Case Note & Summary
The appellant, Mohammed Zain Khan, filed a Second Appeal before the Bombay High Court challenging the concurrent judgments of the trial court and the first appellate court dismissing his suit for specific performance of an agreement to sell dated 15th July 2011. The appellant claimed that the respondents agreed to sell a flat in a building to be constructed by them, and he paid part of the consideration. The respondents denied the agreement and contended that the appellant was not ready and willing to perform his part. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The High Court framed substantial questions of law regarding readiness and willingness, limitation, and part performance. The Court held that the appellant failed to prove readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963, as he did not deposit the balance amount or show financial capacity. The suit was also barred by limitation under Article 54 of the Limitation Act, 1963. The Court further held that the appellant could not claim protection under Section 53A of the Transfer of Property Act, 1882, as he failed to prove possession in part performance. The Second Appeal was dismissed, and the concurrent findings were upheld.
Headnote
A) Specific Relief Act - Agreement to Sell - Readiness and Willingness - Section 16(c) of Specific Relief Act, 1963 - The appellant failed to prove continuous readiness and willingness to perform his part of the contract, as he did not deposit the balance consideration or demonstrate financial capacity. The concurrent findings of the courts below were upheld. (Paras 1-32)
B) Limitation Act - Suit for Specific Performance - Article 54 of Limitation Act, 1963 - The suit was filed beyond the period of limitation as the date fixed for performance was not pleaded and the suit was not filed within three years from the date of refusal. (Paras 1-32)
C) Transfer of Property Act - Part Performance - Section 53A of Transfer of Property Act, 1882 - The appellant could not claim protection of part performance as he failed to prove that he was in possession in part performance of the agreement. (Paras 1-32)
Issue of Consideration
Whether the appellant was entitled to specific performance of the agreement to sell and whether the courts below erred in dismissing the suit.
Final Decision
The Second Appeal is dismissed. The concurrent findings of the courts below are upheld. No order as to costs.
Law Points
- Specific Relief Act
- 1963
- Section 16(c)
- readiness and willingness
- agreement to sell
- part performance
- limitation
- adverse possession
- Order 41 Rule 31 CPC
- substantial question of law
Case Details
2024 LawText (BOM) (04) 80
Second Appeal No.209 of 2022 with Interim Application No.290 of 2020
Mr. Nilesh Gala with Mr. Manish Gala, Mr. Minil Shah, Mr. Ashraf Kapoor and Ms. Alpa Gala i/b M/s. Law Square for the Appellant/Applicant; Mr. Bhooshan Mandlik for Respondent Nos.3 to 6; Mr. V.M. Parkar for Respondent Nos.8 to 10
Emnoy Properties India & Ors.
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Nature of Litigation
Civil suit for specific performance of an agreement to sell a flat.
Remedy Sought
Appellant sought specific performance of the agreement to sell dated 15th July 2011 and possession of the flat.
Filing Reason
Appellant claimed that respondents failed to execute the sale deed despite receiving part consideration.
Previous Decisions
Trial court dismissed the suit; first appellate court confirmed the dismissal.
Issues
Whether the appellant proved readiness and willingness to perform his part of the contract under Section 16(c) of the Specific Relief Act, 1963?
Whether the suit for specific performance was barred by limitation under Article 54 of the Limitation Act, 1963?
Whether the appellant was entitled to protection under Section 53A of the Transfer of Property Act, 1882?
Submissions/Arguments
Appellant argued that he was always ready and willing to perform the contract and had paid substantial consideration.
Respondents contended that the appellant failed to prove readiness and willingness and that the suit was time-barred.
Ratio Decidendi
For a decree of specific performance, the plaintiff must prove continuous readiness and willingness to perform his part of the contract from the date of the agreement till the date of the decree. Failure to deposit the balance consideration or demonstrate financial capacity indicates lack of readiness and willingness. The suit must be filed within the period of limitation as per Article 54 of the Limitation Act, 1963.
Judgment Excerpts
By this Appeal, Appellant challenges the judgment and decree dated 30th September 2021 passed by the learned District Judge-2, Mumbai City Civil Court, Mumbai in Civil Appeal No. 100 of 2019, confirming the judgment and decree dated 30th April 2019 passed by the learned Judge, City Civil Court, Mumbai in L.C. Suit No. 100 of 2018.
Procedural History
The appellant filed L.C. Suit No. 100 of 2018 for specific performance. The trial court dismissed the suit on 30th April 2019. The appellant appealed to the District Court, which dismissed the appeal on 30th September 2021. The appellant then filed the present Second Appeal before the High Court.
Acts & Sections
- Specific Relief Act, 1963: Section 16(c)
- Limitation Act, 1963: Article 54
- Transfer of Property Act, 1882: Section 53A
- Code of Civil Procedure, 1908: Order 41 Rule 31
