MRS. A. KANTHAMANIversusMRS. NASREEN AHMED

                              (2017] 2 S.C.R. 610



A                         MRS. A. KANTHAMANJ
                                       v.
                         MRS. NASREEN AHMED
                       (Civil Appeal No. 2714 of 2008)
B                              MARCH 06, 2017
       [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
    Specific Performance:
            Suit - Seeking specific performance of agreement for sale -
c  Suit decreed by courts below - On appeal. plea of defendant inter
   alia that in absence of seeking declaration that agreement was. bad
   in law, mere suit for specific performance was not maintainable -
   Held: The plaint which seeks the relief of ~pecific performance of
   agree111ent, 111ust contain all the requirements of s. 16(c) rlw. the
   requirements contained in Form Nos . ./7 and ./8 of Appendix 'A' of
D
   CPC - Plaint should also have necessary pleading satishing the
   requirement of Art. 5./ of the Limitation Act - Plea of maintainability
   of suit, being preliminary issue having been raised for the first time
   before Supreme Court, is not maintainable - The suit was
   111aintainable as the same was filed within the time provided in Art.5./
E of Limitation Act - The plaintiff had pleaded the necessary
   requirements of s. l 6(c) of Specific Relief Act rlw the requirements
   of Forms ./7 and ./8 ofCPC and Art. 5./ of Limitation Act - P/aimiff
   had paid more than 50% of the sale consideration lo lhe defendanl
   before 1he due date of execution of sale deed - The plaintiff was
   a/ways ready and willing lo perform her part - Trial court was
F
   ;ustified in exercising its discrelion in favour of the plaintiff by
  ·passing a decree for specific performance of agreement. - Specific
   Relief Act, 1963 - s. 16(c) - Code of Civil Procedure, 1908 -
   Appendix A. forms ./7 and ./8 - Limitation Act, 1963 - Art. 5./.
     Plea:
G
             New plea - As regards preliminary issue - Held: Plea
     regarding maintainability of suit is required to be raised in the first
     inslance - New plea in this regard not to be entertained - However,
     where the Courl prima facie finds by mere perusal of plaint
     a/legations thal the suit is barred by any express provision of law
H
                                    610
      MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                           611


or legally not maintainable due to any legal provision, it can take      A
judicial notice to avoid abuse of judidioial process in prosecuting
such suit.
Constitution of India:
        Art. 136 - Scope of - Held: Supreme Court in exercise of
jurisdiction u!Art. 136 is loath to undertake the task of appreciating    B
the evidence - More so when such appeal arises ofjudgment, which
has recorded concurrent findings of fact.
        Dismissing the appeal, the Court
         HELD: 1. The filing of the suit for specific performance ()f     C
 an agreement/contract is governed by Section 16(c) of the Specific
 Relief Act, 1963 read with Article 54 of the Schedule to the
 Limitation Act, 1963. Form Nos. 47 and 48 of Appendix' A' to
 Code of Civil Procedure, 1908 prescribe the format of the plaint
 for such suit. The Specific Relief Act, 1877 which stood repealed
  by the Act of 1963 did not contain provision analogues to Section       D
 16(c). Yet iu the absence of any such provision, its requirements
 used to be considered mandatory in the suits for specific
 performance. The Act of 1963 then made the aforesaid
. requirement a statutory one by enacting Section 16(c). Therefore,
  the plaint which seeks the relief of specific performance of the        E
  agreement/contract must contain all requirements of Section 16(c)
  read with requirements contained in Form Nos. 47 and 48 of
  Appendix 'A' of C.P.C. [Paras 23~26) [619-A-B, G; 620-D-E)
        Ardeshir H Mama v. Flora Sasoon AIR 1928.PC 208
        - referred to.
                                                                          F
         2. Article 54 of the Limitation Act provides a period
·of 3 year for filing a suit for specific performance of
  contract/agreement. A period of 3 years is required to.be counted
  from the date fixed ·by the parties for the performance.; or if no
  such ·date is fixed, when the plaintiff has noticed that the
                                                                          G
  performance is refused. The plaint should, therefore, also have
  necessary pleading satisfying the requirement of Article 54. [Para
· 27) [620-E-F)
        3. The expression "readiness and willingness" has been
 the subject matter of interpretation in many cases even prior to
                                                                          H
612            SUPREME COURT REPORTS                        [2017) 2 S.C.R.


