Case Note & Summary
The appellant, Kishan Ghorpade, filed a suit for rescission of an agreement to sell dated 17.06.1978 and for possession of the suit property, claiming that the respondent, Shivaji Thombre, had failed to pay the balance consideration of Rs. 5,500/- despite notices. The respondent admitted the agreement and possession but contended that he had paid Rs. 2,000/- on 18.06.1978 and the remaining Rs. 3,500/- at the Registrar's office, and that the appellant avoided execution. The trial court decreed the suit, holding that the respondent failed to prove readiness and willingness. The lower appellate court reversed, finding the respondent had paid the balance and was entitled to protection under Section 53A of the Transfer of Property Act, 1882. In this second appeal, the High Court examined whether the respondent had proved his readiness and willingness. The court noted that the respondent's case of payment on 18.06.1978 was inconsistent with the agreement's schedule, and the evidence of payment at the Registrar's office was not credible. The court held that the lower appellate court's findings were perverse and not based on proper appreciation of evidence. Consequently, the High Court allowed the appeal, set aside the appellate judgment, and restored the trial court's decree, granting the appellant rescission of the agreement and possession of the suit property.
Headnote
A) Transfer of Property Act - Section 53A - Protection of Possession - Readiness and Willingness - The respondent claimed protection under Section 53A of the Transfer of Property Act, 1882, alleging he had paid the entire consideration and was ready to perform. The court held that the burden was on the respondent to prove his readiness and willingness, and he failed to discharge that burden. The appellate court's finding that the respondent had paid the balance consideration was based on erroneous appreciation of evidence. (Paras 6-8) B) Contract Law - Rescission of Agreement - Failure to Perform - The appellant sought rescission of the agreement to sell dated 17.06.1978 on the ground that the respondent failed to pay the balance consideration. The court held that since the respondent failed to prove his readiness and willingness, the appellant was entitled to rescind the agreement and recover possession. (Paras 9-10)
Issue of Consideration
Whether the respondent/defendant proved his readiness and willingness to perform his part of the agreement to sell, entitling him to protection under Section 53A of the Transfer of Property Act, 1882.
Final Decision
The High Court allowed the second appeal, set aside the judgment of the lower appellate court, and restored the decree of the trial court. The suit for rescission of the agreement and possession was decreed in favor of the appellant.
Law Points
- Section 53A Transfer of Property Act
- 1882
- readiness and willingness to perform contract
- burden of proof
- rescission of contract
- possession under agreement to sell
