Case Note & Summary
The appellant (original plaintiff) filed a suit for specific performance of an agreement to sell a house property executed by defendant no.1 as Karta of the joint family. The trial court dismissed the suit for specific performance but granted refund of earnest money. The first appellate court partly allowed the appeal but concurred that specific performance could not be granted. The plaintiff filed a second appeal under Section 100 CPC. The High Court framed a substantial question of law regarding the plaintiff's readiness and willingness. The court held that the plaintiff failed to prove that he had the financial capacity to pay the balance consideration and was ready and willing to perform his part. The concurrent findings of fact were not perverse and could not be interfered with. The appeal was dismissed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Burden of Proof - The plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the decree. Mere payment of earnest money is insufficient; the plaintiff must show financial capacity to pay the balance consideration. (Paras 4-6)
B) Civil Procedure Code, 1908 - Section 100 - Second Appeal - Concurrent Findings of Fact - The High Court in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The finding that the plaintiff was not ready and willing is a finding of fact not open to challenge. (Para 7)
C) Contract Act, 1872 - Section 55 - Time as Essence - In agreements for sale of immovable property, time is not ordinarily of the essence unless expressly stipulated. However, the plaintiff must still show readiness and willingness within a reasonable time. (Para 5)
Issue of Consideration
Whether the plaintiff was ready and willing to perform his part of the contract for specific performance of an agreement to sell immovable property.
Final Decision
The second appeal is dismissed. The judgment and order of the Addl. District Judge, Solapur dated 30th November, 1989 is confirmed. No order as to costs.
Law Points
- Specific performance
- Readiness and willingness
- Burden of proof
- Section 16(c) Specific Relief Act
- 1963
- Concurrent findings of fact
- Second appeal limited to substantial question of law
Case Details
SECOND APPEAL NO.576 OF 1990
Mr. V.B. Rajure for the appellants, Mr. S.B. Deshpande for respondent Nos.1 to 3 and 6, Mr. Padmakant M. Shah for respondent No. 3 to 6
Shri Dharmarao Sidhappa Shetgar (since deceased through LRs)
Shri Gopal Shriniwas Shirsikar & Ors.
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Nature of Litigation
Civil suit for specific performance of an agreement to sell immovable property.
Remedy Sought
The plaintiff sought specific performance of the agreement to sell the suit house, or in the alternative, refund of earnest money.
Filing Reason
The plaintiff alleged that defendant no.1 as Karta of joint family agreed to sell the suit house and received earnest money, but failed to execute the sale deed.
Previous Decisions
The trial court (Joint Civil Judge, Junior Division, Solapur) dismissed the suit for specific performance but ordered refund of earnest money on 25th November, 1986. The first appellate court (Addl. District Judge, Solapur) partly allowed the appeal but concurred that specific performance could not be granted on 30th November, 1989.
Issues
Whether the plaintiff was ready and willing to perform his part of the contract for specific performance of the agreement to sell immovable property.
Submissions/Arguments
Appellant argued that the courts below erred in holding that the plaintiff was not ready and willing to perform his part of the contract.
Respondents argued that the plaintiff failed to prove readiness and willingness and that the concurrent findings of fact should not be disturbed.
Ratio Decidendi
In a suit for specific performance, the plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the decree. Mere payment of earnest money is not sufficient; the plaintiff must show financial capacity to pay the balance consideration. The finding that the plaintiff was not ready and willing is a finding of fact and cannot be interfered with in second appeal unless perverse.
Judgment Excerpts
The plaintiff came with the suit for specific performance of the agreement with the defendant no.1 with allegations that the suit property was owned and possessed by defendant no.1 as it had been allotted to his share.
I have heard the learned counsel for both the parties. Perused the entire record including the written submissions filed by both the sides.
The appellant has preferred this appeal against the judgment and order passed by Addl. District Judge, Solapur dated 30th November, 1989 partly allowing the Appeal but concurring with the findings of the learned trial court that specific performance of the contract cannot be granted in favour of the Plaintiff.
Procedural History
The plaintiff filed a suit for specific performance in the court of Joint Civil Judge, Junior Division, Solapur, which was dismissed on 25th November, 1986. The plaintiff appealed to the Addl. District Judge, Solapur, who partly allowed the appeal but upheld the denial of specific performance on 30th November, 1989. The plaintiff then filed a second appeal under Section 100 CPC in the Bombay High Court, which was dismissed on 14th October, 2005.
Acts & Sections
- Specific Relief Act, 1963: Section 16(c)
- Code of Civil Procedure, 1908: Section 100
- Indian Contract Act, 1872: Section 55
