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1 - 10 of 25 (0.27 seconds)Section 53A in The Transfer Of Property Act, 1882 [Entire Act]
M/S. Kailash Nath Associates vs Delhi Development Authority & Anr on 9 January, 2015
Also, Supreme Court has further clarified in
Kailash Nath Associates case (supra) that it is very
much possible that forfeiture of an amount can be in
the nature of penalty and if the amount which is allowed to
be forfeited under the contract is in the nature of
penalty then Courts are empowered to treat the
amount of liquidated damages (earnest money) as
one in the nature of penalty clause and that earnest
money amount only represents the upper limit of damages
CS No.545/16 Page 22 of 24 ADJ-01/NE/KKD/Delhi
which are allowed to be forfeited in terms of the forfeiture
clause, and actual forfeiture only of a lesser and a
reasonable amount should be allowed instead of the large
amount/penalty as stated under a contract as being entitled
to be forfeited and that too merely because a contractual
clause allows such a forfeiture."
M.C. Luthra vs Ashok Kumar Khanna on 27 February, 2018
36. These judgments came up for discussion in a recent
judgment of Hon'ble Delhi High Court in the case of M.C. Luthra v.
Ashok Kumar Khanna, 2018 SCC OnLine Del 7462. Para 20
of the said judgment is reproduced herein-under:
Section 53 in The Transfer Of Property Act, 1882 [Entire Act]
M/S J.P.Builders & Anr vs A.Ramadas Rao & Anr on 22 November, 2010
These are the meanings of the expressions 'readiness'
and 'willingness' as held in various judgments of the Supreme
Court and one such judgment of the Supreme Court in this
regard is in the case of J.P. Builders and Another
v. A. Ramadas Rao and Another, VIII (2010) SLT 546 IV
(2010) CLT 492 (SC)(2011) 1 SCC 429. We will therefore have
to examine as to whether the plaintiff was always ready and
willing to enter into the sale deed till the time of the present final
arguments and from the date of entering into the agreement to
sell. At the time of considering this issue, no doubt, it is borne in
mind that the plaintiff has to be willing to perform its part of the
contract only when the defendants have obtained the NOC,
however, Section 16(c) of the Specific Relief Act requires not
one but two aspects to be proved by the plaintiff i.e. both
readiness and willingness. In law the aspect of willingness
being there is one which is to be acted upon by making the
payment when the defendants make themselves capable of
performing the agreement to sell by taking the
necessary NOC, however, as contrasted from
willingness, readiness is an aspect which has to be
independently proved. Readiness pertains to the
financial capacity of a proposed purchaser to make
payment of the balance consideration under the agreement
to sell. The issue with respect to readiness and willingness is
overlapping with the issue to defendants being guilty of breach
of contract, but, the expression "has always been ready and
willing" is an expansive expression not only encompassing
therein that it has to be shown that the defendants are
guilty of breach of contract, but also that it has to be shown that
plaintiff had necessary financial capacity to pay the balance
sale consideration at all points of time after the agreement to
CS No.545/16 Page 15 of 24 ADJ-01/NE/KKD/Delhi
sell was entered into. The aspect of a plaintiff/proposed
purchaser always being ready to perform its part of the contract
i.e., having the necessary capacity to pay the sale
consideration is because specific performance is a
discretionary relief and an alternative to the relief of
grant of damages...."
N.P. Thirugnanam (D) By Lrs vs Dr. R. Jagan Mohan Rao & Ors on 12 July, 1995
23. It is well settled that the remedy of specific performance
being an equitable relief, the burden is always on plaintiff to prove the
positive facts of readiness & willingness on his part and defendant is
not required to prove the negative. Reference may be had to the
judgment titled as N. P. Thirungnanam v. R. Jagan Mohan Rao,
(1995) 5 SCC 115. Paragraph 5 of the said judgment is
reproduced herein-under:
Fateh Chand vs Balkishan Das on 15 January, 1963
35. Regarding forfeiture of the earnest money paid under an
Agreement to Sell, earlier there were two divergent views taken by
Hon'ble Supreme Court. One in the case of Fateh Chand v.
Balkishan Das, 1964 (1) SCR 515 wherein it was held that once
CS No.545/16 Page 21 of 24 ADJ-01/NE/KKD/Delhi
loss is not pleaded and proved to be caused to the seller, then earnest
money amount cannot be forfeited.
Satish Batra vs Sudhir Rawal on 18 October, 2012
"20. All the judgments of the Supreme Court
which have been relied upon in Satish Batra's case
(supra) are of a Bench strength lesser than the Constitution
Bench strength of the Supreme Court in Fateh Chand's
case (supra) and the law is well settled that it is the
judgment of the larger Bench of the Supreme Court which
will prevail over the judgment of a Bench strength of lesser
number of judges.
K.S. Vidyanadam And Ors vs Vairavan on 6 February, 1997
32. Till the issue is considered in an appropriate case, we can
only reiterate what has been suggested in K.S. Vidyanandam & Ors.
Vs. Vairavan 1997(1) SCR 993 that "The courts, while exercising
discretion in suits for specific performance, should bear in mind that
when the parties prescribe a time/period, for taking certain steps
or for completion of the transaction, that must have some
significance and therefore time/period prescribed cannot be ignored.
The courts will apply greater scrutiny and strictness when
considering whether the purchaser was "ready and willing" to
perform his part of the contract. Every suit for specific performance
need not be decreed merely because it is filed within the period of
limitation by ignoring the time limits stipulated in the agreement. The
courts will also "frown" upon suits which are not filed immediately after
the breach/refusal. The fact that limitation is three years does
CS No.545/16 Page 20 of 24 ADJ-01/NE/KKD/Delhi
not mean that a purchaser can wait for 1 or 2 years to file a suit
and obtain specific performance. The three-year period is
intended to assist the purchasers in special cases, as for example,
where the major part of the consideration has been paid to the vendor
and possession has been delivered in part performance, where
equity shifts in favour of the purchaser."