Karnataka High Court
K.Prabhakar Rao S/O.Ramakotayya vs Smt.Chitturi Sathyavathi W/O.Arjun ... on 3 August, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF AUGUST 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR SECOND APPEAL No.7038/2010
BETWEEN:
K.Prabhakar Rao,
S/o Ramakotayya,
Aged about 47 years,
Occ. Agriculture,
R/o Devi Camp,
Po. Chennalli Village,
Taluk : Sindhanur,
Dist : Raichur - 584 101.
...APPELLANT
(By Sri Basavaraj Kareddy, Advocate)
AND:
Smt Chitturi Sathyavathi,
W/o Arjun Rao,
Aged about 42 years,
Occ. Household & Agriculture,
R/o Chellur Camp,
Post : Chellur Village,
Taluk : Gangavathi,
Dist : Koppal - 583 229.
...RESPONDENT
(By Sri Ashok S.Kinagi, Advocate)
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This Regular Second Appeal is filed under Section
100 of CPC, against the judgment and decree dated
06.10.2009, passed in R.A.No.18/2007, on the file of Addl.
District Judge, Raichur, partly allowing the appeal and
modifying the judgment and decree dated 05.04.2007
passed in O.S.No.37/2006, on the file of Civil Judge
(Sr.Dn.), Lingasugur (sitting at Sindhanur).
This appeal coming on for fresh disposal this day,
Court delivered the following:
JUDGMENT
This regular second appeal has been filed by the plaintiff in O.S.No.37/2006 (O.S.No.1/2001), being aggrieved by the judgment and decree passed in R.A.No.18/2007, by the Addl. District Judge at Raichur by which, the judgment and decree passed in the original suit by the Civil Judge (Sr.Dn.), Lingasugur, sitting at Sindhanuru, has been modified, by allowing the appeal in part, in that the relief of specific performance of agreement to sell dated 30.07.1998, granted by the trial Court has been substituted by granting the alternative relief.
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2. At this stage itself it may be mentioned that this appeal was disposed of by this Court on 02.12.2011, by answering the substantial question of law in favour of the appellant and remanding the matter to the trial Court for the limited purpose of recording a finding whether the plaintiff was entitled to the relief of specific performance under Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as the 'Act'], and a direction was also given to the trial Court to permit the plaintiff to adduce further evidence to prove the documents filed along with I.A.No.6. Defendant was given the liberty to adduce rebuttal evidence if she so desired.
3. Being aggrieved by the judgment and order of remand dated 02.12.2011, the respondent herein preferred Special Leave Petition (Civil) No.24272 of 2012) to the Hon'ble Supreme Court, which was converted into Civil Appeal No.5992 of 2014 and the civil appeal was disposed of by order dated 04.07.2014, remanding the matter to this Court to decide the matter afresh after 4 hearing both sides and after noting that I.A.No.6, filed by the plaintiff/appellants herein was dismissed as not pressed by order dated 23.03.2007, by the trial Court. In the above background the second appeal has been heard afresh.
For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.
4. The plaintiff - appellant herein filed the suit seeking the relief of specific performance of agreement of sale dated 30.07.1998 by directing the defendant to execute the registered sale deed in favour of the plaintiff. Originally the suit was filed before the Principal Civil Judge (Senior Division), Raichur, which was numbered as O.S.No.1/2001. After the constitution of the Court of Civil Judge (Senior Division) at Lingasugur, it was re-numbered as O.S.No.37/2006.
5. According to the plaintiff, defendant is the owner in possession of an agricultural land bearing Sy.No.43/C measuring 1 acre 38 guntas at Mullur EJ 5 village, Sindhanoor taluk (hereinafter referred to as the 'suit schedule property' or 'suit land', for short). That plaintiff and defendant's husband are well acquainted with each other for several years. Defendant and her husband were desirous of selling the suit land in order to meet family and legal necessity. Plaintiff was also desirous of purchasing the suit land. Parties negotiated the sale of the land in the presence of elders and it was agreed between the plaintiff and defendant that the total consideration shall be Rs.60,000/-. Defendant had agreed to sell the said land for the aforesaid sum. Immediately after the conclusion of the talks for sale of the land, plaintiff paid a sum of Rs.50,000/- as advance sale consideration. Defendant executed an agreement of sale dated 30.07.1998 in favour of the plaintiff and it was registered before the Sub-Registrar. Defendant acknowledged having received a sum of Rs.50,000/-. The remaining consideration of Rs.10,000/- was to be paid at the time of registration of the sale deed.
