{"id":227487,"date":"2009-12-18T00:00:00","date_gmt":"2009-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-subramaniam-vs-r-babu-on-18-december-2009"},"modified":"2015-11-27T15:31:28","modified_gmt":"2015-11-27T10:01:28","slug":"s-subramaniam-vs-r-babu-on-18-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-subramaniam-vs-r-babu-on-18-december-2009","title":{"rendered":"S Subramaniam vs R Babu on 18 December, 2009"},"content":{"rendered":"
Karnataka High Court<\/div>\n
S Subramaniam vs R Babu on 18 December, 2009<\/div>\n
Author: K.L.Manjunath & B.V.Nagarathna<\/div>\n
 \n\nIN THE HIGH COURT OF' KARNATAKA AT BANGALORE\nDATED THIS THE 18TH DAY OF DECEMBER: . \n\nPRESENT\n\nTHE HONBLE MRJUSTICE  4- _  \"  \n\nAND1__ . V\nTHE HON'BLE MRs.JUs_TIcE'\"B,V.NAG.Afe;ATHNA; \nR.F.A.NO.\"i5 64 \/12003-. A  1\n\nBETWEEN: \" in ' ' K\n\nSSUBRAMANIAM\n\nS\/O LT SAD1YAN_\n\nMAJOR      \n\nR\/A # 2683., =4THf _(:.;ROss_, 1gTH- 1\u00bb\/1:4 .\n\nHALIIS S'iT'AG.EV_ ' \nBANGA;OR\u00a3;g5\u20ac;4Q:V_Q38,_\"'  \" \"\n\n... APPELLANT\n\n(By Sri: M HOT,LAgsz..  ADVS.]\n\n' .:.\"1\"  R \n\nG' S HAMACHANDAR R\nAGED ABOUT 55 YEARS\n R'\/A-.#\"'2, NEW ANDHRA BLOCK\n,. LAXMIPURAM, ULSOOR\n13.AiNGALORE--560 O08\n\n H GAYATHR1 BABU\n\nW\/O R BABU\nAGED ABOUT 41 YEARS\n\nR\/A # 2, NEW ANDHRA BLOCK\nLAXMIPURAM, ULSOOR\nBANGALORE--56O O08 \n\n \n\n\n\n \n\n... RESPONDENTS<\/pre>\n
{By Sri: AMARESH A ANGADI, ADV. FOR C\/R
\nR-1 AND R-2}<\/p>\n
RFA FILED U\/S. 96 OF CPC_-*”;’&(D'{AIl\\T$lT’- <\/p>\n
JUDGMENT AND DEGREE I)’I’.”22\u00ab_l 1,103  IN
\nO.S.NO.10005\/95 ON THE FILE  THEfivX;'{VIiI.I’ABD’L. CITY<\/p>\n
CIVIL JUDGE, MAYOHALL UN1T,*.eANGALoRE–,~ ..(cCc:”H..-V2’siV<\/p>\n
DECREEING T}-IE SUIT F0R.s1\u00a7Ec1F1r:_, ‘PERF0RM.A1\u00a7Ic\u00a3;.<\/p>\n
This RFA having.beenVAtheai’d and reservedvvvgfor orders
\non this day, the NAGARA’.IHI’.JA J, ,pr._Qn_Ou.nced the following:\u00ab\u00ab<\/p>\n
This5appea.l”is”ifiledebytlltliie*defendant by challenging the
\nJudgment  _vDe:eflee:D:passed l.i\u00a7i”‘e.s.No. 10005\/1996 by the
\n Mayo Hall Unit, Bangalore.\n<\/p>\n
The said  was fi1ed’*\u00b0l:)y the plaintiffs seeking specific<\/p>\n
  0fADa’r1″”*agreement dated 12.8.1993. The trial<\/p>\n
 ‘   the suit and being aggrieved by the said<\/p>\n
Jzzdgnaenttldand Decree the defendant has preferred this<\/p>\n
D . V. aPI3eal.l  V<\/p>\n
.5 ‘~.\n<\/p>\n
4%. D For the sake of convenience the parties shall be<\/p>\n
V hmteferred to in terms of their status before the trial Court.<\/p>\n
?>..\n<\/p>\n<\/p>\n
3. According to the plaintiffs ‘_ the defendant is the
\nabsolute owner of the property bearing No.2683 situated in
\nHAL If Stage, BangaIore~38, more fully descritnecfin the<\/p>\n
schedule and he had acquired the said site <\/p>\n
Development Authority by a registered   <\/p>\n
8.3.1989 that as per sanctionecifplalni dated’ .i:5′;3fp,.19s9 he 7<\/p>\n
had put up a ground \ufb02oor and first\ufb02oor buildji_ng.* <\/p>\n
Development Authority had ‘da.e:livered. p–osses_sionp ofthe site
\nas per possession certi_iicatei”datv_ed  According to
\nthe plaintiffs the plarties _.yme”ta..v”‘through advocate<\/p>\n
Sri.H.N.Srini_vas’ Anand ands the”s’ale agreement was reduced<\/p>\n
to  a V\ufb02Rs.7,1O,OO0\/– and earnest
\nrnoney_of paid on 26.6.1993. That another
\nsum of  paid on 12.8.1993 and further<\/p>\n
  Rs.2,2O’O’,’G–0–0\/– was paid by way of advance by<\/p>\n
‘ .-llB:.E_2;.,i_993a,ifthereby total advance amount of Rs.4,70,000\/–<\/p>\n
“wast ‘j\ufb02izcording to the plaintiffs it was agreed that the<\/p>\n
balance; sale consideration amount of Rs.2,40,000\/– was to<\/p>\n
if ible’\u00ab,paid at the time of registration of the sale deed. The<\/p>\n
fgdefendant had to obtain the necessary Income Tax clearance<\/p>\n
‘certificate from the Income Tax Authorities and the<\/p>\n
defendant had also stated at the time of agreement and<\/p>\n
assured that the schedule property was not alienated or<\/p>\n
55’.\n<\/p>\n
encumbered, but that he had taken a loan from the LIC of
\nIndia for the purpose of construction and the defendant had
\npromised to discharge the said loan amount outhhof the<\/p>\n
second advance of Rs.2,00,000\/- to be paid <\/p>\n
and that the defendant had also promised to ass:ignt V’ <\/p>\n
of the plaintiffs the amount paid:’bj} ‘tl1e_tenantAlV:i’1i.a_sum.”of T<\/p>\n
Rs.1,50,000\/–.\n<\/p>\n
4. According to the plaintiffs_}’~  defend-ant’ after the
\nclearance of the loan    ‘secure the original<\/p>\n
documents of title.,ancf._’ the plaintiffs. The<\/p>\n
defendants lo.anlcum–additional advance of
\nRs.2,(l0p,(l00\/rover the documents of title and<\/p>\n
discharge\u00b0certifica._tethe loan. The plaintiffs have stated<\/p>\n
   wereffreadgwand willing to perform their part of the<\/p>\n
‘ ;cont.ra::t’andaocording to them the sale deed wasirqegistered<\/p>\n
‘in their’  by the defendant.- That the ground floor of<\/p>\n
 the schedule property which was in occupation of the<\/p>\n
if ideferndant and the first fioor of the said property was in<\/p>\n
Afoocupation of a tenant and that the ground floor was vacated<\/p>\n
V “lay the defendant and possession was given to the plaintiffs<\/p>\n
after entering into the agreement and since the ground floor<\/p>\n
was in dilapidated condition, the plaintiffs were permitted to<\/p>\n
iv<\/p>\n
2′<\/p>\n
carry out renovation and repair Work and according to the
\nplaintiffs a sum of Rs.50,000\/– was spent for the same. But
\nthe defendant locked the doors of the ground floor and<\/p>\n
prevented the plaintiffs from using it and them<\/p>\n
fact even failed to obtain Income Tax clearancejcevrtificattet’<\/p>\n
and he did not come forward tom execute f\u00abs_a_le”:Vdee’d.<\/p>\n
According to the plaintiffs,   ~ den:4a’n.ded,<\/p>\n
Rs.18,00,000\/- for the S8_]~fL:\\”~~K,\u00ab)\\f then. .sche’c_1ulew’premises<\/p>\n
whereas the plaintiffs mvas al.l”a1ofnglVre.ady and”Wi’1Vling to pay
\nthe balance sale considetration.lof:’Rs’Q — on the date<\/p>\n
of registration .5_ale;_’deed;:: _Ttia_t.._the”;plaintiff sent a legal<\/p>\n
notice ‘dated   the defendant, but the defendant
\ndid not cornplv  and therefore, the suit for
\nspecific pe’rforrnar;.ce’~.afnd”fpermanent injunction Was filed.<\/p>\n
‘   is’e.rv1ce of notice from the trial court, the<\/p>\n
‘defendari~tf: appeared and filed his Written statement<\/p>\n
adhniittivnghvthat an agreement of sale which the plaintiff was<\/p>\n
 “c=nt_erevd’ into on 12.8.1993 that he had received a sum of<\/p>\n
‘”‘Rs.”7:0,000\/~ as advance on the said date and that the sum of<\/p>\n
if “”Rs.2,00,000\/- was received as the second advance on<\/p>\n
12.8.1993, but the plaintiff had failed to pay a sum of<\/p>\n
Rs.2,00,000\/- towards the third advance as agreed on or<\/p>\n
ta<\/p>\n
c<\/p>\n
M6…\n<\/p>\n
before 30.9.1993. The defendant had handed over the
\noriginal documents to the plaintiff to enable the plaintiffs to
\nproduce the documents before the HDF-‘C or other \ufb01nancial
\ninstitutions to avail a loan and colnplete the traiisaction.<\/p>\n
The defendant denied that in part perform*an.cfe’__’p_olf Jtlie<\/p>\n
agreement of sale dated 12.8.1993, posseSSi0lf1~–..wasp’given <\/p>\n
the plaintiffs as far as the ground \ufb02oor’ <\/p>\n
the defendant had spent huge surns of money for f’its”‘.re’pai1″ag<\/p>\n
and renovation. According to ‘Vthpeldefendant’,’ the plaintiff was<\/p>\n
never ready and willingpto  hi’s..ppart’of contract. In<\/p>\n
fact the plaintiff did not  with him for<\/p>\n
paying the if The defendant had agreed<\/p>\n
to seltthe.  fi’or_ffa.:llesser price as he was in urgent<\/p>\n
need of fu”n.ds”for’setting”up his son’s business. However, in<\/p>\n
  thfe9.abs:en.ce of Vltrie—-plaintiff coming forward to complete his<\/p>\n
3 .\u00bbpart_of:tl3e\u00bbtransaction, the defendant was put to loss and<\/p>\n
‘Lordship’.n*f’.I’j_  V<\/p>\n
2 V\u00bb ” 9n the above rival pleadings. the trial court framed the<\/p>\n
following issues:\n<\/p>\n
 1) Whether defendant proves that plaintiffs failed to<\/p>\n
pay Rs.2,00,000\/~ as further advance on or
\nbefore 30.9.93 as per clause~3 of the agreement
\ndated 12.8.93′? jg<\/p>\n
\/’f.\n<\/p>\n
3}<\/p>\n
4)<\/p>\n
_l7s<\/p>\n
Whether plaintiff proves that he was ready and
\nwilling to perform his part of the contract?<\/p>\n
Whether plaintiff proves that the defendant
\nhanded over original documents of title to the<\/p>\n
plaintiff in part performance of the agreemento_f_<\/p>\n
sale dated 12.8.93′?\n<\/p>\n
Whether plaintiff proves that he   \u00bb is
\npossession of the ground floor of -the <\/p>\n
property?\n<\/p>\n
Whether plaintiff proves that
\nRs.50,000\/– for carrying out renovation,’repairs\ufb01. <\/p>\n
and painting \u20acllC., to tphe_grourid_ floor’?  A .<\/p>\n
Whether the plaintiff proves that”the”ideferrdant
\nlocked the doors of  ground “t3.oor_.” and
\nprevented the vplaicntiff fron;…_mai=:ing use of the
\nsaid ground floor “as. c’On’te1.idedrV:lintpara–7 of the
\nDlaint’? –  1   <\/p>\n
Z’-.VWhethei”,~plaiinti’ff\u00b0vp_roves that the defendant<\/p>\n
‘demaIV1ded*Rs.Vf2′ vlakhsV.vin excess of amount as per
\nagreement o’f.’sale–._ to perform his part of the<\/p>\n
contr.act’?p <\/p>\n
 E\\?ff\\’TnetherAAV”‘defen’dant proves that the plaintiff<\/p>\n
‘misei”a_bly failed to perform their part of the<\/p>\n
  1 ‘ieont1’ac’t—-_and that they did not pay as per the<\/p>\n
9)~{<\/p>\n
ll}<\/p>\n
-a.greeme.rit, as contended in para 8 of the W.S’?<\/p>\n
_’.3Vl’;\u20actt”l’1Ae1′ the defendant proves that he agreed to<\/p>\n
, sell the suit property to the plaintiffs for a lesser
\nprice since he was in urgent need of money as<\/p>\n
contended in para~8 of the W.S’?\n<\/p>\n
Whether plaintiff proves that he was ready and
\nwilling to pay the balance amount of sale
\nconsideration within the stipulated period’?<\/p>\n
Whether the defendant proves that time was the
\nessence of contract and that plaintiff agreed to
\npay and complete the sale on or before 25.1 1.93.
