- In Asha Joseph vs Babu C George the Kerala HC has held that in a suit for specific performance of a sale deed, if the plaintiff has not given the details of the funds in her possession, or the manner in which she intends to raise them, it shall not be fatal to the suit as these are matters of evidence and need not be pleaded.
- In the instant case, the appellant/plaintiff had entered into a sale agreement in 2006 with the respondents, where they had agreed to sell the plaint scheduled property of 12.32 acres for a total sale consideration of Rs.55,44,000. On the date of the agreement, Rs.10,00,000 were paid in advance and the agreement was to execute the sale deed within three months.
- The appellant contended that she was always ready and willing to perform her part of the contract but the respondents were not. Thus, the appellant issued a notice through a lawyer and then filed the suit for specific performance, and in the alternative, the return of the advance money.
- The respondents, on the other hand, contended that there was never any sale agreement between the parties and that it was executed as a security when the respondents had borrowed Rs.10,00,000 from the appellant. It looked like a sale agreement, but the parties never intended to act on the same. They also contended that they were forced to sign the agreement as the appellant had played a fraud upon them and had exercised undue influence and coercion. Thus, the respondents claimed that the agreement was void ab initio and was never binding on them.
- The lower Court had partially decreed the suit by allowing the prayer for the return of the advance money, but disallowed the prayer for specific performance, as it disbelieved the case of the appellant. Aggrieved, the appellant moved the HC.
- The Court observed that section 16(c) of the Specific Relief Act mandates that the readiness and willingness have to be proved from the date of the contract to the date of the decree. It is necessary for the purchaser to show, in a suit for specific performance, that he was ready and willing to fulfill the terms of the agreement, and that he was willing to treat the contract as subsisting.
- The respondents had argued that the plaint did not disclose the details of the funds in the possession of the appellant or how she intends to raise the necessary funds to pay the amount remaining. Since section 16(c) had not been complied, the appellant was hence not entitled to the relief of specific performance.
- The Court observed that the appellant had approached and had requested the respondents to execute the deed in her favour, they had failed to perform their part of the contract.
- The Court also observed that the claim has to be backed by the means to perform the appellants part of the contract, but she does not have to go jingling about her money to demonstrate that she had the capacity to pay the purchase price. All that needs to be done by her is to show that she is really willing to purchase the property when the time to do so comes, and she has the means to arrange for the payment of consideration.
- The Court referred to the decision of the Apex Court in Nathulal vs Phoolchand AIR 1970 SC wherein it was held that to prove himself ready and willing, the purchaser need not produce the money or to vouch for a concluded scheme for financing the transaction.
- The Court also observed that the explanation to section 16(c) clearly shows that the money needs to be produced only when directed by the Court. She only has to prove that she has the capacity to raise the necessary funds, which she had done through the testimony of the witnesses.
- Thus, while setting aside the order of the lower Court, the appellant was granted the decree of specific performance relating to 2.22 acres of land out of the total 12.32 acres.
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