Back
IN THE HIGH COURT OF BOMBAY
ADELIA DOS REMEDIOS
Versus
ANAND GIRI KENI
Decided on : AUGUST 24, 2005
Specific Relief Act, 1963 - Sections 10 and 20 - Suit for specific performance of consent decree - Pleadings regarding readiness and willingness to perform his part of contract by plaintiff was necessary. - The suit seeking specific performance of consent decree being in the nature of specific performance of the contract, it was incumbent upon the plaintiff to aver the readiness and willingness to perform his part of contract.
Specific Relief Act, 1963 - Section 20 - Civil Procedure Code, 1908, Section 152 - Suit for specific performance of consent decree - Trial Court amended the consent decree by reading plot No. 48 as plot No. 43 and granted decree for specific performance to sell plot No. 43 to plaintiff - Judgment suffers from fundamental error - It was not open to the Court to read plot No. ’48’ as plot No. ’43’ in absence of correction of consent decree by parties thereto - Court cannot read something in consent decree which is not there. - Consent decree is nothing but an agreement between the parties superimposed with the seal of the Court and the specific performance of such agreement can always be sought by filing substantive suit. However, in the suit for specific performance of consent decree, it was not open to the Court to read Plot No. ’48’ as ’43’. Section 152 of the Code of Civil Procedure provides the course for correction of clerical or arithmetical mistakes in judgments, decrees or order or errors arising therein from any accidental slip. Admittedly, no such course was adopted by the parties to the consent decree. The Court could have amended the consent decree. It was not open to read something in the consent decree, which was not there. As a matter of fact, right from beginning the case of the defendant No. 1 and her husband had been that Plot No. 43 was not part of the consent terms. Admittedly no steps were taken by the plaintiff in getting the consent decree corrected and amended. The trial Court committed serious error in reading into the consent decree plot No. 43 which was not there and them granting the decree for specific performance; relating to that plot. The impugned judgment suffers from fundamental error.
Specific Relief Act, 1963 - Section 20 - Suit for specific performance of consent decree - Plaintiff in terms of the consent decree was only authorised to make demand for conveyances on behalf of the Trustees of Sharada Mandir Trust - Suit filed by plaintiff having no right beyond the consent decree was not maintainable. - The plaintiff who was the defendant No. 3 is the suit in which the consent decree came to be passed was only authorised to make demand for conveyances on behalf of the Trustees of Sharada Mandir Trust. Clause 2 of the consent decree does not authorise the plaintiff to claim specific performance of the consent decree dated 7.9.1981 when read together, leave no manner of doubt that Luciano and his wife were under obligation to convey in favour of the Trustees of Sharada Mandir or their nominees the 89 plots referred to in the consent decree and the demand for such conveyances could be made by the plaintiff on behalf of the Trustees of Sharada Mandir Trust. The plaintiff did not have any right beyond it under the said consent decree. The suit for specific performance of the contract based on the consent decree dated 7.9.1981, thus, filed by the plaintiff was not maintainable.
( 2 ) THE original defendants No. 1, 4, 11, 12, 13, 14, 15 and 16 are in appeal aggrieved by the said judgment and decree.
( 3 ) ANAND Guiri Keni (since deceased) and now represented by his legal representatives (respondents No. 1 to 6 hereinafter, referred to as "the plaintiff) filed the suit for specific performance of the agreement, though styled as the suit for declaration, mandatory and permanent injunction and damages. He set up the case in the plaint that by an agreement dated 12-7-1971, the late Luciano Jovita francisco Pinto and his wife agreed to sell their property to Sharada Mandir trust known as "nagally" and "queundem" situated at Teleigao, IIhas, Goa bearing Land Registration No. 1436 at Book B 4 old and Revenue Nos. 216, 217, 219, 223, 224, 225, 630 and 642 directly or through its nominee or nominees. That in terms of the said agreement, Sharada Mandir Trust appointed him to carry out sub-divisions and development of the said property and to arrange for sale of the sub-divided plots. On 9-9-1971, the said Luciano Jovita Francisco pinto and his wife executed another agreement with the said Trust and the plaintiff, specifying the terms and conditions relating to the sub-division and sale of the plots. The said property was sub-divided into plots subsequently and their approval from the Town Planning Department was secured and the sale of the resulting plots was partially effected. When the sale was in process and the plots were yet to be completely sold as per the agreement, the dispute arose between the plaintiff, Sharada Mandir Trust and Luciano Pinto and his wife. That led to the Sharada Mandir Trust in filing the suit bearing No. 37/81/a in the Court of the Civil Judge, Sr. Division, Panaji. The said suit was settled between the parties by the consent decree dated 7-9-1981. The plaintiff averred that pursuant to the consent decree, the said Luciano Pinto and his wife executed various sale deeds of the plots. When the plaintiff wanted the said Luciano and his wife to execute the sale of five plots including Plot No. 43, by his letters dated 3-3-1982 and 19-8-1982 he refused to execute the sale of the five plots. The plaintiff then wrote a letter dated 31-8-1982 to Luciano Pinto explaining to him that the said five plots including Plot No. 43 formed part of the consent decree and that the said plots had been approved by the Town Planning Department. In response to his letter dated 31-8-1982, Luciano Pinto recorded that he would verify from the plan whether the said plots existed in fact or not and in case he was satisfied, he would sign the sale deed within the time mentioned in the letter dated 31-8-1982. Luciano Pinto and his wife after scrutinizing the plan signed the sale deed pertaining to the four plots, but did not sign the sale deed relating to Plot No. 43 on the ground that plot No. 43 was not included in the consent decree. In the plaint, the plaintiff averred that in the consent terms dated 7-9-1981, by mistake, two plots were mentioned as plot No. 48; one of the these plots is in fact Plot No. 43. The plaintiff further averred that in the consent decree it has been clearly mentioned that Luciano Pinto and his wife shall sell to Sharada Mandir Trust or to such person as may be named by it all the 89 plots approved by the Town planning Department as mentioned in the plan annexed to the application for consent decree. According to the plaintiff, Plot No. 43 was one of those 89 plots. Luciano Pinto expired on 25-3-1984 and, therefore, in the suit besides his wife who was impleaded as defendant No. 1, his other heirs were impleaded as defendants Nos. 2 to 10. T
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