\nfailing which the defendant IS entitled to forfeit<\/p>\n
9%<\/p>\n
Q’<\/p>\n
V8″\n<\/p>\n
Rs.70.000\/- paid as earnest as per clause 14(3)
\nof the agreement?\n<\/p>\n
12] Whether the defendant proves that the plaintiffs’:
\nfailed to furnish the draft sale deed to_”‘th_e.
\ndefendant so as to enable him to obtain income  , ‘
\ntax certificate to convey the suit property”? if f’<\/p>\n
13] Whether the plaintiff proveathatphefusold”h.i’s car];  .
\nto pay the initial earnest s-;um_to jiihe defendant  f
\nand that they borrowed ‘further amount _
\nsecurity of car garageyby\u00e9 paying heavy }}1’1’t”Cr\u20acSt? <\/p>\n
14] Whether defendant proves’ that hoand’ plaintiff
\nought to have applied _”to”\u00ab.the Ingome” tax
\nauthorities undei*~._Ser.269of,U;–L.Act and U\/s
\n269 of UL Act  for\u00a7.o}btaining’\u00bb\u00bbno objection
\ncertificate from Income.’ta:>k: a’11th’-Qifitl\u00e9s in terms
\nof the Income T*I”a\u00a7\u00a7”aVutho;V’it_iesV.iny terms of the
\nIncome taagby1’Act *19E_Si–~as”cont.end_ed in para–12[a]
\nof the’xv.s3;3__-.i_ ~  4-\n<\/p>\n
15]  Wii\ufb02ihefd\u00a2fEnda\ufb01t…_pr’ovies that the agreement of
\nsalehas. bec:om’e\u00abvoi.d and that this court has not
\njurisdiction totryfthe suit’?\n<\/p>\n
16);” ” lVVhet1″i’er_ plaintiff proves that he is ever ready<\/p>\n
  ;a_I1d.__ willing’v~ts\u00ab’perform his part of the contract
\nand that they approached the defendant time
\n “and.v4″%lgain to pay the balance amount of<\/p>\n
A “co’nVsidera”tion of Rs.2,40 lakhs?<\/p>\n
17′). ..__W1″iei”.her the plaintiff is entitled to the relief
\n.. prayed for’?\n<\/p>\n
W ‘\u00bb 1;8′}–..A What decree or order’?\n<\/p>\n
 In support of his case, the plaintiffs, examined
\nthemselves as PW.1 65: 2 and examined PW.3 to 5 and got<\/p>\n
marked Ex.P1 to P4 While the defendant examined himself as<\/p>\n
f\/;’.\n<\/p>\n
,9″\n<\/p>\n
DW.l and another person as DW2 and got marked Ex.Dl to<\/p>\n
D8.\n<\/p>\n
8. On the basis of the said evidence, <\/p>\n
answered issue Nos.l, 8, 9, 11 toWl.5 in the”ne_gative;,issvue’ \u00bb L’ <\/p>\n
Nos.2 to 4 in the affirmative as Vwell::’as :’iss’i1_e’\u00ab.i\\ios.lEl;f\u00bb,,1ACi’,igl6<\/p>\n
and 17 in the affirmative and\u00ab..i_ssue’-Nos.5 Eiivill”\/”Av.t:{.3a.rtly..3in lthei”<\/p>\n
affirmative and decreed the   the \u00ab.plaintiffs. Being
\naggrieved by the saivd-..;..Jl:L1dgn1e;ntll.a–n’d..Debcree the defendant<\/p>\n
has preferred this appealtg  ‘V<\/p>\n
9.  “haej;re  learned counsel for the appellant<\/p>\n
and the learned ‘c’o:_un’s\u00abel”forthe respondents.<\/p>\n
  is subrnittedlon behalf of the appellant that he had<\/p>\n
‘ .V.a’greAe’d:to  the suit schedule property only because he was<\/p>\n
.’it1″-widirel  of funds to set up his unemployed son in<\/p>\n
businesslthat in order to meet his urgent necessity, he had<\/p>\n
~ agreed to sell the schedule property at a lesser price. As per<\/p>\n
Agthe terms of the agreement of sale, the entire sale<\/p>\n
transaction had to be completed by 25.11.1993, but the<\/p>\n
respondent had failed to comply with the terms of the said<\/p>\n
agreement. i.e., though the respondent pleaded that he was<\/p>\n
\ufb01zz<\/p>\n
ready and willing to perform his part of the contract, there
\nwas no material on record to show that he had thebalance<\/p>\n
consideration and was ready to pay the same. in–‘jfac_t”;.pthere<\/p>\n
were no documents to show that the responden.tT’hla’dihtheq\ufb02<\/p>\n
necessary funds to pay the balanceiisale  ‘ p. <\/p>\n
the mother–in\u00ablaw of the first respondent  <\/p>\n
get over the lacuna in the ‘ev_fi’d.e11ce A’ofpP’N_. there!’<\/p>\n
was no other corroborativeivewdencel “with_:\u00a7regard to
\nstatements made by  T .”\u00a3’I4i.erefc;re’;’~according to the learned
\ncounsel for theappellaiit’\u00bbiIi”thelighttlof ‘Judgments of the<\/p>\n
Supreme    the respondents did<\/p>\n
not havethgiineceislsary.fundsulfor”completing the transaction
\nand hence they ready and willing to perform their
\npart of the..obligation: l’~I5le has relied upon certain decision<\/p>\n
p.artic}ilarly (il99e;….4 sec 526 and [1978(2) sec 115 to<\/p>\n
‘  there is no documentary proof with regard to<\/p>\n
.’availabi1ity_ oflfunds to pay the balance sale consideration<\/p>\n
the1’1.tl’1e suit for speci\ufb01c performance has to be dismissed.<\/p>\n
it \u00bb i4fe\u00ab..had also contended that the grant of specific performance<\/p>\n
 the instant case would be in equitous since the appellant<\/p>\n
had agreed to sell the property on account of his urgent<\/p>\n
\ufb01nancial need to set up his son in business. But since the<\/p>\n
respondent failed to pay balance consideration in time the<\/p>\n
%<\/p>\n
_  A
\nentire object with which the property was to be sold was
\nfrustrated. That for the appellant the schedule property is<\/p>\n
his only shelter and house and therefore, granting-afdecree<\/p>\n
of speci\ufb01c performance would be wholly <\/p>\n
this regard he has relied upon _Se.c,t_ion <\/p>\n
Relief Act.\n<\/p>\n
11. Per contra, learned couriselfor the\u00ab_respo\u00a7ndent has
\nsubmitted that the Ju’dgineI’l_t and ‘Deveree..ppassed by the trial
\ncourt does notcall for”anyjinterferen_ce”inthis appeal in as<\/p>\n
much as it  comply with the<\/p>\n
terrnsland asl’_”a”resu1t the respondent could
\nnot ail\/ail’ the l.oa’nV’Zat\u00b0an”appropriate point of time that there
\nwas no delay’ on of the respondent with regard to<\/p>\n
 of the'”bal–ance sale consideration. In fact evidence<\/p>\n
‘ let in to show that they were ready and willing<\/p>\n
“for”lfpayriiejnt:’ of the sale consideration. It is only the<\/p>\n
appellvaritvwho did not show any interest in completing his<\/p>\n
2   of the obligations and also executing the sale deed in<\/p>\n
Algfavlour of the respondent, that the trial court has rightly<\/p>\n
‘ answered the issues raised in the instant case which are as<\/p>\n
many as 18 in number by appreciating the material on<\/p>\n
record in its proper perspective and hence he has submitted<\/p>\n
gs.\n<\/p>\n
agreement and a further sum of Rs.2,00,000\/~ was paid. All<\/p>\n
put together, the plaintiffs had paid a sum of –<\/p>\n
and the balance sale consideration to be  <\/p>\n
plaintiffs was Rs.2,-40,000\/- at the time of  the ‘V . <\/p>\n
sale deed, which according to their agreern-e’nt”:v….,_dated<\/p>\n
12.8.1993 (Ex.P~\u00bbl) was to be on or before 25.’iei1*__.Ai9_o3._j’; it <\/p>\n
also not in dispute that the defendant hadygllclezared the loan
\namount outstanding the :IaIvCj\u00ab._Vofvl”india after receiving
\nadvance of  tjriehlplaintiffs and had<\/p>\n
delivered the ;:lo’ctg1ii’1en’:i’s of ti’tle”of.th’e” schedule property.<\/p>\n
14.   plaintiffs that they were
\nready v”and.wiliing*  their part of the contract. But<\/p>\n
the defendant has “g-flen.ie<l:'i"'"the said aspect by contending that<\/p>\n
 thefgalalintitls diiiiio-t'Vhave the balance sale consideration<\/p>\n
  . \/- and that they were not ready and willing<\/p>\n
to  part of the contract. The said aspect would<\/p>\n
 be considered as point N01. Before considering this aspect<\/p>\n
if  the matter, it is necessary to extract the relevant portion<\/p>\n
  the agreement to sell the property dated 12.8.1993<\/p>\n
" m{Ex.Pl}. The reason for entering into an agreement to sell the<\/p>\n
property is stated in the following manner in the recital of<\/p>\n
2.<\/p>\n
the agreement: \/7*<\/p>\n
alglw<\/p>\n
“WHEREAS the VENDOR being in need of funds<\/p>\n
(C1) to DISCHARGE the LIABILITY OUTSTANDING
\nwith the LIFE INSURANCE CORPORATION
\nINDIA, in respect of the aforesaid
\nProperty and (b) to PROVIDE himself  I” It
\nfor his domestic necessities, has to
\nSELL the aforesaid ImmovaE;3JteIIPrOper’ty.  —  = _  <\/p>\n
15. Clause 3 of the agreement :’=.aI’so states <\/p>\n
