Delhi District Court
Smt. Dayawati vs Rajpal Singh on 24 September, 2022
Suit No. 17384/2016 1
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 17384/2016
CNR No. : DLSW01-005439-2016
Smt. Dayawati
W/o Sh. Chander Singh
R/o House No. 651,
Village Shahbad Mohammadpur
Near Vijay Mother Dairy
New Delhi-110061
.....Plaintiff
Versus
Rajpal Singh
S/o Sh. Mange Ram
R/o 664, Village Shahbad Mohammadpur,
New Delhi-110061
.....Defendant
SUIT FOR SPECIFIC PERFORMANCE
DATE OF INSTITUTION : 01.02.2012
DATE OF FINAL ARGUMENTS : 29.07.2022
DATE OF DECISION : 13.09.2022
Smt. Dayawati Vs. Sh. Rajpal
Suit No. 17384/2016 2
JUDGMENT
1. The plaintiff has filed the present suit seeking a decree for specific performance of the agreement dated 26.04.2011 directing the defendant to execute the sale deed.
2. The crux of the allegations in the plaint is that
(i) the parties had entered into an agreement to sell dated 26.04.2011;
(ii) plaintiff had paid part payment of Rs. 18,00,000/- to the defendant and further part payment of Rs. 50,000/- on 11.07.2011;
(iii) the defendant turned dishonest and did not execute the sale deed and,
(iv) plaintiff had strong apprehension that defendant would create third party interest in the suit property. PLAINT
3. In the plaint of this suit, the plaintiff had pleaded that defendant had declared the plaintiff as the absolute, rightful owner and in possession of property admeasuring 72 sq. yards of land bearing no. 651, Khasra No. 451, Village Shahbad, Mohammadpur, Near Vijay Mother Dairy, New Delhi-110061 (hereinafter referred to as "suit property"); that defendant had entered into an agreement for sale in Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 3 writing dated 26.04.2011 with the plaintiff for a total sale consideration of Rs. 32,50,000/-; that the plaintiff had paid Rs. 18,00,000/- at the time of entering the agreement to sell dated 26.04.2011 and the possession was handed over to the plaintiff and the balance amount was agreed to be paid on 25.10.2011 at the time of registration of the suit property in favour of the plaintiff; plaintiff had showed her willingness to pay the balance amount several times, however, defendant requested for some time for the registration of the property in favour of the plaintiff; that on 11.07.2011, defendant had demanded an amount of Rs. 50,000/- from the plaintiff on account of the suit property and the same was paid by cheque bearing number 121677 dated 11.07.2011 and the plaintiff also expressed her willingness to pay the entire balance amount before 25.10.2011; that defendant turned dishonest and started avoiding to receive the balance payment from the plaintiff; that the said facts were witnessed by Sri Krishan S/o Sh. Ghanshyam Dass R/o Village Shahbad Mohammadpur, New Delhi-110061 through whom the agreement to sell dated 26.04.2011 was entered into; that defendant had sent a notice dated 31.10.2011 to the plaintiff for cancellation of agreement and forfeit the amount paid by the plaintiff to the defendant; that plaintiff had replied to the notice dated 31.10.2011. On these facts, the present suit has been filed as the plaintiff avers that the defendant had not performed his part of agreement to sell dated 26.04.2011 and also Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 4 had strong apprehension that defendant would create third party interest in the suit property.
WRITTEN STATEMENT, ADMISSION-DENIAL OF DOCUMENTS AND FRAMING OF ISSUES
4. A perusal of the Court file reveals that initially, the present suit had been filed in Hon'ble High Court of Delhi in CS (OS) No. 251/2012 and the summons was ordered to be issued qua the defendant, on 01.02.201 and status quo was ordered to be maintained on behalf of defendant subject to the deposit of FDR of balance sale consideration within six weeks. Record reveals that the said FDR was deposited by the plaintiff on 26.03.2012. Later on, application has been moved by the plaintiff and the FDR released by the Court on 11.04.2017. Defendant was served on 22.02.2012 and WS was filed on behalf of defendant on 29.11.2012, however, the same was not taken on record as it was filed without any application for condonation of delay in filing the WS. Replication was also not filed on behalf of plaintiff. Admission-denial of documents was conducted on 28.01.2014 wherein, defendant had admitted legal notice dated 31.10.2011 filed along with agreement to sell dated 26.04.2011 and the said documents were exhibited as Ex. P1 and Ex. P2 respectively. Remaining documents were denied by the plaintiff. The right of defendant to file WS had been closed vide order dated 28.01.2014. Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 5
5. Meanwhile, an interim application no. 4836/2014 u/s 5 of Limitation Act had been moved on behalf of defendant for condonation of delay in filing the written statement, however, the same was dismissed for not being justiciable vide order dated 24.09.2014. The WS of defendant was, therefore, taken off the record.
