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specific performance
specific performance of an agreement of re-conveyance of the suit land. is not maintainable =The District Court also held that Ex-18, the alleged agreement of re-conveyance did not mention that there was a loan transaction between the parties and that Ex-19, the sale deed was not to be acted upon. It did not mention the date and period within which the suit land was to be re-conveyed after payment of the loan amount. Therefore, the case that Ex-19 was a nominal sale deed cannot be accepted. = Ex-19 is a genuine sale deed. It clearly speaks of an out and out sale. We have stated that Ex-18 is not an agreement to re- convey the land on repayment of loan. The sale deed [Ex-19] is clearly worded leaving no scope of ambiguity. So far as Ex-18 is concerned, it is so worded as not to establish any link with Ex-19. It does not speak of any loan transaction at all. Though there is no ambiguity in Ex-19 and we are certain that the transaction in question is a genuine sale transaction, to lend support to our conclusion we may touch upon the surrounding circumstances. If Ex-18 was to be an agreement for re-conveyance, it would not have been titled as ‘Receipt’. It would have been signed by the original plaintiff and the defendant. It is pertinent to note that it is signed only by the defendant. It is executed on a simple paper. It does not state within what time the amount was to be repaid and the agreement of repurchase was to be executed. It is also important to note that in the cross-examination, original plaintiff has clearly admitted that Ex- 18 was executed before execution of sale deed [Ex-19]. Hence, the original plaintiff’s case that the defendant insisted that he would lend money to him only if he would execute nominal sale deed and, therefore, the nominal sale deed was executed and the loan was advanced, does not stand to reason. The District Court has rightly said that at the most it could be said that Ex-18 culminated into a genuine sale deed [Ex-19]. The original plaintiff’s case that the transaction of sale was followed by agreement for re-transfer is not substantiated. It is also hit by Section 58(c) of the Transfer of Property Act which this Court analyzed in Chunchun Jha and stated that if sale and agreement for re-purchase are embodied in separate deeds then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. Here we clearly have two separate documents. Similar view has been taken by this Court in Raj Kishore v. Prem Singh[3]. The High Court, therefore, clearly erred in holding that there was an agreement for re-conveyance and the original plaintiff was entitled to specific performance thereof.- In the result, the appeal is allowed. The impugned order dated 20/7/2004 is set aside. The judgment and order dated 12/3/1986 passed by the District Judge, Buldana in Regular Civil Appeal No.130 of 1983 is restored.
‘ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1648 OF 2006 DASHRATH KACHRU KAKDE … APPELLANT Versus VIKRAM S/O. DHONDU AWHALE …RESPONDENT (DECEASED) THROUGH LRs. O R D E R (SMT.) RANJANA PRAKASH DESAI, J. 1. This appeal, by special leave, is filed by the original defendant. The challenge is … Continue reading
the Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as ‘the Act’)= According to the provisions of Section 4 (1) of the Act, the agreement, if any, executed between the plaintiffs on one hand and the developer on the another, ought to have been registered with the sub-Registrar. 24. In absence of such a registered document, the plaintiffs would not get any right in respect of the flats, which they intended to purchase. Moreover, in absence of the registration, the Subsequent Buyers could not have got an opportunity to inspect the agreement and there could not be any presumption that the Subsequent Buyers knew about the agreement.; The letter of intent=The letter of intent cannot be said to be an agreement to sell for the simple reason that according to the contents of the letter of intent, only upon payment of the entire purchase price, the Developer and the plaintiffs were to enter into an agreement with regard to sale of the flats. This fact clearly denotes that no agreement to sell had been entered into between the plaintiffs and the Developer and in absence of such agreements, in our opinion, there cannot be any right in favour of the plaintiffs with regard to specific performance of any contract. Thus, in our opinion, the High Court did not commit any error while coming to the conclusion that there was no binding contract or agreement in existence between the plaintiffs and the Developer and therefore, the trial court could not have decreed the suit for specific performance.; subsequent buyers – whether bonafide or not = As no averment was made by the plaintiffs in their plaints that the Subsequent Buyers were not bonafide purchasers for consideration, the Subsequent Buyers could not have adduced any evidence to show that they were bonafide purchasers for consideration. Had such a plea been raised by the plaintiffs in their pleadings, the Subsequent Buyers could have adduced necessary evidence to prove their cases. In such cases, normally the burden of proof would lie on the plaintiffs unless there is a registered document so as to raise a presumption that the Subsequent Buyers had knowledge with regard to the earlier transaction. Such a burden of proof was not discharged by the plaintiffs and therefore, we are also of the view that the Subsequent Buyers were bonafide buyers for consideration.; amount refunded with interest = In view of the above circumstances, in our opinion, the High Court was right in allowing the appeals and directing the Developer to return the amount of the purchase price received by it from the plaintiffs with interest at the rate of 9% p.a. from the date when the letter of cancellation was written by the Developer to the plaintiffs. In our opinion, the said direction is just and proper however, looking to the rising price and inflationary trend in the country, we partly modify the judgment by increasing the rate of interest from 9% p.a. to 12% p.a. The said amount shall be paid to the plaintiffs by the Developer within two months from today.
Page 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4509 OF 2007 HANSA V. GANDHI …APPELLANT VERSUS DEEP SHANKAR ROY & ORS. ….RESPONDENTS WITH CIVIL APPEAL NO. 4510 OF 2007 AND CIVIL APPEAL NO. 4511 OF 2007 J U D G M E N T ANIL R. DAVE, J. 1. … Continue reading
an agreement of sale by paying stamp duty and penalty can be received as a documentary evidence in suit for specific performance under the proviso of sec.49 and sec.35 of stamp act
THE HON’BLE SRI JUSTICEK.C. BHANU A.S.NO. 462 OF 2011 JUDGMENT: 1 This appeal is directed against the Docket Order dated 07.08.2003 passed by the learned Principal Senior Civil Judge, Visakhapatnam rejecting the plaint presented by the appellant on the ground that the agreement of sale dated 14.03.2001, which is a suit document, is not registered as … Continue reading
time was essence of the contract and that the appellant did not pay the balance of the consideration, within the stipulated time. =The trial Court has also analyzed the evidence pertaining to the financial solvency of the appellant. It was observed that the appellant did not possess adequate means to pay the balance of consideration as on the date of filing of the suit much less the date stipulated for payment of balance of consideration. This Court does not find any substantial question of law nor is it inclined to interfere with the concurrent findings of fact.
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.587 OF 2011 20-06-2011 Komatireddy Buchi Reddy Pannala Narsimha Reddy COUNSEL FOR PETITIONER: Sri G.Machusudhan Reddy COUNSEL FOR RESPONDENT: N.Ramachandra Rao :JUDGMENT: The appellant filed O.S.No.50 of 2002 in the Court of the Senior Civil Judge, Bhongir against the respondent for the relief of specific performance of … Continue reading
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