A     its insertion in Section 16 (c) of the Specific Relief Act, 1963. It is
      not necessary for the plaintiff .to produce the money or vouch a
      concluded scheme for financing the transaction to prove his
      readiness and willingness. [Para 28] [620-G-H; 621-A]
             Bank of India Limited & Ors. v. Jamsetji A.H Chinoy
B            and Chinoy and Company AIR 1950 PC 90; Sukhbir
             Singh & Ors. v. Brij Pal Singh & Ors. AIR 1996 SC
             2510 : (1997) 2 sec 200 : [19961 2 Suppl. SCR 863
             - relied on.
              4. This Court is loath to undertake the task of appreciating
c     the evidence in au appeal filed under Article 136 of the
      Constitution of India. It is more so when such appeal arises out
      of the judgment, which has recorded concurrent findings of fact.
      However, in the present case, it will be proper to peruse the
      evidence with a view to find out as to whether impugned judgment
      suffers from any error on facts or/and law? [Paras 32, 33] [622-D-F]
D
               5. The objection regarding the maintainability of the Suit
      was neither raised by the defendant in the written statement nor
      in first appeal before the High Court an.d nor in grounds of appeal
      in this Court. Since no plea was raised in the written statement,
      a fortiori, no issue was framed and, in consequence, neither the ·
E     Trial Court nor the High Court could render any finding on the
      plea. It is a well-settled principle of law that the plea regarding
      the maintainability of suit is required to be raised in the first
      instance in the pleading (written statement) then only such plea
      can be adjudicated by the Trial Court on its merits as a preliminary
F     issue nnder Order 14 Rule 2 of the CPC. Once a finding is
      rendered on the plea, the same can then be examined by the first
      or/and second appellate Court. It is only in appropriate cases,
      where the Court prima facie finds by mere perusal of plaint
      allegations that the suit is barred by any express provision of law
      or is not legally maintainable due to any legal provision, a judicial
G     notice can be taken to avoid abuse of judicial process in
      prosecuting suc.h suit. Such is, however, not the case here. [Paras
      35-38] [622-G-H; 623-A-B]
            I. S. Sikander (Dead) by LRs. v. K. Subramani & Ors.
            (2013) 15 SCC 27 : [2013] 17 SCR 24 - distinguished.
H
     MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                           613



        6. The suit filed by the respondent seeking specific            A
performance of the agreement dated 05.03.1989 was maintainable
for the reason that the cause of action to file the suit arose on the
expiry of period mentioned in the agreement (Jl.12.19S9) for its
performance as provided in.Article 54 of the Limitation Act and
it was rightly filed immediately within 10 days. [Para 40] (623-D]
                                                                        B
        7. The plaintiff had pleaded the necessary requirements'
of Section. 16(c) of the Specific Relief Act, 1963 read with the
requirement of Forms 47, 48 of Appendix A o'f CPC and Article
54 of the Limitation Act in the plaint. The defendant did not
dispute the execution of agreement with the plaintiff and, in fact,
entered in correspondence with the plaintiff for incorporation of       c
some clauses therein. The plaintiff proved her readi.ness a·nd
willingness to perform her part of agreement and also proved
her financial capacity to purchase the suit property by adducing
adequate evidence. On admitted facts, the plaintiff had paid more
than 50% of the sale consideration·to the ·defendant before the·        D
due date of execution of sale deed; The plaintiff had also proved
that she had the requisite financial capacity to pay the balance
sale consideration to the defendant inasmuch as she had arranged
the funds by obtaining loan from the LIC. The plaintiff filed the
suit immediately on expiry of the period within 10 days to show
her readiness and willingness to purchase the property. Once it          E
was held that the defendant committed breach in avoiding to
execute the agreement, whereas the plaintiff performed her part
of agreement and w.as ready and willing to perform her part, the
Trial Cour,t was justified in exercising its discretion in favour of
the plaintiff by passing a decree for specific performance of
                                                                         F
agreement against the defendant. None of these findings could
be assailed as being either perverse or de !tors the evidence or
against any provision of law and nor these findings could be
assailed on the ground that no judicial man could ever reach to
such conclusion. [Paras 43, 44] (623-F-H; 624-A-D]
                                                                        G
        8. There is no evidence to sustain the submission that the
plaintiff did not come to the Court with clean hands. On the other
hand, it is the defendant, who despite accepting the substantial
money (m.ore than 50%) towards sale consideration from the
plaintiff, avoided executing the sale deed on one or other false
pretext. (Paras 45, 46] [624-E]                                         H
614            SUPREME COURT REPORTS                        [2017] 2 S.C.R.