6. On the basis of pleadings, following issues were framed on 19.01.2015:
(I) Whether the plaintiff had entered into an agreement with the defendant to sell premises no. 651, Khasra No. 451, Village Shahbad, Mohammadpur, Near Vijay Mother Dairy, New Delhi, in terms of a document dated 26.04.2011? (OPP) (II) Whether the plaintiff was ready and willing to perform her part of the obligations under the Agreement to Sell dated 26.04.2011? (OPP) (III) If issues no. 1 and 2 are decided in favour of the plaintiff, whether she is entitled to a decree for specific performance in respect of the suit premises, as prayed for ? (OPP) (IV) Relief.
No other issue arose or was pressed for. Matter was proceeded for plaintiff's evidence.
7. At this stage, the Hon'ble Court had apprised the parties about mediation settlement to which the parties agreed. Thereafter, on the next date, interim application u/o XXXIX R 1 and 2 of CPC Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 6 moved by the plaintiff had been disposed off. The matter had not been settled in mediation and the same was proceeded for plaintiff's evidence. Thereafter, the present suit had been transferred to the Ld. District Judge, South West, Dwarka, vide order dated 17.02.2016. On 02.06.2016, the matter was again transferred back to Hon'ble High Court of Delhi for proper territorial jurisdiction and the same was again returned to Dwarka District Court on 12.08.2016. EVIDENCE LED BY THE PARTIES
8. On 23.04.2019, PW-1 Smt. Dayawati tendered her evidence by way of affidavit Ex. PW-1/1 and relied upon the following documents:
(I) Ex. PW-1/A i.e. site plan; (II) Ex. PW-1/B i.e. agreement for sale dated 26.04.2011 for
a total sale consideration of Rs. 32,50,000/- and the same was already admitted by the defendant;
(III) Ex. PW-1/C i.e. legal notice dated 31.10.2011 and (IV) Ex. PW-1/D-F i.e. postal receipt and acknowledgment card.
9. Thereafter, at the joint request of both the parties, matter was again referred to mediation for exploring the possibility of settlement wherein, the matter was received back as compromised but Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 7 the terms of the settlement could not be finalized and the settlement agreement remained unexecuted. PW-1 was, thereafter, examined, cross-examined and discharged vide order dated 17.12.2019 and PE was closed vide separate statement of plaintiff. Thereafter, the FDR of the plaintiff was ordered to be released vide order dated 11.04.2017. PW-1 was, thereafter, cross examined and discharged vide order dated 06.08.2019 and PE was closed vide separate statement of the plaintiff. Matter was, inadvertently, proceeded for defendant's evidence.
10. No witness had been examined on behalf of defendants as the right of the defendant to file WS was taken off vide order dated 24.09.2014, consequently, there was no question of the defendant pleading any DE and matter was kept for final arguments.
11. Final arguments were heard on behalf of both parties. CONTENTION OF PARTIES
12. Final arguments were heard on 29.07.2022. Ld. Counsel for the plaintiff has submitted that time was not of the essence of the contract and that the plaintiff was always ready and willing to perform the contract. He has submitted that the suit was filed on 01.02.2012 within a few months of the date of performance of the contract i.e. 25.10.2011. He has further submitted that the readiness and willingness can be inferred from the fact that FDR of Rs 14,00,000 was deposited with the Hon'ble High Court of Delhi as per the order Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 8 of the Hon'ble Court dated 01.02.2012. He has submitted that it was the refusal of the defendant that lead to the present dispute. Per contra the Ld. Counsel for the defendant has argued that time was of the essence of the contract as a specific date was mentioned for the deposit of the remaining sale consideration and in fact the consequences of the failure to deposit the remaining sale consideration have also been explicitly spelled out in the agreement to sell dated 26.04.2012. He has submitted that even though the defence of the defendant was struck off, it is for the plaintiff's case to stand on its own legs. He has further submitted that the plaintiff has never proved the availability of funds or the financial capacity to tender the sale consideration on the date fixed by the parties i.e. 25.10.2011. He has submitted that it has not been proved by the plaintiff that she made any offer to pay the remaining sale consideration to the defendant at any point of time before or on 25.10.2011 and it was only in reply to the legal notice dated 30.10.2011 that the plaintiff offered to pay the amount.
ISSUE WISE FINDINGS
13. I have perused the record and heard the parties. Issue no. 1 would be decided first and Issues no. 2 & 3 would be decided together.
Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 9 ISSUE NO. 1 "Whether the plaintiff had entered into an agreement with the defendant to sell premises No 651, Khasra no 451, Village Shahbad Mohammadpur, Near Vijay Mother Dairy, New Delhi in terms of a document dated 26.04.2011? (OPP)"
14. This issue is decided in favour of the plaintiff, for the reason that the record would reveal that admission denial was conducted in the present matter on 28.01.2014 during which the agreement to sell dated 26.04.2011 was admitted and was exhibited as Ex P2. The said document would reveal that the parties to the agreement i.e. the plaintiff and defendant herein had agreed for selling the property for a sale consideration of Rs 32, 50,000. The said agreement Ex P2 further records that sum of Rs 18,00,000 had been paid and balance amount of Rs 14, 50, 000 was to be paid by 25.10.2011. It further records that if the seller refuses to execute the sale deed then he would have to pay the purchaser double the "bayana amount" and if the purchaser does not deposit the remaining sale consideration by the aforementioned date of 25.10.2011 then the "bayana amount" would stand forfeited. The original agreement Ex P-
2 is in Hindi, along with a translated version in English. Therefore, there is no doubt about the existence of the agreement to sell between the parties for the property No 651, Khasra no 451, Village Shahbad Mohammadpur, Near Vijay Mother Dairy, New Delhi. Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 10 The issue is decided accordingly.
ISSUES NO. 2 & 3
"Whether the plaintiff was ready and willing to perform her part of the obligations under the Agreement to Sell dated 26.04.2011? (OPP)"
"If issues no. 1 and 2 are decided in favour of the plaintiff, whether she is entitled to a decree for specific performance in respect of the suit premises, as prayed for ? (OPP)"
15. The question that arises is whether the plaintiff has been able to prove that she was ready and willing to perform her part of the agreement and if so, whether on the facts and circumstances in the present case she is entitled to the specific performance of the agreement Ex P2.
16. Section 16 (c) of the Specific Relief Act, 1963 before the Amendment Act of 2018 reads as under:-
".......(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."
17. Section 20 of the Specific Relief Act, 1963 before the Amendment Act of 2018 reads as under:
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 11 discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:
--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.-- The question whether the performance of a Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 12 contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
18. In J.P. Builders and Another Vs. A. Ramadas Rao and Another, (2011) 1 Supreme Court Cases 429, Hon'ble Supreme Court has observed as under:
"Readiness and willingness
20. Section 16 of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that:
"16. Personal bars to relief-Specific performance of a contract cannot be enforced in favour of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 13 part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation-For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
21. Among the three clauses, we are more concerned about clause (c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 14 the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.
22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao at SCC para 5, this Court held: (SCC pp. 117-18) "5... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 15 or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
24. In P.D'Souza v. Shondrilo Naidu this Court observed:
(SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract.
Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 16 The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf.....
21.... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 17 plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
19. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 wherein it was observed as under:
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 18 petitioner. The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was no ready no capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract."
20. I find that the plaintiff has not proved that she was ready and willing to perform her part of the agreement for the following reasons :-
(i) The plaintiff has not been able to prove that she, at any point of time offered to pay the balance sale consideration to the defendant. In her examination-in-chief on affidavit, the plaintiff PW-1 has stated that time and again she had expressed her willingness to the defendant but did not bring on record any legal notice to corroborate her claim, which makes the case of the plaintiff that she expressed her willingness to tender the remaining amount doubtful. She has further averred that her willingness and offer to perform the contract was witnessed by one Krishan s/o Sh Ghanshyam Dasss r/o Village Shahbad Mohammadpur New Delhi, but did not produce such witness before the Court to corroborate this story, nor was any evidence led to show as to why such witness could not be produced before Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 19 the Court. The only document placed on record to show the willingness is the reply to the legal notice of the plaintiff dated 31.10.2011, Ex P1. It is relevant to note that the reply of the plaintiff exhibited as Ex PW1/C to the said legal notice is dated 30.11.2011 i.e. almost a month after the legal notice was sent to the plaintiff. No explanation for the delay in sending the reply to such legal notice was forthcoming in evidence, even when the defendant had clearly stated in his legal notice that he was forfeiting the "bayana amount". Moreover, in her cross examination PW-1 has admitted that "I did not send any correspondence to Shri Rajpal Singh (defendant) between 26.04.2011 to 25.10.2011". This also shows that no effort had been made by the plaintiff to tender the remaining sale consideration and falsifies the averment of the plaintiff regarding her willingness.
