B. VIJAYA BHARATHIversusP. SAVITRI & ORS.

                            [2017] 7 S.C.R. 746



A                         8. VIJAYA BHARATHI
                                     v.
                            P. SAVITRI & ORS.
                       (Civil Appeal No. 512 of 2009)
B                            AUGUST 10, 2017
         [R.F. NARIMAN AND SANJAY KISHAN KAUL, JJ.J
         Specific Relief Act, 1963 - s.16(c) - Bar under - When
  applicable - Agreement to sell between appellant-plaintiff and
C defendant no.1-respondent no.l (owner) - Plaint(ff paid part
  consideration in advance - Balance consideration was to be paid
  later - In terms of the agreement, Def No.l was to execute a General
  Power ofAttorney (GPA) in favour ofplaintiff's husband - However,
  resiledfi·om execution of such GPA - Property sold by Def No. l to
  Def No.2 - Def No.2, in turn, sold the property to Def No.3 - On
D 18.02.1994, plaintiff issued notice to Def. No.l stating that she
  was ready to pay the balance consideration - Def No. l replied
  stating that the agreement was no longer valid - Suit for specific
  performance by plaintiff decreed - High Court in appeal by Def
  No. 3 set aside the decree of trial court stating that the plaintiff was
E not ready and willing throughout as was required u/s. l 6(c) - On
  appeal, held: On 13.03.1992, Def No.l ran away from the
  Registering Authority, thus not wanting to act in furtherance of the
  agreement in executing a GPA in favour of plaintiff's husband -
  Plaint!ff issued notice only on 18.02.1994, after a period of one
  year and eleven months - No prudent person would stay quiet for
F such a long period after such an unequivocal repudiation of the
  agreement if they were really interested in going ahead with the
  sale transaction - Thus, plaintiff cannot be said to be ready and
   willing throughout to perform her part of the agreement - Furthe1;
  though aware of two conveyances of the same property, the plaintiff
G did not ask for their cancellation - Bar of s. l 6(c) squarely attracted
  on the facts of the present case - High Court judgment not inteifered
   with.
           Dismissing the appeal, the Court
         HELD: 1.1 On 13.03.1992 the first defendant ran away from
H   the Registering Authority making it clear that she did not want
                                746
          B. VIJAYA BHARATHl v. P. SAVITRl & ORS.                    747


  to act in furtherance of the Agreement in executing a General A
  Power of Attorney in favour of the plaintiff's husband. The High
  Court was right in stating that no prudent person would stay quiet
  for a period of one year and eleven months after such an
  unequivocal repudiation of the agreement if they were really
  interested in going ahead with the sale transaction. The only B
  inference, therefore, from this is that the plaintiff cannot possibly
. be said to be ready and willing throughout to perform her part of
  the agreement. [Para 12] [751-C-D]                         ·
       1.2 It must also be noted that though aware of two
conveyances of the same property, the plaintiff did not ask for
their cancellation. This again, would stand in the way of a decree C
of specific performance for unless the sale made by Defendant
Na. l to Defendant No.2, and thereafter by Defendant No.2 to
Defendant No.3 are set aside, no decree for specific performance
could possibly follow. The High Court was clearly right in finding
that the bar of Section 16(c) was squarely attracted on the facts of D
the present case, and that therefore, the suit must have been
dismissed at the threshold because of lack of readiness and
willingness, which is a basic condition for the grant of specific
performance. [Para 17] [753-C-E]
       M.M.S. Investments, Madurai and Others v. V.                  E
       Veerappan and Others (2007) 9 SCC 660: [20071 5
       SCR 32 - distinguished.
      Ram Awadh (dead) by Lrs. And Others v. Achhaibar
      Dubey and Another (2000) 2 SCC 428: [2000] 1 SCR
      566 - held applicable.
                                                                     F
      Madamsetty Satyanarayana v. G Ye/logi Rao and two
      others [1965) 2 SCR 221; Jugraj Singh vs. Labh Singh
      (1995) 2 SCC 31: [19941 6 Suppl. SCR 168 - referred
      to.
                       Case Law Reference                            G
 [19651 2 SCR 221              referred to            Para 9
 [20071 5 SCR 32               distinguished          Para 13
 [2000] 1 SCR 566              held applicable       Para 14
 [19941 6 Suppl. SCR 168       referred to            Para 15
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748             SUPREME COURT REPORTS                          (2017] 7 S.C.R.