A             9. It is also not correct to say that since the plaintiff was
      insisting for execution of sale-deed iu relation to some more
      portions, which did not form part of the agreement, it should have
      been held that the plaintiff committed the breach of the agreement
      and not the defendant. The two Courts below rightly held that
      the plaintiff did not claim auy relief iu relation to the property
B
      which was not the subject matter of agreement aud confined his
      relief only iu relation to the property which formed the subject
      matter of agreement dated 05.03.1989. [Paras 47, 48] [624-F-H;
      625-A]
                              Case Law Reference
c
      J2013J 17 SCR 24                 distinguished           Para 17
      AIR 1928 PC 208                  referred to             Para 24
      AIR 1950 PC 90                   relied ou               Para 28

D     [19961 2 Suppl. SCR 863          relied ou               Para 30
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2714
      of2008.
             From the Judgment and Order dated 27.10.2006 of the High
      Court of Judicature at Madras in A. S. No. 127 of 2000.
E           Mohan Parasaran, Sr. Adv., Mrs. Prabha Swami, Nikhil Swami;
      Ms. Gayathri V. E., Advs. for Appellant.
            R. Balasubramanian, Sr. Adv., B. Karunakaran, Senthil
      Jagadeesan, Govind Manoharan, Ms. Shruti Iyer, Advs. for the
      Respondent.
F            The Judgment of the Court was delivered by
              ABHAY MANOHAR SAPRE, J. I. This appeal is filed by
      the defendant against the judgment and final order dated 27. l 0.2006
      passed by the High Court of Judicature at Madras in A.S. No. 127 of
      2000 by which the High Court dismissed the appeal filed by the appellant
G     herein with costs confirming the decree and judgment dated 30. l 0.1998
      passed in O.S. No. 6420of1996 by the VIII Additional Judge, City Civil
      Court, Chennai, which decreed the respondent's suit for specific
      performance of the agreement against the appellant.
             2. We herein set out the facts, in brief, to appreciate the issue
H     involved in this appeal.
      MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                                615
               [ABHAY MANOHAR SAPRE, J.]

         3. The appellant-defendant is the owner of the property situated      A
at No.191, Lloyds Road, Chennai-86, She entered into an agreement
for sale with the respondent-plaintiff on 05.03.1989 in respect of a part
of ground floor of the said property described in Schedule 'B' to the
plaint together with 1/3'' undivided share in the property described in
Schedule' A' for a total sale consideration ofRs.3,43,200/-. On the same
                                                                              B
day, a sum of Rs.1,30,000/- was paid by the respondent as advance
money to the appellant. Thereafter, the respondent paid Rs. 20,000/-
towards sale consideration to the appellant on 03.04.1989, Rs. 10,000/-
on 04.05.1989, Rs. 15,000 on 03.07.1989, Rs. 15,000/- on 06.07.1989
and Rs. 16,000/- on 16.08.1989. So far as the balance amount was
concerned, the respondent agreed to pay the same on or before                 c
31.12.1989 to the appellant. It was alleged that the appellant also orally
agreed to.sell to the respondent an additional area of 132.25 sq.ft. at the
ground floor and 4 of undivided share and for that additional property,
the respondent paid a sum of Rs.46,000/- as an advance money.
         4. On 10.11.1989, the respondent sent a draft sale deed to the        D
appellant for an area measuring 847.25 sq.ft. and one 1/2 undivided
share. The appellant though agreed to sell the additional extent ofland
orally, she refused to do so and returned the draft sale deed on 04.12.1989
for approval of the respondent by treating the sum of Rs.46,000/- paid
by her for additional extent as further advance for the earlier written
agreement.                                                                     E
        5. Thereafter on 15.12.1989, the appellant sent another draft
sale deed for approval of the respondent by removing clauses 18 and 27
and with minor changes. Since these deleted clauses referred to clauses
17 and 24 of the agreement of sale, the respondent approved the first
draft which contained these clauses.                                           F
        6. On 27.12.1989, the appellant wrote a letter to the respondent
insisting upon her to approve her second draft on or before 31.12.1989.
           7. The respondent approved the second draft sale deed and sent
 it to the appellant on 28.12.1989 by speed post and also enclosed a letter
from the LIC sanctioning loan ofRs. l lakh in her favour. The respondent       G
"further informed that she is willing to bring the balance of sale
consideration at the time ofregistration of the sale deed.
        8. On 30.12.1989, the respondent sent a legal notice through her
advocate calling upon the appellant to execute and register the sale deed
on or before 10.01.1990 in her favour.                                         H
616            SUPREME COURT REPORTS                           [20 I 7] 2 S .C.R.


