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RANDHIR
JUDGMENT
ON
SUIT FOR
SPECIFIC
PERFORMANCE
OF CONTRACT
By : A P RANDHIR
TABLE
1. Suit For Specific Performance Of Contract
by another party has the option to file a suit for specific performance
plaintiff must plead and prove that he had performed or has always been
ready and willing to perform the essential terms of the contract which are
one of the parties, the availability of adequate alternative relief and such
of sale. Vague and uncertain agreement could not be given effect to. It
was observed in Ambica Prasad vs Naziran Bibi, AIR 1939 All 64],
specific performance.
must manifest that his conduct has been blemishless. Similarly, conduct
Yohannan v. Ramlatha, 2005 (7) SCC 534 that if the pleadings manifest
that the conduct of the plaintiff entitles him to get the relief on perusal of
Section 16(c) of the Act mandates the plaintiff to aver in the plaint
and establish the fact by evidence aliunde that he has always been
ready and willing to perform his part of the contract. Distinction between
the terms of the agreement (Bala Krishna vs Bhgawan Das, AIR 2008
SC 1786), however, the plaintiff need not carry money in his hand
4.2 N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors, (1995) 5
SCC 115 at para 5.
BY A. P. RANDHIR
Right from the date of the execution till date of the decree he must
prove that he is ready and has always been willing to perform his part of
the contract.
4.3 J.P. Builders and Anr.Vs. A. Ramadas Rao and Anr, (2011)1 SCC
429).
in, it is clearly known that in the case of sale of immovable property, time
Sultana’s case). Even if it is not of the essence of the contract, the Court
are: 1. from the express terms of the contract; 2. from the nature of the
object of making the contract.( Smt. Chand Rani (dead) by LRs. Vs. Smt.
proper for effective adjudication of the issue involved in the suit. Order
parameters to continue the suit where right to sue is survival. Order 22,
devolution of any interest during the pendency of a suit and the suit may,
7.1 Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, (2010)10
SCC 512
BY A. P. RANDHIR
jurisdiction;
(V) Such transfer must affect the rights of the other party that may
ultimately accrue under the terms of the decree or order.
part of the contract, the Court must take into consideration the conduct
of the Plaintiff prior and subsequent to the filing of the suit along with
plaintiff must enter witness box. Right from the date of the execution till
date of the decree, he must prove that he is ready and has always been
The case of similar instance was decided in the case of where the
defendant contended that the plaintiff vendee alone signed the sale
BY A. P. RANDHIR
the plaintiff and that it is a condition precedent for obtaining relief. The
willingness to perform the contract on his part from the date of the
contract and that the onus is on the plaintiff alone. In para-27 of this
judgment, Hon’ble Supreme Court has held that when there is non-
the suit.
BY A. P. RANDHIR
7.4 N.P. Thirugnanam (D) vs- Dr. R. Jagan Mohan Rao reported in
1995 (5) SCC 115
The Hon’ble Supreme Court held in the case of that plaintiff must not
only aver and establish readiness and willingness but plaintiff is also
duty bound to show that he has financial ability to make payment of the
balance consideration.
and the court is not bound to grant such relief merely because
into or such that the contract though not voidable, gives the
BY A. P. RANDHIR
was ready and willing to get the property redeemed from the
mortgage.
evidence led before the Criminal Court to make base for determining
existence of fact.
High Court vide its impugned finding in the instant matter set aside
the order of trial court rejecting the plea of grant of specific performance.
question was filed before the Criminal Court and evidence was led and
The Court while hearing appeal against the impugned High Court
contract, heavy burden lies on the him to prove that there was
consensus between the parties for the concluded agreement for sale of
immovable property.
unfair advantage not only to the plaintiff but also to the defendant. The
principles.
for sale, the law insists upon a condition precedent to the grant of decree
for specific performance that the plaintiff must show his continued
accordance with its terms from the date of contract to the date of
hearing. Normally, when the trial court exercises its discretion in one way
judicial principles. The appellate court should also not exercise its
Specific Relief Act, a party is not entitled to get a decree for specific
agreement to sell is legal and validly proved and further requirements for
getting such a decree are established then the court has to exercise its
case of the plaintiff. The High Court placed reliance on the said
that said quarter sheet of paper was produced before the Magistrate in a
criminal proceeding.
The view taken by High Court was held to be incorrect to the effect
proper stamp and also written in small letter. The High Court also
misdirected itself in law in holding that there was no need for the plaintiff
the document.
BY A. P. RANDHIR
proceedings including execution case were filed to nullify the claim of the
Court.
It was accordingly held that the present was not the fit case where
8.1 Azhar Sultana versus B.Rajamani and others civil appeal No.
1077 of 2009 Decided on February. 17,2009 2009 (1) SCCD 525 (SC)
8.2 Faquir Chand and Others V. Sudesh kumari 2006 (3) Apex Court
Judgment 259 (SC)
Lack of pleading--- provision does not require any specific phraseology.
