Case Note & Summary
The appellant, Mrs. Kiran Nashine, filed two appeals against the judgment and decree dated 30.09.2009 passed by the Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 123 of 2008. The suit was filed by the respondent No.1, Vivek Mokadam, seeking specific performance of an agreement to sell dated 15.10.1960 in respect of Plot No.294, Gandhi Nagar, Nagpur admeasuring 4620 sq.ft. The trial court decreed the suit in favor of the plaintiff, directing the defendant (appellant) to execute the sale deed upon receipt of balance consideration. The appellant challenged the decree on the ground that the plaintiff was not ready and willing to perform his part of the contract. The High Court analyzed the evidence and found that the plaintiff failed to prove his readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963. The court noted that the plaintiff did not produce any evidence of financial capacity, did not deposit the balance consideration in court, and did not take any steps to complete the transaction despite the agreement being old. The court held that mere filing of the suit does not constitute readiness and willingness. The appeals were allowed, the trial court's decree was set aside, and the suit for specific performance was dismissed. However, the court granted the plaintiff the option to claim refund of earnest money if any, in accordance with law.
Headnote
A) Specific Relief Act - Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - The plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the date of decree - Held that mere filing of suit does not prove readiness; plaintiff must show financial capacity and actual steps taken to perform (Paras 10-15). B) Contract Law - Sale Agreement - Time Not Essence - Where time is not made essence of contract, court may still consider delay and conduct of parties - Held that even if time is not essence, plaintiff must show reasonable diligence and readiness (Paras 16-18). C) Evidence - Burden of Proof - Section 101 Evidence Act, 1872 - The burden to prove readiness and willingness lies on the plaintiff seeking specific performance - Held that plaintiff failed to discharge burden as he did not produce evidence of financial capacity or deposit of balance consideration (Paras 19-22).
Issue of Consideration
Whether the plaintiff was ready and willing to perform his part of the contract for sale of suit property and whether the trial court erred in granting decree for specific performance.
Final Decision
Appeals allowed. Judgment and decree dated 30.09.2009 passed by Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 123 of 2008 is set aside. Suit for specific performance stands dismissed. Plaintiff is at liberty to claim refund of earnest money if any, in accordance with law. No order as to costs.
Law Points
- Specific performance
- readiness and willingness
- Section 16(c) Specific Relief Act
- 1963
- burden of proof
- continuous readiness
- sale agreement
- time is not essence
- equitable relief
