Karnataka High Court
Sri Sunilkumar S/O Gopinath Sandra vs Ashwamedha Constructions Pvt Ltd on 23 February, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 23H day of February 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE B V PINTO
ecRar First /peai 1o 16(9 of 200? LJ
Between:
SRI SLNILkLi;\R
.0V.42 YEARS,
0P1\\FF' s\NI)N\
0CC BUSINESS
i( TADAPATRI ONI
I IUHLI580 020 APPFLLANT
(By Sri P A kulkarni, Adv)
And:
AS I \VAMEDHA CONSTRUCTIONS PVT LTD
H \\ NO ITS RHOISTERED OFFICE T
NEIIRU STADIU\I
Ii LILI5sL) 02)
t NL NIEL) B 115 IREe[uR
SRI Y1?NJUNATH
5/0 \/ENKATESH RAMAT
:Or*MA1()R, 0CC: BUSINESS
2 SRI U DANA EL MAR
U ' 00P1\UH \N1)R\
ACE 47 YEARS
':HLSINESS
k/ U TADAPATRI ON!
HUF3L1-580 020 RESPONDENTS
Sri V P Datar for Sri Sadiq N Goodalla,
AcE for R 1; Sri K S Vasanth Roo, Adv br R-2j
RFA FILED U/S Pb OP C/PC AGAINST THE JUDGMENT AND
fl[ 14 Vu 20U P \sSED I US \o Ju 200 u\ THE
FILE SR DNi HUBLL DECREEDG THE
I .-\DDL CIVIL JUDGE
SC/i' JUL SPEC! PlC PERFURMANCE.
THIS APPEAL IS COMING ON FOR HE?RING THIS DAY,
SHYLENDRA KUMAR I. DELIVERED THE FOLLOWING:
JUDGMENT
Second defendant in OS No 279 of 2004, on the file )i Fire 'kdcll Civil Judge (Sr Dii), Huhil. a suit for specific p'!cimailcc of sale agreement dated 2i 200 1 in respect of sw schedule land, a land comprised in CTS No 102/ 13/13 measuring 1074 square yards, is the appellant before this court.
2 Er convenjence, parties \vill he referred m as por their ranhing in the trial court.
3. The second defendant having been compelled to execute a sale deed in terms of the agreement as per the 3 I,, judgment and decree dated 14-6-2007 passed in the suit and being aggrieved is in appeal, contending, inter alia, that the agreement was not a valid one, as the agreement had not been entered into on behalf of the plaintiff-company by a person who had been duly authorized by the company; that ExPl 3 agreement though was jointly executed by defendants I and 2 and the plaintiff having got executed a sale deed in respect of one portion of the property in terms of the agreement and executed by first defendant and without notice and consent of second defendant - present appellant - it should be taken that plaintiff had acquiesced the right under the agreement only in respect of one portion of the land and therefore the suit cannot be maintained for want of cause of action: that the judgment suffers from errors and is not sustainable; that the court below committed an error in recording a finding that the plaintiff had made good his readiness and willingness to perform his part of the contract, more so in the wake of the material alteration as contained in ExP15 letter dated 2-7-2004 4 seeking to alter the clause-2 of the agreement and therefore the plaintiff was not entitled to the discretionary equitable relief of decreeing the suit for specific performance and has sought for setting aside the judgment and decree of the trial court on such grounds.
4. Plaintiff's case. in brief, was that the plaintiff, a private limited company registered under the provisions of the Companies Act, 1956 and carrying on the business in construction activity, a developer in market terms, had entered into an agreement with defendants I and 2 on 21- 2-2001 [ExP1 31 for purchase of the suit land by paying a sum of? 35,65.000/- for the suit land and the adjacent land comprised in CTS No 162/13/A by paying a sum of? 26,35.000/-: that part of sale consideration of? 1.00,000/- each was tendered to each of the defendants on the very day of the agreement by cheque; that defendants were required to get the land user changed from residential to commercial by applying and obtaining necessary 5 permission from the planning authority viz., Hubli Dhanvad urban development authority; that it should be so obtained within a period of six months; that expense for such change of land user from residential, which had been so indicated in the comprehensive development plan prepared by the planning authority for Hubli-Dharwad to commercial use and it will borne by the vendee; that getting the land user converted is one of the essential conditions of the agreement; that the vendor was to be put in possession• of the property along with the execution of the sale deed on receiving full sale consideration and subject to the condition that the land user will be got changed from residential to commercial and on the vendors obtaining necessary permission from the income tax authorities, the sale transaction should be completed b or before 21-8- 2001 and such other conditions were indicated in the agreement.
