subsequent sale need not cancelled - Proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff
Citation
Rathnavathi & Another Versus Kavita Ganashamdas
Head Note
Civil Procedure Code, 1908, Order 2 Rule 2 – Specific Relief Act, 1963, Section 38 – Permanent Injunction – Bar on Suit –Plaintiff filed two suits, one for specific performance of agreement and other for grant of permanent injunction in relation to suit house – Trial court vide common judgment and decree dismissed both suits – High Court, in appeal, by impugned judgment and decree reversed judgment and decree of trial court and decreed both suits in appeal, against defendants – whether bar contained in Order II Rule 2 of CPC is attracted so as to non-suit plaintiff from filing suit for specific performance of agreement.
Court held – bar contained in Order II Rule 2 of CPC is not attracted because of distinction in cause of action for filing two suits – So far as suit for permanent injunction is concerned, it was based on threat given to plaintiff by defendants to dispossess her from suit house – So far as cause of action to file suit for specific performance of agreement is concerned, same was based on non performance of agreement by defendant no. 2 in plaintiff's favour despite giving legal notice to defendant no. 2 to perform her part – both suits were, therefore, founded on different causes of action and hence could be filed simultaneously – Indeed even ingredients to file suit for permanent injunction are different than that of suit for specific performance of agreement – In case of former, plaintiff is required to make out existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by plaintiff on facts with reference to suit property as provided in Section 38 of the Act read with Order 39 Rule 1 & 2 of CPC – Hence, second suit filed by plaintiff for specific performance of agreement was not barred by virtue of bar contained in Order II Rule 2 of CPC – Appeal disposed of.
Limitation Act, 1963, Article 54 – Bar of Limitation – Whether suit for specific performance was barred by limitation prescribed under Article 54 of the Act?
Court held – Reading of Clauses 2 and 3 of the agreement together, it is clear that time to perform agreement was not made essence of contract by parties because even after making balance payment after expiry of lease period, which was to expire in 1995, defendant no. 2 as owner had to make efforts to transfer land in name of plaintiff – That apart, there is no specific clause in agreement, which provided for completion of its execution on or before any specific date – Since it was case of plaintiff that she paid entire sale consideration to defendant no. 2 and was accordingly placed in possession of suit house, threat of her dispossession in 2000 from suit house coupled with fact that she having come to know that defendant no. 2 was trying to alienate suit house, gave her cause of action to serve legal notice to defendant no. 2 calling upon defendant no. 2 to perform her part and convey title in suit house by executing sale deed in her favour – Since defendant no. 2 failed to convey the title, plaintiff filed suit for specific performance of agreement – case does not fall in first category of Article 54 of the Act because, no date was fixed in agreement for its performance – case would thus be governed by the second category viz., when plaintiff has notice that performance is refused – Thus, suit filed by plaintiff for specific performance of agreement was within limitation prescribed under Article 54 of the Act – Appeal disposed of.
Civil Procedure Code, 1908, Section 96 – Validity of Order – Whether High Court was justified in granting specific performance of agreement in plaintiff's favour by reversing judgment/decree of trial court which had dismissed suit.
High Court being last Court of appeal on facts /law while hearing first appeal under Section 96 of CPC was well within its powers to appreciate evidence and came to its own conclusion independent to that of trial court's decision – One cannot dispute legal proposition that grant/refusal of specific performance is discretionary relief, and, therefore, once it is granted by appellate court on appreciation of evidence, keeping in view legal principle applicable for grant then further appellate court should be slow to interfere in such finding, unless finding is found to be either against settled principle of law, or is arbitrary or perverse – High Court, properly appreciated evidence for recording findings in plaintiff's favour that she was ready and willing to perform her part of agreement and in fact did perform her part, firstly, by paying money as advance and then paid balance amount towards sale consideration to defendant no.2 – that plaintiff was placed in possession of suit house by defendant no. 2 pursuant to agreement; and, lastly defendant no. 2 did not perform her part of agreement – High Court while passing decree directed both the defendants i.e. owner of the suit house (vendor) defendant no.2 and subsequent purchaser (defendant no. 1) to execute sale deed of suit house jointly in favour of plaintiff' to avoid any legal complications, provided plaintiff pays addition money to owner of suit house – effect of execution of sale deed in plaintiff's favour by defendants in terms of decree would obviously result in cancellation of contract of sale of suit house between owner and subsequent purchaser – contract between defendant no.2 and defendant no.1, stands frustrated due to impugned judgment/decree because now defendant no.2 would not be in a position to sell suit house to defendant no.1 though she has received amount from defendant no.1 for such sale of suit house in her favour – Appeals are accordingly disposed of.
