On 12th October 2022, the Supreme Court in a division bench comprising of Justice Sanjiv Khanna and Justice Bela M. Trivedi observed that Continuous readiness and willingness on the part of the plaintiff/purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance. (P. Daivasigamani Vs. S. Sambandan)
Facts of the Case:
The appellant was the owner of the suit land, and he entered into an agreement to sell the suit land with the respondent on 05.10.1989. the agreed amount was Rs. 6,50,000/- out of which Rs. 50,000/- was paid by way of earnest money as part of sale consideration by the respondent. The time for completion of sale transaction was stipulated to be 6 months in the said agreement. According to the respondent, he periodically contacted the appellant requesting him to execute the sale deed, and had shown his readiness and willingness to perform the same but the appellant failed to respond or to perform his part of the contract. The respondent thereafter called upon the appellant to execute a deed of power of attorney through a letter sent by registered post, however there was no response. Again, a notice was sent by the respondent through his lawyer on 26031990, which was returned with an endorsement “refused”. The respondent thereafter caused a public notice in the Tamil daily “Dhina Thanthi” and in English daily “Indian Express”, informing the public not to enter into any sale transaction with the appellant in respect of the suit property. Thereafter, a suit was filed by the respondent seeking specific performance of the said agreement. The trial court held that plaintiff had failed to prove his readiness and willingness to perform, hence not entitled for specific performance of the agreement. But the HC in the appeal granted the plaintiff with the specific performance of the said agreement. Aggrieved by the same, the appellant filed the present appeal.
Contentions of the Appellant:
The counsel for the appellant submitted that “the suit having been filed by the respondent after three years of the execution of the agreement, it was barred by the Law of Limitation. The respondent having failed to perform the essential terms of the contract within the time limit stipulated in the agreement, the High Court had erred in giving the judgment. as per the legal position settled by this Court, the respondent was not only required to aver in the pleading but was also required to prove by cogent evidence like producing statement of his bank account or other document that he was financially capable of making payment of the balance amount of sale consideration, which the respondent had failed to prove. He had also failed to deposit the remaining amount of sale consideration in the court at the time of filing the suit.”
Contentions of the Respondent:
The counsel for the respondent submitted that “time is never considered to be an essence of the contract in case of immoveable property, and even otherwise the respondent had shown his readiness and willingness to perform the essential terms, namely calling upon the appellant to execute a power of attorney and complete the sale transaction, by issuing three notices one after the other, within the stipulated time limit, however, the appellant had failed to respond the said notices and had also failed to execute the sale deed in favour of the respondent. There was no requirement of law to deposit the balance of the amount of sale consideration, at the time of filing of the suit.”
Observations and Judgement of the Court:
The Hon’ble court observed that “mere delay alone in filing the suit for specific performance, without reference to the conduct of the plaintiff, could not be a ground for refusing the said relief, when the suit was filed within the statutory time limit by the respondent- plaintiff. There was due compliance of Section 16(c) read with its Explanation on the part of the respondent and that it was the appellant who had failed to perform as per the terms of the agreement, though called upon by the respondent to perform. Sub-section (2) to Section 20 of the Specific Relief Act (Pre-amendment) lists some of the principles that the court should take into consideration while exercising discretion. The court must consider the hardship to the defendant/seller which he did not foresee, hardship to the plaintiff/purchaser in case of non-performance, or whether the contract, even when not void, was entered under the circumstances that make the enforcement of specific performance inequitable. Time, it is stated, is not the essence of the contract in the case of immovable properties, unless there are grounds to hold to the contrary. The court should examine whether the plaintiff/purchaser had, in fact, performed his part of the contract, and if so, how and to what extent, and in what manner he has performed, and whether such performance was in conformity with the terms of the contract.” The court refereed the cases Mademsetty Satyanarayana vs. G. Yelloji Rao, R. Lakshmikantham V. Devaraji, Smt. Katta Sujatha Reddy v. Siddamsetty Infra Projects Ltd., Syed Dastagir vs. T.R. Gopalakrishna Setty, Sukhbir Singh v. Brij Pal Singh, Ritu Saxena vs. J.S. Grover & Another and, Abdullakoya Haji Vs. Rubis Tharayil.
The appeal was dismissed and the respondent was directed to deposit a sum of Rupees One Crore in the Trial Court towards the sale consideration within a period of eight weeks.
Case: P. Daivasigamani Vs. S. Sambandan
Citation: Civil Appeal No. 9006 Of 2011
Bench: Justice Sanjiv Khanna and Justice Bela M. Trivedi
Date: 12th October 2022
Read Judgment @Latestlaws.com
Picture Source :
