IN THE HIGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 18TH DAY OF DECEMBER: . PRESENT THE HONBLE MRJUSTICE 4- _ " AND1__ . V THE HON'BLE MRs.JUs_TIcE'"B,V.NAG.Afe;ATHNA; R.F.A.NO."i5 64 /12003-. A 1 BETWEEN: " in ' ' K SSUBRAMANIAM S/O LT SAD1YAN_ MAJOR R/A # 2683., =4THf _(:.;ROss_, 1gTH- 1»/1:4 . HALIIS S'iT'AG.EV_ ' BANGA;OR£;g5€;4Q:V_Q38,_"' " " ... APPELLANT (By Sri: M HOT,LAgsz.. ADVS.] ' .:."1" R G' S HAMACHANDAR R AGED ABOUT 55 YEARS R'/A-.#"'2, NEW ANDHRA BLOCK ,. LAXMIPURAM, ULSOOR 13.AiNGALORE--560 O08 H GAYATHR1 BABU W/O R BABU AGED ABOUT 41 YEARS R/A # 2, NEW ANDHRA BLOCK LAXMIPURAM, ULSOOR BANGALORE--56O O08 ... RESPONDENTS
{By Sri: AMARESH A ANGADI, ADV. FOR C/R
R-1 AND R-2}
RFA FILED U/S. 96 OF CPC_-*”;’&(D'{AIl\T$lT’-
JUDGMENT AND DEGREE I)’I’.”22«_l 1,103 IN
O.S.NO.10005/95 ON THE FILE THEfivX;'{VIiI.I’ABD’L. CITY
CIVIL JUDGE, MAYOHALL UN1T,*.eANGALoRE–,~ ..(cCc:”H..-V2’siV
DECREEING T}-IE SUIT F0R.s1§Ec1F1r:_, ‘PERF0RM.A1§Ic£;.
This RFA having.beenVAtheai’d and reservedvvvgfor orders
on this day, the NAGARA’.IHI’.JA J, ,pr._Qn_Ou.nced the following:««
This5appea.l”is”ifiledebytlltliie*defendant by challenging the
Judgment _vDe:eflee:D:passed l.i§i”‘e.s.No. 10005/1996 by the
Mayo Hall Unit, Bangalore.
The said was fi1ed’*°l:)y the plaintiffs seeking specific
0fADa’r1″”*agreement dated 12.8.1993. The trial
‘ the suit and being aggrieved by the said
Jzzdgnaenttldand Decree the defendant has preferred this
D . V. aPI3eal.l V
.5 ‘~.
4%. D For the sake of convenience the parties shall be
V hmteferred to in terms of their status before the trial Court.
?>..
3. According to the plaintiffs ‘_ the defendant is the
absolute owner of the property bearing No.2683 situated in
HAL If Stage, BangaIore~38, more fully descritnecfin the
schedule and he had acquired the said site
Development Authority by a registered
8.3.1989 that as per sanctionecifplalni dated’ .i:5′;3fp,.19s9 he 7
had put up a ground floor and firstfloor buildji_ng.*
Development Authority had ‘da.e:livered. p–osses_sionp ofthe site
as per possession certi_iicatei”datv_ed According to
the plaintiffs the plarties _.yme”ta..v”‘through advocate
Sri.H.N.Srini_vas’ Anand ands the”s’ale agreement was reduced
to a VflRs.7,1O,OO0/– and earnest
rnoney_of paid on 26.6.1993. That another
sum of paid on 12.8.1993 and further
Rs.2,2O’O’,’G–0–0/– was paid by way of advance by
‘ .-llB:.E_2;.,i_993a,ifthereby total advance amount of Rs.4,70,000/–
“wast ‘jflizcording to the plaintiffs it was agreed that the
balance; sale consideration amount of Rs.2,40,000/– was to
if ible’«,paid at the time of registration of the sale deed. The
fgdefendant had to obtain the necessary Income Tax clearance
‘certificate from the Income Tax Authorities and the
defendant had also stated at the time of agreement and
assured that the schedule property was not alienated or
55’.
encumbered, but that he had taken a loan from the LIC of
India for the purpose of construction and the defendant had
promised to discharge the said loan amount outhhof the
second advance of Rs.2,00,000/- to be paid
and that the defendant had also promised to ass:ignt V’
of the plaintiffs the amount paid:’bj} ‘tl1e_tenantAlV:i’1i.a_sum.”of T
Rs.1,50,000/–.
4. According to the plaintiffs_}’~ defend-ant’ after the
clearance of the loan ‘secure the original
documents of title.,ancf._’ the plaintiffs. The
defendants lo.anlcum–additional advance of
Rs.2,(l0p,(l00/rover the documents of title and
discharge°certifica._tethe loan. The plaintiffs have stated
wereffreadgwand willing to perform their part of the
‘ ;cont.ra::t’andaocording to them the sale deed wasirqegistered
‘in their’ by the defendant.- That the ground floor of
the schedule property which was in occupation of the
if ideferndant and the first fioor of the said property was in
Afoocupation of a tenant and that the ground floor was vacated
V “lay the defendant and possession was given to the plaintiffs
after entering into the agreement and since the ground floor
was in dilapidated condition, the plaintiffs were permitted to
iv
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carry out renovation and repair Work and according to the
plaintiffs a sum of Rs.50,000/– was spent for the same. But
the defendant locked the doors of the ground floor and
prevented the plaintiffs from using it and them
fact even failed to obtain Income Tax clearancejcevrtificattet’
and he did not come forward tom execute f«s_a_le”:Vdee’d.
According to the plaintiffs, ~ den:4a’n.ded,
Rs.18,00,000/- for the S8_]~fL:\”~~K,«)\f then. .sche’c_1ulew’premises
whereas the plaintiffs mvas al.l”a1ofnglVre.ady and”Wi’1Vling to pay
the balance sale considetration.lof:’Rs’Q — on the date
of registration .5_ale;_’deed;:: _Ttia_t.._the”;plaintiff sent a legal
notice ‘dated the defendant, but the defendant
did not cornplv and therefore, the suit for
specific pe’rforrnar;.ce’~.afnd”fpermanent injunction Was filed.
‘ is’e.rv1ce of notice from the trial court, the
‘defendari~tf: appeared and filed his Written statement
adhniittivnghvthat an agreement of sale which the plaintiff was
“c=nt_erevd’ into on 12.8.1993 that he had received a sum of
‘”‘Rs.”7:0,000/~ as advance on the said date and that the sum of
if “”Rs.2,00,000/- was received as the second advance on
12.8.1993, but the plaintiff had failed to pay a sum of
Rs.2,00,000/- towards the third advance as agreed on or
ta
c
M6…
before 30.9.1993. The defendant had handed over the
original documents to the plaintiff to enable the plaintiffs to
produce the documents before the HDF-‘C or other financial
institutions to avail a loan and colnplete the traiisaction.
The defendant denied that in part perform*an.cfe’__’p_olf Jtlie
agreement of sale dated 12.8.1993, posseSSi0lf1~–..wasp’given
the plaintiffs as far as the ground floor’
the defendant had spent huge surns of money for f’its”‘.re’pai1″ag
and renovation. According to ‘Vthpeldefendant’,’ the plaintiff was
never ready and willingpto hi’s..ppart’of contract. In
fact the plaintiff did not with him for
paying the if The defendant had agreed
to seltthe. fi’or_ffa.:llesser price as he was in urgent
need of fu”n.ds”for’setting”up his son’s business. However, in
thfe9.abs:en.ce of Vltrie—-plaintiff coming forward to complete his
3 .»part_of:tl3e»transaction, the defendant was put to loss and
‘Lordship’.n*f’.I’j_ V
2 V» ” 9n the above rival pleadings. the trial court framed the
following issues:
1) Whether defendant proves that plaintiffs failed to
pay Rs.2,00,000/~ as further advance on or
before 30.9.93 as per clause~3 of the agreement
dated 12.8.93′? jg
/’f.
