MAN KAUR (DEAD) BY LRS.versusHARTAR SINGH SANGHA

                 [2010] 12 S.C.R. 515


               MAN KAUR (DEAD) BY LRS.
                              v.
                  HARTAR SINGH SANGHA
            (Civil Appeal Nos. 147-148 of 2001)

                    OCTOBER 05, 2010

      [R.V. RAVEENDRAN AND AFTAB ALAM, JJ.)

    Specific Relief Act, 1963:

      s. 16(c) - Compliance of - Agreement of sale of property c
between parties through their attorney holders - Payment bf
earnest money by plaintiff-vendee - Plaintiff alleging failure
of defendant-vendor to execute sale deed though he was
ready and willing to perform his part of contract - Suit for
specific performance of agreement of sale by plaintiff against D
defendant, through another attorney holder - Suit decreed by
trial court-: Upheld by High Court - On appeal, held; Plaintiff
neither signed agreement of sale nor plaint nor appeared and
gave evidence, about his readiness and willingness -
Plaintiff's attorney holder who executed agreement of sale not E
examined and one who signed the plaint had no personal
knowledge of the transaction - No evidence of readiness and
willingness of plaintiff to perform his part of the obligations in
terms of the contract, thus, non-compliance of s. 16(c) -
Agreement did not bar specific performance - Plaintiff could
seek the relief subject to proving breach by defendant and F
plaintiff's readiness and willingness to perform the contract -
Material on record shows that plaintiff committed breach -
Courts below ignored the relevant evidence and drew adverse
inference from the evidence - Thus, earnest money is
forfeited and plaintiff not entitled for the refund - Decree for G
specific performance set aside.

    s. 16(c) - Specific performance of contract- When barred
- Explained.
                             515                                H
    516      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A         Specific performance of contract - Readiness and
    willingness to perform - Proving of, by plaintiff - Examination
    of persons-attorney holders having personal knowledge about
    the transaction - Discussed - Evidence.

       The appellant-defendant was the owner of certain
8
  property. The respondent-plaintiff was a non-residential
  indian. The defendant represented by her husband and
  attorney-holder 'KS'(DW 1) entered into an agreement to
  sell the said property to the plaintiff represented by
  attorney-holder 'PS'. The agreement of sale was signed
C by the attorney holders of the parties. The plaintiff paid
  Rs. 10,000/- as earnest money. The plaintiff alleged that
  in aspite of notice, the defendant did not execute sale
  deed though the plaintiff was ready and willing to perform
  his part of the contract and get the sale deed registered •
D by paying the balance consideration. The plaintiff, then
  represented by his attorney-holder 'JS'(PW 1) filed a suit
  for specific performance of the agreement of sale against
  the defendant. The property dealer 'BS' was examined on
  PW 2. The trial court decreed the suit. The High Court
E upheld the order passed by the trial court. Therefore, the
  appellant filed the instant appeals.

          Allowing the appeals, the Court
       HELD: 1.1 Section 16(c) of the Specific Relief Act
F 1963 bars the specific performance of a contract in favour
  of a plaintiff 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 the terms the
G performance of which has been prevented or waived by
  the defendant). Explanation (ii) to Section 16 provides that
  for purposes of clause (c) of Section 16, the plaintiff must
  aver performance of, or readiness and willingness to

H
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH               517
                  SANGHA
 perform, the contract according to its true construction.     A
 Thus, in a suit for specific performance, the plaintiff
 should not only plead and prove the terms of the
 agreement, but should also plead and prove his
 readiness and willingness to perform his obligations
 under the contract in terms of the contract. [Para 9] (532-   B
 8-E]
       1.2 To succeed in a suit for specific performance, the
. plaintiff has to prove: that a valid agreement of sale was
  entered by the defendant in his favour and the terms
  thereof; that the defendant committed breach. of the C
· contract; and that he was always ready and willing to
  perform his part of the obligations in terms ,of the
  contract. If a plaintiff has to prove that he was always
  ready and willing to perform his part of the contract, that
  is, to perform his obligations in terms of the contract, D
  necessarily he should step into the witness box and give
  evidence that he has all·along been ready and willing to.
  perform his part of the contract and subject himself to
  cross examination· on that issue. A plaintiff cannot
  examine in his place, his attorney holder who did not E
  have personal knowledge either of the transaction or of
  his readiness and willingness. Readiness and willingness
  refer to the state of mind and conduct of the purchaser,
. as also his capacity and preparedness on the other. One
  without the other is not sufficient. Therefore, a third party F
  who has no personal knowledge cannot give evidence
  about such readiness and willingness, even if he is an
  attorney holder of the person concerned. [Para 11] [535-
  E-H] [536-A]
     1.3 The position as to who should give evidence in .G
regard to matters involving personal knowledge was as
follows:

     (a) An attorney holder who has signed the plaint and
     instituted the suit, but has no personal knowledge of     H
     the transaction can only give formal evidence about
    518      SUPREME COURT REPORTS             [2010] 12 S.C.R.

A         the validity of the power of attorney and the filing of
          the suit.

          (b) If the attorney holde'r has done any act or handled
          any transactions, in pursuance of the power of
          attorney granted by the principal, he may be
B
          examined as a witness to prove those acts or
          transactions. If the attorney holder alone has
          personal knowledge of such acts and transactions
          and not the principal, the attorney holder shall be
          examined, if those acts and transactions have to be
c         proved.

          (c) The attorney holder cannot depose or give
          evidence in place of his principal for the acts done
          by the principal or transactions or dealings of the
D         principal, of which principal alone has personal
          knowledge.

          (d) Where the principal at no point of time had
          personally handled or dealt with or participated in the
          transaction and has no personal knowledge of the
E
          transaction, and where the entire transaction has
          been handled by an attorney holder, necessarily the
          attorney holder alone can give evidence in regard to
          the transaction. This frequently happens in case of
          principals carrying on business through authorized
F         managers/attorney holders or persons residing
          abroad managing their affairs through their attorney
          holders.

          (e) Where the entire transaction has been conducted
G         through a particular attorney holder, the principal
          has to examine that attorney holder to prove the
          transaction, and not a different or subsequent
          attorney holder.

          (f) Where different attorney holders had dealt with the
H
          matter at different stages of the transaction, if
  MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH              519
                 SANGHA
    evidence has to be led as to what transpired at those     A
    different stages, all the attorney holders will have to
    be examined.
    (g) Where the law requires or contemplated the
    plaintiff or other party to a proceeding, to establish
    or prove something with reference to his 'state of        8
    mind' or 'conduct', normally the person concerned
    alone has to give evidence and not an attorney
    holder. There is however a recognized exception to
    this requirement. Where all the affairs of a party are
    completely managed, transacted and looked after by        C
    an attorney (who may happen to be a close family
    member), it may be possible to accept the evidence
    of such attorney even with reference to bona fides
    or 'readiness and willingness'. [Para 12) [536-8-H)
    [537-A-D]                           I                     0
    . 1.4 In the instant case, the matter was handled by
different persons at different points of time on behalf of
the plaintiff-the negotiations and execution of agreement
on 20.10.1978 were handled by the plaintiff's attorney
holder 'PS'; on 7.6.1979, the plaintiff was personally        E
present and dealt with the matter himself; and from
1.3.1980, the matter was dealt with by the plaintiff's new
attorney holder-PW 1. The plaintiff neither signed the
agreement of sale nor signed the plaint nor gave
evidence, in particular, about his readiness and              F
willingness. The agreement of sale was executed by the
plaintiff's attorney holder 'PS' who was not examined.
The plaint was signed by the plaintiff's attorney holder-
PW 1 in whose favour the plaintiff had executed the
power of attorney on 1.3.1980 and who had no personal         G
knowledge of the transaction. PW 1 was not aware of the
execution of the agreement, nor what happened till the
last date fixed for performance had elapsed, nor what
transpired on 7.6.1979. PW1 clearly s~ted in his evidence
that he was not aware of anything that transpired prior       H·
    520    SUPREME COURT REPORTS             [2010) 12 S.C.R.


