Specific Performance Suit Can't Be Decreed Based On Power Of Attorney Holder's Deposition About Plaintiff's Readiness & Willingness: Supreme Court

The Supreme Court held that wherein the plaintiff is required to prove his readiness and willingness to perform the contract, then the suit for specific performance of the contract cannot be decreed based on the deposition made by the plaintiff's power of attorney about the plaintiff's readiness and willingness to perform a contract.

“We are of the view that in view of Section 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the plaintiff.”, the bench comprising Justices Pankaj Mithal and Prashant Kumar Mishra said.

If a plaintiff, in a suit for specific performance, is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. Having failed to step into the witness box to prove his readiness and willingness to perform his part of the contract would result in rejection of the suit of specific performance due to non-fulfillment of the requisites of Section 12 of Specific Relief Act, 1963, the Judgment authored by Justice Prashant Kumar Mishra clarified.

Power of Attorney Holder Cannot Depose For Principal In Respect of Matters of Which Only Principal Can Have Personal Knowledge

The court held that a plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness.

The term 'readiness and willingness' refers to the state of mind and conduct of the purchaser (plaintiff), as well as his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness of his principal.

“In other words, if the Power of Attorney Holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined.”, the court observed.

Background

A suit for specific performance of the contract to execute an agreement to sale was filed by the plaintiff against the defendants. The readiness and willingness of the plaintiff to perform the contract wasn't proved by the plaintiff but by his power of attorney, who didn't have knowledge about the plaintiff's readiness and willingness to perform the contract and the transaction that took place between the plaintiff and defendant regarding the suit property.

The trial court decreed the suit in favor of the plaintiff, however, the decision of the trial court was reversed by the High Court on the ground that the appellant/plaintiff had failed to appear in the witness box, the testimony of his Power of Attorney Holder cannot be read as statement of the plaintiff in a civil suit of this nature.

Following this, the plaintiff/appellant approached the Supreme Court.

Also Read Related Report: Power Of Attorney Holders Cannot Give Evidence About Facts Which Are Within Personal Knowledge Of Persons They Represent : Supreme Court

Case Title: RAJESH KUMAR VERSUS ANAND KUMAR & ORS., CIVIL APPEAL NO. 7840 OF 2023

Citation : 2024 LiveLaw (SC) 407

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