Chittatosh Mookerjee, J.
1. On 14th May, 1971 a registered deed of agreement was made between the plaintiff-respondent and the defendant-appellant under which the defendant appellant contracted to sell Premises No. 9/1/C, Ekbalpur Lane measuring 3 cottahs 14 ohittaks 20 sq. ft. of land with structures standing thereon to the plaintiff-respondent at a price of Rs. 30,000/-. It is also admitted that at the time of the execution of the said agreement, the plaintiff-respondent had paid to the defendant-appellant a sum of Rs. 9,999/- by way of earnest money and part payment in terms of the said agreement. The learned subordinate Judge, 5th Court, Alipore has decreed the suit for specific performance of the said agreement of sale dated 14th May, 1971, inter alia, directing the defendant to execute and register the deed of conveyance in respect of the suit property in favour of the plaintiff on accepting the balance consideration of Rs. 20,001/-. The learned subordinate Judge has rejected the plaintiff-respondent's claim that on 18th June, 1971 he had paid to the defendant a further sum of Rs. 4,000/-towards part payment of the consideration money and, he was liable to pay Rs. 16,001 /-as the balance consideration.
2. Mr. Sudhis Das Gupta, learned advocate for the defendant-appellant, has not challenged the finding of the learned subordinate Judge that the aforesaid agreement dated 14th May, 1971 was not a loan transaction as claimed by the defendant in the trial Court and that the same was really an agreement for sale of the suit property. Mr. Das Gupta's only submission is that specific performance of the said contract cannot be enforced in favour of the plaintiff respondent because he had violated the essential terms of the contract by offering to pay Rs. 16,001/- instead of Rs. 20,001/- as the balance consideration money both before the institution of the instant suit and also thereafter. Secondly, the plaintiff's case on 18th June, 1971 he had paid a further sum of Rs. 4,000/- to the defendant, was found to be not true, therefore, it ought to be held that by offering Rupees 16,001/- and not the full amount of the balance consideration money, the plaintiff had failed to aver and prove that he had performed and had been always ready and willing to perform the essential terms of the contract which were to be performed by him. Mr. Das Gupta in support of his submission has relied upon the decisions reported in Manik Chandra Bhowmik v. Ahhoy Charan Gope, (1916) 24 Cal LJ 90 : (AIR 1917 Cal 283) and Nalini Nath Mitra v. Bepin Behari Das : AIR1956Cal525 .
3. Unless and until the contrary is proved according to Expln. (i) of Section 10 of the Specific Relief Act, 1963, the Court shall presume that the breach of a contract to transfer immovable property cannot he adequately relieved by compensation in money. The plaintiff in a suit for specific performance of an agreement to sell an immovable property, can obtain a decree only by praying that there was a concluded contract and his relief was not barred by limitation. He cannot enforce specific performance when he has become incapable of performing or violates any essential term of the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with or in subversion of the relation intended to be established by the contract. His relief would be also barred when he 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 terms the performance of which has been prevented or waived by the defendant (vide Clauses (b) and (c) of Section 16 of the Specific Relief Act, 1963).
4. The main point in this appeal is whether by tendering to the defendant Rs. 16,001/-and not the full balance sum payable by him under the contract and also by averring that the balance consideration payable by him was Rs. 16,001/- and not Rs. 20,001/- as found by the trial Court, the plaintiff had violated the essential terms of the contract and had also failed to aver and prove that he had performed and had always been ready and willing to perform the essential terms of the said contract.
5. We may first examine the averments made in the plaint of the suit brought by the plaintiff-respondent. The plaintiff in para (2) of his plaint had set out the terms and conditions of the agreement dated 14th March, 1971 for sale of the suit property at the fixed price of Rs. 30,000/-. It is not disputed that on the said date the plaintiff had paid Rs. 9,999/- as pleaded in para (2) of the plaint. The plaintiff in para (3) of his plaint, inter alia, pleaded that the defendant bad delivered land measuring about 1/2 cottah inside the suit property whereupon the plaintiff had constructed and erected two-roomed brick-built structure at his own cost of Rs. 2,500/- with the knowledge and consent of the defendant and that the said two newly constructed rooms were in plaintiff's possession. The plaintiff in para (4) of his plaint averred 'that thereafter the defendant received a further sum of Rs. 4,000/- (Rupees Four thousand) from the plaintiff towards further part payment of the consideration on 18-6-1971' for the purpose of making two rooms vacant to be delivered to the plaintiff in terms of the agreement and promised that the sale deed in favour of the plaintiff in respect of the suit properties will be registered on 25th June, 1971, the date mutually settled between the parties. The plaintiff pleaded in para (5) that he had got the sale deed drafted and had purchased the requisite stamp papers and 25th June, 1971 was fixed for registration but due to sudden Calcutta Bandh, the deed could not be registered. According to the averments made in para (6) of the plaint, the plaintiff had approached the defendant on several occasions for registering the sale deed in his favour but the defendant had failed. The defendant had allegedly approached the plaintiff to take refund of Rs. 16,499/- and to give up his claim for specific performance of the contract.