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5. It is on such premise. the suit was laid, pleading that though the plaintiff was ready and willing to perform its part of the contract, the defendants did not put in sufficient efforts to get the change of land user from the planning authority; that to the good fortune of the plaintiff, a new CDP had come into force with effect from November, 2003 onwards, where under the subject land was indicated to be one which can be used for commercial purpose and such change in the land user revived the hopes of the plaintiff, also providing a cause of action to the suit and the plaintiff having requested arid demanded the defendants to perform their part of the contract by executing the sale deed on receiving balance sale consideration, the defendants not very responsive to the same, the plaintiff was constrained to lay the suit; that the cause 'of action for the suit arose in the month of November, 2003 when the new CDP of Hubli Dharwad urban development authority came into force changing the land use of the suit land from residential to commercial purpose and when the plaintiff caused issue of 7 letter dated 2-7 2004 (ExP1 41 followed by legal notice dated 24 7 2004 IEXPI6I and thereafter the suit as filed.
6. Second defendant filed his ritten statement pleading. inter alia, that the suit in the present form on buhuif of a company was not tenable for want of non compliance with the statutory provisions: that due repre%entation was disputed and the plaintiff put to strict prool of the same: that description of the suit property was not proper as per the schedule to the suit, but execuling the hn-rement dated 21-2-2001 was not disputed and :jchtnntccl. It was the further defence of the second defendant that the requirement of getting the land user chaw.'cct was not an essential term of the agreement as claimed by the plaintiff: that while the receipt of pan sale consideration of 1 .00.000. was admitted. it was claimed ti tat i re was some deception play ed on the answering cirfetidant by not incorporating all agreed upon terms into the agreement dated 21-2-2001: that the plea in para-6 of I 'V 8 I w the plaint to the effect that first defendant had executed registered sale deed on 25-1-2003 was not to the knowledge of the of the answering defendant and that did not bind or alter the position in so far as the second defendant was concerned; that there was collusion between the plaintiff and the first defendant with an intention to cause loss, injury and harassment to the answering defendant: that the plaintiff had committed default in making payment of the sale consideration to the answering defendant and therefore there is no question of second defendant selling the property to the plaintiff; that the plaintiff had committed breach of terms of the contract by not tendering the sale consideration and therefore was not entitled to the equitable relief of specific performance; that the plaintiff company has not performed its part of the agreed terms under the agreement and therefore was not entitled for the decree as sought for; that other developments as pleaded in the plaint are not admitted; that the plaintiff had never shown its readiness and willingness to perform its part of 9 the twrednwnt by tendering balance sale consideration: that the plaintiff-company did not have sufficient fund to meet this req uirement and therefore committed default in pay Izwm of sale price and had in fact rendered liable for termination of the agreement and the plaintiff being in defat ut. cannot claim relief as per the suit and in such circaistance. the suit was more an abuse of the process of law ill it there is no cause of action in favour of the plaintiff fur .. ng the suit and prayed for dismissal of the suit uith exenqnar cost.
:. ' the wake of such pleadings. the trial court has framed the following issues for its examination:
£ Whether the plaintiff proves that
defendants 1 and 2 on 21 2-2001
('XL'CUIE'd Lilt agreement qf sale agreeing to sell the permanent leasehold rights in the suit property bearing fl'S No Jo.? 13 B for t 35.65.000 - us contended in para 4 of the plaint?
Whether the plaintiff proves that the second defendant received 1 .00.000 as as ean test money through cheque Xo 'IL.
I0 'p 106896 drawn on Syndicate bank in respect of the said sale agreement?
3. Whether plaintiff proves that plaintiff is ever ready and willing to perform his part of agreement as alleged in the plaint?
