Holding

Specific performance of the agreement for Block 67‑A was denied because the plaintiff had not performed her part of the contract and was not continuously ready and willing to do so.

Summary

The case concerned an agreement whereby the plaintiff, Tulsi Devi, agreed to purchase part of a government‑allotted property (Block 67‑B) and, upon repayment of a loan, acquire the remaining part (Block 67‑A). The plaintiff claimed specific performance of the agreement to obtain Block 67‑A, asserting that she had made all payments required under the contract. Evidence showed that the last payment was made on 2 December 1965 and that subsequent payments alleged by the plaintiff were either not made or were disputed. The Supreme Court held that specific performance requires the claimant to be continuously ready and willing to perform, which the plaintiff had not demonstrated. Consequently, the decree granting specific performance for Block 67‑A was set aside, while the transfer of Block 67‑B, already effected, was affirmed. The appeal was allowed.

Issues considered

The plaintiff was ready and willing to perform her obligations under the agreement at all times.
Whether the plaintiff had made all payments required under the agreement to the Government.
Whether specific performance could be granted for Block 67‑A in view of the plaintiff's alleged non‑performance.
Whether equity would deny relief to a party making false averments.

Legislation cited

Code of Civil Procedure, 1908s. Order 33
Specific Relief Act, 1963s. 16(c)

Subjects

specific performancereadiness and willingnessequitable reliefcontractual obligationproperty transferSpecific Relief ActBlock 67-ABlock 67-Bnon‑payment

Judgment

A AJAIB SINGH AND ORS.
v.
SMT. TULSI DEVI

AUGUST 2, 2000

B [V.N. KHARE AND S.N. VARIAVA, JJ.]

Specific Reli~f Act, 1963: Section 16(c).

Specific pe1.formance-Agreement-Obligation under-Readiness and
willingness to pe~form-Agreement provided (i) for purchase of a part of
c property by plaillliff for a certain sum; (ii) ownership of this part to be
tran~ferred to plaintiff on her paying full price to Government-Plaintiff
failed to make the payment as stipulated---He/d, Plaintiff has not proved her
readiness and willingness to perform her part of the obligation under the
agreement-The fact that Government did not cancel the allotment would not
D have any bearing on the factwn of the plaintiff not having performed her
obligation under the agreement-Hence, plaintiff not entitled to a decree for
specific pe~fomwnce.

Equity-Equitable relief-Entitlement-Plaintiff made avemients as are
convenient to her without any regard.for the truth-Held, such a conduct would
E preclude the plaintiff.from getting an equitable relief

Government allotted two plots of land, Nos. 67-A and 67-B, to one
'S' who was a displaced person. The Government offered to 'S' a chance to
purchase the property at a certain price to be paid either in lump sum or
in annual instalments. The Government issued a final demand notice to 'S'
F to make the payment. 'S' did not have the money to make the payment
and, therefore, he entered into an agreement with the respondent, which
stipulated that (i) the respondent would purchase property No. 67-B for a
certain price; (ii) that on the transfer of ownership to 'S' it would be
immediately transferred in favour of the respondent upon payment of full
G price to the Government; (iii) respondent was to pay a certain sum to 'S' to
enable him to pay the first instalment; (iv) the said amount was to be
treated as a loan and payable in 5 yearly instalments and (v) if 'S' failed to
repay the said loan within the stipulated time property No. 67-A would
also be transferred to the respondent.

H Subsequently, 'S' entered into an agreement with the Government
98
AJA!B SINGH v. SMT. TULSI DEVI 99
which provided that the balance due was to be paid in 7 yearly instalments A
and quantified the total amount due. After the death of 'S' the appellants
survived him.

The respondent filed a suit for specific performance of the agreement
and claimed transfer of property No. 67-A in her name on the ground that
'S' did not repay the loan to her. In the suit it was averred that the respond-
B
ent would be entitled to claim the transfer "on payment of the money due to
the Government". In the plaint the respondent-plaintiff stated that she had
paid all the sums due to the Government and that the last payment was
made on 2.12.1965.
c
In the written statement the appellants-defendants stated that after
the death of 'S' the respondent-plaintiff had not made any payments; and
that the wife of 'S' had deposited all the amounts due to the Government.

At the trial it was established that the respondent-plaintiff did not
make all the payments. However, the trial court decreed the suit, which was D
confirmed by the High Court. Hence this appeal.

