Case Note & Summary
The case involves a suit for specific performance of an agreement to sell dated 01.06.2005 filed by the respondent-plaintiff (Ashish Jain) against the appellants-defendants (Rajendra Choudhari and others). The plaintiff claimed that the defendants agreed to sell a property for Rs. 3,50,000 and received an earnest amount of Rs. 50,000. The defendants denied the agreement and contended that the plaintiff was not ready and willing to perform. The trial court decreed the suit, which was confirmed by the first appellate court. The defendants filed a second appeal. The High Court framed substantial questions of law regarding proof of execution under Section 68 of the Evidence Act and readiness and willingness under Section 16(c) of the Specific Relief Act. The Court held that the plaintiff failed to examine any attesting witness to prove the agreement, as required by Section 68, and also failed to prove readiness and willingness. The Court allowed the appeal, set aside the decrees, and dismissed the suit. The cross-objection filed by the plaintiff was also dismissed.
Headnote
A) Evidence Act, 1872 - Section 68 - Proof of execution of document required by law to be attested - Attesting witness must be called to prove execution - In a suit for specific performance based on an agreement to sell, the plaintiff must examine at least one attesting witness to prove the execution of the agreement. Failure to do so renders the agreement not duly proved. (Paras 8-10)
B) Specific Relief Act, 1963 - Section 16(c) - Readiness and willingness - Plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract. Mere filing of suit is not sufficient; evidence of financial capacity and steps taken must be shown. (Paras 11-12)
C) Limitation Act, 1963 - Article 54 - Suit for specific performance - Limitation period of three years from date fixed for performance or from notice of refusal. In the absence of a fixed date, limitation runs from the date of refusal. (Para 13)
D) Civil Procedure Code, 1908 - Section 100 - Second Appeal - Substantial question of law - Concurrent findings of fact cannot be interfered with unless perverse or based on no evidence. The High Court can re-appreciate evidence if the lower courts have misapplied legal principles. (Para 14)
Issue of Consideration
Whether the execution of the agreement to sell was duly proved in accordance with Section 68 of the Evidence Act, 1872, and whether the plaintiff was entitled to specific performance of the agreement.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the trial court and the first appellate court, and dismissed the suit. The cross-objection filed by the respondent was also dismissed.
Law Points
- Specific performance
- Agreement to sell
- Proof of execution
- Attesting witness
- Section 68 Evidence Act
- 1872
- Section 16(c) Specific Relief Act
- 1963
- Readiness and willingness
- Cross-objection
- Limitation
Case Details
2018 LawText (BOM) (06) 150
Second Appeal No. 63 of 2018 with Cross Objection/Appeal No. 22 of 2018
Shri D. C. Chahande for appellants, Shri R. I. Agrawal for respondent No.1/cross-objector
Dr. Rajendra S/o Dhannulal Choudhari, Sou. Raj W/o Rajendra Choudhari, Sou. Manju W/o Vikram Choudhari
Shri Ashish S/o Rajkumar Jain, Sau. Saroj W/o Gopal Kochariya
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Nature of Litigation
Civil suit for specific performance of an agreement to sell immovable property.
Remedy Sought
The plaintiff sought specific performance of the agreement to sell dated 01.06.2005 and in the alternative, refund of earnest money with interest.
Filing Reason
The defendants failed to execute the sale deed despite receiving earnest money and the plaintiff's readiness and willingness to perform.
Previous Decisions
The trial court decreed the suit on 30.04.2013, which was confirmed by the first appellate court on 30.09.2017. The defendants then filed the present second appeal.
Issues
Whether the execution of the agreement to sell was duly proved in accordance with Section 68 of the Indian Evidence Act, 1872?
Whether the plaintiff proved his readiness and willingness to perform his part of the contract as required under Section 16(c) of the Specific Relief Act, 1963?
Whether the suit was barred by limitation?
Submissions/Arguments
Appellants argued that the agreement to sell was not proved as required by law since no attesting witness was examined, and the plaintiff failed to prove readiness and willingness.
Respondent argued that the agreement was proved by the plaintiff's testimony and that he was ready and willing to perform, and the suit was within limitation.
Ratio Decidendi
In a suit for specific performance based on an agreement to sell, the execution of the agreement must be proved by examining at least one attesting witness as required by Section 68 of the Evidence Act, 1872. Failure to do so renders the agreement not duly proved. Additionally, the plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract under Section 16(c) of the Specific Relief Act, 1963.
Judgment Excerpts
The execution of the agreement to sell is required to be proved in accordance with Section 68 of the Evidence Act, 1872. The plaintiff has not examined any attesting witness to the agreement.
The plaintiff has failed to prove his readiness and willingness to perform his part of the contract as required under Section 16(c) of the Specific Relief Act, 1963.
Procedural History
The plaintiff filed a suit for specific performance in the trial court, which was decreed on 30.04.2013. The defendants appealed to the first appellate court, which dismissed the appeal on 30.09.2017. The defendants then filed the present second appeal under Section 100 CPC. The plaintiff also filed a cross-objection.
Acts & Sections
- Indian Evidence Act, 1872: 68
- Specific Relief Act, 1963: 16(c)
- Limitation Act, 1963: 54
- Code of Civil Procedure, 1908: 100
