Case Note & Summary
The appeal arises from a suit for specific performance of an agreement of sale. The plaintiff/respondent claimed that on 14.09.2015, the defendants/appellants agreed to sell suit property for Rs.58,08,000/- and received an advance of Rs.20,00,000/-. A further sum of Rs.10,00,000/- was paid on 18.12.2015 with an extension of time till January 2016. The plaintiff alleged that the defendants failed to measure the property and execute the sale deed despite his readiness and willingness. The trial court decreed the suit, directing specific performance or refund of Rs.33,42,000/- with interest. The defendants appealed. The High Court examined the evidence and found that the plaintiff did not examine any attesting witness or the scribe of the agreement, and the defendants denied execution. The plaintiff also failed to prove his financial capacity to pay the balance consideration. The court held that the plaintiff did not discharge the burden of proving the agreement or his readiness and willingness. Consequently, the appeal was allowed, the judgment and decree of the trial court were set aside, and the suit was dismissed. No order as to costs.
Headnote
A) Specific Performance - Agreement of Sale - Proof of Execution - The plaintiff must prove the execution of the agreement of sale by examining the attesting witnesses or by other cogent evidence. In the absence of examination of any attesting witness or scribe, the execution of the agreement remains unproved. (Paras 10-12) B) Specific Performance - Readiness and Willingness - Burden of Proof - Under Section 16(c) of the Specific Relief Act, 1963, the plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract. Mere issuance of a notice does not discharge this burden; the plaintiff must show financial capacity and actual steps taken. (Paras 13-15) C) Specific Performance - Alternate Relief of Refund - Entitlement - Even if specific performance is not granted, the plaintiff is entitled to refund of advance amount if the agreement is proved. However, if the agreement itself is not proved, the claim for refund also fails. (Paras 16-18)
Issue of Consideration
Whether the plaintiff proved the agreement of sale and his readiness and willingness to perform his part of the contract, entitling him to specific performance or alternate relief of refund of advance with interest.
Final Decision
Appeal allowed. The judgment and decree dated 06.08.2018 in O.S.No.23 of 2016 on the file of III Additional District and Sessions Court, Erode at Gobichettipalayam are set aside. The suit is dismissed. No order as to costs.
Law Points
- Specific performance
- agreement of sale
- readiness and willingness
- burden of proof
- Section 16(c) Specific Relief Act
- 1963
- Order 41 Rule 1 CPC
- Section 96 CPC
