S.P.Anil Kumar Vs Lakshmamma

THIS RFA FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.07.2015 PASSED IN O.S NO. 37/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., SIRA, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH

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& HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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The present Regular First Appeal is filed under Section 96

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of the CPC, impugning the judgment and decree dated 02.07.2015 passed in O.S.No.37/2011 instituted by the appellant for the relief of specific performance of the Agreement to Sell dated 26.02.2011 entered between the parties in respect of the suit schedule property for a total consideration of Rs.26,20,000/-.

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NC: 2025:KHC:45687-DB RFA No. 1394 of 2015

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HC-KAR

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The parties shall be referred as per their ranking in the Trial Court.

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On the basis of the pleadings, the trial court framed the following issues for consideration:

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1. Whether the plaintiff proves that defendant no.1 and others have sold suit property to plaintiff for sale consideration of Rs.26,20,000/-on 26.02.2011, accordingly Defendant no.1 executed an agreement of sale on stamp paper on the same day in favour of plaintiff after receipt of earnest money of Rs. 10,00,000/- out of the sale amount?

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2. Whether the plaintiff proves that he is ready and willing to perform his part of contract as per agreement of sale?

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3. Whether defendants prove that the suit is barred by time, as per agreement it is to be got executed within six months?

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4. Whether plaintiff is entitle for the relief sought for?

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5. What order or decree?

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The Agreement to Sell is an admitted document and advance payment of Rs.10,00,000/- is also not in dispute. What is disputed is whether the plaintiff was capable, ready and willing to perform his part of the contract.

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HC-KAR

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From the cross-examination of the plaintiff (PW.1), it is evident to note that plaintiff did not have entire sale consideration as on 26.02.2011 and in the pleadings as well as

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in the notice, it is has not been stated that the plaintiff had balance amount of Rs.16,20,000/- in his bank account to perform his part of the agreement. Hence, the plaintiff did not lead any credible evidence to show that the plaintiff had Rs.16,20,000/- with him to perform his part of the contract.

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In a suit for specific performance, the plaintiff has to prove three essential ingredients.

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(i) The existence of a legal and valid agreement to sell;

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(ii) The plaintiff’s readiness and willingness to perform his part of the contract which would include plaintiff’s capacity to perform his part of the contract.

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(iii) Refusal of the defendant to perform his part of the contract.

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Refusal to perform the contract by the defendant is the last ingredient which the plaintiff is required to prove but

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HC-KAR

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before coming to the refusal, the plaintiff is required to prove his readiness and willingness to perform his part of the contract and his capacity to perform his part of the contract. From the evidence led by the parties and cross-examination of the plaintiff, it is evident that plaintiff did not led any evidence to prove that he was capable of performing his part of the contract. In fact it is admitted that the plaintiff did not have funds to perform his part of the contract as on 26.02.2011. When the plaintiff was not capable to perform his part of the contract, it would be concluded that plaintiff was not ready and willing to perform his part of the contract. We therefore, do not find that the Trial Court has committed any error on appreciating the oral evidence or facts and law to come to the conclusion that the plaintiff was entitled for the decree of specific performance

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As noted above, there is no dispute regarding payment of Rs.10 lakhs on the date of agreement by the plaintiff to the defendant. The relief granted in a suit for specific performance is also a relief in equity. When the defendant has accepted receipt of Rs.10 Lakhs from the plaintiff, we

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HC-KAR

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deem it appropriate that this amount of Rs.10,00,000/along with interest at the rate of 6% p.a. from the date of payment i.e., 26.02.2011 till the date of deposit to be granted in favour of the plaintiff and thus, we direct the defendant to refund Rs.10,00,000/- which they had received on the date of execution of the agreement of sale dated 26.02.2011 along with interest at 6% p.a. within a period of four months from the date of receipt of a copy of this judgment. Let a in modified decree be decree be drawn in aforesaid terms.

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