Allowing the appeal, this Court

HELD : I. If there is non-payment then it could not be said that the E
respondent had been always ready and willing and had always performed
her part of the Agreement. The fact that the Government did not forfeit
would not have any bearing on the factum of the respondent not having
performed her obligations under the Agreement. [105-E]

2. The evidence coupled with the admitted position that the last pay- F
ment was made by the respondent-plaintiff on 2.12.1965 and the evidence
of the respondent's husband clearly established that the respondent-plain-
tiff had not performed her obligation and had not made all the payments as
was required to be done under the Agreement. [106-F; G]
G
3. It is clear that the respondent-plaintiff is making averments as are
convenient to her without any regard for the truth. This conduct would
preclude the respondent from getting any equitable relief. However, in this
case even otherwise it is clear that the respondent had not performed her
part of the Agreement. Thus there never was any readiness and willingness.
She could thus not get specific performance. [112-D; E] H
100 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 4. The respondent-plaintiff had not performed her part of the Agree-
ment. There was thus no readiness and willingness on the part of the re-
spondent-plaintiff. Both the trial court and the High Court have clearly
erred in law and on facts by granting specific performance to the respond-
ent-plaintiff and directing transfer of Block 67-A in her favour. It is also
B inequitable to do so. The portion of the judgment granting specific perform-
ance by transferofBlock 67-A to the respondent-plaintiff requires to be and
is hereby set aside. (113-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11941 of
1995.
c
From the Judgment and Order dated 27.4.93 of the Delhi High Court in
R.F.A. No. 123 of 1981.

Jaspal Singh, Dushyant Dave, M.L. Verma, Pramod Dayal, Piyush Sharma,
Hari, Arun K. Sinha, Ms. A. Khatri and Ashok Singh for the appearing
D parties.

The Judgment of the Court was delivered by

S.N. VARIAVA, J. This Appeal is against the Judgment dated 27th April,
1993 passed by the Division Bench of the High Court of Delhi. At the beginning
E of his submission learned counsel for the Appellants very fairly stated that the
Appellants are not challenging grant of specific performance and transfer of
title to the Respondent in respect of block 67B. This Appeal is therefore
confined to the portion of the impugned Judgment dealing with Block 67 A.

F Briefly stated the facts are as follows :

One Sunder Singh was a displaced person from Pakistan. In 1955 the
Government, under the policy of rehabilitation allotted to him block numbers
67-A and 67-B in Malviya Nagar, New Delhi-110017. In 1957/1958 the
Government offered to Sunder Singh a chance to purchase the properties
G allotted to him on payment of the cost of the properties as fixed by the
Government, with arrears of rent, if any, either in lump sum or by annual
instalments. In respect of plot M-67 A and M-67B, the Government fixed the
purchase price at Rs. 8080. In 1959 the Government gave to Sunder Singh a
final demand notice to make payment under the Scheme. Sunder Singh did not
H have the money to make payment to the Government. He, therefore, entered
AJAIB SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 101
into an Agreement dated 22nd June, 1959 with the Respondent (herein). The A
Agreement recites the fact that Sunder Singh had been allotted the above two
blocks and that he has been given an offer by the Government to purchase these
plots and that he is not in a position to pay its purchase price. The Agreement
recites that the Respondent was eager and willing to cooperate with Sunder
Singh and purchase half of the property, namely, block 67B at a price of Rs.
B
5,000 and arrears of rent due to the Government. The Agreement recites that
the Respondent was to make payment to the Government either in lump sum
or by instalments or in any form acceptable to the Government. The Agreement
recites that a sum of Rs. 3,000 is being paid to Sunder Singh to enable him to
make payment of the first instalment to the Government and that this amount
was to be treated as a loan to Sunder Singh. The relevant clauses of the c
Agreement read as follows :

"1. That the entire cost of the quarter and arrears or rent shall be
deposited or caused to be deposited with the Government of India by
the second party either in lump sum or by instalments or by offering
claims or by one or more of these modes at the discretion of the second D
party or Shri D.N. Kaul husband of the second party. The said payments
shall be made in the name of the first party and all other steps shall be
taken by both the parties to have the ownership rights of the quarter
in question transferred in favour of the first party and registration
effected in his favour. The first party shall refund a sum of Rs.3,000 E
only to the second party or her husband Shri D.N. Kaul, whosoever,
shall demand the same, in five yearly instalments of Rs.600 each year
payable on or before the first day of January each year. The balance
of the purchase price paid as also the arrears of rent paid shall be
deemed and treated as advance payment of purchase price paid by or
on behalf of the second party to the first party for the portion 67B
F
agreed to be sold and transferred to her and shall represent the full and
final consideration therefor.