A             CIVILAPPELLATEJURJSDICTION: Civil Appeal No. 512 of
      2009.
             From the Judgment and Order dated 26. l 0.2005 of the High Court
      of Judicature ofAndhra Pradesh at Hyderabad in City Civil Court Appeal
      No. 204of1999.
B             M. N. Rao, Sr. Adv., Ms. Promila,Adv. for the Appellant.
           K. V. Bharathi Upadhyaya, A. Subba Rao, Annam D. N. Rao, A.
      Venkatesh, Rahul Mishra, Advs. for the Respondents.
              The Judgment of the Court was delivered by
C           R.F. NARIMAN, J. I. The present appeal arises out of a
      judgment dated 26.10.2005, delivered by a single Judge of the Andhra
      Pradesh High Court, by which an appeal filed by the original Defendant
      No.3 was allowed and a suit for specific performance was dismissed.
              2.The brief facts necessary for deciding this case are as follows:
D
              On 21.02.1992, an agreement to sell was entered into between
              one Smt. P. Savitri, Respondent No.I before us, and B. Vijaya
              Bharati, by which the schedule property was agreed to be sold
              for a consideration of Rs. 1,80,000/-. Rs. 1,30,000/-had already
              been paid in advance. The balance consideration of Rs. 50,000/-
 E            was to be paid later as and when the vendee gives notice that she
              is ready to get the property registered, and on intimation from the
              vendor to pay the balance consideration.
            3. Para 3 & 5 of the Agreement provided for necessary permissions
      from the society for transfer of the membership in the name of the
 F    vendee, which was to be obtained by the vendor, and clearances required
      from the Income Tax, Urban Land Ceiling Authorities and other
      Authorities were also to be obtained by the vendor. The said Agreement,
      though it was an agreement to sell only, was registered by way of abundant
      caution.

 G           4. On 13.03.1992, the first defendant appeared before the
      Registering Authority to execute a General Power ofAttorney in favour
      of the husband of the plaintiff in order to obtain the permissions referred
      to above. It has been concurrently found that on this date, she resiled
      from such execution of General Power of Attorney in favour of the

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           B. VIJAYA BHARATHI v. P. SAVITRI & ORS.                             749
                      [R.F. NARIMAN, J.]

 plaintiff's husband and left the Sub-Registrar's office without registering   A
 the General Power of Attorney.
      5. Thereafter, the property was sold by Defendant No. I on
12.05.1992 to Defendant No.2 for a sale consideration of Rs. 1,20,000/
-. Defendant No.2, in tum, sold the property on 05.07.1993 to Defendant
No.3 for a sum of Rs. 1,95,000/-. Both the sales were by registered            B
conveyance.
        6. The plaintiff issued the necessary notice stating that she was
 ready to pay the balance Rs.50,000/- on 18.02.1994. Since the reply to
 the said notice was that the agreement was no longer valid, the plaintiff
·filed a suit for specific performance on 13.04.1994.                          c
      7. The trial Court decreed the said suit for specific performance,
finding that the agreement of21.02.1992 was prior in point of time to
both the registered sale deeds. It found, as a matter of fact, that the
purchasers of the property could not be said to be bonafide purchasers
given the fact that no encumbrance certificate was called for before           D
any such purchase.
        8. Defendant No.3 appealed to the High Court, and the High Court
 set aside the decree of the trial Court stating that the plaintiff was not
 ready and willing through out as was required by Section 16(c) of the
 Specific Relief Act, 1963 and held that the suit was filed long after, in     E
 fact, more than two years after the repudiation on 13.03.1992. A single
 Judge of the High Court held thus:
       "Till Ex.A-2 notice was issued, the Plaintiff has not made any
       endeavour to pay the balance sale consideration, particularly, when
       the 1st Defendant having appeared before the registering authority
                                                                               F
       to execute the GPA in favour of the husband of the Plaintiff on
       13-3-1992 and resiled from execution of such GPA in favour of
       the Plaintiff and left the Sub-Registrar's Office without registering
       the GPA. Any prudent person, who obtained the registered
       agreement of sale by paying 2/3rd of the sale consideration, will
       not keep quiet for a period of nearly one year eleven months after      G
       the vendor repudiated the contract and refused to register the
       GPA to complete the sale transaction, which clearly discloses that
       the total inaction is on the part of the plaintiff. Even after such


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750            SUPREME COURT REPORTS                          [2017] 7 S.C.R.


