Case Note & Summary
The appeal arises from a suit for specific performance of an agreement of sale dated 12.04.2005. The plaintiff (respondent No.1) claimed that defendant No.1 agreed to sell suit property for Rs.29,00,000 and received Rs.20,00,000 as advance. Defendant No.2 held a power of attorney from defendant No.1. The trial court decreed the suit, directing execution of sale deed. The defendants (appellants) appealed. The High Court examined whether the agreement was genuine and whether the plaintiff proved readiness and willingness. The court found that the plaintiff failed to examine the attesting witnesses to prove execution of the agreement. The plaintiff also did not plead or prove readiness and willingness to pay the balance consideration. The court noted that the plaintiff did not issue notice or take steps for over five years. The court held that the trial court erred in decreeing the suit. The appeal was allowed, the judgment and decree of the trial court were set aside, and the suit was dismissed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform contract from date of agreement till decree - Failure to do so disentitles specific performance (Paras 10-15). B) Evidence Act, 1872 - Section 68 - Proof of Execution of Document - When execution of agreement is denied, plaintiff must prove execution by examining attesting witnesses or other evidence - Mere admission of signature not sufficient (Paras 8-12). C) Contract Act, 1872 - Section 55 - Time as Essence - In sale of immovable property, time is not ordinarily essence unless expressly agreed - However, delay coupled with conduct may indicate abandonment (Paras 13-16).
Issue of Consideration
Whether the plaintiff proved the agreement of sale dated 12.04.2005 and her readiness and willingness to perform her part of the contract, entitling her to specific performance.
Final Decision
Appeal allowed. Judgment and decree dated 01.12.2014 passed by the First Additional Senior Civil Judge, Bellary in O.S.No.103/2010 are set aside. The suit is dismissed. No order as to costs.
Law Points
- Specific performance
- agreement of sale
- readiness and willingness
- Section 16(c) Specific Relief Act
- 1963
- burden of proof
- genuineness of document
- power of attorney
