Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | 1963: s.12 - Non-applicability of - Agreement for sale of property between appellant-defendant and respondent-plaintiffs Specific Relief Act |
Content Type | Text |
Resource Type | Law Order |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Specific Relief Act, 1963: s.12 - Non-applicability of - Agreement for sale of property between appellant-defendant and respondent-plaintiffs - Plaintiffs paid earnest money - Another payment made by plaintiffs on 31.1.1990 - Subsequently, plaintiffs filed suit for specific performance of the agreement for sale and in the alternative claimed refund of earnest money with interest and damages - Trial court dismissed the suit holding that the plaintiffs were not ready and willing to perform their part of the agreement and also that the plaintiffs did not have arrangement of balance consideration to purchase the property within the stipulated time - First appellate court affirmed the findings of trial court - High Court in second appeal without discussing the correctness of findings as recorded by trial court and affirmed by first appellate court, referred to s.12 and decreed the suit partly, directing part performance of the contract - On appeal, held: High Court could not have decreed the suit without reversing the findings recorded by trial court and affirmed by first appellate court - When balance consideration was not available with the plaintiffs obviously they were not entitled uls. 12 for the decree of specific performance of agreement to sale even in part-A bare perusal of s.12 makes it clear that specific performance of a part of contract cannot be directed except in the exigencies as provided under subsections 2, 3, and 4 - However, none of such exigency was present in the instant case - Further, s.12 does not apply where the inability to perform specific performance of part of contract arises because of the plaintiff~ยท own conduct, as in the present case - Thus, amount paid as earnest money was rightly forfeited by defendants - Remaining money paid in advance on 31.1.1990 by plaintiffs to defendants to be refunded with simple interest @ 6% p.a. to plaintiffs - However, plaintiffs to bear the cost incurred by appellants-defendants in courts below and the cost of appeal in Supreme Court which is quantified at Rs.5,00,000/ - Amount of cost payable to defendants to be adjusted out of the amount to be paid alongwith interest to the plaintiffs. A s.16 - Readiness and willingness - When cannot be inferred - Held: It is necessary u/s. 16(c) not only to aver the readiness and willingness but also to prove it - In the present case, plaintiffs only pleaded their readiness and willingness, but failed to prove it - Further. merely because payment of part consideration was made by the plaintiffs, their readiness to perform the contract could not have been inferred as wrongly done by High Court - Readiness and willingness has to be seen in the context of entire agreement and not with respect to a portion of contract. |
Judge | N/A |
Neutral Citation | 2017 INSC 1280 |
Petitioner | Jaswinder Kaur (now Deceased) Through . |
Respondent | Gurmeet Singh And Ors |
SCR | [2017] 5 S.C.R. 430 |
Judgement Date | 2017-04-18 |
Case Number | 5636 |
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