suit for specific performance is maintainable and is not barred even though contract is not registered - It cannot be said that time is essence of contract
Citation
CDJ 2018 MHC 5909
Thirugnanasambantham vs kannan and others
Head note
Code of Civil Procedure, 1908 – Section 96, Order 41 Rule 1 – Specific Relief Act – 1963 – Section 15 – Locus Standi – When defendants 2 to 8 are not parties to sale agreement, whether they have any locus standi to contest suit for specific performance, especially when it is admitted that first defendant alone is owner of suit property.
Curt held – Section 15 of Act clearly stipulates that specific performance of contract could be obtained by any party thereto – Hence, it is very clear that so far as specific performance is concerned, it is only between parties thereto – Defendants 2 to 8 admittedly are not parties to suit sale agreement – It is also admitted fact that first defendant is very much alive and as such, defendants 2 to 8 are not legally entitled to claim any right over suit property, especially when 1st defendant alone is owner of property – Hence, Court below is not correct even in allowing impleading application filed by defendants 2 – 8 – As consequence, defendants 2 to 8, who are not parties to sale agreement, have no locus standi to contest case, as 1st defendant is very much alive – Appeal allowed.
(Para: 28)
Code of Civil Procedure, 1908 – Section 96, Order 41 Rule 1 – Specific Relief Act – 1963 – Section 15 – Entitlement to Relief – Whether non-filing of written statement by first defendant will attract provisions of Order VIII Rule 5 of CPC – Whether defendants have established their defence that suit agreement is materially altered – Whether conduct of defendants would make plaintiff to get relief of specific performance.
Court held – It could be safely concluded that since first defendant has not denied pleadings in plaint by filing written statement, it would attract provisions under Order VIII Rule 5 of CPC and the allegations in plaint shall be taken into as admitted – Theory of trespass alleged by defendants also falls to ground – Possession of suit property has also been established by plaintiff – It is also clear that possession was also handed over to plaintiff on date of agreement itself – Defendants have miserably failed to establish their defence that sale agreement was materially altered – Conduct of defendants in suppressing materials facts would make Court to exercise its discretionary power to grant relief of specific performance in favour of plaintiff – Appeal allowed.
(Paras: 30, 33, 35)
Code of Civil Procedure, 1908 – Section 96, Order 41 Rule 1 – Specific Relief Act – 1963 – Section 15 – Transfer of Property Act – Section 53A – Entitlement to Specific performance – Whether suit agreement is legally inadmissible in evidence since it was not registered, in view of amendment to Registration Act – Whether time fixed under sale agreement is essence of contract – Whether plaintiff was always ready and willing to perform his part of the contract.
Court held – proviso to Section 49 provides that suit for specific performance is maintainable and is not barred even though contract is not registered – Said amendment will apply only to claim benefit under Section 53-A of 1882 Act and non-registration of the document will not affect suit for specific performance – It is first defendant who did not come forward to execute sale and he was not available to receive balance sale consideration – It cannot be said that time is essence of contract – Trial Court ought to have granted equity relief of specific performance, whereas by dismissing prayer for specific performance, Trial Court has granted only alternative relief of refund of sale consideration paid by plaintiff, which is not correct – Hence, plaintiff is entitled to relief of specific performance as prayed for in suit – Appeal allowed.
(Paras: 39, 41, 45)
Cases Referred:
2008(6) SCALE 355 [Bharat Karsondas Thakkar Vs. Kiran Construction Co. and others]
2015(1) SCC 705 [Zarina Siddiqui Vs. A.Ramalingam @ R.Amarnathan],
2017(4) CTC 734 [S.Deivanai Vs. V.M.Kothandaraman].
2011(4) CTC 640 [Saradamani Kandappan Vs. S.Rajalakshmi],
2008(6) SCALE 355 [Bharat Karsondas Thakkar Vs. Kiran Construction Co. and others],
1997-2-LW. 589 (R.Singaperumal Vs. Vellikkannu and another),
AIR 2009 SC 2463 (Seth Ramdaya Jat Vs. Laxmi Prasad),
Gautam Sarup Vs. Leela Jetly (2008) 7 SCC 85,
(1999) 8 SCC 396 (Balraj Taneja Vs. Sunil Madan) Hon'ble Supreme Court reported
(2015) 1 SCC 705 [Zarina Siddiqui Vs. A.Ramalingam],
(1977) 2 SCC 539 [Govind Prasadc Chaturvedi Vs. Hari Dutt Shastre],
Gomathinayagam Pillai Vs. Pallaniswami Nadar (1967) 1 SCR 227 : AIR 1967 SC 868].
