• Regarding specific performance

Sir, 
Recently after arguments, my lawyer briefed court regarding plaintiff failure of readiness and willingness.. 
Also elaborated court plaintiff never had bank balance (As per plaintiff statement provided in court) to pay balance amount either during agreement time or while filing case.. 

Now Plaintiff is filled affidavit stating she will deposit balance consideration (61 Lakh) after 6 years in 'Cash' to court to demonstrate her readiness and gudge told in next date same will decided... 

Can court allow to pay money at this stage after completion of arguments from both sides.. 

Is paying court fee as cash 61 lakh allowed..
Asked 4 years ago in Property Law
Religion: Hindu

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10 Answers

Your lawyer contention is absolutely correct 

 

plaintiff did not have funds to make payment as evident from his bank statements during tenure of agreement 

 

 

plaintiff cannot at this stage after period of 6 years offer to make payment 

 

Ajay Sethi
Advocate, Mumbai
94910 Answers
7570 Consultations

5.0 on 5.0

Dear Sir,

It seems you are misconceived.  The plaintiff must show his readiness and willingness as on the date of legal notice or prior to it that too prior to expiry of time limit to execute the regular sale deed. The court may allow to deposit by way of demand draft but it does not mean that plaintiff has proved his case. It depends the evidence as the dates as mentioned. The plaintiffs readiness and willingness as on today is on no significance. As on that date his one contention was negative as per his own bank statements. Nothing to worry. Suit may decreed partly and not for specific performance but for refund of advance amount with interest.

 

Kishan Dutt Kalaskar
Advocate, Bangalore
6136 Answers
487 Consultations

4.8 on 5.0

1. That plaintiff does not have enough balance in his bank account to pay the sale consideration is not a ground to dismiss the suit as he can arrange the consideration through alternative sources of income.

2. If plaintiff has stated that he will deposit the remaining sale consideration after 6 years then suit is liable to be dismissed as suit cannot be adjourned for 6 years.

 

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

6. In a suit for specific performance, a proposed purchaser must necessarily prove his financial capacity, and which is a sine qua non as per Section 16(c) of the Specific Relief Act, 1963. Section 16(c) of the Specific Relief Act requires that a proposed purchaser must always be and continue to be ready and willing to perform his part of the contract. Readiness has been interpreted to mean financial capacity. Financial capacity must exist to pay the balance sale consideration right from the time of entering into of the agreement to sell till the disposal of the suit. This is held by the Supreme Court in the judgment in the case of N.P. Thirugnanam (D) by L.Rs. v. Dr. R.

Jagan Mohan Rao and others, (1995) 5 SCC 115 and the relevant para 5 of this judgment reads as under:-

"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract."

Ajay Sethi
Advocate, Mumbai
94910 Answers
7570 Consultations

5.0 on 5.0

If the court is permitting her to pay the balance of sale consideration amount then she may decide about the mode of payment.

Just becasue your lawyer pointed out that she do not hav bank balance that she will not be able to buy the property nor that your lawyer is an authority to establish her ready and willingness to proceed with the specific performance in the contract to buy the property.

You may have to wait for the court to decide, hence the anxiety in between  has no answer

T Kalaiselvan
Advocate, Vellore
85109 Answers
2215 Consultations

5.0 on 5.0

The readiness to pay the balance of sale consideration amount before court is part and parcel of the suit and there is no legal infirmity in it. 

You should remember that the suit itself is for that only hence the court may give her a chance to prove her ability since your lawyer has raised a doubt about it.

 

T Kalaiselvan
Advocate, Vellore
85109 Answers
2215 Consultations

5.0 on 5.0

Court can permit but her willingness will examine from the beginning and not of at present.

Her incapacity to perform her part when case was filed will be examine.

Recently SC has held mere allegation of financial capacity to perform part is not relevant.

Yogendra Singh Rajawat
Advocate, Jaipur
22669 Answers
31 Consultations

4.4 on 5.0

Cash of so much amount will be treated as illegal as per the IT act. Court may insist you to pay through dd in this case

Prashant Nayak
Advocate, Mumbai
32054 Answers
183 Consultations

4.1 on 5.0

1. Yes court can allow the payment of balance amount after such a long time.

2. But court can also order plaintiff to pay interest on that amount for delayed payment if delay was due to her default. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

court cannot allow her plea to pay after 6 years. 

 

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

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