A to 1.3.1980 when the power of attorney was executed in
  his favour. Nothing of relevance transpired after 1.3.1980
  except the issue of the suit notice dated 5.3.1980. He did
  not know whether the defendant committed breach nor
  did he know about the readiness and willingness of the
B plaintiff. Therefore, the evidence of PW 1 is of no
  assistance in a suit for specific performance except to
  prove that he was authorized by the plaintiff to file a suit
  for specific performance. [Para 13] [537-G-H] [538-A-D and
  F-G]
c      1.5 The plaintiff, who ought to have given evidence,
   never appeared and gave evidence. As his attorney
  holder PW 1 had no knowledge of the transaction, the
   plaintiff solely relied on the evidence of the property
   dealer-PW 2 to prove the execution of the agreement, the
D terms of the agreement, his readiness and willingness to
   perform the agreement and the alleged breach by the
   defendant. But PW 2 cannot become a substitute for the
  ·plaintiff to give evidence about the finances or intentions
   or the readiness and willingness of the plaintiff which
E were within the personal knowledge of the plaintiff. PW
   2 was a property dealer engaged by the plaintiff and
   supporting the plaintiff. He was not an attorney holder
   acting on behalf of the plaintiff. Therefore, neither the
   evidence of PW 1 nor the evidence of PW2 could be relied
F upon to prove that plaintiff was always ready and willing
   to perform his obligations, in terms of the contract.
   Therefore, though there were necessary averments in the
   plaint about the readiness and willingness of the plaintiff,
   and though PW1 and PW2 gave evidence about his
G readiness and willingness, the suit fails for failure to
   comply with section 16(c) of the Specific Relief Act, as
   there was no acceptable or valid evidence of such
   readiness and willingness of the plaintiff to perform his
   part of the obligations in terms of the contract. [Para 14]
H [538-G-H] [539-A-D]
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH               521
                  SANGHA
    N.P. Thirugnanam v. R. Jagan Mohan Rao AIR 1996 SC          A
116; Pushparani S.Sundaram v. Pauline Manomani James
2002 (9) SCC 582; Manjunath Anandappa v. Tammanasa
2003 (10) sec 390, relied on.

     P.D'Souza v. Shondrilo Naidu 2004 (6) SCC 649;             B
Aniglase Yohannan v. Ramlatha 2005 (7) SCC 534 -
distinguished.

    Vidhyadhar v. Manikrao 1999 (3) SCC 573; Janki
Vashdeo Bhojwani vs. lndusind Bank Ltd. 2005 (2) SCC 217;
Shankar Finance & Investments vs. State of AP (2008) 8          C
sec 536 - referred to. . .
     2.1 For a plaintiff to seek specific performance of a
contract of sale relating to immovable property, and for
a court to grant such specific performance, it is not           o
necessary that the contract should contain a specific
provision that in tJ'le event of breach, the aggrieved party
will be entitled to specific performance. The Act makes it
clear that if the ·legal requirements for seeking specific
enforcement of a contract are made out, specific                E
performance could be enforced as provided in the Act
even in the absence of a specific term for specific
performance in the contract. It is evident from section 23
of the Act that even where the agreement of sale contains
only a provision for payment of damage~ ,0r liquidated
                                                                F
damages in case of breach and does n·ot contain any
provision for specific performance, the party in breach
cannot contend that in view of specific provision for
payment of damages, and in the absence of a provision
for specific performance, the court cannot grant specific
performance. But where the provision naming an amount           G
to be paid in case of breach is intended to give to the party
in default an option to pay money in lieu of specific
performance, then specific performance may not be
permissible. [Para 18] [541-F-H] [542-A-B]
                                                                H
    522    SUPREME COURT REPORTS           [2010] 12 S.C.R.

A      2.2 In the instant case, the agreement does not
  specifically provide for specific performance nor does it
  bar specific performance. It provides for payment of
  damages in the event of breach by either party. The
  provision for damages in the agreement is not intended
B to provide the vendor an option of paying money in lieu
  of specific performance. Therefore, the plaintiff would be
  entitled to seek specific performance (even in the
  absence of a specific provision therefor) subject to his
  proving breach by the defendant and that he was ready
c and willing to perform his obligation under the contract,
  in terms of the contract. [Para 19] [543-F-H]

       3.1 The time fixed for the performance in the
  agreement was 20.12.1978. But time was not considered
  by the parties, to be essence of the contract. The
D correspondence clearly showed that defendant's
  attorney holder OW 1 was willing to perform the contract
  on 7.6.1979, nearly six months after the last date
  stipulated in the agreement. [Para 20] [544-A-B]

E      3.2 PW 2 attempted to give some evidence about the
  readiness and willingness of the plaintiff. But the
  evidence of PW 2 cannot be a substitute for the evidence
  of the plaintiff regarding the plaintiff's readiness and
  willingness. The correspondence between PW 2 and OW
F 1 demonstrates that the version and stand of OW 1
  appears to be more probable and correct. The
  correspondence clearly established that the plaintiff was
  not ready and willing to get the sale deed executed within
  the time prescribed or even as on 7.6.1979 which was the
G last day of the extended period. The evidence also
  demonstrates that the plaintiff was not in a position to
  perform the contract as PW 2 admitted in his evidence
  that the purchaser had to purchase the stamp paper and
  that on 7.6.1979, the stamp paper was not purchased;

H
  MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH               523
                 SANGHA
and that the plaintiff had in his bank account Rs.1, 14,000/   A
- but that amount was not drawn from the bank. PW 2 and
PW 1 also referred to the assets owned by the plaintiff.
Such evidence is of no assistance in the absence of
evidence as to availability of money for purchase and
about the readiness and willingness of plaintiff to perform    B
the contract. There is also somethipg doubtful about the
version given by PW 2 in his evidence as to what
happened at the Sub-Registrar's office on 7.6.1979. [Paras
21 and 22] [545-B-C and G-H] [546-A-C]

     3.3 The submission that in terms of the agreement, C
the defendant had to furnish an NOC from Chandigarh
Administration, as also ULC clearance and income tax
clearance required for the sale and there was nothing to
show that she had obtained them and, therefore, the
question of the plaintiff proving his readiness and D
willingness to perform his obligations did not arise,
cannot be accepted. A person 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 the terms E
the performance of which has been prevented or waived
by the defendant) is barred from claiming specific
performance. Therefore, even assuming that the
defendant had committed breach, if the plaintiff fails to
aver in the plaint or prove that he was always ready and F
willing to perform the essential terms of contract which
are required to be performed by him (other than the terms
the performance of which has been prevented or waived
by the plaintiff), there is a bar to specific performance in
his favour. Therefore, the assumption of the plaintiff that G
readiness and willingness on the part of the plaintiff is
something which need not be proved, if the plaintiff is
able to establish that the defendant refused to execute
the sale deed and thereby committed breach, is not
correct. [Para 23] [548-D-E and F-H] ,[549-A-B]              H
                                     /
    524      SUPREME COURT REPORTS            [2010] 12 S.C.R.


