LexM/S J.P. BUILDERS & ANR. versus A. RAMADAS RAO & ANR.
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B [2010] 15 (ADDL.) S.C.R. 538 MIS J.P. BUILDERS & ANR. v. A. RAMADAS RAO & ANR. (Civil Appeal Nos. 9821-9822 of 2010) NOVEMBER 22, 2010 [P. SATHASIVAM AND ANIL R. DAVE, JJ.] Specific Relief Act, 1963: ' c s.16(c) - Suit for specific performance of contract - "Readiness and willingness" - Connotation of - HELD: Clause (c) of s.16 mandates that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract 0 which are to be performed by him - It is a condition precedent for obtaining the relief - The onus is on the plaintiff - In the instant case, the plaintiff has proved his readiness and willingness to perform his part of obligation under the contract. E Contract Act, 1872: ss. 31 and 32 - Contingent contract - Suit land mortgaged to Bank - Owners entering into agreement for sale with plaintiff and undertaking to discharge their loans and to execute sale deed in favour of plaintiff after discharge of F mortgage - HELD: Clauses in the agreement to discharge the loan of the Bank and handover the original title deeds to the plaintiff cannot be construed as impossible event so as to affect t/1e terms of the contract to become void - Nor can it be said that the contract was a contingent contract - Doctrine G of impossibility cannot be permitted to become a device for destroying the sanctity of a contract - Doctrines - Doctrine of impossibility. Transfer of Property Act, 1882: H 538 I J.P. BUILDERS & ANR. v. A. RAMADAS RAO & ANR. 539 ss.56 and 81 -:- Plea of marshalling - Suit for specific A performance of agreement for sale of suit property which was mortgaged to Bank - Decree of specific performance granted - Appeal before High Court - Plea of marshalling raised as ~· .- the suit property was brought to auction by orders of ORT, : ,; along with other properties of vendors - HELD: Plea of B marshalling being pure question of law based upon the decree obtained cannot simply be thrown out merely because the same was not specifically pleaded - In the instant case, High Court has rightly granted the relief to the plaintiff - Merely because proceedings are pending before ORT, it is c not a bar for approaching civil court for relief u/s 56 of TP Act - Recovery of Debts Due to Bank and Financial Institutions Act, 1963. Constitution of India, 1950: D Article 226 - Writ petition involving same property as in pending appeal before High Court - HELD: There is no bar for the Division Bench of the High Court which has jurisdiction to hear the appeal, to hear writ petition when the same is , connected with the main issue - Besides, in the instant case, E no such objection was raised before the High Court. Article 136 - Jurisdiction of Supreme Court - HELD: Even if leave is granted, irrespective of the nature of the subject matter, the appellant must show the exceptional and F special circumstances and, if there is no interference by the Court, substantial and great injustice would result. Code of Civil Procedure, 1908: s. 35 - Costs - HELD: In asmuch as the plaintiff after G valuing the suit and paying. substantial court fee, secured a decree for specific performance, though he could not secure a relief in its entirety, the plaintiff is entitled to his costs. Jurisdiction: H 540 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A Appeal and writ petition before High Court arising out of decree of specific performance, and directions of ORT in respect of same property - Direction by High Court to Bank vis-a-vis orders of ORT - HELD: High Court after taking into consideration various connected issues in respect of the s same properties and several orders passed by Civil Court and ORT and the fact that the borrower has other properties to satisfy the claim of the Bank, issued directions/clarifications safeguarding the interests of all parties, which do not run counter to orders of ORT, and, therefore, need not be c interfered with - Recovery of Debts Due to Bank and Financial Institutions Act, 1963. Appellants nos. 1 and 2, offered to respondent no.2- Bank various properties, including the suit property (30 acres and 86 cents of lands), as security for the principal D as well as interest amount payable by MIS 'AA', a sister concern of appellant no. 1 of which appellant no. 2 was the sole proprietor. On 15.8.2005, the appellants entered into a Memorandum of Underst
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