RAJESH KUMAR versus ANAND KUMAR & ORS.

Citation: [2024] 5 S.C.R. 612 · Decided: 17-05-2024 · Supreme Court of India · Bench: PANKAJ MITHAL · Disposal: Dismissed

Cited by 2 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

* Author
[2024] 5 S.C.R. 612 : 2024 INSC 444
Rajesh Kumar 
v. 
Anand Kumar & Ors.
(Civil Appeal No. 7840 of 2023)
17 May 2024
[Pankaj Mithal and Prashant Kumar Mishra,* JJ.]
Issue for Consideration
Matter pertains to deposition of power of attorney holder in a suit for 
specific performance, in place and instead of the plaintiff-principal 
wherein the plaintiff is required to aver and prove his readiness 
and willingness to perform the terms of the contract; and the effect 
of filing a suit for specific performance after a long delay, on the 
last date of limitation.
Headnotes†
Specific Relief Act, 1963 – s. 12 – Specific performance of 
part of contract – Deposition of a power of attorney holder, 
when can be read in evidence – On facts, the appellant entered 
into an agreement to sell with power of attorney holder for 
purchase of land for a sale consideration – Appellant paid 
earnest money on the date of agreement to sell and the 
balance amount was to be paid on the date of registration 
of the sale deed – Time for execution of the sale deed 
extended – However, the power of attorney holder executed 
the sale deed of the suit land in favour of respondents even 
though they were aware of the earlier sale agreement and 
its extensions – Sale deed executed behind the back of the 
appellant – Subsequently, on coming to know of the same, 
the appellant sent notice – Thereafter, suit filed and the trial 
court decreed in favour of the appellant – However, set aside 
by the High Court – Correctness:
Held: In view of s. 12, in a suit for specific performance wherein 
the plaintiff is required to aver and prove that he has performed 
or has always been ready and willing to perform the essential 
terms of the contract, a power of attorney holder is not entitled 
to depose in place and instead of the plaintiff (principal) – If the 
power of attorney holder has rendered some ‘acts’ in pursuance 
of power of attorney, he may depose for the principal in respect 
[2024] 5 S.C.R. 
613
Rajesh Kumar v. Anand Kumar & Ors.
of such acts, but he cannot depose for the principal for the act 
done by the principal and not by him – Similarly, he cannot 
depose for the principal in respect of the matter of which only the 
principal can have personal knowledge and in respect of which 
the principal is entitled to be cross-examined – It is necessary 
for the plaintiff to step into the witness box and depose that he 
was always ready and willing to perform his part of the contract 
and subject himself to cross-examination on that issue – Plaintiff 
cannot examine in his place, his attorney holder who did not have 
personal knowledge either of the transaction or of his readiness 
and willingness – On facts, the plaintiff failed to appear in the 
witness box and subject himself to cross-examination, he has not 
been able to prove the pre-requisites of s. 12 and more so, when 
the original agreement contained a definite time for registration 
of sale deed which was later on extended but the suit was filed 
on the last date of limitation calculated on the basis of the last 
extended time – Instead, the power of attorney holder got himself 
examined – It is not a case where the suit itself was filed by 
power of attorney holder – He appeared subsequently only for 
recording his evidence as the special power of attorney holder 
of the plaintiff – Plaintiff entered into an agreement with only one 
of the co-owners and thereafter sought extensions for execution 
of the sale deed but did not prefer any suit though he was aware 
of the sale deed executed in favour of respondents – Suit was 
preferred, on the last date of limitation, after a long delay – Thus, 
the appellant not entitled for specific performance – Judgment 
and decree passed by the High Court upheld. [Paras 6, 8, 12, 
13, 18, 19]
Case Law Cited
Shanmughasundaram & Ors. v. Diravia Nadar (dead) by Lrs. & 
Anr. [2005] 2 SCR 649 : AIR (2005) SC 1836; Janki Vashdeo 
Bhojwani & Anr. v. Indusind Bank Ltd. & Ors. [2004] Supp. 6 
SCR 681 : (2005) 2 SCC 217; Man Kaur v. Hartar Singh Sangha 
[2010] 12 SCR 515  : 2010 (10) SCC 512; A.C. Narayanan v. 
State of Maharashtra & Anr. [2013] 11 SCR 80 : (2014) 11 SCC 
790; K.S. Vidyanadam v. Vairavan [1997] 1 SCR 993 : (1997) 3 
SCC 1; Azhar Sultana v. B. Rajamani & Ors. [2009] 2 SCR 537 : 
(2009) 17 SCC 27; Saradamani Kandappan v. S. Rajalakshmi & 
Ors. [2011] 8 SCR 874 : (2011) 12 SCC 18; Atma Ram v. Charanjit 
Singh [2020] 3 SCR 697 : (2020) 3 SCC 31

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