person 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 the terms
E
the performance of which has been prevented or waived
by the defendant) is barred from claiming specific
performance. Therefore, even assuming that the
defendant had committed breach, if the plaintiff fails to
aver in the plaint or prove that he was always ready and
F
willing to perform the essential terms of contract which
are required to be performed by him (other than the terms
the performance of which has been prevented or waived
by the plaintiff), there is a bar to specific performance in
his favour. Therefore, the assumption of the plaintiff that G
readiness and willingness on the part of the plaintiff is
something which need not be proved, if the plaintiff is
able to establish that the defendant refused to execute
the sale deed and thereby committed breach, is not
correct. [Para 23] [548-D-E and F-H] ,[549-A-B]
H
/
524
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
3.4 The evidence clearly showed that the defendant's
attorney holder OW 1 had entrusted the work of securing
the clearances to the property dealer PW 2, who was
acting on behalf of the plaintiff. This was within the
knowledge of 'PS', attorney holder of the plaintiff at the
B relevant point of time. PW 2 also admitted in his evidence
that he was to get the NOC and ULC clearance. PW 2 sent
a telegram to OW 1 at the instance of the plaintiff, asking
him to come to place 'C' on 7.6.1979 and execute the sale
deed. Therefore, PW 2 had either secured the certificates
C necessary for the sale or had deliberately called OW 1 to
come over to place 'C' even though the plaintiff was not
ready and the clearances had not been secured, to create
evidence that plaintiff was ready. In neither case, the
defendant could be faulted. [Para 24] [549-0-G]
D
3.5 None of the courts below referred to the relevant
evidence or the significance of the plaintiff not tendering
evidence. They merely went by the evidence of PW 2 to
hold that the plaintiff was ready and willing and the
defendant committed a breach. The material on record
E shows that the respondent-plaintiff committed breach.
The earnest money stands forfeited and the respondent
is not entitled for refund of the earnest money. The
judgments of the courts below are set aside and the suit
for specific performance is dismissed. [Paras 25 and 26]
F [549-H] [550-A-B]
Case Law Reference:
AIR 1996 SC 116
Relied on.
Para 9
G
2002 (9) sec 582
Relied on.
Para 9
2003 (1 O) sec 390
Relied on.
Para 9
1999 (3) sec 573
Referred to.
Para 9
2005 (2) sec 211
Referred to.
Para 10
H
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
525
SANGHA [R.V. RAVEENDRAN, J.]
(2008) 8 SCC 536
Referred to.
Para 10
A
2004 (6) sec 649
2005 (7) sec 534 .
Distinguished.
Distinguished.
Para 15
Para 15
CIVIL APPELLTAE JURISDICTION: Civil Appeal No. 147B
148 of 2001.
·From the Judgment & Order dated 26.10.1999 of the High
Court of Punjab and Haryana at Chandigarh in RSA No. 3447
of 1997 and Order dated 17.1.2000 in Review Applicatin No.
3-C of 2000.
C
Rakesh Dwivedi, Vijay Hansaria, P.I. Jose, Anupam
Mishra, Vivek Kandari, Mukti and Sneha Kalita for the
Appellant.
D
Amit Rawal, Amit Kumar Sharma, Nitin Setia and E.C.
Agrawala for the Respondents.
The Judgment of the Court was delivered by ·
R. V. RAVEENDRAN J. 1. The appellant (Man Kaur, who
E
died during the pendency of this appeal and is represented by
her Legal Representatives) was the defendant in a suit for
specific performance of an agreement of sale, filed by the
respondent. For convenience the appellant and respondentwill
also be referred by their ranks in the suit as 'defendant' and
F
'plaintiff respectively.
2. The appellant Man Kaur was the owner of the suit
property, a plot admeasuring 1000 sq.yards with the building
thereon, identified as 'Annexe No 508' situated in Sector-188,
Chandigarh. The respondent-plaintiff was, at all the relevant
G
points of time, a Non-Resident Indian living in United Kingdom.
An agreement of sale dated 20.10.1978 was entered between
defendant represented by her husband and attorney holder
Kartar Singh, as vendor, and plaintiff represented by his attorney
H
526
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A holder Paramjit Singh, as purchaser. The material terms of the
said agreement were :
B
c
D
E
F
G
(i) The defendant shall sell the suit property to plaintiff for
a consideration of Rs.1,50,000/-.