3}
4)
_l7s
Whether plaintiff proves that he was ready and
willing to perform his part of the contract?
Whether plaintiff proves that the defendant
handed over original documents of title to the
plaintiff in part performance of the agreemento_f_
sale dated 12.8.93′?
Whether plaintiff proves that he » is
possession of the ground floor of -the
property?
Whether plaintiff proves that
Rs.50,000/– for carrying out renovation,’repairsfi.
and painting €llC., to tphe_grourid_ floor’? A .
Whether the plaintiff proves that”the”ideferrdant
locked the doors of ground “t3.oor_.” and
prevented the vplaicntiff fron;…_mai=:ing use of the
said ground floor “as. c’On’te1.idedrV:lintpara–7 of the
Dlaint’? – 1
Z’-.VWhethei”,~plaiinti’ff°vp_roves that the defendant
‘demaIV1ded*Rs.Vf2′ vlakhsV.vin excess of amount as per
agreement o’f.’sale–._ to perform his part of the
contr.act’?p
E\?ff\’TnetherAAV”‘defen’dant proves that the plaintiff
‘misei”a_bly failed to perform their part of the
1 ‘ieont1’ac’t—-_and that they did not pay as per the
9)~{
ll}
-a.greeme.rit, as contended in para 8 of the W.S’?
_’.3Vl’;€tt”l’1Ae1′ the defendant proves that he agreed to
, sell the suit property to the plaintiffs for a lesser
price since he was in urgent need of money as
contended in para~8 of the W.S’?
Whether plaintiff proves that he was ready and
willing to pay the balance amount of sale
consideration within the stipulated period’?
Whether the defendant proves that time was the
essence of contract and that plaintiff agreed to
pay and complete the sale on or before 25.1 1.93.
failing which the defendant IS entitled to forfeit
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V8″
Rs.70.000/- paid as earnest as per clause 14(3)
of the agreement?
12] Whether the defendant proves that the plaintiffs’:
failed to furnish the draft sale deed to_”‘th_e.
defendant so as to enable him to obtain income , ‘
tax certificate to convey the suit property”? if f’
13] Whether the plaintiff proveathatphefusold”h.i’s car]; .
to pay the initial earnest s-;um_to jiihe defendant f
and that they borrowed ‘further amount _
security of car garageybyé paying heavy }}1’1’t”Cr€St?
14] Whether defendant proves’ that hoand’ plaintiff
ought to have applied _”to”«.the Ingome” tax
authorities undei*~._Ser.269of,U;–L.Act and U/s
269 of UL Act for§.o}btaining’»»no objection
certificate from Income.’ta:>k: a’11th’-Qifitlés in terms
of the Income T*I”a§§”aVutho;V’it_iesV.iny terms of the
Income taagby1’Act *19E_Si–~as”cont.end_ed in para–12[a]
of the’xv.s3;3__-.i_ ~ 4-
15] Wiiflihefd¢fEndafit…_pr’ovies that the agreement of
salehas. bec:om’e«voi.d and that this court has not
jurisdiction totryfthe suit’?
16);” ” lVVhet1″i’er_ plaintiff proves that he is ever ready
;a_I1d.__ willing’v~ts«’perform his part of the contract
and that they approached the defendant time
“and.v4″%lgain to pay the balance amount of
A “co’nVsidera”tion of Rs.2,40 lakhs?
17′). ..__W1″iei”.her the plaintiff is entitled to the relief
.. prayed for’?
W ‘» 1;8′}–..A What decree or order’?
In support of his case, the plaintiffs, examined
themselves as PW.1 65: 2 and examined PW.3 to 5 and got
marked Ex.P1 to P4 While the defendant examined himself as
f/;’.
,9″
DW.l and another person as DW2 and got marked Ex.Dl to
D8.
8. On the basis of the said evidence,
answered issue Nos.l, 8, 9, 11 toWl.5 in the”ne_gative;,issvue’ » L’
Nos.2 to 4 in the affirmative as Vwell::’as :’iss’i1_e’«.i\ios.lEl;f»,,1ACi’,igl6
and 17 in the affirmative and«..i_ssue’-Nos.5 Eiivill”/”Av.t:{.3a.rtly..3in lthei”
affirmative and decreed the the «.plaintiffs. Being
aggrieved by the saivd-..;..Jl:L1dgn1e;ntll.a–n’d..Debcree the defendant
has preferred this appealtg ‘V
9. “haej;re learned counsel for the appellant
and the learned ‘c’o:_un’s«el”forthe respondents.
is subrnittedlon behalf of the appellant that he had
‘ .V.a’greAe’d:to the suit schedule property only because he was
.’it1″-widirel of funds to set up his unemployed son in
businesslthat in order to meet his urgent necessity, he had
~ agreed to sell the schedule property at a lesser price. As per
Agthe terms of the agreement of sale, the entire sale
transaction had to be completed by 25.11.1993, but the
respondent had failed to comply with the terms of the said
agreement. i.e., though the respondent pleaded that he was
fizz
ready and willing to perform his part of the contract, there
was no material on record to show that he had thebalance
consideration and was ready to pay the same. in–‘jfac_t”;.pthere
were no documents to show that the responden.tT’hla’dihtheqfl
necessary funds to pay the balanceiisale ‘ p.
the mother–in«law of the first respondent
get over the lacuna in the ‘ev_fi’d.e11ce A’ofpP’N_. there!’
was no other corroborativeivewdencel “with_:§regard to
statements made by T .”£’I4i.erefc;re’;’~according to the learned
counsel for theappellaiit’»iIi”thelighttlof ‘Judgments of the
Supreme the respondents did
not havethgiineceislsary.fundsulfor”completing the transaction
and hence they ready and willing to perform their
part of the..obligation: l’~I5le has relied upon certain decision
p.artic}ilarly (il99e;….4 sec 526 and [1978(2) sec 115 to
‘ there is no documentary proof with regard to
.’availabi1ity_ oflfunds to pay the balance sale consideration
the1’1.tl’1e suit for specific performance has to be dismissed.
it » i4fe«..had also contended that the grant of specific performance
the instant case would be in equitous since the appellant
had agreed to sell the property on account of his urgent
financial need to set up his son in business. But since the
respondent failed to pay balance consideration in time the
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entire object with which the property was to be sold was
frustrated. That for the appellant the schedule property is
his only shelter and house and therefore, granting-afdecree
of specific performance would be wholly
this regard he has relied upon _Se.c,t_ion
Relief Act.
11. Per contra, learned couriselfor the«_respo§ndent has
submitted that the Ju’dgineI’l_t and ‘Deveree..ppassed by the trial
court does notcall for”anyjinterferen_ce”inthis appeal in as
much as it comply with the
terrnsland asl’_”a”resu1t the respondent could
not ail/ail’ the l.oa’nV’Zat°an”appropriate point of time that there
was no delay’ on of the respondent with regard to
of the'”bal–ance sale consideration. In fact evidence
‘ let in to show that they were ready and willing
“for”lfpayriiejnt:’ of the sale consideration. It is only the
appellvaritvwho did not show any interest in completing his
2 of the obligations and also executing the sale deed in
Algfavlour of the respondent, that the trial court has rightly
‘ answered the issues raised in the instant case which are as
many as 18 in number by appreciating the material on
record in its proper perspective and hence he has submitted
gs.
agreement and a further sum of Rs.2,00,000/~ was paid. All
put together, the plaintiffs had paid a sum of –
and the balance sale consideration to be
plaintiffs was Rs.2,-40,000/- at the time of the ‘V .
sale deed, which according to their agreern-e’nt”:v….,_dated
12.8.1993 (Ex.P~»l) was to be on or before 25.’iei1*__.Ai9_o3._j’; it
also not in dispute that the defendant hadygllclezared the loan
amount outstanding the :IaIvCj«._Vofvl”india after receiving
advance of tjriehlplaintiffs and had
delivered the ;:lo’ctg1ii’1en’:i’s of ti’tle”of.th’e” schedule property.