(Paras: 29, 30, 31, 32, 37, 38, 46, 47, 50, 67, 68)
Relied on:
Lala Durga Prasad and Anr. Vs. Lala Deep Chand and Ors., AIR 1954 SC 75
Cases Referred:
Gurbux Singh v. Bhooralal, AIR 1964 SC 1810
Virgo Industries (Eng.) P. Ltd. Vs Venturetech Solutions P. Ltd., (2013) 1 SCC 625
Gomathinayagam Pillai and Ors. Vs. Pallaniswami Nadar, AIR 1967 SC 868
Tilley v. Thomas I.L.R. (1867)
Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Anr., (1977) 2 SCC 539
Smt. Chand Rani vs. Smt. Kamal Rani, (1993) 1 SCC 519
K.S. Vidyanadam and Ors. v. Vairavan, (1997) 3 SCC 1
K. Narendra vs. Riviera Apartments (P) Ltd. (1999) 5 SCC 77
Comparative Citations:
2014 AIR(SCW) 6288, 2014 (6) CTC 333, 2015 (1) LW 24, 2014 (10) SCJ 189, 2015 (3) WBLR 443, 2015 (1) AIR(Bom) R 60, 2015 (1) AIR(Kar) R 421, 2015 (1) ALD 115, 2015 (3) AWC 2299, 2015 (1) CalHN 182, 2014 (12) JT 219, 2015 (1) MLJ 24, 2015 (1) Pat LJR 219, 2014 (4) RCR(Civil) 904, 2014 (12) Scale 386, 2015 (5) SCC 223, 2015 (2) WLN 147
Court held – bar contained in Order II Rule 2 of CPC is not attracted because of distinction in cause of action for filing two suits – So far as suit for permanent injunction is concerned, it was based on threat given to plaintiff by defendants to dispossess her from suit house – So far as cause of action to file suit for specific performance of agreement is concerned, same was based on non performance of agreement by defendant no. 2 in plaintiff's favour despite giving legal notice to defendant no. 2 to perform her part – both suits were, therefore, founded on different causes of action and hence could be filed simultaneously – Indeed even ingredients to file suit for permanent injunction are different than that of suit for specific performance of agreement – In case of former, plaintiff is required to make out existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by plaintiff on facts with reference to suit property as provided in Section 38 of the Act read with Order 39 Rule 1 & 2 of CPC – Hence, second suit filed by plaintiff for specific performance of agreement was not barred by virtue of bar contained in Order II Rule 2 of CPC – Appeal disposed of.
Limitation Act, 1963, Article 54 – Bar of Limitation – Whether suit for specific performance was barred by limitation prescribed under Article 54 of the Act?
Court held – Reading of Clauses 2 and 3 of the agreement together, it is clear that time to perform agreement was not made essence of contract by parties because even after making balance payment after expiry of lease period, which was to expire in 1995, defendant no. 2 as owner had to make efforts to transfer land in name of plaintiff – That apart, there is no specific clause in agreement, which provided for completion of its execution on or before any specific date – Since it was case of plaintiff that she paid entire sale consideration to defendant no. 2 and was accordingly placed in possession of suit house, threat of her dispossession in 2000 from suit house coupled with fact that she having come to know that defendant no. 2 was trying to alienate suit house, gave her cause of action to serve legal notice to defendant no. 2 calling upon defendant no. 2 to perform her part and convey title in suit house by executing sale deed in her favour – Since defendant no. 2 failed to convey the title, plaintiff filed suit for specific performance of agreement – case does not fall in first category of Article 54 of the Act because, no date was fixed in agreement for its performance – case would thus be governed by the second category viz., when plaintiff has notice that performance is refused – Thus, suit filed by plaintiff for specific performance of agreement was within limitation prescribed under Article 54 of the Act – Appeal disposed of.
