Specific Performance

Respondent/plaintiff claimed to be owner in possession of suit property on the basis of agreement to sell executed in his favour

Both the Courts below decreed suit and appeal in favour of respondent/ plaintiff and against petitioners/defendants who were legal heirs of subsequent purchaser of suit property

Validity

Respondent/plaintiff was able to prove execution of agreement to sell, therefore, the suit should have been converted into suit for specific performance and relief could also be accordingly moulded

Agreement to sell was executed on 8-01-2010 and suit was brought by respondent/plaintiff on 17-05-2010, which was within prescribed period of limitation and there was no hindrance in converting form of suit from declaration to that of specific performance and molding the relief from a decree of declaration of title to one for specific performance of agreement to sell

Predecessor-in-interest of petitioners/defendants who was subsequent purchaser had sufficient notice of agreement to sell, which was earlier entered and executed between respondent/plaintiff by the owner of suit property

Such agreement could validly be executed against petitioners/ defendants

Mere fact of attestation of subsequent mutation could not be deemed sufficient to defeat agreement to sell

Petitioners/ defendants failed to point out any illegality or irregularity sufficient for setting aside judgments and decrees passed by two Courts below

High Court in exercise of revisional jurisdiction modified judgments and decrees and converted the relief from declaration and perpetual injunction to one for specific performance of contract

Revision petition was allowed accordingly.

Respondent/mortgagee sought specific performance of the penal clause of mortgage deed upon failure of the petitioner/mortgagor to return the mortgaged amount

Contention of the mortgagor was that mortgagee had alternative remedies of foreclosure and sale of mortgaged property, thus, mortgagee could not seek specific performance of the penal clause

Validity

Owner can mortgage his property but mortgagee has no right to get transferred the mortgaged property in his name through a decree for specific performance

If the mortgage money was not being returned by the mortgagor, the mortgagee could resort to remedy provided under S.67 of the Transfer of Property Act, 1882

Mortgagee could approach the civil court claiming that mortgagor be absolutely debarred of his right to get the mortgaged property redeemed or could pray for decree for sale of the property, but the recitals of the suit filed by the mortgagee spoke otherwise

Suit for specific performance could be filed for enforcement of an agreement to sell, but the same was not maintainable on the basis of a penal clause in an agreement, which otherwise did not fulfill the standards set for an agreement to sell, thus, mortgagee was not entitled for decree for specific performance on the basis of penal clause in the mortgage deed

Civil revision was allowed, in circumstances.

Petitioner claimed in plaint that he purchased the suit land and in total consideration of Rs. 12,00,000/- paid Rs.600,000/- through cheque whereas it was decided that the respondent would execute the sale deed after incorporation of inheritance mutation and would receive the remaining amount

Respondent denied execution and stated in his written statement that he received the amount of Rs.600,000/- from the petitioner on account of lease payment as the petitioners were in possession of the suit land since long and were not paying any amount thereagainst

Petitioners' suit was concurrently dismissed

Validity

Petitioners and respondents were admittedly cousins

Petitioners did not produce the cheque and Bank statement in the Court

Documents produced by petitioners could not be relied upon as valid evidence and such documents could not be taken into consideration

Admittedly, petitioners as lessees were cultivating the land owned by the respondents

Petitioner contradicted his own statement in examination-in-chief regarding the convening of Punchayat for resolving the controversy between the parties and regarding the consideration amount in alleged bargain

Petitioner did not prove any offer nor acceptance through any solid/concrete evidence

Petitioners failed to prove the execution of oral agreement to sell and did not mention time/place in the plaint which was deposed by him as witness

Concurrent findings were against the petitioner

Revision petition was dismissed accordingly.