A             9. By letter dated 03.01.1990 through her advocate, the appellant
      refused to sell the property to the respondent and cancelled the agreement.
               I 0. The respondent then filed a suit against the appellant on
      I 0.01.1990 seeking specific performance of the agreement. The plaint
      contained aforementioned pleadings. It was alleged that the respondent
B     was and is ready and willing to perform her part of the agreement and
      has, in fact, so performed. It was alleged that it was the appellant who
      failed to perform her part without any justification and hence committed
      breach of the agreement thereby entitling the respondentto claim specific
      performance of the agreement in relation to suit house. The appellant
      ti led written statement.
c
             11. Considering the plaint and written statement, the trial Court
      framed five issues and one additional issue which are as under:
              1)   Whether it is true that the defendant agreed to sell
                   the schedule property and an extent of 132.25 sq.ft.
D                  along with Y, undivided share to the plaintiff!
              2)   Whether it is true that the time is the essence of the
                   contract?
              3)   Whether it is true that the plaintiff was ready to
                   perform her part of contract in the agreement?
E
              4) Whether the plaintiff is entitled for the reliefof specific
                  performance?
              5)   What is the relief, the plaintiff entitled for?
              Additional issue framed on 31.07.1998:
F              1) Whether the plaintiff acted in a manner contradictory
                  and in violation of agreement?
               12. After considering the documentary evidence led in by both
      the parties, the Trial Court, vide judgment and decree dated 30.10.1998
      in O.S. No.6420 of 1996, decreed the respondent's suit and passed the
G     decree for specific performance of the agreement against the appellant.
      It was held that the time was not the essence of the contract. It was
      further held that the Plaintiff(Respondent) was always ready and willing
      to perform the agreement and, in fact, performed her part while it was
      the defendant (appellant) who tried to scuttle away from the agreement.
H     It was further held that the respondent is entitled to a decree for specific
      MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                               617
               [ABHAY MANOHAR SAPRE, J.]

