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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDIRA BANERJEE, JJ.
B. SANTOSHAMMA & ANR. – Appellants
Versus
D. SARALA & ANR. – Respondents
CIVIL APPEAL NO.3574 OF 2009 WITH CIVIL APPEAL NOS. 3575-3577 OF 2009
Decided On : 18-09-2020
(A) Civil Procedure Code, 1908 – Order II Rule 2 – Bar against second suit – Clubbing of suits for hearing them together and disposal thereof by a common judgment and order is for practical reasons – Such clubbing together of suits do not convert suits into one action – Suits retain their separate identity – Plea of bar under Order II Rule 2 of CPC is a technical plea which has to be pleaded and satisfactorily established – If plea of bar under Order II Rule 2 is not taken, Court should not suo motu decide the plea. (Paras 91, 93, )
(B) Specific Relief Act, 1963 – Section 12 – Specific Performance of Contract – Relief of specific performance of a contract is no longer discretionary, after the amendment – Agreement to sell immovable property, generally creates a right in personam in favour of Vendee – Vendee acquires a legitimate right to enforce specific performance of agreement – Court ordinarily enforces a contract in its entirety by passing a decree for its specific performance – However, Section 12 of Specific Relief Act carves out exceptions where Court might direct specific performance of a contract in part – Where a party to contract is unable to perform whole of his part of contract, Court may, in circumstances mentioned in Section 12 of S.R.A., direct specific performance of so much of contract as can be performed, particularly where value of part of the contract left unperformed would be small in proportion to total value of contract and admits of compensation – Court may, under Section 12 of S.R.A. direct party in default to perform specifically, so much of his part of contract, as he can perform, provided other party pays or has paid consideration for whole of contract, reduced by consideration for the part which must be left unperformed – Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice – A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free. (Paras 70 to 74, 87 and 88)
(C) Agreement to Sell – Specific Performance of Agreement – Part Enforcement of Contract – Onus of proof lies on party who makes allegation – It was for Vendor to establish that agreement was subject to condition as alleged by Vendor, that Vendee and/or her husband would negotiate with Proforma respondent to get his earlier agreement with Vendor cancelled – Vendor failed to discharge her onus of proving that there was such a condition in agreement – Trial Court and High Court rightly did not believe Vendor – Effective concurrent finding of High Court and Trial Court that Vendee had been ready and willing to perform and had in fact performed her obligations under Agreement is also unexceptionable – Concurrent findings of High Court and Trial Court that Vendee was ready and willing to perform and had performed her obligations under Agreement are based on evidence and sound reasons, do not call for interference of this Court – Appeals dismissed. (Paras 59, 60, 61, 70, 71, 94 and 95)
Facts of the case:
Present appeals are against a common judgment and order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad dismissing the appeals being A.S. Nos.892 of 1994, 893 of 1994, 894 of 1994 and 1785 of 1994 and inter alia confirming judgment and decree of the Trial Court in O.S.No.20 of 1993 and OS No. 91 of 1993 and the decree of dismissal by the Trial Court of Suit being O.S.No.92 of 1993.
Findings of Court:
After having entered into an agreement for sale of 300 Sq. yards of land, with her eyes open, and accepted a major part of consideration (Rs.45,000/- out of Rs.75,000/-) it does not lie in mouth of the Vendor to contend that the contract should not have specifically been enforced in part, in respect of the balance 200 sq. yards meters of the suit land which the Vendor still owned.
Result : Appeals dismissed.
1. Sale of 300 sq. yards of land under registered agreement; 100 sq. yards previously sold to third party via registered deed; specific performance sought for balance. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 )
2. Seller contended agreement was conditional on cancellation of prior sale to third party and buyer was unwilling to perform; buyer claimed readiness and sought specific performance of entire agreement. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 )
3. Appeals dismissed; High Court judgment upheld; specific performance allowed in part for balance 200 sq. yards under Section 12 of Specific Relief Act. (Para 94 , 95 )
Under Section 12 of the Specific Relief Act, the court may direct specific performance of so much of the contract as can be performed, where the unperformed part is small in proportion and admits of compensation in money. (Para 47 , 48 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 77 , 78 , 86 , 87 , 88 , 89 , 90 )
No. The written agreement did not incorporate any such condition, and the party alleging it failed to prove its existence. (Para 54 , 58 , 59 )
Yes. The buyer had paid a major part of the consideration, tendered the balance within the stipulated period, and obtained a Demand Draft within 47 days. (Para 55 , 56 , 57 , 60 , 61 , 62 , 63 , 64 , 75 , 76 )
Yes. The period of limitation for specific performance is three years. The buyer knew of the registered deed when filing the suit, and the claim against the third party was time-barred. (Para 42 , 79 , 80 , 81 , 82 , 83 , 85 )
Yes. A registered deed cannot be declared void without impleading its executant as a defendant. The suit was properly dismissed for non-joinder of the seller. (Para 45 , 46 , 84 , 85 , 91 , 92 , 93 )
JUDGMENT
Indira Banerjee, J.
