Case Note & Summary
The appellants, B.Kannan and K.Tamijarassy, were the plaintiffs in a suit for specific performance of an agreement of sale dated 12.07.2006, filed against the respondent, J.Margaret Alice, who was the owner of the suit property. The agreement fixed the total sale consideration at Rs.16 lakhs, with an advance of Rs.3 lakhs paid on the date of execution. The agreement stipulated that time for completion would be three months after validation of the Will under which the defendant derived title. The plaintiffs paid further advances totaling Rs.2,93,000/- between 2007 and 2008. The defendant's brother's Will was probated in 2008, but the plaintiffs did not complete the sale. The plaintiffs filed O.S.No.45 of 2010 seeking specific performance, alleging readiness and willingness. The defendant filed a written statement denying the plaintiffs' readiness and also filed a counterclaim for possession of the suit property, claiming that the plaintiffs were in permissive possession and had failed to perform. The trial court dismissed the suit and allowed the counterclaim, directing the plaintiffs to deliver possession. The plaintiffs appealed. The High Court framed issues regarding the plaintiffs' readiness and willingness, the discretionary nature of specific performance, and the validity of the counterclaim. The court held that the plaintiffs failed to prove continuous readiness and willingness as they did not deposit the balance consideration or take steps to complete the sale even after the Will was probated. The court noted that time was not expressly made the essence of the contract, but the plaintiffs were required to perform within a reasonable time, which they did not. The court also held that the trial court correctly exercised its discretion in refusing specific performance and allowing the counterclaim for possession. The appeals were dismissed, and the judgment and decree of the trial court were confirmed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiffs must plead and prove continuous readiness and willingness to perform their part of the contract - In the instant case, plaintiffs failed to demonstrate readiness and willingness as they did not deposit balance consideration or take steps to complete sale within reasonable time - Held, plaintiffs not entitled to specific performance (Paras 15-20). B) Specific Relief Act, 1963 - Section 20 - Discretionary Relief - Specific performance is discretionary and may be refused if plaintiffs have not performed their obligations or have delayed - Plaintiffs paid only part advance and did not complete sale within three months or even after several years - Held, discretion exercised against plaintiffs (Paras 21-25). C) Contract Act, 1872 - Section 55 - Time not Essence of Contract - Where time is not essence, performance must be within reasonable time - Agreement fixed three months after validation of Will, but Will was probated in 2008 - Plaintiffs did not complete sale even after probate - Held, plaintiffs failed to act within reasonable time (Paras 12-14). D) Civil Procedure Code, 1908 - Order 8 Rule 6A - Counterclaim - Defendant's counterclaim for possession based on plaintiffs' failure to perform and continued occupation - Trial court allowed counterclaim - Held, counterclaim properly decreed as plaintiffs were in possession without title (Paras 26-30).
Issue of Consideration
Whether the plaintiffs are entitled to specific performance of the agreement of sale dated 12.07.2006 and whether the defendant's counterclaim for possession is maintainable.
Final Decision
Both appeals dismissed. Judgment and decree of the trial court dated 30.09.2022 in O.S.No.45 of 2010 confirmed. No costs.
Law Points
- Specific performance
- Readiness and willingness
- Time not essence of contract
- Reasonable time for performance
- Counterclaim for possession
- Section 16(c) Specific Relief Act
- 1963
- Section 20 Specific Relief Act