14. plaintiffs that they were
ready v”and.wiliing* their part of the contract. But
the defendant has “g-flen.ie<l:'i"'"the said aspect by contending that
thefgalalintitls diiiiio-t'Vhave the balance sale consideration
. /- and that they were not ready and willing
to part of the contract. The said aspect would
be considered as point N01. Before considering this aspect
if the matter, it is necessary to extract the relevant portion
the agreement to sell the property dated 12.8.1993
" m{Ex.Pl}. The reason for entering into an agreement to sell the
property is stated in the following manner in the recital of
2.
the agreement: /7*
alglw
“WHEREAS the VENDOR being in need of funds
(C1) to DISCHARGE the LIABILITY OUTSTANDING
with the LIFE INSURANCE CORPORATION
INDIA, in respect of the aforesaid
Property and (b) to PROVIDE himself I” It
for his domestic necessities, has to
SELL the aforesaid ImmovaE;3JteIIPrOper’ty. — = _
15. Clause 3 of the agreement :’=.aI’so states
payments made and receiveIcI–_the AdCf_’€Il:’l§I1’1:t sum of
Rs.70,000/- on 26.2.1993 end:’a–.sum of “Rs..2,o:3,00o/W on
the date of the agreetfient. with the third
advance consideratiorxtoI’be¥paid.t’whieh«e;7e’ads as follows:
agree and undertake to
‘PAY. % Unto’ AI.ijVth:e”1~..j?;3,*NDoR, a further SUM of
Rs:2,OOv,Ooh/;’._(RLI}5EES TWO LAKHS ONLY7. as
I and by of THIRD ADVANCE, for the
_ I E”PftrRC1§.rAsE the SCHEDULE PROPERTY, ON .-
I . 1993,”
regaf;1..e::to the balance sale consideration to be paid.
C1a’1.lSEa’1.4._- reads as follows:
“The said PURCHASERS shall PAY unto the said
VENDOR, the BALANCE of the SALE
CONSIDERATION, at the time of the registration of
/1»
¢s
the Sale deed, in their favour. before the Sub
Registrar, Shiuqjz’. Nagar, Bangalore.”
As per Clause 5 of the agreement, the parties had to
complete the transaction on or before 25.1l..–l’Q93
in Clause 5 in the following mannerzl
“The PARTIES hereto MUTUXSLLY
TRANSACTION of SALE’, i shall ‘be C0MFLE’I}’:’,D,V on;
or before the 25″‘ of Nozfierriber, 1993. it
As a trade preconditionitol’ transaction, the
Vendor viz., the e:_lefen’dant*:;tiad««..agreed’»:.to obtain necessary
clearance the”-1*ncome–tax authorities is as
stated: in ” clause “as follows:
speefiically agrees, assures and
“V undertakes’ to ‘obtain at his cost, NECESSARY
‘ icLE;A,RANcE”‘CERTIFICATE from the Income Tax
_ for the sale of the schedule property
injeuour of the Purchasers.”
.AWithz iegard to the encumbrance of the schedule property
ll –..VVclau;se 9 clearly states about. the LIC loan which the
VA .. _..e1efendar1t had to clear and a sum of Rs.1,50,000/– which
the defendant had to pay to the tenants of the first floor and
the schedule property which reads as follows: [Q
//:t
_ 15 _
The VENDOR fiirther declares and assures unto
the PURCHASERS that he has not alienated or
encumbered the Schedule Property in any
or to any extent whatever, Except to the ‘V’
{a} Loan outstanding withmthe L..-.’;”C’.'”Qf=India;_
which shall be duly Discharged’ from out ,
Additional/Second Advance Of ..1eRse,,2,00;’0o0[;z_
{Rupees Two Lakhs Only) Paid this day,’vos”stated.
above:
(b) Amount of Rs.1,50,,00O/’ {Rupees 2 One
Lakh & Fifty Thousand”Onl.y,’ remaininlgiwith the
Vendor, as uiagg of”~–.Se.curi_ty Deposit in
connection with the.e_’Occuf)ancy/ease–in favour of
the Occupant of…the’-first’ Floor o”fi,Vthe Schedule
Property.’ Lajihichj: “shall” be duly
Ass1gn.ed;}1i717rarisferi’ed in favour of the
Pure-ha”sers.,v~–uvith._the-.Consent_of the Occupant of
theffirsit Floor; be mutually agreed by
Ciause vspelaks” failure on the part of either
pe?141jt3/” in perfortriivhg the contract and the liberty to enforce
it .the seek penalty from the other party. Clause 14
. iS’_eXtr:i<':t,ed "follows:
“Thei~,uPAART1ES here to further MUTUALLY AGREE
the TRANSACTION shall be completed within
the stipulated period stated here in above, failing
O which EITHER PARTY is ENTITLED to ENFORCE
this CONTRACT of SALE, as and by way of
SPECIFIC PERFORMANCE, at the COST of the
DEFA ULTING PARTY. ALTERNATIVELY, the
3;/»«
I
M1″”]_
PARTIES hereto are M UTUALLY ENTITLED to the
PENALTY OPTIONS as STATED ……..
The VENDOR f1:rthe*r agree, assure and
undertake to HAND OVER/ FURNISH Unto
PURCHASERS, the DOCUMENTS of
ORIGINAL, relating to the SCHEDULE PROP.F2RTi’fr’.j’ ” ,
immediately on RECEIPT of the ”
L.I.C. of India, authorities ….{u_)_herein”‘”i’hey’V”are,V
presently deposited), in corlnectionfjyuujith the .’
taken from them, after fully anti” it
satisfying the Loan from ‘them,
period shall not Exceed,:””in_ any case.__beyv(:3>nd :
151″ of Septen1ber;’~ .1 993. VA –. it
conftmis that he shall put his
be”st_4ej”forts.’toAspeed up delivery of the title deeds
” relating .. itovl the Schedule Property, unto the
A E i,Pur’chasers,Htofacilitate the Purchasers, to obtain
,, ., V the Purchase of the Schedule Property,
H.D.F.C or other financial
nsatuttons / Agencies Etc. , .
The Vendor further confirms that the
Additional/ Second Advance of Rs.2,00,000/»
(Rupees Two Lakhs Only] is paid this day, as
aforesaid, to enable the Vendor, to discharge the
amounts outstanding with the L.I.C. Authorities.
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It is also noted that clause 15 speaks of the undertaking
given by the defendant to deliver possession ofthie
property and the said clause is as follows: _. ~
The Vendor further specificallyAA4pdg;;rees:.’A_’assur-eeltipll
and undertakes to oEr,rVER;’.PossEssi;3i\7 of the”~ ‘
Schedule Property, to “bet sotctv-sjurtto””t31e
Purchasers. in the mannerstctted he’reu_nder:f%
Ct} Actual. Phys1’co,_tfand_ V;ucortt_’p’Possession of the
Ground Floor, on the date the .re_§jt3té’ation of the
Sale deed’ infatfour theAPu_rchasers;
b} Po.ss’esstoln–:’_ of ‘the First, Floor, through
same. from the
Occupdr–it–‘l..ofi _the:”First’ Floor, & as mutually
decided’ agate Parties’;
the staid—-agreement itself there is receipt dated
‘ a sum of Rs.1,00,000/- and another receipt
“satedVle”.j12’;’i993 for a sum of Rs.1.00.000/~ which are
markeld; as Exs.P–2 and P3 respectively. Ex.P–4 is the reply
if dated 12.1995 to the legal notice dated 19.9.1995 issued
if ” ionfbehalf of the plaintiffs.