A      3.4 The evidence clearly showed that the defendant's
  attorney holder OW 1 had entrusted the work of securing
  the clearances to the property dealer PW 2, who was
  acting on behalf of the plaintiff. This was within the
  knowledge of 'PS', attorney holder of the plaintiff at the
B relevant point of time. PW 2 also admitted in his evidence
  that he was to get the NOC and ULC clearance. PW 2 sent
  a telegram to OW 1 at the instance of the plaintiff, asking
  him to come to place 'C' on 7.6.1979 and execute the sale
  deed. Therefore, PW 2 had either secured the certificates
C necessary for the sale or had deliberately called OW 1 to
  come over to place 'C' even though the plaintiff was not
  ready and the clearances had not been secured, to create
  evidence that plaintiff was ready. In neither case, the
  defendant could be faulted. [Para 24] [549-0-G]

D      3.5 None of the courts below referred to the relevant
  evidence or the significance of the plaintiff not tendering
  evidence. They merely went by the evidence of PW 2 to
  hold that the plaintiff was ready and willing and the
  defendant committed a breach. The material on record
E shows that the respondent-plaintiff committed breach.
  The earnest money stands forfeited and the respondent
  is not entitled for refund of the earnest money. The
  judgments of the courts below are set aside and the suit
  for specific performance is dismissed. [Paras 25 and 26]
F [549-H] [550-A-B]

                        Case Law Reference:
          AIR 1996 SC 116      Relied on.           Para 9
          2002 (9) sec 582     Relied on.           Para 9
G
          2003 (1 O) sec 390   Relied on.           Para 9
          1999 (3) sec 573     Referred to.         Para 9
          2005 (2) sec 211     Referred to.         Para 10
H
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                   525
        SANGHA [R.V. RAVEENDRAN, J.]
    (2008) 8 SCC 536            Referred to.          Para 10        A
    2004 (6) sec 649            Distinguished.        Para 15

    2005 (7) sec 534 .          Distinguished.        Para 15

    CIVIL APPELLTAE JURISDICTION: Civil Appeal No. 147-              B
148 of 2001.

    ·From the Judgment & Order dated 26.10.1999 of the High
Court of Punjab and Haryana at Chandigarh in RSA No. 3447
of 1997 and Order dated 17.1.2000 in Review Applicatin No.
3-C of 2000.                                                         C

    Rakesh Dwivedi, Vijay Hansaria, P.I. Jose, Anupam
Mishra, Vivek Kandari, Mukti and Sneha Kalita for the
Appellant.
                                                                     D
    Amit Rawal, Amit Kumar Sharma, Nitin Setia and E.C.
Agrawala for the Respondents.

    The Judgment of the Court was delivered by ·

     R. V. RAVEENDRAN J. 1. The appellant (Man Kaur, who             E
died during the pendency of this appeal and is represented by
her Legal Representatives) was the defendant in a suit for
specific performance of an agreement of sale, filed by the
respondent. For convenience the appellant and respondentwill
also be referred by their ranks in the suit as 'defendant' and       F
'plaintiff respectively.

     2. The appellant Man Kaur was the owner of the suit
property, a plot admeasuring 1000 sq.yards with the building
thereon, identified as 'Annexe No 508' situated in Sector-188,
Chandigarh. The respondent-plaintiff was, at all the relevant        G
points of time, a Non-Resident Indian living in United Kingdom.
An agreement of sale dated 20.10.1978 was entered between
defendant represented by her husband and attorney holder
Kartar Singh, as vendor, and plaintiff represented by his attorney
                                                                     H
    526       SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A   holder Paramjit Singh, as purchaser. The material terms of the
    said agreement were :

          (i) The defendant shall sell the suit property to plaintiff for
          a consideration of Rs.1,50,000/-.
B         (ii) As the premises was tenanted the defendant was liable
          to deliver vacant possession of only a small portion which
          was in her occupation. If the vendor was able to get the
          tenant vacated and deliver vacant possession of the entire
          premises, then the sale price shall be Rs.1,60,000/-.
c
          (iii) A sum of Rs.10,000/- was paid in cash as earnest
          money by the attorney holder of the purchaser to the
          attorney holder of the vendor.

          (iv) The sale had to be completed by 20.12.1978 and the
D         balance sale price shall be paid at the time of registration
          of the sale deed.

          (v) The vendor had to deliver at the time of registration of
          the sale deed, her title deed, as also the NOC from the
E         Estate Office, Chandigarh, permission for the sale under
          Urban Land (Ceiling and Regulation) Act 1976, and
          Clearance Certificate under section 230A of the Income
          Tax Act, 1961 and other relevant documents if any.

          (vi) If the vendor committed default, he had to pay double
F
          the amount of earnest money to the purchaser and if the
          purchaser committed any default, the sum of Rs.10,000/-
          paid as earnest money would stand forfeited; and

          (vii) The bargain was entered through the property dealer
G         - M/s R. P. Sethi & Co. to whom both the parties should
          pay 2% commission on the total price; and in the event of
          default, the defaulting party shall pay 4% commission.

  The agreement of sale was signed by the attorney holder of the
H vendor and attorney holder of the purchaser and witnessed by
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                    527
        SANGHA [R.V. RAVEENDRAN, J.]
Hari Singh (Property Dealer) and Balraj Singh (property dealer        A
carrying on business under the name and style of Mis R. P.
Sethi & Co.). The agreement also contained an endorsement
by Kartar Singh acknowledging the receipt of Rs.10000/- as
earnest money in addition to another sum of Rs.1500/-.
                                                                      B
      3. On 25.4.1980 the respondent (represented by his
attorney holder Jagtar Singh Sangha under power of attorney
dated 1.3.1980), filed a suit for specific performance of the said
agreement of sale, against the appellant. The plaint after
referring to the terms of the agreement of sale, averred that the     C
bargain was struck through property dealer Balraj Singh of M/
s. R.P. Sethi & Co; that the time for performance was extended
from time to time till 7.6.1979; that the defendant's attorney
holder and plaintiff reached Chandigarh on 7.6.1979; that
though defendant's attorney holder stated that he had come to
Chandigarh to execute the sale deed, he did not go over to the        D
Sub-Registrar's office nor executed the sale deed; that plaintiff
remained present in the Sub~Registrar's office at Chandigarh,
and recorded his presence on 7 .6.1979 by presenting an
application and getting an acknowledgement from the Sub-
Registrar; that after 7.6.1979, neither the defendant nor her         E
attorney holder Kartar Singh came to Chandigarh; that they did
not also contact the plaintiff or the property dealer Balraj Singh;
and that the repeated attempts of the property dealer Balraj
Singh to contact defendant were futile. The plaint also averred
that the plaintiff was always ready and willing to perform his part   F
of the contract and get the sale deed registered by paying the
balance consideration; and that in spite of a notice dated
5.3.1980 calling upon the defendant to complete the sale, the
defendant had failed to execute the sale deed. The plaintiff
therefore prayed for specific performance of the agreement of         G
sale dated 20.10.1978 or in the alternative, if he was found not
entitled to specific performance, then for a decree of recovery
of Rs.21,500/- (that is Rs.11500/- paid to defendant's attorney
holder and Rs.10000/- as liquidated damages) with costs.
                                                                      H
    528      SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A         4. The defendant resisted the suit. The defendant alleged
    that as she and her husband were residents of Rourkela, it was
    agreed that the property dealer Balraj Singh, who was acting
    on behalf of the purchaser-plaintiff would be responsible for
    securing the rnquired clearances for the sale; that a sum of
B   Rs.1500/- was paid by plaintiffs attorney holder to Balraj Singh
    (shown as advance payment to vendor in the receipt portion of
    the agreement of sale) to secure the said NOC/permission/
    clearance; that defendant signed and delivered to Balraj Singh
    the necessary papers for getting the clearances/certificates; that
c   time stipulated for sale (20.12.1978) was the essence of the
    contract; that Bal raj Singh sent a telegram dated 2 .6.1979
    requiring defendant's husband Kartar Singh to reach
    Chandigarh on 7 .6.1979 for registration, assuring that
    registration of sale deed would definitely take place on that day
    and no further extension would be sought; that in response to
D   it, the defendant's husband, who was intent to maintain cordial
    relationship, in spite of the expiry of the last date fixed for sale,
    went to Chandigarh and met the plaintiff and Balraj Singh, in
    the office of Balraj Singh; ·that the plaintiff informed him that he
    (plaintiff) could not arrange the entire funds for making full
E   payment and therefore could not proceed with the sale; that
    defendant's husband informed the plaintiff and Balraj Singh that
    he had come all the way from Rourkela to get the sale deed
    registered, and it was evident that the plaintiff did not have the
    money and not interested in purchasing of the property and that
F   therefore the agreement stood cancelled, and he would not
    execute the sale deed; and that the defendant's husband
    thereafter left for Rourkela and also wrote a letter to Balraj
    Singh confirming the termination of the agreement in view of
    the plaintiffs conduct on 7 .6.1979. The defendant contended
G    that as plaintiff was not ready and willing to perform the contract
     by paying thE~ balance of the sale price and get the sale
     completed, he was not entitled to specific performance; and that
     in view of the breach committed by the plaintiff, the earnest
     money amount paid by him stood forfeited. The defendant also
H    contended that the suit was not maintainable as it was not filed
  MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                      529
       SANGHA [RV RAVEENDRAN, J.]