payments made and receiveIcI–_the AdCf_’\u20acIl:’l\u00a7I1’1:t  sum of
\nRs.70,000\/- on 26.2.1993 end:’a–.sum of “Rs..2,o:3,00o\/W on
\nthe date of the agreetfient. with the third<\/p>\n
advance consideratiorxtoI’be\u00a5paid.t’whieh\u00abe;7e’ads as follows:<\/p>\n
  agree and undertake to
\n‘PAY. % Unto’ AI.ijVth:e”1~..j?;3,*NDoR, a further SUM of
\nRs:2,OOv,Ooh\/;’._(RLI}5EES TWO LAKHS ONLY7. as<\/p>\n
 I and by of THIRD ADVANCE, for the<\/p>\n
_ I E”PftrRC1\u00a7.rAsE  the SCHEDULE PROPERTY, ON .-<\/p>\n
I  .  1993,”\n<\/p>\n
 regaf;1..e::to the balance sale consideration to be paid.
\nC1a’1.lSEa’1.4._- reads as follows:\n<\/p>\n
“The said PURCHASERS shall PAY unto the said
\nVENDOR, the BALANCE of the SALE
\nCONSIDERATION, at the time of the registration of<\/p>\n
\/1\u00bb<\/p>\n
\u00a2s<\/p>\n
the Sale deed, in their favour. before the Sub<\/p>\n
Registrar, Shiuqjz’. Nagar, Bangalore.”<\/p>\n
As per Clause 5 of the agreement, the parties had to<\/p>\n
complete the transaction on or before 25.1l..–l’Q93<\/p>\n
in Clause 5 in the following mannerzl
\n“The PARTIES hereto MUTUXSLLY
\nTRANSACTION of SALE’, i shall ‘be C0MFLE’I}’:’,D,V on;
\nor before the 25″‘ of Noz\ufb01erriber, 1993.  it<\/p>\n
As a trade preconditionitol’ transaction, the<\/p>\n
Vendor viz., the e:_lefen’dant*:;tiad\u00ab\u00ab..agreed’\u00bb:.to obtain necessary<\/p>\n
clearance  the”-1*ncome–tax authorities is as
\nstated: in ” clause   “as follows:\n<\/p>\n
 spee\ufb01ically agrees, assures and
\n “V undertakes’ to ‘obtain at his cost, NECESSARY
\n‘ icLE;A,RANcE”‘CERTIFICATE from the Income Tax
\n  _  for the sale of the schedule property<\/p>\n
injeuour of the Purchasers.”\n<\/p>\n
 .AWithz iegard to the encumbrance of the schedule property<\/p>\n
ll –..VVclau;se 9 clearly states about. the LIC loan which the<\/p>\n
VA  .. _..e1efendar1t had to clear and a sum of Rs.1,50,000\/– which<\/p>\n
the defendant had to pay to the tenants of the first floor and<\/p>\n
the schedule property which reads as follows: [Q
\n\/\/:t<\/p>\n
_ 15 _
\nThe VENDOR \ufb01irther declares and assures unto<\/p>\n
the PURCHASERS that he has not alienated or<\/p>\n
encumbered the Schedule Property in any <\/p>\n
or to any extent whatever, Except to the   ‘V’ <\/p>\n
{a} Loan outstanding withmthe L..-.’;”C’.'”Qf=India;_
\nwhich shall be duly Discharged’ from out   ,
\nAdditional\/Second Advance Of ..1eRse,,2,00;’0o0[;z_
\n{Rupees Two Lakhs Only) Paid this day,’vos”stated. <\/p>\n
above:\n<\/p>\n
(b) Amount of Rs.1,50,,00O\/’ {Rupees 2 One
\nLakh & Fifty Thousand”Onl.y,’ remaininlgiwith the
\nVendor, as  uiagg of”~–.Se.curi_ty Deposit in
\nconnection with the.e_’Occuf)ancy\/ease–in favour of
\nthe Occupant of…the’-first’ Floor o”fi,Vthe Schedule
\nProperty.’  Lajihichj: “shall”  be duly
\nAss1gn.ed;}1i717rarisferi’ed in  favour of the
\nPure-ha”sers.,v~–uvith._the-.Consent_of the Occupant of
\ntheffirsit Floor;  be mutually agreed by<\/p>\n
Ciause  vspelaks” failure on the part of either
\npe?141jt3\/” in perfortriivhg the contract and the liberty to enforce<\/p>\n
it  .the  seek penalty from the other party. Clause 14<\/p>\n
 . iS’_eXtr:i<':t,ed  "follows:\n<\/p>\n
“Thei~,uPAART1ES here to further MUTUALLY AGREE
\n the TRANSACTION shall be completed within<\/p>\n
  the stipulated period stated here in above, failing
\nO  which EITHER PARTY is ENTITLED to ENFORCE<\/p>\n
this CONTRACT of SALE, as and by way of
\nSPECIFIC PERFORMANCE, at the COST of the
\nDEFA ULTING PARTY. ALTERNATIVELY, the<\/p>\n
3;\/\u00bb\u00ab<\/p>\n
I<\/p>\n
M1″”]_<\/p>\n
PARTIES hereto are M UTUALLY ENTITLED to the
\nPENALTY OPTIONS as STATED ……..\n<\/p>\n
The VENDOR f1:rthe*r agree, assure and
\nundertake to HAND OVER\/ FURNISH Unto <\/p>\n
PURCHASERS, the DOCUMENTS of <\/p>\n
ORIGINAL, relating to the SCHEDULE PROP.F2RTi’fr’.j’ ” ,
\nimmediately on RECEIPT of the   ”\n<\/p>\n
L.I.C. of India, authorities ….{u_)_herein”‘”i’hey’V”are,V  <\/p>\n
presently deposited), in corlnectionfjyuujith the  .’<\/p>\n
taken from them, after fully  anti” it<\/p>\n
satisfying the Loan  from ‘them,
\nperiod shall not Exceed,:””in_ any case.__beyv(:3>nd :
\n151″ of Septen1ber;’~ .1 993.  VA  –. it<\/p>\n
 conftmis that he shall put his<\/p>\n
be”st_4ej”forts.’toAspeed up delivery of the title deeds<\/p>\n
 ” relating .. itovl the Schedule Property, unto the<\/p>\n
A E  i,Pur’chasers,Htofacilitate the Purchasers, to obtain
\n,, .,  V  the Purchase of the Schedule Property,
\n  H.D.F.C or other \ufb01nancial<\/p>\n
 nsatuttons \/ Agencies Etc. , .\n<\/p>\n
The Vendor further confirms that the<\/p>\n
Additional\/ Second Advance of Rs.2,00,000\/\u00bb
\n(Rupees Two Lakhs Only] is paid this day, as
\naforesaid, to enable the Vendor, to discharge the<\/p>\n
amounts outstanding with the L.I.C. Authorities.<\/p>\n
%<\/p>\n
..\/v<\/p>\n
It is also noted that clause 15 speaks of the undertaking
\ngiven by the defendant to deliver possession ofthie<\/p>\n
property and the said clause is as follows: _. ~  <\/p>\n
The Vendor further specificallyAA4pdg;;rees:.’A_’assur-eeltipll
\nand undertakes to oEr,rVER;’.PossEssi;3i\\7 of the”~ ‘
\nSchedule Property,  to “bet sotctv-sjurtto””t31e<\/p>\n
Purchasers. in the mannerstctted he’reu_nder:f%<\/p>\n
Ct} Actual. Phys1’co,_tfand_ V;ucortt_’p’Possession of the
\nGround Floor, on the date  the .re_\u00a7jt3t\u00e9’ation of the
\nSale deed’ infatfour theAPu_rchasers;<\/p>\n
b} Po.ss’esstoln–:’_ of  ‘the  First, Floor, through<\/p>\n
  same. from the
\nOccupdr–it–‘l..ofi _the:”First’ Floor, & as mutually
\ndecided’ agate Parties’;\n<\/p>\n
  the staid—-agreement itself there is receipt dated<\/p>\n
‘   a sum of Rs.1,00,000\/- and another receipt<\/p>\n
“satedVle”.j12’;’i993 for a sum of Rs.1.00.000\/~ which are<\/p>\n
markeld; as Exs.P–2 and P3 respectively. Ex.P–4 is the reply<\/p>\n
if  dated  12.1995 to the legal notice dated 19.9.1995 issued<\/p>\n
if ” ionfbehalf of the plaintiffs.\n<\/p>\n
17. In support of their case PW} who is plaintiff No.2 in<\/p>\n
her eXaminatior1–in\u00bbchief while reiterating the details of<\/p>\n
5%<\/p>\n
_  _
\npayment made to the defendant has stated that the<\/p>\n
defendant had availed a loan from LIC and had deposited the
\ntitle deeds and in order to discharge the loan with LIC and<\/p>\n
get back the original title deeds the advance moneyel..paid by<\/p>\n
the plaintiffs was utilised and in Novembe;’;”‘\u00abl19Sj9_{‘5l\u00a7. ;_.the<\/p>\n
defendant gave the original title deeds.  s_Lii:ii”o\u00a3 <\/p>\n
Rs.4,70,000\/– was paid and thejiloalance  i<\/p>\n
paid at the time of execution of J[‘f1\u20ac.”d\u20ac\u20acC1 aftcrvlVgettii;1g’ithelg<\/p>\n
lncome Tax clearance. According toVPWV1c,–v’the;: defendant
\ndelivered vacant posses_si0i:if.'”gf’ i..\u00a2;’h\ufb02e.<Vy'VlgrQundvfloor and the
\nplaintiffs got it repaired  ltrierea.-ftehivx.th.e'_'..defendant locked<\/p>\n
it andlreiuseld to iilalloilvtlhem tolenter the property. That the
\ntenantvvas in fii's\u00abt:\ufb02oo.i~' who had paid a sum of Rs.l.5
\nlakhs to the defeiidantarid according to PW1. the plaintiffs<\/p>\n
 agreed to V"tal:–e\u00ab'the property subject to attornment of<\/p>\n
' lease in their favour. When the defendant was<\/p>\n
"asked  completion of the transaction, the plaintiffs<\/p>\n
were.  that he would handover the keys provided the<\/p>\n
if  plaintiffs pay a sum of Rs.l8,00.000\/~. According to PW1.<\/p>\n
Atsince the building was in a dilapidated condition, a sum of<\/p>\n
 Rs.80,000\/~ was spent for renovation of ground floor and got<\/p>\n
the entire property painted and the damage to the wall was<\/p>\n
repaired. According to the plaintiffs. even after receipt of<\/p>\n
3\/:\n<\/p>\n
rx<\/p>\n
EX.P~\u00ab\u00e9l, defendant did not execute the sale deed in their
\nfavour. PW1 is willing to deposit the balance amount in the<\/p>\n
court which has been kept ready.\n<\/p>\n