(ii) As the premises was tenanted the defendant was liable
to deliver vacant possession of only a small portion which
was in her occupation. If the vendor was able to get the
tenant vacated and deliver vacant possession of the entire
premises, then the sale price shall be Rs.1,60,000/-.
(iii) A sum of Rs.10,000/- was paid in cash as earnest
money by the attorney holder of the purchaser to the
attorney holder of the vendor.
(iv) The sale had to be completed by 20.12.1978 and the
balance sale price shall be paid at the time of registration
of the sale deed.
(v) The vendor had to deliver at the time of registration of
the sale deed, her title deed, as also the NOC from the
Estate Office, Chandigarh, permission for the sale under
Urban Land (Ceiling and Regulation) Act 1976, and
Clearance Certificate under section 230A of the Income
Tax Act, 1961 and other relevant documents if any.
(vi) If the vendor committed default, he had to pay double
the amount of earnest money to the purchaser and if the
purchaser committed any default, the sum of Rs.10,000/-
paid as earnest money would stand forfeited; and
(vii) The bargain was entered through the property dealer
-
M/s R. P. Sethi & Co. to whom both the parties should
pay 2% commission on the total price; and in the event of
default, the defaulting party shall pay 4% commission.
The agreement of sale was signed by the attorney holder of the
H vendor and attorney holder of the purchaser and witnessed by
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
527
SANGHA [R.V. RAVEENDRAN, J.]
Hari Singh (Property Dealer) and Balraj Singh (property dealer
A
carrying on business under the name and style of Mis R. P.
Sethi & Co.). The agreement also contained an endorsement
by Kartar Singh acknowledging the receipt of Rs.10000/- as
earnest money in addition to another sum of Rs.1500/-.
B
3. On 25.4.1980 the respondent (represented by his
attorney holder Jagtar Singh Sangha under power of attorney
dated 1.3.1980), filed a suit for specific performance of the said
agreement of sale, against the appellant. The plaint after
referring to the terms of the agreement of sale, averred that the
C
bargain was struck through property dealer Balraj Singh of M/
s. R.P. Sethi & Co; that the time for performance was extended
from time to time till 7.6.1979; that the defendant's attorney
holder and plaintiff reached Chandigarh on 7.6.1979; that
though defendant's attorney holder stated that he had come to
Chandigarh to execute the sale deed, he did not go over to the
D
Sub-Registrar's office nor executed the sale deed; that plaintiff
remained present in the Sub~Registrar's office at Chandigarh,
and recorded his presence on 7 .6.1979 by presenting an
application and getting an acknowledgement from the SubRegistrar; that after 7.6.1979, neither the defendant nor her
E
attorney holder Kartar Singh came to Chandigarh; that they did
not also contact the plaintiff or the property dealer Balraj Singh;
and that the repeated attempts of the property dealer Balraj
Singh to contact defendant were futile. The plaint also averred
that the plaintiff was always ready and willing to perform his part
F
of the contract and get the sale deed registered by paying the
balance consideration; and that in spite of a notice dated
5.3.1980 calling upon the defendant to complete the sale, the
defendant had failed to execute the sale deed. The plaintiff
therefore prayed for specific performance of the agreement of G
sale dated 20.10.1978 or in the alternative, if he was found not
entitled to specific performance, then for a decree of recovery
of Rs.21,500/- (that is Rs.11500/- paid to defendant's attorney
holder and Rs.10000/- as liquidated damages) with costs.
