TaxTMI 
TaxTMI 
2005 (4) TMI 615
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....view to repay the said loan entered into an agreement of sale with the Appellants on or about 30.12.1970. In terms of the said agreement, the plaintiff- Respondents agreed to sell the said property for a consideration of Rs. 45,000/-, out of which a sum of Rs. 3,434/- was paid by way of earnest money and the rest being sum of Rs. 40,076/- was to be disbursed to the creditors. Pursuant to or in furtherance of the said agreement, the plaintiff- Respondents executed a deed of sale in favour of the First Appellant herein. An agreement of sale was also entered into by and between the parties on the same day, in terms whereof the First Appellant agreed to reconvey the said property in favour of the First Respondent on receipt of the said sum of Rs. 45,000/- between a period of seven years and nine years from the said date. The Respondents treating the said transaction to be one of mortgage filed an application purported to be under Sections 4(e) and 7(f) before the competent authority under the Maharashtra Debt Relief Act, inter alia, for a declaration that he is a 'debtor' thereunder and his debt should be discharged. While the said application was pending, a notice was sent by ....
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....ant no.1 be ordered to prepare the sale deed of the suit property and get it registered as per the agreement. The Plaintiff will pay the amount when the order is passed. (b) The sale deed be prepared in the plaintiff's name through the Honourable Court if the defendant no.1 denies the same. (c) According to the mortgage document at sr. no.7 dated 2.11.1971, the suit property be mortgaged Relief and be given in the possession of the Plaintiff. (d) The declaration be passed under the provision of Mumbai Debt Relief Act that the Plaintiff has been debt released and the possession of the debt released suit property be given to the plaintiff. (e) If not done as mentioned above, then the accounting of mortgage be done and whatever amount remains be given to the Plaintiff or else Plaintiff be ordered to pay the amount to defendant no.1 and the reconveyance deed for the mortgage relief be made in the name of the plaintiff by the defendant on denial it should be done through the court and possession of suit property be given to the plaintiff. (f) The Plaintiff be allowed to amend or alter the plaint, if necessary." The Appellants, however, in their written statement denied and dis....
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.... Maharashtra Debt Relief Act. They were, therefore, not liable to pay and yet claim reconveyance. This is not the conduct of a party who is expected to perform his part of the terms and conditions of the contract of repayment of Rs. 45,000/-. The first plaintiff had applied under the aforesaid Act to the Mamlatdar for a declaration that he was a debtor and that the debt had been discharged. He had engaged an Advocate in those proceedings. When the present suit was filed, the plea about the aforesaid proceedings was set up in the forefront and a conditional offer to pay was made subject to the result of those proceedings. In the alternative, the plaintiffs set up a case of a mortgage which case I have found as not proved both on facts as also in law. The plaintiffs averred that the entire mortgage debt had been paid up from out of the income of the property. They offered to pay if any amount was found due on taking accounts. In my judgment, the aforesaid rival pleas set up by the plaintiffs disentitle them to a decree for specific performance. By setting up these rival pleas they have exhibited their unwillingness to make an unconditional offer to pay which was a pre-requisite condi....
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....r had been committed by the Division Bench of the High Court in arriving at the finding that the plaintiff-Respondents pleaded and proved that they had all along been ready and willing to perform their part of contract; without taking into consideration that they initiated proceedings before the competent authority under the Maharashtra Debt Relief Act and raised insufficient plea in that behalf in the notice dated 9.6.1978 and furthermore made clear averments in the plaint that they were debtors and their debt stood discharged. The learned counsel would contend that from a perusal of the plaint, it would appear that the plaintiffs made a conditional offer which does not satisfy the requirement of Section 16(c) of the Specific Relief Act. In support of the said contention, the learned counsel would relied upon Prem Raj vs. D.L.F. Housing & Construction Pvt. Ltd. & Another [(1968) 3 SCR 648], Mahabir Prasad Jain vs. Ganga Singh [(1999) 8 SCC 274], Pushparani S. Sundaram and Others vs. Pauline Manomani James (Deceased) and Others ([(2002) 9 SCC 582], Manjunath Anandappa Urf Shivappa Hanasi vs. Tammanasa and Others [(2003) 10 SCC 390] and Pukhraj D. Jain and Others vs. G. Gopalakrish....