Xxx xxx xxx

2. That in case the second party choses to associate some claimant in
G
the matter of purchase of the said property she shall be free to do so
at her absolute risk and choice. The first party shall do all that may be
necessary or demanded on him in the matter of effective association
of the said claimant with him and the ultimate transfer of 67B in favour
of the second party jointly with the said claimant or severally. H
102 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A 3. That on the transfer of ownership rights in respect of the said
quarter in favour of the first party he shall immediately transfer or
cause to be transferred in respect of the portion 67B as detailed
hereinbcfore in favour of the second party for the above referred to
consideration of Rupees five thousand and the amount of arrears of
rent to be paid to Government or total amount paid on account of cost
B
of 67 A & B and arrears of rent in full and final settlement, whichever
be less, irrespective of the fact whether the amount is paid in cash or
in verified claims or partly in one or partly in the other form. The said
sum shall be the full and final and adequate consideration for the said
portion of the property.
c
4. That the amount paid or caused to be paid or deposited on account
of purchase price and arrears of rent in respect of the above quarter
67 A&B with the Government of India shall be treated as the first
charge of the second party and her husband the said Shri D.N. Kaul
on the property so Jong as 67B is not effectively transferred to the
D 2nd party and Rs.3,000 repaid to them.

S. That if the first party fails to refund the said sum of Rupees three
thousa1.d to the second party as stipulated and if anyone instalment
due remains unpaid after 30 days R.A.D., notice in that behalf the
entire sum of Rs.3,000 or balance due shall become due at once and
E
on the failure on the part of the first party to repay the same within
15 days next, he shall transfer the other portion of the property
namely, 67 A also to the second party or the said Shri D.N. Kaul or
her nominee for the said consideration of Rs.3,000 and give her/him
or their nominee vacant and peaceful possession thereof and have a
F deed of transfer executed and registration duly effected before the
proper registering authority.

Xxx xxx xxx

8. That in case the first party shall fail to execute his part of the
G agreement and fail to transfer quarter No.67B to the second party and
execute sale deed in her favour and have it duly registered he shall be
liable to pay the second party a sum of rupees five thousand, plus the
aforesaid amount paid or caused to be paid by the second party to the
Government in respect of the said quarter on account of purchase price
and arrears of rent and the monies spent on improvement and additions,
H
AJAIB SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 103
as liquidated damages without prejudice to the second party's right to A
demand the specific performance of this agreement and to have the
specified share i.e. Quarter No. 67B transferred to herself compulsorily
through a Court of Law. The same provisions shall apply if and when
the right to have the quarter No.67 A transferred in favour of second
party or Shri D.N. Kaul arises and the first party fails to do so
B
effectively.

9. That in case the allotment in favour of the first party in respect of
the said quarter is cancelled for any reason whatsoever and the purpose
of this agreement frustrated the first party shall refund to the second
party any amount paid or caused to be paid to the Government in c
respect of the said quarter and cost of improvement and additions made
by the second party within three months of the said fact coming to the
second party's notice together with interest @ 6% per annum."

Thus under this Agreement the Respondent had taken the obligation of making
payment to the Government the cost of the quarters, interest thereon and D
the arrears of rent. Also the Respondent was put in possession of block 67B.
It is clear that the transfer of ownership right could only take place when the
said Sunder Singh became the owner. Under his Agreement with the Government
Sunder Singh could only become owner if the cost of the flat and arrears
of rent were paid in full. Therefore transfer of title could only take place E
if Respondent performed her obligations under the Agreement and paid the
entire cost of flat and all arrears of rent. It is also to be seen that Sunder Singh
was only required to repay a sum of Rs. 3,000. This is because the balance
amount was to be considered for transfer of block 67B in favour of the
Respondent.
F
On 30th December, 1959, the Sunder Singh entered into an Agreement
with the Government. This Agreement provided that the cost of the plot was
Rs. 8080, out of which a sum of Rs.1616 had already been received on 22nd
June, 1959. The Agreement provided that the balance was to be paid in
instalment along with interest. Clause ( 1) of the Agreement provides that the
balance of the purchase price was a sum of Rs. 810817 paisa and that there was
G
to be interest on this amount. The Agreement provides that the same was to
be paid in 7 yearly instalments, the first instalment being due on 22nd June,
1960. The Agreement also provided that if the default was committed in
payment of any instalment then the Government could by notice in writing
forthwith determine the Agreement and resume possession of the premises. H
104 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A Thus the Respondent was to pay a sum of Rs. 810817 paisa with interestthereon
·in 7 yearly instalments to the Government. As the first instalment was to be
paid on 22nd June, 1960 the last instalment would have to be paid on or before
22nd June, 1966.