4. Whether second defendant proves that the document relied upon by the plaintiff' company is illegal, invalid and unenforceable as alleged in para- 10 of the plaint?
5. Whether the defendant No 2 proves that the plaintiff has committed default and breach of contract as averred in para- 14 and 15 of the written statement?
I';. Whether second defendant is entitled for compensatory cost oft 10,000/-?
Whether plaintiff is entitled for reliefs sought for?
What order or decree?
8. Parties went to trial on these issues. On behalf of the plaintiff, a director of the plaintiff-company by name Manjunath was examined as PW 1 and documentary evidence ExP1 to 18 were marked. which essentially comprising of the agreement EEXP1 31, exchange of ii and correspondence in this background, communication e letters Hubli-Dhanvad urban development authority, som on tax paid receipts, memorandum and articles of associati of the plaintiff-company IExP6I and a copy of the sale deed executed by the first defendant in favour of the plaintiff company in respect of one portioOn of the schedule to the agreement etc. On behalf of the defendants, second defendant deposed as DW I and documentary evidence comprises of ExDI to 13. ExDI being a copy of the application made to the competent body for permission to convert the land user, ExD2 is the response of the competent body, ExD4 being a copy of ExP13 agreement, ExO 5 and 6 being copies of conversion fee receipts etc.
9. The learned Judge of the trial Court purporting to appreciate the evidence on record, considering the submissions made at the bar has decreed the suit and directed defendant No.2 to execute the sale deed in respect of the suit property in favour of the plaintiff-Company by 12 receiving the balance sale consideration and to put the plaintiff in possession of the property etc., It is aggrieved 2nd by this judgment and decree, the present appeal by the defejidan t.
10. Appearing on behalf of the appellant/defendant No.2. Mr.Kulkarni, has raised as many as four legal issues such as the agreement having become virtually redundant as the sale transaction was required to. be completed within a period of six months subject to obtaining permission from the competent authority for change of land user and with the competent authority having refused such permission. the matter Has virtually met its end and the contract was no more enforceable. Mr.Kulkarni, learned counsel has also submitted that within a period of six months such conversion was nOt possible, even in terms of Clauses 2 and 8, the contract gets frustrated. ln this regard, Mr. Kulkarni, has drawn our attention to Clauses 2 and 8 of the agreement (Ex.P. 13) and in support of his submissions, I, has placed reliance on the judgment of this Court in the uf K.L.SATHYAPRAKASH AND ANOTHER VS.
KOTHARI MOTORS LIMITED, MYSORE (2011 (3) KU 64O. Particular attention is drawn to paragraph 14 of this j dlwTiui Mr. kulkarni. has very emphatically urged that the learn ccl Judge of the trial Court has committed a grave error in law in answering issue No.3 in the positive and in favuar the plaintiff to hold that the plaintiff was ready and willing to perform his part of the contract, that learned Judue of the trial Court totally overlooked the fact that w1ea; the agreement was executed in the earlier part of the year 200 1. any effort if at all on the part of the plaintiff was ouR in the year 2004 by the letter dated 02.07.2004 (Ffx.PI4) and subsequent legal notice dated 24.07.2004 (Ex.P. 10) that there is an interval of more than three years from thu date of the agreement and that too even after the plaintiff came to know about the rejection by the competent authority in respect of the application for permission of elianacof land user and therefore it is a situation of the 14 plaintiff having virtually abandoned the contract and with the plaintiff not having come forward in the interregnum to make payment or tender payment subsequent to the initial payment of Rs. I lakh, there is absolutely neither readiness nor willingness on the part of the plaintiff to perform his pan of the contract and the learned Judge of the trial Court inferring that such readiness is nothing short of a perversity in appreciation of the evidence, has committed a grave error in law in granting the equitable discretionary relief in a situation of this nature and urges for reversal of the finding and for dismissal of the suit.
11. Though Mr.Kulkarni. has urged the competence of the person "ho had entered agreement on behalf of the Company as another legal point that has not been pressed into service.
