Case Note & Summary
The case originated from a suit for specific performance of an agreement for sale dated 17 August 1973 concerning immovable property. The plaintiff, Vithal Pandurang Gurasale, contended that the defendant, Pandurang Jaysing Salunkhe, had executed the agreement for a total consideration of Rs.3100, out of which Rs.2600 had already been paid. The defendant, however, claimed that the transaction was a money lending arrangement and that the agreement was executed merely as security. The trial court declined specific performance, holding that the agreement was a security document, but directed the defendant to refund Rs.2500 with interest. On appeal, the District Court reversed this finding, concluding that the true nature of the transaction was an agreement for sale. Nevertheless, it dismissed the appeal on the ground that the plaintiff had failed to prove readiness and willingness as mandated by Section 16(c) of the Specific Relief Act, 1963. The appellate court observed that the plaintiff's willingness to pay the balance consideration and complete the sale was conditional upon the deletion of the names of the defendant's son and sister from the property records, which did not constitute absolute readiness. The plaintiff then preferred a second appeal before the Bombay High Court, which was admitted on the substantial question of law regarding the interpretation of Section 16 of the Specific Relief Act. During the hearing, the respondent sought to support the decree by challenging the appellate court's finding that the transaction was an agreement for sale, asserting that it was instead a money lending transaction, and argued that this could be done without filing a cross-objection under Order XLI Rule 22 of the Code of Civil Procedure, 1908. The High Court examined the scope of Order XLI Rule 22, as amended in 1976, and referred to decisions of the Supreme Court, including Banarsi v. Ram Phal and earlier Bombay High Court rulings. The court noted that while a respondent wholly successful in the decree may support it without cross-objection, any challenge to adverse findings requires a cross-objection or a separate appeal. The judgment excerpt ends without recording the final decision on the second appeal itself. The legal principles discussed, however, affirm that readiness and willingness must be unconditional and that procedural rules restrict the manner in which adverse findings may be contested.
Headnote
A) Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - Absolute and unconditional readiness required from date of contract to date of decree - Appellate Court found plaintiff's offer to pay balance consideration conditional upon deletion of names of certain persons from property records, thus not satisfying Section 16(c) - Held that conditional readiness does not meet statutory mandate (Paras 5-6).
B) Civil Procedure - Appeals - Order XLI Rule 22 Code of Civil Procedure, 1908 - Scope of respondent's right to support decree without cross-objection - After 1976 amendment, respondent favoured with entire decree may support it without cross-objection but cannot challenge adverse findings without filing cross-objection - Following Banarsi v. Ram Phal (2003) 9 SCC 606 and Dadarao Tukaram Kosare v. Shyam Cooperative Housing Society (2004) 4 Mah.L.J. 553, settled that respondent cannot seek reversal of adverse finding unless cross-objection is preferred (Paras 8-11).
Issue of Consideration
Whether the plaintiff in a suit for specific performance established readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963, and whether a respondent in a second appeal can challenge findings recorded against him without filing cross-objections under Order XLI Rule 22 of the Code of Civil Procedure, 1908
Law Points
- Requirements of readiness and willingness under Section 16(c) of the Specific Relief Act
- 1963
- Scope of Order XLI Rule 22 of Code of Civil Procedure
- 1908
- Effect of 1976 amendment on respondent's right to support decree without cross-objection
- Absolute and unconditional performance essential for specific performance
Case Details
2005 LawText (BOM) (02) 315
Second Appeal No. 394 of 1985
M.S. Chavan (Appellant), P.J. Shinde (Respondents)
Vithal Pandurang Gurasale
Pandurang Jaysing Salunkhe (since deceased through LRs.) 1(a) Smt.Leela Pandharinath Salunke, 2(b) Jagannath Pandharinath Salunke, 3(c) Mohan Pandharinath Salunke, 4(d) Sou.Rekha Raju Pawar, 5(e) Sou.Chhaya Hanmant Chavan, 6(f) Sou.Shalan Tatya Chavan, 7(g) Sou.Malan Rama Pawar, and Bapu Jaysing Salunkhe
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Nature of Litigation
Civil suit for specific performance of agreement for sale of immovable property.
Remedy Sought
Plaintiff sought a decree for specific performance of agreement dated 17-08-1973 and execution of sale deed.
Filing Reason
Plaintiff alleged defendant avoided executing sale deed despite receiving substantial part of consideration; defendant claimed transaction was a money lending arrangement and agreement was a security document.
Previous Decisions
Trial court denied specific performance but ordered refund of Rs.2500 with interest at 6% per annum. First appellate court held that the transaction was an agreement for sale but dismissed appeal for lack of readiness and willingness under Section 16(c) of the Specific Relief Act, 1963.
Issues
Whether the plaintiff proved readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963.
Whether the respondent in a second appeal, in whose favor the decree stands in its entirety, can challenge findings recorded against him without filing cross-objections under Order XLI Rule 22 of the Code of Civil Procedure, 1908.
Submissions/Arguments
Appellant contended that plaintiff had substantially complied with Section 16(c) by paying major part of consideration and the offer to pay balance was unconditional, thus readiness and willingness were established.
Respondent argued that plaintiff's readiness was conditional as he sought deletion of other persons' names before completing sale, and also sought to support the decree by challenging the appellate court's finding that the transaction was an agreement for sale, claiming it was a money lending transaction and that without cross-objection such challenge was permissible.
Ratio Decidendi
1. Readiness and willingness under Section 16(c) of the Specific Relief Act must be absolute and unconditional; a conditional offer to perform does not satisfy the requirement. 2. Under Order XLI Rule 22 CPC, as amended in 1976, a respondent in whose favour the whole decree is passed may support the decree without filing cross-objection but cannot seek to reverse or modify a finding adverse to him unless he files a cross-objection or appeal.
Judgment Excerpts
the Appellant has not complied with the requirement of section 16(c) of the said Act of 1963 by establishing readiness and willingness
readiness shown by the Appellant was conditional in the sense that the Appellant offered to pay balance consideration of Rs.500/- and to complete the transaction only on deletion of the entries of the names of the Respondent No.2 and the Respondent No.1's sister Bhimabai
Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge in any finding adverse to him as the decree is entirely in his favour and he may support the decree without ...
Procedural History
Plaintiff filed suit for specific performance. Trial court denied specific performance but decreed refund of Rs.2500 with interest. Plaintiff appealed. First appellate court held that the transaction was an agreement for sale but dismissed appeal for lack of readiness and willingness under Section 16(c) of the Specific Relief Act, 1963. Plaintiff filed second appeal before High Court, which was admitted on the substantial question of law regarding interpretation of Section 16 of the Specific Relief Act. During hearing, respondent sought to support decree by challenging adverse finding without filing cross-objection.
Acts & Sections
- Specific Relief Act, 1963: Section 16, Section 16(c)
- Code of Civil Procedure, 1908: Order XLI Rule 22, Order XLII Rule 1