performance of contract on the basis of sale agreement dated 05.03.1989      A
in respect of the plaint schedule property and accordingly the appellant
was given two months' time to execute the sale deed .and the respondent
was given one month's time to. deposit t~e balance.sale consideration of
Rs.1,47,200/-. '
        13.Aggrieved by the aforesaid judgment, the defendant filed an       B
appeal to the High Court. By impugned judgment dated 27.10.2006, the
High Court dismissed the appeal and confirmed the decree and judgment
dated 30. l 0.1998 passed by the trial Court in O.S. No. 6420of1996.
        14. Againstthe said judgment, the appellant( defendant) has filed
this appeal by way of special leave petition before this Court.               c
       15. Heard Mr. Mohan Parasaran, learned senior counsel for the
appellant and Mr. R. Balasubramanian, learned senior counsel for the
respondent. ·
        16. Mr. Mohan Parasaran, learned senior counsel for the appellant
while assailing the legality and correctness ofihe impugned judgment          D
essentially argued three points.
        17. In the first place, learned counsel submitted that since the
respondent (plaintiff) did not seek a declaration that the termination of
agreement is bad in law, mere suit for specific performance of the
agreement was not maintainable in law and was;· therefore, liable to be       E
dismissed on this short ground. In other words, th.e submission was that
it was obligatory. upon the respondent (plaintiff) to have sought a
declaration in th~ suit that the termination of the agreement made by the·
appellant (defendant) vide his notice dated 03.01.1989 is bad and along
with such relief, the respondent(plaintiff) should also have claimed a
                                                                              F
relief of specific performahce of the agreement to make the suit
maintainable. It was urged that since such relief was not claimed.by the
plaintiff, the suit for specific performance ofthe agreement simpliciter
was not maintainable. In support of this submission, learned counsel
placed reliance on the decision of this Court in I.S. Sikander (Dead)
by LRs. Vs. K. Subramani & Ors., (20.13) 15 SCC ·27.
        18. In the second place, learned counsel attacked the findings on
merits. He took us to the evidence of the parties and made an attempt to
point out that b,oth the Courts b~low committed ei:rw i11 holding that the,
plaintiff was ready and willing to perform her part of the agreement.
Learned counsel contended that from the evidence, itis clear that the H
618             SUPREME COURT REPORTS                            [2017] 2 S.C.R.



A     plaintiff was neither ready nor willing to perform her part of the agreement
      and nor she had money with her to pay towards balance consideration to
      the defendant to get the sale deed executed in her favour in terms of the
      agreement. It was urged that the plaintiff did not come to the Court with
      clean hands inasmuch as she insisted upon the terms, which were neither
      agreed upon and nor they were part of the agreement.
B
              19. In the third place, learned counsel contended that since two
      Courts below did not properly appreciate the evidence and that too in a
      case where the plaintiff had come to the Court with unclean hands, the
      discretionary relief of grant of specific performance ofagreement ought
      oot to have been granted to such plaintiff and instead the. suit merited
c     dismissal.
               20. In reply, learned counsel for the respondent (plaintiff) while
      opposing the appeal contended that no case ·for any interference in the
      impugned judgment is made out. It was his submission that both the
      Courts below rightly held that the plaintiff was able to make out a case
D     of breach of agreement committed by the defendant; and secondly, she
      had performed her part of the agreement thereby rightly held to have
      fulfilled the twin requirement of"readiness and willingness" as provided
      under Section 16 (c) of the Specific Relief Act, 1963. Learned counsel
      urged that since the issue relating to the maintainability of suit was neither
E     raised in the written statement nor in the appeal before the High Court
      and nor even in this appeal but was raised for the first time in submission,
      hence the same could not be allowed to be raised for the first time in this
      Court. Lastly, learned counsel submitted that since the two Courts below
      answered all the issues on facts in favour of the plaintiff bY, properly
      appreciating the evidence, such findings being concurrent in nature, are
 F    binding on this Court. It was more so when the findings did not suffer
      from any perversity, much less extreme perversity or illegality or
      arbitrariness, requiring any interference by this Court.
              21. Having heard learned counsel for the parties and on perusal
      of the record of the case, we find po force in any of the submissions of
 G    the learned counsel for the appellant (defendant).
              22. Before we proceed to examine the issues involved in the
      appeal, it is necessary to take note of some of the relevant provisions of
      the Acts and the decisions rendered by the Courts, which govern the
      controversy.
 H
      MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                               619
               [ABHAY MANOHAR SAPRE, J.]