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6. According to the plaintiff, he expressed several times his intention to get the land registered in his favour by paying remaining sale consideration. But defendant and her husband, on one pretext or the other, dodged the matter. Finally, on 23.07.1999, plaintiff got issued legal notice to the defendant demanding execution of the registered sale deed by tendering the sale amount of Rs.10,000/-. Defendant neither accepted the payment nor replied to the said notice. Once again on 01.03.2000 demand notice was issued by the plaintiff to the defendant. Defendant did not reply to the same. Having no other remedy, plaintiff filed the suit seeking the relief of specific performance of the agreement dated 30.07.1997.
7. In response to the suit summons and Court notices, defendant appeared and filed her written statement admitting that she is the owner of the suit property and also being in possession of the same, but she denied execution of the agreement of sale dated 30.07.1998 and also for having received part consideration 7 of Rs.50,000/- and further she denied that she had agreed to register a sale deed within one year from the date of agreement after receiving the balance consideration. She denied that she had received any legal notice from the plaintiff along with cheque sent by the plaintiff. She contended that defendant and her husband had no legal or family necessity to sell the land. That her husband had availed a loan facility from the plaintiff and he had repaid the same and there was a quarrel and dispute regarding non-payment of interest amount at higher rate and there was ill-will and enmity between the plaintiff and her husband and on account of said enmity plaintiff created a spurious sale agreement with the object of harassing defendant and her husband so as to secure more amount by way of interest. Defendant contended that she had not executed any agreement in favour of the plaintiff. That the attestors namely, Gadde Prasad and B. Gopal Rao are close friends of the plaintiff and with their assistance plaintiff had created the suit agreement. Defendant 8 therefore contended that the suit be dismissed as it was a false suit.
8. By way of an amendment of the written statement, defendant contended that one of the attestors to the suit document namely, Gopalrao is dealing in fertilizer as a commission agent. Defendant had availed fertilizer from Gopalrao on credit and later he availed loan facility from plaintiff and repaid the dues to Gopalrao. That there was some dispute regarding payment of interest but the attestors colluded with the plaintiff to file the present suit. Apart from that property, she does not have any other property. That suit property is irrigated land and two crops of paddy are grown in a year. The market value was not less than Rs.2,00,000/-. That the total value of the suit land is Rs.4,00,000/-. Therefore, it is meaningless to contend that such worthy land has been sold for a paltry sum of Rs.60,000/-. Therefore, defendant sought for dismissal of the suit.
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9. On the basis of the above pleadings, the trial Court framed the following issues for its consideration:
1. Whether the plaintiff proves that on 30.07.1998, the defendant had executed an agreement of sale agreeing to sell the suit land in his favour for a consideration of Rs.60,000/-?
2. Whether the plaintiff proves that in part performance of the contract on 30.07.1998, he had paid Rs.50,000/- to the defendant towards consideration amount of the suit land?
3. Whether the plaintiff proves that he was and is ready and willing to perform his part of the contract?
4. Whether the plaintiff is entitled to the relief of specific performance of contract dated 30.07.1998?
5. What decree or order?
10. In support of his case, plaintiff examined himself as PW-1. Two other witnesses were examined as 10 PW-2 and PW-3. Plaintiff produced five documents, which were marked as Exs.P-1 to P-5. Defendant examined herself as DW-1. She produced one document which was marked as Ex.D-1.
11. On the basis of the said evidence, the trial Court answered all the issues in the affirmative and decreed the suit with costs directing the defendant to execute the registered sale deed in favour of the plaintiff in respect to the suit property within three months from the date of the order, failing which, the plaintiff was entitled to get the sale deed registered in accordance with law. Plaintiff was directed to tender or deposit a sum of Rs.10,000/- being the remaining sale consideration within one month from the date of the order.
