Karnataka High Court
Sri R Nagesh vs Sri Iqbal on 15 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A. NO.2583/2007(SP)
BETWEEN
SRI R NAGESH
S/O SRI RAMAIAH
AGED ABOUT 51 YEARS
RESIDING AT NO.158/17, V CROSS
III MAIN ROAD, WILSON GARDEN,
BANGALORE - 560 027.
...APPELLANT
(BY SRI G.S.KANNUR, SR. ADVOCATE ALONG WITH
SRI DORESWAMY GOWDA.E, ADVOCATE)
AND
SRI IQBAL
S/O. SRI SYED HAFEEZ
AGED ABOUT 43 YEARS
RESIDING AT NO.222/13,
XI CROSS, III MAIN, WILSON GARDEN,
BANGALORE - 560 027.
...RESPONDENT
(BY SRI M.N.SESHADRI, SR. COUNSEL ALONG WITH
SRI S.ISMAIL ZABIULLA, ADVOCATE)
2
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER XLI R1 OF CIVIL PROCEDURE
CODE AGAINST THE JUDGMENT AND DECREE DATED
6.10.2007 PASSED IN O.S.NO.5341/96 ON THE FILE OF
THE XI ADDL. CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
The present appeal is by the defendant in O.S.No.5341/1996, challenging the validity of the judgment and decree passed in the said suit dated 06.10.2007, on the file of XI Additional City Civil Judge, Bengaluru (CCH-8), whereby suit of the plaintiff came to be decreed and the defendant is directed to execute the sale deed and register it in favour of the plaintiff before the jurisdictional Sub-Registrar, by receiving the balance sale consideration within three months from the date of decree. 3
2. Parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking before the Trial Court.
3. Suit for specific performance of the agreement to sell dated 31.03.1992 with a direction to the defendant to execute the sale deed and register it before the jurisdictional Sub-Registrar after receiving balance sale consideration of Rs.3,00,000/-, was filed by the plaintiff in respect of the property bearing Nos.222/13 and 223/12, situated at 3rd main road, Wilson Garden, Bengaluru- 560027, which are adjoining houses, measuring 30x50 feet, more fully described as hereunder and hereinafter referred to as suit property.
"All the two house Premises comprising of construction there on [RCC constructions] abutting each other, situate at III Main Road, Wilson garden bearing Nos.222/13 and 223/12 (Municipal Numbers) Bangalore - 560027, the first house and plot No.222/13, measuring 30x50 feet (i.e., 50 feet North to south and 30 feet East to west) and the Second house and plot 4 No.223/12, measuring 50×10 feet (i.e., 50 feet north to South and 10 feet East to west), the larger plot bearing Municipal No. 222/13 and the smaller one being part of 223/12, Jointly measuring 50x40 feet (i.e, 50 feet North to South, 40 feet East to west) bounded on the East by - Property viz, remaining part of Property No. 223/12 & XII cross Road. West by - Property No.222/13 (1) & XI cross Road.
North by - III Main Road, Wilson garden, and South by- Private Property"
4. It is the case of the plaintiff that the defendant entered into an agreement to sell the suit property for a total sale consideration of Rs.6,95,000/- and an agreement came to be executed on 31.03.1992 in this regard.
5. It was agreed that the plaintiff had to pay a sum of Rs.5,50,000/- as the balance sale consideration and received a sum of Rs.1,45,000/- as earnest money at the time of agreement. Three years time was stipulated for conclusion of the sale under the agreement by mutual 5 consent. Further, defendant acknowledged the receipt of earnest money in the agreement itself and the plaintiff was put into actual possession and enjoyment of the suit property on the date of agreement.
6. It is further contended that defendant approached the plaintiff in the month of June 1994 and sought for further advance of Rs.50,000/-. Plaintiff agreed to pay the said sum and issued a cheque, drawn on Bank of Baroda, Siddaiah road, Bengaluru and an endorsement was made on the sale agreement, showing the balance sale consideration as Rs.5,00,000/-.