by a duly authorized person. Subsequently the defendant               A
amended her written statement to contend that plaintiff was a
Non-Resident Indian and he had not obtained the permission
of the Reserve Bank of India under the Foreign Exchange
Regulation Act, 1973, and therefore he was not entitled to
purchase any immovable property in India.                             B

     5. On the said pleadings, the trial court framed the following
issues:

      (1)    Whether the suit has been filed by a duly authorized
             person?                                                  C

      (2)    Whether the suit is not maintainable in the present
             form?

      (3)    Whether the suit for specific performance is not         D
             maintainable?

      (4)•   Whether the suit is hit by laches and delay? If so,
             its effect?

      (5)    Whether the agreement dated 20.10.1978 has               E
             been rescinded and the suit is thus not
             maintainable?

      (6)    Whether the plaintiff is estopped by his own act and
             conduct from filing the present suit?
                                                                      F
      (7)    Whether the time was the essence of the contract?

      (8)    Whether the plaintiff was and is ready and willing
             to perform his part of the agreement? If not its
             effect?
                                                                      G
      (9)    Whether the plaintiff is entitled to the specific
             performance and in alternative damages as
             claimed?

                                                                      H
    530      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A         (9A) Whether the suit is barred in view of preliminary
               objection No.7 in the written statement?

          (10) Relief.

          6. The parties went to trial on the said issues. On behalf
8   of the plaintiff, his attorney holder Jagtar Singh Sangha was
    examined as PW1. and the property dealer Balraj Singh was
    examined as PW2. On behalf of the defendant. her husband
    and attorney holder Lt. Col. Kartar Singh was examined as DW-
    1. After appreciating the evidence, the trial court by judgment
C   dated 15.3.1983, decreed the suit. It held that as the plaintiff
    had executed a power of attorney dated 1.3.1980 in favour of
    his brother Jagtar Singh Sangha and as Jagtar Singh Sangha
    has asserted in his evidence that he was the attorney holder
    of the plaintiff, and as Balraj Singh had given evidence that
D   plaintiff executed the power of attorney in favour of Jagtar Singh
    Sangha in his presence, the suit was filed by a duly authorized
    person and was maintainable. The trial court held that the time
    was not of essence of the contract; that defendant had failed
    to prove that the agreement dated 20.10.1978 was rescinded;
E   that the plaintiff had proved that he was ready and willing to
    perform his part of the contract; that the suit was not barred by
    time; that the Reserve Bank's permission was not necessary
    for obtaining a decree for specific performance, but was
    required only for execution of the sale deed in pursuance of a
F   decree for specific performance; and therefore plaintiff was
    entitled to specific performance.

        7. The appeal filed by the defendant was dismissed by the
  District Judge, Chandigarh, by judgment dated 3.6.1997
  affirming the findings of fact recorded by the trial court. The
G second appeal filed by the appellant was dismissed by the
  Punjab & Haryana High Court, by the impugned judgment dated
  26.10.1999. The appellant has challenged the said judgment
  in this appeal by special leave.

H         8. The contentions of the appellant in brief are :
MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                      531
     SANGHA [R.V. RAVEENDRAN, J.]

 (i) The plaintiff did not sign the agreement of sale nor sign       A
 the plaint, nor gave evidence. His attorney holder (Paramjit
 Singh) who entered into the agreement of sale on behalf
 of the plaintiff and who represented the plaintiff initially, was
 not examined. The second attorney holder (Jagtar Singh
 Sangha) examined as PW1 was not personally aware of                 B
 the transaction and admitted that he was not aware of what
 transpired prior to the execution of the power of attorney
 in his favour on 1.3.1980. There was therefore· no
 acceptable or valid evidence about the readiness and
 willingness of the plaintiff to perform the contract. The courts    c
  below ought to have dismissed the suit by drawing a
  presumption that the plaintiffs case was false and for non-
  compliance with Section 16(c) of the Specific Relief Act,
  1963 as the plaintiff did not enter the witness box.

 (ii) The agreement of sale only provided for damages in             D
 the event of breach by either party. The agreement (Clause
 11) provided that if the vendor failed to perform his part of
 the contract by executing the sale deed and getting it
 registered on receiving the balance consideration, he shall
 be liable to pay double the amount of earnest money                 E
 received by her from the purchaser. The agreement did not
 provide for specific performance in the event of breach by
 the vendor. The clear intention of the parties was that in
 the event of breach by the vendor, the purchaser will be
 entitled to double the earnest money (that is refund of             F
 earnest money plus liquidated damages of Rs.10,000/-)
 and nothing more. Therefore, even if breach by the
 appellant - vendor was made out, the remedy of
 respondent - purchaser was only to get Rs.20,000/- and
 not for specific performance.                                       G

 (iii) The evidence clearly established that plaintiff was not
 ready and willing to perform the contract and committed
 breach and as a consequence, the defendant rescinded
 the contract. The courts below ignored the relevant
                                                                     H
    532        SUPREME COURT REPORTS                    [2010] 12 S.C.R.


A         evidence in this behalf and drew invalid inferences from
          the evidence. The courts below therefore ought to have
          dismissed the suit.

    Re : Contention (i)
8      9. Section 16(c) of the Specific Relief Act 1963 ('Act' for
  short) bars the specific performance of a contract in favour of
  a plaintiff 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
C terms of the performance of which has been prevented or
  waived by the defendant). Explanation (ii) to section 16
  provides that for purposes of clause (c) of section 16, the
  plaintiff must aver performance of, or readiness and willingness
  to perform, the contract according to its true construction. Thus
D in a suit for specific performance, the plaintiff should not only
  plead and prove the terms of the agreement, but should also
  plead and prove his readiness and willingness to perform his
  obligations under the contract in terms of the contract. (See :
  N.P. Thirugnanam to R. Jagan Mohan Rao - AIR 1996 SC
E 116; Pushparani S. Sundaram v. Pauline Manomani James
  - 2002 (9) SCC 582; and Manjunath Anandappa v.
  Tammanasa - 2003 (10) SCC 390). In the first case, this Court
  held:

          "The continuous readiness and willingness on the part of
F         the plaintiff is a condition precedent to grant the relief of
          specific performance. This circumstance is material and
          relevant and is required to be considered by the court while
          granting or refusing to grant the relief. If the plaintiff fails to
          either aver or prove the same, he must fail. To adjudge
G         whether the plaintiff is ready and willing to perform his part
          of the contract, the court must take into consideration the
          conduct of the plaintiff prior and subsequent to the filing of
          the suit along with other attending circumstances. The
          amount of consideration which he has to ay to the
H
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                   533
        SANGHA [R.V. RAVEENDRAN, J.]

    defendant must of necessity be proved to be available.          A
    Right from the date of the execution till date of the decree
    he must prove that he is ready and has always been willing
    to perform his part of the contract. As stated, the factum
    of his readiness and willingness to perform. his part of the
    contract is to be adjudged with reference to the conduct        B
    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 part of contract."