12. Being aggrieved by the judgment and decree of the trial Court dated 05.04.2007, defendant preferred R.A.No.18/2007 before the Court of the Additional District Judge at Raichur (first appellate Court). On hearing 11 learned counsel for the parties, the first appellate Court raised the following points for its consideration:
1. Whether the plaintiff proves the agreement of sale executed by defendant in his favour for sale of the suit land as pleaded?
2. Whether in the event of ordering the specific performance of agreement of sale, the defendant will suffer more hardship than the hardship that is likely to be caused to the plaintiff in case of refusal of specific performance of suit agreement?
3. Whether the finding recorded by the trial Court require any interference by this Court?
4. What order?
The first appellate Court answered all the points in the affirmative and allowed the appeal in part by modifying the judgment and decree of the trial Court and by declining to grant the relief of specific performance of the agreement and by granting the alternative relief by directing the defendant to repay Rs.50,000/- with interest 12 at 12% per annum from the date of the agreement till deposit to the plaintiff. Being aggrieved by the modification of the judgment and decree of the trial Court by the first appellate Court, the plaintiff has preferred this appeal.
13. As already noted, this appeal was admitted on 07.09.2010 by raising the following substantial question of law:
"Whether the Courts below were justified in exercising the discretion contrary to Section 20 of the Specific Relief Act, 1963?"
By judgment dated 02.12.2011 this Court set aside the judgments of the Courts below, remanded the matter to the trial Court for the limited purpose of recording a finding whether the plaintiff was entitled to the relief of specific performance under Section 20 of the Specific Relief Act (hereinafter referred to as the 'Act' for short). 13
14. As already noted, being aggrieved by the judgment of this Court, the defendant- respondent herein preferred Special Leave Petition before the Hon'ble Supreme Court which was converted to Civil Appeal and disposed of on 04.07.2014 directing this Court to decide the matter afresh after hearing both sides and after setting aside the judgment of this Court which had remanded the matter to the trial Court.
15. I have heard learned counsel for the appellant- plaintiff and learned counsel for the respondent - defendant and perused the material on record as well as the original record.
16. Learned counsel for the appellant drew my attention to the judgment and decree passed by the trial Court and contended that the trial Court had raised as many as four issues and had answered all the issues in favour of the plaintiff - appellant herein by holding that the defendant had executed an agreement of sale in favour of the plaintiff - appellant dated 30.07.1998. That a sum of 14 Rs.50,000/- was paid as part consideration and that the total consideration was Rs.60,000/- and that plaintiff had proved that he was ready and willing to perform his part of contract and that he was entitled to the relief of specific performance. Therefore, the trial Court had rightly granted the relief of specific performance. Appellant's counsel contended that the first appellate Court was not right in modifying the judgment and decree of the trial Court and granting the alternative relief by declining to grant the relief of specific performance by not exercising discretion in favour of the appellant.
17. He drew my attention to the judgment of the first appellate Court and contended that the first appellate Court was swayed by two aspects while modifying the judgment of the trial Court. The first aspect was with regard to the inadequacy of the consideration. Learned counsel for the appellant contended that the same cannot be a factor to be considered while exercising discretion even as per Section 20 of the Act. Secondly, the first 15 appellate Court has stated that greater hardship would be caused to the defendant if discretion is exercised in favour of the plaintiff. On the aforesaid aspects the first appellate Court modified the decree of the trial Court. Learned counsel for the appellant contended that the reasoning given by the first appellate Court on the aforesaid aspect is totally erroneous. That adequacy or inadequacy of consideration cannot have a role to play while exercising discretion. Secondly, the hardship factor has not been considered in its proper perspective. Drawing my attention to Section 20 of the Act, appellant's counsel contended that the hardship must be something which the defendant had not foreseen at the time of entering into agreement and that the non-performance of the agreement would involve no hardship to the plaintiff.