7. Two weeks later, again defendant approached the plaintiff for a further advance of Rs.1,00,000/- and plaintiff paid the same through a cheque drawn on Bank of Baroda on 20.06.1994 and yet another endorsement was made on the sale agreement, whereby balance sale consideration payable by the plaintiff to the defendant was reduced from Rs.5,00,000/- to Rs.4,00,000/-. An endorsement was made stating that the time to conclude the said transaction 6 was extended by another 18 months when the additional advance was received by the defendant. It is further contended that plaintiff was always ready and willing to complete the sale transaction, but defendant again approached the plaintiff with a further extension of time and sought yet another sum of Rs.1,00,000/- as advance. Plaintiff accordingly, paid yet another sum of Rs.1,00,000/- towards the sale consideration and an endorsement came to be executed on the sale agreement on 02.02.1995, whereby the time was extended by another 18 months and balance of sale consideration was reduced from Rs.4,00,000/- to Rs.3,00,000/- in the endorsement.
8. Plaintiff also contended that despite the plaintiff requesting the defendant to conclude the sale transaction, the defendant went on postponing the execution of the sale deed. The defendant started avoiding the calls by the plaintiff and did not produce the title for scrutiny. Defendant failed to take any proper steps in concluding the sale transaction including obtaining the clearance from the 7 Income Tax Department. As such, plaintiff entertained a doubt that the defendant may avoid the sale transaction and therefore, filed the suit.
9. On service of suit summons, defendant appeared before the Court, engaged a counsel and filed the written statement admitting the sale agreement on receipt of Rs.1,45,000/-. But averments made in the paragraph Nos.4 and 5 were denied and so also the endorsements on suit agreement is denied. The allegation that the plaintiff paid the municipal taxes and spent considerable amount of money for maintaining and improving the suit property is also denied and sought for dismissal of the suit.
10. It was also contended by the defendant that taking advantage of note of the dire need of the money by the defendant, plaintiff imposed the terms and conditions and settled the sale consideration at a very meagre price of Rs.6,95,000/- and therefore, the defendant is not liable to execute the sale deed.
8
11. Based on the rival contentions of the parties, the learned trial Judge raised the following issues and one additional issue on 13.03.2007, as under:
"1. Does the plaintiff prove payment of Rs.2,50,000/- from time to time to the defendant under endorsements as averred in paras 4 to 6 of the plaint?
2. Whether the plaintiff has been always ready and willing to perform his part of obligation?
3. Whether the suit is barred by limitation?
4. Is plaintiff entitled to specific performance of contract and permanent injunction as prayed?
5. What relief?
Additional issue "¢. 31-3-1992 gÀ PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß ¢. 8-7-1996 gÀ £ÉÆÃnù£À ªÀÄÆ®PÀ £ÁåAiÀÄ ¸ÀªÀÄävÀªÁV gÀzÀÄÝUÉƽ¸À¯ÁVzÉ JA§ÄzÀ£ÀÄß ¥ÀæwªÁ¢ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?"
12. In order to prove the case of the plaintiff, plaintiff got examined himself as PW.1 and also examined two witnesses namely; Rayaz and Prakash as P.Ws.2 and 3. 9 Plaintiff relied on ten documentary evidences which were exhibited and marked as Exs.P.1 to P.10.
13. On behalf of the defendant, defendant got examined himself as D.W.1 and relied on copy of the notice which is marked at Ex.D.1.
14. On concluding the recording of evidence, the learned trial Judge heard the parties in detail and after considering the rival contention of the parties and the material placed on record in a cumulative manner, decreed the suit of the plaintiff as referred to supra.
15. Being aggrieved by the same, defendant has preferred the present appeal on the following grounds;
The learned trial Judge failed to appreciate that, the plaintiff did not buy the stamp paper to execute the sale deed. The fact that, the plaintiff did not buy the stamp papers to register the sale deed, demonstrate that the plaintiff was not ready and willing to perform his part of the contract.