These appeals are against a common judgment and order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad dismissing the appeals being A.S. Nos.892 of 1994, 893 of 1994, 894 of 1994 and 1785 of 1994 and interalia confirming the judgment and decree of the Trial Court in O.S.No.20 of 1993 and OS No. 91 of 1993 and the decree of dismissal by the Trial Court of the Suit being O.S.No.92 of 1993.
2. The Appellant No.1, in Civil Appeal No. 3574 of 2009, B. Santoshamma, hereinafter referred to as the ‘Vendor’, wife of the Appellant No.2 in the said appeal, B. Darshan Reddy, purchased 300 square yards of land, in survey No. 262 of Hayathnagar Village and Taluk in Ranga Reddy District, hereinafter referred to as the ‘suit land’, from one D. Tanesha, under a registered sale deed dated 20th August, 1982.
3. After about ten days, the Vendor allegedly entered into an oral agreement with the proforma respondent in the said appeal, P. Pratap Reddy, for sale of 100 sq. yards out of the suit land in his favour, for a total consideration of Rs.3000/-, out of which Rs.2,500/-was paid in advance. The Vendor claims to have delivered possession of the said 100 sq. yards to Pratap Reddy on the date of the oral agreement itself.
4. On or about 20th January, 1984, the alleged oral agreement between the Vendor and Pratap Reddy was allegedly reduced into writing, upon payment of the balance consideration of Rs.500/-. The Vendor and her husband allegedly agreed to execute the sale deed on an auspicious day, after consulting the family priest.
5. On 21st March, 1984, the Vendor entered into an agreement with the contesting respondent in Civil Appeal No. 3574 of 2009, Smt D. Sarala, hereinafter referred to as the Vendee, for sale of the suit land to the Vendee, for a total consideration of Rs.75,000/-, out of which Rs.40,000/-was paid by the Vendee to the Vendor in advance. The Vendor claims to have informed the Vendee of the oral agreement with Pratap Reddy, which had been reduced to writing on 20th January, 1984. The Vendor and her husband Darshan Reddy contend that the Vendor had also specifically informed the Vendee that the Vendor had received the sale consideration for 100 sq. yards from Pratap Reddy, and had delivered possession of 100 sq. yards of land to him.
6. The Vendor has alleged that she specifically requested the Vendee to incorporate a clause with regard to the earlier agreement with Pratap Reddy in the sale agreement between the Vendor and the Vendee. However, the Vendee assured the Vendor that she would get the earlier agreement with Pratap Reddy cancelled as her husband knew Pratap Reddy well and had already spoken to Pratap Reddy. According to the Vendor, the Vendee represented to the Vendor, that there was no need for the Vendor to get any clearance from Pratap Reddy as the Vendee and her husband had been assured by Pratap Reddy that no difficulty would be created by him.
7. On or about 25 May, 1984, that is, about two months after execution of the sale agreement with the Vendee, the Vendor executed a registered deed of conveyance transferring 100 sq. yards of the suit land in favour of Pratap Reddy. The Vendor and her husband Darshan Reddy, as also Pratap Reddy, have alleged that the Vendee had tried to interfere with Pratap Reddy’s possession of 100 sq. yards of the suit land.
8. On or about 20th June, 1984, the Vendor allegedly issued notice to the Vendee contending that the agreement of sale dated 21st March, 1984 was conditional upon clearance from Pratap Reddy in view of the earlier agreement of the Vendor with Pratap Reddy for sale of 100 sq. yards of the suit. The purported notice, if any, was issued after execution of the registered deed of conveyance, for sale of 100 sq. yards of the suit land in favour of Pratap Reddy.
9. On 22nd June, 1984, the Vendor’s husband, Darshan Reddy, lodged a complaint with the Station House Officer, Hayathnagar, alleging that the original sale deed of the suit
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