18. He also drew my attention to Explanations (1) and (2) of Section 20 of the Act and contended that the total sale consideration was Rs.60,000/- for the purchase of the suit land, that a sum of Rs.50,000/- had already 16 been paid on the date of the agreement itself. The balance consideration amount of Rs.10,000/- had to be paid on or before 29.07.1999. Plaintiff was ready and willing to pay that amount. In fact, legal notice had been issued to the defendant on 23.07.1999. A second notice was also issued on 01.03.2000. Defendant did not reply to the said notices. Therefore, suit was filed on 01.01.2001.
19. He contended that the first appellate Court on a misreading of Section 20 of the Act has failed to exercise discretion in favour of the appellant and that injustice has been caused to the appellant on account of the judgment of the first appellate Court. He contended that the substantial question of law raised in this appeal be answered in favour of the appellant.
20. Learned counsel for the respondent has strenuously contended that having regard to the facts in the present case, the first appellate Court rightly did not exercise discretion in favour of the appellant. Drawing my attention to the relevant dates, he contended that the date 17 of agreement is 30.07.1998. Within one year from that date, the balance consideration of Rs.10,000/- had to be paid by the appellant. Although the appellant has produced Exs.P-2 and P-3 being the legal notices said to have been sent by the appellant to the respondent, the said notices were not received by the respondent. Thereafter, the suit has been filed on 01.01.2001. There is considerable delay in filing the suit, although the suit may have been filed within the period of limitation. He contended that the delay in filing the suit has caused prejudice to the respondent-defendant and that the unexplained delay ought to have been a factor which ought to be taken note of for not exercising discretion in favour of the appellant. He further submitted that the suit land is the only property that the defendant possesses and that if this property is to be sold to the appellant on the basis of a decree of specific performance be granted by this Court as has been granted by the trial Court, then greater hardship would be caused to the respondent than to the appellant. He contended that under Section 20 of the Act, discretion 18 may not be exercised in favour of the appellant. In support of his contentions, learned counsel for the respondent has relied upon certain decisions of the Hon'ble Supreme Court with regard to the delay in filing the suit and with regard to hardship and conduct of the appellant which shall be referred to during the course of this judgment.
21. Before considering the contentions of learned counsel for the respective parties, at this stage itself it may be noted that there is no controversy with regard to the fact that I.A.No.6 which was filed by the plaintiff before the trial Court was dismissed by the said Court as not pressed as is noted from order dated 23.03.2007. Therefore, no purpose would have been served, by this Court remanding the matter to the trial Court to consider the said application. It is in the above context that the Hon'ble Supreme Court set aside the judgment of this Court and has remanded the matter for a fresh hearing. 19
22. Having heard learned counsel for the parties and on perusal of the material on record as well as the original record, at the outset it is to be noted that this appeal has been filed by the plaintiff and not by the defendant in the suit. The Courts below have categorically held in favour of the appellant to the effect that there was a valid agreement entered into between the defendant and the plaintiff dated 30.07.1998, for the purpose of alienating 1 acre 38 guntas of land in Sy.No.43/C. The sale consideration was Rs.60,000/-. Advance sale consideration of Rs.50,000/-was paid on the date of the agreement, balance sale consideration of Rs.10,000/- was to be paid within a year's time i.e. on or before 29.07.1999. The transaction not having been concluded, the suit was filed on 01.01.2001 by the plaintiff, which cannot be construed to be hit by delay and latches although the same is filed within the period of limitation as the suit was filed after plaintiff's two notices dated 23.07.1999 and 01.03.2000 did not evince any response/reply from the defendant. Further, no prejudice 20 has been caused to the defendant on account of the suit being filed by the plaintiff on 01.01.2001.
23. Thus, a limited controversy which arises in this appeal is only with regard to the exercise of discretion in favour of the appellant - plaintiff, whether the relief of specific performance must be granted to the appellant or not. Trial Court granted the said relief but the First Appellate Court declined to grant the said relief. Before considering the said aspect in light of the contentions of learned counsel for the respective parties, it would be useful to extract Section 20 of the Act, which reads as under:
"20. Discretion as to decreeing specific performance : (1) The jurisdiction to decree specific performance is 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.21
(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 22 the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2 - The question whether the performance of a 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."