A            refusal, she has not issued any notice to the I st Defendant to
           . execute the sale deed by offering balance sale consideration and
             expressing her readiness and willingness to complete the
             transaction. Thus, the plaintiff waived the right obtained under
             the agreement of sale and allowed the I st Defendant to execute
             the sale deed in favour of the 2nd Defendant. Only on such
B
             execution of the sale deed in favour of the 2nd Defendant, the
             Plaintiff got issued the legal notice to the Defendants and the
             same was suitably replied by them under Exs. A-3 and A-4. She
             has nowhere stated about her readiness and willingness to perform
             her part of the contract all along from the date of the agreement
c            till her deposition in the Court."
             9. Mr. M.N. Rao, learned Senior Counsel appearing on behalf of
      the appellant, has argued before us that an appeal at the behest of
      Defendant No.3 was allowed, Defendant No.l having gone out of the
      picture altogether. He further argued before us that it is clear that
D     Defendant Nos. 1 and 2 were in collusion with each other because the
      property which had been sold for Rs.1,80,000/- in February, 1992 could
      not possibly be sold in May, 1992 for a lesser amount of Rs.1,20,000/-.
      The fact that no encumbrance certificate was also taken was an important
      pointer to the fact that there was no bona jldes in either Defendant
      Nos. 1 and 2 or Defendant No.3 and that therefore, the High Court was
 E    in error in stating that this vital requirement is of secondary importance
      once the requirement of readiness and willingness is not proved. He
      also argued, citing Madamsetty Satyanarayana vs. G Yellogi Rao
      and two others, AIR 1965 SC 1405 = (1965) (2) SCR 221 in which
      Subba Rao, J. held that the English practice of coming to the Court
 F    without any delay for the relief of specific performance cannot possibly
      apply to India when a period of limitation of three years is granted for
      approaching the Court. That decision, therefore, held that mere delay
      by itself cannot be a bar to specific performance, and this was also
       pressed with some force by Mr. Rao.
 G           10. Mr. A. Subba Rao, on the other hand, supported the judgment
      of the High Court and argued that not only was there delay in the present
      case, but it was coupled with the fact that there was no readiness and
      willingness, as is correctly held by the High Court. Further, he also


 H
           B. VIJAYA BHARATHI v. P. SAVITRI & ORS.                              751
                      [R.F. NARIMAN, J.]

 stated that the present suit in its present form would not be maintainable A
 for the added reason that despite the fact that it came to the plaintiff's
 knowledge that there were two registered conveyances prior to the suit,
 the plaintiff did not amend the suit to ask for a decree of cancellation of
 the said sale deeds.
       11. Having heard the learned counsel appearing for the parties,          B
we are of the view that the High Court judgment is correct and does not
require to be interfered with.
        12. One crucial fact that stares us in the face is that on 13.03.1992
 the first defendant ran away from the Registering Authority making it
 clear that she did not want to act in furtherance of the Agreement in          c
 executing a General Power of Attorney in favour of the plaintiff's
 husband. The High Court was right in stating that no prndent person
 would stay quiet for a period of one year and eleven months after such
 an unequivocal repudiation of the agreement if they were really interested
 in going ahead with the sale transaction. The only inference, therefore,
 from this is that the plaintiff cannot possibly be said to be ready and        D
 willing throughout to perform their part of the agreement.
         13. However, Mr. Rao has pressed into service a judgment of this
                                          0

  Court in M.MS. Investments. Madura i and Others vs. V. Veerappan
  and Others, (2007) 9 SCC 660. While stating the background facts, the
  learned Judges referred to a suit for specific performance which resulted     E
  in a decree passed by the trial Court. After the decree was passed,
  defendants through their Power of Attorney sold a large extent of
. properties, including the subject-matter of the suit, in favour of certain
  other persons, who happened to be the appellants before this Court. Jn
  that case, the High Court held that there would be no bar for the appellant   F
  to raise any issue on merits of the appeal on the facts of that case
  except the defence of readiness and willingness as provided tmder Section
  16(c) of the Specific Relief Act.
     14. This Court went on to distinguish a three-Judge Bench
judgment in Ram Awadh (dead) bv Lrs. And Others vs. Achhaibar                   G
Dubey and Another, (2000) 2 SCC 428 and held as follows:-
        "6. Questioning the plea of readiness and willingness is a concept
        relatable to an agreement. After conveyance the question of


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752             SUPREME COURT REPORTS                            [2017] 7 S.C.R.


