Skip to main content

Plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance

In Jagjit Singh Vs. Amarjit Singh,  the respondent herein  alleged that he had entered into an agreement dated 17.10.2000 with Jagjit Singh (since deceased, the appellant herein) hereinafter referred to as "the defendant", for purchase of half share in the shop in dispute for a total sale consideration of Rs. 1,50,000/. According to the plaintiff, Rs. 1,30,000/was paid in cash at the time of execution of the agreement to sell. The balance amount was to be paid on or before 30.03.2003, by which date the sale deed was to be executed and registered. It was further alleged that the date for execution and registration of the sale deed was extended by mutual consent of the parties till 09.10.2003. The defendant denied the execution of the sale deed itself. According to him, he had not been paid any money.

The trial court on consideration of the entire evidence came to the conclusion that no agreement to sell had been executed between the parties and accordingly dismissed the suit. Aggrieved, the respondent filed an appeal. The first appellate court set aside the finding of the trial court that the agreement to sell had not been executed. However, the first appellate court came to the conclusion that the so called agreement was, in fact, not an agreement to sell. It further held, that assuming that the said agreement was an agreement to sell, the plaintiff had failed to prove that he was ready and willing to perform his part of the agreement and to show what steps he had taken to perform his part of the contract from 17.10.2000 to 09.10.2003.

The second appeal filed by the plaintiff has been allowed by the High Court. On appeal the Supreme Court decided that the High Court had allowed the suit on the ground that the suit had been filed on 09.01.2004 whereas the extended date for execution and registration of the sale deed was 09.10.2003 and thereafter, the plaintiff had sent a legal notice on 13.10.2003.

The Supreme Court held that it is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act mandates that the plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. As far back as in 1967, this Court in Gomathinayagam Pillai and Ors. v. Pallaniswami Nadar2 held that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of the filing of the suit. This law continues to hold the field and has been reiterated in the case of J.P. Builders and Anr. v. A. Ramadas Rao and Anr. and P. Meenakshisundaram v. P. Vijayakumar & Ors.4. It is the duty of the plaintiff to plead and then lead evidence to show that the plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract.

Comments

Post a Comment

Most viewed this month

Merits and the terms of contract are irrelevant for invoking of the bank guarantees

In Sabarkantha Annuity Pvt. Ltd. Vs. NHAI and Ors, the Petitioner filed before the Delhi High Court  petition under Section 9 of the Arbitration and Conciliation (Amendment) Act, 2015 with a prayer that, Respondents be restrained from acting upon the letter dated 15th September, 2017 or from invoking the Bid securities of the Petitioner to the tune of Rs. 10.93 Crores and also restraining the banks from honouring the invocation of said bank guarantees on behalf of Respondent No. 1 acting in terms of letter dated 3rd November, 2007. Petitioner has relied upon Clauses Nos. 9.1.1, 9.1.2 and 4.3 of the agreement dated 28th April, 2017 entered into between the parties to say the claim for damages since is not a claim for a sum presently due and payable and the respondent would be entitled to damages only on proof of loss, per Clause 4.3 of the agreement and hence is not entitle to the entire sum of bid security.  The Court found that Clause No. 9.1.2 speaks of an exclusiv...
Post a Comment
Read more

Right of pre-emption under West Bengal Land Reform Act

In Rabindra Nath Kundu & Anr vs Sudhir Hira, Bijoy Krishna Hira being the owner in the suit plot, gifted to Santosh Kumar Hira demarcated 11 decimals of land vide deed of gift dated 27.4.2004 and the latter sold 9 decimals out of 11 decimals of land to Sudhir Hira the preemptor/opposite party no. 1 and well demarcated 1.65 decimals of land in the said plot along with several other plots were sold, transferred and conveyed to the preemptees/petitioners herein by a registered deed of sale dated 10.8.2010, the subject matter of preemption. It is argued on behalf of the preemptees that  the present opposite party no. 1/preemptor Sudhir Hira has no relationship of co-sharership with Santosh Kumar Hira opposite party no. 2 as the demarcated portion of land has been purchased. It is settled principle of law that partial preemption is not permissible and this was what the view adopted by this Hon'ble High Court is Surendra Vs. Abhimannu reported in (1980) 1 Cal LJ 135 whe...
Post a Comment
Read more

Disease Caused By Insect Bite In The Natural Course Of Events Not Covered Under 'Accident' Insurance

In Civil Appeal No 2614 of 2019, National Insurance Co. Ltd. vs Smt. Mousumi Bhattacharjee, the interesting issue was claim accidental death from mosquito bite. The insured while working in Mozambique died of malaria and the insurer rejected the claim on the ground that the policy was for protection against personal accident and death from mosquito bite was not accidental death. However, the District, State and even the National Consumer Forum went against the insurer who finally appealed before the Supreme Court. The problem was what constitutes an accident. The NCDRC also noted that website of the Insurance Company, an accident may include events like snake bite, frost bite and dog bite. The Supreme Court looked into precedents set by both Indian as well as International courts while responding to similar issues and observed that in order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. The present ...
Post a Comment
Read more