17. In support of their case PW} who is plaintiff No.2 in
her eXaminatior1–in»chief while reiterating the details of
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payment made to the defendant has stated that the
defendant had availed a loan from LIC and had deposited the
title deeds and in order to discharge the loan with LIC and
get back the original title deeds the advance moneyel..paid by
the plaintiffs was utilised and in Novembe;’;”‘«l19Sj9_{‘5l§. ;_.the
defendant gave the original title deeds. s_Lii:ii”o£
Rs.4,70,000/– was paid and thejiloalance i
paid at the time of execution of J[‘f1€.”d€€C1 aftcrvlVgettii;1g’ithelg
lncome Tax clearance. According toVPWV1c,–v’the;: defendant
delivered vacant posses_si0i:if.'”gf’ i..¢;’hfle.<Vy'VlgrQundvfloor and the
plaintiffs got it repaired ltrierea.-ftehivx.th.e'_'..defendant locked
it andlreiuseld to iilalloilvtlhem tolenter the property. That the
tenantvvas in fii's«t:floo.i~' who had paid a sum of Rs.l.5
lakhs to the defeiidantarid according to PW1. the plaintiffs
agreed to V"tal:–e«'the property subject to attornment of
' lease in their favour. When the defendant was
"asked completion of the transaction, the plaintiffs
were. that he would handover the keys provided the
if plaintiffs pay a sum of Rs.l8,00.000/~. According to PW1.
Atsince the building was in a dilapidated condition, a sum of
Rs.80,000/~ was spent for renovation of ground floor and got
the entire property painted and the damage to the wall was
repaired. According to the plaintiffs. even after receipt of
3/:
rx
EX.P~«él, defendant did not execute the sale deed in their
favour. PW1 is willing to deposit the balance amount in the
court which has been kept ready.
18. In her cross~examination she has”
defendant declined to accept thegthirda Ainstallrne-nt”
her that he would accept .the__ sarne. _ after e’lea.ifanVce lof
dues. She has also admitted’ the loriiginallvfdocuments
furnished by the defendant :..1_;:”993 for Which she had
issued acknowledgement ipisas Ex.D–1. She
has also sta_ted};t1.ia_t..sheihad lonly””rnad’e oral request to the
defendant”t<:{jp;c'alll to'_lle5<'ecute the sale deed and that
she had no that she had kept the balance
amount ready by-_ and that she had paid amounts
Srinivas 'Anand (Advocate) to purchase the stamp
S .-paper.' 1
19: _She_has also stated that she has documents to show
that spent Rs.80,000/– to repair the ground floor. She
lhajlsfllso admitted that legal notice dated 10.1 1.1995 sent by
__the defendant and the postal acknowledgement which were
marked as Exs.D–2 and 13-3. She has denied that plaintiffs
are not ready to purchase the property and that defendant
«':»
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M 21 M
does not own any other property or that she has not kept the
balance amount ready.
20. PW2 who is piaintiff No.1 in his examination–in–chief
has stated that Advocate, Sri. Srinivas Anand, introduced
defendant to him and that since the original the
property were with LIC after a sum of
paid by the plaintiffs, the LIC io’an”was ‘the 9 T
defendant and the documents wferefgiyfen if
time, the house was in a dilapidated “co_nditio;_n ‘after the
defendant handed over the.i-‘keyps– of__the «suit property, he
renoj?ated’ethVe_ ofuthev same and that the tenant
was atfirst the defendant had taken a sum
of R_s.1.50’=.lakh that the plaintiffs would pay the
to the ‘tenant and the remaining sale consideration
V to the defendant. That after repairing the
f’ the property, the defendant locked the house
and ..too._kVaway the keys. That a sum of Rs.80,000/- was
spent on the said repair. That though PW2 stated that he
fgwould pay Rs.2,00,000/– more, the defendant demanded
H Rs.18,00,000/– for the suit schedule property. When the
balance sale consideration was offered to the defendant to
complete the sale deed. he did not do so. That amounts were
/Ea
M 22 M
paid for stamps for completing the sale deed. According to
PW2 he is willing to pay the balance amount for execution of
the sale deed.
21. in his cross–examination, he has stated not
pay the third installment on 30.9.1993 sinc_elv_fthe’
did not give him the papers by the dated jalsie)
stated in the cross–exarnination that he does.’t.l,n.ot have any
document to show that he 2 .50 laiihl’inf-hisfaccount to
pay to the defendant. ‘He pdeniedfthllat he does
not have any balance sale to be paid to the
defendant”or{f,thatfVhe to perform his part of the
obligation under agreernrsnt.
22. PW3_ is the 4liTI1O’l.Llfilii.i;–I”–i1’l~laW of the first plaintiff and
rnotheriiof thel”sec:ond plaintiff who has stated that she knows
theftransaction between the parties and that the
.det’endaf1_t,l___ha’d”‘given the keys of the suit property to the
plaintiffs “after receiving the advance and the plaintiffs had
..spentl’rnoney for the renovation of the property, but the
l’z_ld’efe-‘ndant forcibly locked the schedule property and later
* Jdernanded Rs.l8,00,000/–. She has stated that the balance
consideration which is to be paid to the defendant is with
fig’ V
_i23_i
her and that she is ready to pay the amount at the time of
execution of the sale deed. In her cross-eXarnination, she
has denied that the suit property was not renovated.’loy_ the
plaintiffs or that the defendant had not taken_ayyayi.l_tl”ie:ls:ey’s
or that she does not have the balance con.sider§1tion: amount.»
to pay to the defendant.
23. PW4 is a person known tofthie the
defendant, has spoken about__t_h:evVtransactionyandilhas stated
in his–examination–in;nhief: poi’ affidavit that the
ground floor was vacated» and first floor was occupied by
tenantlland fullllydarnaged and not in a good
condition the plaintiff that it is not worth
Rs.7,00,9@Ol/’– , V lB._uti~the…lplaintiffs had stated that the area is
relsidvential area and hence, they agreed to
‘ ,.p’urcl”i.ase;’th:e schedule property with an intention to get the
” repair Worjlclydone and alter the house according to vastu. He
stated” that on 26.3.1993 on the date of the inspection of the
if if placegthe plaintiffs advanced a sum of Rs.70,000/- towards
sale consideration. That in the office of Sri.Srinivas
Anand, Advocate, the sale agreement was executed on
12.8.1993 and he had signed the agreement on that date as
a witness and his signature is at EX.P–2[g). That on
5.
M24,
30.9.1993, when the plaintiffs and Sri. Srinivas Anand,
Advocate, Went to the defendant with a sum of Rs.2,00,000/-
by Way of third advance, the defendant pleaded ii-n_:ability
to pay the loan amount and get the original and
stated that he required sometime to get the~’loa:n
and get the original document. Thereafter:4.the”de’fe.nd1ant
handed over the originalyfdo_cumen_t” on
possession was handed ovef”‘i’c;_{‘15.121993’onlgwhich day
the defendant receiv’e_d”‘~«a :«.R.sv;’l«,.O0,00(j/ by way of
Cash and another supnfil on 16.12.1993
through pay” fdr Which'”‘rec’eipi’s..:he’had signed as a
witnelssf” hadptherefore, received a sum of
carried out the repairs of the
ground poiitions including kitchen which was badly
daihaged __andhVrep1aced the tiles and painted and suitably
‘ ;.alterevd4V’andj”‘repaired by spending a sum of Rs.80,000/-
“ivliichVrepjairr1’vvas completed in May 1994 and that they had
engazged s Savita Furniture and Home Repairs and after
2 Althea renovation, the defendant demanded higher
Altconsideration of Rs.18,00,000/- in place of Rs.7,00,000/–
whereas the defendant was requested to register the sale
deed after taking the baiance sale consideration amount of
Rs.2,-40,000/– as agreed, where as the defendant locked the
1/3:.
