Case Note & Summary
The case involves two first appeals arising from a common judgment and decree dated 10.1.2008 passed by the III Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 1190/1995. The appellant, Rambhau s/o Venkat Ramana Talewar, was the original defendant in the suit filed by the respondents (legal heirs of S.V. Naidu) seeking specific performance of an agreement to sell dated 18.4.1988 for a property in Nagpur. The trial court decreed the suit in favor of the plaintiffs, directing the defendant to execute the sale deed upon receipt of the balance consideration of Rs. 1,10,000/-. The defendant appealed against this decree. The respondents/plaintiffs also filed a cross-appeal (First Appeal No. 393/2010) seeking enhancement of compensation, but that appeal was dismissed as not pressed. The key facts are that an agreement to sell was executed on 18.4.1988 for a total consideration of Rs. 1,50,000/-, with an earnest amount of Rs. 40,000/- paid. The balance was to be paid at the time of registration. The plaintiffs alleged that the defendant failed to execute the sale deed despite repeated requests. The defendant denied the agreement and claimed that the document was fabricated. The trial court held that the agreement was proved and that time was not the essence of the contract, but decreed specific performance. On appeal, the High Court examined the issue of readiness and willingness of the plaintiffs. The court noted that the plaintiffs did not deposit the balance consideration in court or show any steps taken to arrange the funds. The plaintiffs did not examine any witness to prove their financial capacity. The court held that mere filing of the suit is not sufficient to prove readiness and willingness; the plaintiff must show continuous readiness and willingness from the date of the contract till the decree. The court found that the plaintiffs failed to discharge this burden. The court also noted that the suit was filed after a delay of about 7 years, and the plaintiffs did not explain the delay. The court concluded that the plaintiffs were not ready and willing to perform their part of the contract and therefore were not entitled to specific performance. The decree of the trial court was set aside, and the suit was dismissed. The cross-appeal was dismissed as not pressed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract - Mere filing of suit is not sufficient - Conduct of plaintiff throughout is relevant - In the present case, plaintiff failed to deposit balance consideration or show financial capacity - Held that plaintiff was not ready and willing to perform the contract (Paras 10-15). B) Contract Act, 1872 - Section 55 - Time not essence of contract - Even if time is not essence, plaintiff must show readiness and willingness - Delay in performance coupled with lack of readiness disentitles specific performance - Held that plaintiff's conduct disentitled him to relief (Paras 12-15). C) Evidence - Burden of proof - Plaintiff must prove readiness and willingness - Failure to lead evidence of financial capacity or steps to perform contract - Held that burden not discharged (Paras 13-15).
Issue of Consideration
Whether the plaintiff was ready and willing to perform his part of the contract for sale of immovable property and whether the decree for specific performance was justified.
Final Decision
First Appeal No. 797/2008 is allowed. The judgment and decree dated 10.1.2008 passed by III Joint Civil Judge, Sr.Dn., Nagpur in Special Civil Suit No. 1190/1995 is set aside. The suit stands dismissed. First Appeal No. 393/2010 is dismissed as not pressed. No order as to costs.
Law Points
- Specific performance
- Readiness and willingness
- Time not essence of contract
- Conduct of plaintiff
- Burden of proof
