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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. Jamadar
Sou Deepa Chandrashekar Shetty – Appellant
Versus
Milind Jaykumar Kole – Respondent
JUDGMENT :
1. Rule. Rule made returnable forthwith and, with the consent of learned counsel for the parties, heard finally.
2. These petition and application arise out of the orders passed by the learned Civil Judge, Ichalkarnaji in Special Civil Suit No. 251 of 2005 and as the outcome of one may have a bearing on another, both the petition and the application were heard together and are being decided by this common judgment.
3. The background facts, leading to these proceedings, can be summarised as under:
3.1 Guruprasad Narayan Shetty, the deceased defendant, and the predecessor in title of the applicants/petitioners was the holder of property bearing revenue survey No. 575/ 2, admeasuring 35.02 R situated at Tal-Hatkanangale, District-Kolhapur. The deceased- defendant entered into a contract to sell 15 R land out of the said property at the consideration of Rs.150 per sq. ft.
3.2 An agreement for sale dated 18th September 1996 came to be executed. Under the said agreement, the plaintiff claimed to have paid a part consideration of Rs.2,80,000/-. Balance consideration was to be paid at the time of the execution of the sale deed. The deceased defendant was to take requisite steps to ha
Limitation for specific performance suits is a mixed question of law and fact, requiring evidence for determination; amendments to the plaint are permissible if necessary for resolving real issues.
The issue of limitation for specific performance of a contract is a mixed question of fact and law, and the plaint cannot be rejected solely based on the averments in the plaint.
Agreement to Sell – Suit for Specific Performance cannot be decreed after termination of sale agreement by defendant.
The suit for specific performance was within the limitation period as per the notice of refusal, and the defendants failed to prove cancellation of the agreement.
A unilateral cancellation of a registered agreement of sale is invalid; the cause of action based on subsequent knowledge and payments keeps the suit within limitation.
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