HIS HOLINESS ACHARYA SWAMI GANESH DASSJIversusSH. SITA RAM THAPAR

       HIS HOLINESS ACHARYA SWAMI GANESH DASSJI                                 A
                                     v.
                        SH. SITA RAM THAPAR

                              APRIL 30, 1996

           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                               B

      Specific Relief Act, 1963 :

       S. 16 clause (cf-Agreement for sale of property-Draft sale deed to be
finalised within seven days and registered-Party not ready and willing to pay   C
cash as agreed upon-Time is the essence of the Contract-Since he did not
peifomz his part of the contract within the stipulated time, High Court was
right in refusing to enforce the contract.

     CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 9679 of 1996.                                                               D
      From the Judgment and Order dated 9.2.96 of the Delhi High Court
in R.F.A. (OS) No. 22 of 1980.

      B.K. Mehta, N.N. Keswani and R.N. Keshwani for the Petitioner.
                                                                                E
      R. Venkataramani, S.M. Garg and K.L. Arya for the Respondent.

      The following Order of the Court was delivered :

      This is an illustrious case of dilatory tactics by the petitioner who
entered into contract to purchase the land of 500 sq. yds. in the he";rt of F
the city of Delhi by agreement dated February 27, 1975. The hard fact is
that the defendant was in dire need of money to celebrate his daughter's
marriage on May 16, 1975. The agreement was that the draft sale deed
should be finalised within seven days and sale deed registered. Time is,
therefore, the essence of the contract in this case. The defendant insisted G
upon payment of consideration in cash. The respondent sent the approved
draft sale deed immediately but the petitioner did not give final draft as
contemplated by the agreement since he had to obtain the income tax
clearance certification which he did not obtain. Ext. 5 and 9, the letters
written by the respondent do clearly indicate that respondent was always
willing to have the sale deed executed but the petitioner delayed the H
                                     111
    112                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A execution of the sale deed on one pretext or the other. Petitioner did not
    give any reply to any of the two letters. The learned single Judge as also
    the Division Bench of the High Court have in extenso gone into the
    evidence and found that the petitioner was not ready and willing to perform
    his part of the contract. He did not have necessary cash for payment of the
    amount. The petitioner has produced before the Division Bench, by way
B
    of additional evidence, his account to show that he has got one lakh and
    odd. Even that fell short of the required amount. What is material in this
    case is that the respondent was in dire need of cash to celebrate the
    marriage of his daughter. The petitioner did not offer cash to the respon-
    dent. Under those circumstances, the High Court was clearly right in saying
c   that the petitioner was not ready and willing to perform his part of the
    contract under clause (c) of Section 16 of the Specific Relief Act.

          There is a distinction between readiness to perform the contract and
    willingness to perform the contract. By readiness may be meant the
D   capacity of the plaintiff to perform the contract which includes his financial
    position to pay the purchase price. For determining his willingness to
    perform his part of the contract, the conduct has lo be properly scrutinised.
    There is no documentary proof that the plaintiff had ever funds to pay the
    balance of consideration. Assuming that he had the funds, he has to prove
    his willingness to perform his part of the contract. According to the terms
E   of the agreement, the plaintiff was to supply the draft sale deed to the
    defendant within 7 days of the execution of the agreement, i.e., by
    27.2.1975. The draft sale deed was not returned after being duly approved
    by the petitioner. The factum of readiness and willingness to perform
    plaintiffs part of the contract is to be adjudged with reference to the
F   conduct of the party and the attending circumstances. The court may infer
    from the facts and -circumstances whether the plaintiff was ready and was
    always ready and willing to perform his parf of the contract. The facts of
    this case would amply demonstrate that the petitioner/plaintiff was not
    ready nor capacity lo perform his part of the contract as he had no financial
    capacity to pay the consideration in cash as contracted and intended to
G   bite for the time which disentitlcs him as time is the essence of the contract.



           It is sought lo be contended by Mr. B.K. Mehta, learned senior
     counsel appear.ing for the petitioner that the petitioner has performed the
H    essential tcrn1s of the contract. Essential terms of the contract i.s that he
       HISHOLINESSACHARYASWAMIGANESH DASSJI '" S.R THAPAR              113

has to return the approved draft sale deed which he has already returned A
to him. But amendment sought in the sale deed is not of material par-
ticulars and is not an essential term and, therefore, the High Court was in
error in considering this aspect of the matter. We find no force in the
contention. The essential term of the contract is executing the sale deed
within the stipulated period. He did not perform his part of the contract
                                                                              B
within stipulated time. The High Court was right in refusing to enforce the
contract. It being discretionary remedy, the High Court has exercised
sound judicial discretion to negate the relief of specific performance of the
contra cl.

       The Special Leave Petition is accordingly dismissed.                   c
G.N.                                                    Petition dismissed.