18. In her cross~examination she has”\n<\/p>\n
defendant declined to accept thegthirda Ainstallrne-nt”<\/p>\n
her that he would accept .the__ sarne. _ after e’lea.ifanVce lof <\/p>\n
dues. She has also admitted’ the loriiginallvfdocuments
\nfurnished by the defendant   :..1_;:”993 for Which she had
\nissued acknowledgement ipisas Ex.D–1. She<\/p>\n
has also sta_ted};t1.ia_t..sheihad lonly””rnad’e oral request to the<\/p>\n
defendant”t<:{jp;c'alll to'_lle5<'ecute the sale deed and that
\nshe had no  that she had kept the balance
\namount ready by-_ and that she had paid amounts<\/p>\n
Srinivas 'Anand (Advocate) to purchase the stamp<\/p>\n
S .-paper.'   1<\/p>\n
19: _She_has also stated that she has documents to show<\/p>\n
 that spent Rs.80,000\/– to repair the ground floor. She<\/p>\n
 lhajlsfllso admitted that legal notice dated 10.1 1.1995 sent by<\/p>\n
 __the defendant and the postal acknowledgement which were<\/p>\n
marked as Exs.D–2 and 13-3. She has denied that plaintiffs<\/p>\n
are not ready to purchase the property and that defendant<\/p>\n
\u00ab':\u00bb<\/p>\n
,-\n<\/p>\n
M 21 M
\ndoes not own any other property or that she has not kept the<\/p>\n
balance amount ready.\n<\/p>\n
20. PW2 who is piaintiff No.1 in his examination–in–chief<\/p>\n
has stated that Advocate, Sri. Srinivas Anand, introduced<\/p>\n
defendant to him and that since the original the<\/p>\n
property were with LIC after a sum of  <\/p>\n
paid by the plaintiffs, the LIC io’an”was ‘the 9 T<\/p>\n
defendant and the documents wferefgiyfen  if<\/p>\n
time, the house was in a dilapidated “co_nditio;_n  ‘after the<\/p>\n
defendant handed over the.i-‘keyps– of__the \u00absuit property, he<\/p>\n
renoj?ated’ethVe_  ofuthev same and that the tenant
\nwas atfirst  the defendant had taken a sum
\nof R_s.1.50’=.lakh  that the plaintiffs would pay the<\/p>\n
 to the ‘tenant and the remaining sale consideration<\/p>\n
V   to the defendant. That after repairing the<\/p>\n
f’   the property, the defendant locked the house<\/p>\n
and ..too._kVaway the keys. That a sum of Rs.80,000\/- was<\/p>\n
 spent on the said repair. That though PW2 stated that he<\/p>\n
fgwould pay Rs.2,00,000\/– more, the defendant demanded<\/p>\n
H Rs.18,00,000\/– for the suit schedule property. When the<\/p>\n
balance sale consideration was offered to the defendant to<\/p>\n
complete the sale deed. he did not do so. That amounts were<\/p>\n
\/Ea<\/p>\n
M 22 M
\npaid for stamps for completing the sale deed. According to<\/p>\n
PW2 he is willing to pay the balance amount for execution of<\/p>\n
the sale deed.\n<\/p>\n
21. in his cross–examination, he has stated  not<\/p>\n
pay the third installment on 30.9.1993 sinc_elv_fthe’  <\/p>\n
did not give him the papers by the dated jalsie)<\/p>\n
stated in the cross–exarnination that he does.’t.l,n.ot have any<\/p>\n
document to show that he 2 .50 laiihl’inf-hisfaccount to<\/p>\n
pay to the defendant. ‘He pdeniedfthllat he does
\nnot have any balance sale to be paid to the<\/p>\n
defendant”or{f,thatfVhe to perform his part of the<\/p>\n
obligation under  agreernrsnt.\n<\/p>\n
22. PW3_ is the 4liTI1O’l.Ll\ufb01lii.i;–I”–i1’l~laW of the first plaintiff and<\/p>\n
rnotheriiof thel”sec:ond plaintiff who has stated that she knows<\/p>\n
 theftransaction between the parties and that the<\/p>\n
 .det’endaf1_t,l___ha’d”‘given the keys of the suit property to the<\/p>\n
plaintiffs “after receiving the advance and the plaintiffs had<\/p>\n
 ..spentl’rnoney for the renovation of the property, but the<\/p>\n
l’z_ld’efe-‘ndant forcibly locked the schedule property and later<\/p>\n
 * Jdernanded Rs.l8,00,000\/–. She has stated that the balance<\/p>\n
consideration which is to be paid to the defendant is with<\/p>\n
\ufb01g’ V<\/p>\n
_i23_i<\/p>\n
her and that she is ready to pay the amount at the time of
\nexecution of the sale deed. In her cross-eXarnination, she<\/p>\n
has denied that the suit property was not renovated.’loy_ the<\/p>\n
plaintiffs or that the defendant had not taken_ayyayi.l_tl”ie:ls:ey’s<\/p>\n
or that she does not have the balance con.sider\u00a71tion: amount.\u00bb <\/p>\n
to pay to the defendant.\n<\/p>\n
23. PW4 is a person known tofthie  the<\/p>\n
defendant, has spoken about__t_h:evVtransactionyandilhas stated
\nin his–examination–in;nhief:   poi’ affidavit that the<\/p>\n
ground floor was vacated\u00bb and  first \ufb02oor was occupied by<\/p>\n
tenantlland  fullllydarnaged and not in a good
\ncondition   the plaintiff that it is not worth
\nRs.7,00,9@Ol\/’– , V lB._uti~the…lplaintiffs had stated that the area is<\/p>\n
 relsidvential area and hence, they agreed to<\/p>\n
‘ ,.p’urcl”i.ase;’th:e schedule property with an intention to get the<\/p>\n
” repair Worjlclydone and alter the house according to vastu. He<\/p>\n
stated” that on 26.3.1993 on the date of the inspection of the<\/p>\n
if  if placegthe plaintiffs advanced a sum of Rs.70,000\/- towards<\/p>\n
 sale consideration. That in the office of Sri.Srinivas<\/p>\n
 Anand, Advocate, the sale agreement was executed on<\/p>\n
12.8.1993 and he had signed the agreement on that date as<\/p>\n
a witness and his signature is at EX.P–2[g). That on<\/p>\n
5.<\/p>\n
M24,<\/p>\n
30.9.1993, when the plaintiffs and Sri. Srinivas Anand,
\nAdvocate, Went to the defendant with a sum of Rs.2,00,000\/-<\/p>\n
by Way of third advance, the defendant pleaded ii-n_:ability<\/p>\n
to pay the loan amount and get the original  and<\/p>\n
stated that he required sometime to get the~’loa:n  <\/p>\n
and get the original document. Thereafter:4.the”de’fe.nd1ant<\/p>\n
handed over the originalyfdo_cumen_t” on  <\/p>\n
possession was handed ovef”‘i’c;_{‘15.121993’onlgwhich day
\nthe defendant receiv’e_d”‘~\u00aba :\u00ab.R.sv;’l\u00ab,.O0,00(j\/ by way of<\/p>\n
Cash and another supnfil   on 16.12.1993<\/p>\n
through pay”  fdr Which'”‘rec’eipi’s..:he’had signed as a<\/p>\n
witnelssf”   hadptherefore, received a sum of
\n  carried out the repairs of the
\nground  poiitions including kitchen which was badly<\/p>\n
daihaged __andhVrep1aced the tiles and painted and suitably<\/p>\n
‘ ;.alterevd4V’andj”‘repaired by spending a sum of Rs.80,000\/-<\/p>\n
“ivliichVrepjairr1’vvas completed in May 1994 and that they had<\/p>\n
engazged s Savita Furniture and Home Repairs and after<\/p>\n
2 Althea renovation, the defendant demanded higher<\/p>\n
Altconsideration of Rs.18,00,000\/- in place of Rs.7,00,000\/–<\/p>\n
whereas the defendant was requested to register the sale<\/p>\n
deed after taking the baiance sale consideration amount of<\/p>\n
Rs.2,-40,000\/– as agreed, where as the defendant locked the<\/p>\n
1\/3:.\n<\/p>\n
,25_<\/p>\n
ground \ufb02oor portion and forcibly dispossessed the plaintiffs
\nwhen the plaintiffs had paid their hard earned money to the
\ndefendant with an intention to have shelter of his Vo\\}vn’;c._fi’hat<\/p>\n
the proprietor of M\/s Savita Furniture and _n’om\u00a2~<\/p>\n
who repaired the schedule house, of<\/p>\n
October, 2002. In his cross~exar1r1ination., dhgeihas 4stated..rAth,at ‘<\/p>\n
the first plaintiff is the son~;in–lavvA_o’f his \u00a31e”1~.a:s_<\/p>\n
denied that defendant did not.:handover_ ‘possession of the
\nground floor on 15.i\u00a7?,;~~1g_993″or:Athat.Tpiaintiff renovated
\nthe suit property. He has  defendant had<\/p>\n
locked the su’i’i’\u00ab\u00abg.rpfropertyg  was made by the<\/p>\n
plaintiffs’ ‘and  thetamoudntvtvvas paid to Sri. Srinivas<\/p>\n
Anand,gAdvocate:i”or  stamp paper.\n<\/p>\n
  Murugesn Swamy has deposed as PW5 as a<\/p>\n
‘ .i.p”ersgon_Vwhoiddwas attached to the Proprietor of M\/s Savita<\/p>\n
  Home Repairs, Uisoor, Bangalore and had<\/p>\n
carriedion the repair in the ground floor of the premises. He<\/p>\n
2 V. Adhasyalso given the details of the repair in the month of June<\/p>\n
