Specific Relief Act, 1963 – Specific performance of contract
– Time, if essence of contract – Seller and the buyer entered
into registered agreement to sell property on 22.11.1990 for a
consideration of Rs.21,000/- - Advance payment of Rs. 3000/-
received by the seller and the transaction was to be completed
within six months – However, on 05.11.1997, seller executed
a Sale Deed with regard to the property in question with the
third person for a consideration of Rs.22,000/- - Thereafter,
issuance of notice by the buyer to the seller calling upon
the seller to execute the agreement – Subsequently, suit for
specific performance of the Agreement, damages and for
recovery of money with interest filed by the buyer against the
seller – Dismissal of the suit – Appeal thereagainst allowed
by the First Appellate Court, and upheld by the High Court
– Correctness:
Held: Within six months there existed the onus of paying the entire
balance amount by the buyer to the seller – From the payment of
Rs.7,000/- out of Rs.21,000/-, as indicated in the notice sent by the
buyer, it is clear that the buyer had not complied with their obligation
under the Agreement within the six-month period and neither they
offered to pay the remaining/balance amount before the expiry of the
six-month period – Seller having accepted payment of Rs.1,000/-
on 21.04.1997, after seller had executed a Sale Deed in favour of
the third party, coupled with the fact that the forensic expert found the two thumb-impressions purportedly acknowledging payment
after the expiry of the time fixed not matching the fingerprints of
seller is clearly indicative that time having not been extended,
no enforceable right accrued to the buyer for getting relief under
the 1963 Act – If the seller had accepted money from buyer after
the expiry of the time-limit, which itself has not been conclusively
proved during trial or even at the first or second appellate stages,
the remedy available to the buyer was to seek recovery of money
paid along with damages or interest to compensate such loss but
suit for specific performance to execute the Sale Deed would not
be available – Furthermore, though the third party was arrayed
as a defendant in the suit, yet no relief seeking cancellation of his
Sale Deed was sought for – Even if the case of later payments
by the buyer to the seller is accepted, the same being at great
intervals and there being no willingness shown by them to pay the
remaining amount or getting the sale deed ascribed on necessary
stamp paper and giving notice to the seller to execute the sale
deed, it cannot be said that judged on the anvil of the conduct of
parties, especially the seller, time would not remain the essence
of the contract – Judgment of the High Court as also the First
Appellate Court set aside and that of the trial court is restored.
[Paras 24-26, 28-30]