In a suit for specific performance, the unexplained acceptance of a partial refund of the advance consideration by the plaintiff signifies a lack of the requisite continuous readiness and willingness, rendering the agreement unenforceable under the law of specific relief.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. A. Dhar, the learned counsel appearing on behalf of the appellants and Mr. C. Goswami, the learned counsel appearing on behalf of the respondent.

2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 19.05.2012 passed by the learned Civil Judge and Assistant District Judge, Jorhat (hereinafter referred to as ‘the learned First Appellate Court’) in Title Appeal No.7/2011 whereby the judgment and decree dated 14.02.2011 passed by the learned Munsiff No.2, Jorhat (hereinafter referred to as ‘the learned Trial Court’) in Title Suit No.11/2008 was reversed.

3. It is seen from the records that vide an order dated 04.12.2012, the Coordinate Bench of this Court had admitted the instant appeal by formulating three substantial questions of law. The said three substantial questions of law are reproduced herein under:

“1. Whether the decree passed in a suit for specific performance of an agreement could be enforced which involves injury to the property of a third party?

2. Whether demanding refund and acceptance of advance money of an agreement vitiate “willingness” of the party to perform the obligation of the promise?

3. Whether an agreement is dissolved by the doctrine of frustration when the entire performance of the agreement becomes substantially impossible?”

4. For the purpose of deciding as to whether the three substantial questions of law which are formulated by the Coordinate Bench of this Court vide the order dated 04.12.2012 are involved in the present appeal, this Court takes note of the facts which led to the filing of the instant appeal.

5. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

6. An agreement dated 14.12.2006 admittedly was entered into between the plaintiff and the defendant for sale of a plot of land which was specifically described in Schedule-A to the plaint at a consideration of Rs.50,000/-. The case of the plaintiff is that the plaintiff had paid an amount of Rs.20,000/- on the date of execution of the deed of agreement for sale and the remaining amount of Rs.30,000/- was to be paid at the time of execution of the registered deed of sale. It is the specific case of the plaintiff that the plaintiff had requested the defendant to execute the deed of sale and receive the remaining amount of Rs.30,000/- but the defendant did not take any steps in that regard. As such, a legal notice was also issued 07.09.2007 asking the defendant to execute the deed of sale within a period of 30 days from the date of receipt of the said notice. However, the defendant did not take any steps. It is under such circumstances, the plaintiff instituted the suit being Title Suit No. 79/2007 before the Court of the Munsiff No.1 at Jorhat.

7. In the said suit, the plaintiff sought for a decree for specific performance of the agreement dated 14.12.2006 thereby directing the defendant to execute and register the deed of sale in favour of the plaintiff in re