Sunder Singh died on 20th October, 1964. He was survived by his wife
B
Gurnam Kaur and the present Appellants. After the death of Sunder Singh both
the Blocks were allotted to his wife. It appears that there was some dispute
between Gurnam Kaur and the Respondent. The Respondent filed Suit No. 328
of 1965 for a permanent injunction against Gurnam Kaur restraining her from
disposing of the property. Thereafter on 1st June, 1968, the Respondent filed
c a Suit No. 14 of 1968 for specific performance of the Agreement dated 22nd
June, 1959. This Suit was filed under Order 33 Civil Procedure Code praying
that she be allowed to sue in forma pauparise. In the Suit, after setting out the
above mentioned history, it is averred as follows:-

"Shri Sunder Singh before his death did not pay any instalments on
D
account of the loan advanced to him as mentioned herein before which
under the agreement entitles the plaintiff to claim the transfer of House
No.M/67-A also in her favour on payment of the money due to the
Government (emphasis supplied).

E Thus it is to be seen that even according to the Respondent/Plaintiff she is
entitled to transfer of the block No. 67-A, only on payment of all money dues
to the Government. Thereafter in para 10 of the plaint, it is stated that under
the aforesaid Agreement, the Plaintiff has paid all sums due to the Government.
It is obvious that such an averment is made because the Respondent knows that
F unless and until all sums are paid by her to the Government there could not
be specific performance of the Agreement dated 22nd June, 1959 by transferring
block 67 A in favor of the Respondent. A reading of further averments in the
Plaint make it clear that the Respondent/Plaintiff knows that she has not made
payment of all amounts due to the Government. This is clear from the fact that
the Respondent then goes on to aver that the heirs of Sunder Singh are not
G delivering the challans in respect of the payment due after the last payment
made by her and that she is ready and willing to fulfil the terms of contract in
respect of any residuary obligations. In para 13(a) it is averred that since the
entire sale price of 67-A and 67-B had been paid, the Defendants were
bound to convey the property to the Plaintiff. In para 14, it is then averred as
H follows :
AJAIB SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 105
"14. The cause of action accrued on 2.12.65 when the last payment was A
made and the plaintiff expressed her ~illingness to pay any other sum
due to the Government on behalf of Shri Sunder Singh or the defendant
no.I."

The Plaint was amended on 28th of October, 1971. The averment that the last
payment was made on 2.12.1965 has not been changed. Therefore the B
Respondent/Plaintiff came to Court and maintained that she had not made any
payment after 2nd of December, 1965. It must be mentioned that in the Plaint
no details or particulars are given as to when and on what dates and in what
amounts payments were made by the Respondent/Plaintiff. To be remembered
that specific performance could only be granted provided that the party asking c
for specific performance has always been ready and willing and has performed
their part of the obligation. As seen above under the Agreement the Respondent
was to make payment of the costs of the block and arrears of rent to the
Government. This included not just the sum of Rs.8108 due towards the costs
of the blocks and interest thereon but also the arrears of rent. If the Respondent
D
has committed breaches and did not pay the amounts to the Government then
the Government may or may not have revoked the Agreement dated 30th
December, 1959 and/or forfeited all amounts and recovered possession. If there
is non payment then it could not be said that the Respondent had been always
ready and willing and had always performed her part of the Agreement. The
fact that the Government did not forfeit would not have any bearing on the E
factum of Respondent not having performed her obligations under the
Agreement.

