2006 Supreme(Guj) 798

Gujarat High Court
Judgename :P.B.MAJMUDAR, P.B.MAJMUDAR
HUSENABIBI, AMIRBHAI YASINBHAI - Appellant
Versus
ABDULMIYA KASAMMIYA KURESHI - Respondent
FA 32 Of 1994
Decided On : 12/14/2006

Headnote:Point in Issue :

       Whether in facts of the case refusal to grant decree of specific performance by trial Court justified?

       Head Note :

       Specific Relief Act, 1963 (Central Act 47 of 1963) - Sections 20 and 21(5) - Specific performance of agreement - Suit for - Readiness and willingness to perform their part of agreement - Absence of - Finding as to - Sustainability - It is clear from the evidence on record that plaintiffs in the case have never shown their readiness and willingness to perform their part of contract within stipulated time - They have never come forward to get the sale-deed executed by paying remaining consideration as provided in agreement - Evidence on record makes it clear that the plaintiffs have no financial resources by which property could have been purchased - It is also to be noted that when the plaintiffs received notice from Defendants No. 1 to 3 on 27.12.1982 for the first time they came to know that defendants have cancelled the agreement yet they have not taken any steps by writing any letter - That apart suit was also filed after a considerable time after a period of two years and nine months when the time limit as mentioned in the agreement came to an end - It is expected of prudent person to go to the Court immediately for obtaining injunction against purchasers with regard further transfer of property when it is brought to his notice that property is already sold - These circumstances are sufficient to disentitled the plaintiff from getting any decree for the specific performance of agreement which is discretionary relief - The trial Court has rightly used its discretion in refusing decree for specific performance which does not call any interference in appeal.

       Held :

       Considering the evidence on record, it is clear that the plaintiffs have never shown their readiness for getting the sale-deed executed by paying remaining consideration within the stipulated time as provided in the agreement to sell. In that view of the matter, even if it is believed that after receiving notice dated 21.12.1982 from the plaintiffs, Defendants No. 1 to 3 gave a notice dated 20.12.1982, by changing the date, as alleged, and cancelled the Banakhat, then also after considering the evidence on record, it cannot be said that the plaintiffs were ready and willing to perform their part of the contract within stipulated time. There is nothing to show that the plaintiffs had any balance with them for paying the remaining amount of consideration as per the agreement. Evidence on record makes it clear that the plaintiffs have no financial resources by which the property could have been purchased. It is also required to be noted that when the plaintiffs received the notice from Defendants No. 1 to 3 on 27.12.1982, for the first time, they came to know that defendants have cancelled the Banakhat, yet they have not taken any steps by writing any letter and only after receiving attornment notice from Defendants No. 1 to 3 dated 03.01.983, the plaintiffs gave a composite reply with regard to cancellation of Banakhat as well as attornment notice. Said reply dated 11.01.1983 is at Exhibit 67 on record. Son-in-law of Plaintiff No. 1 is a building contractor, and it is not expected from him not to immediately rush to Defendants No. 1 to 3 moment notice for cancellation of Banakhat is received by the plaintiffs on 27.12.1982. Therefore, even if it is presumed that the notice is sent subsequently, by making a show that notice was sent on 20.12.1982, then also the plaintiffs had not taken immediate steps even after 27.12.1982 till they received attornment notice. Apart from that suit was also filed after a considerable time as it was filed on 13.09.1985, i.e. after a period of about more than two years and nine months from 28.11.1982, when the time limit as mentioned in the Banakhat came to an end. Therefore, it is clear that the suit was filed within limitation, however, it is expected from a prudent person to go to the Court immediately for obtaining injunction against the purchaser with regard to further transfer of the property, when it is brought to his notice that the property is already sold. In Courts view, these are the circumstances, which dis-entitles the plaintiffs from getting a decree for specific performance, which is discretionary in nature. [Para 34]

       Law Laid Down :

       Even though time is not the essence in such contracts still suit could be filed within a period of three years as provided under Limitation Act.

       Case Law Analysis :

       Shamsu Suhara Beevi vs. G. Alex, 2004 (8) SCC 659 [Para 45].-Distinguished

       Conclusion :

       In absence of evidence that plaintiffs were ready and willing to perform their part of agreement, they are not entitled to decree of specific performance in their favour which is a discretionary relief.

       Cases Referred :

       Acharya Swami Ganesh Dassji vs. Shri Sita Ram Thapar, AIR 1996 SC 2095;; A.C. Arulappan, vs. Ahalya Naik, AIR 2001 SC 2783;; Mademsetty Satyanaryana vs. G. Yelloji Rao & Ors., AIR 1965 SC 1405;; K.S. Vidyanadam vs. Vairavan, AIR 1997 SC 1751.

       Decided in Favour of :

       Respondent

       Appeal Dismissed