H
528
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
4. The defendant resisted the suit. The defendant alleged
that as she and her husband were residents of Rourkela, it was
agreed that the property dealer Balraj Singh, who was acting
on behalf of the purchaser-plaintiff would be responsible for
securing the rnquired clearances for the sale; that a sum of
B Rs.1500/- was paid by plaintiffs attorney holder to Balraj Singh
(shown as advance payment to vendor in the receipt portion of
the agreement of sale) to secure the said NOC/permission/
clearance; that defendant signed and delivered to Balraj Singh
the necessary papers for getting the clearances/certificates; that
c time stipulated for sale (20.12.1978) was the essence of the
contract; that Bal raj Singh sent a telegram dated 2 .6.1979
requiring defendant's husband Kartar Singh to reach
Chandigarh on 7 .6.1979 for registration, assuring that
registration of sale deed would definitely take place on that day
and no further extension would be sought; that in response to
D it, the defendant's husband, who was intent to maintain cordial
relationship, in spite of the expiry of the last date fixed for sale,
went to Chandigarh and met the plaintiff and Balraj Singh, in
the office of Balraj Singh; ·that the plaintiff informed him that he
(plaintiff) could not arrange the entire funds for making full
E payment and therefore could not proceed with the sale; that
defendant's husband informed the plaintiff and Balraj Singh that
he had come all the way from Rourkela to get the sale deed
registered, and it was evident that the plaintiff did not have the
money and not interested in purchasing of the property and that
F therefore the agreement stood cancelled, and he would not
execute the sale deed; and that the defendant's husband
thereafter left for Rourkela and also wrote a letter to Balraj
Singh confirming the termination of the agreement in view of
the plaintiffs conduct on 7 .6.1979. The defendant contended
G that as plaintiff was not ready and willing to perform the contract
by paying thE~ balance of the sale price and get the sale
completed, he was not entitled to specific performance; and that
in view of the breach committed by the plaintiff, the earnest
money amount paid by him stood forfeited. The defendant also
H contended that the suit was not maintainable as it was not filed
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
529
SANGHA [RV RAVEENDRAN, J.]
by a duly authorized person. Subsequently the defendant
A
amended her written statement to contend that plaintiff was a
Non-Resident Indian and he had not obtained the permission
of the Reserve Bank of India under the Foreign Exchange
Regulation Act, 1973, and therefore he was not entitled to
purchase any immovable property in India.
B
5. On the said pleadings, the trial court framed the following
issues:
(1)
Whether the suit has been filed by a duly authorized
person?
C
(2)
(3)
(4)•
(5)
(6)
Whether the suit is not maintainable in the present
form?
Whether the suit for specific performance is not
D
maintainable?
Whether the suit is hit by laches and delay? If so,
its effect?
Whether the agreement dated 20.10.1978 has
E
been rescinded and the suit is thus not
maintainable?
Whether the plaintiff is estopped by his own act and
conduct from filing the present suit?
F
(7)
Whether the time was the essence of the contract?
(8)
Whether the plaintiff was and is ready and willing
to perform his part of the agreement? If not its
effect?
(9)
Whether the plaintiff is entitled to the specific
performance and in alternative damages as
claimed?
G
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[2010] 12 S.C.R.
A
(9A) Whether the suit is barred in view of preliminary
objection No.7 in the written statement?
(10) Relief.
6. The parties went to trial on the said issues. On behalf
8 of the plaintiff, his attorney holder Jagtar Singh Sangha was
examined as PW1. and the property dealer Balraj Singh was
examined as PW2. On behalf of the defendant. her husband
and attorney holder Lt. Col. Kartar Singh was examined as DW1. After appreciating the evidence, the trial court by judgment
C dated 15.3.1983, decreed the suit. It held that as the plaintiff
had executed a power of attorney dated 1.3.1980 in favour of
his brother Jagtar Singh Sangha and as Jagtar Singh Sangha
has asserted in his evidence that he was the attorney holder
of the plaintiff, and as Balraj Singh had given evidence that
D plaintiff executed the power of attorney in favour of Jagtar Singh
Sangha in his presence, the suit was filed by a duly authorized
person and was maintainable. The trial court held that the time
was not of essence of the contract; that defendant had failed
to prove that the agreement dated 20.10.1978 was rescinded;
E that the plaintiff had proved that he was ready and willing to
perform his part of the contract; that the suit was not barred by
time; that the Reserve Bank's permission was not necessary
for obtaining a decree for specific performance, but was
required only for execution of the sale deed in pursuance of a
F decree for specific performance; and therefore plaintiff was
entitled to specific performance.
7. The appeal filed by the defendant was dismissed by the
District Judge, Chandigarh, by judgment dated 3.6.1997
affirming the findings of fact recorded by the trial court. The
G second appeal filed by the appellant was dismissed by the
Punjab & Haryana High Court, by the impugned judgment dated
26.10.1999. The appellant has challenged the said judgment
in this appeal by special leave.