 and that the defendant used to visit schedule premises<\/p>\n
‘to see the renovation work. That in the second week of June<\/p>\n
1994 or in the evening hours after work the defendant had<\/p>\n
locked the premises by removing the earlier lock and that<\/p>\n
—27-\n<\/p>\n
26. On the basis of the aforesaid material, it is necessary
\nto consider the readiness and willingness on the part of the
\nplaintiffs to perform their part of the contract. ‘I’he’:capacity<\/p>\n
of a party to perform the contract includinggthej;finan;ci~al<\/p>\n
capacity to pay the purchase price is  <\/p>\n
conduct of a party would indicate   if<\/p>\n
the contract. While appreciating’readiness <\/p>\n
on the part of the plaintiffs,  regardfto-unonivpayment of
\nthe requisite sale consideratiolngr tobeappreciated
\nIS the fact that the plaintiffs’   to pay the sale<\/p>\n
consideration.’dinporder”to”p:proVeVf”that the plaintiffs had the<\/p>\n
requ1.sitei’bal’apnceifisaie”‘consideration, it is not necessary that
\nthe said fact’ h.as*:t’o\u00ab by documentary evidence. It is<\/p>\n
suf\ufb01cientfrom the Aoralv.–eVidence that it is established that<\/p>\n
 thee. plaintiff  …. the funds to pay the balance sale<\/p>\n
‘ ;cons1dVeration*..__En this context it is necessary to see that the<\/p>\n
‘total  consideration for the schedule property was<\/p>\n
Rsfli and a sum of Rs.4,70,000\/– has been<\/p>\n
 “aceepteld by the defendant and out of which a sum of<\/p>\n
l”\u00abi2sl..l’A2A,00.0O0\/\u00ab~ was utilised by him to pay of the outstanding<\/p>\n
if  “debts with LIC of India and after obtaining the documents of<\/p>\n
title to the schedule property for the clearance of the said<\/p>\n
land, the said documents were also handed over to the<\/p>\n
\u00a7\u00ab<\/p>\n
Wggm<\/p>\n
plaintiffs by the defendant. According to PWI, the plaintiffs
\nhad the funds to pay the balance sale consideration and<\/p>\n
according to PW8 the mother of PW2, she was ready-…yto._pay<\/p>\n
the said amount at the time of registration ofclieedv<\/p>\n
as she has the requisite fund. In fact, PW:&”whof_vis’V’one.o1’the . <\/p>\n
witnesses to Ex.P–1 has stated that :l’1e..”I\u00b0ldyo’:Vate<\/p>\n
Sri. Srinivas Anand requesteo\ufb02the defendant: ‘to; register lthe”<\/p>\n
sale deed by accepting the vbalance sale: consideration of
\nRs.2,40,000\/–. But –t.hei– defe_r_1r_ian.t who did not come
\nforward to do so.     I I I<\/p>\n
27. On other  established that out of
\nRs.7,oo,o0o’\/i._,V’  Rs.4,70,000\/- which is a
\nsubstantial. portionffopf  sale consideration had been paid<\/p>\n
‘itheffyplaintiffs ‘an-d\ufb01a balance of Rs.2,40.000\/– only had to<\/p>\n
I time of execution of the sale deed. In fact, in<\/p>\n
.’tefxns oi’.fC_laeuse 14 of the agreement to sell, the defendant<\/p>\n
was ..toAhandover the original title deeds to the plaintiffs after<\/p>\n
 reteiving the same from LIC of India on clearance of the<\/p>\n
A”\u00a7o1′.1tstanding with the help of the advance amount paid by the<\/p>\n
I plaintiffs and the original document was to be made use of<\/p>\n
by the plaintiffs, by producing the same before HDFC Bank<\/p>\n
or any other financial institution so that the loan could be<\/p>\n
5,<\/p>\n
,\/f.\n<\/p>\n
availed to pay the amount to the defendant. In fact, Ex.P–1
\nis the acknowledgement of the title deeds by the defendant to<\/p>\n
the plaintiff, on 20.11.1993, which was only ‘five<\/p>\n
to the date agreed by the parties to complete.utransaction, <\/p>\n
Although the agreement stated that  title  ‘<\/p>\n
handed over by the defendant to thehplaintiffs-V.tofobtaignuloariit<\/p>\n
for paying the balance sale co’n:sideration_   same was
\nalso handed over,   onltheefplaintiffs to
\ndo so if he could = other manner.\n<\/p>\n
Therefore,   that  Vayfailed by the plaintiffs
\nfrom  even after the receipt
\nof   would not imply that the
\nplaintiffs’ had  they had failed to make use of
\nthe title the loan. Since it has come in the<\/p>\n
 that “F”W3.,…tne mother-in–laW of plaintiff No.1, had<\/p>\n
‘ ,,the. requ*isi<t.e" funds to pay the balance sale consideration.<\/p>\n
 a "It, also contended by the plaintiffs that they were put<\/p>\n
2 Afiiixpossession of the ground floor of the schedule property<\/p>\n
 that they had spent considerable sum for carrying out<\/p>\n
 repair and renovation work, but subsequently, the defendant<\/p>\n
locked the ground floor and prevented the plaintiffs from<\/p>\n
making use of the ground floor. It is seen from clause 15<\/p>\n
%.\n<\/p>\n
zf;\/7*<\/p>\n
n30n<\/p>\n
that possession of the ground floor was to be handed over
\nonly on the date of the registration of the sale deed. But it is
\nthe case of the defendant that possession of the grotfnd floor<\/p>\n
was not handed over to the plaintiffs. Howe\u00a7ver;p&’pp13:lN’s.:.l”,’,2<\/p>\n
and 4 have deposed that the defend_a;1f!””..Vyhanded ffoverf\ufb02<\/p>\n
possession of the suit schedule jpropiefrcty to  on if<\/p>\n
15.12.1993 and the plaintiffs ‘carried o.Lijt.’I’e:pairf.”‘andpp<\/p>\n
alteration work and PW5 haspstated that”th.e plaintiffs met
\nthe expenditure for eailteration\ufb02anid rep.air andthereafter the
\ndefendant locked the pfrernisfesff  to this evidence,<\/p>\n
the defenda_nt’:ha-s  placied\u00ab.Va:iyfi~eyidfence to contend that<\/p>\n
the grolundyiflioorff not-in a’.di’Eapidated condition and it did
\nnot that possession was not handed
\nover to  plvaintiffs..Vor\u00ab..t’hat no repair work was done by the<\/p>\n
p_laintifi’s in the prerriises. in fact, in the cross–exarn1nation<\/p>\n
‘ ;fo*f.eVPWVsL’lf,”Qfand 5, nothing contrary has been elicited by the<\/p>\n
 therefore there is no reason as to why the<\/p>\n
contention of the plaintiffs that possession was handed over<\/p>\n
 ” tioathefitn by the defendant and that they had carried out<\/p>\n
“‘i.f:=,pair work in the ground floor of the schedule property and<\/p>\n
“thereafter, the defendant locked the ground floor and<\/p>\n
demanded higher sale consideration cannot be accepted.<\/p>\n
5%\u00bb<\/p>\n
‘ 9<\/p>\n
_  __\n<\/p>\n
29. In fact, it is the case of PW1 that the defendant had<\/p>\n
demanded a sum of Rs.18,00,000\/~ and therefore, he had<\/p>\n
refused to execute the sale deed by stating that the..pr_iceV_has<\/p>\n
risen unless the plaintiffs paid a higher <\/p>\n
execute the sale deed in favour of the plaintiffstli\ufb01j  la. <\/p>\n
has also stated that the market:=__vVal:u.elA.<\/p>\n
increased and he is not ready-to execute any”sa1e4_deed niowl.’H<\/p>\n
In fact, even PW2 has stated he requested  defendant
\nthat he would pay additional confsi<:lera'ti.on of lRsN.2,O0,O0O\/-,
\nbut the defendant denA1_and.ed.vlV_a ~:.Rs–}18,00,000\/–. The<\/p>\n
stand taken:_"bfp;jptl1e defendant"'inV 'his..ei}idence would clearly<\/p>\n
indicatellfVt'l1ai'l\u00a2,tlie7fdefe'ndantlwas\ufb02conscious of the fact that
\nthe price of the~:'g\u00e9'clied_Ltile:'property has risen and therefore,
\nunwillingness on._tli~es  of the defendant to execute the<\/p>\n
sale  can"'be….infer1'ed, although the evidence of the<\/p>\n
V  they were willing to pay the additional sum of<\/p>\n
if  as sale consideration is not corroborated.<\/p>\n
30..  It \u00abis the further contention of the defendant that the<\/p>\n
 .A pplaintiffs failed to perform their part of the contract and<\/p>\n
l f’t\u00bbherefore, when time was the essence of the contract and the<\/p>\n
plaintiffs had agreed to complete the same on or before<\/p>\n
25.11.1993, the plaintiffs in the absence of making the third<\/p>\n
)1-\n<\/p>\n
\/3<\/p>\n
n32n<\/p>\n
advance payment within the said time are not entitled to the<\/p>\n
relief of specific performance. But what has to beebsleen is<\/p>\n
that the defendant handed over the documentsjof  tdthe<\/p>\n
plaintiffs only on 20.11.1998 and defenda.ntv_Al’:f~e;as:.A_\ufb01o’_where9″x_<\/p>\n
