Defendant Who Never Questioned Financial Capacity Of Plaintiff To Perform His Part Of Obligation Under Contract Cannot Raise It For First Time In Appeal- Karnataka HC
A Karnataka High Court Bench of Justice HB Prabhakara Sastry observed that the Defendant who never questioned the financial capacity of the Plaintiff to perform his part of obligations under the contract cannot question it for the first time in an appeal.
The Bench held, "The contention of the alleged financial incapacity the plaintiff was taken by the appellant in his argument in this appeal. Admittedly, neither the defendant nor the Court had directed the plaintiff to produce any documents including the Bank passbook to show the financial capacity of the plaintiff to pay the balance sale consideration. Therefore, the argument of the learned counsel for the appellant on the alleged financial incapacity of the plaintiff, is also not acceptable."
The Court has directed the plaintiff in a specific performance suit to pay additional consideration towards the suit property.
In that context, the Court said that, "considering the contention of the defendant that the very purpose of he entering into a contract has not been materialised and that hardship would be caused to him in case if the specific performance is ordered, I am of the view that to do the complete justice, if the plaintiff is directed to pay a further sum of Rs. 5,00,000/- to the defendant towards sale consideration, which will be in addition to the balance sale consideration of a sum of Rs. 4,00,000/- payable to the defendant under the agreement".
Counsel Vasanth V Fernandes and Counsel Veena Kumari M appeared for the appellant, while Counsel T Srinivasan appeared for the respondent.
In this case, the defendant had offered to the plaintiff to sell the suit schedule property to meet his legal and financial necessity and clear family debt. The plaintiff paid an advance consideration in the sale value of a sum of Rs.10,00,000/- to the defendant, and it was agreed that the defendant should execute the sale deed and register it in favour of the plaintiff within three months from the date of the agreement for sale after receiving the balance sale consideration of a sum of Rs. 4,00,000/-.
However, although the plaintiff was ready and willing to perform his part of the contract, the defendant did not come forward to execute and register a sale deed in his favour.
The Trial Court directed the defendant to execute and register a regular sale deed in respect of the suit schedule property within three months from the date of the judgment by receiving the balance sale consideration. Aggrieved by the same, the defendant preferred an appeal.
Noting the hardships faced by the plaintiff, the High Court observed that the Trial Court had rightly exercised its discretion decreeing the suit and ordering for specific performance of the agreement in favour of the plaintiff. In that context, it was said that "The said discretion exercised by the Trial Court under Section 20 of the Specific Relief Act, 1963 cannot be held to be unjustified or arbitrary. As such, the impugned judgment and decree does not warrant any interference at the hands of this Court so far as decreeing the suit of the plaintiff for specific performance."
The Court proceeded to consider the issue of whether the defendant was entitled for an additional amount apart from the contractual amount.
The written statement of the defendant was referred, wherein he had contended that the value of the property as on the date of the alleged agreement was more than Rs. 50,00,000/-, as such, he would not have agreed for sale of the said property for a paltry sum of Rs. 14,00,000/-.
Subsequently, the Court accepted the argument of the defendant that the very purpose of he entering into a contract has not been materialised and that hardship would be caused to him in case if the specific performance was ordered, and ordered that the plaintiff pay a further sum of Rs. 5,00,000/- to the defendant towards sale consideration, which will be in addition to the balance sale consideration of a sum of Rs. 4,00,000/-.
Cause Title: S Selvaraj v. K Balchand