,25_
ground floor portion and forcibly dispossessed the plaintiffs
when the plaintiffs had paid their hard earned money to the
defendant with an intention to have shelter of his Vo\}vn’;c._fi’hat
the proprietor of M/s Savita Furniture and _n’om¢~
who repaired the schedule house, of
October, 2002. In his cross~exar1r1ination., dhgeihas 4stated..rAth,at ‘
the first plaintiff is the son~;in–lavvA_o’f his £1e”1~.a:s_
denied that defendant did not.:handover_ ‘possession of the
ground floor on 15.i§?,;~~1g_993″or:Athat.Tpiaintiff renovated
the suit property. He has defendant had
locked the su’i’i’««g.rpfropertyg was made by the
plaintiffs’ ‘and thetamoudntvtvvas paid to Sri. Srinivas
Anand,gAdvocate:i”or stamp paper.
Murugesn Swamy has deposed as PW5 as a
‘ .i.p”ersgon_Vwhoiddwas attached to the Proprietor of M/s Savita
Home Repairs, Uisoor, Bangalore and had
carriedion the repair in the ground floor of the premises. He
2 V. Adhasyalso given the details of the repair in the month of June
and that the defendant used to visit schedule premises
‘to see the renovation work. That in the second week of June
1994 or in the evening hours after work the defendant had
locked the premises by removing the earlier lock and that
—27-
26. On the basis of the aforesaid material, it is necessary
to consider the readiness and willingness on the part of the
plaintiffs to perform their part of the contract. ‘I’he’:capacity
of a party to perform the contract includinggthej;finan;ci~al
capacity to pay the purchase price is
conduct of a party would indicate if
the contract. While appreciating’readiness
on the part of the plaintiffs, regardfto-unonivpayment of
the requisite sale consideratiolngr tobeappreciated
IS the fact that the plaintiffs’ to pay the sale
consideration.’dinporder”to”p:proVeVf”that the plaintiffs had the
requ1.sitei’bal’apnceifisaie”‘consideration, it is not necessary that
the said fact’ h.as*:t’o« by documentary evidence. It is
sufficientfrom the Aoralv.–eVidence that it is established that
thee. plaintiff …. the funds to pay the balance sale
‘ ;cons1dVeration*..__En this context it is necessary to see that the
‘total consideration for the schedule property was
Rsfli and a sum of Rs.4,70,000/– has been
“aceepteld by the defendant and out of which a sum of
l”«i2sl..l’A2A,00.0O0/«~ was utilised by him to pay of the outstanding
if “debts with LIC of India and after obtaining the documents of
title to the schedule property for the clearance of the said
land, the said documents were also handed over to the
§«
Wggm
plaintiffs by the defendant. According to PWI, the plaintiffs
had the funds to pay the balance sale consideration and
according to PW8 the mother of PW2, she was ready-…yto._pay
the said amount at the time of registration ofclieedv
as she has the requisite fund. In fact, PW:&”whof_vis’V’one.o1’the .
witnesses to Ex.P–1 has stated that :l’1e..”I°ldyo’:Vate
Sri. Srinivas Anand requesteoflthe defendant: ‘to; register lthe”
sale deed by accepting the vbalance sale: consideration of
Rs.2,40,000/–. But –t.hei– defe_r_1r_ian.t who did not come
forward to do so. I I I
27. On other established that out of
Rs.7,oo,o0o’/i._,V’ Rs.4,70,000/- which is a
substantial. portionffopf sale consideration had been paid
‘itheffyplaintiffs ‘an-dfia balance of Rs.2,40.000/– only had to
I time of execution of the sale deed. In fact, in
.’tefxns oi’.fC_laeuse 14 of the agreement to sell, the defendant
was ..toAhandover the original title deeds to the plaintiffs after
reteiving the same from LIC of India on clearance of the
A”§o1′.1tstanding with the help of the advance amount paid by the
I plaintiffs and the original document was to be made use of
by the plaintiffs, by producing the same before HDFC Bank
or any other financial institution so that the loan could be
5,
,/f.
availed to pay the amount to the defendant. In fact, Ex.P–1
is the acknowledgement of the title deeds by the defendant to
the plaintiff, on 20.11.1993, which was only ‘five
to the date agreed by the parties to complete.utransaction,
Although the agreement stated that title ‘
handed over by the defendant to thehplaintiffs-V.tofobtaignuloariit
for paying the balance sale co’n:sideration_ same was
also handed over, onltheefplaintiffs to
do so if he could = other manner.
Therefore, that Vayfailed by the plaintiffs
from even after the receipt
of would not imply that the
plaintiffs’ had they had failed to make use of
the title the loan. Since it has come in the
that “F”W3.,…tne mother-in–laW of plaintiff No.1, had
‘ ,,the. requ*isi<t.e" funds to pay the balance sale consideration.
a "It, also contended by the plaintiffs that they were put
2 Afiiixpossession of the ground floor of the schedule property
that they had spent considerable sum for carrying out
repair and renovation work, but subsequently, the defendant
locked the ground floor and prevented the plaintiffs from
making use of the ground floor. It is seen from clause 15
%.
zf;/7*
n30n
that possession of the ground floor was to be handed over
only on the date of the registration of the sale deed. But it is
the case of the defendant that possession of the grotfnd floor
was not handed over to the plaintiffs. Howe§ver;p&’pp13:lN’s.:.l”,’,2
and 4 have deposed that the defend_a;1f!””..Vyhanded ffoverffl
possession of the suit schedule jpropiefrcty to on if
15.12.1993 and the plaintiffs ‘carried o.Lijt.’I’e:pairf.”‘andpp
alteration work and PW5 haspstated that”th.e plaintiffs met
the expenditure for eailterationflanid rep.air andthereafter the
defendant locked the pfrernisfesff to this evidence,
the defenda_nt’:ha-s placied«.Va:iyfi~eyidfence to contend that
the grolundyiflioorff not-in a’.di’Eapidated condition and it did
not that possession was not handed
over to plvaintiffs..Vor«..t’hat no repair work was done by the
p_laintifi’s in the prerriises. in fact, in the cross–exarn1nation
‘ ;fo*f.eVPWVsL’lf,”Qfand 5, nothing contrary has been elicited by the
therefore there is no reason as to why the
contention of the plaintiffs that possession was handed over
” tioathefitn by the defendant and that they had carried out
“‘i.f:=,pair work in the ground floor of the schedule property and
“thereafter, the defendant locked the ground floor and
demanded higher sale consideration cannot be accepted.
5%»
‘ 9
_ __
29. In fact, it is the case of PW1 that the defendant had
demanded a sum of Rs.18,00,000/~ and therefore, he had
refused to execute the sale deed by stating that the..pr_iceV_has
risen unless the plaintiffs paid a higher
execute the sale deed in favour of the plaintiffstlifij la.
has also stated that the market:=__vVal:u.elA.
increased and he is not ready-to execute any”sa1e4_deed niowl.’H
In fact, even PW2 has stated he requested defendant
that he would pay additional confsi<:lera'ti.on of lRsN.2,O0,O0O/-,
but the defendant denA1_and.ed.vlV_a ~:.Rs–}18,00,000/–. The
stand taken:_"bfp;jptl1e defendant"'inV 'his..ei}idence would clearly
indicatellfVt'l1ai'l¢,tlie7fdefe'ndantlwasflconscious of the fact that
the price of the~:'gé'clied_Ltile:'property has risen and therefore,
unwillingness on._tli~es of the defendant to execute the
sale can"'be….infer1'ed, although the evidence of the
V they were willing to pay the additional sum of
if as sale consideration is not corroborated.
