Case Note & Summary
The appellant, Merit Magnum Constructions (formerly Vimal Buildings), a partnership firm, filed a suit for specific performance of an agreement to sell dated 15th June 2005 allegedly executed by the respondents, who are members of the Vaity family, in respect of a property at Vaity Wadi, Deonar, Mumbai. The plaintiff claimed that the respondents agreed to sell the property for a total consideration of Rs. 1,50,00,000 and that a sum of Rs. 15,00,000 was paid as earnest money. The plaintiff alleged that despite repeated requests, the respondents failed to execute the sale deed. The respondents denied the agreement and contended that the document was forged and fabricated. The trial court dismissed the suit, holding that the plaintiff failed to prove the execution and genuineness of the agreement and also failed to prove readiness and willingness to perform the contract. The plaintiff appealed. The High Court, after re-appreciating the evidence, affirmed the trial court's findings. The court noted that the plaintiff did not produce the original agreement and the attesting witness denied his signature. The court held that the plaintiff failed to discharge the burden of proof under Section 101 of the Evidence Act, 1872 and also failed to prove readiness and willingness under Section 16(c) of the Specific Relief Act, 1963. The appeal was dismissed with costs.
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 the agreement till the date of decree. Mere filing of suit is not sufficient. (Paras 10-15) B) Evidence Act, 1872 - Section 101 - Burden of Proof - The burden of proving the execution and genuineness of an agreement to sell lies on the plaintiff who asserts it. In the absence of credible evidence, the agreement cannot be enforced. (Paras 8-12) C) Specific Performance - Agreement to Sell - Genuineness of Document - Where the plaintiff fails to produce the original agreement or satisfactory explanation for its non-production, and the attesting witness denies execution, the court may draw an adverse inference against the plaintiff. (Paras 8-12) D) Civil Procedure Code, 1908 - Order 41 Rule 31 - Appellate Judgment - The appellate court must independently assess the evidence and record findings on each issue. The judgment must be a reasoned one. (Paras 5-7)
Issue of Consideration
Whether the plaintiff proved the agreement to sell dated 15th June 2005 and its terms, and whether the plaintiff was ready and willing to perform his part of the contract to be entitled to specific performance.
Final Decision
The High Court dismissed the appeal with costs, affirming the trial court's judgment and decree.
Law Points
- Specific performance
- burden of proof
- readiness and willingness
- agreement to sell
- genuineness of document
- Section 16(c) Specific Relief Act
- 1963
- Section 101 Evidence Act
- 1872
