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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV, J.
Stephen Noel D'Souza And Anr. - Appellants
Versus
Sadashiv Rakhmaji Bodake (Since deceased) Through His Lrs. 1A. Bharati Sadashiv Bodke And Ors. - Respondents
SECOND APPEAL NO. 64 OF 2018
Decided On : 05-01-2026
Certainly. Based on the provided legal document, here are the key points relevant to the case:
The court emphasized that to claim specific performance, the plaintiff must demonstrate readiness and willingness to perform their contractual obligations. In this case, the plaintiffs failed to do so, leading to the dismissal of their claim (!) (!) .
The agreement in question was for the sale of ancestral land, with the defendant required to obtain subdivision and sale permissions, clear outstanding loans, and remove encumbrances before the sale could be executed. The initial consideration amount was insufficient to meet these obligations, particularly given the outstanding loan amount and the Nazrana (permission fee) required for sale permissions, which was not included in the original agreement (!) (!) (!) .
The evidence showed that the amount received under the agreement was inadequate for the defendant to fulfill the contractual conditions, especially the payment needed for sale permissions and clearing existing encumbrances. This inadequacy was a significant factor in the court’s conclusion that the defendant could not perform the contract (!) (!) .
The agreement did not specify the amount payable as Nazrana, nor did it mention the payment of the outstanding loan, which were critical obligations for the sale to proceed. This omission and the insufficient initial payment further undermined the plaintiffs’ case (!) (!) .
The plaintiff's conduct, including the failure to pay additional amounts or take proactive steps to fulfill contractual obligations, was viewed as a lack of readiness and willingness. The courts found that the plaintiffs did not demonstrate their capacity or intention to perform the contract, which is essential for granting specific performance (!) .
The courts also considered the financial circumstances, noting that the plaintiffs' purpose was investment, and they were not agriculturists, which was relevant in assessing the balance of convenience and hardship (!) .
Ultimately, the courts upheld the judgments dismissing the plaintiffs' claim for specific performance, finding that they had failed to prove their readiness and willingness and that the defendant was unable to perform the contract due to the reasons discussed (!) .
The court directed the refund of the amount deposited by the plaintiffs, along with interest, as the appeal was dismissed (!) (!) .
These points reflect the court’s reasoning that the plaintiffs failed to meet the essential criteria for specific performance and that the defendant was not in a position to fulfill the contractual obligations, leading to the dismissal of the appeal.
| Table of Content |
|---|
| 1. background of specific performance claim. (Para 3 , 4 , 5) |
| 2. arguments for and against plaintiff's compliance. (Para 6 , 7) |
| 3. court's analysis of the agreement terms. (Para 8 , 9 , 10 , 11 , 12) |
| 4. findings on readiness and willingness. (Para 13) |
| 5. conclusion and dismissal of appeal. (Para 14 , 15 , 16 , 17 , 18) |
MILIND N. JADHAV, J.
1. Heard Ms. Sonawane, learned Advocate for Appellants and Mr. Shinde, learned Advocate for Respondent Nos. 1A to 1D.
2. By consent of the parties, present Second Appeal is taken up for final hearing.
3. Present Second Appeal assails concurrent Judgments passed by the learned Trial Court in Special Civil Suit No. 363 of 2010 dated 31.07.2012 which is upheld by the learned Appellate Court in Civil Appeal No. 532 of 2012 by judgment dated 05.05.2017. Both these judgments are appended to the present Second Appeal. Separate Appeal Paperbook containing the evidence recorded is also filed.
4. For the sake of convenience, Appellants shall be referred to as "Plaintiffs" and Respondents as "Defendants".
5. Original Suit is filed for specific performance of agreement dated 30.07.2007 by Plaintiffs. Defendant No. 1 is the owner of the Suit property. Defendant No. 2 is Dena Bank. It is a proforma party. Original Defendant No. 1 expired during the interregnum and proceedings are defended by his legal heirs namely Defendant Nos. 1A to 1D. Relevant facts in brief are as under:-
5.1. Suit property admeasure land having area of 0H 40R out of 50% of the ancestral property coming to the half share of original Defendant No. 1 (i.e. 1H 2.5R) in Gat No. 137 nomenclatured as Part 1/2. Original Defendant No. 1 borrowed loan from Dena Bank and was unable to repay the same due to which in the Other Rights Column Bank’s charge was registered qua and to the extent of 0H 40R out of the property coming to the share of original Defendant No. 1. Since interest was mounting original Defendant No. 1 was desirous of raising some money to pay off the bank loan and discharge the bank. Hence on the meditation of three intermediaries - Ms. Phelomena Cosmos Goviya, Mr. Daulat Punja Bodake and Mr. Vasant Ambu Bodake, he executed Agreement to Sale dated 30.07.2007 for sale of suit property with Plaintiffs. Prior to execution of agreement to sale Defendant No. 1 received Rs. 1100/- as token amount whereas on the date of execution, he received demand draft of Rs. 1,50,000/- out of total agreed consideration of Rs. 7,61,000/- as stated in the agreement. It was specifically stated that the balance amount would be paid by Plaintiffs to Defendants at the time of execution of sale deed. No time frame was stipulated for execution of the sale deed in the agreement. However the agreement to sale was subject to certain conditions / obligations by the parties.
6. Ms. Sonawane, learned Advocate for Plaintiffs would submit that pursuant to execution of agreement to sale and upto the execution of sale deed, Defendant No. 1 was required to obtain subdivision order of the suit property since it was jointly held in conjunction with his brother as ancestral property. She would submit that Defendant No. 1 was also to remit the outstanding arrears of bank loan to Dena Bank and remove the encumbrance and charge registered in the Other Rights Column of the 7/12 extract of the suit property and thereafter give a public notice calling for claims to ensure that there was no other encumbrance in respect of the suit property. She would submit that Defendant No. 1 agreed to execute the sale deed either in the name of Plaintiffs or their nominees. She would submit that pursuant to above as a matter of abundant caution Plaintiffs gave public notice in two local newspapers on 05.08.2007 and 07.08.2007 inviting claims with regard to the suit property since Plaintiffs had executed the agreement to sale and parted with a substantive amount out of the total consideration agreed to be paid. She would submit that thereafter Plaintiffs repeatedly kept on re
The court affirmed that to obtain specific performance, a party must demonstrate readiness and willingness to fulfill contractual obligations, which the plaintiffs failed to do.
The court affirmed that a party seeking specific performance must demonstrate readiness and willingness to perform their contractual obligations, substantiated by evidence.
The court emphasized the importance of proving continuous readiness and willingness to perform the contract, and the need to disclose financial capacity to fulfill payment obligations.
The plaintiff's failure to demonstrate readiness and willingness to perform the contract led to the dismissal of the appeal for specific performance.
In discretionary specific performance cases, courts must balance hardship and enforceability; mere proof of agreement does not guarantee relief when it risks severe hardship for the defendant.
The plaintiff's readiness and willingness to perform the contract, the capacity to mobilize funds, and the mental attitude to purchase the property are essential for specific performance.
The plaintiff seeking specific performance must demonstrate readiness and willingness to perform the contract, and the court must consider the hardship on the defendants. Additionally, agreements inv....
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