      In Vidhyadhar v. Manikrao - 1999 (3) SCC 573, this Court      C
reiterated the following well recognized legal position:

    "Where a party to the suit does not appear in the witness-
    box and state his own case on oath and does not offer
    himself to be cross-examined by the other side, a               D
    presumption would arise that the case set up by him is not
   ·correct."

    10. We may next refer to two decisions of this Court which
considered the evidentiary value of the depositions of attorney     E
holders. This Court in Janki Vashdeo Bhojwani vs. lndusind
Bank Ltd. - 2005 (2) SCC 217, held as follows:

    "Order 111, Rules 1 and 2 CPC, empowers the holder of
    power of attorney to "act" on behalf of the principal. In our
    view the word "acts" employed in Order Ill, Rules 1 and 2       F
    CPC, confines only in respect of "acts" done by the power
    of attorney holder in exercise of power ·granted by the
    instrument. The term "acts" would not include deposing in
    place and instead of the principal. In other words, if the
    power of attorney holder has rendered some "acts" in            G
    pursuance of power of attorney, he may depose for the
    principal in respect of such acts, but he cannot depose
    for the principal for the acts done by the principal and not
    by him. Similarly, he cannot depose for the principal in
    respect of the matter which only the principal can have a       H
    534       SUPREME COURT REPORTS                   [2010] 12 S.C.R.


A         personal knowledge and in respect of which the principal
          is entitled to be cross-examined .

          .... In the case of Shambhu Dutt Shastri v. State of
          Rajasthan, 1986 2 WLN 713 (Raj) it was held that a
B
          general power of attorney holder can appear, plead and
          act on behalf of the party but he cannot become a witness
          on behalf of the party. He can only appear in his own
          capacity. No one can delegate the power to appear in
          witness box on behalf of himself. To appear in a witness
          box is altogether a different act. A general power of
c         attorney holder cannot be allowed to appear as a witness
          on behalf of the plaintiff in the capacity of the plaintiff.

          The aforesaid judgment was quoted with the approval in
          the case of Ram Prasad v. Hari Narain - AIR 1998 Raj
D         185. It was held that the word "acts" used in Rule 2 of
          Order Ill of the CPC does not include the act of power of
          attorney holder to appear as a witness on behalf of a party.
          Power of attorney holder of a party can appear only as a
          witness in his personal capacity and whatever knowledge
E         he has about the case he can state on oath but be cannot
          appear as a witness on behalf of the party in the capacity
          of that party. If the plaintiff is unable to appear in the court,
          a commission for recording his evidence may be issued
          under the relevant provisions of the CPC .....
F         We hold that the view taken by the Rajasthan High Court
          in the case of Shambhu Dutt Shastri followed and
          reiterated in the case of Ramprasad is the correct view."

  In Shankar Finance & Investments vs. State of AP - (2008) 8
G SCC 536, this Court explained in what circumstances, the
  evidence of an attorney holder would be relevant, while dealing
  with a complaint under section 138 of the Negotiable
  Instruments Act, 1881 signed by the attorney holder of the
  payee. This Court held :
H
  MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                       535
       SANGHA [R.V. RAVEENDRAN, J.]
    "A power of attorney holder of the complainant, who does            A
    not have personal knowledge, cannot be examined. But
    where the attorney holder of the complainant is in charge
    of the business of the complainant and the attorney holder
    alone is personally aware of the transactions, and the
    complaint is signed by the attorney holder on behalf of the         B
    complainant payee, there is no reason why the attorney
    holder cannot be examined as the complainant. .... ln regard
    to business transactions of companies, partnerships or
    proprietary concerns, many a time the authorized agent or
    attorney holder may be the only person having personal              c
    knowledge of the particular transaction; and if the
    authorized agent or attorney-holder has signed the
    complaint, it will be absurd to say that he should not be
    examined under section 200 of the Code, and only the
    Secretary of the company or the partner of the firm or the          D
    proprietor of a concern, who did not have personal
    knowledge of the transaction, should be examined."

      11. To succeed in a suit for specific performance, the
plaintiff has to prove: (a) that a valid agreement of sale was
entered by the defendant in his favour and the terms thereof;           E
(b) that the defendant committed breach of the contract; and
(c) that he was always ready and willing to perform his part of
the obligations in terms of the contract. If a plaintiff has to prove
that he was always ready and willing to perform his part of the
contract, that is, to perform his obligations in terms of the           F
contract, necessarily he should step into the witness box and
give evidence that he has all along been ready and willing to
perform his part of the contract and subject himself to cross
examination on that issue. A plaintiff cannot obviously examine
in his place, his attorney holder who did not have personal             G
knowledge either of the transaction or of his readiness and
willingness. Readiness and willingness refer to the state of
mind and conduct of the purchaser; as also his capacity and
preparedness on the other. One without the other is not
sufficient. Therefore a third party who has no personal                 H
    536       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A knowledge cannot give evidence about such readiness and
  willingness, even if he is an attorney holder of the person
  concerned.

          12. We may now summarise for convenience, the position
    as to who should give evidence in regard to matters involving
8
    personal knowledge:

          (a) An attorney holder who has signed the plaint and
          instituted the suit, but has no personal knowledge of the
          transaction can only give formal evidence about the validity
c         of the power of attorney and the filing of the suit.

          (b) If the attorney holder has done any act or handled any
          transactions, in pursuance of the power of attorney granted
          by the principal, he may be examined as a witness to
D         prove those acts or transactions. If the attorney holder
          alone has personal knowledge of such acts and
          transactions .and not the principal, the attorney holder shall
          be examined, if those acts and transactions have to be
          proved.      ·

E         (c) The attorney holder cannot depose er give evidence
          in place of his principal for the acts done by the principal
          or transactions or dealings of the principal, of which
          principal alone has personal knowledge.

F         (d) Where the principal at no point of time had personally
          handled or dealt with or participated in the transaction and
          has no personal knowledge of the transaction, and where
          the entire transaction has been handled by an attorney
          holder, necessarily the attorney holder alone can give
G         evidence in regard to the transaction. This frequently
          happens in case of principals carrying on business through
          authorized managers/attorney holders or persons residing
          abroad managing their affairs through their attorney
          holders.
H
  MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                    537
       SANGHA [R.V. RAVEENDRAN, J.]
    (e) Where the entire transaction has been conducted              A
    through a particular attorney holder, the principal has to
    examine that attorney holder to prove the transaction, and
    not a different or subsequent attorney holder.

    (f) Where different attorney holders had dealt with the          8
    matter at different stages of the transaction, if evidence has
    to be led as to what transpired at those different stages,
    all the attorney holders will have to be examined.

    (g) Where the law requires or contemplated the plaintiff or
    other party to a proceeding, to establish or prove               C
    something with reference to his 'state of mind' or 'conduct',
    normally the person concerned alone has to give evidence
    and not an attorney hqlder. A landlord who seeks eviction
    of his tenant, on the ground of his 'bona fide' need and a
    purchaser seeking specific performance who has to show           D
    his 'readiness and willingness' fall under this category.
    There is however a recognized exception to this
    requirement. Where all the affairs of a party are completely
    managed, transacted and looked after by an attorney (who
    may happen to be a close family member), it may be               E
    possible to accept the evidence of such attorney even with
    reference to bona tides or 'readiness and willingness'.
    Examples of such attorney holders are a husband/wife
    exclusively managing the affairs of his/her spouse, a son/
    daughter exclusively managing the affairs of an old and          F
    infirm parent, a father/mother exclusively managing the
    affairs of a son/daughter living abroad.

