Case Note & Summary
The appellants (original defendant nos. 2 to 4) challenged the judgment and decree dated 18/02/2014 passed by the learned Judge, City Civil Court, Mumbai, decreeing Civil Suit No. 8509 of 1994 filed by the respondent no. 1 (original plaintiff) for specific performance of contract and other consequential reliefs. The suit pertained to Shop No. 9 admeasuring 430 sq. ft. situated on the ground floor of a building proposed to be constructed by defendant no. 1 at Sanduwadi, Chembur. The plaintiff claimed that in or about May 1988, an oral agreement was entered into with defendant no. 1, whereby defendant no. 1 agreed to sell the suit shop for a total consideration of Rs. 2,58,000/-. The plaintiff alleged that she paid Rs. 10,000/- as booking amount, and the balance was to be paid at the time of handing over possession, which was to be within one year. Construction was completed in 1990, but defendant no. 1 refused to hand over possession despite repeated requests. The plaintiff filed the suit in 1994. The defendants denied the oral agreement and payment. The trial court decreed the suit. On appeal, the High Court framed issues regarding the proof of the oral agreement, limitation, and readiness and willingness. The court held that the plaintiff failed to prove the oral agreement and payment of Rs. 10,000/- as there was no contemporaneous document or independent witness. The court also held that the suit was barred by limitation under Article 54 of the Limitation Act, 1963, as the plaintiff had notice of refusal in 1990 but filed the suit in 1994. Further, the plaintiff failed to plead and prove readiness and willingness to perform her part of the contract as required under Section 16(c) of the Specific Relief Act, 1963. Consequently, the appeal was allowed, the judgment and decree of the trial court were set aside, and the suit was dismissed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform her part of the contract - In the absence of such pleading and proof, decree for specific performance cannot be granted (Paras 18-20). B) Limitation Act, 1963 - Article 54 - Specific Performance - Limitation period of three years from the date fixed for performance, or if no date is fixed, when the plaintiff has notice that performance is refused - Where the agreement was oral and no date was fixed, the suit filed in 1994 was barred by limitation as the plaintiff had notice of refusal in 1990 (Paras 21-24). C) Evidence Act, 1872 - Section 101 - Burden of Proof - The plaintiff failed to discharge the burden of proving the oral agreement and payment of Rs.10,000/- as booking amount - The alleged oral agreement was not corroborated by any contemporaneous document or independent witness (Paras 14-17).
Issue of Consideration
Whether the plaintiff proved the oral agreement for sale of the suit shop and payment of consideration; whether the suit for specific performance was within limitation; whether the plaintiff was ready and willing to perform her part of the contract.
Final Decision
Appeal allowed. The judgment and decree dated 18/02/2014 passed by the learned Judge, City Civil Court, Mumbai in Civil Suit No. 8509 of 1994 is set aside. The suit stands dismissed. No order as to costs.
Law Points
- Specific performance
- oral agreement
- burden of proof
- limitation
- Article 54 Limitation Act
- 1963
- readiness and willingness
- Section 16(c) Specific Relief Act