24. Section 20 of the Act states that the jurisdiction to grant the relief of specific performance is a matter of discretion of the Court. The Court is not bound to grant the relief merely because it is lawful to do so. But at the same time, discretion must not be arbitrary, but 23 should be exercised on sound and reasonable, guided by judicial principles and not arbitrarily. It must be capable of correction by a Court of appeal. In sub-section (2) of Section 20 of the Act, certain statutory bars have been given where the Court may properly exercise discretion not to decree specific performance. The said instances are where the terms of contract or conduct of the parties at the time of entering into the contract or other circumstances under which the contract was entered into are such that the contract, though not voidable, would give an unfair advantage to the plaintiff over the defendant. Secondly, where the performance of the contract would involve some hardship on the defendant which the defendant did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. Thirdly, where the defendant has entered into the contract under circumstances which though not rendering contract voidable, makes it inequitable to enforce specific performance.
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25. As already noted, these are only illustrations and not exhaustive of cases or instances for not exercising discretion. The crucial expression in sub-section (2) of Section 20 are unfair advantage, hardship, inequitable conduct of the parties and terms of contract. Explanation-1 to sub-section (2) of Section 20 states that 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. Thus, Explanation-1 clarifies the expression 'unfair advantage' in Section 20 (2) (a) of the Act. Explanation-2 states that the question whether the performance of a 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. Therefore, the expression hardship is clarified with the expression an unforeseen hardship in Section 20 (2) (b) of the Act and hardship unforeseen at the time of 25 making of the contract. Sub-section (3) of Section 20 of the Act states that 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. Sub-section (4) of the Act states that 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. Thus, while sub- section (2) of Section 20 of the Act deals with the circumstances when the discretion may not be exercised in favour of plaintiff, sub-section (3) and sub-section (4) of Section 20 of the Act categorically state that discretion could be exercised in favour of the plaintiff in granting the relief of specific performance.
26. In the instant case, the respondent has relied upon Section 20 (2) (a) and (b) of the Act to contend that the plaintiff would have an unfair advantage over the defendant if the contract is specifically enforced or decree 26 of specific performance is granted and that this would cause hardship to the defendant. The facts in the instant case as well as the evidence on record do not however indicate the said circumstances. While the trial Court granted the relief of specific performance, the said judgment was challenged by the defendant before the first appellate Court, which granted only the alternative relief on the basis that there was an unfair advantage to the plaintiff by decreeing the suit. The said unfair advantage is stated to be in the context of the inadequacy of the consideration vis-à-vis the sale of the suit property. The first appellate Court has failed to note explanation (1) to Section 20 whereunder it has been categorically stated that inadequacy of consideration cannot come within the meaning of unfair advantage or hardship as stated in Section 20 (2) (a) and (b) of the Act. Therefore, if the terms of the contract stated that the suit land was to be sold for Rs.60,000/-, the fact that the said land was worth less than Rs.60,000/- or more than Rs.60,000/- would be of no consequence as parties had agreed to sell and 27 purchase the land for Rs.60,000/-. The first appellate Court was therefore not right in placing reliance on the evidence of the parties with regard to the value of the suit land at the time of the contract or thereafter for the purpose of not exercising discretion under Section 20 of the Act.
27. Then, the second aspect is with regard to unforeseen hardship, Section 20 (2) (b) of the Act categorically states that the hardship on the defendant must be something which he or she did not foresee at the time of entering into contract and that non-performance of the contract would involve no hardship to the plaintiff. Explanation (2) as already noted clarifies that hardship must be determined with regard to the circumstances existing at the time of the contract. From the evidence on record, it becomes clear that defendant had the suit property which was her only property even at the time of entering into agreement to sell. The negotiations were held to sell the said property due to legal necessity. 28 Therefore, with open eyes and a clear understanding, defendant agreed to sell the said property to the plaintiff, being fully aware and conscious of the fact that she had no other property apart from the suit schedule property, which she had agreed to sell. Therefore, the sale of the suit schedule property could not have caused any hardship to the defendant subsequent to entering into the said agreement, as alienation of the only property belonging to the defendant cannot by itself be construed to be hardship. There must be other added factors which would cause hardship if the said property has to be sold by the defendant to the plaintiff, which was not foreseen at the time of entering into the contract. The defendant has not been able to establish any unforeseen hardship or any circumstances subsequent to the entering of the agreement or from any act of the plaintiff which has caused hardship to the defendant which would make it difficult for her to sell the suit land to the plaintiff. There being no such circumstance made out by the defendant, the first appellate Court was not right in holding that the 29 only property of the defendant was being sold for an inadequate consideration and therefore there was hardship caused to the defendant.