stated that he had obtained  <\/p>\n
certificate from the Income tag; Authorities and  by doing 1<\/p>\n
so the sale deed could  and
\nneither has the defendant   evidence
\nthat he had made arrang~eAmen’ltsvto–=get.’t~he_i.tenancy rights of
\nthe first \ufb02oereeietg\ufb01ed  so that when the
\ntenant  would pay a sum of
\nRs.1:’50;lOO9.}f,~:v toiifittriefltenantslfl”Therefore, the defendant has
\ncommitted Jcohntract by not performing the
\n0bli_gatioh”s..Which._ “A71:-‘._Ib’le”~~l<.l*'ast upon him under the agreement.<\/p>\n
 fact even aftervthedate set out in the agreement regarding<\/p>\n
9 :.lp'a3rrneI:it ivofrthe third advance, the defendant accepted the<\/p>\n
"same eh'–".j':s.:i2.1993 and 16.12.1993 which is beyond the<\/p>\n
time.  for completion of the contract i.e., 25.1 1.1993 and<\/p>\n
it  therefore, it has to be implied that though the date for<\/p>\n
Algcompletion of the agreement was mentioned in the<\/p>\n
'agreement both the parties had given up the same and<\/p>\n
therefore time was not the essence of the contract. It is also<\/p>\n
to be noted that in the absence of income tax clearance
\n\u00a35;\n<\/p>\n
certificate the transaction could not have been completed as<\/p>\n
it would have otherwise resulted in penal consequences. In<\/p>\n
. fact, even when the title deeds were handed overgthe fact<\/p>\n
that permission was obtained from the  <\/p>\n
authorities to execute the sale deed by the is  <\/p>\n
established. In fact, nowhere it”;has”come -:one:_’r:ecord’Vwith if<\/p>\n
such a permission was ever obtained by the defendant;–‘ <\/p>\n
31. On the other .l_1and;’lthetidefenpdantfhad ‘made use of
\nthe advance amount.’  fpl=ain.tiffs to get the<\/p>\n
document release-d  of\u00b0Ifndipa’a:t1d has submitted to<\/p>\n
the ptlaint’iff5t};. in  abseunce of further performance of
\nthe obligations I bj(e\u00ab.the..f_’defe.i1dant the transaction could not
\nhave been. taken to  logical conclusion. Though, the<\/p>\n
 hadV’giv–e~::\u00ab’the title deeds to the plaintiffs, he got<\/p>\n
‘ seeking return of the title deeds which act of<\/p>\n
‘thief defenxstant has to be construed as an expression of his<\/p>\n
own unwillingness to perform his part of the contract. In<\/p>\n
If \u00bb nfactit has come in the evidence that the plaintiffs were ready<\/p>\n
 willing to perform their part of the contract. But until<\/p>\n
‘and unless the defendant had obtained the income tax<\/p>\n
clearance, the sale agreement could not be registered.<\/p>\n
Therefore, the defendant cannot allege that the plaintiffs<\/p>\n
\u00e9ar<\/p>\n
m34_<\/p>\n
were not ready- and willing to perform their part of the
\ncontract. On the other hand, it is to be held that the<\/p>\n
contract could not be concluded between the parties. on<\/p>\n
account of the non–performance of the obligation’Vibylfthey<\/p>\n
defendant and that the plaintiffs were ready__pa1a.d _ <\/p>\n
perform their part of the contract.\n<\/p>\n
32. At this stage it is necessary to regfe’r:’to” cl.a.1’1se’=,<\/p>\n
(3), (4), (5), [8] and (9)  agreem_e’ni;”,V.= tfijiolaglh in if<\/p>\n
clauses (3), [4] and”.,__{5)   stated ‘thaththe third
\nadvance of Rs.2,00,000\/’bio  on or before<\/p>\n
30.9.1993 and  balanceifconsideration was to be paid at<\/p>\n
the time  \u00a7a;1’e”deed and the transaction
\nwas to be lcomp.1ete’cl\u00ab.Q\ufb01.o:r*- before 25.11.1993, it is necessary<\/p>\n
to note that. the 3\u00a5’d’Aad’vance paid in December \u00a3993 was<\/p>\n
 by the ‘defendant and the sale deed was to be<\/p>\n
 reg’1ste1″ed’isubject to the defendant obtaining necessary<\/p>\n
clearance ‘Vecrti\ufb01cate from Income Tax Authorities. As far<\/p>\n
 as th.eiWplaintiffs are concerned, they had completed their<\/p>\n
if part\u00ab.of the obligations under the contract and it is the<\/p>\n
 defendant who did not get the necessary Income Tax<\/p>\n
llnhfuliearance before 25.11.1993 so that the sale could be<\/p>\n
completed. On a reading of the various clauses of<\/p>\n
the contract and the conduct of the parties, we<\/p>\n
5%.\n<\/p>\n
c35_<\/p>\n
find that the plaintiffs had performed their part of the
\nobligations and were ready and willing to perform those
\nobligations at the time of the registration of the sa:le\u00bbcdeed.<\/p>\n
However, it is the defendant who was not ready—andl__i’wil:l’ing<\/p>\n
to perform his part of the contract. ‘Iherefore;–..point llisl <\/p>\n
held in favour of the plaintiffs and againstithe’defendant; J <\/p>\n
33. With regard to point l\\l?o.. concernecli, Cection 20 of
\nthe Act states that” ~..the .jurisldictlio.n to ‘decree specific
\nperformance is discretioriaiyg’lt:’says’–,that_j_the Court is not<\/p>\n
bound to gran-tyyjstich’V.mere’lyj_beca;1se it is lawful to do<\/p>\n
so. fSluch– dis’cfietio.n’.’ however. is not to be exercised
\narbitrarily, but ‘z\ufb011eustv._.bie.,4b.ased on sound and reasonable<\/p>\n
judicial ll principlesl\ufb01ll  Section also specifies the<\/p>\n
circuirlstances linvwhi’ch the Court may properly exercise the<\/p>\n
‘ ;.discretion_*not\u00ab_ to decree specific performance and it also<\/p>\n
“speci\ufb01es’~lwh.en, in an appropriate case. a decree could be<\/p>\n
given by proper exercise of discretion. Section 20 is not an<\/p>\n
2 if exhaustive provision, but merely illustrative as it is not<\/p>\n
Cpossible to define the circumstances in which equitable relief<\/p>\n
‘could or could not be granted. If, therefore, on a<\/p>\n
consideration of all the circumstances of the case, the Court<\/p>\n
thinks that it will be inequitable to grant the relief asked for,<\/p>\n
3;\u00bb;\n<\/p>\n
it should not give the relief. In this context, it is necessary to
\nrefer to explanation to Section 10 of the Act provides that,
\nunless and until the contrary is proved, the Cou:rt\u00bb,shall<\/p>\n
presume that the breach of a contract to transfer.<\/p>\n
property cannot be adequately relieved by” <\/p>\n
money. But the said presL;”mption,_v His-S f’–rebuttable if<\/p>\n
presumption.\n<\/p>\n
34. Sub–section [,?;)~.__ of  specifies certain<\/p>\n
circumstances when dis_c’retioi*1:’ may’ ‘exercised not to<\/p>\n
decree specific,’ ‘performan\u00a2::e;.,V”~..”]?]riese:’ circumstances are<\/p>\n
illustrativeesaiiid  cfangbe  as followsg<\/p>\n
Ii) ._ V .  ternis of the contract or the<\/p>\n
‘ con’duct”o.f the parties at the time of entering<\/p>\n
” into Acor:~–tract or the circumstances under<\/p>\n
 _ _which’the contract was entered into are such<\/p>\n
ti’iat—\u00ab*’they give the plaintiff an unfair
\nadvantage over the defendant.\n<\/p>\n
A ~.’ii’}._ ffV.~”Where the performance of the contract would<\/p>\n
 1′ involve some hardship to the defendant
\nwhereas, its non–performance would involve
\nno such hardship on the plaintiff.\n<\/p>\n
[iii] that it makes it inequitable to enforce specific
\nperformance.\n<\/p>\n
35. While explaining these circumstances, EXpIanation–1<\/p>\n
speaks about unfair disadvantage. Explanation-IE relates to<\/p>\n
hardship which is a circurlastance in favour of t\u00e9ie defendant,<\/p>\n
\/3<\/p>\n
M37″.\n<\/p>\n
while Explanations-Ill and IV are in favour of the plaintiff
\nwhen in a case Where the plaintiff has done substantial acts<\/p>\n
in consequence of a contract capable of specific perfotfinatlce<\/p>\n
or refused speci\ufb01c performance, merely because theVlcoritr_act’~ 4_<\/p>\n
is not enforceable at the instance -of”tl3-epdelfendarlt’, if<\/p>\n
36. As far as Point No.2 is coricerned,j. it._is” the co’ntention l<\/p>\n
of the defendant that he required money on urgent zbasisland be<\/p>\n
therefore, had agreed to sell tlieilsiiiit  property for a
\nlesser value since  re_qui_reld_ money tolldischarge the
\nliability outstanding with   respect of the<\/p>\n
veiyischedeule  tolprovide himself with fund for
\nhis domestic  had offered to sell the property.