      13. In this case, the matter has been handled by different
persons at different points of time on behalf of the plaintiff -
(a) the negotiations and execution of agreement on 20.10.1978 _G
were handled by plaintiffs attorney holder Paramjit Singh; (b)
on 7 .6.1979, the plaintiff was personally present and dealt with
the matter himself; and (c) from 1.3.1980, the matter was dealt
with by plaintiffs new attorney holder Jagtar Singh Sangha. The
plaintiff neither signed the agreement of sale nor signed the H
    538       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A plaint nor gave evidence, in particular, about his readiness and
  ·willingness. The agreement of sale was executed by plaintiffs
   attorney holder Paramjit Singh who was not examined. The
   plaint was signed by plaintiffs attorney holder Jagtar Singh
   Sangha (PW1) in whose favour plaintiff had executed the power
B of attorney on 1.3.1980 and who had no personal knowledge
   of the transaction. The said attorney holder (PW1) was not
   aware of the execution of the agreement, nor what happened
   till the last date fixed for performance had elapsed, nor what
   transpired on 7.6.1979. The said attorney holder (PW1) clearly
c  stated in his evidence that he was not aware of anything that
   transpired prior to 1.3.1980 when the power of attorney was
   executed in his favour. Nothing of relevance transpired after
   1.3.1980 except the issue of the suit notice dated 5.3.1980. He
   did not know whether defendant committed breach nor did he
   know about the readiness and willingness of the plaintiff. He
0
   admitted in his evidence :

          "I do not know the detailed terms and conditions of the
          transaction .... I do not know the facts of this transaction
          before my appointment in the year 1980 ..... I do not know
E         whether plaintiff wrote any letter that he is ready to
          purchase this plot. ... I do not know if anybody else also
          did any bargain in the transaction or not. I do not know who
          has been in correspondence on behalf of the plaintiff till
          June 1979".
F
    The evidence of PW 1 is therefore of no assistance in a suit
    for specific performance except to prove that he was authorized
    by the plaintiff to file a suit for specific performance.

       14. The plaintiff who ought to have given evidence never
G appeared and gave evidence. As his attorney holder PW1 had
  no knowledge of the transaction, the plaintiff solely relied on the
  evidence of the property dealer Balraj Singh (PW2) to prove
  the execution of the agreement, the terms of the agreement,
  his readiness and willingness to perform the agreement and
H
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                     539
        SANGHA [R.V. RAVEENDRAN, J.]
the alleged breach by the defendant. But Balraj Singh cannot           A
         a
become substitute for the plaintiff to give evidence about the
finances or intentions or the readiness and willingness of plaintiff
which were within the personal knowledge of the plaintiff. Balraj
Singh was a property dealer engaged by plaintiff and
supporting the plaintiff. He was not an attorney holder acting         B
on behalf of plaintiff. Therefore, neither the evidence of Jagtar
Singh (PW 1) nor the evidence of Balraj Singh (PW2) can be
relied upon to prove that plaintiff was always ready and willing
to perform his obligations under the contract, in terms of the
contract. Therefore, it has to be held that though there were          c
necessary averments in the plaint about the readiness and
willingness of the plaintiff, and though PW1 and PW2 gave
evidence about his readiness and willingness, the suit has to
fail for failure to comply with section 16(c) of the Specific"Relief
Act, as there was no acceptable or valid evidence of such              D
 readiness and willingness of plaintiff to perform his part of the
 obligations. in terms of the contract.

      15. The respondent relied upon the following observation
of this Court in P.D'Souza v. Shondrilo Naidu - 2004 (6) SCC
649:                                                                   E

     "It is indisputable that in a suit for specific performance of
     contract the plaintiff must establish his readiness and
     willingness to perform his part of the contract. The
     readiness and willingness on the part of the plaintiff to         F
     perform his part of contract would also depend upon the
     question as to whether the defendant did everything which
     was required of him to be done in terms of the agreement
     for sale. The question as to whether the onus was
     discharged by the plaintiff or not will depend upon ttie facts    G
     and circumstances of each case. No straitjacket formula
     can be laid down in this behalf."

The respondent next relied upon the following observations of
this Court in Aniglase Yohannan v. Ramlatha [2005 (7) SCC
534]:                                                                  H
    540       SUPREME COURT REPORTS                    [2010] 12 S.C.R.


A         "12. The basic principle behind Section 16(c) read with
          Explanation (ii) is that any person seeking benefit of the
          *grant relief on the basis of the conduct of the person
          seeking relief. If the pleadings manifest that the conduct
          of the plaintiff entitles him to get the relief on perusal of the
B         plaint he should not be denied the relief."

        This Court further held that the averments relating to
  readiness and willingness are not a mathematical formula which
  should be expressed in specific words and if the averments in
  the plaint as a whole, do clearly indicate the readiness and
C willingness of the plaintiff to fulfil his part of the obligations under
  the contract, the fact that the wording was different, will not
  militate agpinst the readiness and willingness of the plaintiff.
  The above observations cannot be construed as requiring only
  a pleading in regard to readiness and willingness and not 'proof
D relating to readiness and willingness. In fact, in the very next
  para, this Court clarified that Section 16(c) of the Act mandates
  the plaintiff to aver in the plaint and establish th~ fact by
  evidence aliunde that he has always been ready and willing
  to perform his part of the contract. Therefore, the decision
E merely reiterates the need for both pleadings and proof in
  regard to readiness and willingness of the plaintiff.

       16. The said decisions do no assist the respondent. The
  respondent also relied upon some decisions which observe
F that increase in value of the property is not a relevant
  consideration to deny specific performance. On the facts and
  circumstances that issue does not arise for consideration in this
  case.

    Re : Contention (ii)
G
       17. Section 10 of the Act deals with cases in which
  specific performance of contract is enforceable. It provides that
  except as otherwise provided in that Chapter (dealing with
  Specific Performance of Contracts) of the Act, specific
H performance of any contract may, in the discretion of the court,
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                   541
        SANGHA [R.V. RAVEENDRAN, J.]
be enforced when the act agreed to be done is such that              A
compensation in money for its non-performance would not
afford adequate relief. Explanation (i) to section 10 provides
that unless and until the contrary is proved, the court shall
presume that the breach of a contract to transfer immovable
property cannot be adequately relieved by compensation in            B
money. Sub-sections (2) and (5) of section 21 of the Act
provide that in a suit for specific performance, if the court
decides that specific performance ought not to be granted, but
that there is a contract between the parties which has been
broken by the defendant, and that the plaintiff is entitled to       c
compensation for that breach, it shall award him such
compensation accordingly; and that no compensation shall be
awarded under this section unless the plaintiff has claimed such
compensation in his plaint. Section 23 of the Act provides that
a contract otherwise proper to be specifically enforced, may be      D
so enforced, though a sum be named in it as the amount to be
paid in case of its breach arid the party in default is willing to
pay the same, if the court, having regard to the terms of the
contract and other attending circumstances, is satisfied that the
sum was named only for the purpose of securing performance
                                                                     E
of the contract and not for the purpose of giving to the party in
default an option of paying money in lieu of specific
performance.

