Case Note & Summary
The case involves two first appeals arising from suits for specific performance of agreements of sale dated 11.4.2002. The respondents (plaintiffs) claimed that the appellants (defendants) agreed to sell their respective lands at Rs.35,000 per acre. The plaintiffs paid earnest money and were ready to perform, but the defendants failed to execute the sale deeds. The trial court decreed the suits. The defendants appealed. The High Court noted that the plaintiffs did not examine the attesting witness to the agreements, nor the scribe. The plaintiffs' evidence was contradictory regarding the amount paid and whether possession was delivered. The court held that the plaintiffs failed to prove the execution of the agreements and their readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963. The appeals were allowed, setting aside the trial court's decrees.
Headnote
A) Specific Performance - Agreement of Sale - Proof of Execution - Section 16(c) Specific Relief Act, 1963, Section 68 Indian Evidence Act, 1872 - The plaintiffs failed to examine the attesting witness to the agreement and the scribe, and the evidence of the plaintiffs was inconsistent regarding payment of consideration and possession - Held that the plaintiffs did not discharge the burden of proving the agreement and their readiness and willingness, hence not entitled to specific performance (Paras 1-10).
Issue of Consideration
Whether the plaintiffs proved the execution of the agreement of sale and their readiness and willingness to perform their part of the contract, entitling them to specific performance.
Final Decision
Both appeals are allowed. The judgments and decrees passed by the trial court are set aside. The suits filed by the respondents stand dismissed. No order as to costs.
Law Points
- Specific performance
- burden of proof
- attesting witness
- agreement of sale
- Section 16(c) Specific Relief Act
- 1963
- Section 68 Indian Evidence Act
- 1872
Case Details
2010 LawText (BOM) (12) 2
First Appeal No.355 of 2010 with First Appeal No.365 of 2010
Mr. Nandode (holding for Mr. Amol S. Sawant) for appellants, Mr. S.P. Brahme for respondents
Laxman Haraklal @ Uttam Dorik, Dnyaneshwar Haraklal @ Uttam Dorik, Amrut Haraklal @ Uttam Dorik, Rameshwar Haraklal @ Uttam Dorik
Ukhaji Zinga Mahajan (in F.A.No.355/2010), Ramesh Ukhaji Mahajan (in F.A.No.365/2010)
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Nature of Litigation
First appeals against decree of specific performance of contract for sale of land.
Remedy Sought
Appellants sought setting aside of trial court decree granting specific performance or refund of amount.
Filing Reason
Appellants challenged the trial court's decree on the ground that the agreement was not proved and plaintiffs were not ready and willing.
Previous Decisions
Trial court decreed the suits in favor of respondents/plaintiffs.
Issues
Whether the plaintiffs proved the execution of the agreement of sale?
Whether the plaintiffs proved their readiness and willingness to perform the contract?
Submissions/Arguments
Appellants argued that the plaintiffs did not examine the attesting witness or scribe, and the evidence was contradictory.
Respondents argued that the agreement was proved and they were ready and willing.
Ratio Decidendi
In a suit for specific performance, the plaintiff must prove the execution of the agreement and his readiness and willingness to perform his part of the contract. Failure to examine the attesting witness and inconsistencies in evidence regarding payment and possession lead to failure to discharge the burden.
Judgment Excerpts
The Respondents in their respective suits have contended that the appellants herein had entered into two separate agreement for sale dated 11.4.2002, thereby agreeing to sell their separate lands to the Respondents herein.
The plaintiffs have not examined the attesting witness to the agreement. The scribe of the agreement is also not examined.
The evidence of the plaintiffs is also inconsistent regarding the payment of consideration and delivery of possession.
Procedural History
Respondents filed suits for specific performance in trial court. Trial court decreed the suits. Appellants filed first appeals before the High Court.
Acts & Sections
- Specific Relief Act, 1963: Section 16(c)
- Indian Evidence Act, 1872: Section 68
