TaxTMI 
TaxTMI 
1999 (8) TMI 1000
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.... the sole ground was that appellant did not aver in his plaint that he was ready and willing to perform his part of the contract. Before adverting to this issue, it is necessary to give some bare facts. 3. The appellant-plaintiff filed a suit for specific performance of an agreement to sale dated 11th August, 1960. According to the plea, defendant entered into an agreement to sell the properties for the consideration of Rs. 9500. As per stipulation in the agreement, the plaintiff agreed for an adjustment of the mortgage amount of Rs. 5000 and paid Rs. 500 to the defendant-respondent towards part consideration on the same date when the said agreement was executed. On this payment, only Rs. 4000 remained as the balance amount to be paid and on this payment a sale deed was to be executed. As per plea, the defendant subsequently received a sum of Rs. 3680 on and off from 13.1.1961 to 21.12.1965 from the plaintiff which is endorsed on the agreement to sale on the 21.12.1965. The plaintiff also paid to the defendant Rs. 100 on 21.3.1965 and another Rs. 100 on 4.5.1966. Thus, in all out of the aforesaid balance amount of Rs. 4000, the plaintiff paid Rs. 3880. It is also averred that th....
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....reunder: The defendant has entered into an agreement with the plaintiff on 1.8.1960 ...for a consideration of Rs. 9,500.00...the plaintiff has agreed to that on adjustment of the mortgage amount of Rs. 5000.00 and Rs. 500.00 paid towards advance payment of the sale price, that on payment of the obtaining sum of Rs. 4000.00 and off, he would execute a proper sale deed conveying the suit schedule properties...the defendant has accordingly received a sum of Rs. 3680.00...from the plaintiff and has endorsed the same on the agreement on 21.12.1965. He has further received Rs. 100.00 on 21.3.1966 and Rs. 100.00 on 4.5.1966 and in all Rs. 3880.00. These payments are also duly written up in the account book of the defendant. The plaintiff approached the defendant to receive the balance amount of Rs. 120.00 towards the sale price and execute the proper sale and he agreed. He evaded and hence a legal notice was issued on 23.2.1967 calling upon him to perform his part of the contract...He (plaintiff) has today deposited in Court Rs. 120.00 under R.O. No. being the balance due to the defendant Learned counsel submits this pleading clearly reveals that the plainti....
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....epends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'Readiness and willingness' has to be in spirit and substance and not in letter and form. So to insist for ....
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....c), - (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 12. It is significant that this explanation carves out contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words 'it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. This speaks in negative term what is not essential for plaintiff to do. This is more in support of plaintiff that he need not tender to the defendant or deposit in Court any money but the plaintiff must (as per explanation ii) at least aver his performance or readiness and willingness to perform his part of the contract. This does not mean that unless the court directs the plaintiff cannot tender the amount to the defendant or deposit....