This was the course followed by the Calcutta High Court in – Kafiladdin v. Samiraddin, AIR 1931 Cal 67 (C) and appears to be the English practice. Remember my name and email for this browser. Evidence Act, 1872 – Section 101 – Burden of Proof – Agreement – Suit for Specific Performance – Readiness and Willingness – Power of Attorney Holder – Readiness may be a financial aspect but willingness is the state of mind. In case of a lease transaction, the person who transfers the property is known as the lessor, the transferee is known as the lessee and the price paid is called the premium. In Kamal Kumar v Premlata Joshi & Ors, the appellant filed a civil suit against the respondents claiming specific performance of their contract in relation to the suit property, which was contested by the latter. A power of attorney is executed by the donor so as to enable the donee to act on his behalf. vs. Bibijan & Ors. 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. A 1 later agreement of sale is not maintainable as the earlier documents is still alive - who filed the suit first is not the question - whose document is the earlier one is the question = Under Section 24, Hindu Marriage Act, 1955. C.R. It is intrinsic to note that, an instrument of power of attorney is to attract the same stamp duty as a conveyance deed if-. Please subscribe to my channel. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. A deed of power of attorney is executed by the principal in favour of the agent. In the matter of: WG. Any reference to any advocate on this website does not constitute a referral or endorsement, nor does it constitute an advertisement. Section 17 (1A) of the Registration Act, 1908 came into force with effect from 24.09.2001 and it is prospective in operation. 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). A suit for specific performance of contract often relates to the buying and selling of real estate. (See: Can accused produce additional evidence during appeal against his conviction? , The law relating to power of attorney is governed by the provisions of the Powers of Attorney Act, 1882. Here again, there is a definite point of time, When the plaintiff notices the refusal. 2128/2015, High Court of Delhi, Date of Decision: 03.08.2015 (Coram: Valmiki Mehta, J. Through this R.F.A, the appellants have challenged the validity of judgment & decree dated 23.12.2014 whereby the learned Civil Judge 1st Class, Bahawalpur dismissed the appellants’ suit for specific performance of oral agreement to sell dated 22.11.1984 and decreed the respondent’s suit for declaration and possession. 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. Article 54 of the Limitation Act deals with the limitation of suit for specific performance. The aforesaid question was considered by the Calcutta High Court in the case of Kafiladdin and others vs. Samiraddin and others, AIR 1931 Calcutta 67 where Lordship referred the English Law on this point and quoted one of the passage of the Book authored by Dart, on “Vendors and Purchasers” Edn.8, Vol.2, which reads as under :-, “Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice to the original contract.”, Discussing elaborately, the Court finally observed:-, “The statement of the law is exactly what is meant by the first two clauses of S.27, Specific Relief Act. Namgayal Institute for Research on Ladakh Art & Culture & Ors, High Court of Delhi, OMP No. In the light of the settled principles of law on the doctrine of lis pendens, we have to examine the provisions of Order 1 Rule 10 of the Code of Civil Procedure. suit for specific performance of agreement dated 03-06-2007, declaration, possession along with permanent and mandatory injunction as well as consequential relief in respect of land measuring 9 kanal 11 marlas situated in village keet, post office mustafa abad, tehsil cantt. 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. 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 A13 earlier agreement of sale - another suit for specific performance based on Ex. Generally, readiness is backed by willingness. 2012 (1) SCCD 363 (SC) J.P. Builders and another versus A. Ramadas Rao and another. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calender". 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. 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 … Rejecting the petition this Court held as under :-, “As noted herein earlier, two tests are required to be satisfied to determine the question who is a necessary party, let us now consider who is a proper party in a suit for specific performance of contract for sale. i. Order 1 Rule 10 reads as under: (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms a the Court thinks just. Stamp duty is leviable on the instrument and not on the transaction; ii. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. For this to happen, a defendant has to go through with a particular action they promised to do instead of only paying money for … We may now give some illustrations regarding exercise of discretion under the said Sub-Rule. In this video I shall explain the legal remedy for enforcement of Agreement to Sell. Specific Performance: Liquidated Damages: Legal action brought into a court compelling a party to carry out the terms of a contract. According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. C.R. 637/2012 (Date of Decision: 25.10.2013, and, Coram: Rajiv Shakdher, J. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. Indian Penal Code (IPC) Section 507. Except in cases where power of attorney is coupled with interest, it is revocable. ii. down that no one, other than the parties to the contract and their legal representatives/transferees, can be impleaded even as a proper party. 5. Mayawanti vs Smt. Any act or thing done by the agent on the strength of power of attorney, is therefore, never construed or treated as having been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having been done by the principal himself. 2. The practice of the … The law relating to power of attorney is governed by the provisions of the Powers of Attorney Act, 1882. However it was later inserted with the recommendations of the 9th Law Commission's report. vi. It can be by exchange of communications which may or may not be signed. But the form is different and the court fee payable is also different; (c) If X, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. 4. In this case at paragraph 9, the Supreme Court while deciding whether a person is a necessary party or not in a suit for specific performance of a contract for sale made the following observation: “Since the respondent is not a party to the agreement for sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. 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. The terms and conditions of a lease can be changed by mutual consent, unless the essential ingredients thereof as contained in Section 105 of the TPA are not altered. X executes a sale deed in favour of Z. (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. In case of breach of contract, the general remedy available to the aggrieved party is compensation or damages of loss suffered. ii. It is a settled law that, in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place facts and law of one’s case for a relief before the court of law. 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. The Law of Specific Relief in India was originally codified by Specific Relief Act, 1877. 12.3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. For ordering specific performance of a contract it is 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. It is difficult to say that the rule contemplates joining as a defendant whose only object is to prosecute his own cause of action.". The appellants and Bhagwati Developers though totally strangers to the agreement, came into picture only when all the respondents entered into a clandestine transaction with the appellants for sale of the property and executed an agreement of sale which was followed by sale deed. FACTS: The issue in the suit for specific performance was whether the agreement to sell dated 15.05.1990 executed by defendant in favor of the plaintiff would be enforceable in … Indian Penal Code (IPC) Section 508. Indian Penal Code (IPC) Section 506.  Moreover, it is intrinsic to note the difference between ‘sale’ and ‘exchange’ of property. It is important to note that Article 48 (f) of the Indian Stamp Act as applicable to Delhi states that power of attorney when given for consideration and authorizing the attorney to sell the immoveable property, the proper stamp duty to be paid is the stamp duty as leviable on conveyance deed for the amount of consideration. 2. "Readiness and willingness" to perform the part of the of the contract has to be determined / ascertained from the conduct of the parties". It was held by the hon' Supreme court in R. C.Chandiok and another v. Chuni Lal Sabherwal and others (1970) 3 SCC 140, that "readiness and willingness" cannot be treated as a straitjacket formula.This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. v. The transferee must have done some act in furtherance of the contract. Similarly, if P consigns 100 bales of cotton to Q, who has made advances to him on such cotton, and desires Q to sell the cotton, and to repay himself out of the price the amount of his own advances. In the matter of: Vimla Devi V/s Pushpa Devi & Anr, it was held that, according to the purport of Section 202 of the Indian Contract Act, 1872, where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. 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. According to the Supreme Court, the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. , 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. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. 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