28. Learned counsel for the respondent -
defendant has next submitted that the conduct of the plaintiff would have to be considered in the instant case and that if the said conduct is taken into consideration, discretion cannot be exercised in favour of the appellant- plaintiff. In this regard, learned counsel for the respondent submitted that the date of agreement was 30.07.1998, the sale consideration was Rs.60,000/-, whereas, Rs.50,000/- was received by the defendant on the date of the agreement. Balance consideration of Rs.10,000/- had to be paid on or before 29.07.1999. Plaintiff did not pay the said amount and instead filed the suit on 01.01.2001 thereby there was delay of one and half year in filing the suit and this delay is a factor which must be noted and considered for declining the relief of specific performance. In this regard, reliance has been 30 placed on Ram Niwas Gupta vs. Mumtaz Hasan and others reported in (2002) 2 JT 384. In that decision, the Hon'ble Supreme Court has quoted earlier decisions in the case of K.S. Vidyanandam and others vs. Vairavan reported in AIR 1997 SC 1751 and in the case of Motilal Jain vs. Smt. Ramdasi and others reported in AIR 2000 SC 2408 and has observed as under:
"The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:
(i) delay running beyond the period prescribed under the Limitation Act.
(ii) delay in cases where though the suit is within the period of limitation, yet;
(a) due to delay, the third parties have acquired rights in the subject-matter of the suit:
(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable 31 to grant a discretionary relief. Here none of the above-mentioned aspects applies.
That apart factually also, the High Court proceeded on an incorrect assumption with regard to cause of action, exhibit 2 was executed on 20-2-1977 and under it the sale deed was to be executed on or before 19-7-1977. The last notice was issued on 26-11-1978 and from that date, the suit was filed only after nine months and not after more than a year, as noted by the High Court. Therefore, on the facts of this case, the ground of delay cannot be invoked to deny relief to the plaintiff."
29. The Hon'ble Supreme Court has noted that the delay must be such that granting a discretionary relief would be inequitable. In the instant case, it is noted that the plaintiff who was to tender the balance consideration of Rs.10,000/- only out of Rs.60,000/-, got issued legal notice to the defendant on 23.07.1999. Ex.P-2 is the legal notice The said notice was received by the defendant as per postal endorsement dated 31.07.1999 (Ex.P-5). There 32 was no reply to the said notice. Ex.P-4 is the postal receipt for having served Ex.P-2 notice, which is dated 27.07.1999. The second notice was issued on behalf of the plaintiff on01.03.2000 (Ex.P-3). A reading of Ex.P-2 notice dated 23.07.1999 would make it clear that the appellant - plaintiff was ready and willing to pay the balance sale consideration of Rs.10,000/- and further a cheque bearing No.172226 drawn on State Bank of Hyderabad, Karatagi Branch, dated 23.07.1999, was also sent along with the legal notice. Therefore, the conduct of the plaintiff - appellant would go to prove that even before 29.07.1999 he had got the legal notice issued to the defendant and also tendered the balance sale consideration. But despite receipt of the said legal notice as is noted from Ex.P-5, there was no reply given by the defendant. The plaintiff thereafter got issued Ex.P-3 final demand notice reiterating that a cheque for Rs.10,000/- was sent as per Ex.P-2 notice but the same has remained un-encashed and that the plaintiff was ready and willing to even clear any bank/society dues of the defendant 33 involving the suit land and that the land be registered in his name by execution of a sale deed. There was no response to the said legal notice also. After waiting for about nine months, plaintiff filed a suit on 01.01.2001. On consideration of the aforesaid acts of the plaintiff, it would only prove that the plaintiff was diligent in getting the sale deed executed in his favour. He took all steps in that regard and on account of there being inaction on the part of the defendant, he filed the suit on 01.01.2001. The said suit was filed within the period of limitation and it cannot be held that there has been any delay in filing the suit so as to raise