12. Another legal point submitted is that decreeing the suit for specific performance in the circumstances of neither readiness nor willingness on the part of the plaintiff 15 to perform his pan of the contract and the plaintiff becoming active only on and off the change of land user in terms of the new CDP whereunder the area where the land is located was permitted for commercial purposes and subm its that the plaintiff being a person without bonafide and getting active only when there was change in circumstances, plaintiff is not acting borta fide in suing for the specific performance of the agreement and it is also most inequitable to decree the suit against the defendant and in this regard has pointed out that the advance money paid is only Rs. 1 lakh whereas the sale price was around Rs.35 lakhs and what had been paid was a small fraction of the sale price and decreeing the suit in the year 2007 i.e., more than six years after the agreement. is most inequitable as against the defendant and therefore the suit deserves to be dismissed even in terms of Section 20 of the Specific Relief Act, 1963 Efor short, the Actj. 16
13. Mr.kulkarni, has placed reliance on the judgment of the Supreme Court in the case of K.S.VIDYANADAM AND OTHERS VS. VAIRA VAN (1997,1 3 SCC 1) to submit that the learned Judge of the trial Court has committed an error in law in granting equitable relief of specific performance of the agiwement when there was such glaring and inordinate delay on the part of the plaintiff in seeking relief. 14, Learned counsel for the appellant has also placed reliance on the Pull Bench decision of the Delhi High Court in the case of RAJ RAM VS. KARTAR SINGH (1973 LAW SUIT (DELi 8 by drawing our attention to the observations at paragraph 10 of the judgment, it is submitted that the trial Court exercising its discretion in favour of the plaintiff in the present circumstances was not equitable visavis defendant No.2/appellant and the conduct of the plaintiff clearly disentitles the equitable discretionary relief of specific performance and therefore submits that the suit should have been dismissed.
'7 's
15. It is also pointed out that the plaintiff had not acted bonafide in trying to drive a wedge between the brothers i.e.. defendant No.1 and defendant No.2, that the plaintiff had made payment to the I" defendant in bits and installments and had got the sale deed executed even without change of land user but had not extended the same treatment to the second defendant, as no payments were made to the 2nd defendant/appellant. On the other hand, plaintiff had insisted for change of land user on the part of the present appellant but filed the suit later on, on the new ($DP coming into effect. In these circumstances, learned trial Judge has totally misread the lack of readiness and willingness on the part of the plaintiff to perform his part of the contract.
16. Countering such submissions, Sri.V.R.Datar. learned counsel for the plaintiff/respondent No.1 has strongly urged that the plaintiff was all along ready and willing to perform his part of the contract, that it is only the 2nd 1 C) defendant who had dragged the suit, that whereas the dierciant whose interest was to an extent of 796 sq. yards had in fact executed the sale deed after receiving the payment, it is only the 2iu defendant who had not evinced am mterest to perform the contract as agreed, that the 2m1 dinclart having interest in the land to an extent of I 4OO sq. \ arcis had on the other hand tried to raise dispute that tht land measured much more than that, that unless the price for the additional extent of land was also paid by the uLontiff. the defendant will not agree for the execution of the sale dcccl, that it was not even a bonaficle claim put form Lv the 2 defendant as the so-called extra land, assuming it was there was neither known to he in the ownership of the 2H defendant nor the 2' defendant was il_i pesnion to put the plaintiff in possession of such extra land as the extra land was attributable to some drain or conservancy passing through the subject land and if at all owned by the civic body. It is also submitted that the areinent was one joint agreement and the total 19 consderation that sas required to be paid for execution of the sale deed by both joint promisors in respect of the entire land indicated in the schedule to the agreement as for Rs.62 lakhs, that it is not as though the plaintiff had ptid ..nl Rs. I lakh to the 2" defendant but the entire sale consideration of Rs.62 lakhs was required to be paid and one of the joint promisors namely to the l' defendant full ptt3 nient had been made and the plaintiff in fact had paid toni sum of Rs.28.35,000/ as per the agreement so far and it vats the good fortune of the plaintiff, that the I ' cltnt executed sale deed without any demur in so far 1 defci as the portion of 796 sq. y ards comprised in CTS No. Ir 2 3/A and therefore the plaintiff's possession had become precarious as the 2nd defendant was dragging his feet a'd plaintiff had invested huge amount of mone3 and as LI plaintiff could not develop the subject land when entir' extent of land being not in his possession, that in such ircumstances. the learned Judge of the trial Court has appreciated the equities in its proper perspective and V 20 Sr. has decreed the suit and therefore there is no need for disturbing the judgment and decree passed by the trial Court.