       23. The filing of the suit for specific performance of an             A
agreement/contract is governed by Section 16(c) of the Specific R~lief
Act, 1963 read with Article 54 of the Schedule to the Limitation Act,
1963. Form Nos. 47 and 48 of Appendix'A' to Code of Civil Procelfure,
1908 prescribe the format of the plaint for such suit.
         24. The Spedfic Relief Act, 1877 which stood.repealed by the        B
Act of 1963 did not contain provision analogues to Section I 6(c ). Yet in
the absence ofany such provision, its requirements used to be considered
mandatory in the suits for specific performance by.virtue of law laid
down by the Privy Counsel in a celebrated case of Ardeshir H. Mama
vs.Flora Sasoon, AIR 1928 PC 208. It is in this Case which went to
Privy Council from Indian Courts, Their Lordships laid down the following
                                                                              c
principle:
         "In a suit for. sp~cific performance on the other haud, he
        treated aud was. reqoired by the <;ourt to treat the.contract
        as still subsisting. He had in that suit to allege; and. if.the
        fact was traversed, he .was required to prove a continuous            D
        readiness and willingness, from the date of the contract to
        the time of the hearing, to perform the contract on his
        part."Failure to make good that avermeut brought .with ·it
        the inevitable dismissal of his suit. Thus it was that the
        commencement of an action for damages being, ou the                   E
        principle of such cases as Clough v. London and North
      · Western Railway Co. (1871) L.R. 7 Ex. 26 aud Law v.
      , Law (1905) 1 Ch. 140 a definite election to treat the
        contract as at an end, no suit for specific, performance,
        whatever happened to the action, could thereafter be
         maintained by the aggrieved plaintiff. He had by his                 F
        election precluded himself even from making the averment
        just referred to proof of which was essential to the success
        of hi.s 'suit. The effect upon an action for damages for breach
         of a previous suit for specific performance will be apparent
        after the question of the competence .of the Court itself to          G
        ·award damages in such a suit has been touched upon."
       .25. The Act of 1963 then made the aforesaid requirement· a
statutory one by enacting Section 16 (c), which reads as under: -
        "16. Personal ba'rs to relief- Specific performance of a
        contract cannot be enforced in favour of a person-                    H
620             SUPREME COURT REPORTS                          (20 T7] 2 S.C.R.


A             (a) ..................... ..
              (b) ..................... ..
              (c) who fails to aver and prove that he has performed or
              bas always. been ready and willing to perform the essential
              terms of the contract which are to be performed by him,
B             other than terms the performance of which bas been
              prevented or waived by the defendant.
              Explanation - For the purposes of clause(c)-
              a) where a contract involves the payment of money, it is
c             not essential for the plaintiff to actually tender to the
              defendant or to deposit in court any money except when
              so directed by the court;
               b) the plaintiff must aver performance of, or readiness and
             . willingness to perform, the contract according to its true
D
               construction."
              26. Therefore, the plaint which seeks the relief of specific
      performance of the agreement/contract must contain all requirements
      of Section 16 (c) read with requirements contained in Form Nos. 47 and
      48 of Appendix 'A' ofC.P.C.
E              27. Article 54 of the Limitation Act provides a period of3 year
      for filing a suit for specific performance of contract/agreement. A period
      of3 years is required to be counted from the.date fixed by the parties for
      the performance, or if no such date is fixed, when the plaintiff has noticed
      that the performance is refused. The plaint should, therefore, also have
      necessary pleading satisfying the requirement of Article 54. ·
F
             · . 28. The expression "readiness and willingness" has been the
      subject matter of interpretation in many cases even prior to its insertion
      in Section 16 (c) of the Specific Relief Act, 1963. While examining the
      question as to how and in what manner, the plaintiff is required to prove
      his.financia.I readiness so as to enable him to claim specific performance
G     of the contract/agreement, the Privy Council in a leading case which
      arose from the Indian Courts (Bombay) in Bank oflndia Limited &
      Ors. Vs. Jamsetji A.H. Chinoy and Chinoy and Company, AIR
      1950 PC 90, approved the view taken by Chagla A.C.J ., and held inter
      alia that " it is 1101 necessary for the plaintiff to produce the money
H
     MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                             621
              [ABHAY MANOHAR SAPRE, J.]