H
8. The contentions of the appellant in brief are :
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
531
SANGHA [R.V. RAVEENDRAN, J.]
(i) The plaintiff did not sign the agreement of sale nor sign
A
the plaint, nor gave evidence. His attorney holder (Paramjit
Singh) who entered into the agreement of sale on behalf
of the plaintiff and who represented the plaintiff initially, was
not examined. The second attorney holder (Jagtar Singh
Sangha) examined as PW1 was not personally aware of
B
the transaction and admitted that he was not aware of what
transpired prior to the execution of the power of attorney
in his favour on 1.3.1980. There was therefore· no
acceptable or valid evidence about the readiness and
willingness of the plaintiff to perform the contract. The courts c
below ought to have dismissed the suit by drawing a
presumption that the plaintiffs case was false and for noncompliance with Section 16(c) of the Specific Relief Act,
1963 as the plaintiff did not enter the witness box.
(ii) The agreement of sale only provided for damages in
D
the event of breach by either party. The agreement (Clause
11) provided that if the vendor failed to perform his part of
the contract by executing the sale deed and getting it
registered on receiving the balance consideration, he shall
be liable to pay double the amount of earnest money
E
received by her from the purchaser. The agreement did not
provide for specific performance in the event of breach by
the vendor. The clear intention of the parties was that in
the event of breach by the vendor, the purchaser will be
entitled to double the earnest money (that is refund of
F
earnest money plus liquidated damages of Rs.10,000/-)
and nothing more. Therefore, even if breach by the
appellant -
vendor was made out, the remedy of
respondent - purchaser was only to get Rs.20,000/- and
not for specific performance.
G
(iii) The evidence clearly established that plaintiff was not
ready and willing to perform the contract and committed
breach and as a consequence, the defendant rescinded
the contract. The courts below ignored the relevant
H
532
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
evidence in this behalf and drew invalid inferences from
the evidence. The courts below therefore ought to have
dismissed the suit.
8
Re : Contention (i)
9. Section 16(c) of the Specific Relief Act 1963 ('Act' for
short) bars the specific performance of a contract in favour of
a plaintiff 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
C terms of the performance of which has been prevented or
waived by the defendant). Explanation (ii) to section 16
provides that for purposes of clause ( c) of section 16, the
plaintiff must aver performance of, or readiness and willingness
to perform, the contract according to its true construction. Thus
D in a suit for specific performance, the plaintiff should not only
plead and prove the terms of the agreement, but should also
plead and prove his readiness and willingness to perform his
obligations under the contract in terms of the contract. (See :
N.P. Thirugnanam to R. Jagan Mohan Rao - AIR 1996 SC
E 116; Pushparani S. Sundaram v. Pauline Manomani James
- 2002 (9) SCC 582; and Manjunath Anandappa v.
Tammanasa - 2003 (10) SCC 390). In the first case, this Court
held:
F
G
H
"The continuous readiness and willingness on the part of
the plaintiff is a condition precedent to grant the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court while
granting or refusing to grant the relief. If the plaintiff fails to
either aver or prove the same, he must fail. To adjudge
whether the plaintiff is ready and willing to perform his part
of the contract, the court must take into consideration the
conduct of the plaintiff prior and subsequent to the filing of
the suit along with other attending circumstances. The
amount of consideration which he has to ay to the
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
533
SANGHA [R.V. RAVEENDRAN, J.]
defendant must of necessity be proved to be available.
A
Right from the date of the execution till date of the decree
he must prove that he is ready and has always been willing
to perform his part of the contract. As stated, the factum
of his readiness and willingness to perform. his part of the
contract is to be adjudged with reference to the conduct
B
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 part of contract."
In Vidhyadhar v. Manikrao - 1999 (3) SCC 573, this Court
C
reiterated the following well recognized legal position:
"Where a party to the suit does not appear in the witnessbox and state his own case on oath and does not offer
himself to be cross-examined by the other side, a
D
presumption would arise that the case set up by him is not
·correct."