(ii) I find that the plaintiff has not been able to prove her readiness to perform the contract. As discussed in the judgments of the Hon'ble Supreme Court and Hon'ble Delhi High Court, a party must prove that they were ready and willing to perform the contract at all points of time before and after filing the suit. With respect to the time before filing of the suit, the plaintiff has not even averred that she had the funds at any time after 26.04.2011 up till 25.10.2011 or even after that. Even leaving apart the fact of availability of funds which might not be sine qua non in all such cases, the plaintiff has not even produced any positive evidence or averment in her evidence that she had the financial capability to pay the remaining amount of Rs. 14,00,000/-. In her cross examination, she admitted that "I am housewife and have no independent source of income." She could not tell about the funds lying in her joint bank account. Her husband who is the joint Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 20 bank account holder was not examined. No bank account statement has been proved even though it would have been well within the realms of possibility for the plaintiff to produce the same. In this regard, adverse inference deserves to be drawn against the plaintiff within the meaning of Section 114
(g) of the Indian Evidence Act. On one hand during the cross examination dated 28.05.2019 she has stated that she is not aware about the funds lying in the said bank account between 26.04.2011 to 25.10.2011. However, in the cross examination conducted post lunch on the same day PW-1 has stated that there was around 10-11 lacs with her on 25.10.2011. This statement has to be taken with a grain of salt as at no point of time, previously, had the witness PW-1 made any such submission or statement before the Court. She further states during the cross examination that her monthly income is of Rs.
4000/- to 5000/-. No evidence has been led as to if funds could be arranged by the plaintiff and her husband then from what source. No details have been given if such funds, if not available, were to be arranged from the financial institution or from relative and friends.
21. Undoubtedly, an FDR of Rs. 14,00,000/- was deposited as already noticed, in pursuance of order of the Hon'ble High Court dated 01.02.2012 by the plaintiff, but notice may be taken that such FDR was to be deposited within six weeks of the order dated 01.02.2012 but the same only came to be deposited on 26.03.2012. The plaintiff has admitted this fact in the application for the release of FDR which came to be moved before the Court on 11.04.2017. The natural inference to be drawn is that the funds were indeed, not readily available with the plaintiff.
22. Moreover, merely because an FDR was deposited does not Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 21 lead to the inference that the plaintiff was ready and willing at all times to perform the contract. As already noted above, the plaintiff has miserably failed in proving either readiness or willingness to perform the contract prior to filing of the suit. It was for the plaintiff to prove that she was ready and willing to perform the contract at all relevant points in time, and I find that the time period from the execution of the agreement dated 26.04.2011 till 25.10.2011 and up till the filing of suit on 01.02.2011 is indeed a very relevant point in time for which the plaintiff had to lead positive evidence showing her financial capabilities as well as the offers to perform her part of the agreement, which I have found that the plaintiff has not been able to do.
23. Coming now to the point as to whether even if the plaintiff could have proved her readiness and willingness, then would the plaintiff be entitled to specific performance of the contract. Intertwined with this issue would be a finding as to whether time was of the essence and whether it was the plaintiff or the defendant who was in breach of the agreement to sell dated 26.04.2012 Ex P2.
24. In Sarabjeet Singh Vs. Anup Sharma and Ors (2016) SCC OnLine Del 3140 : (2016) 231 DLT 414 : (2016) 158 DRJ 610, Hon'ble High Court of Delhi has observed as under:
"11. At the outset, I would refer to the ratios of the two judgments of the Supreme Court, and which ratios would be relevant on their being applied to the facts of the present case for deciding as to whether or not specific performance should be granted. The first judgment is the judgment of the Supreme Court in the case of K.S. Vidyanandam v. Vairavan (1997) 3 SCC 1. Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 22 The second judgment is the judgment of the Supreme Court in the case of Sardamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18. In the case of K.S. Vidyanandam (supra) the Supreme Court clearly held that the old rule of time of performance being not of the essence of the contract in agreement to sell of immovable properties was laid down when prices were stable and inflation was unknown and that this old rule with respect to time being not of the essence of the contract, so far as urban immovable properties are concerned, should be given a go-by. The relevant paras of this judgment are paras 10, 11 and 14 and these paras read as under:-
"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement [which does not provide specifically that time is of the essence of the contract] should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 23 parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limits specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani: (SCC p.528, para 25) ".....it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract".
