JASWINDER KAUR (NOW DECEASED) THROUGH . versus GURMEET SINGH AND ORS

Citation: [2017] 5 S.C.R. 430 · Decided: 18-04-2017 · Supreme Court of India · Bench: ARUN MISHRA, AMITAVA ROY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2017] 5 S.C.R. 430 
A 
JASWINDER KAUR (NOW DECEASED) THROUGH . 
B 
c 
HER LRS AND ORS 
v. 
GURMEET SINGH AND ORS 
(Civil Appeal No. 5636of2017) 
APRIL 18, 2017 
[ARUN MISHRA AND AMITAVA ROY, JJ.] 
Specific Relief Act, 1963: 
s.12 - Non-applicability of - Agreement for sale of property 
between appellant-defendant and re!>pondent-plaintiffs - Plaintiffs 
paid earnest money - Another payment made by plaintiffs on 
31.1.1990 -
Subsequently, plaintiffs filed suit for specific 
performance of the agreement for sale and in the alternative claimed 
D 
refund of earnest money with interest and damages - Trial court 
dismissed the suit holding that the plaintiffs were not ready and 
willing to perform their part of the agreement and also that the 
plaintiffs did not have arrangement of balance consideration to 
purchase the property within the stipulated time - First appellate 
E 
F 
court affirmed the findings of trial court - High Court in second 
appeal without discussing the correctness of findings as recorded 
by trial court and affirmed by first appellate court, referred to s.12 
and decreed the suit partly, directing part performance of the contract 
- On appeal, held: High Court could not have decreed the suit 
without reversing the findings recorded by trial court and affirmed 
by first appellate court - When balance consideration was not 
available with the plaintiffs obviously they were not entitled uls. 12 
for the decree of specific performance of agreement to sale even in 
part-A bare perusal of s.12 makes it clear that specific performance 
of a part of contract cannot be directed except in the exigencies as 
provided under sub-sections 2, 3, and 4 - However, none of such 
G exigency was present in the instant case - Further, s.12 doe!>' not 
apply where the inability to perform specific performance of part 
of contract arises because of the plaintiff~· own conduct, as in the 
present case - Thus, amount paid as earnest money was rightly 
forfeited by defendants - Remaining money paid in advance on 
H 
430 
JASWINDER KAUR (NOW D_ECEASED) THROUGH HER LRS 
431 
AND ORS v. GURMEET SINGH AND ORS 
31.1.1990 by plaintiffs to defendants to be refunded with simple 
A 
interest @ 6% p.a. to plaintiffs - However, plaintiffs to bear the 
cost incurred by appellants-defendants in courts below and the cost 
of appeal in Supreme Court which is quantified at Rs.5,00,0001- -
Amount of cost payable to defendants to be adjustfd out of the 
amount to be paid alongwith interest to the plaintiffs. 
B 
s.16 - Readiness and willingness - When cannot be inferred 
- Held: It is necessary u/s. l 6(c) not only to aver the readiness and 
willingness but also to prove it - In the present case, plaintiffs only 
pleaded their readiness and willingness, but failed to prove it -
Further. merely because payment of part consideration was made 
by the plaintiffs, their readiness to perform the contract could not 
C 
,_ 
have been inferred as wrongly done by High Court - Readiness 
and willingness has to be seen in the context of entire agreement 
and not with respect to a portion of contract. 
Surjit Kaur v. Naurata Singh & Am: 2000 (7) SCC 379 
: [2000] 3 Suppl. SCR 259 - relied on. 
William Graham v. Krishna Chandra Dey AIR 1925 PC 
45; Abdul Haq v. Mohammad Yehia Khan & Ors. AIR 
1924 Pat. 81; Abdul Rahim & Ors. v. Tufan Gazi and 
Ors. AIR 1928 Cal. 584 - referred.to. 
Case Law Reference 
AIR 1925 PC 45 
referred to 
Para9 
AIR 1924 Pat. 81 
referred to 
Para 18 
AIR 1928 Cal. 584 
referred to 
Para20 
[2000] 3 Suppl. SCR 259 
relied on 
Para 21 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5636 
of2017. 
From the Judgment and Order dated 17.02.2016 of the High Court 
D 
E 
F 
of Punjab and Haryana at Chandigarh in RSA No. 3038 of 2010. 
Ci 
C. A. Sundaram, Sr. Adv., Vaibhav Sehgal, Jaspreet Singh Rai, 
Shyamal Kumar, Advs. for the Appellants. 
Sumeet Mahajan, Amit Kochar, Ashok K. Mahajan, Advs. for 
the Respondents. 
H 
432 
SUPREME COURT REPORTS 
[2017) 5 S.C.R. 
A 
The following Order of the Court was delivered: 
B 
c 
D 
E 
F 
ORDER 
1. Leave granted. 
2. Heard learned senior counsel for the paities. 
3. The defendants (the appellants-herein) are before us having 
succeeded before the trial court and in the first appellate court. The 
High Court has unfortunately invented a new method of decreeing the 
suit for specific performance in part only in respect to the payment of 
the earnest money of Rs.50,000/- (Rupees Fifty Thousand Only)
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