- (1.) The revision petition is against a direction given by the trial Court in a suit for specific performance that the plaintiff brings the balance of sale consideration payable under the agreement before a stipulated date. The plaintiff had filed a suit on an averment that he is ready and willing to pay the balance of the amount but the defendant has been delaying the same. Although the defendant appears to have earlier filed a suit for rescission of the agreement and for payment of the advance paid by the plaintiff to him, on his admission later in the suit that he was willing to execute the sale deed in the manner sought for in the suit, the Court has directed the plaintiff to bring the balance of sale consideration before a particular date.
(2.) The counsel appearing on behalf of the plaintiffpetitioner is before this Court to contend that the Court had no power in a suit for specific performance to direct the deposit of the balance of sale consideration before the grant of decree. Learned counsel for the petitioner would refer to two decisions of this Court observing that a direction for deposit shall not be made. In Dharam Pal Singh Vs. Ajit Singh and others decided on 22.12.2009 the Court found that it would suffice to observe that the if the suit was decreed, the plaintiff could be directed to deposit the balance. The Court also added that finding on readiness of the plaintiff to perform his part of contract is a question of fact to be proved by leading the required evidence and need not be tested before hand. The judgment does not reveal about the particular stand of the defendant in that case and therefore it cannot provide any illustration of a situation in this case where the defendant joins issues with a prayer for specific performance in suit and expresses himself willing to execute a sale deed. If the plaintiff was suing for specific performance, he was doing so on an express requirement mandated under Section 16 (c) of the Specific Relief Act that he is ready and willing to perform his part of contract. It is not an empty formality, although the explanation under Section 16 (c) itself makes it evident that it shall not be at all times necessary to direct a deposit of the amount. S. 16 Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person. a) xx xx xx b) xx xx xx (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. Explanation for the purpose of clause (c) Explanation (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;.(underlining mine) (ii) xx xx xx The explanation makes it clear that in a case where the defendant expresses himself ready to execute the sale deed, there is nothing that would hamper discretion of the Court to direct such a deposit. Otherwise the later part of the explanation would become meaningless.
(3.) The other decision relied on by the counsel is a judgment in Kushal Kumar Vs. Samim in CR No.1323 of 2011 decided on 15.3.2012. That was a case where the plaintiff was pleading that the defendant was required to perform certain obligations. There were encumbrances which had to be cleared and an offer for execution of sale could not be completed without allowing for this obligation to be discharged. The Court in such a situation relied on the decision in Dharam Pal Singh Vs. Ajit Singh and held that there was no need to direct a deposit of the amount of sale consideration. In this case, the plaintiff who files a suit for specific performance pleads inability to have the sale deed on a plea that the defendant's brother has filed a suit for a restraint against alienation and that there were partition proceedings pending. In the order passed on 17.10.2010 by the Additional District Judge, Ludhiana, the Court has observed, while disposing of an interim relief for injunction sought by the defendant's brother, that any sale by the defendant would be subject to the partition proceedings. As such, there is no impediment for execution of the sale deed itself.;