Petitioner agreed to sell 30 acres of land for a consideration of Rs.94 crore bounding the respondent to pay 1/4th amount of total consideration amount within 50 days and remaining amount was to be paid in 6 equal installments till performance date (i.e. 01.03.2019)

Respondent filed suit for specific performance of agreement and Trial Court ordered the respondent to deposit the remaining consideration amount in the Court but respondent failed to deposit the same

Responded submitted application and prayed for the suit to be decided in terms of compromise and on the same day counsel for the respondent got recorded his statement before the Court for vacation of stay to the extent of 15 acres 12 marlas land belonging to the petitioner, which was vacated

Respondent paid 5% amount (i.e. Rs.37,920,330/-) of the totalsale consideration

Respondent also paid amount of Rs.90,000,000/- to the petitioner

Petitioner contended that respondent did not comply with the compromise and failed to pay the remaining amount under terms of compromise

Trial Court passed detailed order directing the respondent to pay the remaining amount

Respondent did not comply with the said order, instead filed revision petition before High Court which was pending

Respondent filed execution petition and the executory Court ordered the petitioner to get 30 acres of land in respect of the response to the received amount

Validity

Order of Trial Court divulged that the same was passed only for vacation of stay order to the extent of 30-acres land

Such order did not mention that the said 30-acres land would be transferred in the name of the respondent in pursuance of amount of Rs.90,000,000/

As per terms of the compromise, the respondent was bound to pay 1/4th of the agreed amount, whereas the amount paid by respondent i.e. Rs.90,000,000/-, in no way was 1/4th of the total amount

Orders sought to be executed by filing execution petition as per S.36 of the Code of Civil Procedure, 1908, were not executable

No "executable order" was in the field

Revision petition was accepted accordingly.

Grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principles of equity even if the suitor has proven the case.

Respondent/decree holder filed execution application on 5th June, but at that time the business of the Court was closed due to summer vacation, therefore, said petition was registered on 8th July

Courts remained closed during summer vacation for one month and District Court mainly conducted criminal cases and stay matters in civil cases

Section 4 of the Limitation Act, 1908 was attracted

Application could not be termed beyond the period of limitation.

Contention of the appellant/plaintiff was that she could not deposit balance sale consideration as some of the share-holders were abroad and that her counsel did not affix the court fee

Held, that it was own claim of the appellant/plaintiff that huge amount (of six crore) was outstanding on her part as balance sale-consideration

Mandatory for the party (plaintiff or defendant who sought enforcement of agreement under the Specific Relief Act, 1877, that the balance amount be deposited in the Court on the first appearance or on the date after the institution of the suit as per the permission of Court and any omission in said regard would entail dismissal of suit

When the time, fixed in the agreement to sell, approached the plaintiff should have been ready to show her willingness for performance of the sale agreement

Appellant/plaintiff was to show his/her bona fide by depositing the total sale consideration in the Court to demonstrate her readiness and willingness for performance of the sale agreement and any contumacious omission in said regard would entail dismissal of the suit for specific performance being an equitable relief

Trial Court, in the present case, specifically directed the appellant to deposit balance consideration amount along with proper court fee as per valuation of the suit within a period of two months, but neither balance amount nor court-fee was affixed by the appellant

Conduct of the appellant showed that she was not serious in performing her agreed part of contract or in pursuing her remedy of specific performance

Said conduct of the appellant on the touchstone of equitable principles on the subject, disentitled the appellant of equitable relief of specific performance

Contention of appellant that some of the share-holders were living abroad would not absolve her as no share-holder was even party to the lis

Conduct of the appellant was contumacious in not depositing the balance consideration amount, he was lawfully denied the equitable relief of specific performance

No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court

Appeal was dismissed, in circumstances.

Remedy of specific performance of a contract being equitable in nature cannot be granted to enforce a transaction declared void by a statute.

Rule of discretion in specific enforcement cases should not be arbitrarily applied rather it should be invoked to promote fairness and equity.

Suit-land was owned by three persons and out of them only defendant entered into agreement to sell with plaintiff for the whole land

Earnest money was received by defendant and agreement was to be completed within a specified time

Plaintiff filed suit on the ground that defendant failed to perform his part of 'agreement and refused to transfer suit-land

Plea raised by defendant was that time was the essence of the agreement and plaintiff had failed to complete the same within the fixed time

Trial Court decreed the suit in favour of plaintiff only to the extent of land owned by defendant

Validity

Plaintiff remained unsuccessful in proving her entitlement to decree granted by Trial Court as she had not expressed her willingness to relinquish her claim to further performance or to compensation etc. of the part of suit-land not given to her

Parties contemplated only a single and indivisible transaction of sale with immediate delivery of possession and for effecting a conveyance time stipulated was expressly mentioned to be of the essence of contract

Part to be specifically enforced stood on a separate and independent footing from remaining part of the contract

Parties entered into agreement with clear intendment that agreement would be performed within six months and they had given a specific date for that purpose

Defendants had successfully proved that they were not obliged to perform their part of contract on account of lapse on the part of plaintiff to pay the balance sale price within the stipulated time

Plaintiff was not entitled to specific performance of agreement in terms of S.65 of Contract Act, 1872 but she was entitled to get back her money paid in advance with profit/interest at the bank rate

Judgment and decree passed by Trial Court for specific performance of agreement to sell was not maintainable and was reversed and decree was modified by High Court for recovery of earnest money.