A           readiness and willingness is really not relevant. Therefore, the
            provision of the Specific Relief Act, 1963 (in short "the Act") is
            not applicable. It is to be noted that the decision in Ram Awadh
            case relates to a case where there was only an agreement. After
            the conveyance, the only question to be adjudicated is whether
            the purchaser was a bona fide purchaser for value without notice.
B
            In the present case the only issue that can be adjudicated is whether
            the appellants were bona fide purchasers for value without notice.
            The question whether the appellants were ready and willing is
            really of no consequence. In Ram Awadh case the question of
            the effect of a completed sale was not there. Therefore, that
 c          decision cannot have any application so far as the present case is
            concerned. Once there is a conveyance the concept would be
            different and the primary relief could be only cancellation."
            15. Ram Awadh (supra) is a judgment by three Judges of this
      Court overruling Jugraj Singh vs. Labh Singh, (1995) 2 SCC 31, in
 D    which it was held that the plea that the plaintiff is not ready and willing to
      perform the contract is personal only to the seller-defendant. Subsequent
      purchasers cannot take this plea. This was stated to be an erroneous
      view of the law by the three Judge Bench, and the judgment in Jugrag
      Singh was set aside as follows:-

 E           "6. The obligation imposed by Section 16 is upon the Court not to
             grant specific performance to a plaintiff who has not met the
            .requirements of clauses (a),(b) and (c) thereof. A court may not,
           . therefore, grant to a plaintiff who has failed to aver and to prove
             that he has performed or has always been ready and willing to
             perform his part of the agreement the specific performance
 F           whereof he seeks. There is, therefore, no question of the plea
             being available to one defendant and not to another. It is open to
             any defendant to contend and establish that the mandatory
             requirement of Section 16(c) has not been complied with and it is
             for the Court to determine whether it has or has not been complied
 G           with and, depending upon its conclusion, decree or decline to decree
             the suit. We are of the view that the decision in Jugraj Singh Case
             is erroneous."
            16. In the facts of the M.M.S. Investments case, after the Trial
      Court decreed the suit, the property was conveyed to the plaintiff. It is
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              B. VIJAYA BHARATHI v. P. SAVITRI & ORS.                           753
                         [R.F. NARIMAN, J.]

  only thereafter that the appellants in that case purchased the property.      A
· In the facts of the present case, the Defendants 2 and 3 purchased the
  property even before the suit for specific performance was filed. In the
  present case there is no conveyance in favour of the plaintiff after which
  the Defendants 2 and 3 purchased the property. The ratio of M.M.S.
  Investments would therefore be of no assistance to the appellant herein.      B
  On the other hand, the three Judge Bench decision in Ram Awadh would
  apply on all fours.
          17. It must also be noted that though aware of two conveyances
  of the same property, the plaintiff did not ask for their cancellation. This
  again, would stand in the way of a decree of specific performance for C
  unless the sale made by Defendant No. 1 to Defendant No.2, and
  thereafter by Defendant No.2 to Defendant No.3 are set aside, no decree
  for specific performance could possibly follow. While Mr. Rao may be
  right in stating that mere delay without more would not dis-entitle his
  client to the relief of specific performance, for the reasons stated above,
  we find that this is not such a case. The High Court was clearly right in . "D
· finding that the bar of Section 16(c) was squarely attracted on the facts
  of the present case, and that therefore, the fact that Defendant Nos. 2
  and 3 may not be bona fide purchasers would not come in the way of
  stating that such suit must be dismissed at the threshold because. oflack
  of readiness and willingness, which is a basic condition for the grant of
  specific performance.                                                        E
        18. The appeal accordingly, stands dismissed.



 Divya Pandey                                               Appeal dismissed.




          •