17. In support of the argument of readiness and willingness being lacking on the part of the plaintiff, as addressed by the learned counsel for the appellant, Mr.Datar. would strongly urge that there "as such slackness on the part of the 2nd defendant, that the 2nd defendant had raised frivolous and untenable objections and was making unreasonable demands on the plaintiff and that was the reason why the transaction did not go through which compelled the plaintiff to come up with the suit, that the 1st defendant did co-operate with the plaintiff and received the payment and has executed the sale deed also, this aspect is clearly elicited during the cross examination of the 2nd defendant and has also drawn the attention of the Court to Ex.P.5. the sale deed dated 25.01 .2003 executed. by the 1' defendant in favour of the 21 plain tiff and the payments made to the 1 si defendant to submit that the plaintiff was ready and willing to perform his part of the contract; that it vas not as if that the plaintiff had no sufficient funds to fulfill the terms of the agreement and the payments made over a period of time is submitted to be proof of the plaintiff's ability to make payments etc., The payments made to the first defendant are as under:
DATE CHQ.NO. AMOUNT BANK
11/02/2001 106895 1.00.000/- Syndicate Bank.
Durgadbail. Hubli
13/12/2001 641456 3,00,000/- -do-
12/02/2002 642234 4,00,000/- -do-
10/04/2002 642297 4.00,000/- -do-
17/05/2002 515338 5.00.000/- -do-
23/05/2002 515339 1,00,000/- -do-'
18. It is therefore submitted that absence of readiness and willingness was only on the part of the 2nu defendant and cannot be attributable to the plaintiff. In support of this submission, attention is also drawn to Ex.P. 14 - letter and Ex.P. 16 -1aver's notice. Mr.Datar. would also urge that tli 21 defendant had very conveniently kept quiet tfter initial rebuff by the competent authority for )I land user, that the 2d defendant deliberateix had nut pursued the matter vigorously before the competent huri, and therefore the lack of readiness and \v1llIng1nss was only on the part of the 2 defendant.
19. \l Datar, has also dra\\n our attention to Section 44 of the Indian Contract Act to submit that when a promise is made juinllv by two or more persons, the release of one of SL LI iH promisors clues not necessarily relieve the other p1u1iii from the obligation of the contract. that assuming thc dfcndant was relieved of the obligation to get the iw nr changed and e en before such change of land usel \ as permitted to execute the sale deed, it in no way ahsoh es the 2 defendant from the hability under the arec1neiit Ex.P.L3 and the failure on the part of the 211d defericlait to perform his part of the contract cannot be got over \\ r i reference to the development with regard to the 1 defendant. Mr.Datar, has placed reliance in support of submissions on the decision of the Supreme Court in the case of GOMA THINA YA GAM PILLAI AND OTHERS VS. PALANISWAMI NADAR (AIR 1967 SC 868) to the obserranons made at paragraph 4 to fortify his submissions on this aspect. It is submitted that it was in th circumstances of this case equitable to decree the suit for specific performance. Reliance is also placed on the Sini i3ench decision of this Court in the case of K.KALLAIAH VS. NINGEGOWDA (AIR 1982 KAR 93) to submit that in the present case time was not the essence of the eta ract that there was neither any such stipulation flüi a as a condition that it is not as though the contract neither had been put to an end for not having performed contract within six months initial period nor has it got frustrated as there was no circumstance which had caused the subject matter either to be not available or have chanced in its character and nature and therefore submits 7t 24 r that there was absolutely no impediment for decreeing the suit and has urged for dismissal of the appeal.
20. It is in the wake of such grounds urged in support of the appeal, submissions made by learned counsel for the appellant and the respondent in this appeal, decisions relied upon, that we are required to examine this appeal. The real questions that arise for our examination in this appeal are:
1) Whether the judgment and decree of the Court below for decreeing the suit for specific performance is sustainable particularly in the facts and circumstances of the case and on the principles as it prevails in terms of the provisions of Section 20 of the Specific Relief Act and
ii) Whether it was equitable on the pan of the learned Judge of the trial Court to have decreed the suit?"