30.. It «is the further contention of the defendant that the
.A pplaintiffs failed to perform their part of the contract and
l f’t»herefore, when time was the essence of the contract and the
plaintiffs had agreed to complete the same on or before
25.11.1993, the plaintiffs in the absence of making the third
)1-
/3
n32n
advance payment within the said time are not entitled to the
relief of specific performance. But what has to beebsleen is
that the defendant handed over the documentsjof tdthe
plaintiffs only on 20.11.1998 and defenda.ntv_Al’:f~e;as:.A_fio’_where9″x_
stated that he had obtained
certificate from the Income tag; Authorities and by doing 1
so the sale deed could and
neither has the defendant evidence
that he had made arrang~eAmen’ltsvto–=get.’t~he_i.tenancy rights of
the first floereeietgfied so that when the
tenant would pay a sum of
Rs.1:’50;lOO9.}f,~:v toiifittriefltenantslfl”Therefore, the defendant has
committed Jcohntract by not performing the
0bli_gatioh”s..Which._ “A71:-‘._Ib’le”~~l<.l*'ast upon him under the agreement.
fact even aftervthedate set out in the agreement regarding
9 :.lp'a3rrneI:it ivofrthe third advance, the defendant accepted the
"same eh'–".j':s.:i2.1993 and 16.12.1993 which is beyond the
time. for completion of the contract i.e., 25.1 1.1993 and
it therefore, it has to be implied that though the date for
Algcompletion of the agreement was mentioned in the
'agreement both the parties had given up the same and
therefore time was not the essence of the contract. It is also
to be noted that in the absence of income tax clearance
£5;
certificate the transaction could not have been completed as
it would have otherwise resulted in penal consequences. In
. fact, even when the title deeds were handed overgthe fact
that permission was obtained from the
authorities to execute the sale deed by the is
established. In fact, nowhere it”;has”come -:one:_’r:ecord’Vwith if
such a permission was ever obtained by the defendant;–‘
31. On the other .l_1and;’lthetidefenpdantfhad ‘made use of
the advance amount.’ fpl=ain.tiffs to get the
document release-d of°Ifndipa’a:t1d has submitted to
the ptlaint’iff5t};. in abseunce of further performance of
the obligations I bj(e«.the..f_’defe.i1dant the transaction could not
have been. taken to logical conclusion. Though, the
hadV’giv–e~::«’the title deeds to the plaintiffs, he got
‘ seeking return of the title deeds which act of
‘thief defenxstant has to be construed as an expression of his
own unwillingness to perform his part of the contract. In
If » nfactit has come in the evidence that the plaintiffs were ready
willing to perform their part of the contract. But until
‘and unless the defendant had obtained the income tax
clearance, the sale agreement could not be registered.
Therefore, the defendant cannot allege that the plaintiffs
éar
m34_
were not ready- and willing to perform their part of the
contract. On the other hand, it is to be held that the
contract could not be concluded between the parties. on
account of the non–performance of the obligation’Vibylfthey
defendant and that the plaintiffs were ready__pa1a.d _
perform their part of the contract.
32. At this stage it is necessary to regfe’r:’to” cl.a.1’1se’=,
(3), (4), (5), [8] and (9) agreem_e’ni;”,V.= tfijiolaglh in if
clauses (3), [4] and”.,__{5) stated ‘thaththe third
advance of Rs.2,00,000/’bio on or before
30.9.1993 and balanceifconsideration was to be paid at
the time §a;1’e”deed and the transaction
was to be lcomp.1ete’cl«.Qfi.o:r*- before 25.11.1993, it is necessary
to note that. the 3¥’d’Aad’vance paid in December £993 was
by the ‘defendant and the sale deed was to be
reg’1ste1″ed’isubject to the defendant obtaining necessary
clearance ‘Vecrtificate from Income Tax Authorities. As far
as th.eiWplaintiffs are concerned, they had completed their
if part«.of the obligations under the contract and it is the
defendant who did not get the necessary Income Tax
llnhfuliearance before 25.11.1993 so that the sale could be
completed. On a reading of the various clauses of
the contract and the conduct of the parties, we
5%.
c35_
find that the plaintiffs had performed their part of the
obligations and were ready and willing to perform those
obligations at the time of the registration of the sa:le»cdeed.
However, it is the defendant who was not ready—andl__i’wil:l’ing
to perform his part of the contract. ‘Iherefore;–..point llisl
held in favour of the plaintiffs and againstithe’defendant; J
33. With regard to point l\l?o.. concernecli, Cection 20 of
the Act states that” ~..the .jurisldictlio.n to ‘decree specific
performance is discretioriaiyg’lt:’says’–,that_j_the Court is not
bound to gran-tyyjstich’V.mere’lyj_beca;1se it is lawful to do
so. fSluch– dis’cfietio.n’.’ however. is not to be exercised
arbitrarily, but ‘zfi1eustv._.bie.,4b.ased on sound and reasonable
judicial ll principleslfill Section also specifies the
circuirlstances linvwhi’ch the Court may properly exercise the
‘ ;.discretion_*not«_ to decree specific performance and it also
“specifies’~lwh.en, in an appropriate case. a decree could be
given by proper exercise of discretion. Section 20 is not an
2 if exhaustive provision, but merely illustrative as it is not
Cpossible to define the circumstances in which equitable relief
‘could or could not be granted. If, therefore, on a
consideration of all the circumstances of the case, the Court
thinks that it will be inequitable to grant the relief asked for,
3;»;
it should not give the relief. In this context, it is necessary to
refer to explanation to Section 10 of the Act provides that,
unless and until the contrary is proved, the Cou:rt»,shall
presume that the breach of a contract to transfer.
property cannot be adequately relieved by”
money. But the said presL;”mption,_v His-S f’–rebuttable if
presumption.
34. Sub–section [,?;)~.__ of specifies certain
circumstances when dis_c’retioi*1:’ may’ ‘exercised not to
decree specific,’ ‘performan¢::e;.,V”~..”]?]riese:’ circumstances are
illustrativeesaiiid cfangbe as followsg
Ii) ._ V . ternis of the contract or the
‘ con’duct”o.f the parties at the time of entering
” into Acor:~–tract or the circumstances under
_ _which’the contract was entered into are such
ti’iat—«*’they give the plaintiff an unfair
advantage over the defendant.
A ~.’ii’}._ ffV.~”Where the performance of the contract would
1′ involve some hardship to the defendant
whereas, its non–performance would involve
no such hardship on the plaintiff.
[iii] that it makes it inequitable to enforce specific
performance.
35. While explaining these circumstances, EXpIanation–1
speaks about unfair disadvantage. Explanation-IE relates to
hardship which is a circurlastance in favour of téie defendant,
/3
M37″.
while Explanations-Ill and IV are in favour of the plaintiff
when in a case Where the plaintiff has done substantial acts
in consequence of a contract capable of specific perfotfinatlce
or refused specific performance, merely because theVlcoritr_act’~ 4_
is not enforceable at the instance -of”tl3-epdelfendarlt’, if
36. As far as Point No.2 is coricerned,j. it._is” the co’ntention l
of the defendant that he required money on urgent zbasisland be
therefore, had agreed to sell tlieilsiiiit property for a
lesser value since re_qui_reld_ money tolldischarge the
liability outstanding with respect of the
veiyischedeule tolprovide himself with fund for
his domestic had offered to sell the property.