the plea of waiver or that the filing of the suit on 01.01.2001 had in the interregnum i.e., from the period from 30.07.1998 to 01.01.2001 given rise to circumstances which would result in causing inequity to the defendant if the defendant is to be directed to execute the sale deed in favour of the plaintiff - appellant. No pleading or evidence has been put forth by the defendant to contend that between the date of execution of the registered sale agreement and the date of filing of the suit, 34 there had been any third party rights created or any other circumstance or situation which had arisen which would require the Court to decline the grant of relief of specific performance of the agreement to the plaintiff - appellant. It is significant to note that out of Rs.60,000/- being total sale consideration, a sum of Rs.50,000/- had been paid by the appellant - plaintiff even on the date of the registered agreement of sale and thus a major portion of the sale consideration had already been paid by the appellant and the balance consideration of Rs.10,000/- was also tendered by the appellant even prior to the due date under the terms of the agreement. In the circumstances, the contention regarding conduct of the plaintiff coming in the way of exercise of discretion is without substance.
30. In Janardhanam Prasad vs. Ramdas reported in (2007) 3 JT 187, the controversy was with regard to the suit being filed within the period of limitation prescribed under Article 54 of the Limitation Act, 1963. The Hon'ble Supreme Court has held on the facts of that case that, 35 even though the suit was not barred by limitation, but the Court should have refused exercise of discretionary jurisdiction under Section 20 of Specific Relief Act, 1963. Having regard to the aforesaid discussion, I do not think that the respondent can seek much assistance from that decision.
31. In Saradamani Kandappan vs. Mrs. S. Rajalakshmi and others reported in AIR 2011 SC 3234 the Hon'ble Supreme Court has elaborated that time is not the essence of contract in the case of immovable property in paragraph Nos.23 and 24. The contention of learned counsel for the respondent is that the filing of the suit on 01.01.2001 runs counter to the term in the agreement under which the plaintiff was required to pay the balance consideration on or before 29.07.1999. From the above discussion it is evident that the plaintiff was ready to pay the balance consideration and in fact a cheque was sent along with legal notice dated 23.07.1999 (Ex.P-2), which was prior to 29.7.1999. Therefore, the question of time 36 being the essence of the contract in the instant case is irrelevant.
32. In Nanjappan vs. Ramasamy and others reported in (2015) 2 SCALE 651 the Hon'ble Supreme Court has, at paragraph-12, adverted to Section 20 of the Act in the matter of exercise of discretion while decreeing a suit for specific performance and at paragraph-15, on considering the facts of that case, held that the suit property was the only property of the defendant on which a house had been constructed where the defendant was residing and that greater hardship would be caused if specific performance of the contract was granted as the residential house in which the defendant was residing would be sold and this would make it inequitable to exercise discretion in favour of the plaintiff. But in the instant case the facts are not identical or even similar. What was intended to be sold was agricultural land and as already discussed, between the time of entering into the contract and the date of suit, no adverse circumstance 37 occurred, which would have caused hardship to the defendant if the direction to sell the land had been issued by exercising discretion in favour of the appellant - plaintiff.
33. In the circumstances, I am of the view that the substantial question of law raised in the appeal would have to be answered in favour of the appellant and it is held that the discretion exercised by the trial Court in granting the relief of specific performance to the appellant was just and proper and that the first appellate Court was not right in modifying the judgment and decree of the trial Court. Therefore, the judgment and decree of the first appellate Court is set aside. The judgment and decree of the trial Court is confirmed. The appeal is allowed.
Parties to bear their respective costs.
Sd/-
JUDGE swk