\nThe sarnle”‘\u00abi.s  Ex.P–1. It is contended on behalf<\/p>\n
defendant in the absence of the plaintiffs paying<\/p>\n
‘ sthe _b’alan_ce:ls–ale consideration the defendant could not set<\/p>\n
” upihis   business and therefore, the defendant suffered<\/p>\n
not only by selling the property at a lower market value, but<\/p>\n
 also on account of not being able to set up his son in<\/p>\n
llgblusiness at an appropriate time since the plaintiffs failed to<\/p>\n
‘pay the balance sale consideration and conclude the<\/p>\n
contract. The said submission cannot be accepted for the<\/p>\n
reasons that the defendant: on receiving the substantial<\/p>\n
\/5\/<\/p>\n
n—- 38 I-4L!<\/p>\n
portion of the sale consideration had utilised the advance
\namounts to discharge his LIC loan and release the
\ndocuments. If really the defendant required the balafice sale<\/p>\n
consideration of Rs.2,40,000\/– which would haize\u00e9’  patid<\/p>\n
at the time of registration of the sale de_edv,fth’en’ <\/p>\n
defendant ought to have been taken step_s’l–.in  7<\/p>\n
that the income tax clearance  other obl:igationVs:.:.which<\/p>\n
were required to be performedillby hirnunder,theagreement
\nwere performed in time so  cinild recleivethe balance
\nsale consideration to le>l:e_cuteV.lth’e  and utilise the<\/p>\n
funds on settir1g._1ip   But what we find<\/p>\n
fromgthe  factlvlthlat the defendant no doubt
\nutilised the consideration for releasing the
\ndocurnentalandlhandirigiilover the title deeds to the plaintiffs<\/p>\n
  the  of obtaining permission from the<\/p>\n
‘ \u00abauthorities by the defendant the sale transaction<\/p>\n
concluded and therefore, the plaintiffs cannot<\/p>\n
bellbplainedllfor the said reason. if indeed the defendant had<\/p>\n
 “t’a}genl”steps in right earnest, then the plaintiffs were duty<\/p>\n
 to pay the balance sale consideration and get the sale<\/p>\n
“deed executed in their favour. In the absence of the<\/p>\n
defendant acting in accordance with the terms of the<\/p>\n
3.<\/p>\n
\/5<\/p>\n
agreement, the plaintiffs cannot be blamed for non\u00bb<\/p>\n
performance.\n<\/p>\n
37. The contention of the learned couie’i”sell.f..fl__(_l:)1l”5;_.the<\/p>\n
defendant that under Section 20 of the  ::R:e1iefllAct,l <\/p>\n
the defendant is entitled to the ‘<\/p>\n
contract gave an unfair padvantagelwto thel. p:laintiffs’t one?<\/p>\n
account of the low sale consiVderat.ion fi’Xed”‘in-I the agreement<\/p>\n
in question cannot vb3e~~..acc_e’pted— inlview of there being no<\/p>\n
material evidence on record  market value of<\/p>\n
the agreement”toV:’sell\u00a7was h;igher”tha.n__tlie sale consideration.<\/p>\n
It isalso  to’~.note  inadequate consideration IS
\nnot a”;re-ason.toinldenyyspecific performance. Similarly, the
\nhardshipthat would, ’caused to the defendant in case the<\/p>\n
suit. isidecreed also be accepted for the simple reason<\/p>\n
‘ Lyltiiat  :’de”fe.ndant has taken advantage of the sum of<\/p>\n
” l–l paid by the plaintiffs and thereby has got his<\/p>\n
LlC yploanhlddischarged and the defendant himself is to be<\/p>\n
if blamed for not concluding the contract within a reasonable<\/p>\n
 so that he could utilise the funds for setting up his son<\/p>\n
” 1n the business. ,1<\/p>\n
-40-<\/span><\/p>\n
38. Therefore, the plea regarding hardship of the
\ndefendant or that this is the only shelter he has cannot be<\/p>\n
accepted.\n<\/p>\n
39. Similarly, the equities are more iI1″”f%1V0:1V’;tI’VV”(Z>”‘f i’theV’<\/p>\n
plaintiffs so as to be entitledj’to”‘a\u00ab g_d’ecree:Ah’foi’ Vvspecific<\/p>\n
performance inasmuch as they:__   2 <\/p>\n
Rs.4,70,000\/– out of the sale @611side1?au;m..pf,as:.};’o’o’;ooo\/9;’
\nto show that they cou1d..’acquire  suit sched’ule”property at
\nthe relevant point of  Ii’e.th’e:’de’fen’daii–t. had taken steps<\/p>\n
to perform his  _ther.s\u00ab the plaintiffs would<\/p>\n
haveV’ip’aid”the baifai1cle~.s’alte consideration and get the sale
\ndeed executed. iri.’Vtheir_. In the absence of the same,<\/p>\n
the _p1aintiffs’vha\\\/fe  opportunity of buying the suit<\/p>\n
  scf:’:_ti’e<:l1;1_?le propertyva-t"the relevant point of time and further<\/p>\n
' ;o'n~acc_o'un't.ggofsteep increase in the price of properties in<\/p>\n
 plaintiffs would not get the property for the<\/p>\n
same rate. Therefore, it would be equitable to enforce<\/p>\n
\u00bb xspecific performance. I-Ience, point No.2 is answered against<\/p>\n
A' "theappellantwdefendant.\n<\/p>\n
40. In 1999(3) Kar.L.J. 677 (Y.N.GOPALA RAG vs<\/p>\n
D.R.LAXMINARAYANA AND OTHERS) it has been held by\n<\/p>\n
3.<\/p>\n
\/3<\/p>\n
IRS\u00bb 41″ I-CIA
\nthis Court that the presumption in a suit for speci\ufb01c<\/p>\n
performance is that a breach of contract cannot be<\/p>\n
adequately reheved by compensation in money\u00abj”arid_f”‘that’<\/p>\n
contract can be satis\ufb01ed only by conVeyanc.e”–\u00abofApaafticularg<\/p>\n
estate contracted for sale <\/p>\n
rebuttable, and the burden of :’reb1,itting <\/p>\n
opposing enforcement of contract and wheref..suci1–V.party has i’<\/p>\n
failed to rebut presumption, y_s_tfii”t_f0r_y_vspec’i\ufb01cperformance is
\nto be decreed agains’t.l:suAch  principle is also
\nstated in Explanation.-‘\ufb01’)v\u00bbt.ow  of Section 10 of<\/p>\n
the Specific A”~’1.Ci-..”‘.  if
\n4}. VV.WhileVadvertirigjto__:Secti’on 20 of the Act, it is stated in
\nthis decision _thgtt_ irigprice is no ground to refuse speci\ufb01c<\/p>\n
pesiforr11ancef’faVndv_ the refusal may also have tendency to<\/p>\n
.’ :cause:hardshi_p in the plaintiff in acquiring such property or<\/p>\n
 _ othierwxat such time.\n<\/p>\n
 it  in AIR 2004 so 909 (M.S.MADHUSOODHANAN AND<\/p>\n
 ‘ANOTHER vs KERALA KAUMUDI P’VT.LTD., AND OTHERS}<\/p>\n
“fit is observed that the guidelines for the exercise of the<\/p>\n
Court’s discretion to decree specific performance of an<\/p>\n
agreement have been statutorily laid down in subsection (2)<\/p>\n
\u00a3<\/p>\n
ii”?\n<\/p>\n
_,42M<\/p>\n
of Section 20 of the Act and that, in Explanation 1 to Section
\n20, it is stated that mere inadequacy of consideration, or the<\/p>\n
mere fact that the contract is onerous to the defen-d_an_t or<\/p>\n
improvident in its nature shall not be deemedljto”conlistiiute<\/p>\n
an unfair advantage Within the meaning”‘of…:clause<– [a)__'org <\/p>\n
hardship within the meaning of clause.  {S\n<\/p>\n
43. {LR 1992 KAR 717 [YOGAMBIKA v
\nrelied upon by the responderitpiltopcontend that “‘rn\u00e9re fact<\/p>\n
that a person is a retired G.o\\?e1*n1nen.t. servant cannot at all<\/p>\n
be considered to be a lVla_ili’dl’itofrgebfugse to enforce the<\/p>\n
contractl” ‘hell’,  ‘V’vo’l’uri’i;aril:tf””agreed to and that, under
\nSection  of grounds which enable the Court to
\nrefuse togranta’vdeCr\u00a7;’e.–~fnust be such which were not in the<\/p>\n
c.o_ii.teE:nplation”‘of~—-the parties when they entered into an<\/p>\n
S  sale and also that the defendant had no control<\/p>\n
.’ oifer tbosej_ grounds and as a result of those grounds, it has<\/p>\n
belcorne impossible for him to get on without the property<\/p>\n
  agreed to be sold.\n<\/p>\n
 The decisions cited at the Bar are referred to as<\/p>\n
follows: Learned counsel for the appellant has relied upon<\/p>\n
several decisions in support of his contentions: Z;<\/p>\n
.\/5<\/p>\n
‘ ‘V  is<\/p>\n
_ 43 _<\/p>\n
AIR 2001 SC 2783 (A.C.Arulappan Vs. Smt.Ahalya
\nNaik), (199915 SCC 77 (K.Narendra Vs. Riviera
\nApartments (P) Ltd], AIR 1997 so 1 751 [I{.S.Vidyi1\ufb01adam<\/p>\n
82, Others Vs. Vaircwan), AIR 1982  <\/p>\n
(Smt.Ranganayakamma Vs. N.GovindqV__pl’VaraZg’ar1]i <\/p>\n
(2000) 6 sec 420 (Motilal Jaiiiiililfsl.’ ~1zamazc.~$;i”\u00ab.r;ge;}ij”i1aire 7<\/p>\n
been cited to contend that  thereisfundue.:h:_ardsl1ip:.4.t(3.theL<\/p>\n
defendant or there is astronoinical rise   of the
\nproperties and if thereis a .:ie’1a;}I’~fm”r:iing a’sL1i.i;” for specific
\nperformance which wotxfid “rp.e\u00a71\u00ab:e  to grant the<\/p>\n
decree, then specific \u00a7perfoijmanc.e*i.ou’gh:tnot to be granted.<\/p>\n
These ‘dec’isioV’ns gifge’ not to the facts of the present
\ncase ‘since ‘we:  against the appellant on the
\nquestion ‘of. hard  V’ <\/p>\n
   SCC 526 (His Holiness Acharya Swami<\/p>\n
“swash Vs. Sita Ram Thapar} and [1978 2 sec<\/p>\n
116.. [:S1nt.Sandhya Rani Sarkar Vs. Smt.Sudha Rani<\/p>\n
‘ ~ ibiebpi 82. Others) have been cited to contend that readiness to<\/p>\n
‘perform the contract would mean that the plaintiff has the<\/p>\n
‘Hfinancial capacity to pay the purchase price and for which<\/p>\n
there must be sufficient proof that the plaintiffs had funds to<\/p>\n
55<\/span>
\n\/:1<\/p>\n
__44__<\/p>\n
pay the balance consideration. On this aspect of the matter<\/p>\n
we have held in favour of the respondents. H.\n<\/p>\n
46. AIR 1996 so 2314 (Lourdu Mari David Vs”.””Louis<\/p>\n
Chinnaya Arogiaswamy} has been relied <\/p>\n
that specific performance being an equitable”‘re.lic:f:’Vrn’us[ tug 3’ <\/p>\n
granted to a person who approaches’the*<.court wit.h"'clean<\/p>\n
hands and not to one who makes fals:e.Vallegatjv_ons. ' <\/p>\n
decision has no relevance to tizefacts oftherrpresentllcase.\n<\/p>\n
47. In AIR 1987 SC 2328 g_[1?dr<;i<:1,L_\u00bbnnan" Veettlvi Joseph's<\/p>\n
Son .Mdth\u00b0c;j}t',Vs!iififilecturnbarz\ufb01tllvfftivruvila's son and Others},
\nit haszbeen stated\u00bb':th_at..tlt1-edcourt is not bound to give specific<\/p>\n
perforrnance 'rneVrely"–because it is lawful to do so and the<\/p>\n
 gshould taKe———-sare to see that it is not used as an<\/p>\n
V  'oppression to have an unfair advantage to the<\/p>\n
lplaitntiffsdf the instant case however by not granting the<\/p>\n
relief. olfispecific performance to the respondents would create<\/p>\n
2 :1' ~ Alpanainfair advantage to the appellant vendor.