10 The learned trial Judge ought to have seen that, even the bank pass sheets produced by the plaintiff (Ex - P8), the plaintiff had no money in his bank account. The learned trial Judge ought to have seen that, the plaintiff never issued any notice to the defendant demanding execution of the sale deed. The fact that, the plaintiff never demands the execution of the sale deed clearly establishes that the plaintiff was never ready and willing to perform his part of the contract. The learned trial Judge ought to have seen that, the plaintiff in his evidence did not depose in regard to the payment of the remaining sale consideration and further the plaintiff has not deposed anything to establish that he was ready and willingness to perform his part of the contract.
The learned trial Judge ought to have seen that, the plaintiff has not produced any document to demonstrate that he was ever ready and willing to perform his part of the contract.
The learned trial Judge ought to have seen that, the case of the plaintiff is that, he entered into an agreement of sale dated 31.03.1992, on the basis of the father's assurance of financial support to purchase the suit schedule property. But no document is produced by 11 the plaintiff to show the financial capacity of his father and further the plaintiff has not examined anybody to corroborate that, his father was willing to support the plaintiff financially to purchase the suit schedule property. The learned trial Judge ought to have seen that, no witness of the plaintiff has deposed in regard to the financial capacity of neither the plaintiff nor the plaintiff's father.
The learned trial Judge ought to have seen that, the plaintiff after the agreement of sale dated 31.03.1992, has failed to perform his part of the contract. The learned trial Judge failed to appreciate that, despite repeated requests and demands of the defendant, the plaintiff was never ready and willing to perform his part of the contract.
The learned trial Judge ought to have seen that, the defendant got issued the legal notice dated 08.07.1996 terminating the agreement dated 31.03.1992. After receipt the said notice, the plaintiff has filed the present suit with an ulterior motive of depriving the plaintiff of his legitimate legal right in refard to the suit schedule property.
12 The appellant state that, in H. P. Pyarejan V/S Dasappa (2006 (2) SCC 496) the Hon'ble Supreme Court has held as under:
"Section 16(c) of the Act mandates that, the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract."
But in the present case the plaintiff failed to establish by evidence that he has always been ready and willing to perform his part of the contract.
The appellant state that, in P. D'Souza V/S Shondrilo Naidu (2004 (6) SCC 649) the Hon'ble Supreme Court has held as under:
"The ready and willingness on the part of the plaintiff to perform his part of the 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."
But in the present case the plaintiff even failed to issue a notice and the bank pass sheets produced by the plaintiff (i. e., Ex-P8), the plaintiff had no sufficient financial capacity to perform his part of the contract. 13 The appellant state that, in Pukhraj D. Jain V/S G. Gopalkrishna (2004 (7) SCC 251) the Hon'ble Supreme Court has held as under:
"The requirement of this provision is that plaintiff must aver that he has always been ready and willing to perform the additional terms of the contract. Therefore not only there should be such an averment in the plaint but the surrounding circumstances must also indicate that the readiness and willingness continue from the date of the contract till the hearing of the suit. It is well settled that equitable remedy of specific performance cannot be had on the basis of pleadings which do not contain averments of readiness and willingness of the plaintiff to perform his contract in terms of Forms 47 and 48 of CPC."
The appellant state that, in Sardar Govindrao Mahadik V/S Devi Sahai (1982 (1) SCC 237) the Hon'ble Supreme Court has held as under:
"Section 53 -A requires that, the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract, otherwise he will not qualify for the protection of the doctor of part performance."
The appellant state that, in Shrimant Shamrao Suryavanshi V/s Prahalad Bhairoba Suryavanshi (2002 14 (3) SCC 676) the Hon'ble Supreme Court has held as under:
"There are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:-
(1) there must be a contract to transfer for consideration any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must In part performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract."
The appellant state that, in Mohan Lal V/s Mirza Abdul Gaffer (1982 (1) SCC 237) the Hon'ble Supreme Court has held as under:
"When the transferee seeks to avail of Section 53 -A to retain possession of the property which he had under the contract, it would be incumbent upon the transferee to plead and 15 prove his readiness and willingness to perform his part of the contract. Under Section 16 (c) of the specific relief act also the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till the date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same."
