Agreement to sell is comprised of reciprocal promises and corresponding obligations to be performed in the manner provided for. A vendee cannot seek enforcement of reciprocal obligation on the part of vendor to execute sale deed, unless he demonstrate that he not only has the financial capacity but he was and is also always willing and ready to meet the sames. The Promisor/Appellant (Vendor) need not perform his part of promise or obligation to execute conveyance, unless the promisee/Respondents, (the vendee) "is ready and willing to perform his reciprocal promise." This Court in a recent case held it to be "mandatory for such party that on first appearance before the court or on the date of institution of the suit, it shall apply to the Court for permission to deposit the balance amount. Any omission in such regard would entail the dismissal of the suit decreta! of the suit, if it was filed by the other side"9. In a case where a party seeking specific performance of agreement to sell moveable property ('Shares" in a corporate cntity),
It was held by this court that "It is now well settled that a party seeking specific performance of an agreement to sell is essentially required to deposit the sale consideration amount in court. In fact, by making such deposit, the plaintiff demonstrates its capacity, readiness and willingness to perform its part of the contract, which is essential requirement to seek specific performance of a contractio.
Specific Performance is a discretionary relief, and the Courts are not bound to grant such relief mechanically merely, because it is lawful to do so. The discretion to grant relief of specific performance or otherwise, by the Court is not something mechanical or arbitrary exercise of jurisdiction but, is structured on sound and reasonable judicial principles, amenable to judicial review and Genesis of agreement to sell correction by the court of appeall. draws its lineage from the Contract Act 1872 and principles enumerated therein, have direct bearing on interpretation and deciphering the intent, purpose, manner and consequences flowing from agreement to sell. However, in contemporary jurisdiction in India, Specific Relief Act, 1963 has replaced archaic Specific Relief Act, 1877 thereby substantially and suitably amended to addresses many ground realities having direct bearing on specific performance of promise and obligations arising out of contracts. Attending to present case, the reciprocal' obligations under the agreement are to be performed, in the manner and sequence it is provided for. Where the agreement does not expressly provided the manner such obligations are to be accomplished, than the respective obligations are to be performed in the manner and sequence, which the nature of transaction requires. In case in hand as noted, the Respondent under the agreement, was required to make the balance payment on or before 15.4.2015, where upon the Appellant was correspondingly obligated to sign and execute the conveyance deed, and hand over the possession. Foremost requirement to seek specific performance, for a vendee is to demonstrate his readiness and willingness to perform the agreement". The Promisor (vendor) need not perform his part of promise or obligation, unless the promisee (i.e vendee) "is ready and willing to perform his reciprocal promise." In cases arising out of agreement to sell, a vendee to demnonstrate his readiness and willingness to perform his part of obligation, has to plead, that he had offered to pay, was and is always prepared to pay the consideration. In a recent case, cited as Mst. Samina Riffat v Rohand Asghar and others', such aspect of the matter was considered, this court cited with approval case of Abdul Hamid v. Abbas Bhai- Abdul Hussaino. The court held "In the first place, willingness to perform one's contract in respect of purchase of property implies the capacity to pay the requisite sale consideration within the reasonabie time. In the second place, even if he has the capacity to pay the sale consideration, the question still remains whether he has the intention to purchase the property. On consideration of all the facts, it appears that the appellant was not in a position to pay the balance sale consideration. At any rate, the appellant was not willing, even if he had the capacity to pay the money, to have the sale deed completed."
Suit for specific performance/Agreement to sell
C.P.852/2020
Muhammad Jamil & others v. Muhammad Arif
0 Comments