Civil Procedure Code, 1908, Section 96 – Validity of Order – Whether High Court was justified in granting specific performance of agreement in plaintiff's favour by reversing judgment/decree of trial court which had dismissed suit.
High Court being last Court of appeal on facts /law while hearing first appeal under Section 96 of CPC was well within its powers to appreciate evidence and came to its own conclusion independent to that of trial court's decision – One cannot dispute legal proposition that grant/refusal of specific performance is discretionary relief, and, therefore, once it is granted by appellate court on appreciation of evidence, keeping in view legal principle applicable for grant then further appellate court should be slow to interfere in such finding, unless finding is found to be either against settled principle of law, or is arbitrary or perverse – High Court, properly appreciated evidence for recording findings in plaintiff's favour that she was ready and willing to perform her part of agreement and in fact did perform her part, firstly, by paying money as advance and then paid balance amount towards sale consideration to defendant no.2 – that plaintiff was placed in possession of suit house by defendant no. 2 pursuant to agreement; and, lastly defendant no. 2 did not perform her part of agreement – High Court while passing decree directed both the defendants i.e. owner of the suit house (vendor) defendant no.2 and subsequent purchaser (defendant no. 1) to execute sale deed of suit house jointly in favour of plaintiff' to avoid any legal complications, provided plaintiff pays addition money to owner of suit house – effect of execution of sale deed in plaintiff's favour by defendants in terms of decree would obviously result in cancellation of contract of sale of suit house between owner and subsequent purchaser – contract between defendant no.2 and defendant no.1, stands frustrated due to impugned judgment/decree because now defendant no.2 would not be in a position to sell suit house to defendant no.1 though she has received amount from defendant no.1 for such sale of suit house in her favour – Appeals are accordingly disposed of.
(Paras: 29, 30, 31, 32, 37, 38, 46, 47, 50, 67, 68)
Relied on:
Lala Durga Prasad and Anr. Vs. Lala Deep Chand and Ors., AIR 1954 SC 75
Cases Referred:
Gurbux Singh v. Bhooralal, AIR 1964 SC 1810
Virgo Industries (Eng.) P. Ltd. Vs Venturetech Solutions P. Ltd., (2013) 1 SCC 625
Gomathinayagam Pillai and Ors. Vs. Pallaniswami Nadar, AIR 1967 SC 868
Tilley v. Thomas I.L.R. (1867)
Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Anr., (1977) 2 SCC 539
Smt. Chand Rani vs. Smt. Kamal Rani, (1993) 1 SCC 519
K.S. Vidyanadam and Ors. v. Vairavan, (1997) 3 SCC 1
K. Narendra vs. Riviera Apartments (P) Ltd. (1999) 5 SCC 77
Comparative Citations:
2014 AIR(SCW) 6288, 2014 (6) CTC 333, 2015 (1) LW 24, 2014 (10) SCJ 189, 2015 (3) WBLR 443, 2015 (1) AIR(Bom) R 60, 2015 (1) AIR(Kar) R 421, 2015 (1) ALD 115, 2015 (3) AWC 2299, 2015 (1) CalHN 182, 2014 (12) JT 219, 2015 (1) MLJ 24, 2015 (1) Pat LJR 219, 2014 (4) RCR(Civil) 904, 2014 (12) Scale 386, 2015 (5) SCC 223, 2015 (2) WLN 147
2015(5) Supreme Court Cases 223-Rathnavathi and Another vs. Kavita Ganashamdas,
wherein the Hon'ble Supreme Court has dealt with a case of identical facts. The Hon'ble Supreme Court has relied upon the decision reported in AIR 1954 SC 75-Durga Prasad v. Deep Chand, wherein at paragraph No.42, it is observed as follows:
42.In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff.
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