CAUSE TITLE:
Asha Joseph v. Babu C. George & Ors
DATE OF ORDER:
8 April 2022
JUDGE(S):
The Honourable Mr. Justice P.B. Suresh Kumar
The Honourable Mrs. Justice C.S. Sudha
PARTIES:
Appellant/Plaintiff: Asha Joseph
Respondents/Defendants : Babu C. George & Ors
SUBJECT
The appeal was against the judgment and decree of the Subordinate Court. The appeal was filed by the sole plaintiff against the three defendants for a suit for specific performance under the Code of Civil Procedure.
IMPORTANT PROVISIONS
Section 16(c) of The Specific Relief Act, 1963
Whoever fails to aver and prove that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
FACTS
- The plaintiff had entered into a sale agreement under which the defendants agreed to sell their plaint schedule property. On the date of the agreement, some amount was paid in advance. The agreement was to execute the sale deed within three months from the date of the agreement. However, it was not executed.
ISSUE RAISED
- Was the fact established that the document was a sale agreement as alleged in the plaint?
- Did the plaintiff satisfy the requirements under Section 16(c) of the Act?
ARGUMENTS BY THE PETITIONER
- The plaintiff was always ready and willing to perform her part of the contract under Section 16(c). However, the defendants were never ready to perform their part of the contract. Hence a suit was filed by the plaintiff.
ARGUMENTS BY THE DEFENDANTS
- The defendant was forced to sign the agreement to obtain the loan amount. The plaintiff got the agreement executed by playing fraud, exercising undue influence and coercion. Thus, agreement is void ab initio and is not binding on the defendants. Though styled as a sale agreement, parties never intended to act upon the same.
- The plaintiff is not entitled to relief of specific performance as the pleadings were insufficient and not in compliance with Section 16(c) of the Act as it did not give the details of the funds in the possession of the plaintiff or how she intended to raise the necessary funds to pay the balance sale consideration. These facts were revealed later.
COURT'S OBSERVATION
- It is true that the plaintiff has not given the details of the funds in her possession or how she intended to raise them in the plaint. This evidence may not be pleaded as per Order VI Rule 1. In the reply notice sent by the defendants, there is no denial of the claim made by the plaintiff that she was always ready and willing to perform her part of the contract. Order VIII Rule 3 says that denial has to be specific. The written statement must specifically deal with each of the allegations of fact made in the plaint. The failure to make a specific denial amounts to admission as held in Jaspal Kaur Cheema v. M/s.Industrial Trade Links (2017) and other cases.
- The plaintiff is indeed the master of the suit and hence as per Section 101 of the Evidence Act, the burden is on the plaintiff to establish her case. However, in this case, there is no denial of the claim by the plaintiff that she was always ready and willing to perform her part of the contract. In the absence of a specific denial as contemplated under Order VIII Rule 5, it would amount to an admission. As long as there is no denial, there is no duty on the part of the plaintiff to prove her case.
- The Court found that no sooner did the money was credited into the bank account of the plaintiff than it was immediately withdrawn. Further, the plaintiff being a housewife, did not have any source of income. Hence the court concluded that evidence is lacking to establish that the plaintiff had the resources to pay the balance sale consideration.
- The allegation that the transaction is not a sale agreement, but is a loan transaction between the parties and the contention of fraud, undue influence etc. seems to be quite improbable and unbelievable. There are no adequate pleadings in the written statement relating to the said contention. Further, the case of loan transaction appears more improbable for one another reason. The value of the properties kept as security was much more than the amount of the loan received. The agreement was not executed because the price of the land must have increased. In the light of S.20, the Court held that the mere escalation of land prices after the date of the filing of the suit cannot be the sole ground to deny specific performance.
CONCLUSION
- The agreement is dated 07/08/2006. Hence directing the defendants to execute a sale deed for the entire extent of the property for a sale consideration fixed 16 years back would be unjust, especially when the plaintiff had given less than 20% of the sale consideration as an advance at the time of agreeing. However, a total rejection of the relief of specific performance would also be unjust to the plaintiff. Therefore, keeping in mind, the Court found that it would be just and proper to grant a decree of specific performance relating to that much extent of property that could have been purchased for the amount paid in advance at the time of agreement. To that extent alone, she can be granted a decree for specific performance.
- The appeal was allowed. The suit was partly decreed and the plaintiff was granted a decree of specific performance relating to the property purchased with the advance amount.
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