6. The defendant in his written statement had claimed that the transaction between the parties was a loan transaction. She had denied that the plaintiff had constructed structures as claimed in para (3) of the plaint. The defendant also denied that she had received a further sum of Rs. 4,000/-. The defendant also disputed the right of the plaintiff to obtain specific performance of the said agreement. The learned subordinate Judge rejected the defendant's case that the transaction between the parties was in substance a loan and the price fixed for the property was not shockingly low and there was nothing unconscionable in such a valuation. The learned Subordinate Judge, however, disbelieved the plaintiff's case that he had paid the defendant a further sum of Rs. 4,000/-by way of part payment of the balance consideration money. The receipt (Ext, 3) produced by the plaintiff and also the oral evidence adduced to prove the payment of said sum of Rs. 4,000/- were not believed and the Court below found that the plaintiff had failed to prove payment of Rs. 4,000/- to Sahida Bibi on 18th June, 1971. The learned subordinate Judge did not record any finding as to whether or not the plaintiff had made constructions upon the suit property as claimed by him. The plaintiff respondent in this appeal did not challenge the correctness of the trial Court's finding about non payment of Rs. 4,000/-.
7. In Manik Chandra Bhowmik v. Abhoy Charan Gopc (AIR 1917 Cal 283) (supra), the plaintiff sought specific performance of an oral contract of sale: The price was fixed at Rs. 400/-; one rupee was paid on the date of the agreement which was to be carried out and completed within 10 days. The case of the plaintiff was that he had paid a second instalment of the consideration, namely, Rs. 104/- and that although subsequently had offered to pay the balance Rs. 295/-, the defendant did not accept the money and had refused to execute the conveyance. The defendant denied the alleged payment of Rs. 104/-. The plaintiff brought a suit for specific performance of the said contract. Both the trial Court and the lower appellate Court concurrently found in defendant's favour that Rs. 104/- was not paid by the plaintiff to the defendant, but nonetheless decreed the suit in plaintiff's favour. Sir Asutosh Mookerjee and Roe, JJ., in Manik Chandra Bhowmik's case (supra), upheld the submission of the defendant appellant that the plaintiff was not entitled to obtain specific performance of the said contract. Their Lordships, inter alia, held that the plaintiff who seeks specific performance of a contract has to show, first, that he had performed or been ready and willing to perform the terms of the contract on his part to be then performed, and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done. A default on his part in either of these respects furnishes a ground upon which the action may be resisted. The learned Judges held that it was obligatory upon the vendee to tender the balance of the purchase money to the vendor and that as he did not do so within the time fixed, there was default on his part in the performance of an essential term of the contract. The fact that the tender of the full amount would never have been accepted by the vendor would be no ground for non-performance on the part of the vendee. The plaintiff in the instant case falsely averred in his plaint that on 18th June, 1971 he had paid a further sum of Rs. 4,000/- towards part payment of the consideration money and at the trial the plaintiff unsuccessfully asserted the said claim. Neither in his plaint nor at the trial, he had expressed his readiness and willingness to pay the full amount of the consideration money less Rs. 9,999/- which was admittedly paid by the plaintiff to the defendant at the time of the execution of the agreement for sale of the suit property. We have already referred to provisions of Section 16 of the Specific Relief Act, 1963 which has now expressly provided that an averment about readiness and willingness was necessary in a suit for specific performance but this has been throughout the law (vide Ardeshir H. Mama v. Flora Sassoon, (1928) 55 Ind App 360, 375 : (AIR 1928 PC 208 at pp. 217-218). It is true that under Explanation (i) to Section 16 of the Specific Relief Act, 1963, it is not essential for the plaintiff to actually tender the money to the defendant or to deposit in Court any money except when so directed by the Court. Still under Expln. (ii) of Section 16 the plaintiff must aver her readiness and willingness to perform the contract according to its true construction. Pollock and Mulla in their Indian Contract and Specific Relief Acts, 9th Edn., at page 855, have pointed out that Section 16, Clauses (b) and (c) together with the explanation merely give effect to the decided cases. In Srish v. Banomali, (1904) ILR 31 Cal 584, 596 (PC), the Privy Council dismissed a suit for specific performance as the conduct of the plaintiff 'was at variance with and amounted to a subversion of the relation intended to be established by the compromise'.
8. The facts of the present case are different from those in Arjuna v. Lakshmi, AIR 1949 Mad 265. In the said Madras case although the plaintiff had alleged that the consideration payable by him was different from the real amount, he had also alleged 'he has no objection to paying the defendant any sum that the Court be pleased to fix'. The plaintiff respondent of the present appeal in terms of Expln. (ii) to Section 16 of the Specific Relief Act, 1963 never averred or proved his readiness and willingness to perform the contract according to its true construction.
