Time is essence of contract - Suit for specific performance of contract - defendant side - citations
G.Nagarajeshwar Rao
(Querist) 11 April 2011
This query is : Resolved
I am appearing for defendant. The suit is filed for specific performance of sale agreement dated 14-1-2011. The sale agreement is time bounded. Rs.50,000/- paid [out of total sale consideration amount of Rs.6,00,000/-] at the time of entering in to agreement of sale. The entire amount shall be paid within 2 months. The plaintiff is not ready with money. The agreement is not contained the recitals that "the sale deed will be executed in the name of any other person chosen by the plaintiff". The plaintiff is friend of the defendant. Being friend of the defendant the sale consideration accepted for meager amount. In fact the house plot will be value @ Rs.8,00,000/- and above. The defendant has issued a legal notice as to the sale agreement is cancelled. For that the plaintiff has filed a suit, stating that he is ready with money [by showing the drafted original of third party with the recitals as if the defendant has sold the plot, in fact there is no privity of contract in between the third party and the defendant]. The things stood so the plaintiff has filed a suit seeking relief of specific performance of contract, with an interlocutory application with the relief "not to alienate" petition. How can the defendant escape from the liability and what should be the defense of the defendant. [The friend cheated the defendant that the property will be kept / purchased in his name only, but he sold out for excessive profit]. Citations required please respond. With regards - gnrsharma@gmail.com 09849458545; 08686186286
Guest
(Expert) 12 April 2011
SEC 16 (C) OF THE S.R ACT WILL APPLY. DURING THE COURSE OF THE TIME FOR PERFORMANCE OF CONTRACT THE PLAINTIFF MUST BE READY AND WILLING TO PERFORM HIS PART. WHETHER THERE ARE ANY TRANSACTION OF NOTICE OF READY AND WILLING TO EXECUTE THE CONTRACT FROM 14.1.2011 TO 14.3.2011? WHETHER THE AGREEMENT IS REGISTERED ONE? ON WHICH DATE YOUR CLIENT/DEFENDANT(OWNER OF PROPERTY) HAS ISSUED LEGAL NOTICE ? THESE QUERIES WILL DECIDE THE MATTER. THE PRIVITY OF CONTRACT WILL APPLY AND THE PLAINTIFF HAS NO RIGHT TO ENTER INTO CONTRACT OF SALE WHEN HE HAS NO RIGHT CONFIRMED UPON THE PROPERTY.
Advocate Bhartesh goyal
(Expert) 12 April 2011
Mr S.Ganesan is right.I agree with him.please see the following citation:-
2002 WLC {S.C} civil 186 titled as "Gopal Chand vs Gopal chandra $ others"
Specific Relief Act,1963-S 16{c}-Plaitiff's readiness and willingness-Time for payment of balance consideration extended by defendant-Plaintff's failure to pay within extended time-Defendant revoking contact-Time held to be essence-Case concluded by concurrent findingwas that plaintiff was not ready and willing-Suit for specific performance rightly dismissed.