(1993) 1 SCC 519 [Chand Rani Vs. Kamal Rani],
Comparative Citations:
2018 (6) CTC 198, 2018 (5) LW 33,
Curt held – Section 15 of Act clearly stipulates that specific performance of contract could be obtained by any party thereto – Hence, it is very clear that so far as specific performance is concerned, it is only between parties thereto – Defendants 2 to 8 admittedly are not parties to suit sale agreement – It is also admitted fact that first defendant is very much alive and as such, defendants 2 to 8 are not legally entitled to claim any right over suit property, especially when 1st defendant alone is owner of property – Hence, Court below is not correct even in allowing impleading application filed by defendants 2 – 8 – As consequence, defendants 2 to 8, who are not parties to sale agreement, have no locus standi to contest case, as 1st defendant is very much alive – Appeal allowed.
(Para: 28)
Code of Civil Procedure, 1908 – Section 96, Order 41 Rule 1 – Specific Relief Act – 1963 – Section 15 – Entitlement to Relief – Whether non-filing of written statement by first defendant will attract provisions of Order VIII Rule 5 of CPC – Whether defendants have established their defence that suit agreement is materially altered – Whether conduct of defendants would make plaintiff to get relief of specific performance.
Court held – It could be safely concluded that since first defendant has not denied pleadings in plaint by filing written statement, it would attract provisions under Order VIII Rule 5 of CPC and the allegations in plaint shall be taken into as admitted – Theory of trespass alleged by defendants also falls to ground – Possession of suit property has also been established by plaintiff – It is also clear that possession was also handed over to plaintiff on date of agreement itself – Defendants have miserably failed to establish their defence that sale agreement was materially altered – Conduct of defendants in suppressing materials facts would make Court to exercise its discretionary power to grant relief of specific performance in favour of plaintiff – Appeal allowed.
(Paras: 30, 33, 35)
Code of Civil Procedure, 1908 – Section 96, Order 41 Rule 1 – Specific Relief Act – 1963 – Section 15 – Transfer of Property Act – Section 53A – Entitlement to Specific performance – Whether suit agreement is legally inadmissible in evidence since it was not registered, in view of amendment to Registration Act – Whether time fixed under sale agreement is essence of contract – Whether plaintiff was always ready and willing to perform his part of the contract.
Court held – proviso to Section 49 provides that suit for specific performance is maintainable and is not barred even though contract is not registered – Said amendment will apply only to claim benefit under Section 53-A of 1882 Act and non-registration of the document will not affect suit for specific performance – It is first defendant who did not come forward to execute sale and he was not available to receive balance sale consideration – It cannot be said that time is essence of contract – Trial Court ought to have granted equity relief of specific performance, whereas by dismissing prayer for specific performance, Trial Court has granted only alternative relief of refund of sale consideration paid by plaintiff, which is not correct – Hence, plaintiff is entitled to relief of specific performance as prayed for in suit – Appeal allowed.
(Paras: 39, 41, 45)
Cases Referred:
2008(6) SCALE 355 [Bharat Karsondas Thakkar Vs. Kiran Construction Co. and others]
2015(1) SCC 705 [Zarina Siddiqui Vs. A.Ramalingam @ R.Amarnathan],
2017(4) CTC 734 [S.Deivanai Vs. V.M.Kothandaraman].
2011(4) CTC 640 [Saradamani Kandappan Vs. S.Rajalakshmi],
2008(6) SCALE 355 [Bharat Karsondas Thakkar Vs. Kiran Construction Co. and others],
1997-2-LW. 589 (R.Singaperumal Vs. Vellikkannu and another),
AIR 2009 SC 2463 (Seth Ramdaya Jat Vs. Laxmi Prasad),
Gautam Sarup Vs. Leela Jetly (2008) 7 SCC 85,
(1999) 8 SCC 396 (Balraj Taneja Vs. Sunil Madan) Hon'ble Supreme Court reported
(2015) 1 SCC 705 [Zarina Siddiqui Vs. A.Ramalingam],
(1977) 2 SCC 539 [Govind Prasadc Chaturvedi Vs. Hari Dutt Shastre],
Gomathinayagam Pillai Vs. Pallaniswami Nadar (1967) 1 SCR 227 : AIR 1967 SC 868].
(1993) 1 SCC 519 [Chand Rani Vs. Kamal Rani],
Comparative Citations:
2018 (6) CTC 198, 2018 (5) LW 33,
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