The sarnle”‘«i.s Ex.P–1. It is contended on behalf
defendant in the absence of the plaintiffs paying
‘ sthe _b’alan_ce:ls–ale consideration the defendant could not set
” upihis business and therefore, the defendant suffered
not only by selling the property at a lower market value, but
also on account of not being able to set up his son in
llgblusiness at an appropriate time since the plaintiffs failed to
‘pay the balance sale consideration and conclude the
contract. The said submission cannot be accepted for the
reasons that the defendant: on receiving the substantial
/5/
n—- 38 I-4L!
portion of the sale consideration had utilised the advance
amounts to discharge his LIC loan and release the
documents. If really the defendant required the balafice sale
consideration of Rs.2,40,000/– which would haizeé’ patid
at the time of registration of the sale de_edv,fth’en’
defendant ought to have been taken step_s’l–.in 7
that the income tax clearance other obl:igationVs:.:.which
were required to be performedillby hirnunder,theagreement
were performed in time so cinild recleivethe balance
sale consideration to le>l:e_cuteV.lth’e and utilise the
funds on settir1g._1ip But what we find
fromgthe factlvlthlat the defendant no doubt
utilised the consideration for releasing the
docurnentalandlhandirigiilover the title deeds to the plaintiffs
the of obtaining permission from the
‘ «authorities by the defendant the sale transaction
concluded and therefore, the plaintiffs cannot
bellbplainedllfor the said reason. if indeed the defendant had
“t’a}genl”steps in right earnest, then the plaintiffs were duty
to pay the balance sale consideration and get the sale
“deed executed in their favour. In the absence of the
defendant acting in accordance with the terms of the
3.
/5
agreement, the plaintiffs cannot be blamed for non»
performance.
37. The contention of the learned couie’i”sell.f..fl__(_l:)1l”5;_.the
defendant that under Section 20 of the ::R:e1iefllAct,l
the defendant is entitled to the ‘
contract gave an unfair padvantagelwto thel. p:laintiffs’t one?
account of the low sale consiVderat.ion fi’Xed”‘in-I the agreement
in question cannot vb3e~~..acc_e’pted— inlview of there being no
material evidence on record market value of
the agreement”toV:’sell§was h;igher”tha.n__tlie sale consideration.
It isalso to’~.note inadequate consideration IS
not a”;re-ason.toinldenyyspecific performance. Similarly, the
hardshipthat would, ’caused to the defendant in case the
suit. isidecreed also be accepted for the simple reason
‘ Lyltiiat :’de”fe.ndant has taken advantage of the sum of
” l–l paid by the plaintiffs and thereby has got his
LlC yploanhlddischarged and the defendant himself is to be
if blamed for not concluding the contract within a reasonable
so that he could utilise the funds for setting up his son
” 1n the business. ,1
-40-
38. Therefore, the plea regarding hardship of the
defendant or that this is the only shelter he has cannot be
accepted.
39. Similarly, the equities are more iI1″”f%1V0:1V’;tI’VV”(Z>”‘f i’theV’
plaintiffs so as to be entitledj’to”‘a« g_d’ecree:Ah’foi’ Vvspecific
performance inasmuch as they:__ 2
Rs.4,70,000/– out of the sale @611side1?au;m..pf,as:.};’o’o’;ooo/9;’
to show that they cou1d..’acquire suit sched’ule”property at
the relevant point of Ii’e.th’e:’de’fen’daii–t. had taken steps
to perform his _ther.s« the plaintiffs would
haveV’ip’aid”the baifai1cle~.s’alte consideration and get the sale
deed executed. iri.’Vtheir_. In the absence of the same,
the _p1aintiffs’vha\/fe opportunity of buying the suit
scf:’:_ti’e<:l1;1_?le propertyva-t"the relevant point of time and further
' ;o'n~acc_o'un't.ggofsteep increase in the price of properties in
plaintiffs would not get the property for the
same rate. Therefore, it would be equitable to enforce
» xspecific performance. I-Ience, point No.2 is answered against
A' "theappellantwdefendant.
40. In 1999(3) Kar.L.J. 677 (Y.N.GOPALA RAG vs
D.R.LAXMINARAYANA AND OTHERS) it has been held by
3.
/3
IRS» 41″ I-CIA
this Court that the presumption in a suit for specific
performance is that a breach of contract cannot be
adequately reheved by compensation in money«j”arid_f”‘that’
contract can be satisfied only by conVeyanc.e”–«ofApaafticularg
estate contracted for sale
rebuttable, and the burden of :’reb1,itting
opposing enforcement of contract and wheref..suci1–V.party has i’
failed to rebut presumption, y_s_tfii”t_f0r_y_vspec’ificperformance is
to be decreed agains’t.l:suAch principle is also
stated in Explanation.-‘fi’)v»t.ow of Section 10 of
the Specific A”~’1.Ci-..”‘. if
4}. VV.WhileVadvertirigjto__:Secti’on 20 of the Act, it is stated in
this decision _thgtt_ irigprice is no ground to refuse specific
pesiforr11ancef’faVndv_ the refusal may also have tendency to
.’ :cause:hardshi_p in the plaintiff in acquiring such property or
_ othierwxat such time.
it in AIR 2004 so 909 (M.S.MADHUSOODHANAN AND
‘ANOTHER vs KERALA KAUMUDI P’VT.LTD., AND OTHERS}
“fit is observed that the guidelines for the exercise of the
Court’s discretion to decree specific performance of an
agreement have been statutorily laid down in subsection (2)
£
ii”?
_,42M
of Section 20 of the Act and that, in Explanation 1 to Section
20, it is stated that mere inadequacy of consideration, or the
mere fact that the contract is onerous to the defen-d_an_t or
improvident in its nature shall not be deemedljto”conlistiiute
an unfair advantage Within the meaning”‘of…:clause<– [a)__'org
hardship within the meaning of clause. {S
43. {LR 1992 KAR 717 [YOGAMBIKA v
relied upon by the responderitpiltopcontend that “‘rnére fact
that a person is a retired G.o\?e1*n1nen.t. servant cannot at all
be considered to be a lVla_ili’dl’itofrgebfugse to enforce the
contractl” ‘hell’, ‘V’vo’l’uri’i;aril:tf””agreed to and that, under
Section of grounds which enable the Court to
refuse togranta’vdeCr§;’e.–~fnust be such which were not in the
c.o_ii.teE:nplation”‘of~—-the parties when they entered into an
S sale and also that the defendant had no control
.’ oifer tbosej_ grounds and as a result of those grounds, it has
belcorne impossible for him to get on without the property
agreed to be sold.
The decisions cited at the Bar are referred to as
follows: Learned counsel for the appellant has relied upon
several decisions in support of his contentions: Z;
./5
‘ ‘V is
_ 43 _
AIR 2001 SC 2783 (A.C.Arulappan Vs. Smt.Ahalya
Naik), (199915 SCC 77 (K.Narendra Vs. Riviera
Apartments (P) Ltd], AIR 1997 so 1 751 [I{.S.Vidyi1fiadam
82, Others Vs. Vaircwan), AIR 1982
(Smt.Ranganayakamma Vs. N.GovindqV__pl’VaraZg’ar1]i
(2000) 6 sec 420 (Motilal Jaiiiiililfsl.’ ~1zamazc.~$;i”«.r;ge;}ij”i1aire 7
been cited to contend that thereisfundue.:h:_ardsl1ip:.4.t(3.theL
defendant or there is astronoinical rise of the
properties and if thereis a .:ie’1a;}I’~fm”r:iing a’sL1i.i;” for specific
performance which wotxfid “rp.e§1«:e to grant the
decree, then specific §perfoijmanc.e*i.ou’gh:tnot to be granted.
These ‘dec’isioV’ns gifge’ not to the facts of the present
case ‘since ‘we: against the appellant on the
question ‘of. hard V’
SCC 526 (His Holiness Acharya Swami
“swash Vs. Sita Ram Thapar} and [1978 2 sec
116.. [:S1nt.Sandhya Rani Sarkar Vs. Smt.Sudha Rani
‘ ~ ibiebpi 82. Others) have been cited to contend that readiness to
‘perform the contract would mean that the plaintiff has the
‘Hfinancial capacity to pay the purchase price and for which
there must be sufficient proof that the plaintiffs had funds to
55
/:1
__44__
pay the balance consideration. On this aspect of the matter
we have held in favour of the respondents. H.