The appellant state that, in A. C. Arulappan V/s Ahalya Naik (2001 (6) SCC 600) the Hon'ble Supreme Court has held as under:
"The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the 16 defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is Inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff."
The appellant state that, in Rajaram Gopalakrishnan V/s Kumudam (1999 (1) CTC 661) the Hon'ble High court of Chennai has held as under:
"Suit property situate in posh locality in Madras City - Agreement entered in 1979 - Both purchaser and vendor agreeing that proce of land has increased considerably - Vendor guilty of latches - Purchaser parting with Rs 25,000 as advance 19 years ago - compelling vendor to sell property at original sale consideration Rs 2,25,000/- held unjustifiable and purchaser directed to pay Rs 8,00,000/- as balance sale consideration"
The appellant state that, in Niwas Builders V/s Chanchalaben Gandhi (2003 (3) Mah LJ 312) the Hon'ble High court of Mumbai has held as under:
"Decree of Specific performance of agreement of sale of immovable property - court would be perfectly justified in taking judicial note of phenomenal increase in prices of immovable properties"17
The appellant state that, in V. Ramanujam V/s Rajamani (2004 (19) AIC 449) the Hon'ble High court of Chennai has held as under:
"Delay in approaching the court agreement of sale dated 30.06.1980- Suit filed on 28.10.1983
- amount deposited by plaintiff on 12.03.1986 - Defendant reiterating their claim for payment of full amount - Suit cannot be dismisses as barred by limitation. Defendants to be compensated for the delay."
The appellant state that, in A. Ulaganatha Reddy V/S D. Nandagopal Chetti (2005 (4) CTC 426) the Hon'ble High court of Chennai has held as under:
"Relief for Specific performance is discretionary relief -Such relief must be granted by exercising discretion in accordance with sound and reasonable judicial principals - Court must first satisfy itself that plaintiff has made out case - Conduct of plaintiff during, at and from date of a contract till date of suit is very relevant in considering grant of such relief - Plaintiff must show that he is ready and has always been ready and willing to perform his essential terms of the contract till date of decree and must with clean hands Plaintiff would ne disentitled to such relied is his conduct is tainted with falsity - Instance where discretion would not be 18 exercised in favour of plaintiff cannot be laid down Discretion will not be exercised when it inequitable to grant such relief on account of conduct of plaintiff - Court is not bound to grant lawful performance merely because it is lawful to do so - Plaintiff has to clearly plead and prove his readiness and willingness - Plaintiff pais substantial portion of consideration in two installments but did not pay balance consideration for long time and defendant issued notice alleging that, plaintiff had failed to pursue agreement and had lost right- Plaintiff did not adduce any evidence to show that he was ready and willing to pay balance consideration in between last payment and issuance of notice by defendant - Plaintiff failed to clearly plead readiness and willingness - Plaintiff not entitled to relief of Specific performance."
Even otherwise, the Judgment and decree dated 06.10.2007 passed in O. S. No. 5341/1996 on the file of the court of the XI Addl. City Civil Judge at Bangalore is bad in law and therefore, liable to be set aside. No other appeal, revision, legal proceedings, litigations past or present on the same cause of action is pending or has been filed before any other court. 19
16. Reiterating the grounds urged in the appeal memorandum, Sri G.S.Kannur, learned Senior Counsel representing the defendant/appellant contended that the contract of sale is an Unconscionable contract, having regard to the value of the property stipulated at Rs.6,95,000/- and as on the date of the agreement, value of the suit property was much higher than Rs.6,95,000/- and therefore, the same cannot be enforced.
