Specific Relief Act, 1963 – s. 16 – 2018 amendment – Specific Performance – Father of appellants executed an agreement of sale with respondent no. 1-plaintiff, whereby he agreed to sell the suit schedule property measuring Ac. 0.90 cents to respondent no. 1 for a sale consideration of Rs. 11,88,000/- out of which respondent no.
1 paid an amount of Rs. 4,00,000/- as advance – Under the said agreement, father of appellants agreed to execute the sale deed in favour of respondent no. 1 after demarcating the land and receiving the balance sale consideration within three months – Father of appellants and after his death, appellants also failed to measure and demarcate the land – Respondent no.1 filed suit against appellants and sought specific performance of contract – Trial Court held that respondent no.1 failed to prove entitlement for specific performance of contract, however, entitled plaintiff to recover advance amount of Rs.4,00,000/- – However, the High Court directed appellants to execute sale deed in favour of respondent no.1 after receiving balance consideration – On appeal, held: Respondent had established that she was always ready and willing to perform her part of contract by paying the balance sale consideration which is the primary requirement as per Section 16
(c) of the Act – Part of evidence with regard to the respondent’s readiness and willingness was not challenged – It can be deduced that unless the vendor (deceased father of the appellants) got the subject land measured and demarcated within three months as per agreement, it would be impossible for the purchaser (respondent) to get a sale deed executed, and as such, the question of paying the balance sale consideration does not arise – It is clear that vendor failed to perform his part of obligation by getting property measured and demarcated – Findings of the High Court upheld. ORS.
Dismissing the appeals, the Court
HELD: 1. It is clear from the facts of the case at hand that the Plaintiff (Respondent No. 1 herein) was ever ready and willing to pay the balance sale consideration. In the sale agreement, it was clearly mentioned that within three months the deceased father of the appellants will get the suit schedule property measured and demarcated and the Plaintiff (Respondent No. 1 herein) shall pay the balance sale consideration. It appears that, at first, the deceased father of the appellants while agreeing to sell 90 cents of land, concealed that he is the owner of only 50 cents of the land. Subsequently, he failed to measure and demarcate the land. On the other hand, the Plaintiff (Respondent No. 1 herein), from the outset, has been clear and blemishless in his conduct. She had paid the advance sale consideration of Rs. 4,00,000/-. When the deceased father of the appellants failed to measure and demarcate the land, the question of the Plaintiff (Respondent No. 1 herein) paying the balance sale consideration does not arise. However, even then the averments of the Plaintiff, her conduct and the testimony of her husband show that the Plaintiff, since the signing of the sale agreement, was ever ready and willing to pay the balance consideration. [Para 30][816-A-D]
2. However, what is to be seen in the present case, is that the sale agreement dated 14.08.2002 stipulated that the vendor (deceased father of the appellants) was required to get the land measured and demarcated within three months, following which, the purchaser (Respondent No. 1 herein /Plaintiff) was required to pay the balance sale consideration. So, it can be clearly observed that the performance of the purchaser’s obligation to pay the balance sale consideration within three months is dependent upon the fulfilment of the vendor’s obligation to get the land measured and demarcated within three months. [Para 34][818-G-H; 819-A]
3. Therefore, it can be deduced that unless the vendor got the subject land measured and demarcated within three months, it would be impossible for the purchaser (Respondent No. 1 herein/Plaintiff) to get a sale deed executed, and as such, the question of paying the balance sale consideration does not arise. This was also observed by the High Court while placing reliance on the recitals in the sale agreement coupled with the evidence of PW1 and PW2. Moreover, as has been held above, it is clear that the vendor (deceased father of the appellants) failed to perform his part of the obligations by getting the subject land measured and demarcated, while the purchaser (Respondent No.
1 herein/Plaintiff) was ever ready and willing to pay the balance consideration. As such, when specific performance of the terms of the contract has not been done, the question of time being the essence does not arise. [Para 35][819-B-D]
Syed Dastagir v. T.R. Gopalakrishna Setty (1999) 6 SCC
337 : [1999] 1 Suppl. SCR 351; Aniglase Yohannan v. Ramlatha & Ors. (2005) 7 SCC 534 : [2005] 3 Suppl. SCR 440 – relied on.
Katta Sujatha Reddy v. Siddamsetty Infra Projects (P) Ltd. & Ors. (2023) 1 SCC 355 – distinguished. N. P. Thirugnanam v. Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115 : [1995] 2 Suppl. SCR 53;
U. N. Krishnamurthy (since deceased) Thr. Lrs. v. A. M. Krishnamurthy 2022 SCC OnLine SC 840; Nanjappan v. Ramasamy & Anr. (2015) 14 SCC 341 : [2015] 2 SCR 606; Jaswinder Kaur v. Gurmeet Singh & Ors. (2017) 12 SCC 810 : [2017] 5 SCR 430; Chand Rani v. Kamal Rani (1993) 1 SCC 519 : [1992] 3 Suppl. SCR 798 – referred to.
Ardeshir H. Mama v. Flora Sassoon AIR 1928 PC 208; Gomathinayagam Pillai & Ors. v. Palaniswami Nadar (1967) 1 SCR 227; Bank of India Limited v. Jamsetji A. H. Chinoy and Chinoy and Company (1949) LR 77 IA
76 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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