CASE LAW ON SPECIFIC PERFORMANCE

PARTITION IN A SUIT FOR SPECIFIC PERFORMANCE Suit for specific performance of undivided property - Minor's share - Conditions mentioned to obtain the necessary permission from Civil Court relating to minor's share Trial Court not only granted a decree for specific performance of contract but also a preliminary decree for partition - High Court held that it is an essential term for execution of contract and since such permission had not been granted, the entire contract failed Appeal against - S. 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, plaintiff may claim a decree for possession and/ or partition in a suit for specific performance - Impugned judgment set aside - Appeal allowed.... P.C. Varghese v. Devaki Amma Balambika Devi and Others (SUPREME COURT OF INDIA) D.D: 7/10/2005 JURISDICTION Suit for declaration, specific performance of agreement, for possession of property and for permanent injunction - Order that Delhi Court has no jurisdiction to try the suit and plaint should be returned to the plaintiff for presentation to proper court - Appeal against - In which court a suit for specific performance of agreement relating to immovable property would lie? - Held, s. 16 recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate - A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property - Delhi Court has no jurisdiction since property is not situate within jurisdiction of that court - Trial court was, therefore, right in passing an order returning the plaint to the plaintiff for presentation to the proper court - Appeal dismissed.... Harshad Chiman Lal Modi v. Dlf Universal and Another (SUPREME COURT OF INDIA) D.D: 26/9/2005 WRONGFULLY WITHHELD PROPERTY OF THE COMPANY Companies Act, 1956, s. 630 - Wrongfully withheld property of the company - Held, possession of company's flat by Respondents, after service of notice to vacate premises by company, is wrongful withholding of property of company - Decision of High Court that s. 630 of Act being penal in nature, proceeding there under cannot be construed to be a proceeding taken in due process of law, cannot be sustained - Appeal partly allowed.... Shubh Shanti Services Limited v. Manjula S. Agarwalla and Others (SUPREME COURT OF INDIA) D.D: 11/5/2005

TRUE NATURE OF DEED What is true nature of deed though called a Settlement Deed, what was intention of executant behind executing deed -Settlement as per terms of document was not a transfer of property in favour of adopted son; it was merely an arrangement or at best an entrustment of scheduled property to his adopted son and latter's natural father for purpose of proper management without obstruction by anyone else including himself so that welfare of himself, his wife and his children specially unmarried daughters was assured Deed was capable of being cancelled or revoked under power of revocation - Appeal dismissed... Subbegowda (Dead) By Lr v. Thimmegowda (Dead) By Lrs (SUPREME COURT OF INDIA) D.D: 16/4/2004 AGREEMENT OF REPURCHASE OF PROPERTY

Whether the terms of the agreement of repurchase contain any implied prohibition on the original contracting parties from transferring or assigning their rights in favour of third party - Held, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of s. 15(b), Specific Relief Act, 1963, an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or transferees', the legal right of assignment available to the benefit of original contracting party under s. 15(b) cannot be denied to it - Further held, the plaintiff as 'assignee' or 'transferee' from the original contracting party is entitled to seek specific performance of the contract from contesting respondent - Case remanded to the trial court for deciding additional issues arising on facts and law.... Shyam Singh v. Daryao Singh (Dead) by LRs and Others (SUPREME COURT OF INDIA) D.D: 19/11/2003 Suit for specific performance of contract No time for performance was fixed - It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter. FOR FULL CASE CLICK HEREWhether a writ petition is maintainable in contractual matter? A specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract. FOR FULL CASE CLICK HERE Suit for specific performance of undivided property - Minor's share In order to avoid multiplicity of proceedings, plaintiff may claim a decree for possession and/ or partition in a suit for specific performance. FOR FULL CASE CLICK HERESpecific Performance Notwithstanding that a specific date was mentioned in the agreement, one has not only to look at the letter but also at the substance of the contract - whether time is of essence is a question of fact and the real test is intention of the parties - facts and circumstances of each case is one of the deciding factors - held on facts - time was not the essence in this case respondents have proved that they were ready and willing to perform their part of the agreement. FOR FULL CASE CLICK HERE SPECIFIC PERFORMANCE AND EVICTION OF SUBSEQUENT PURCHASER Seller under agreement after receiving full amount of consideration refusing to execute sale deed and clandestinely executing another agreement to sell same house property to third person. Plaintiff is entitled to relief of specific performance and take appropriate proceedings for eviction of subsequent purchaser from the premesis. FOR FULL CASE CLICK HERE DATE ON WHICH PERFORMANCE REFUSED No time for performance was fixed - It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter. Janardhanam Prasad v. Ramdas (SUPREME COURT OF INDIA) D.D: 2/2/2007 SPECIFIC PERFORMANCE OF CONTRACT OF SALE Suit is for specific performance of contract of sale of a house property - High Court held that the respondent was competent to file the suit and that the Courts below were not justified in holding that Exhibit P-I was not proved though execution of the same was admitted by the defendant - Appeal against - Held, First Appellate Court had indicated the reasons as to how it found Exhibit P-1 was not a genuine document - It analysed the factual position and held that execution of Ex.P-I was not established and it was not a genuine document - High Court's abrupt reasoning that the defendant appears to have accepted execution of the document is indefensible - Plaintiff- respondent is not competent to file the suit - Appeal partly allowed.... Dyaneshwar Ramachandra Rao Patange v. Bhagirathibai (SUPREME COURT OF INDIA) D.D: 18/8/2006