17. He further contended that in the guise of paying the additional advance, the plaintiff went on postponing execution of the sale agreement and since the defendant was under the clutches of the plaintiff, had no say in the matter and all the endorsement and contents thereof in extending the time for execution of the sale was imposed by the plaintiff on defendant and gullible defendant had to adhere to the unilateral terms imposed by the plaintiff in the form of endorsement and therefore, the trial Judge ought not to have decreed the suit of the plaintiff, but should have ordered for refund of money as the plaintiff 20 had not proved that he was always ready and willing to perform his portion of contract as is stipulated in the agreement and sought for allowing the appeal.
18. Alternatively it is contended on behalf of appellant that this Court in the event of exercising its discretionary power in favour of the plaintiff in confirming the decree of the trial Court, the sale consideration may be reworked and it may be enhanced reasonably taking note of the market value of the suit property and pass appropriate orders.
19. Per contra, Sri M.N. Seshadri, learned Senior Counsel representing the plaintiff/respondent supported the impugned judgement by contending that the value of Rs.1,45,000/- as on the date of agreement was a valuable consideration, cannot be set off by this Court.
20. He also argued that the defendant was in dire need of money and therefore, without adhering the terms of the contract, went on postponing execution of the sale on one 21 pretext or the other and wanted additional advance money which has been paid by the plaintiff in all earnestness and endorsements are made on the agreement voluntarily by the defendant and therefore, the contention urged on behalf of the defendant that the plaintiff was not ready and willing to perform his portion of the contract cannot be countenanced in law.
21. He further pointed out that the material evidence on record would indicate that the defendant failed to furnish the income tax clearance for the purpose of execution of sale and also failed to furnish the title deed in respect of the suit properties so as to prepare the draft sale deed on behalf of the plaintiff and these factors have been properly appreciated by the learned trial Judge in the impugned judgement and therefore, sought for dismissal of the appeal.
22. Insofar as the alternative contentions urged on behalf of the appellant, Sri M.N. Seshadri, contended that no foundation is made out for enhancement of the sale 22 consideration by the appellant and merely saying that the properties worth rupees two crores today would be of no consequence in enhancing the sale consideration as the parties are bound by the terms of the contract and value of the property as on the date of agreement and not the present market value and therefore, sought for dismissal of the appeal in toto.
23. In support of the contentions, the learned counsel for the appellant has relied on the following judgments:
1. U.N. Krishnamurthy v. A.M. Krishnamurthy, AIR 2022 SC 3361
25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have 23 sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
2. Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512
40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person 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 the terms the performance of which has been prevented or 24 waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and 25 registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations.
3. Punny Akat Philip Raju v. Dinesh Reddy, ILR 2016 Kar 2252 PROOF OF READINESS
32. The proof of readiness necessarily means demonstration of financial ability or capacity to pay the balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds. The explanation makes it clear that the proof of requisite funds does not mean he should produce the currency before the Court or he should deposit the money in Court. But at the same time, mere statement on oath in the witness box that he is possessed of the requisite funds would also do not prove possession of funds. The said proof has to be necessarily by way of documentary evidence. 26 The reason being, if, the payment is to be made in cash i.e., by handing over currency, currency is a documentary evidence. The explanation makes it clear that to prove readiness, the plaintiff need not produce the currency before the Court. If the balance consideration is to be deposited in the Court such a deposit is also evidenced by documentary evidence, which is also not necessary by virtue of the explanation.
33. Money does not exist in vacuum.
Money has to be necessarily in the form of physical object. It is in the nature of document. Money is deposited in banks. Money is in the nature of securities. Money is capable of being raised from borrowing. Money could be raised by sale of properties movable or immovable. When a person claims that he is possessed of sufficient funds, he has to produce some documentary evidence, which proves his capacity to raise the funds or he possess the funds. What are the documents which, the plaintiff can produce to prove his capacity? It may be a passbook issued by a Bank where he has kept the balance sale consideration ready for payment. If he has 27 invested his money by way of securities, he has to produce those securities before Court to show that any time he can encash the same and pay the balance consideration. Similarly, if he has kept the money in Fixed Deposit, in a Bank, that deposit receipt is the proof of his ability to raise the balance sale consideration.