The wife of Sunder Singh and other hem filed a written statement raising
various contentions with which, we are really not concerned. However, in para
F
6 of the written statement they made a categoric statement that after the death
of Sunder Singh the Respondent had not paid any amounts to the Government
but that the wife, Gurnam Kaur, :iad deposited all the amounts with the
Government. Respondent/Plaintiff did not get any Issue raised on this claim of
the Appellants. To be remembered that the Respondent/Plaintiff was herself
claiming that the last payment had been made by her on 2.12.1965. The trial G
court, therefore, did not raise any Issue on the question as to whether or not
the Respondent/Plaintiff had paid all amounts to the Government. However, an
Issue was raised as to whether or not the Agreement could be specifically
performed. In answering this Issue it would have been necessary for the
Court to see not just readiness and willingness, at all stages, but also whether H
!06 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A in fact the Respondent/Plaintiff had performed her part of the Agreement. In
this context the question of payments made to the Government under the
Agreement was a vital aspect. Even though no specific Issue was raised,
evidence has been led on this aspect. The husband of the Respondent was
examined a' PWS. In his evidence he, inter alia, stated as follows:

B "The balance amount in respect of property Nos. 67 A and 67B was to
be deposited on behalf of Sunder Singh with the Deptt. Of Rehabilitation,
Jam Nagar, New Delhi .................... The entire amount in respect of
67 A has been deposited and there remains any balance we were ready
to pay the same and still ready to pay .................... We have receipts of
c the amounts deposited by us."

Thus even in evidence the only statement is that the entire amount in respect
of 67 A had been deposited. Payment had to be made for both 67 A as well as
67B. There is no statement that full payment is made. The fact that the husband
of Respondent deposes that they are ready and willing to pay the balance also
D shows that to their knowledge all amounts due have not been paid by them.
Thus even in evidence there is an admission that the entire amount had not been
deposited by the Respondent with the Government.

On behalf of the Respondent/Plaintiff one S.B. Lal, Upper Division
Clerk of the Government was examined as PW-4. He had been examined to
E show that full payments had been made in respect of blocks 67-A and B. This
witness, amongst other things points out that towards the cost of the flat a sum
ofRs.2221.lO was deposited on 25th March, 1968. In cross examination he is
asked whether he can tell the name of the persons who had deposited the
amounts. He states that the amount was deposited in the name of the same
F person in whose favour the sale was to take place. This evidence coupled with
the admitted position that the last payment was made by the Respondent/
Plaintiff on 2nd December 1965 and the evidence of Respondent's husband (set
out above) clearly established that the Respondent/Plaintiff had not performed
their obligation and had not made all payments as was required to be done
under the Agreement. Under the circumstances it could never have been said
G that they were always ready and willing to perform their part of the Agreement.
This aspect unfortunately was lost sight off by the trial court. In spite of the
clear evidence on record to show that the Respondent/Plain ti ff had not performed
their part of the Agreement, the trial court decreed the suit on 30th of September,
1978. The trial Court granted specific performance not only in respect of Block
H 67B but also for 67 A.
AJAIB SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 107
The heirs of Sunder Singh then filed Regular First Appeal No.123 of A
1981 in the Delhi High Court. This was dismissed by the impugned Judgment
on 27th of April, 1993. The portion of the impugned Judgment dealing with
this aspect reads as follows:-

"The main ground urged by the learned counsel for the appellant Shri
B
R.L. Tandon before us was that on a proper consideration of the
agreement respondent- plaintiff failed to perform her part of the
agreement and was not entitled to invoke the provisions of Specific
Relief Act in her favour."

In rejecting this argument the High Court has held as follows : c
"It is the admitted case that the respondent-plaintiff made payments on

~ various dates and according to Shri Tandon the respondent made
payment of Rs. 8240.04 and Rs. 255.59 till 2nd December, 1965.

) Though according to the respondent she made payments, yet in the suit
the total cost of the property was not mentioned but during the hearing
D

