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2025 Supreme(Online)(ORI) 138
ORISSA HIGH COURT
Sashikanta Mishra, J
AJAY KU.NAYAK – Appellant
Versus
PREM SWARUP AGARWAL – Respondent
RSA 133 / 2014
The plaintiff must prove readiness and willingness to perform a contract for specific performance; mere payment of an advance does not suffice if the balance is not paid timely.
Headnote:(A) Specific Relief Act, 1963 - Section 20(2) - Indian Contract Act, 1872 - Section 40 and Section 53(A) - Suit for specific performance of contract - Plaintiff failed to prove readiness and willingness to perform his part of the contract - Courts below found inconsistencies in evidence regarding payment of balance consideration - Appeal dismissed. (Paras 11, 16, 20, 21)
(B) Specific Performance - Burden of proof - Plaintiff must prove readiness and willingness to perform contract terms - Payment of advance does not constitute part performance if balance is not paid in stipulated time. (Paras 16, 20)
Facts of the case:
The plaintiff filed a suit for specific performance of a contract for the sale of land, having paid an advance of Rs.65,000/- against a total consideration of Rs.1,90,000/-. The defendant denied the claim, stating the plaintiff failed to pay the balance amount in time.
Findings of Court:
The Trial Court found that the plaintiff did not prove he was ready and willing to perform the contract, leading to a partial decree for the return of the advance amount. The First Appellate Court upheld this finding.
Issues: The main issue was whether the defendants made a case for refusal of specific performance under Section 20(2) of the Specific Relief Act.
Ratio Decidendi: The court ruled that the plaintiff must demonstrate readiness and willingness to perform the contract, which he failed to do, and that the advance payment alone does not equate to part performance without payment of the balance.
Result: Appeal dismissed.
JUDGMENT
12.02.2025 SASHIKANTA MISHRA, J.
Plaintiff is the appellant against a confirming judgment.
2. The judgment passed by learned Additional District Judge, Rourkela in RFA No. 18 of 2010 on 10.12.2013 followed by decree is impugned whereby the judgment passed by learned Civil Judge (Senior Division), Rourkela in CS No.153 of 2007 on 07.05.2010 followed by decree was confirmed.
3. For convenience, the parties are referred to as per their respective status in the Trial Court.
4. The Plaintiff-Appellant filed the suit for specific performance of contract and in the alternative for recovery of Rs.65,000/- from defendant No.1 and incidental reliefs.
5. The case of the plaintiff, briefly stated is that defendant no.1 is the recorded tenant of the suit land and he had prior acquaintance with the plaintiff. The defendant no.1 negotiated with him for sale of the suit land and it was agreed between them that the plaintiff shall purchase the suit land for a consideration of Rs.1,90,000/. The plaintiff paid Rs.65,000/- towards advance by way of demand draft drawn in the name of defendant no.2, wife of defendant no.1. As per the oral agreement plaintiff went to the house of the defendant on 16.06.2007 along with one Baban Prasad to pay the balance consideration amount of Rs.1,25,000/- but defendant no.1 did not receive the same on the plea of his personal inconvenience. The plaintiff returned and thereafter made several correspondences with defendant no.1 over telephone and requested for registration of the sale deed in his favour. But defendant no.1 did not agree rather, he negotiated with other prospective buyers to sell the suit land. Hence, the suit.
6. The defendant contested the suit by filing written statement. The basic facts such as, agreement for sale of the land, consideration of Rs.1,90,000/- and receipt of Rs.65,000/-towards advance were admitted. However, the plea of the plaintiff of offering to pay the balance consideration amount was specifically denied. It was stated that as per the agreement, the plaintiff was required to pay the balance amount before the Sub- Registrar within a week after payment of the advance but he failed to do so. The defendants never received any letter containing the original demand draft and advocates notice. He rather received telephonic call from the I.I.C., of Sector-3 Police Station, as the plaintiff had made allegations against him in respect of the suit land.
7. His further specific case is that as the plaintiff did not pay the balance consideration money before 18.06.2007, he could not execute the sale deed in his favour and that he is ready and willing to return the advance money received by him.
8. Basing on the rival pleadings, the Trial Court framed the following issues for determination:
(i) Is the suit maintainable ?
(ii) Has the plaintiff any cause of action to file the suit?
(iii) Is the suit hit under section 40 of the Indian Contract Act and under section 34 of the Transfer of Property Act?
(iv) Is there any agreement for sale between the plaintiff and the defendant on 11.06.2007 ?
(v) Has the plaintiff performed his part of contract dated 11.6.2007 and paid the full consideration money in time?
(vi) Is the defendant No.1 liable to execute a registered sale deed in favour of the plaintiff as per agreement dated 11.06.2007 or to return the advance money of Rs.65,000/- to the plaintiff?
(vii) To what relief or reliefs the plaintiff is entitled ?
9. After analyzing the oral and documentary evidence adduced by the parties and the contentions put forth by them, the Trial Court held that it was established that a sum of Rs.65,000/- was received by defendant no.1 towards part payment of the consideration money of Rs.1,90,000/-. The Trial Court further found that the evidence of P.W.2 i.e., (Baban Prasad) is not consistent with the evidence of P.W. 1 (plaintiff) regarding the place where the balance consideration of Rs.1,25,000/-was offered to defendant no.2. As such, it was held that the plaintiff f