If he intends to borrow money from a Nationalized Bank or from his employer or from any other financial institution, it has to be demonstrated by producing a request for such financial assistance in writing, sanctioning of the said loan which has to be necessarily in writing. These instances are only illustrative. There may be several other modes by which the requisite funds are raised. But all of these instances are evidenced by documentary evidence.
34. Therefore, mere stepping into the witness box and saying on oath that he is ready with the balance sale consideration or that he is going to borrow money from any financial institution or that he has got sufficient funds in his Bank accounts or that he has kept money in Fixed Deposit, without that oral evidence being supported by documentary 28 evidence will not prove the plaintiff's readiness to pay the balance sale consideration. It is immaterial whether such oral evidence is challenged in cross-examination or not. The plaintiff has to prove to the satisfaction of the Court that he possessed the requisite funds. He has to produce such documentary evidence, which would enable the Court to come to the conclusion that plaintiff is ready with the requisite balance sale consideration to complete the sale transaction. If no evidence is adduced in this regard by way of documentary evidence, no prudent man would come to the conclusion that the person has proved the possession of funds. In the absence of any such documentary evidence being produced, it is a case of plaintiff's case being not proved. Plaintiff cannot expect the Court to pass a decree for specific performance of a contract of sale when the plaintiff has not proved his readiness to perform his part of the contract.
4. Katta Sujatha Reddy v.
Siddamsetty Infra Projects (P) Ltd., (2023) 1 SCC 355 29
58. In the case at hand, the Amendment Act contemplates that the said substituted provisions would come into force on such date as the Central Government may appoint, by notification in the Official Gazette, or different dates may be appointed for different provisions of the Act. It may be noted that 1-10-2018 was the appointed date on which the amended provisions would come into effect.
59. In view of the above discussion, we do not have any hesitation in holding that the 2018 Amendment to the Specific Relief Act is prospective and cannot apply to those transactions that took place prior to its coming into force.
5. P. Daivasigamani v. S. Sambandan, 2022 SCC OnLine SC 1391
21. Time, it is stated, is not the essence of the contract in the case of immovable properties, unless there are grounds to hold to the contrary. This doctrine is applied, without being unfair and inequitable to the defendant/seller, as the court should not ignore that a person sells the property when 30 he needs money, and, therefore, expects the money in the stipulated or reasonable time, which would meet the purpose of the sale. The purpose of sale can vary from the need for liquid cash to be invested to earn interest, medical, educational, child's marriage or purchasing another property. To save capital gains, the seller has to purchase another immovable property, unless the proceeds are exempt. There has been a steep rise in the prices of land in the last quarter of the 20th Century in India. With the rise in property value, the value of money has fallen. At times, delay in payment would defeat the defendant/seller's purpose8. Therefore, the offer of the plaintiff/purchaser in writing and the time and occasion when the offer to pay the balance amount to the defendant/seller is an important factor which would matter when the court examines the question of discretion, that is, whether or not to grant a decree of specific performance. While examining these aspects, the quantum of money paid by the plaintiff/seller to the defendant/purchaser may become a relevant fact that merits due consideration. There is a distinction between 31 limitation and delay and laches. Limitation is a ground for dismissing a suit even if the plaintiff is otherwise entitled to specific performance, while delay operates to determine the discretion and exercise under Section 20 of the Specific Relief Act, even if the suit is not dismissed on account of limitation. However, not one but several aspects have to be considered when the court, in terms of Section 20 of the Specific Relief Act, exercises discretion, guided by judicial principles, sound and reasonable.
23. Having regard to the facts and circumstances of the case and to the conduct of the parties, we have no hesitation in holding that there was due compliance of Section 16(c) read with its Explanation on the part of the respondent and that it was the appellant who had failed to perform as per the terms of the agreement, though called upon by the respondent to perform. The High Court also had rightly held that the plaintiff had complied with the requirements of Section 16(c) of the said Act by making a specific pleading with regard to his readiness and willingness and also proving the same by reliable evidence. 32 This Court does not find any illegality or infirmity in the impugned judgment passed by the High Court. We, therefore confirm the same, so far as granting of decree for specific performance of the agreement in question is concerned.