of the appeal counsel for the respondent filed C.M.P. No. 346 of 1993.
Notice of the same was issued to the counsel for the appellant who filed
reply to the said application. This application was filed by the respondent
to clarify the controversy raised in relation to the amount of Rs.
E
2221.10 paid on 25th March, 1968. According to the counsel for the
appellant the said amount was paid by the appellant and according to
the respondent the amount was not paid in 1968 but in 1965 that too
by the respondent. According to the respondent there is some over
writing which shows that the number '5' was written and thereafter '8'
F
.. was over written on the same which makes 1965 to 1968. We think that
at this stage it is not material to go into the controversy as in the written
statement filed by the appellants nowhere stated that they had made the
payment of the said amount. Moreover, if we carefully examine the
agreement to sell which is Ext.P 111 which was drafted by Shri S .
..,,
Watel, Advocate who was also examined as P.W.l. Shri Watel in his G
testimony has stated that the said agreement was drafted at the instance
of Sunder Singh and plaintiff. The said agreement specifically states
that the said Sunder Singh was not in a position to pay the purchase
price of the said quarter or the first instalment thereof and after Sunder
Singh received the final demand notice for payment of the first
H
108 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A instalment to the Government with the warning that in case of non-
payment the quarter would not be transferred to him with the
consequence that it will be auctioned and sold to a third party. Further
on, the agreement says that for the aforesaid reasons Sunder Singh
wanted to associate someone with him for the purchase of the said
quarter in order to be able to continue to occupy the same and own at
B
least a part of the said property. It was further stipulated in the
agreement that respondent was eager and willing to cooperate with
Sunder Singh and purchase half of the premises, namely, M/67-B with
its kitchen, bath, lavatory and a common wall between M/67-A and M/
67-B at a price of Rs.5000 and arrears of rent due in respect of the
c property to be paid to the Government in the account of Sunder Singh
in cash. Sunder Singh further assured that he was entering into the said
agreement for the betterment of his family and out of necessity. In view
of the unequivocal terms of the agreement and in the absence of any
specific plea raised in the written statement by the appellant that they
had paid the aforesaid amount of Rs. 2221.10 it is too late in the day
D
for them to take up such a plea."

At this stage itself it must be noted that the High Court has fallen in error in
observing that in the written statement there is no specific plea regarding
payment made by the heirs of Sunder Singh. As has been pointed out above
E it has been specifically pleaded that after the death of Sunder Singh (i.e. in
1964) the Appellants have been making payment to the Government. Of course
they do not state what amount was paid or that Rs. 2221.10 was paid. But then
Respondent/Plaintiff has also nowhere set out what payments were made by her
and when. To be remembered upto this stage, except for making vague statement
that amounts had been made paid, Respondent/Plaintiff had given no details or
F particulars of payments alleged to have been made by her. Upto this stage the
Respondent/Plaintiff was maintaining that the last payment made by her was
on 2nd December, 1965.

The controversy, referred to by the High Court, arose because in the
course of their arguments and in the written submission Appellants relied on
G
the deposition of PW4 to show that a sum of Rs. 2221.10 had been paid on
25th March 1968 for the cost of the flat. It was submitted that as it was an
admitted position that the last payment made by the Respondent was on 2nd
December 1965, this clearly established that all payments had not been made
by the Respondent/Plaintiff. This had a direct bearing on the question of
H performance by the Respondent/Plaintiff and the question of readiness and
AJAIB SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 109
willingness. If correct this would establish that the Respondent/Plaintiff had A
failed to perform her part of the Agreement and was therefore not entitled to
specific performance. The Respondent/Plaintiff then filed CMP No. 346 of
1993. In this CMP, it was averred as follows :

"4. That it is submitted that the applicant/respondent varily believing
B
that there might have been some typing error in the paper book as
supplied by the appellants, had applied for inspection of the file
that was inspected on 11.2.1993. Inspection of the file showed that
in the original statement of PW-4 recorded as on 6.9.73, there is
evidently an over writing in ink in the figures which has not been
initialled by any authorised person and it is evident that the figure "5" c
in the original copy of the testimony of PW-4 has been changed to
"8".

5. That it is thus evident that there is some possible tampering of the
record. The respondent is not to gain by the said change of date. The D
over writing shows that first the number "5" was written and
thereafter "8" over written on the same.

6. That it is submitted that before coming to any conclusion, either
way, it would be necessary and also in the interests of justice for this
Hon 'ble Court to adjudicate upon the said fact. It is also submitted E
that probability of the date being 25.3.1965 is in consonance with the
stand of the plaintiff in pleadings, and her testimony through PW-5
and also the deposition of the DW-2, all of which lead in the
irresistible conclusion that the said date has to be 25.3.65 instead of
25.3.1968. (emphasis supplied) F

7. That accordingly, the present application is being filed before your
Lordships, so that this fact could be noted by this Hon 'ble Court,
while considering the case and the case be decided on the basis of
the said date in the testimony of PW-4 being read as 25.3.65 instead
of 25.3.68. For this, appropriate directions will have to be issued by G
this Hon' ble Court."

