Case Note & Summary
The appellant, Annarao, filed a suit for specific performance of an agreement to sell dated 28.08.1986, allegedly executed by the respondent, Gopal Rao, for a total consideration of Rs. 1,00,000/-. An advance of Rs. 25,000/- was paid. The plaintiff claimed he was ready and willing to perform his part but the defendant failed to execute the sale deed. The trial court dismissed the suit, holding that the plaintiff failed to prove the agreement and his readiness and willingness. The first appellate court confirmed the dismissal. In the second appeal under Section 100 CPC, the High Court held that no substantial question of law arose as the concurrent findings were based on evidence and not perverse. The court noted that the plaintiff did not deposit the balance consideration, did not issue a notice demanding performance, and his financial capacity was not established. The appeal was dismissed, but the direction to refund the advance of Rs. 25,000/- with 12% interest from 28.08.1986 was upheld.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - The plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the date of decree. Failure to deposit balance consideration or show financial capacity negates readiness. (Paras 5-7)
B) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Interference with concurrent findings of fact is not permissible unless the findings are perverse or based on no evidence. The High Court cannot reappreciate evidence in a second appeal. (Paras 4, 8)
C) Specific Relief Act, 1963 - Section 20 - Discretionary Relief - Specific performance is a discretionary remedy and cannot be granted if the plaintiff fails to prove readiness and willingness. The court may order refund of advance with interest instead. (Paras 3, 9)
Issue of Consideration
Whether the concurrent findings of the courts below that the plaintiff was not ready and willing to perform his part of the contract and that the agreement to sell was not proved, warrant interference in a second appeal under Section 100 CPC.
Final Decision
The second appeal is dismissed. The judgment and decree of the first appellate court dated 19.10.2002 in R.A. No.4/2001 confirming the trial court's decree dated 28.11.2000 in O.S. No.272/1994 are upheld. The direction to refund Rs.25,000/- with 12% interest from 28.08.1986 is maintained.
Law Points
- Specific performance
- Readiness and willingness
- Section 16(c) Specific Relief Act
- 1963
- Concurrent findings of fact
- Second appeal under Section 100 CPC
- Substantial question of law
Case Details
2015 LawText (KAR) (09) 1
Sri. Sreevatsa (Sr. Adv.) for Sri. K. Siddanna, Sri. B.V. Jalde, Sri. V.K. Naik (for appellant); Sri. Ameet Kumar Deshpande (for respondent)
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Nature of Litigation
Civil suit for specific performance of an agreement to sell immovable property.
Remedy Sought
Decree for specific performance directing the defendant to execute the sale deed, or in the alternative, refund of advance with interest.
Filing Reason
Alleged breach of agreement to sell dated 28.08.1986 by the defendant.
Previous Decisions
Trial court dismissed the suit on 28.11.2000; first appellate court dismissed the appeal on 19.10.2002.
Issues
Whether the plaintiff proved the agreement to sell and his readiness and willingness to perform the contract.
Whether the concurrent findings of fact are perverse or based on no evidence warranting interference in second appeal.
Submissions/Arguments
Appellant argued that the courts below erred in dismissing the suit and that he was ready and willing to perform.
Respondent supported the concurrent findings and argued that no substantial question of law arises.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff in a suit for specific performance must plead and prove continuous readiness and willingness to perform his part of the contract. Failure to deposit balance consideration or show financial capacity negates readiness.
Judgment Excerpts
The present appeal is filed under Section 100, C.P.C. by the sole plaintiff of an original suit in O.S.272/94, a suit filed before the I Additional Senior Civil Judge, Gulbarga, for the relief of specific performance against the respondent herein who was the sole defendant.
While dismissing the suit for specific performance in O.S.272/94, the learned judge of the trial court has directed the respondent herein, i.e. defendant to refund Rs.25,000/- received by him as advance with interest at the rate of 12% p.a. from 28.8.1986.
Procedural History
The appellant filed O.S. No.272/1994 for specific performance. The trial court dismissed the suit on 28.11.2000. The appellant filed R.A. No.4/2001 before the Principal District Judge, Gulbarga, which was dismissed on 19.10.2002. The appellant then filed the present second appeal under Section 100 CPC before the High Court of Karnataka, Kalaburagi Bench, which was dismissed on 02.09.2015.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Section 96
- Specific Relief Act, 1963: Section 16(c), Section 20