21. We have perused the judgment under appeal, looked into the records and grounds urged in support of the appeal, submissions made at the bar by the learned counsel for the parties and the authorities cited before us. 25 •0
22. The guiding factor for examining a suit for specific performance is Section 14 and Section 20 of the Specific Relief Act which has a bearing on this aspect. In the scheme of the Act. Section 14 occurs earlier and specifically lists the situations where specific performance cannot be granted. Obviously Section 20 though can be taken as an exception to the rigour of Section 14, there are further fetters on the Court in the matter of exercising its discretion and the power of the Court for decreeing a suit for speeme performance.
23. A suit for specific performance is not decreed for the mere asking or even just because it is lawful to do so. Equity plays a very important role. The conduct of the parties particularly the readiness and willingness on the part of the contracting parties is a most important aspect in examining this question. The matter has come for examination before Courts time and again and the legal prim iples are quite vell settled.
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24. The plaint p'eadings in the present case and in any suit fur specific performance constitutes an important part at the suit proceedings. There is not much dispute as to the iacs. to the existence of 6xPl3, agreement and the factum at the plaintiff having paid part of sale consideration of Rs. I Ll<h each in favour of defendant Nos. I and 2 and the s:ik i: rice as indicated in Ex.P.13. Clauses 2 and 8 of this agreement are of some significance which read as "2. iIaT as er the Comprehensjve iopmen t plan prepa red by the p/u lirtinc] cc: id Jhr Huhii-Dharwad the Sam properties is reserved Jbr residential purposes. The VENDORS have agreed to get the land use changed from residential to commercial use. The c:ucnses shall be borne by the VENDEES. This uec of the essential terms of the agreement.
xxx xxx
Sale deed will be executed and
rc istered h the VENDORS in Jhvour of the
l TfDEE or their nominee on or bejbre
27
21/08/2001 subject to the condition that the VENDORS get the land use changed from residential to commercial by the planning authority and VENDORS obtaining the permission from the Income Tax authority as stated above.
25. 'rhe subsequent developments such as the 1st defendant having executed the sale deed in respect of this portion of the land i.e., la and after receiving the sale consideration is also not in dispute though the 2nd defendant has pleaded ignorance of this development. That in ascii may not be of much significance. The change in the land user in terms of the newly prepared Comprehensive Development Plan for the urban areas having come into effect from November, 2003, is also not in dispute. However, the plaintiff having indicated the cause of action for the suit to be the point of time in the new CDP of HDUDA coming into force, change of land user of the property from residential to commercial purpose and thereafter when the plaintiff became active by causing the 28 led HLc in July. 2004. as pleaded m paragraph $ of the plaint is \irtuallv given away by the plaintiff about his conduct and state of readiness and willingness. It is a clear admsuu on the part of the plaintiff that the plaintiff is gettinc tctive only on and off after November. 2003. for the rforcciwnt of this agreement though the agreement itself is dated 2 1 .02.2001. It is a virtual admission on the part of the plaintiff that there was inactivity or a lull on his part uptc) this point of time.
26. Th s aspect coupled with the factum that the 1 had executed a sale dcccl x.P.5 on 25.01.2003 without the change of land user having been permitted by the competent authority and even before the new CDP came into ef%'t on and after November. 2003, is also of consiucrable significance as it shows that the plaintiff was rc'adi\ wal willing to IDurchase the land without insisting on tIi: w ipwations in the agreement particularly Clauses 2 and 8, so far as the first defendant was concerned. 29
27. Though Mr.Datar. learned counsel for the plaintift respondent has drawn our attention to the pa3 merits made in terms of Ex.P.5. sale deed. In the plaintiff in favour of the i' defendant and has sought to seek support from this to urge that an inference that the plaintiff was ready and willing to perform his part of the contract can be definitel dra n from the same on the other hand c are of the view that it is not a circumstance to demonstrate the plaintiff's readiness and illingness to pvri( cm the contract but only his conduct of performing the cyril act in piecemeal which is demonstrated. The plaint a erments nevertheless having insisted that the defendants crc required to get changed the land user from residential to commercial use and that it was a requirement on the part f 'he defendant ho failed to do it but the subsequent br tu't, . circumstance i.e., Development Authority itself pern t ttng commercial user of the land in the area being 30 1 shown as a cause of action also indicates that the plaintiff had virtually abandoned the effort to pursue the matter.
