Case Note & Summary
The respondent (original plaintiff) filed a suit for specific performance of an agreement for sale of immovable property. The suit property was originally owned by Sampatrao Bhausaheb Kalate. In 1984, Vijaykumar, predecessor of the appellants (defendants), agreed to sell the property to the plaintiff's predecessor. The entire consideration was paid, and possession was handed over to the plaintiff. The defendants failed to execute the sale deed, leading to the suit. The trial court decreed the suit, and the appellate court confirmed the decree. The appellants challenged the concurrent decrees in second appeal on two grounds: (1) want of averment and proof of readiness and willingness by the plaintiff, and (2) insufficient stamp duty on the agreement for sale. The High Court held that the plaintiff's payment of full consideration and taking possession, along with filing the suit, demonstrated readiness and willingness. The appellate court had adequately considered this issue, and it was a finding of fact not open to interference. Regarding stamp duty, the court noted that the agreement was insufficiently stamped but could be admitted after payment of deficit duty and penalty, which the appellate court had directed. The High Court dismissed the second appeal, upholding the concurrent decrees.
Headnote
A) Specific Relief Act - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - The plaintiff's payment of full consideration and taking possession of the suit property, coupled with the filing of the suit for specific performance, sufficiently demonstrates readiness and willingness. The appellate court's finding on this issue, though not discussed by the trial court, was based on evidence and is a finding of fact not open to interference in second appeal. (Paras 5-7)
B) Stamp Act - Admissibility of Agreement - Section 34 Bombay Stamp Act, 1958 - An agreement for sale insufficiently stamped is not admissible in evidence until the deficit stamp duty and penalty are paid. However, the court can impound the document and direct payment of the deficit duty and penalty, after which the document becomes admissible. The appellate court's direction to pay deficit stamp duty and penalty cures the defect. (Paras 8-9)
Issue of Consideration
Whether the plaintiff proved readiness and willingness to perform her part of the contract, and whether the agreement for sale was admissible in evidence despite insufficient stamp duty.
Final Decision
The Second Appeal is dismissed. The concurrent judgments and decrees of the courts below are upheld. The appellants are directed to execute the sale deed in favor of the respondent.
Law Points
- Readiness and willingness in specific performance
- Stamp duty on agreement for sale
- Concurrent findings of fact
- Section 16(c) Specific Relief Act
- 1963
- Section 34 Bombay Stamp Act
- 1958
Case Details
2019 LawText (BOM) (12) 77
Second Appeal No.63 of 2015 with Interim Application No.1 of 2019 and Civil Application No.212 of 2015
Mr.Mangal Bhandari i/by Mr.Mangesh M. Deshmukh for the Appellants/Applicants, Mr.Rahul S. Kadam for the Respondent No.1
Smt.Sushila Vijaykumar Pol & Ors.
Mrs.Nirmala @ Mangal Bajram Gaikwad
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Nature of Litigation
Second appeal against concurrent decrees in a suit for specific performance of an agreement for sale.
Remedy Sought
The appellants (original defendants) sought to set aside the decrees directing execution of a sale deed in favor of the respondent (original plaintiff).
Filing Reason
The appellants challenged the concurrent decrees on grounds of want of proof of readiness and willingness and insufficient stamp duty on the agreement.
Previous Decisions
The trial court decreed the suit; the appellate court confirmed the decree.
Issues
Whether the plaintiff proved readiness and willingness to perform her part of the contract?
Whether the agreement for sale was admissible in evidence despite insufficient stamp duty?
Submissions/Arguments
Appellants argued that there was no averment or proof of readiness and willingness by the plaintiff.
Appellants argued that the agreement for sale was not properly stamped and thus inadmissible.
Ratio Decidendi
In a suit for specific performance, readiness and willingness can be inferred from payment of full consideration, taking possession, and filing of the suit. A finding of fact by the appellate court on this issue is not open to interference in second appeal. An insufficiently stamped agreement can be admitted after payment of deficit stamp duty and penalty as per Section 34 of the Bombay Stamp Act, 1958.
Judgment Excerpts
There is no dispute between the parties as to the execution of the agreement for sale or payment of the entire consideration reserved under the agreement for sale by the plaintiff.
The only two grounds urged before this Court in the Second Appeal concern :- (i) want of averment and proof of readiness and willingness on the part of the plaintiff or her predecessor for performance of their part of the contract; and (ii) want of payment of proper stamp duty on the agreement for sale.
The learned District Judge, in the civil appeal preferred from the original decree, has satisfactorily considered the issue.
The plaintiff's payment of full consideration and taking possession of the suit property, coupled with the filing of the suit for specific performance, sufficiently demonstrates readiness and willingness.
An agreement for sale insufficiently stamped is not admissible in evidence until the deficit stamp duty and penalty are paid.
Procedural History
The respondent filed a suit for specific performance in the trial court, which was decreed. The appellants appealed to the District Court, which confirmed the decree. The appellants then filed a second appeal in the High Court, which was dismissed.
Acts & Sections
- Specific Relief Act, 1963: Section 16(c)
- Bombay Stamp Act, 1958: Section 34