      18. It is thus clear that for a plaintiff to seek specific
performance of a contract of sale relating to immovable              F
property, and for a court to grant such specific performance, it
is not necessary that the contract should contain a specific
provision that in the event of breach, the aggrieved party will
be entitled to specific performance. The Act makes it clear that
if the legal requirements for seeking specific enforcement of a      G
contract are made out, specific performance could be enforced
as provided in the Act even in the absence of a specific term
for specific performance in the contract. It is evident from
section 23 of the Act that even where the agreement of sale
contains only a provision for payment of damages or liquidated       H
    542      SUPREME COURT REPORTS                [2010] 12 S.C.R.

A damages in case of breach and does not contain any provision
  for specific performance, the party in breach cannot contend
  that in view of specific provision for payment of damages, and
  in the absence of a provision for specific performance, the court
  cannot grant specific performance. But wher~ the provision
B naming an amount to be paid in case of breach is intended to
  give to the party in default an option to pay money in lieu of
  specific performance, then specific performance may not be
  permissible. We may attempt to clarify the position by the
  following illustrations (not exhaustive):                      ·
c         (A). The agreement of sale provides that in the event of
          breach by the vendor, the purchaser shall be entitled to
          an amount equivalent to the earnest money as damages.
          The agreement is silent as to specific performance. In
          such a case, the agreement indicates that the sum was
D         named only for the purpose of securing performance of the
          contract. Even if there is no provision in the contract for
          specific performan·ce, the court can direct specific
          performance by the vendor, if breach is established. But
          the court has the option, as per Section 21 of the Act, to
E         award damages, if it comes to the conclusion that it isyot
          a fit case for granting specific performance.        ·

          (B). The agreement provides that in the event of the
          vendor failing to execute a sale deed, the purchaser will
F         not be entitled for specific performance but will only be
          entitled for return of the earnest money and/or payment
          of a sum named as liquidated damages. As the intention
          of the parties to bar specific performance of the contract
          and provide only for damages in the event of breach, is
          clearly expressed, the court may not grant specific
G
          performance, but can award liquidated damages and
          refund of earnest money.

          (C). The.agreement of sale provides that in the event of
          breach by either party the purchaser will be entitled to
H         specific performance, but the party in breach will have the
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                   543
        SANGHA [R.V. RAVEENDRAN, J.]

    option, instead of performing the contract, to pay a named       A
    amount as liquidated damages to the aggrieved party
    and on such payment, the aggrieved party shall not be
    entitled to specific performance. In such a case, the
    purchaser will not be entitled to specific performance, as
    the terms of the contract give the party in default an option    B
    of paying money in lieu of specific performance.

     19. In this case-, clauses 11 and 12 of the agreement deal
with consequences of breach. They are extracted below :

     "11. That in case the seller fails to perform his part of       C
     contract of sale according to the terms and conditions
     agreed upon in this agreement to sell in matter of
     execution of the sale deed and its registration, on the
     receipt of the balance sale price, he shall be liable to pay
     double the amount of the earnest money received by her          D
     from the purchaser.

     12. That in case the purchaser fails to get the transaction
     of the s-ale completed by means of execution and
     registration of sale deed according to the terms of this        E
     agreement for sale, he shall forfeit his earnest money of
     Rs.10,000/- advanced by the purchaser to the said seller."

The agreement does not specifically provide for specific
performance. Nor does it bar specific performance. It provides
for payment of damages in the event of breach by either party.       F.
The provision for damages in the agreement is not intended
to provide the vendor an option of paying money in lieu of
specific performance. Therefore, we are of the view that plaintiff
will be entitled to seek specific performance (even in the
absence of a specific provision therefor) subject to his proving     G
breach by the defendant and that he was ready and willing to
perform his obligation under the contract, in terms of the
contract.

                                                                     H
    544       SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A Re : Contention (iii)

         20. The time fixed for the performance in the agreement
    was 20.12.1978. But time was obviously not considered by the
    parties, to be of essence of the contract. The correspondence
    clearly shows that defendant's attorney holder Lt.Col. Kartar
8
    Singh, was willing to perform the contract on 7 .6.1979, nearly
    six months after the last date stipulated in the agreement. The
    evidence shows that the defendant had entrusted the work of
    securing the necessary permission/NOC/clearance for the sale
    to the property dealer to Bal raj Singh who was also acting on
C   behalf of the plaintiff. Balraj Singh sent a telegram dated
    2.6.1979 to Kartar Singh who was staying at Rourkela to come
    over to Chandigarh on 7.6.1979 to execute the sale deed. The
    wording of the telegram is "Reach Chandigarh as Mr. Sangha
    is here. Sale deed registration is final. Date 7th June. No
D   extension." The evidence of DW1 (Kartar Singh} and the
    evidence of Balraj Singh (PW2) show that Kartar Singh
    accordingly visited Chandigarh on 7.6.1979 and met the plaintiff
    in the office of Bal raj Singh on 7 .6.1979. Kartar Singh's
    evidence shows that he stated that he was ready to receive the
E   balance of the sale price and execute the sale deed and had
    in fact came all the way from Rourkela to execute the sale deed,
    and that plaintiff told him that the entire amount was not
    available. Kartar Singh (DW1} also stated that after the
    meeting, plaintiff went away stating that he would try to arrange
F   for money; that he (Kartar Singh} went back to the office of Balraj
    Singh at about 5.30 PM; that at that time, Balraj Singh showed
    the writing of Sub-Registrar (about plaintiff's presence and
    Kartar Singh's absence); that he (Kartar Singh) got irritated by
    the conduct of plaintiff and told Balraj Singh to tell plaintiff that
G   plaintiff was trying to be too clever, and he may treat the
    transaction as cancelled. Kartar Singh categorically stated :

          "He (plaintiff) did not give any proof of money with him. He
          did not buy the stamp throughout the day and he did not

H
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                    545
        SANGHA [R.V. RAVEENDRAN, J.]
    show any inclination to buy. I was fully ready to register the    A
    sale deed on 7.6.79."

    There is no evidence to rebut the said evidence of Kartar
Singh as plaintiff was not examined.

      21. Balraj Singh (PW2) who was examined as PW2                  B
attempted to give some evidence about the readiness and
willingness of the plaintiff. But the evidence of Balraj Singh can
not be a substitute for the evidence of plaintiff regarding
plaintiff's readiness and willingness. Further the
correspondence between Balraj Singh and Kartar Singh                  C
demonstrates that the version and stand of Kartar Singh (DW1)
appears to be more probable and correct. After Kartar Singh
returned from Chandigarh after the visit on 7.6.1979, by letter
dated 29.6.1979 Balraj Singh informed Kartar Singh that the
purchaser was now ready to get the s,ale deed executed in July        D
1979. Immediately, Kartar Singh sent a reply dated 2.7.1979
referring to his visit- to Chandigarh on 7.6.1979 and about·
plaintiff informing him that full amount of sale price was not
available with him for proceeding with the sale, which showed
that plaintiff was not ready and willing to complete the sale.        E
Balraj Singh sent a reply dated 7. 7.1979 which does not deny
the version given by Kartar Singh in his letter dated 2.7 .1979,
(as to what happened on 7.6.1979) but concentrated on trying
to persuade Kartar Singh to come again and execute the sale
deed by receiving the higher price of Rs.1,60,000/- even              F
without delivering possession. The said letter dated 7.7.1979
of Balraj Singh also admits that marking the presence of
plaintiff in the office of Sub- Registrar on 7.6.1979 was only to
save the position of plaintiff. The said letter also states: "Now
he is ready to pay you the balance amount, considering                G
Rs.160,000/- as the sale price". The correspondence therefore
clearly established that plaintiff was not ready and willing to get
the sale deed executed within the time prescribed or even as
on 7.6:1.979 which was the last day of the extended period. The
evidence also demonstrates that plaintiff was not in a position
                                                                      H
    546       SUPREME COURT REPORTS                   [2010] 12 S.C.R.