6. Madhukar Nivrutti Jagtap v.
Pramilabai Chandulal Parandekar, (2020) 15 SCC 731 What should be the relief?
16. The determination foregoing is not the end of the matter. Even when the agreements in question are held to be for sale and the plaintiffs are held being ready and willing to perform their part thereof; and the transactions in favour of the present appellants are hit by lis pendens, the point that still remains for determination is as to whether the plaintiffs are entitled to the relief of specific performance, or granting of alternative relief would be just and proper disposal of this litigation?
17. In view of the above, on the point as to whether the decree passed by the High 33 Court is justified or any other form of relief shall meet the ends of justice, we are of the view that instead of specific performance, awarding of monetary compensation to Respondent shall meet the ends of justice. In this regard, we may observe that the appellants themselves have filed a so-called valuation report suggesting that the market value of unirrigated land was Rs 70,000 per hectare whereas that of the irrigated land was Rs 1,40,000 per hectare. The fact also remains that the appellants have been enjoying the land in question for a long length of time.
Further, it gets reiterated that the predecessors of Respondent 2 made payment of the sum of Rs 6000 to the vendors in the years 1965-1966; and the plaintiffs had claimed alternative relief of recovery of the said amount together with interest as also of compensation. Taking all the relevant factors into account, we are of the view that awarding a lump sum of Rs 15,00,000 (Rupees fifteen lakhs) to Respondent 2 as compensation in lieu of specific performance and in lieu of any other claim qua the land in question shall meet the ends of justice.
34
7. Pratap Lakshman Muchandi v.
Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67
15. So far as the allegation of interpolation in the document in question i.e. agreement to sell was concerned, it was sent for examination by the handwriting expert, and the report of the expert was received and the same was accepted. The opinion of the expert was that there is erasure but not tampering with the document. The document in question is genuine and has been rightly acted upon by both the courts below. In this connection, learned counsel invited our attention to various decisions referred to above but that does not make any difference in the matter because factually we are satisfied that the agreement to sell was executed for family necessity. Therefore, the various decisions referred to by the learned counsel for the appellants do not take the case of the appellants any far. Hence we are of the opinion that the agreement to sell was executed for family necessity and the appellants cannot get out of it.
16 [Ed.: Para 16 corrected vide Official Corrigendum No. F.3/Ed.B.J./17/2008 dated 4- 35 3-2008.] . But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shot up very high, therefore, while exercising our jurisdiction under Section 20 of the Specific Relief Act, 1963 we would like to be equitable and would not allow the sale of property to be executed for a sum of Rs 1,20,000. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of the passage of time we direct that the respondents shall pay a sum of Rs 5 lakhs in addition to Rs 1,10,000 as out of Rs 1,20,000, Rs 10,000 has already been paid as advance. On receipt of Rs 1,10,000 and Rs 5 lakhs (Rs 6,10,000) the appellants shall execute the sale deed for the property in question.
24. In support of the contentions, the learned counsel for the respondent has relied on judgment of Hon'ble Apex 36 Court in the case of P. Ramasubbamma v. V. Vijayalakshmi, (2022) 7 SCC 384.
25. On perusal of the legal principles enunciated in the aforesaid judgments and applying the same to the facts and circumstances of the present case, the following points that would arise for consideration.
1) Whether the plaintiff has made out a case for specific enforcement of contract of agreement to sell dated 31.03.1992 by proving that he was always ready and willing to perform his part of contract?
2) Whether the defendant has made out a case that plaintiff was not ready and willing to perform his portion of contract and therefore, by issuing an Ex.D.1 - notice, defendant has successfully terminated the contract of agreement to sell dated 31.03.1992?
3) Whether the defendant has made out a case that in the event of this Court confirming the impugned judgment, the sale consideration is to be enhanced.
37
4) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?
5) What order?