9. We have already observed that the conduct of the plaintiff proved in the instantcase was at variance with the real contractbetween him and the defendant appellant regarding the payment of the balance consideration money for sale of the suit property to the plaintiff. We have alreadypointed out that although the plaintiff didnot in fact pay to the defendant Rs. 4,000/-in addition to a sum of Rs. 9,999/- paid byhim at the time of the execution of the agreement for sale, the plaintiff had pleaded andalso tried to unsuccessfully prove that he wasentitled to obtain specific performance of thesaid contract by paying Rs. 16,499/-. Onlyby averring and praying his readiness andwillingness to pay the balance sum of Rupees20,001/- (Rs. 30,000/- - Rs. 9,999/-), theplaintiff would be entitled to enforce specificperformance of his agreement with the defendant; but not only he had purported tofalsely claim that he had paid another sumof Rs. 4,000/- to the defendant but alsoclaimed that he was entitled to deduction ofanother sum of Rs. 2,500/- for the cost ofstructures built by him inside the suit property (vide para 3 of the plaint). At thetrial the plaintiff not even pressed his saidcase pleaded in para 3 of the plaint. Therefore, we are bound to hold that specific performance of the contract cannot be enforcedin favour of the plaintiff because the samewas barred under Clauses (b) and (c) of Section 16 of the Specific Relief Act.
10. Although we have come to the conclusion that the plaintiff's right to obtain specific performance is barred, his suit cannot be dismissed in its entirety and he ought to be granted a decree for refund of Rs. 9,999/- which was admittedly paid by 'him to the defendant at the time of the execution of the agreement for sale of the suit property. Although it is true that the plaintiff did not prefer any appeal, this case is fit for exercising the Court's power under Rule 33, Order 41 of the Civil P. C. by passing a decree in plaintiff respondent's favour for refund of the sum advanced by him to the defendant appellant. The plaintiff has succeeded in proving that on 14th June, 1971 there was a valid agreement between the parties for sale of the suit property at a price of Rs. 30,000/- and that on the same date he bad paid the defendant a sum of Rs. 9,999/-as advance and the latter had granted a receipt. The defendant who did not deny the the receipt of Rs. 9,999/- had falsely claimed that the transaction between the parties was a loan transaction in substance. The plaintiff's claim for specific performance of the said agreement dated 14th May. 1971 ought to be refunded because of his failure to aver and prove his readiness and willingness to pay the balance amount of the consideration money. But in the facts of this case the plaintiff may legitimately ask for refund of the said sum of Rs. 9,999/- with interest.
11. The plaintiff-respondent in his plaint did not alternatively pray for passing a decree for refund of the aforesaid sum paid as advance to the defendant-appellant. Although, we are of the view that it would be appropriate to grant the plaintiff the said relief by way of refund in terms of Clause (b) of subsection (1) of Section 22 of the Specific Relief Act, 1963, the main part of Sub-section (2) of Section 22 of the Specific Relief Act, 1963 would be a bar to straightway granting such a decree in this appeal. The Sub-section (2) of Section 22, inter alia, lays down that no relief under Clause (a) or Clause (b) of Subsection (1) of Section 22 shall be granted unless it has been specifically claimed; the Court under proviso to sub-section (2) of Section 22 at any stage of the proceeding is competent to allow the plaint of the suit to be amended on such terms as may be just for including a claim for such. relief. The expression 'any stage of the proceeding' would obviously include an Appeal from Original Decree passed in a suit for specific performance. Therefore, we propose to allow the plaintiff-respondent to give an opportunity to amend his plaint in terms of the said proviso to Sub-section (2) of Section 22 of the Specific Relief Act. For this purpose, a remand of the case would be necessary for amendment of the pleadings deciding the question of court-fees and also for passing a decree for refund in plaintiff respondent's favour. No other issue would remain open.
12. We accordingly allow this appeal in part, set aside the judgment and decree of the trial Court and refuse the plaintiff re-repondent's prayers for specific performance and for damages. We remand the case to the trial Court for fresh disposal in, accordance with the directions made in this judgment. In case, within three months from the date of the service of the notices of the arrival of the records upon the plaintiff's lawyer, the plaintiff files an application for amendment of his plaint by way of inclusion of a prayer for refund of Rs. 9,999/- with interest at the rate of 6% per annum from 14th of May, 1971 i.e., the date of payment of the said sum to the defendant, the Court below will allow the said prayer for amendment of the plaint and pass a decree in plaintiff's favour for recovery of the said sum of Rs. 9,999/- with interest at the rate of 6% per annum from the aforesaid date till recovery- Before passing the said decree the Court below will consider the sufficiency of the court-fees paid on the plaint. In case, no such application for amendment of the plaint is filed by the plaintiff within the afore-said time, the trial Court will dismiss the suit with costs.
13. There will be no order as to costs in this appeal.
14. Let the records be sent down ex-peditiously.
R.K. Sharma, J.
15. I agree.