46. AIR 1996 so 2314 (Lourdu Mari David Vs”.””Louis
Chinnaya Arogiaswamy} has been relied
that specific performance being an equitable”‘re.lic:f:’Vrn’us[ tug 3’
granted to a person who approaches’the*<.court wit.h"'clean
hands and not to one who makes fals:e.Vallegatjv_ons. '
decision has no relevance to tizefacts oftherrpresentllcase.
47. In AIR 1987 SC 2328 g_[1?dr<;i<:1,L_»nnan" Veettlvi Joseph's
Son .Mdth°c;j}t',Vs!iififilecturnbarzfitllvfftivruvila's son and Others},
it haszbeen stated»':th_at..tlt1-edcourt is not bound to give specific
perforrnance 'rneVrely"–because it is lawful to do so and the
gshould taKe———-sare to see that it is not used as an
V 'oppression to have an unfair advantage to the
lplaitntiffsdf the instant case however by not granting the
relief. olfispecific performance to the respondents would create
2 :1' ~ Alpanainfair advantage to the appellant vendor.
With regard to the readiness and willingness (1999) 7
" "SCC 303 (Ramkumar Agarwal 82. Another Vs. Thawar
Das (Dead) through L.Rs], (1995) 5 SCC 115
E»,
W45…"
(N.P.Thirugnanam (Dead) by L.Rs Vs. Dr.R.Jagan Mohan
Rao 82. Others), AIR 1928 Privy Council 208 (Ardeshir
H.Mama Vs. Flora Sassoon], ILR 1993 KamaVt@.I§’a._V_427
{DB} (Saraswathi Ammal Vs. V.C.Lingam] _(;fi’ct
KLJ 186 (G.M.Chinnaswamy Vs. have
been cited to contend the C’;ontiniao1isg ‘:readi’n.eg§ ..,and
willingness on the part of the hp-1ain.tiffs :c0r;.dition’,
precedent to grant the reliefs» specific ‘perf0r:1;1ance and
person who falsely claims ca sumldofflvmoney and
attempts to prove the plea at itrialistageicannot be said to
be readyiVand5,uIilli:hg topay theflsurn due under the contract
in question. V Fro1n’the«.ei?’idei1ce on record we have come to a
conclusiori”..th’atgtherrespondents were ready and willing to
their paitofthe contract and therefore this decision
‘ has n’o._relevan::e to the facts of the case.
49.2 .. A13’ 1961 Calcutta 359 (A.E.G.Carapiet Vs.
it iAl.iY,De’rderian) and (1971) 3 SCC 273 {Amar Singh Vs.
State of Bihar) have been cited to contend that when
i there is no cross–examination on crucial aspects. then the
testimony of witness has to be believed. Having regard to the
It
,4.
evidence on record, the said decision is not appiicabie to the
facts of the present case.
50. Counsel for the respondent has relied upon ILR 2000
Kar. 3536 (C.Nazeer Ahmed Vs. S.Jahan Ara) t,oVc_o’ri.t¢nd
that circumstances sufficiently strong couId__;’_’di’sp.l_acer.
ordinary presumption that in any contractV—-f0r:”.sai*e: of land. 9
stipulation as to time, is not of essences. }In–,the.’in.stant case,
the fact that the third advance4__wasdi°eceived dappeiddiant’ 3,
herein after the stipulated ddaterand :fi~-:.:§E::”‘:afté;;- the date
contract implies that both parties
did nottreat dtheessence of contract.
51. (2000) 6’=SCC’ 420 (‘Motflal Jain Vs. Radasi Devi 82.
Othe’r*s) has-» been cited to contend that where a major
.pvo’1*tioEn:’ofVd’the consideration (two–~thirds in the said case} was
I ipaidd the of execution of the contract, it was held that
re-adinessvito pay the remaining amount is apparent. ILR
AA2003-.fi’ar. 3533 [ T.Mohan Vs. Kannammal 82. Another)
‘has been cited to contend that when the vendee is in
épossession of the property. the question of readiness and
willingness to pay the balance money does not assume much
/if
fi,{1l7_
importance. ILR 1998 Kar. 2730 (N.Venkatappa Vs.
Lingappa Reddy by his L.Rs) has been cited tofc”ontend
that when the plaintiff is put in possession of~«~th¢V:p_I’ope1’ty
which is the subject matter of an agreementfandifdefendant ‘
also delivered some d0cume:nts,b”i3ut._ sta1lec1u._pVt’u’rther ”
proceedings and the plaintiff vl1as«._com.p1’_ied”
requirements under the contract, fI€_V to a
Judgment and Decree” of spec’i’iiclV[oerf’orinanceI ILR 1988
Kar. 1340 m.n.Na;~¢amnai Vs. Madhava
Tenkillaya), ‘-hasi-beer); if readiness and
willintgnes’sA.. estfVab1i’s’hed, itfis not proper to non~suit a
persovnpon vVerbalV”ommis*si’on. The afore said decisions are
applicable’rt.o”the[factsof the present case. keeping in mind
tlie9e\(i.de:1Ce onflrecord.
1h’l’ii1_.i:” 2007 Kar. 1625 (P.S.Ramakrishna Reddy
Vs; M:I$’.I?hagyalakshmi 82, Another) it has been held that
th’e._re1ief of specific performance cannot be denied on the
fgground that the price of immovable property has risen. In
AIR 2008 so 1205 [Balasaheb Dayandeo Naik (Dead) by
L.Rs 82, Others Vs. Appasaheb Dattatreya Pawar} it is
stated that where agreement though specified time for
if}
_48u
execution of sale deed and where stipulation for forfeiture of
earnest money in the event of failure to execute sale deed
was also made, then it would indicate that time wouldnever
intended by parties to be of essence of the In
(1998) 2 SCC 488 {Smt.Indira Kaur
Lal Kapoor), in the context of the ‘4
plaintiff when the deferidai:-1;_ or th-edcourt endquireqp
about the name of the banl§’V”io:r’calledVuponif-thegiplaintiff to
produce the pass book’ wasddheldiéptha-tpno adverse inference
can be drawn against the plaintiff had
depogsvedlfvtliadtl hedfxhad requisite amount in the
bank,–~the pass book in respect of the
bank account. VV’I:heA’adfoi’esaid propositions are applicable to
of the xcas–e–.« ”
.’53”.’A (Civil) 308 (Silvey 82. Others Vs. Arum
Vargltese 82. another) deals with the case when the
it Afdefepndants failed to furnish the documents to the plaintiffs,
the conduct of the defendant cannot be ignored while
‘Hweighing the question of exercise of discretion for decreeing a
decree for specific performance. This decision is applicable
,4’
AN
Wfiigw
to the facts of the case as the defendant failed to obtain
income Tax clearance in the instant case.
54. Though we have answered all the points for
consideration in favour of the respondent. considering. the
long lapse of time involved in litigation and
estate that have arisen in the inte’rregnu.rn,_v’are of the
View that the respondent, while ha!.ar1ce«.p”a§Inei1tV
of Rs.2,40,000/– to the appellant,» should arrested to pay’?
interest at 24% pa Q11 its-u_m from the date of
agreement till the datelofhis’ direction, we feel
would V if
55. ‘:.E’or the aforesaidctgpreasons, the appeal filed by the
defendant the judgment and decree passed
by._§thei’.trial is confirmed Jsubject to above direction.
. Parties to -bear their own costs.
Sd/*
IUDGE
sd%
IUDGE
KVN*