In specific performance actions, plaintiffs must demonstrate readiness and willingness to fulfill contractual obligations; failing this, the claim may be dismissed.

ORDER :

SANGEETA K. VISHEN, J.

Order in First Appeal:

1. Mr Jigar P. Raval, learned advocate appearing for the appellant – original plaintiff, submitted that an agreement – Exhibit 91 was executed between the plaintiff on one hand and the defendants on the other which, was with respect to Block no.409/1. It is submitted that certain amount was paid in cash and through cheques. It is submitted that during this period, an amount of Rs.21 lacs was paid to the defendants in furtherance of the agreement; however, since nothing was heard that the suit for specific performance was filed by the appellant – original plaintiff in the year 2008 seeking specific performance which, now has been dismissed, inter alia, on the ground that Agreement to Sell is not signed by all the co-owners. It is also submitted that in the year 2014, there was a status quo granted and the matter traveled up to the High Court and in the Appeal from Order, this Court, directed maintenance of the status quo till the final disposal of the suit and hence, the same, has continued all throughout. Even after dismissal of the suit, the same has been extended up to tomorrow i.e. up to 17.01.2025.

2. It is further submitted that in the response filed by the defendants, the stand taken, is that the plaintiff has issued the cheques by applying the pressure from the agents. It is also stand taken that there was a clear understanding between the parties that within a period of three months, the whole of the consideration amount, to be paid and in case, the plaintiff fails to make the payment, then the amount of Rs.21 lacs which has been received, shall be forfeited. It is also stand taken by the defendants that by keeping the vengeance, that the plaintiff has put up the construction including a Temple of Hanumanji together with the fencing.

3. It is next submitted that one of the defendants, who has entered into the witness box, has admitted the aspect of the agreement entered into by his elder brother i.e. defendant no.1. There is an admission of receipt of the amount through cash and cheques in the savings account and which has also been withdrawn. Therefore, agreement was executed; receipt of the amount in the savings bank account and consequent withdrawal, everything is undisputed. It is therefore submitted that when there is a specific admission, the learned Judge, ought not to have dismissed the suit only on the ground that the plaintiff has failed to prove his case.

4. It is next submitted that the issues which have been formulated, have not been properly decided. Issue no.1 which is, as to whether the plaintiff proves that there existed an Agreement to Sell with respect to the suit property between the plaintiff and the defendant, has been answered in negative which, would go against the stand taken by the defendants in their written statement – Exhibit 22. The issue as regards possession, has also been answered in negative which also, would be contrary to the stand taken on the record inasmuch as, in the written statement, in paragraph 21, there is a clear statement that the plaintiff has constructed the temple over the land in question. Besides, in the evidence of the witness, he has agreed that the possession has been handed over by the elder brother to the plaintiff; however, what essentially weighed with the learned Judge, is that the plaintiff has not produced any documentary evidence to show the consent of all the co-owners for the purchase of the disputed property so also the payment of the remainder amount with regard to the disputed property. It is submitted that when there was a clear admission and the burden was disc