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1 - 10 of 15 (0.29 seconds)Ganesh Shet vs Dr. C.S.G.K. Setty & Ors on 15 May, 1998
26. Where in a suit for specific performance of contract, the contract on which relief is based is found to be not a concluded contract, relief cannot be given on the basis of another contract alleged by the plaintiff to be a concluded contract, for which we make reference to the decision of Supreme Court in Ganesh Shet v. Dr. C.S.G.K. Setty, . The facts in the said case were that the property was owned jointly by three brothers. The purchaser clearly stated that at their meeting with one of the brothers, he told that he is yet to consult his two brothers about sale consideration. Tenor of that sale consideration was not finalised in their meeting. It was held that there was no concluded contract between the parties on which decree for specific performance could not be passed. In the said case, Supreme Court held that in a suit for specific performance the evidence and proof of agreement must be absolutely clear and certain. Reference was made in the said decision to Pomery on "Specific Performance of Contracts' (3rd Edn) (para 159) wherein it is stated clearly that a "greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in contract; which is to be the basis of an action at law for damages. An action at law is founded upon the mere non-performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement witexactness. The suit in equity is wholly an affirmative proceeding. The mere fact of non-performance is not enough; its object is to procure a performance by the defendant and this demands a clear, definite and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced...."
Smt. Mayawanti vs Smt. Kaushalya Devi on 6 April, 1990
25. Learned counsel also referred to the judgment of the Supreme court in Smt. Mayawanti v. Smt. Kaushalya Devi, wherein it was observed in paras 8 and 19 as under:"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation, the order of specific performance is to enforce that obligation.
The Specific Relief Act, 1963
Nanak Builders Andinvestors Pvt. Ltd. vs Vinod Kumar Alag on 24 October, 1990
16. There can be no dispute that there can be an oral agreement which can be valid and enforceable contract. However, in the said judgment it was observed that where parties contemplate a writing to complete the contract, it will be necessary that the contract is reduced into writing. In the present case, there is no finality to any of the writings. Nor even the oral arrangement arrived at has been set down which could be stated to be finalised.
The Transfer Of Property Act, 1882
Section 10 in The Indian Contract Act, 1872 [Entire Act]
Section 20 in The Specific Relief Act, 1963 [Entire Act]
The Sale Of Goods Act, 1930
Shankarlal Narayandas vs The New Mofussil Co. Ltd. on 13 March, 1946
Learned counsel also referred to the judgment of the Privy Council in Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. and Ors. for the same purpose.