Specific performance - decree - Non-payment of balance sale consideration by plaintiff within fixed time period does not amount to abandonment of contract and consequent rescinding of same.

Citation 

AIROnline 2022 Mad 613

Madras High Court

N. ANAND VENKATESH , J.

Second Appeal - 683 of 2013 D/- 4 - 3 - 2022

Krishnamoorthy v. K. Shanmugasundaram and Anr.

(A)Specific Relief Act (47 of 1963), S.20, S.28(1) - Suit for specific performance - Rescission of

contract - Agreement to sell executed between parties - Defendant not executing sale deed in

favour of plaintiff on ground that properties must be partitioned - Decree passed in favour of

plaintiff directing plaintiff to deposit remaining sale price of Rs.1,35,000/- in two weeks - Non-

payment of balance sale consideration by plaintiff within fixed time period does not amount

to abandonment of contract and consequent rescinding of same - Real test must be to see if

conduct of plaintiff would amount to positive refusal to complete his part of contract - There

must be element of wilful negligence on part of plaintiff before Court proceeds to invoke S.28

and rescind contract - Since plaintiff put to prejudice even without affording him opportunity,

Appellate Court ought not to have invoked S.28 (1) - Invocation of S.28(1), unsustainable -

Decree of specific performance granted in favour of plaintiff.

 (Paras 17 , 24 , 16) 

(B)Specific Relief Act (47 of 1963), S.20 - Decree for suit for specific performance - Enhancement

of sale price - Plaintiff and defendant were brothers - Defendant taken steps to partition

properties and reliminary decree already passed - Agreement to sale was of year 2004 and

nearly 18 years have gone by before proceedings ultimately culminated in Second Appeal - To

strike balance between parties and ensure that defendants receive reasonable sale price for

property while executing sale deed in favour of plaintiff at said length of time, sale price fixed

at Rs.12,00,000/- - Plaintiff already paid a sum of Rs.1,25,000/- - Sale price having enhanced,

plaintiff directed to pay balance sale consideration of Rs.10,75,000/- within stipulated period.

 (Paras 26 , 27) 

Cases Referred Chronological Paras

AIR 1980 SC 512

AIROnline 1997 SC 145

AIROnline 2004 SC 845

AIROnline 2009 SC 558

AIR 2010 Mad 129

AIROnline 2021 SC 935

AIROnline 2019 SC 5

AIR 2015 SC 9 : 2014 AIR SCW 5795

AIROnline 2019 SC 5

AIROnline 2015 KER 14

2021 (4) CTC 819

N. Manokaran for Petitioner; V. S. Kesavan, B. Singaravelu for Respondent.

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