In other words, the court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. In this case, the suit property is the house property situated in Madurai, which Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 24 is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15 th of June, 1979. The suit notice was issued by the plaintiff only on 11.7.1981, i.e., more than two years after the expiry of six months' period. The question is v/hat was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The Trial Court has accepted the defendants' story whereas the High Court has accepted the plaintiffs story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff should purchase the stamp papers and pay the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 25 of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11.7.1981. It is not the plaintiffs case that within six months, he purchased the stamp papers and offered to pay the balance consideration. Defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW-2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile [i.e., on the expiry of six months from the date of agreement], he stated, the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between December 15, 1978 and July 11, 1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been that the prices of house properties in Madurai have been rising fast, that within the said interval of 2- 1/2 years, the prices went up by three times and that only because of the said circumstance has the plaintiff [who had earlier abandoned any idea of going forward with the purchase of Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 26 the suit property] turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2-1/2 years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15.12.1978 till 11.7.1981, i.e., for a period of more than 21/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendant's case that the values of the house property in Madurai town was rising fast and this must have induced the plaintiff to wake up after 2 1/2 years and demand specific performance.
11. Sri. Sivasubramanium cited the decision of the Madras High Court in S.V. Sankaraninga Nadar v. P.T.S. Ratnaswamy Nadar holding that mere rise in prices is no ground for denying the specific performance. With great Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 27 respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality - and the reality is constant and continuous rise in the values of urban properties - fuelled by larger-scale migration of people from rural areas to urban centers and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs. 5,000/- and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs. 5,000/- [as against the total consideration of Rs. 60,000/-] the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 28 properties. It is high time, we do so. Learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may no amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as nonexistent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribes certain time-limits for taking steps by one or the other party, it must have some significance and that the said time-limits cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties)."
14. Sri. Sivasubramanium then relied upon the decision in Jiwan Lai v. Brij Mohan Mehra to show that the delay of two years is not a ground to deny specific performance. Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 29 But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in Chand Rani. Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property." (emphasis is mine)
12. In addition to holding that in urban areas time of performance should not be ignored, the aforesaid paras also lay down the ratio that merely because a suit for specific performance is filed within limitation would not mean that the suit for specific performance has necessarily to be decreed because delay in approaching the courts for seeking specific performance is a ground to deny the relief of specific performance.
13. The relevant paras of the judgment in the case of Sardamani Kandappan (supra) are paras 35 to 37, 41 and 43 and these paras read as under:-
"35. It is of some interest to note that the distinction between contracts relating to immovable properties and other contracts was not drawn by Section 55 of Contract Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 30 Act (or any other provisions of the Contract Act or Specific Relief Act, 1963). Courts in India made the said distinction, by following the English law evolved during the nineteenth century. This Court held that time is not of the essence of the contracts relating to immovable properties; and that notwithstanding default in carrying out the contract within the specified period, specific performance will ordinarily be granted, if having regard to the express stipulation of the parties, nature of the property and surrounding circumstances, it is not inequitable to grant such relief. (Vide Gomathinayagam Pillai, Govind Prasad Chaturvedi, Indira Kaur v. Sheo Lal Kapoor and Chand Rani following the decision of Privy Council in Jamshed Khodaram Irani v. Burjorji Dhunjibhai cases). of course, the Constitution Bench in Chand Rani made a slight departure from the said view.
36. The principle that time is not of the essence of contracts relating to immovable properties took shape in an era when market value of immovable properties were stable and did not undergo any marked change even over a few years (followed mechanically, even when value ceased to be stable). As a consequence, time for performance, stipulated in the agreement was assumed to be not material, or at all events considered as merely indicating the reasonable period within which contract Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 31 should be performed. The assumption was that grant of specific performance would not prejudice the vendor- Defendant financially as there would not be much difference in the market value of the property even if the contract was performed after a few months. This principle made sense during the first half of the twentieth century, when there was comparatively very little inflation, in India. The third quarter of the twentieth century saw a very slow but steady increase in prices. But a drastic change occurred from the beginning of the last quarter of the twentieth century. There has been a galloping inflation and prices of immovable properties have increased steeply, by leaps and bounds. Market values of properties are no longer stable or steady. We can take judicial notice of the comparative purchase power of a rupee in the year 1975 and now, as also the steep increase in the value of the immovable properties between then and now. It is no exaggeration to say that properties in cities, worth a lakh or so in or about 1975 to 1980, may cost a crore or more now.
37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 32 steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non- performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and "non- readiness". The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for Rs. One lakh and received Rs. Ten Thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining Rs. Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 33 Ninety Thousand, when the property value has risen to a crore of rupees.
41. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this Court in K.S. Vidyanadam v. Vairavan (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed: (SCC pp. 7 & 9, paras 10-11) "10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. ......in the case of urban properties in India, it is well- known that their prices have been going up sharply over the last few decades- particularly after 1973. ....