(B) Specific Relief Act (47 of 1963), Ss. 20, 16 – Discretion of Court –
Act S. 55.
applying for such permission for three years – Contract frustrated due to
from date of contract at the rate of 12% p.a. to date of payment Transfer
9.2 Harnam Singh Vs. Mangat Singh and anr. reported in AIR 2001
execute sale deed – Suit filed within three years from date of receipt of
defendant.
Quantum – Court can take judicial notice of rise in prices of land. Civil
Karnataka, 442.
Therefore, agreement did not fix date for performance of contract – Not
specific performance become due – Thus, time for filing suit for specific
BY A. P. RANDHIR
refusal to perform.
10.1 Preetam Kaur Vs. Prakash Ramdeo Jaiswal [R.M. Savant, J.]
Mh.L.J.295 Relied.
and registered and it is not the plea of the vendor that title in the suit
possession was not delivered and the price was not paid, on the
contents of the document the title passed to the vendee. If the vendee
was deprived of possession he was well justified in asking for the same.
Only where there is a specific provision made in the Act requiring that
Evidence Act. The finding of the appellate Court that though one of the
BY A. P. RANDHIR
attesting witness is alive, the original plaintiff was duty bound to examine
him to prove the execution of isarchitthi i.e. agreement of sale, was not
correct.
specific performance.
cannot entitlement the plaintiff to the relief at least prima facie for
(b) Specific Relief Act, S. 12 and Civil Procedure Code, O. 39 R.1 – Suit
his part of the contract, which the plaintiff is required to be ready and
willing to perform at all material times including at the time of filing the
BY A. P. RANDHIR
the plaintiff which is the only obligation that the plaintiff is required to
perform.
13.1 Yuvrani Hansa Devi Vs. Jafar Farooq Vohara and anr. reported
in 2012(1) Mh.L.J, 302 (Mrs. Roshan Dalvi. J)
show that he has paid up the full purchase price or that he was ready
and willing and able at all times to make payment of the entire price.
the contract or when the transferee has already been put in possession
prior to his performance of the other part of the contract, the possession
possession of the property, that he was willing to perform his part of the
to pay the balance consideration, he has to show that he has paid up the
full purchase price or that he was ready and willing and able at all times
13.2 M/s. Satguru Construction Co. Pvt. Ltd. Vs. Greater Bombay
Co-op. Bank Ltd., [2007(5) AIR Bom R 37 (DB)
stage will not clothe Civil Court with jurisdiction expressly barred.
Act, S. 164 – Scope – Suit for recovery of sum from co-operative society
BY A. P. RANDHIR
was not registered on date of filing of suit not controverted – Suit not
maintainable.
address this question by calling upon the courts to revisit the principles
laid down by the court in the preceding judgments on same issue and
essential condition for the performance of contract. The court said that
law that time is not essence of a contract that is for sale of immovable
immovable property.
BY A. P. RANDHIR
performed within the said specified time. Time is the essence of contract
means that time is most essential condition of the contract for the
Court of India have looked into the question of whether time is essence
different facts in different decade that shall assist in explaining how the
978
The Supreme Court of India in after looking into the terms of agreement
held that time was not essence of the agreement and reaffirmed the
BY A. P. RANDHIR
specified then it was open to purchaser to extend the date or treat the
agreement cancelled. The Court after looking into these express terms
of the agreement i.e. purchaser could extend time inferred that time was
not essence of agreement. The Court also looked into the fact that
purchasers of the property were willing to extend time and perform their
part of contract and it was seller who had wilfully refused to perform her
part of contract and therefore the apex court directed the seller to apply
SCC 519 also. In this case, the apex court held that in case of sale of
making contract. The court also held that even when parties to contract
fundamental.
The Apex court was faced with this question again in where the question
granted in every suit where the suit is filed within limitation period
prescribed for filing of suit for specific performance and the agreement
The apex court in also dealt with the same question as to when time is
time was to be the essence of contract and provided that under all
agreement and observed that parties intended to and were aware from
beginning that time was essence of contract and the clauses clearly
agreement and failure to make the said payment by the date stipulated
money paid and shall further result in loss of any right held by the vender
SCC 18
The next case that came up before the apex court was of wherein
the court tried to address the issue as to time being essence of contract.
BY A. P. RANDHIR
holiday then it was to be paid on the next immediate working day. The
further provided that the sale deed shall be executed only at the
title of the land and in case of her not being satisfied with the title then
shall put the vendor notice of it and vendor has to satisfy the purchaser
in regard to title and in case the vendor fails then vendor shall within 3
months from that date pay to the buyer all the money that was advanced
to him.
The last important apex court decision in where the apex court
law and is subject to several exceptions. The court relying upon ratios
BY A. P. RANDHIR
and held that in view of express terms of agreement time was intended
to be essence of contract.
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NOTE : This Article is useful for enrichment of legal knowledge on civil side. This
book contains only relevant paras of the judgments on each topic and readers are
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