A to perform the contract as Balraj Singh admits in his evidence
  that the purchaser had to purchase the stamp paper and that
  on 7.6.1979, the stamp paper was not purchased; and that the
  plaintiff had in his bank account Rs.114000 but that amount was
  not drawn from the bank. Balraj Singh and PW1 have also
B referred to the assets owned by plaintiff. Such evidence is of
  no assistance in the absence of evidence as to availability of
  money for purchase and about the readiness and willingness
  of plaintiff to perform the contract.

       22. There is also something doubtful about the following
C version given by Balraj Singh (PW2) in his evidence as to what
  happened at the Sub-Registrar's office on 7.6.1979 :

          "Then we i.e. myself, Hartar Singh plaintiff, Paramjit Singh,
          all went to the office of the Sub-Registrar. The plaintiff
D         signed the application dated 7.6.1979 in my presence and
          likewise Paramjit Singh also signed the same and we then
          submitted the·same which is Ex.P21 to the Sub-Registrar,
          Chandigarh. He then called Kartar Singh, through his Peon.
          Kartar Singh did not appear before the Sub.Registrar,
E         Chandigarh, who then made an endorsement Ex.22 on the
          said application in my presence (objected to).

          In the plaint, the incident is described thus :

          "Ultimately, the general attorney of the Defendant namely
F         Kartar Singh reached Chandigarh on 7 .6.1979 and the
          plaintiff was also there in Chandigarh on the said date. The
          said Kartar Singh who hold the general attorney for the
          Defendant had disclosed that he had come on the said
          date for execution of the sale deed, but neither Kartar Singh
G         nor the Defendant came to the office of Sub-Registrar,
          Chandigarh to execute the sale deed in favour of the
          plaintiff in respect of the above said plot, though the plaintiff
          remained present in the office of Sub-Registrar,
          Chandigarh on the said day and got himself marked
H         present by moving an application."
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                 547
        SANGHA [R.V. RAVEENDRAN, J.]

But Exs.21 and 22 (the letter dated 7.6.1979 to the Sub-           A
Registrar containing the Sub-Registrar's endorsement) reads
thus:

    'To,
    The Sub-Registrar,                                             B
    Chandigarh.
    Sir,

     We, Hartar Singh Sangha, S/o Shri Bikramjit Singh Sangha
     and Ms. Avtar Kaur D/o S. Charan Singh, 58, Sector-26,        c
     Madhya Marg, Chandigarh had entered into agreement
     with Mrs. Man Kaur, wife of Shri Jartar Singh through her
   · general attorney and husband Major Kartar Singh for
     purchase of her annexe No.509, Sector-18B, Chandigarh.
     Today is the last date for the registration of said annexe . D
     and we (Purchasers) are ready with the payment to pay
     the balance full and final amount relating to the above
     mentioned property before the :;>ub-Registration, but the
     seller herself or through her general attorney have not
     turned up so far. We request you to mark out presence in
                                                                  E
     your court.

    Thanking you,
                                               Yours faithfully,
                                       (Hartar Singh Sangha)
                                                                   F
                                                  (Avtar Kaur)
                              through attorney Paramjit Singh
    Dated : 7.6.1979

    The applicant Hartar Singh Sangha is present. Respondent
    Col. Kartar Singh name was called out, but was not found       G
    present.

                                         (sd/-) Sub-Registrar"

                                                                   H
    548      SUPREME COURT REPORTS                 [2010] 12 S.C.R.

A      This letter describes plaintiff and Ms. Avtar Kaur, daughter
  of S. Charan Singh as purchasers and states that plaintiff and
  Ms. Avtar Singh entered into agreement with defendant for
  purchase of the property (Annexe No.509, Sector-188,
  Chandigarh). The letter is said to have been signed by plaintiff
B and Avtar Singh through Paramjit Singh (Attorney Holder). There
  is absolutely no reference or explanation either in the pleading
  or evidence as to who is Ms. Avtar Kaur, and how she became
  a purchaser under the agreement of sale. There is also no
  explanation as to why Avtar Kaur and Paramjit Singh, if they
c were present on 7.6.1979, were not examined. The said letter
  is not marked through either any of the sender or the receiver
  of the letter and has no evidentiary value.

          23. The learned counsel for the respondent contended that
    in terms of the agreement, the defendant had to furnish an NOC
D   from Chandigarh Administration, as also ULC clearance and
    income tax clearance required for the sale and there was
    nothing to show that she had obtained them, and therefore the
    question of plaintiff proving his readiness and willingness to
    perform his obligations did not arise. This contention has no
E   merit. There are two distinct issues. The first issue is the breach
    by the defendant - vendor which gives a cause of action to the
    plaintiff to file a suit for specific performance. The second issue
    relates to the personal bar to enforcement of a specific
    performance by persons enumerated in section 16 of the Act.
F   A person 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
    the terms the performance of which has been prevented or
    waived by the defendant) is barred from claiming specific
G   performance. Therefore, even assuming that the defendant had
    committed breach, if the plaintiff fails to aver in the plaint or
    prove that he was always ready and willing to perform the
    essential terms of contract which are required to be performed
    by him (other than the terms the performance of which has been
H   prevented or waived by the plaintiff), there is a bar to specific
   MAN KAUR (DEAD) BY LRS. v. HARTAR SINGH                     549
        SANGHA [R.V. RAVEENDRAN, J.]

performance in his favour. Therefore, the assumption of the A
respondent that readiness and willingness on the part of plaintiff
is something which need not be proved, if the plaintiff is able
to establish that defendant refused to execute the sale deed
and thereby committed breach, is not correct. Let us give an
example. Take a case where there is a contract for sale for a B
consideration of Rs.10 lakhs and earnest money of Rs.1 lakh
was paid and the vendor wrongly refuses to execute the sale
deed unless the purchaser is ready to pay Rs.15 lakhs. In such
a case there is a clear breach by defendant. But in that case,
if plaintiff did not have the balance Rs.9 lakhs (and the money       c
required for stamp duty and registration) or the capacity to
arrange and pay such money, when the contract had to be
performed, the plaintiff will not be entitled to specific
performance, even if he proves breach by defendant, as he
was not 'ready and willing' to perform his obligations.            .D

      24. In this case, the evidence clearly showed that
defendant's attorney holder Kartar Singh had entrusted the work
of securing the clearances to the property dealer Balraj Singh,
who was acting on behalf of plaintiff. This was within the
knowledge of Paramjit Singh, who was the attorney holder of           E
plaintiff at the relevant point of time. Balraj Singh also admitted
in his evidence that he was to get the NOC and ULC clearance.
Balraj Singh sent a telegram to Kartar Singh at the instance of
plaintiff, asking him to come to Chandigarh on 7 .6.1979 and
execute the sale deed. Therefore, Balraj Singh liad either            F
secured the certificates necessary for the sale or had
deliberately called Kartar Singh to come over to Chandigarh,
even though the plaintiff was not ready and the clearances had
not been secured, to create evidence that plaintiff was ready.
In neither case, the defendant could be faulted. Be that as it        G
may.

    25. None of the courts below have referred to the relevant
evidence or the significance of plaintiff not tendering evidence.
They have merely gone by the evidence of Balraj Singh to hold
                                                                      H
    550      SUPREME COURT REPORTS                [2010] 12 S.C.R.

A   that the plaintiff was ready and willing and defendant committed
    a breach. The material on record shows that the respondent-
    plaintiff committed breach. Therefore, the earnest money stood
    forfeited and respondent is not entitled for refund of the earnest
    money.
B
    Conclusion

           26. Having regard to our findings on contentions (i) and
    (iii}, the appellant is bound to sucr.eed in these appeals. We
    therefore allow these appeals, set aside the judgments of the
    courts below and dismiss the suit for specific performance.

    N.J.                                           Appeals allowed.