11. ......We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation. ......Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 34 stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so."
(Emphasis supplied)
43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam (supra):
(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was "ready and willing" to perform his part of the contract.
(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 35 major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser." ...........
16. The related issue is that whether time of performance was or was not of the essence of the contract. If time of contract was not of essence of the contract i.e plaintiff had not tendered the amount by 29.7.2006 plaintiff cannot be held guilty of breach of contract, however, in this regard I have reproduced above the ratios of the judgments of the Supreme Court in the cases of K.S. Vidyanandam (supra) and Sardamani Kandappan (supra) and in view of these ratios it is clear that once specific dates are mentioned, these specific dates show that time of performance is of the essence of the contract qua urban immovable properties and therefore it is held that time of performance was of the essence of the contract with respect to the payment of balance sale consideration by the plaintiff to defendant nos. 1 to 3 more so in view of defendant nos. 1 to 3 demanding the balance consideration from the plaintiff by the Legal Notice dated 19.7.2006. Therefore, plaintiff is guilty of breach of contract, time of performance was of the essence of the contract, and that since plaintiff being guilty of breach of contract, plaintiff is hence not Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 36 entitled to specific performance of the Agreement to Sell dated 19.6.2006 so far as the ground floor portion is concerned and with respect to which, an agreement to sell was entered into by the plaintiff with defendant nos. 1 to 3."
25. I find that, based on the written agreement Ex P-2 and the surrounding circumstances, the time was indeed of the essence in the present case for the following reasons : -
(i) As held by the Hon'ble High Court of Delhi in Sarabjeet Singh (supra), once the specific date has been mentioned i.e. 25.10.2011 in Agreement Ex.
P-2, in cases of urban immovable property, then the presumption is that the time is of the essence, and in fact in such cases the Court has to adopt an even more rigorous approach while evaluating the readiness and willingness of the buyer. Judicial notice can also be taken of the fact that in the areas adjoining Dwarka which has rapidly urbanized, the property prices have been rising by leaps and bounds during the past decade. The presumption of time being of the essence has not been displaced by any of the evidence led by the plaintiff. This is more so when I find that it is an admitted fact that the legal notice sent by defendant of the plaintiff Ex P1 has been sent informing the plaintiff that the earnest money has been forfeited on 30.10.2011, merely 5 days after the date of performance i.e. 25.10.2011.
(ii) It is relevant to note that the agreement Ex P2 after recording the date of 25.10.2011 as the date on which balance sale consideration is to be paid, also records the consequence if such balance sale consideration is not paid by the aforementioned date. This further strengthens the presumption of Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 37 time being of the essence.
(iii) It has been admitted by the plaintiff that at the time of execution of the agreement dated 26.04.2011, possession of the suit property was handed over to the plaintiff. This is so stated in the examination in chief on affidavit of PW-1. This further strengthens the presumption of time being of the essence, as once possession of suit property was handed over, it is quite believable that the defendant must have insisted on a time line for the payment of the remaining balance sale consideration. The plaintiff, having agreed to such timelines along with the consequences being spelled out, cannot now renege and plead that time was not of the essence.
26. Having found that time was of the essence and also having found that the plaintiff neither proved her financial capabilities or that she offered to perform her part of the agreement, the only tenable conclusion which arises is that it was the plaintiff who breached the contract, which makes the plaintiff ineligible to claim the equitable relief of specific performance.
Issues no. 2 & 3 are, therefore, decided against the plaintiff and in favour of the defendant.
RELIEF
27. In light of foregoing, the present suit of the plaintiff for specific performance has to be dismissed.
28. However, at this stage, I have considered whether this Court can give relief of refund of the Rs 18,00,000 admittedly paid by Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 38 the plaintiff to the defendant even though such relief has not been prayed for by the plaintiff, even in the alternative.
