Case Note & Summary
The dispute arises from a suit for specific performance of an agreement for sale of immovable property dated 15.03.2010 filed by the respondent-plaintiff against the appellant-defendants. The plaintiff claimed that the defendants, who acquired the suit property through a family partition deed, agreed to sell it for Rs.15 lakhs and accepted an advance of Rs.2 lakhs via cheque. The balance of Rs.13 lakhs was to be paid within six months, and the defendants were to execute the sale deed after securing necessary documents. The plaintiff alleged that despite his constant readiness and willingness, the defendants failed to perform their part and were instead negotiating with another buyer. He first filed O.S.No.583/2011 seeking permanent injunction and later instituted O.S.No.143/2013 for specific performance of the agreement. In response, only defendant No.3 filed a written statement contending that the subsequent suit was barred under Order II Rule 2 of the Code of Civil Procedure, 1908, that the agreement and General Power of Attorney were forged, and that the plaintiff lacked financial capacity and readiness. The trial court framed six issues, recorded evidence including PW-1 (plaintiff), PW-2 (Ramakrishna Shetty, who signed for defendants 2-4), and DW-1 (on behalf of defendants), and marked documents Exs.P-1 to P-18 and Ex.D-1. By judgment and decree dated 24.10.2016, the trial court answered all issues in the affirmative and decreed the suit, directing the defendants to execute the registered sale deed and deliver possession within two months upon receiving the balance consideration. Aggrieved, the defendants preferred the present Regular First Appeal under Section 96 CPC. In the High Court, the appellants argued that the suit was not maintainable under Order II Rule 2 CPC, that the General Power of Attorney was not marked in evidence, and that the plaintiff failed to prove readiness and willingness. The respondent contended that the bar did not apply because the causes of action differed, that the agreement was duly proved, and that the defendants did not effectively rebut the evidence of readiness. After hearing both sides on 24.07.2023, the High Court framed five points for consideration and pronounced judgment on 11.08.2023. The provided text does not contain the court's analysis or final decision on the appeal.
Headnote
A) Civil Procedure - Bar to Subsequent Suit - Order II Rule 2, Code of Civil Procedure, 1908 - The appeal raises the issue whether the suit for specific performance is barred by the prior suit for permanent injunction when both are founded on the same agreement for sale. The appellant-defendants contended that the causes of action were identical, while the respondent-plaintiff argued they were distinct. (Paras 1, 13) B) Contract Law - Specific Performance - Proof of Agreement - The suit involved the question whether the plaintiff proved execution of the agreement for sale dated 15.03.2010 and receipt of advance payment of Rs.2,00,000, especially given the defendants' denial and the absence of the General Power of Attorney in evidence. (Paras 2, 13) C) Contract Law - Specific Performance - Readiness and Willingness - Code of Civil Procedure, 1908 - The court considered whether the plaintiff demonstrated continuous readiness and willingness to pay the balance consideration of Rs.13,00,000 and whether the defendants committed breach by failing to execute the sale deed. (Paras 2, 13) D) Specific Relief Act - Discretionary Relief - Entitlement to Specific Performance - The court examined the plaintiff's entitlement to the equitable remedy of specific performance, taking into account the parties' conduct and the circumstances of the case. (Paras 13-14)
Issue of Consideration
Whether the suit for specific performance was barred by Order II Rule 2 CPC; whether the plaintiff proved execution of the agreement for sale and payment of advance; whether the plaintiff proved readiness and willingness to perform his part; whether the plaintiff was entitled to specific performance; and whether the trial court's decree warranted interference.
Law Points
- specific performance of agreement for sale
- readiness and willingness
- bar under Order II Rule 2 CPC
- maintainability of subsequent suit
- proof of execution of agreement
- denial of general power of attorney
- advance payment
- breach of contract
