Case Note & Summary
The appellant, Shaikh Hidayat, filed a suit for specific performance of an agreement for sale of property admeasuring about 11920 sq. mtrs. at Borda, Margao, Goa. The suit was dismissed by the 3rd Additional Civil Judge Senior Division at Margao in Special Civil Suit No.181/96/III on 30th April 2008. The plaintiff appealed. The High Court of Bombay at Goa heard the appeal. The court examined the evidence and found that the plaintiff failed to prove the execution of the agreement. The court also noted that even if the agreement was proved, the plaintiff did not demonstrate readiness and willingness to perform his part of the contract. The court held that time was not of the essence of the contract. The appeal was dismissed, affirming the trial court's decree.
Headnote
A) Specific Performance - Burden of Proof - Agreement Not Proved - Plaintiff failed to prove execution of agreement for sale - Court held that the plaintiff did not discharge the burden of proving the agreement and his readiness and willingness - Suit dismissed (Paras 1-10).
B) Specific Performance - Readiness and Willingness - Time Not Essence - Even if agreement was proved, time was not of essence and plaintiff failed to show readiness - Held that plaintiff's conduct showed lack of readiness (Paras 11-15).
Issue of Consideration
Whether the plaintiff proved the execution of the agreement for sale and his readiness and willingness to perform his part of the contract, entitling him to a decree for specific performance.
Final Decision
The appeal is dismissed. The judgment and decree of the trial court are confirmed.
Law Points
- Specific performance
- burden of proof
- readiness and willingness
- time not essence of contract
- agreement not proved
Case Details
2014 LawText (BOM) (06) 77
Mr. S.S. Kantak, Senior Advocate with Ms Amira A. Razaq with Mr. M.S. Joshi with Mr. Bhupesh Bandekar, Advocates for appellant. Mr. Sudin Usgaokar, Advocate with Mr. Kishan Padgaokar, Advocate for respondents.
Smt. Maria Elvina Das Neves Fereira Trindade & Ors.
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Nature of Litigation
Civil suit for specific performance of an agreement for sale of immovable property.
Remedy Sought
Decree for specific performance of the agreement in respect of the suit property, and alternatively, decree against the remaining defendants for their shares.
Filing Reason
Plaintiff claimed that defendants failed to execute the sale deed despite agreement.
Previous Decisions
The trial court dismissed the suit with costs on 30th April 2008.
Issues
Whether the plaintiff proved the execution of the agreement for sale?
Whether the plaintiff proved readiness and willingness to perform his part of the contract?
Submissions/Arguments
Appellant argued that the agreement was proved and he was ready and willing.
Respondents contended that the agreement was not proved and plaintiff was not ready.
Ratio Decidendi
The plaintiff failed to prove the execution of the agreement for sale and his readiness and willingness to perform the contract, which are essential for a decree of specific performance.
Judgment Excerpts
This appeal arises out of the judgment and decree passed by the learned 3rd Additional Civil Judge Senior Division at Margao in Special Civil Suit No.181/96/III on 30th April, 2008 by which the civil suit filed by the original plaintiff praying for specific performance, is dismissed with costs.
The plaintiff filed the suit praying for decree for specific performance of the agreement in respect of the property admeasuring about 11920 Sq. Mtrs.
Procedural History
The plaintiff filed Special Civil Suit No.181/96/III in the court of 3rd Additional Civil Judge Senior Division at Margao. The suit was dismissed on 30th April 2008. The plaintiff appealed to the High Court of Bombay at Goa by way of First Appeal No.162/2008.
Acts & Sections
- Specific Relief Act, 1963: Section 20
