The necessity of a written contract for protection under Section 53A of the T.P. Act and the importance of proving readiness and willingness to perform the essential terms of the contract under Section 16 of the Act.

JUDGMENT :

(A.S. Supehia, J.)

1. The present first appeal has been filed under Section 96 read with Order 41 Rule 1-2 of the Code of Civil Procedure, 1908 assailing the judgment and order dated 22.12.2008 passed by the Principal Senior Civil Judge at Bardoli, District Surat wherein and whereby, the Trial Court has dismissed the suit filed by the present appellants – original plaintiffs for specific performance in respect of piece of non-agricultural land bearing Revenue Survey No.174, ad-measuring 14,683 sq. mtrs., situated at Village Tantithaiya, Taluka : Palsana, District : Surat against the respondent – original defendant.

2. Brief facts: The parties are addressed as per their original status in the suit.

2.1 The Plaintiff No.1 is a Limited Company and the Plaintiff Nos. 2 and 3 are the Directors of the Company. The Company is situated on non-agricultural land having Block No.182, village : Jodva, Taluka : Palsana, District Surat.

2.2 On the southern side of the Company, pieces of two separate non-agricultural lands ad-measuring 12537.37 sq.mtrs. and 2145.63 sq. mtrs., total 14,683 sq. mtrs are situated on Revenue Survey No.174 at Village : Tantithaiya, Taluka : Palsana, District : Surat. The defendant is the owner of the said non-agricultural land.

2.3 It is the case of the plaintiffs that in the month of September, 2001, the defendant orally agreed to sell the said land in favour of the plaintiffs at the rate of Rs.250 per sq. mtrs., for a total sum of Rs.36,70,749/-. As per the oral agreement dated 28.08.2002 between parties, the defendant was first required to execute the Sale Deed in respect of land ad-measuring 12573.37 sq.mtrs and thereafter for the land admeasuring 2145.63 sq. mtrs., for total sale consideration of Rs.36,70,749/-. It is asserted by the plaintiffs that they had paid Rs.4,00,000/- as earnest money and also paid remaining consideration by three post dated cheques (i) dated 16.02.2002 for Rs.5,36,407/-, (ii) dated 18.02.2002 for Rs.10,00,000/-; and (iii) dated 28.02.2002 for Rs.17,34,342/-.

2.4 Since, the oral agreement did not fruictify, and there was dispute between the parties, the same led to filing of the suit for specific performance. Upon dismissal of the same, the present appeal is filed by the plaintiffs.

SUBMISSION ON BEHALF OF THE PLAINTIFFS:

3. Learned advocate Mr.N.V.Gandhi, appearing for the plaintiffs has submitted that the Trial Court has fallen in error in rejecting the suit by observing that the plaintiffs did not show readiness and willingness to perform their part of agreement to sale. It is submitted that the plaintiffs were ready and willing to perform their part of contract hence, the bar of Section 16(C) of the Specific Relief Act, 1963 (the Act of 1963) will not be attracted.

3.1 While placing reliance on the judgment of the Trial Court, learned advocate Mr.Gandhi has contended that in fact, the plaintiffs were put in possession by the defendant after obtaining aforementioned amount. While referring to the provisions of Section 53 of the Transfer of Property, 1882 (“T.P.Act” in short) learned advocate Mr.Gandhi, has submitted that the Trial Court has failed to appreciate the terms of the oral agreement between the plaintiffs and the defendant with respect to the suit land. It is submitted that the oral contract between the parties has been proved by evidence, hence the suit could not have been dismissed. It is submitted that the plaintiffs performed their part of contract by issuing cheques in favour of the defendant for total consideration of the suit land and, when subsequently it was noticed that the part of the suit land was mortgaged by the defendant, they had no other alternative, but to stop the payment of the cheques issued on 27.09.2001. It is thus submitted that the Trial Court has failed to appreciate the said fact and contrary to the evidence, it held that the plaintiffs were not ready and willing to perform their part. It is submitted that on the contrary the defenda