SMT. THAKAMMA MATHEW versus M. AZAMATHULLA KHAN AND ORS.

Citation: [1992] SUPP. 3 S.C.R. 544 · Decided: 15-12-1992 · Supreme Court of India · Bench: M.N. VENKATACHALIAH · Disposal: Appeal(s) allowed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
SMT. THAKAMMA MATHEW 
v. 
M. AZAMATHULLA KHAN AND ORS. 
DECEMBER 15i 1992 
[M.N .. VENKATACHALIAH, S.C. AGRAWAL 
AND DR. A.S. ANAND, JJ.) 
• 
? 
Specific Relief Act, 1963 :'Sections 16, 16(c), 31-Relief of specific 
performance-Grant of decree-Conditions to be fulfilled. 
Limitation Act, 1963 : Article 54-Suit ·for specific peef ormance-
Limitation Act-Applicable. 
Code of Civil Procedure, 1908 : Order 7 Rule 7-High Court-lnvoldng 
discretionery power-Not right-Powers conferred to the court does not 
D enable-Overriding statutory limitations in section 16 Specific Relief Act and 
section 54 Limitation Act. 
Transfer of Property Act, 1988 : Section 53-A.-Doctrine of part perfor-
mance-Essential requirements-What are. 
E 
Practice And Procedure-Appeal-Cross appeal-Di~posal without 
F 
G 
considering the cross appea/-:-Matter remitted for reconsideration. 
The property in dispute was purchased by the appellant from one D. 
Ponnurangam under a registered sale deed dated June 29, 1972. The 
appellant agreed to sell the said property _to the respondent -· defendent 
for a sum of ·Rs.90,000 by agreement dated November 12, 1974. The 
defendent paid a sum of Rs.3,000 as advance on the date of execution of 
the agreement and further paid Rs.15,000 on November 15, 1974. Last date 
~ 
for finalisation of tlie transaction was January 11, 1975 as per the agree-
ment. 
According to the appellant about a fortnight after the execution of 
the agreement the defendent obtained possession of the property on the 
ground that it was required temporarily in connection with a marriage. 
On March 10, 1975, the appellant sent a notice for cancellation of the 
agreement and forfeiture of the advance as the sale had not been com-· 
H pleted within the prescribed period. The defendent was called upon to 
544 
THAKAMMA MATHEW v. M. A KHAN 
545 
deliver possession and to pay damages for use and occupation at the rate A 
of Rs.500 P.M. 
The appellant filed a suit for declaration that the agreement stands 
cancelled and for possession of the suit premises and for damages. The 
trial court by its order dated September 12, 1984 decreed that the agree'-
ment is cancelled and directed the appellant to refund the advance with B 
interest and further directed the. defendent to pay Rs.215 as past damage 
and Rs.65 per month as future damage. 
Aggrieved by the Judgment and decree the defendent as well as the 
appellant filed cross appeals before the High Court. Allowing the C 
defendent's appeal, the High Court, taking into consideration the fact that 
the matter was pending froin 1975 and defendent being in possession was 
entitled to ask for registered sale deed executed by the appellant, which 
were only legal formalities, exercised their discretion under Order 7 Rule-
7 C.P.C. and directed that the defendent shall pay the unpaid balance of 
consideration with 15% interest P.A. from 15.11.1974, till the date of D 
payment of deposit. The High Court did not consider the cross appeal of 
the appellant. 
Being aggrived by the High Court's decision the appellant filed 
appeal in this court contending that: 
E 
(a) The High Court was not right in granting relief under 0.7 R. 7 
C.P.C; 
(b) the suit was barred by limitation; 
(c) the essential requirements of S. 16 of Specific Relief Act was not 
fulfilled; 
( d) the High Court erred in proceeding on the basis of the principle 
of part performance; and 
(e) the High Court had disposed of the appeal of the respondent and 
had dismissed the suit of the appellant without considering the 
cross appeal filed hy the appellant 
AlloWing the appeal, this Court 
F 
G 
H 
A 
B. 
c 
546 
SUPREME COURT REPORTS [1992} SUPP. ~ S.C.R. 
HELD: 1. A person seeking the relief of specific performanc~ has to 
satisfy that section 16 of Specific Relief Act does not bar the ·grant of such 
a relief and the person against whom the decree is passed can show •hat 
relief of specific performance cannot be granted in view of the provisions 
of the section. Clause (C) of the Section postulates that the person seeking 
specific performance of the contract must file a suit wherein he must 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. [551-H, 552-A,B] 
2. A suit for specific performance of contract has to be filed within 
three years of the date fixed for the performance or if no such date is fixed, 
where plaintiff has no

Excerpt shown. Read the full judgment & AI analysis in Lexace.