Specific performance – Suit for specific performance – Time when not the essence of the contract – Readiness and willingness not proved – High Court decreed the buyer’s suit for specific performance holding that time was not of essence as the sellers had received payments, without protest, even after the final date fixed for the performance of the agreement and that the buyer was ready and willing to perform her part of the contract – Challenge to:
Held: Time was not the essence though the Agreement provided that “time mentioned in this agreement shall be of the essence” – On a bare reading of the two clauses of the Agreement, it cannot be said that the latter clause destroys the effect of the former clause altogether so much so that it has to be discarded – On the contrary, both the clauses were such that the same had to be read together and given effect upon ascertaining the intention of the parties as disclosed by the Agreement as a whole – The latter clause could not have been read divorced from the former, having regard to the intent of the parties that is discernible – Further, on facts, the buyer was not ready and willing to have the terms agreed by and between the parties to be performed – There was no readiness and willingness on the buyer’s part to pay the balance sale consideration and get the sale deed executed despite multiple reminders – Also, admittedly the buyer did not have enough fund in either of her bank accounts to pay the balance sale price – First appellate judgment and decree of the High Court set aside – Decree of the Trial Court restored – Suit filed by the buyer dismissed. [Paras 31, 33, 35, 36, 48]
Code of Civil Procedure, 1908 – Suit – Maintainability, ‘jurisdictional fact’ – Failure of the trial court to frame an issue on maintainability of suit touching jurisdictional fact, if takes away the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed: Held: No – I.S. Sikandar v. K. Subramani [2013] 17 SCR 24 held that in absence of a prayer for declaratory relief that termination of the agreement is bad in law, a suit for specific performance is not maintainable – However, A. Kanthamani v. Nasreen Ahmed [2017] 2 SCR 610 distinguished the aforesaid case and held that unless an issue as to maintainability is framed by the Trial Court, the suit cannot be held to be not maintainable at the appellate stage only because appropriate declaratory relief has not been prayed – Kanthamani though did not deal with the effect of non-existence of a jurisdictional fact i.e., what would be its effect on the right to relief claimed by the plaintiff in a suit for specific performance of contract – Clarified – Omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact does not by itself take away the powers of the higher court to examine whether the jurisdictional fact did exist for grant of relief as claimed, provided no new facts were required to be pleaded and no new evidence led. [Paras 22, 24, 46]
Suit for specific performance – Law as regards the principles governing – Discussed.
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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