Thus it is to be noted that realising that the evidence of PW-4 read with the
case in the Plaint would establish that the last payment had been made by
Appellants and that this would clearly show that she had not performed her H
110 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A part of the Agreement and thus not entitled to specific performance. The
Respondent/Plaintiff initially tries to make out a case that there was "typing
error in the paper book"; that there was "some over writing in the original
testimony of PW-4" and that there is "some possible tampering of the record".
Most importantly it is averred that probability of the date being 25.3.1965 is
in consonance with the stand of the Plaintiff in pleadings. Thus even at this
B
stage it is being maintained that no payments were made after 2nd of
December, 1965. To be noted that at this stage it is not being claimed that any
payments were made by the Respondent/Plaintiff after 1965. The High Court
has also noted the submissions made before it. They have been set out above
but necessitate repetition:
c
"Though according to the respondent she made payments, yet in the
suit the total cost of the property was not mentioned but during the
hearing of the appeal counsel for the respondent filed C.M.P. No.346
of 1993. Notice of the same was issued to the counsel for the appellant
who filed reply to the said application. This application was filed by
D
the respondent to clarify the controversy raised in relation to the
amount of Rs. 2221.10 paid on 25th March, 1968. According to the
counsel for the appellant the said amount was paid by the appellant
and according to the respondent the amount was not paid in 1968 but
in 1965 that too by the respondent. According to the respondent there
E is some over writing which shows that the number "5" was written
and thereafter "8" was over written on the same which makes 1965
to 1968. We think that at this stage it is not matprjal to go into the
controversy as in the written statement filed by ihe appellants no
where stated that they had made the payment of the said amount."
F
This shows that even during arguments before the High Court it was
maintained that this payment of Rs. 2221.10 was made in 1965 by the
Respondent. Even during the arguments it had been submitted that the date
1968 was a mistake and that originally number "5" was written and thereafter
it was over written with "8". If Respondent had made payment of this sum she
G would have a receipt for it. The Respondent would know with certainty on
what date it was paid. Most importantly at this stage it is not claimed that any
payment was made by the Respondent after 2nd December 1965. It appears
that the Appellants then produced before the High Court receipts to show that
they had made payments towards the cost of the flat on 25th March 1968.
H Unfortunately the High Court has dealt with an important aspect most cursorily
AJAIB SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 111
and wrongly refused to look into it. A

Before this Court Respondent has filed a counter affidavit dated 27th
July, 1995. In para 15 of this counter affidavit, it is averred as follows :

"In fact the following payments were made by the respondent, the
details of which are given below :-
B

PAYMENT MADE TOWARDS HOUSE NO.M-67/A & B
MALVIYA NAGAR, NEW DELHI:

Payments from 1959 to 1965 :
c
!. Rs.1,616.00 On 22.6.1959
2. Rs.1,149.00 On 1960
3. Rs.I, 158.00 On 18.2.1963
4. Rs.600.00 On 14.5.1963
5. Rs,.558.00 On 17.6.1963
D
6. Rs.3, 158.39 On 2.12.1965

Total : Rs.8,239.39

B) PAYMENT MADE TOWARDS RENT WATER E
CHARGES INTEREST, GROUND RENT ETC.