10. We may next refer to two decisions of this Court which
considered the evidentiary value of the depositions of attorney
E
holders. This Court in Janki Vashdeo Bhojwani vs. lndusind
Bank Ltd. - 2005 (2) SCC 217, held as follows:
"Order 111, Rules 1 and 2 CPC, empowers the holder of
power of attorney to "act" on behalf of the principal. In our
view the word "acts" employed in Order Ill, Rules 1 and 2
F
CPC, confines only in respect of "acts" done by the power
of attorney holder in exercise of power ·granted by the
instrument. The term "acts" would not include deposing in
place and instead of the principal. In other words, if the
power of attorney holder has rendered some "acts" in
G
pursuance of power of attorney, he may depose for the
principal in respect of such acts, but he cannot depose
for the principal for the acts done by the principal and not
by him. Similarly, he cannot depose for the principal in
respect of the matter which only the principal can have a
H
A
B
c
D
E
F
534
SUPREME COURT REPORTS
[2010] 12 S.C.R.
personal knowledge and in respect of which the principal
is entitled to be cross-examined .
.... In the case of Shambhu Dutt Shastri v. State of
Rajasthan, 1986 2 WLN 713 (Raj) it was held that a
general power of attorney holder can appear, plead and
act on behalf of the party but he cannot become a witness
on behalf of the party. He can only appear in his own
capacity. No one can delegate the power to appear in
witness box on behalf of himself. To appear in a witness
box is altogether a different act. A general power of
attorney holder cannot be allowed to appear as a witness
on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in
the case of Ram Prasad v. Hari Narain - AIR 1998 Raj
185. It was held that the word "acts" used in Rule 2 of
Order Ill of the CPC does not include the act of power of
attorney holder to appear as a witness on behalf of a party.
Power of attorney holder of a party can appear only as a
witness in his personal capacity and whatever knowledge
he has about the case he can state on oath but be cannot
appear as a witness on behalf of the party in the capacity
of that party. If the plaintiff is unable to appear in the court,
a commission for recording his evidence may be issued
under the relevant provisions of the CPC .....
We hold that the view taken by the Rajasthan High Court
in the case of Shambhu Dutt Shastri followed and
reiterated in the case of Ramprasad is the correct view."
In Shankar Finance & Investments vs. State of AP - (2008) 8
G SCC 536, this Court explained in what circumstances, the
evidence of an attorney holder would be relevant, while dealing
with a complaint under section 138 of the Negotiable
Instruments Act, 1881 signed by the attorney holder of the
payee. This Court held :
H
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH
535
SANGHA [R.V. RAVEENDRAN, J.]
"A power of attorney holder of the complainant, who does
A
not have personal knowledge, cannot be examined. But
where the attorney holder of the complainant is in charge
of the business of the complainant and the attorney holder
alone is personally aware of the transactions, and the
complaint is signed by the attorney holder on behalf of the
B
complainant payee, there is no reason why the attorney
holder cannot be examined as the complainant. .... ln regard
to business transactions of companies, partnerships or
proprietary concerns, many a time the authorized agent or
attorney holder may be the only person having personal c
knowledge of the particular transaction; and if the
authorized agent or attorney-holder has signed the
complaint, it will be absurd to say that he should not be
examined under section 200 of the Code, and only the
Secretary of the company or the partner of the firm or the
D
proprietor of a concern, who did not have personal
knowledge of the transaction, should be examined."
11. To succeed in a suit for specific performance, the
plaintiff has to prove: (a) that a valid agreement of sale was
entered by the defendant in his favour and the terms thereof;
E
(b) that the defendant committed breach of the contract; and
(c) that he was always ready and willing to perform his part of
the obligations in terms of the contract. If a plaintiff has to prove
that he was always ready and willing to perform his part of the
contract, that is, to perform his obligations in terms of the
F
contract, necessarily he should step into the witness box and
give evidence that he has all along been ready and willing to
perform his part of the contract and subject himself to cross
examination on that issue. A plaintiff cannot obviously examine
in his place, his attorney holder who did not have personal
G
knowledge either of the transaction or of his readiness and
willingness. Readiness and willingness refer to the state of
mind and conduct of the purchaser; as also his capacity and
preparedness on the other. One without the other is not
sufficient. Therefore a third party who has no personal
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536
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[2010] 12 S.C.R.
A knowledge cannot give evidence about such readiness and
willingness, even if he is an attorney holder of the person
concerned.
12.