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....day. In view of the express provisions contained in Section 58(c) of the Transfer of Property Act, indisputably the transaction in question was not a mortgage by way of conditional sale. There exists a distinction between mortgage by conditional sale and a sale with a condition of repurchase. In a mortgage, the debt subsists and a right to redeem remains with the debtor; but a sale with a condition of repurchase is not a lending and borrowing arrangement. There does not exist any debt and no right to redeem is reserved thereby. An agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon. Proviso appended to Section 58(c), however, states that if the condition for re-transfer is not embodied in the document which effects or purports to effect a sale, the transaction will not be regarded as a mortgage. [See Pandit Chunchun Jha vs. Sheikh Ebadat Ali and Another (1955) 1 SCR 174, Shri Bhaskar Waman Joshi and Others vs. Shri Narayan Rambilas Agarwal (deceased) and Others (1960) 2 SCR 117], K. Simrathmull vs. Nanjalingiah Gowder, AIR 1963 SC 1182; Mushir Mohammed Khan (supra); and Tamboli Ramanlal Mot....
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....defendant has earned a large amount by giving the mortgage property on rental basis. After the accounting whatever amount remains for paying or taking accordingly the Plaintiff is ready to give and take." It was further averred : "The Plaintiff prays that if it is not done as mentioned above then the amount of Rs. 45,000/- which the Plaintiff is ready to pay to the defendants be given to the defendant and the Plaintiff be given the possession of mortgage relief suit property with necessary documents." Reading the plaint as a whole, it becomes evident that the First Respondent principally raised a contention that the transaction was of mortgage and the sale stood redeemed and he was discharged from the debt. He moreover prayed for a decree for accounting, but contended that only in the event, such prayer is not granted, he was ready to pay the defendants the said sum of Rs. 45,000/- The averments made in the pleadings must be construed reasonably and so read the statement made as regard purported readiness and willingness to pay the stipulated amount to the defendants according to the conditions mentioned in the agreement cannot be read in isolation. In his examination-in-chief ....
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....ue that plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached " The said decision was, thus, rendered on its own fact. Such a conclusion was arrived at having regard to the fact that ample material had been brought on records. There must, thus, be some evidence to show that the plaintiff could arrange for the amount stipulated for payment to the vendor as and when called upon to do so. In this case no such evidence was disclosed. In Nathulal (supra), the contract was required to be performed in certain sequence. Therein it was found that certain arrangements had been made by the Respondent therein for paying the amount due. It was held that so long as Nathulal did not carry out his part of contract, Phoolchand could not be called upon to pay the balan....
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....of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved." In N.P. Thirugnanam (Dead) by Lrs. vs. Dr. R. Jagan Mohan Rao and Others [(1995) 5 SCC 115], this Court held : " 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 pay to the defendant must of necessity be proved to be available..." Yet again in Manjunath Anandappa (supra), this Court held : "27. The decisions of this Court, therefore, leave no manner of doubt that a plaintiff in a suit for....
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....andate of Section 16 of the Specific Relief Act, no decree for specific performance could be passed in his favour. The trial court, therefore, rightly held that the suit filed by Respondent 1 was not maintainable." Furthermore, the First Respondents had raised inconsistent plea in the sense that he had categorically taken a standing that the debt stood discharged. Such a plea was irreconcilable with the plea that he had all along been ready and willing to perform his part of contract. It is in that situation, the decision of this Court in Prem Raj (supra) is attracted wherein it was held that although inconsistent reliefs by a party to the suit is maintainable but it must be shown that each of such pleas is maintainable. The plea of automatic redemption of mortgage and discharge from debt raised on the part of the Respondents herein cannot stand with a plea of readiness and willingness on his part to perform their part of contract. The Division Bench of the High Court, thus, posed a wrong question unto itself. It also failed to take into consideration the statement of the plaintiff in his cross-examination and in particular paragraphs 12 and 19 thereof in their proper perspectiv....
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....other [(2005) 1 SCC 162], this Court observed : "In the case of Mademsetty Satyanarayana v. G. Yelloji Rao, it has been held that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; that in cases where one of the three circumstances mentioned in Section 20(2) is established, no question of discretion arises " [See also M.V. Shankar Bhat and Another vs. Claude Pinto since (Deceased) by Lrs. And Others. (2003) 4 SCC 86]. It is furthermore trite that normally a court of appeal would not interfere with a concurrent finding of fact which is based on appreciation of oral evidence. In Bank of India (supra) whereupon Mr. Sawant placed reliance, the Privy Council held : "Their Lordships are not unmindful of the great weight to be attached to the findings of fact of a Judge of first instance who sees and hears the witnesses and is in a position to assess their credibility from his own observation. For this reason they would be reluctant to differ from the learned Judge in this instance if his conclusion on the issue under consideration had turned on the impression made by Jamse....