Amit Mondal Vs. Pannalal Das and Ors. - (High Court of Calcutta) (06 Jul 2017)

For specific performance of contract, Plaintiff is required to prove readiness and willingness to perform his part of obligations under contract

MANU/WB/0471/2017

Contract

Present First Appeal is against judgment and decree passed by Civil Judge. By impugned judgment, Plaintiff's suit for specific performance of contract was decreed in part. Relief for specific performance of contract prayed for by Plaintiff, was refused by Trial Judge on ground that, registered agreement for sale which was sought to be enforced by Plaintiff by said suit was not signed by Plaintiff (purchaser). Trial Judge held that, such a unilateral agreement for sale is incapable of enforcement through a suit for specific performance of contract.

There are various modes of creation of contract. A contract may be concluded orally, a contract may be concluded by exchange of letters, a contract may be concluded by signing a document by parties to contract and exchange thereof between them. Each of such contracts is enforceable by a suit for specific performance of contract provided it is legal and is not opposed to public policy. Once the vendor executes such a contract containing terms and conditions on which he agreed to transfer his property to purchaser and purchaser acting upon said agreement pays earnest money to vendor for purchasing suit property, such payment of earnest money to a vendor and acceptance thereof by vendor amounts to conclusion of contract between parties.

Original registered agreement for sale which was admittedly executed by Defendant No. 1 (vendor) was received by Plaintiff from office of concerned Registrar. Receipt of original document by Plaintiff from office of Registrar is also an instance of acceptance all terms and conditions on which vendor agreed to sale his property to purchaser. Thus, here is the case where contract was concluded between Plaintiff and Defendant No. 1 and such contract, is capable of enforcement through a suit for specific performance of contract. Relying upon decision of Supreme Court in case of Aloka Bose Vs. Parmatma Devi & Ors., Court held that, agreement for sale which was sought to be enforced by Plaintiff through said suit, is capable of enforcement through a decree of specific performance of contract.

Section 16(c) of the Specific Relief Act, provides that, in order to get a decree for specific performance of contract, Plaintiff is not only required to aver his readiness and willingness to purchase suit property all throughout in his pleadings but he is also required to prove his readiness and willingness to perform his part of obligations under contract all throughout in course of trial of suit. On examination of evidence of Plaintiff, Court found that, Plaintiff has succeeded in proving that, he was and/or is all throughout ready and willing to perform his part of the contract. Not only, he has proved that, he requested Defendant to execute deed of sale on tender of balance consideration money but he has also proved that, he sent a lawyer's notice requesting Defendant No. 1 to execute sale deed in favour of Plaintiff on acceptance of balance consideration money. Thus, Court held that, Plaintiff succeeded in proving that, he was ready and/or is willing to perform his part of the contract all throughout. As such, there is no reason to deny relief which Plaintiff has claimed for specific performance of contract in said suit.

However, agreement for sale was executed between parties on 31st December, 2001. Thus, litigation continues for about 16 years in different Courts. Valuation of the property has substantially been increased by this time. Valuation of suit property as assessed by Directorate, Registration and Stamp Revenue, Government of West Bengal shows that, valuation of the suit property will be about Rs. 16,04,163/-. Thus, by relying upon said assessment made by Government department, Court directed Defendant No. 1 to execute and registering proper deed of conveyance in favour of Plaintiff for conveying his right title and interest in favour of Plaintiff within one month from date of deposit of balance consideration money i.e., Rs. 12,89,163.00 (Rs. 16,04,163.00 - Rs. 3,15,000.00) and such deposit should will be made by Plaintiff with Court within a month from date. It is further directed that, delivery of possession the suit property will be made by Defendant No. 1 to Plaintiff simultaneously with execution and registration of said deed of sale. In case, Defendant No. 1 fails and refuses to comply with this direction even after Plaintiff fulfils conditions imposed upon him hereinabove, Plaintiff will get this decree enforced through execution of the decree through Court.

Decree which was passed by trial Court for refund of earnest money, was contrary to provision of Section 22 of Specific Relief Act, 1963 as no relief for refund of earnest money was prayed by Plaintiff in the suit. Said part of decree of Trial Judge is thus not retainable and is thus set aside. Appeal disposed off.

Relevant : Alka Bose vs. Parmatma Devi and Ors. MANU/SC/8475/2008

Tags : AGREEMENT SPECIFIC PERFORMANCE REFUSAL VALIDITY