suit for specific performance of agreement to sell

These are as follows: Valid Contract; Unregistered agreement of sale Conduct of the parties; Readiness and Willingness of parties; Time is essence of contract; Adding parties in specific performance suit For deciding the question who is a proper party in the suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. iii. Except in cases where power of attorney is coupled with interest, it is revocable. The price may be paid by way of money or any other thing of value, to be rendered periodically or on specified occasion to the transferor. It is settled law that Section 53-A of the TPA confers no right on a party who was not willing to perform his part of the contract. Specific performance of a contract will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. ii. Namgayal Institute for Research on Ladakh Art & Culture & Ors, High Court of Delhi, OMP No. [1] Aloka Bose V/s Parmatma Devi & Ors, (2009) 2 SCC 582, [2] Bhagaban Behera V/s Kishore Chandra Dash, 2018 (1) Civ. In the case of Vidhur Impex (supra), the Supreme Court again had the opportunity to consider all the earlier judgments. (See: Syed Dastagir V/s T.R. Under Section 24, Hindu Marriage Act, 1955. Dictum in the matter of: Suhrid Singh V/s Randhir Singh & Ors, AIR 2010 SC 2807: In the matter of Suhrid Singh (Supra), the Hon’ble Supreme Court of India held as follows: (a) Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. Cases 467. [3], It is important to note that: (a) Execution of sale deed does not need any attesting witness like gift deed which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and, (b) Section 68 of the Indian Evidence Act, 1872 which deals with examination of attesting witness to prove the execution of document, does not apply to sale deed which is governed by Section 54 of the Transfer of Property Act, 1882. Elements Involved In a Suit For Specific Performance. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.”. In the case of Kumar Singh v. Shivnath Mishra alias Gadasa Guru, 1995 (3) SCC 147, it has been held that since the applicant who sought for his addition is not a party to the agreement for sale, it cannot be said that in his absence, the dispute as to specific performance cannot be decided. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. Specific Relief Act (47 of 1963), Section 20 – Agreement to sell – Suit for specific performance Advocate (s): L. R. Mehta, Praduman Singh, Sushant Daga, for Appellants; J. L. Purohit, Senior Advocate, Rajeev Purohit, for Respondent. Article 54 of the Limitation Act deals with the limitation of suit for specific performance. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. In a case of Smt. It is stated, in the third column of Article 54 of the Limitation Act,1963, that the suit for specific performance had to be filed within three year from the date stipulated in the contract or from the date of refusal to perform the contract. Specific performance is a remedy developed by principle of equity. . v.   The transferee must have done some act in furtherance of the contract. iv. In response to the legal notice, the defence set up by the Appellants was, inter alia , that the agreement to sell was executed only as a security for a loan transaction as the father of the Appellants was a money lender (which was an admitted fact). X has to sue for cancellation of the deed. That in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. Sh. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable.”, The Court further held “It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. Creation of lease is not a collateral purpose nor are the terms of lease ‘collateral’ within the meaning of Section 49 of the Registration Act, 1908. Indian Penal Code (IPC) Section 506. 686 (SC), Shivam Goel; B.Com (H), LL.B. This section of Act is widely accepted on its own merits that a suit for specific performance can be lie on the basis of unregistered agreement to sell and can be admissible as evidence. An agreement for sale and purchase simpliciter is a reciprocal arrangement imposing obligations and benefits on both parties and is enforceable at the instance of either. If a lease on account of non-registration could not be admitted as evidence, then all its terms would be inadmissible in evidence, including those which relate to renewal of lease, and that use of such a document for said purposes, is not, a collateral purpose, referred to in proviso to Section 49 of the Registration Act, 1908. iii. The interpretation of such a contract would be governed by the laws of contract relating to the performance of reciprocal promises. Therefore, he is not a necessary party.”, In Kasturi v. Iyyamperumal & Ors. Doctrine of Part Performance of Contract: Doctrine of Part Performance of Contract is contained in Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as ‘TPA’). (See: Can accused produce additional evidence during appeal against his conviction? Legal options on being falsely implicated of having impregnated a woman? No substituted performance of contract can be undertaken unless the party who suffers such breach has given a notice in writing, of not less than 30 days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on the refusal or failure of the party in breach to do so, the party at sufferance can get the same performed by a third party or his own agency. A power of attorney is executed by the donor so as to enable the donee to act on his behalf. The said sub-rule is extracted below: "Court may strike out or add parties. Section 16 (c) of the Specific Relief Act, 1963 provides for personal bars to relief. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restrain order passed by the Court. Note: 1. Relief against parties and persons claiming under them by subsequent title. However it was later inserted with the recommendations of the 9th Law Commission's report. ii. It can be oral. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. i. i. Irrevocable Power of Attorney or Agency Coupled with Interest: According to Section 185 of the Indian Contract Act, 1872, consideration (quid pro quo) is not necessary for creating an agency. Specific performance of a contract will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. Further, even an irrevocable power of attorney which creates, assigns, declares, extinguishes or limits, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs. All the three courts below, on a consideration of the entire materials placed, both oral and documentary, decreed the suit for specific performance. You have entered an incorrect email address! respondent herein had instituted a suit for "specific performance" of a contract on the basis of an agreement to sell dated 11-1-1992 executed by the defendants-appellants qua, property in dispute measuring 11 Kanals, 18 Marlas situated in Khasra, Nos.880, 881 … 2,90,000 out of which an amount of Rs. Therefore, for effective adjudication of the controversies involved in the suit, presence of such parties cannot be said to be necessary at all.". But that appears to be a desirable consequence of the rule rather than its main objectives. That by virtue of the amendment brought about to Section 53-A of the TPA with effect from 24.09.2001 by the Act 48 of 2001, an Agreement to Sell in the nature of part performance cannot create rights unless the agreement is registered and stamped at 90 percent of the duty as of the sale deed as per Article 23-A of the Schedule I of the Indian Stamp Act, 1899 as applicable to Delhi which was accordingly amended by the Act 48 of 2001. ii. From the bare reading of the aforesaid provision, it is manifest that sub-rule (2) of Rule 10 gives a wider discretion to the Court to meet every case or defect of a party and to proceed with a person who is a either necessary party or a proper party whose presence in the Court is essential for effective determination of the issues involved in the suit. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. Founder and Editor: Dr. Ashok Dhamija, Advocate, Supreme Court, New Delhi. 2128/2015, High Court of Delhi, Date of Decision: 03.08.2015 (Coram: Valmiki Mehta, J. On a plain reading of Section 17 of the Registration Act, 1908, it becomes amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53-A of the Transfer of Property Act, 1882 to protect its possession over the stated property. According to the purport of Section 17 (1A) of the Registration Act, 1908, an unregistered agreement to sell cannot be made the basis for preferring a suit for part performance of the contract. . All other leases for immovable property may be made either by an instrument or by oral agreement. AIR 2009 Supreme Court 2193, Hon'ble Apex Court has observed as under: "The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. Partial quashing of FIR in respect of one of the accused persons, Improper investigation u/s 156(3) by police and judge dismissing the application, When police illegally registers FIR against and arrests a person. If a supplementary arrangement is entered into between the lessor and the lessee albeit the leased premises which does not alter the period of lease and the quantum of the premium that is to be paid then the same cannot be construed as a fresh transaction entailing necessary consequences of payment of stamp duty and registration. 10 of the party concerned who accepts it is extracted below: & quot suit for specific performance of agreement to sell may! ’ to a registered lease deed would require Registration any personal benefit of any part.... Leviable on the transaction embodied in the instrument determines the stamp duty leviable! Legal action brought into a court compelling a party construe the transfer can ascertained... 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