29. In Anuja Sharma Vs. Memo Devi and Others 2019 SCC OnLine Del 7288, Hon'ble High Court of Delhi has observed as under:
"8. In order to interpret the provision of Section 22, it is necessary to note as to what is the object and requirement of a pleading to be filed by a party. Pleading is defined under Order VI CPC. A pleading will include a plaint and a written statement. What is a plaint is specified under Order VII CPC, and what is a written statement is specified under Order VIII CPC. It is now a settled law by virtue of a catena of decisions of the Hon'ble Supreme Court that object of a pleading is to give notice of a case to the other party. The object of giving notice of a case to the other party is to ensure that the other party can meet the case. On this principle, the appellate courts have allowed issues which are pure questions of law even at the appellate stage, even in cases till the Hon'ble Supreme Court, if the issue of law goes to the root of the matter, and even if there is no specific pleading, but the issue does arise from the admitted facts and the pleadings on record. Thus, the trial court as also the appellate courts can, depending on facts of a Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 39 particular case, allow a pure issue of law to be raised, at any stage of the legal proceedings. This is being stated by this Court because when the object of Section 22 of the Specific Relief Act is seen, and of the requirement of seeking a relief with respect to the advance price paid under an agreement to sell to be included in the plaint, it is found that the object of stating/praying in a pleading for refund of the advance price and/or earnest moneys paid is to allow a defendant/seller to take up a defence as to why the advance price and/or earnest money should not be repaid. Obviously, defence of a defendant/seller would be that the advance price and/or earnest money is not to be re-paid because it is forfeited or liable to be forfeited either because of a specific term of the agreement to sell or because the defendant/seller has suffered a loss and consequently for the loss suffered by the defendant/seller, the advance price and/or earnest money paid under the agreement to sell has to be forfeited by applying the provision of Section 74 of the Indian Contract Act, 1872.
9. It is settled law that unless a seller proves a loss being caused to him on account of breach by a buyer in purchasing a property under an agreement to sell, the advance price and/or earnest money received under the Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 40 agreement to sell cannot be forfeited because forfeiture is in the nature of forfeiture being liquated damages under Section 74 of the Indian Contract Act, and that Section 74 of the Indian Contract Act cannot come into play if the nature of the contract is such that the loss which is caused on account of the breach of contract can be proved and assessed in a court of law. This is the law as laid down way back by the Constitution Bench of the Hon'ble Supreme court in the case of Fateh Chand v. Balkishan Dass, AIR 1963 SC 1405, and such ratio being elaborated and expounded in the recent judgment of the Hon'ble Supreme Court in the case of Kailash Nath Associates v. Delhi Development Authority, (2015) 4 SCC 136. I have had an occasion to consider the ratios of the aforesaid judgments of the Hon'ble Supreme Court in the cases of Fateh Chand (supra) and Kailash Nath Associates (supra) along with a slightly divergent ratio of the judgment of the Hon'ble Supreme Court in the case of Satish Batra v. Sudhir Rawal (2013) 1 SCC 345, and this Court has held that it is the ratio of the judgment of the Constitution Bench in the case of Fateh Chand (supra) which will prevail, that a seller who has received an advance price and/or earnest moneys under an agreement to sell cannot forfeit an advance price and/or Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 41 earnest moneys except a very nominal amount in case of a breach by the buyer, unless and until loss is pleaded and proved. It is trite that breach of contract is actionable not because of the breach itself but because the breach causes loss to the aggrieved party. Once there is no loss to the aggrieved party, and the same is a sine qua non under Section 73 of the Indian Contract Act, and the nature of the contract is such that the loss can be proved because the contract is one which falls under Section 73 of the Indian Contract Act and not Section 74 of the Indian Contract Act, in such a scenario, the advance price and/or earnest money received by a seller surely cannot be forfeited in the face of the ratios of the judgment of the Hon'ble Supreme Court in the cases of Fateh Chand (supra) and Kailash Nath Associates (supra). I may note that the ratios of the aforesaid judgment of the Hon'ble Supreme Court were considered in detail in the case of M.C. Luthra v. Ashok Kumar Khanna, 2018 (248) DLT 161. An SLP filed against the judgment passed by this Court in the case of M.C. Luthra (supra), has been dismissed by the Hon'ble Supreme Court on 15.05.2018 in SLP (C) No. 11702/2018.
10. In the facts of the present case, it is an undisputed position that as per the pleading/written statement filed by Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 42 the appellant/defendant no. 1, it was pleaded by the appellant/defendant no. 1/seller that appellant/defendant no. 1/seller had forfeited the amount of Rs. 15,00,000/-
received under the subject Agreement to Sell on account of breach by the respondent/plaintiff/buyer to fulfill her part of the bargain in not paying the balance price of Rs. 2,00,000/- under the subject Agreement to Sell, it was also pleaded by the appellant/defendant no. 1 that monetary loss was caused to the appellant/defendant no. 1. But, as already stated above, the appellant/defendant no. 1 has not led any evidence by stepping into the witness-box and thus he has failed to prove the loss. The appellant/defendant no. 1 having had no courage to depose and stand the test of cross-examination to establish the loss that was suffered by him, the appellant/defendant no. 1 is thus not entitled to forfeit the advance price received. Therefore, it is held that the appellant/defendant no. 1 had already raised his defence with respect to the disentitlement of the respondent/plaintiff to receive back the advance price and/or earnest money paid under the contract, and hence the present case is not a case where the appellant/defendant no. 1 is taken by surprise on the relief being granted of refund of advance price and/or earnest moneys. Once Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 43 appellant/defendant no. 1 is not taken by surprise, the object of Orders VI to VIII CPC are met, that the pleading has to give notice of a person's case to the opposite party.
