Case Note & Summary
The appellant, Mr. Jagadish Poonja, filed a Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 30.01.2009 passed by the II Additional Senior Civil Judge, Mangalore, in O.S. No. 131/2005. The suit was for specific performance of an alleged agreement to sell dated 01.08.1994, wherein the appellant claimed that the respondents agreed to sell suit schedule property for Rs. 3,50,000/- and received an advance of Rs. 1,00,000/-. The trial court dismissed the suit, holding that the appellant failed to prove the execution of the agreement and payment of advance. The High Court, after hearing the parties, affirmed the trial court's findings. The court noted that the appellant did not examine any attesting witness to the agreement, nor did he produce any receipt for the alleged advance payment. The appellant's own witness, the GPA holder, admitted that he was not present at the time of execution. The court also observed that the appellant failed to prove his readiness and willingness to perform his part of the contract, as he did not produce any evidence of financial capacity to pay the balance consideration. Consequently, the appeal was dismissed with costs.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and willingness - Burden of proof - The plaintiff must prove readiness and willingness to perform his part of the contract throughout the suit. The court held that the appellant failed to prove his readiness and willingness as he did not produce any evidence of financial capacity to pay the balance consideration. (Paras 15-20) B) Evidence Act, 1872 - Section 68 - Proof of execution of document - Attesting witness - Where a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. The court noted that the appellant did not examine any attesting witness to the agreement, and the scribe was not examined, leading to failure in proving execution. (Paras 12-14) C) Contract Act, 1872 - Section 2(d) - Consideration - Payment of advance - The appellant claimed payment of Rs. 1,00,000/- as advance, but no receipt was produced and the alleged payment was not supported by any independent evidence. The court held that the payment of advance was not proved. (Paras 10-11)
Issue of Consideration
Whether the appellant proved the execution of the agreement to sell dated 01.08.1994 and payment of advance consideration of Rs. 1,00,000/- to the respondents?
Final Decision
Appeal dismissed with costs. The judgment and decree of the trial court dated 30.01.2009 in O.S. No. 131/2005 are confirmed.
Law Points
- Specific performance
- Agreement to sell
- Proof of execution
- Payment of consideration
- Burden of proof
- Section 16(c) Specific Relief Act
- 1963
- Section 20 Specific Relief Act
