5033/2011 and Review Petition (RP)
No 200036/2021
respectively, by which, the High Court has allowed the said appeal preferred by respondents herein – original defendants and has quashed and set aside the judgment and decree passed by the learned Trial Court decreeing the suit for specific performance, the original plaintiff has preferred the present appeals. Therefore, the defendants denied readiness and willingness on the part of the plaintiff – buyer to perform his part of the contract. That pursuant to the judgment and decree passed by the learned Trial Court, the buyer – original plaintiff deposited an amount of Rs. Parmeshwar, learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the Hon’ble High Court has materially erred in reversing the findings of the Trial Court on readiness and willingness of the appellant. He has prayed that the following aspects emerging from the evidence on record be considered, while considering the issue as to readiness and willingness on the part of the appellant to perform his part of the agreement dated 13.03.2007: – (i) That the appellant specifically averred in the plaint that he is ready and willing to perform the agreement dated 13.03.2007; (ii) That in the suit notice dated 20.11.2007 the plaintiff specifically averred that he is ready and willing to pay the balance sale consideration; (iii) The plaintiff in his evidence stated that he is ready and willing to perform the agreement.
3.3 Learned counsel appearing on behalf of the appellant – buyer has further submitted that as such the defendant took a dishonest stand before the learned Trial Court and denied the execution of the agreement. 5 It is next contended by learned counsel appearing on behalf of the appellant that as such there are concurrent findings recorded by the learned Trial Court as well as the High Court on execution of the agreement to sell by defendant No 1 and to the effect that Rs. 7 It is submitted that in the case of Beemaneni Maha Lakshmi (supra) it was observed and held by this Court that failure on the part of the vendee to “demonstrate” that he was having sufficient money with him to pay the balance sale consideration by the date of his evidence is not of much of consequence. 1 Learned counsel appearing on behalf of the respondents – seller submitted that cogent reasons have been assigned by the High Court while reversing the judgment and decree passed by the learned Trial Court and reversing the findings as to the readiness and willingness on the part of the appellant.
Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
At the outset, it is required to be noted that the learned Trial Court, on appreciation of evidence on record, specifically recorded findings on readiness and willingness on the part of the plaintiff to perform his part of the agreement.
The plaintiff also examined two witnesses, PW-2 and PW-3, who were attestors to agreement to sell dated 13.03.2007, who specifically stated that in July, 2007, the plaintiff approached the defendants and asked them to accept the balance sale consideration in cash, to that also there is no cross-examination. 1
From the impugned judgment and order passed by the High Court, it appears that the reasoning given by the High Court is that the plaintiff has not proved that he had the cash and/or amount and/or sufficient funds/means to pay the balance sale consideration, as no passbook and/or bank accounts was produced. An adverse inference could only have been drawn against the plaintiffs-respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. It is observed and held that unless the plaintiff was called upon to produce the passbook either by the defendant or, the Court orders him to do so, no adverse inference can be drawn.
Also Read: https://newslaw.in/case-type/civil/taxation-of-engineering-design-drawings-goods-or-services/
Considering the circumstances narrated hereinabove, we are of the opinion that the High Court has materially erred in quashing and setting aside the judgment and decree passed by the learned Trial Court by reversing the findings on the readiness and willingness of the appellant. 9,74,000/- deposited by the plaintiff on 31.10.2011, pursuant to the judgment and decree passed by the learned Trial Court, with the interest accrued thereon, which shall be paid to defendant No 1 by an account payee cheque. SHAH)…………………………………J.
Case Title: BASAVARAJ Vs. PADMAVATHI (2023 INSC 19)
Case Number: C.A. No.-008962-008963 / 2022