WHEN NO TIME FIXED IN AGREEMENT COURT TO FIND OUT WHEN IT IS REFUSED Suit for specific performance of agreement of sale and for a perpetual injunction Dismissed as barred by limitation - Decision confirmed by first appellate court and High Court - Appeal against - No time for performance was fixed in the agreement for sale Held, in a case where no time for performance was fixed, court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof - Trial court should have insisted on parties leading evidence, on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial - Suit as regards prayer for perpetual injunction to protect possession of the plaintiff over the suit property on the claim that the predecessor of the plaintiffs was put in possession of the property pursuant to the agreement for sale, on a subsequent date, could not have been held to be not maintainable on any ground - Suit is remanded to trial court for a proper trial of all issues - Appeal allowed.... Gunwantbhai Mulchand Shah and Others v. Anton Elis Farel and Others (SUPREME COURT OF INDIA) D.D: 6/3/2006 Suit for specific performance - Suit dismissed as time barred by lower court - Second Appeal by respondent allowed decreeing the suit for specific performance - Appeal against - Held, even though time for performance was not fixed in the agreement for sale, on receipt of the notice, the respondent had notice that the performance was being refused, if he failed to fulfill his obligation under the contract within 15 days of receipt of the notice Suit should have been filed within a period of three years from the date of expiry of fifteen days from the date of receipt of the said notice - Suit time barred.... R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy (SUPREME COURT OF INDIA) D.D: 2/2/2006 PERSONAL RIGHT TO PURCHASE BACK Respondent's suit for a declaration that transaction although ostensibly expressed in the shape of a deed of sale, was in fact a transaction of usufructuary mortgage and for a further declaration that the said transaction stands redeemed under s. 12 - Relief granted in second appeal - Held, a mortgage by conditional sale must be evidenced by one document whereas a sale with a condition of re-transfer may be evidenced by more than one document - A sale with a condition of retransfer, is neither mortgage nor a partial transfer - By reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser, and such a personal right would be lost, unless the same is exercised within the stipulated time - Transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property - Appeal allowed..... Bishwanath Prasad Singh v. Rajendra Prasad and Another (SUPREME COURT OF INDIA) D.D: 24/2/2006 PARTITION IN A SUIT FOR SPECIFIC PERFORMANCE Suit for specific performance of undivided property - Minor's share - Conditions mentioned to obtain the necessary permission from Civil Court relating to minor's share Trial Court not only granted a decree for specific performance of contract but also a preliminary decree for partition - High Court held that it is an essential term for execution of contract and since such permission had not been granted, the entire contract failed Appeal against - S. 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, plaintiff may claim a decree for possession and/ or partition in a suit for specific performance - Impugned judgment set aside - Appeal allowed.... P.C. Varghese v. Devaki Amma Balambika Devi and Others (SUPREME COURT OF INDIA) D.D: 7/10/2005 JURISDICTION Suit for declaration, specific performance of agreement, for possession of property and for permanent injunction - Order that Delhi Court has no jurisdiction to try the suit and plaint should be returned to the plaintiff for presentation to proper court - Appeal against - In which court a suit for specific performance of agreement relating to immovable property would lie? - Held, s. 16 recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate - A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the

rights or interests in such property - Delhi Court has no jurisdiction since property is not situate within jurisdiction of that court - Trial court was, therefore, right in passing an order returning the plaint to the plaintiff for presentation to the proper court - Appeal dismissed.... Harshad Chiman Lal Modi v. Dlf Universal and Another (SUPREME COURT OF INDIA) D.D: 26/9/2005 WRONGFULLY WITHHELD PROPERTY OF THE COMPANY Companies Act, 1956, s. 630 - Wrongfully withheld property of the company - Held, possession of company's flat by Respondents, after service of notice to vacate premises by company, is wrongful withholding of property of company - Decision of High Court that s. 630 of Act being penal in nature, proceeding there under cannot be construed to be a proceeding taken in due process of law, cannot be sustained - Appeal partly allowed.... Shubh Shanti Services Limited v. Manjula S. Agarwalla and Others (SUPREME COURT OF INDIA) D.D: 11/5/2005 TRUE NATURE OF DEED What is true nature of deed though called a Settlement Deed, what was intention of executant behind executing deed -Settlement as per terms of document was not a transfer of property in favour of adopted son; it was merely an arrangement or at best an entrustment of scheduled property to his adopted son and latter's natural father for purpose of proper management without obstruction by anyone else including himself so that welfare of himself, his wife and his children specially unmarried daughters was assured Deed was capable of being cancelled or revoked under power of revocation - Appeal dismissed... Subbegowda (Dead) By Lr v. Thimmegowda (Dead) By Lrs (SUPREME COURT OF INDIA) D.D: 16/4/2004 AGREEMENT OF REPURCHASE OF PROPERTY Whether the terms of the agreement of repurchase contain any implied prohibition on the original contracting parties from transferring or assigning their rights in favour of third party - Held, in the absence of any words or expressions in the documents indicating prohibition on assignment or transfer of right of repurchase and in the face of s. 15(b), Specific Relief Act, 1963, an implied prohibition cannot be read into the terms of the documents. Merely because in the documents, there is mention of 'heirs' of the contracting parties but not their 'assignees' or transferees', the legal right of assignment available to the benefit of original contracting party under s. 15(b) cannot be denied to it - Further held, the plaintiff as 'assignee' or 'transferee' from the original contracting party is entitled to seek specific performance of the contract from contesting respondent - Case remanded to the trial court for deciding additional issues arising on facts and law.... Shyam Singh v. Daryao Singh (Dead) by LRs and Others (SUPREME COURT OF INDIA) D.D: 19/11/2003

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