\n With regard to the readiness and willingness (1999) 7<\/p>\n
 " "SCC 303 (Ramkumar Agarwal 82. Another Vs. Thawar<\/p>\n
Das (Dead) through L.Rs], (1995) 5 SCC 115<\/p>\n
E\u00bb,<\/p>\n
W45…"\n<\/p>\n
(N.P.Thirugnanam (Dead) by L.Rs Vs. Dr.R.Jagan Mohan
\nRao 82. Others), AIR 1928 Privy Council 208 (Ardeshir<\/p>\n
H.Mama Vs. Flora Sassoon], ILR 1993 KamaVt@.I\u00a7’a._V_427<\/p>\n
{DB} (Saraswathi Ammal Vs. V.C.Lingam] _(;\ufb01’ct<\/p>\n
KLJ 186 (G.M.Chinnaswamy Vs.  have <\/p>\n
been cited to contend the C’;ontiniao1isg ‘:readi’n.eg\u00a7 ..,and<\/p>\n
willingness on the part of the hp-1ain.tiffs :c0r;.dition’,<\/p>\n
precedent to grant the reliefs\u00bb specific ‘perf0r:1;1ance and
\nperson who falsely claims  ca sumldof\ufb02vmoney and<\/p>\n
attempts to prove the plea at  itrialistageicannot be said to<\/p>\n
be readyiVand5,uIilli:hg topay the\ufb02surn due under the contract
\nin question. V Fro1n’the\u00ab.ei?’idei1ce on record we have come to a<\/p>\n
conclusiori”..th’atgtherrespondents were ready and willing to<\/p>\n
   their paitofthe contract and therefore this decision<\/p>\n
‘ has n’o._relevan::e to the facts of the case.<\/p>\n
49.2 .. A13’ 1961 Calcutta 359 (A.E.G.Carapiet Vs.<\/p>\n
it  iAl.iY,De’rderian) and (1971) 3 SCC 273 {Amar Singh Vs.<\/p>\n
 State of Bihar) have been cited to contend that when<\/p>\n
i there is no cross–examination on crucial aspects. then the<\/p>\n
testimony of witness has to be believed. Having regard to the<\/p>\n
It
\n,4.\n<\/p>\n
evidence on record, the said decision is not appiicabie to the<\/p>\n
facts of the present case.\n<\/p>\n
50. Counsel for the respondent has relied upon ILR 2000<\/p>\n
Kar. 3536 (C.Nazeer Ahmed Vs. S.Jahan Ara) t,oVc_o’ri.t\u00a2nd<\/p>\n
that circumstances sufficiently strong couId__;’_’di’sp.l_acer. <\/p>\n
ordinary presumption that in any contractV—-f0r:”.sai*e: of land. 9 <\/p>\n
stipulation as to time, is not of essences. }In–,the.’in.stant case,<\/p>\n
the fact that the third advance4__wasdi\u00b0eceived   dappeiddiant’ 3,<\/p>\n
herein after the stipulated ddaterand :fi~-:.:\u00a7E::”‘:aft\u00e9;;- the date<\/p>\n
  contract implies that both parties<\/p>\n
did nottreat  dtheessence of contract.\n<\/p>\n
51. (2000) 6’=SCC’ 420 (‘Mot\ufb02al Jain Vs. Radasi Devi 82.<\/p>\n
Othe’r*s) has-\u00bb been cited to contend that where a major<\/p>\n
 .pvo’1*tioEn:’ofVd’the consideration (two–~thirds in the said case} was<\/p>\n
I  ipaidd the  of execution of the contract, it was held that<\/p>\n
re-adinessvito pay the remaining amount is apparent. ILR<\/p>\n
 AA2003-.fi’ar. 3533 [ T.Mohan Vs. Kannammal 82. Another)<\/p>\n
  ‘has been cited to contend that when the vendee is in<\/p>\n
\u00e9possession of the property. the question of readiness and<\/p>\n
willingness to pay the balance money does not assume much<\/p>\n
\/if<\/p>\n
\ufb01,{1l7_<\/p>\n
importance. ILR 1998 Kar. 2730 (N.Venkatappa Vs.
\nLingappa Reddy by his L.Rs) has been cited tofc”ontend<\/p>\n
that when the plaintiff is put in possession of~\u00ab~th\u00a2V:p_I’ope1’ty<\/p>\n
which is the subject matter of an agreementfandifdefendant ‘ <\/p>\n
also delivered some d0cume:nts,b”i3ut._ sta1lec1u._pVt’u’rther ”<\/p>\n
proceedings and the plaintiff vl1as\u00ab._com.p1’_ied” <\/p>\n
requirements under the contract, fI\u20ac_V  to a
\nJudgment and Decree” of spec’i’iiclV[oerf’orinanceI  ILR 1988
\nKar. 1340 m.n.Na;~\u00a2amnai  Vs. Madhava<\/p>\n
Tenkillaya),  ‘-hasi-beer);   if readiness and<\/p>\n
willintgnes’sA.. estfVab1i’s’hed, itfis not proper to non~suit a
\npersovnpon vVerbalV”ommis*si’on. The afore said decisions are
\napplicable’rt.o”the[factsof the present case. keeping in mind<\/p>\n
tlie9e\\(i.de:1Ce on\ufb02record.\n<\/p>\n
 1h’l’ii1_.i:” 2007 Kar. 1625 (P.S.Ramakrishna Reddy<\/p>\n
Vs; M:I$’.I?hagyalakshmi 82, Another) it has been held that<\/p>\n
 th’e._re1ief of specific performance cannot be denied on the<\/p>\n
fgground that the price of immovable property has risen. In<\/p>\n
 AIR 2008 so 1205 [Balasaheb Dayandeo Naik (Dead) by<\/p>\n
L.Rs 82, Others Vs. Appasaheb Dattatreya Pawar} it is<\/p>\n
stated that where agreement though specified time for<\/p>\n
if}<\/p>\n
_48u<\/p>\n
execution of sale deed and where stipulation for forfeiture of
\nearnest money in the event of failure to execute sale deed
\nwas also made, then it would indicate that time wouldnever<\/p>\n
intended by parties to be of essence of the In<\/p>\n
(1998) 2 SCC 488 {Smt.Indira Kaur   <\/p>\n
Lal Kapoor), in the context of the ‘4<\/p>\n
plaintiff when the deferidai:-1;_ or th-edcourt  endquireqp<\/p>\n
about the name of the banl\u00a7’V”io:r’calledVuponif-thegiplaintiff to
\nproduce the pass book’ wasddheldi\u00e9ptha-tpno adverse inference<\/p>\n
can be drawn against the  plaintiff had<\/p>\n
depogsvedlfvtliadtl hedfxhad requisite amount in the
\nbank,–~the pass book in respect of the
\nbank account. VV’I:heA’adfoi’esaid propositions are applicable to<\/p>\n
 of the xcas–e–.\u00ab ”\n<\/p>\n
.’53”.’A  (Civil) 308 (Silvey 82. Others Vs. Arum<\/p>\n
Vargltese 82. another) deals with the case when the<\/p>\n
it  Afdefepndants failed to furnish the documents to the plaintiffs,<\/p>\n
 the conduct of the defendant cannot be ignored while<\/p>\n
‘Hweighing the question of exercise of discretion for decreeing a<\/p>\n
decree for specific performance. This decision is applicable<\/p>\n
,4’<\/p>\n
AN<\/p>\n
W\ufb01igw<\/p>\n
to the facts of the case as the defendant failed to obtain<\/p>\n
income Tax clearance in the instant case.\n<\/p>\n
54. Though we have answered all the points for<\/p>\n
consideration in favour of the respondent. considering. the<\/p>\n
long lapse of time involved in litigation and  <\/p>\n
estate that have arisen in the inte’rregnu.rn,_v’are of the<\/p>\n
View that the respondent, while  ha!.ar1ce\u00ab.p”a\u00a7Inei1tV<\/p>\n
of Rs.2,40,000\/– to the appellant,\u00bb should  arrested to pay’?<\/p>\n
interest at 24% pa Q11  its-u_m from the date of<\/p>\n
agreement till the datelofhis’ direction, we feel<\/p>\n
would     V  if\n<\/p>\n
55. ‘:.E’or the aforesaidctgpreasons, the appeal filed by the<\/p>\n
defendant  the judgment and decree passed<\/p>\n
by._\u00a7thei’.trial  is confirmed Jsubject to above direction.<\/p>\n
. Parties to -bear their own costs.\n<\/p>\n
Sd\/*
\nIUDGE<\/p>\n
sd%
\nIUDGE<\/p>\n
KVN*<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court S Subramaniam vs R Babu on 18 December, 2009 Author: K.L.Manjunath & B.V.Nagarathna 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 ‘ ‘ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-227487","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nS Subramaniam vs R Babu on 18 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-subramaniam-vs-r-babu-on-18-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S Subramaniam vs R Babu on 18 December, 2009 - 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