!. Rs.101.90 On 30.2.1959
2. Rs.44.00 On 30.12.1959
3. Rs.9.00 On 30.2.1959
4. Rs.20.00 On 2.12.1965 F
5. Rs.2.00 On 25.3.1968
6. Rs.2,237.10 On 25.3.1968
7. Rs.55.80 On. 25.3.1968
8. Rs.20.00 On 25.3.1968
9.Rs.922.05 On 25.3.1987''
G
Therefore, now for the first time . the Respondent is claiming that some
payments had been made by her in 1968 and 1987. She is now claiming that
the sum of Rs. 2221.10 was paid by her. To be remembered that in the Plaint
there is specific averment that the last payment made by her was on 2nd
December, 1965. Even before the High Court her stand was that the last H
112 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A payment was made on 2nd December, 1965 . Before High Court an application
was filed to the effect that the evidence of PW4 had been tampered with and
that date should not be 25th March, 1968 but should be 25th March, 1965.
The counter affidavit now filed shows that on 25th March, 1965, no payment
has been made by the Respondent. This was to her knowledge. If she had not
made any payment on 25th March 1965 and if she had made payment on 25th
B
March 1968 why claim that there was tampering and/or error and that the
correct date should be 25th March 1965. On solemn affirmation it is stated
before the High Court that the date of payment of Rs. 2221.10, in the
deposition of PW-4, should be 25th of March, 1965. Before the High Court
it is claimed by the Respondent/Plaintiff that payments were made on 25th
c March, 1965. It is thus clear that the Respondent/Plaintiff has not made this
payment on 25th March 1968. This is also clear from the fact that receipts for
this payment are with the Appellants. It is not the Respondent's case that any
receipt was handed over by them to the Appellants. To be remembered that
Sunder Singh had died in 1964. Therefore these could not be part of the three
D receipts alleged to have been handed over to him. It is clear that the
Respondent/Plaintiff is making averments as are convenient to her without any
regard for truth. This conduct would preclude Respondent from getting any
equitable relief. However, in this case even otherwise it is clear that Respondent
had not performed her part of the Agreement. Thus there never was any
readiness and willingness. She could thus not get specific performance.
E
There is another reason why the discretionary relief of specific
performance should not be granted. This Suit is for enforcement of Cl. 5 of
the Agreement. For sake of convenience Cl. 5 is again set out herein. It reads
as follows:
F
"5. That if the first party fails to refund the said sum of Rupees three
thousand to the second party as stipulated and if any one instalment
due remains unpaid after 30 days R.A.D., notice in that behalf the
entire sum of Rs.3,000 or balance due shall become due at once and
on the failure on the part of the first party to repay the same within
G 15 days next, he shall transfer the other portion of the property
namely, 67 A also to the second party or the said Shri D.N. Kaul or
' .
her nominee for the said consideration of Rs.3,000 and give her/him
or their nominee vacant and peaceful possession thereof and have a
deed of transfer executed and registration duly effected before the
H proper registering authority."
AJA!B SINGH v. SMT. TULSI DEVI [S.N. VARIAVA, J.] 113

Thus under this clause the Respondent could have given a R.A.D. notice of A
30 days for non payment of instalment. A notice dt. !st May 1962 was given.
However. it is fairly admitted that the suit is not based on that notice. Had the
suit been based on that notice it would be time barred. The averments in the
suit made it clear that specific performance of transfer of Block 67 A is sought
on basis of non return of Rs. 3000. However, whilst the sum of Rs. 3000 was
B
to be returned the Respondent had to make payment of costs of the Blocks with
interest thereon and arrears of rent. It would hardly be equitable to hold the
Appellants liable for default to repay Rs. 3000 when they have already had
to pay Rs. 2221.10 in order to prevent termination and forfeiture. Neither the
trial court nor the High Court has given the Appellants credit/benefit of this
payment even though the admissions and the evidence showed that this c
payment had been made by them. If out of the sum of Rs. 3000 a major amount
of Rs. 2221.10 has been paid by the Appellant it would be most inequitable
to direct transfer of Block 67 A by granting specific performance.

In our view it is clear that Respondent/Plaintiff had not performed their
part of the Agreement. There was thus no readiness and willingness on the part D
of the Respondent/Plaintiff. Both the trial court and the High Court have
clearly erred in law and on facts by granting specific performance to the
Respondent/Plaintiff and directing transfer of Block 67 A in her favour. It is
also inequitable to do so. In our view, the judgment of the trial court and the
judgment dated 27th April, 1993 of the High Court cannot be sustained to this E
extent. The portions of the Judgments granting specific performance by
transfer of Block 67 A to the Respondent/Plaintiff require to be and are hereby
set aside. However as it is fairly admitted there has been sale of Block 67B
to the Respondent/Plaintiff and to that extent she is entitled to have Block 67B
transferred to her name. The decree of the Courts below is affirmed to this
extent. As set out above the Respondent/Plaintiff has not been honest with the
F
Court. Whilst no punitive action need be taken against her, in our view this
is a fit case where she must be made to bear the cost of the other side not just
before this Court but also before the trial court and the High Court. There will
be an Order accordingly. The Appeal stands disposed off accordingly.
G
V.S.S. Appeal allowed.