28. Apart from this, there is nothing to indicate that even in n'spect of the 2" defendant also. plaintiff had made efforts for making payments. The decision relied upon by Mr.Datar. in the case of Gomathinavagam Pillai's case does not advance the case of the plaintiff in the us in the present circumstances as the entire development does not indicate. a singular lack of readiness and preparedness on the part of the plaintiff to perform his part of the contract vis-ã-vis the 2t; defendant. The manner of payment as indicated in Ex.P.5 also is indicative that the plaintiff had made payments in bits and installments over a period of time only in favour of the I ' defendant and if no such corresponding payments had been made in favour of the 2nd1 defendant at least at the relevant point of time, one possible inference is that the plaintiff was not having necessary 31 funds to meet this obligation in respect of both the defendants.
29. The overall circumstances clearly indicate the lack of readiness and willingness on the part of the plaintiff to perform his part of the contract vis-ã-vis the 2nd defendant. However, the learned Judge of the trial Court without giving much thought to such development has on the other hand tried to pick up holes in the case of defendants and has proceeded on the premise that the 1' defendant having already executed the sale deed as per the agreement, a like action would not cause any damage or hardship to the 21i1 delèndant and it was only the plaintiff-Company who had invested the huge amount who will be put to injustice and hardship if specific performance is not granted and over looking the delay and laches on the part of the plaintiff by charncterising that there was no supporting evidence on the part of defendants. whereas there was no payments at all and in ignoring the time gap between the date of the 4--.
32' agreement, the date of the legal notice and the filing of the suit and the date on which the suit was being decreed, the trial Judge has simply proceeded to decree the suit as prayed 11w clearly in contravention of the requirement of law in terms of Section 20 of the Act.
30. The present situation was one where equity was fully loaded against the plaintiff and in favour of the defendant.
31. While the judgments cited at the bar by Sri.Kulkarni, generally support the 2" defendant/appellant independent of that also we are of the view that the present situation clearly as not one where the trial Judge could not have decreed the suit as prayed for. We find that the principle of law as interpreted by Supreme Court on the provisions of the Act in the case reported in the case of G JAYASHREE & OTHERS vs BHAGWANDASS S PATEL & OTHERS ((2009) 3 SCC 141j aptly applies to the present case. 33
32. Though Mr.Datar. learned counsel for the respondent s otTer ed that the plaintiff is read) and willing to make 1 h good the difference in payments if there is any excess land arid : also read) and willing to provide for escalation in the price ifl ti-ic land due to the time interval, Mr.Kulkarni. learned counsel for the appellant has submitted that his ilien' Ins not shown any interest in this proposal. Be that as it may. we find that decreeing the suit in the circumstances was clearl not warranted that it is in ('(;fltfl,\ ention of the legal principles u/s 20 and it was a case s' hen' the learned Judge of the trial Court should have dt-clin'd I, exercise jurisdiction for decreeing the suit. It is uzil a a. the Court is required to sustain the decree and in rtrth-r working out the equity. the price escalation and an; to ii"' the price factor can be balanced, could have been '.orkcd out it. As we find that decree is not sustainable, this ut-btion does not require examination.
--I 4-
33. However, it is just and appropriate that the plaintiff is pro\Iued ith the relief of refund of the earnest money of Rs. 1 Iakh with interest at 4
34. Ii, the result, this appeal is allowed in part. The 1je ind decree passed b\ the trial Court is modified and tiU snit is decreed only in part to the extent of refund of lv ea:nest money of Rs. I lakh with interest at I Q°o p.a. from the date of deposit with the 2m1 defendant till the amount is realised. Prayer for performance of the tere( r is declined and in so far as this prayer is 'uii 1 u. suit is dismissed, Having rcgard to the circ u n t nces, we leave the parties to bear Ihuir n i costs throughout.
Sd! JUDGE Sd/ JUDGE