or vouch .a concluded scheme for financing the transaction to prove        A
his readiness and' willingness."
       29. The following observations ofthe Privy Council are apposite:
               "21 .............. Their Lordships agree with this.
       conclusion and the grounds on which it was based. It is
       true tbatthe plaintiff 1 stated that he was buying for himself,     B
       that he had not sufficient ready money to meet the price
       and that no definite arrangements had been made for
       finding it at the time of repudiation. But iu order to prove
       himself ready and willing a purchaser has not necessarily
       to produce the money or to vouch a concluded scheme for             c
       financing the transaction. The question is one of fact, and
       in the present case the Appellate Court had ample material
       on which to found the view it reached. Their Lordships
       would only add in this connection that they fully concur
       with Chagla A.C.J. when he says:
                                                                           D
           "In my opinion. on the evidence already on record it
           was sufficient for the court to come to the conclusion '
           that plaintiff 1 was ready and willing to perform his part
           of the contract. It was not necessary for him to ' work
          ·out actual figures and satisfy the court what specific
           amount a bank would have advanced on the mortgage E
           of his property and the pledge of these shares. I do
           not think that any jury-if the matter was left to the
           jury in England-would have come to the conclusion
           that a man." in the position in which the plalntiffwas,;
           was not ready and willing to pay the purchase price of F
           the shares which he had bought from defendants 1 and
           2."
               For the foregoing reasons, their Lordships answer
       guestion(4) in the affirmative."
                                                (Emphasis supplied)        G
        30. This Court in Sukhbir Singh & Ors. Vs. Brij Pal Singh &
Ors., AIR 1996 SC 2510=(1997) 2 SCC 200 followed the aforesaid
principle with these words:
          "5. Law is not in douM and it is not a condition that the
                                                                           H
622            SUPREME COURT REPORTS                           [2017] 2 S.C.R.


A            respondents shonld have ready cash with them. The fact
             that they attended the Sub-Registrar's office to have the
             sale deed executed and waited for the petitioners to attend
             the office of the Sub-Registrar is a p<!sitive fact to prove
             that they had necessary funds to pass on consideration
             and had with them the needed money with them for
B
             payment at the time of registration. It is sufficient for the
             respondents to establish that they had the capacity to pay
             the sale consideration. It is not necessary that they should
             always carry the money with them from the date of the
             suit till the date of the decree. It would, therefore, be clear
c            that the courts below have appropriately exercised their
             discretion for granting the relief of specific performance
             to the respondents on sound principles of law."
             31. Keeping these broad principles of law in mind, which are
      now fairly well settled, let us examine .the facts of th.is case.
D             32. At the outset, we may observe that this Court is loath to
      undertake the task of appreciating the evidence in an appeal filed under
      Article 136 of the Constitution oflndia. It is more so when such appeal
      arises out of the judgment, which has recorded concurrent findings of
      fact.
E             33. However, since in this case, leave was granted and at the
      time of hearing, learned counsel for the parties took us through the
      evidence in support of their submissions, we considered it proper to peruse
      the evidence with a view to find out as to whether impugned judgment
      suffers from {lny error on facts or/and law?
 F           34. Coming first to the submission of the learned counsel for the
      appellant about the maintainability of suit, in our considered view, it has
      no merit for more than one reason.
              3 5. First, as rightly argued by learned counsel for the respondent,
      the objection regarding the maintainability of the Suit was neither raised
G     by the defendant in the written statement nor in first appeal before the
      High Court and nor in grounds of appeal in this Court.
               36. Second, since no plea was raised in the written statement, a
      fortiori, no issue was framed and, in consequence, neither the Trial
      Court nor.the High Court could render any finding on the plea.
H
      MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                                  623
               [ABHAY MANOHAR SAPRE, J.]