11. Therefore in my opinion the word 'pleading' in Section 22 cannot be strictly interpreted in the sense that the requirement being only of a written pleading and nothing else, and in law the expression pleading under Section 22 of the Specific Relief Act should be read only and essentially to mean notice of a party's case to the other side.12. I am fortified in the aforesaid conclusions as regards the interpretation of Section 22 of the Specific Relief Act on account of the observations made by a Ld. Singe Judge of this Court, (Avadh Behari Rohtagi, J.) in the judgment in the case of Ex -Servicemen Enterprises (P) Ltd. v. Samey Singh, AIR 1976 Delhi 56, wherein it is held that the expression which is used in Section 22 of the Specific Relief Act that amendment is to be allowed 'at any stage' of a 'proceeding' i.e. the words 'at any stage of the proceedings' will mean thereby not only at any stage of the suit proceedings or appeal proceedings, and therefore, in the case of Samey Singh (supra), the Ld. Single Judge of this Court allowed amendment of the plaint at the stage of execution to seek possession in a suit for specific Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 44 performance. In fact, in my opinion, para 33 is the most relevant part of the judgment wherein the Ld. Single Judge has very aptly and thoughtfully reproduced the words of Paul of Tarsus that "the letter killeth, but the spirit giveth life". This para 33 of the judgment in the case of Samey Singh (supra) reads as under:--
"33. It is said that rules of construction do not permit such a wide interpretation. Of rules of construction Lord Reid has said:
"They are not rules in the ordinary sense of having some binding force. They are out servants not our masters. They are aids to construction, presumptions or pointers. Not infrequently one 'rule points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular rule." [Maunsell v. Olins, (1975) All. E.R. 16]. On a consideration of all relevant circumstances my conclusion is this. The power of the judge is not gone. It remains in him as an indwelling spirit. So long as anything remains to be done in the case he can exercise that power for the sake of justice. When the judge finds that a verbal interpretation of law might lead to injustice he calls to mind as a comforting thought the words Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 45 of Paul of Tarsus:"the letter Killeth, but the spirit giveth life".
For these reasons I grant the application. I allow the amendment of the plaint on payment of Rs. 300/- as costs.
13. Therefore, in my opinion the expression 'pleading' which has to be interpreted with respect to Section 22 of the Specific Relief Act, has to be interpreted only to mean that whether the opposite party had notice of the case of the other side, and in the present case, the appellant/defendant no. 1 did have notice of the case of the respondent/plaintiff for seeking the refund of the advance price and/or earnest money, inasmuch as, the appellant/defendant no. 1 took up a specific defence of being entitled to forfeit the amount received under the subject Agreement to Sell.
14. Therefore, I may note that the trial court, in the facts of the present case, has rightly applied the provision of Order VII Rule 7 CPC, as this provision entitles every court, depending on the facts of each case, to give reliefs which otherwise arise from the position of the facts as found on record in terms of the pleadings and evidence in the case."
30. In light of the above, I find that the defendant in his legal notice dated 31.10.2011 has averred that the earnest money was being forfeited in terms of the agreement dated 26.04.2011. Therefore, even Smt. Dayawati Vs. Sh. Rajpal Suit No. 17384/2016 46 though there are no pleadings of the plaintiff for return of earnest money or prayer to that effect, no prejudice would be caused to the defendant if this Court moulds the relief as per Order VII Rule 7 and orders the refund of Rs. 18,00,000/-. The judgment of Anuja Sharma (supra) would apply on the facts of this case also and therefore, there is no bar for directing the refund.
31. Therefore, though the suit of the plaintiff for the relief of specific performance stands dismissed, the defendant is hereby directed to refund 18,00,000 INR to the plaintiff. This sum shall carry an interest @ 6% per annum from date of this judgment till date of realization. In light of the foregoing, there shall be no order as to costs.
32. Decree sheet be prepared accordingly.
33. File be consigned to Record Room after due compliance. Digitally signed by DIVYANG THAKUR
DIVYANG Date:
THAKUR 2022.09.24
16:05:17
+0530
Announced in the open court (Sh. Divyang Thakur)
On 24.09.2022 ADJ-03/South West
Dwarka / New Delhi
Smt. Dayawati Vs. Sh. Rajpal