Suit land was owned by three persons and out of them only defendant entered into agreement to sell with plaintiff for the whole land

Earnest money was received by defendant and agreement was to be completed within a specified time

Plaintiff filed suit on the ground that defendant failed to perform his part of agreement and refused to transfer suit-land

Plea raised by defendant was that time was the essence of the agreement and plaintiff, had failed to complete the same within the fixed time

Trial Court decreed the suit in favour of plaintiff only to the extent of land owned by defendant

Validity

Plaintiff remained unsuccessful in proving her entitlement to decree granted by Trial Court as she had not expressed her willingness to relinquish her claim to further performance or to compensation etc. of the part of suit-land not given to her

Parties contemplated only a single and indivisible transaction of sale with immediate delivery of possession and for effecting a conveyance time stipulated was expressly mentioned to be of the essence of contract

Part to be specifically enforced stood on a separate and independent footing from remaining part of the contract

Parties entered into agreement with clear intendment that agreement would be performed within six months and they had given a specific date for that purpose

Defendants had successfully proved that they were not obliged to perform their part of contract on account of lapse on the part of plaintiff to pay the balance sale price within the stipulated time

Plaintiff was not entitled to specific performance of agreement in terms of S.65 of Contract Act, 1872 but she was entitled to get back her money paid in advance with profit/interest at the bank rate

Judgment and decree passed by Trial Court for specific performance of agreement to sell was not maintainable and was reversed and decree was modified by High Court for recovery of earnest money.

Principles provided in the said provision of the Act and further highlighted by the superior Courts should be considered while granting or refusing equitable relief of -specific performance

Laches or waiver on the part of the plaintiffs was not one of the grounds mentioned in S.22 of the Act to disentitle relief of specific performance, but as the conduct of the plaintiffs was a factor to be equally considered, delay in not taking a suitable action on the part of the plaintiffs would disentitle them to this equitable relief

Relationship between consequences of delay and acts done by parties during the interval before taking suitable action explained in terms of plaintiffs' remedy.

-Agreement providing that vendor shall have right to refund the amount received if balance amount was not paid within specified period by vendee after issuance of notice by vendor asking vendee to take possession by payment of balance amount

Failure to pay balance amount by vendee within specified period

Agreement to sell stood cancelled

Indian Specific Relief Act (XLVII of 1963), S.16.

Petitioner had not attached copies of judgments of Trial Court or of District Judge with petition for leave to appeal to Supreme Court and had not cared to place on record the statements of parties whereby they agreed to get the suit decided on the basis of the Special Oath

Supreme Court, however, after hearing the petitioner, declined to interfere with the judgments of subordinate Courts.

Petitioner declining to perform his part of contract with plea that he had informed respondent for completing transaction but as she failed to do so, he revoked the agreement

Alleged notice in writing not proved

Held: A mere oral assertion by petitioner was not sufficient and that petitioner had no justification to revoke the agreement for sale.

S. 27-Contract of sale-Specific performance-Sale allegedly having to be made by all three vendors, having separate shares in relevant Khasra numbers-Price nevertheless alleged to be paid or promised to be paid to all vendors in lump sum-Not known in circumstances as to in what proportion or to which extent each vendor had to receive or share same - Contract against one of vendors having fallen through due to such vendor being not a signatory of agreement although alleged to have received advance money alongwith others, contract as such remains one individual contract - Transaction resultantly must stand or fall as a whole-Price of contract being not capable of befurcation, contract, held, not capable of specific performance.

Decree for specific performance of agreement with regard to sale of property-Decree only declares right of decree-holder to have property transferred to him-Title -of property remains vested in judgment debtor till sale-deed executed and registered in favour of decree-holder.

