Skip to main content

Contracts - “Readiness and Willingness” of parties to perform obligation and 'Perverse' judgments explained

In Ved Prakash Vs. Krishan Kumar Gupta, a suit was filed by the Plaintiff for specific performance of agreement, declaration and also sought permanent prohibitory injunction.

The learned trial Court after recording the evidence and evaluating the same dismissed the suit filed by the plaintiffs. The appeal preferred against the judgment and decree passed by the learned trial Court, came to be dismissed by the learned first appellate Court constraining the plaintiffs to file the instant appeal before before the Himachal Pradesh High Court.

It is vehemently argued by learned counsel for the appellants that the findings recorded by the learned Courts below are perverse and, therefore, require to be set aside.

The Hon'ble court while dismissing the appeal said that the findings recorded by the learned Courts below regarding “readiness and willingness” of the parties to perform their part of obligation are pure findings of fact and cannot be interfered with by this Court in exercise of its powers under Section 100 of the Code of Civil. No question of law much less substantial question of law arises for consideration in this appeal.

Held:

1) As per Section 16(c) of the Specific Relief Act, “Readiness and willingness” cannot be treated as a straightjacket formula and have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.

It is settled principle of law that Section 16(c) of the Specific Relief Act provides that the specific performance of contract would not be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the other side. Language of Section 16(c) clearly stipulates that the “readiness and willingness” has to be in spirit and substance and not in letter and form. The continuous “readiness and willingness” on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of execution till the date of decree, he must prove that he is ready and willing and has always been willing to perform his part of contract. The view that the averments “plaintiff is and has been ready and willing to perform his part of contract” stems out of the principle that the plaint must show the plaintiff’s intention to treat the contract as subsisting.

2) the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.

Proper Test for determining whether a question of law raised in the case is substantial

The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.

Referred Cases

Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172
Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3
Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264
A.K. Lakshmipathy (D) & Ors. v. Rai Saheb Pannalal H.Lahoti Charitable Trust & Ors., AIR 2010
Janak Dulari Devi & Anr. v. Kapildeo Rai & Anr., AIR 2011
Santosh Hazari v. Purushottam Tiwari (deceased) by LRs (2001)

3) What is a ‘perverse’ order ?
Any order made in conscious violation of pleading and law is a perverse order. A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. `Perverse’ defined as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.

The findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.



Comments

Most viewed this month

Appellate authorities under Special Statutes cannot be asked to condone delay

Madras High Court in R.Gowrishankar vs. The Commissioner of Service Tax has held that Appellate authorities cannot be asked to condone the delay, beyond the extended period of limitation A Division Bench comprising of Justices S. Manikumar and D. Krishnakumar, made this observation while considering an appeal filed against Single Bench order declining to set aside the order made in the condone delay petition filed by the petitioner to condone 223 days in filing the appeal before the Commissioner of Service Tax (Appeals). Article referred: http://www.livelaw.in/appellate-authorities-special-statutes-cannot-asked-condone-delay-beyond-extended-period-limitation-madras-hc/

'Seize assets to pay damages to accident victim'

Her story might be an inspiration for the physically challenged but justice has remained elusive for her. In 2008, a bus accident left research engineer S Thenmozhi, 30, paraplegic. In April 2013, the motor accident claims tribunal directed the Tamil Nadu State Transport Corporation (TNSTC) to provide her a compensation of 57.9 lakh. However, TNSTC refused to budge and on Tuesday a city court ordered attaching of movable assets of the transport corporation. Thenmozhi was employed in C-DOT, a telecom technology development centre in Bangalore. On July 21, 2008, she was coming to Chennai in a private bus. Around 2am, the bus had a flat tyre and the driver parked it on the left side of the road near Pallikonda in Vellore district on the Bangalore-Chennai highway. While the tyre was being changed, a TNSTC bus of Dharmapuri division hit the stationary bus. The rear part of the bus was smashed and passengers were injured. Thenmozhi who had a seat at the back of the bus suffered...

Mumbai ITAT rules income of offshore discretionary trust is subject to tax in India

The Mumbai Income Tax Appellate Tribunal (ITAT) has recently determined the following issue in the affirmative in the case of Manoj Dhupelia: Should the income of an offshore discretionary trust be subject to tax in India, if no distributions have been made to beneficiaries in India? The question arose from appeals filed by individual beneficiaries in relation to a Lichtenstein-based trust, the Ambrunova Trust and Merlyn Management SA (the Trust) with the ITAT. It is important to note that the individuals in this case were amongst those first identified by the Government of India (GOI) as holding undeclared bank accounts in Lichtenstein. The ITAT ruling raises the following issues: Taxation of Trust Corpus: ITAT classified the corpus of the trust as "undisclosed income" and declared it taxable in the hands of the beneficiaries. Taxation of Undistributed Income: ITAT refused to draw a distinction between the corpus and undistributed income from the trust and declared i...