        37. Third, it is a well-settled principle oflawthatthe plea regarding    A
the maintainability of suit is required to be raised in the first instance in
the pleading (written statement) then only such plea can be adjudicated
by the Trial Court on its merits as a preliminary issue under Order 14
Rule .2 of the CPC. Once a finding is rendered on the plea, the same
can then be examined by the first or/and second appellate Court.
                                                                                 B
        38. It is only in appropriate cases, where the Court primafacie
finds by mere perusal of plaint allegations that the suit is barred by any
express provision oflaw or is not legally maintainable due to any legal
provision; a judicial notice can be taken to avoid abuse ofjudicial process
in prosecuting such suit. Such is, however, not the case here.
                                                                                 c
        39. Fourth, the decision relied on by the learned counsel forthe
appellant in the case ofl.S. Sikander (supra) turns on the facts involved
therein and is thus distinguishable.
        40. Lastly, the suit filed by the respondent seeking specific
performance of the agreement dated 05.03.1989 was maintainable for               D
the reason that the cause of action to file the suit arose on the expiry of
period mentioned in the agreement (31.12.1989) for its performance as
provided in Article 54 of the Limitation Act and it was rightly filed
immediately within 10 days on 10.01.1990.
       41. For the aforementioned reasons, we find no merit in the first         E
submission oflearned counsel for the appellant, which is rejected.
        42. Coming now to the second and third submission of learned
counsel for the appellant, we are of the considered opinion that it has
also no merit and hence deserve to be rejected for more than one reason.
         43. First, the plaintiff had pleaded the necessary requirements of      F
Section 16 (c) of the Specific Relief Act, 1963 read with the requirement
ofForms 47, 48 and Article 54 of the Limitation Act in the plaint; Second,
the defendant did not dispute the execution of agreement with the plaintiff
and, in fact, entered in correspondence with the plaintiff for incorporation
of some clauses therein; Third, the plaintiff proved her readiness and
                                                                                 G
willingness to perform her part of agreement and also proved her financial
capacity to purchase the suit property by adducing adequate evidence;
Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior
to execution of sale deed in terms of agreement dated 05.03.1989 and
was, therefore, required to pay balance sum of Rs.1,47,200/- to the
                                                                                 H
624             SUPREME COURT REPORTS                             (2017] 2 S.C.R.


A     defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more
      than 50% of the sale consideration to the defendant before the due date
      of execution of sale deed; Sixth, the plaintiff had also proved that she
      had the requisite financial capacity to pay the balance sale consideration
      to the defendant inasmuch as she had arranged the funds by obtaining
      loan from the LIC; Seventh, the plaintiff filed the suit immediately on
B
      expiry of the period within I 0 days to show her readiness and willingness
      to purchase the property; and Eighth, once it was held thatthe defendant
      committed breach in avoiding to execute the agreement, whereas the
      plaintiff performed her part of agreement and was ready and willing to
      perform her part, the Trial Court was justified in exercising its discretion
c     in favour of the plaintiff by passing a decree for specific performance of
      agreement against the defendant.

            44. In.our view, none of these findings could be assailed as being
  · either perverse or de hors the evidence or against any provision of law
    and nor these findings could be assailed on the ground that no judicial
D man could ever reach to such conclusion.

             45. We also do not find any merit in the submission of the learned
      counsel for the appellant when he contended that the plaintiff did not
      come to the Court with clean hands and hence the suit is liable to be
      dismissed.
E
              46. In our view, both the Courts below rightly rejected this
      submission. There is no evidence to sustain the submission. On the
      other hand, we find that it is the defendant, who despite accepting the
      substantial money (more than 50%) towards sale consideration from the
      plaintiff, avoided executing the sale deed on one or other false pretext.
F
              47. We also do not find any merit in the submission of the learned
      counsel for the appellant when he contended that since the plaintiff was
      insisting for execution of sale deed in relation to some more portions,
      which did not form part of the agreement and hence it should have been
      held that the plaintiff committed the breach of the agreement and not the
G
      defendant.
                48. In our view, the two Courts below rightly repelled this
        submission by holding thatthe plaintiff did not claim any relief in relation
        to the property which was not the subject matter of agreement and
      . confined his relief only in relation to the property which formed the subject
H
       MRS. A. KANTHAMANI v. MRS. NASREEN AHMED                              625
                [ABHAY MANOHAR SAPRE, J.]

matter of agreement dated 05 .03. I 989. We thus find no good ground to       A
differ with this finding of the two Courts below. It was rightly recorded.
        49. In our considered view, the two Courts below, therefore,
rightly rendered the aforementioned findings in favour of the plaintiff
and we find no difficulty in concurring with the findings, which in our
view do not call for any interference by this Court.                          B
        50. In the light of foregoing discussion, we find no merit in the
appeal. It is accordingly dismissed with ~ost quantified at Rs. I 0,000/-
payable by the appellant to the respondent.                         ·


Kalpana K.• Tripathy .                                     Appeal dismissed. . C