Specific performance-Suit for specific performance of contract relating to sale of immovable property-Plaintiff could not be said to have abandoned his claim for specific performance merely because in first instance he had tried to pin down defendant by launching criminal prosecution against him-Where defendant found to have committed breach of contract, it is not obligatory on part of plaintiff" to prove his willingness to perform it up to date of filing of suit-Plaintiff absolved from showing that he was ready and willing to perform his part of contract where defendant has definitely r9pudlated contract or has committed breach thereof-Specific Belief Act (1 of 1877), S. 22.

Specific performance-Suit for specific performance of contract of sale-Defence plea that there was variation and afresh contract was executed-New contract not produced nor even scribe of contract examined-Defence plea, held, rightly rejected.

Specific Performance -Suit for-Plaintiff must conform himself to terms of contract-Plaintiff, asking for relief not covered by terms of contract-Held, not entitled to relief prayed for:

Specific Performance Equitable relief - Nature-Relief when refused

Delay in filing suit-Caused by meeting third party's claim to set asp in suits to property in question-Sufficient excuse.

Practice of averring in plaint that plaintiff was willing and ready to perform his part of contract-Failure to make such averment to express terms not necessarily fatal to suit-Necessity of averment not a rule of law-Specific Relief Act (I of 1877) contains no such requirement (Quaere) whether plaintiff must nevertheless prove at hearing his readiness from date of contract to date of hearing-Specific Relief Act (I of 1877), S. 24 (b).

Specific Performance -Suit for declaration and mandatory injunction may be treated as one for specific performance after taking into consideration substance of plaint-(Suit treated as one for specific performance by Kaikaus, J., Cornelius, C. J., and Fazle-Akbar, J., agreeing; Hamoodur Rahman, J. contra)-Conversion of suit to one for specific performance at late stage (in appeal before Supreme Court)-Prejudicial to defendants who may be deprived of defences otherwise open to them (Hamoodur Rahman, J.).

Specific Performance -Suit for-Cause of action distinct from suit for possession-One suit cannot be amended into the other

Suit for specific performance sought to be amended into suit for possession by redemption of mortgage at Revision stage in High Court-New point-Mixed question of law and fact-Not allowed to be raised.

Specific Performance Delay in suing-Bar to relief only if delay prejudices defendant or leads him to believe that plaintiff' had waived his rights-[Begraj v. Alisher A I R 1923 Sind 50 ref.].

Specific Performance - Contract of sale of land - Right to recover possession springs out of contract-Decree-Direction for delivery of possession becomes part of decree though not embodied in it-Transfer of Property Act (IV of 1882), Ss. 54 & 55 (1).

Granted only if "under all circumstances it is just and equitable to do so"-[Jamshed Khodaram Irani v. Burjorji Dhunjibhai A I R 1915 P C 83 ref.].

Specific Performance Contract of service-Suit for declaration that plaintiff' continues to be in service of Department, not competent-Specific performance cannot be granted against an unwilling master-Specific Relief Act (1 of 1877), S. 21 (b)

[Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chowdhury arid two others P L D 1961 S C 531 and Barber v. Manchester Regional Hospital Board and another (1958) 1 All E R 322 rel.]

S. 22-Specific performance-Sought to be enforced against subsequent purchaser having right of pre-emption-Relief to be refused.

Specific Performance Specific performance-Contract of sale of land-Specific performance of contract decreed-Decree given effect to by execution and registration of sale deed-Defendant's appeal no longer "of significance".

A agreeing to sell land to B-A, in violation of agreement, selling land to C having superior right of pre-emption-B suing A for speck performance impleading C as defendant-Whether Court should refuse relief (Quaere).

Oral.'' declaration either by promisor or an his failure by Court enough ( obiter),

Specific performance-May not be refused even if vendor put to loss due to change in currency necessitated by first enemy occupation of British territory, and, second, reversion of territory to British control-(Hong Kong case).

Specific Performance-Of dart of contract-Whether should be allowed-General principle. The appellant agreed to buy two houses which were owned by the First, Second and Third respondents as tenants in common. He could not enforce this contract against the First respondent because she had no power to make the contract. Can he enforce it against the Second and Third respondents so as to require conveyance to him of the two one-third shares which belonged to these respondents.