26. In the case on hand, the learned trial Judge has concluded that the plaintiff is successful in establishing that the defendant has entered into an agreement on 31.03.1992 for selling the suit property in his favour.
27. The material evidence on record comprises of oral testimony of P.W.1 coupled with two witnesses on behalf of the plaintiff who are examined as P.Ws.2 and 3. Plaintiff has placed reliance on the documentary evidence on record which were exhibited and marked as Exs.P.1 to P.10 as referred to supra.
28. P.W.1 practically reiterated the plaint averments and contended that a sum of Rs.1,45,000/- was paid in cash to the defendant at the time of agreement. As per Clause No.VI of the said agreement, the plaintiff was inducted into 38 the suit property by handing over the physical possession and enjoyment of the suit property whereby there was a part performance of contract. Thus, there is not much dispute as to the agreement dated 31.03.1992 which has taken place between plaintiff and defendant.
29. An additional issue was raised before the trial Court that whether the defendant terminated the suit agreement dated 31.03.1992, by issuing a legal notice on 08.07.1996? The said notice issued on behalf of the defendant and the contents of the said notice presupposed that there was a valid agreement entered into by the plaintiff with defendant for sale of the property.
30. Contents of the legal notice dated 08.07.1996 marked at Ex.D.1 reads as under:
"Date: 08.07.96 To, Sri Iqbal, S/o Syed Hafeez, No.222/13, 11th Cross III Main, Wilsongarden, Bangalore - 560 027.39
Sir, Under instructions from my client Sri. R.Nagesh S/o Sri. Ramaiah, No.158/17, 5th Cross, 3rd Main Road, Wilsongarden, Bangalore-560 027, I notify you as hereunder:
1. It is represented to me that on 31.3.1992 my client entered into an agreement of sale with you in respect of property bearing No.222/12, and 223/12, situated at III Main Road, Wilson garden, Bangalore for a sale consideration of Rs.6,95,000/- and you have paid a sum of Rs.1,45,000/- and you agreed to pay the remaining balance of sale consideration within stipulated time.
2. My client represented to me that after you and my client entered into an agreement of sale you never turned up to complete the sale transactions approached you to discharge your part of obligations for payment of remaining balance of sale consideration. Inspite of repeated, request demands you postponing the same. It is represented to me that my client having serious financial crises and agreed to sell the above referred property. But you purposely delayed without any payment. Because of serious financial commitments he borrowed loans from their relatives and friends. Now my client have no alternatives except to issue notice to you.40
WHEREFORE, I call upon you sir, that the agreement of sale between my client and with you are hereby terminated and stands cancelled. Hereinafter you have no right, over the property, failing which you are at liable for all cause and consequence at your risk and cost.
Sd/-
Advocate"
31. P.Ws.2 and 3 who are witnesses examined on behalf of the plaintiff specifically deposed about the suit agreement. They also deposed about further advance amount received by the defendant, but failed to perform his portion of the contract.
32. P.W.3 also deposed in favour of the plaintiff by stating that the agreement of sale in respect of the suit property was entered into by plaintiff and defendant on 31.03.1992 and on the very same day a sum of Rs.1,45,000/- was paid and plaintiff was inducted into the suit property by handing over the physical possession.
33. P.W.3 further deposed that defendant had further demanded sum of Rs.50,000/-, Rs.1,00,000/- and 41 subsequently a cash of Rs.1,00,000/- has been paid by the plaintiff to the defendant. He identified his signatures on the endorsements made on the suit agreement.
34. The endorsements on the suit agreements amply establishes the payment of additional amount by the plaintiff in favour of the defendant. The endorsements on the suit agreements are dated 05.06.1994, 20.06.1994 and 02.02.1995.
35. It is pertinent to note that the endorsements are signed by the defendant. The legal notice said to have been issued on 08.07.1996 and certificate of posting has been marked as Ex.D.1(a). In the said notice, very cunningly, the defendant has not mentioned the receipt of the subsequent amount of Rs.50,000/-, Rs.1,00,000/- and another sum of Rs.1,00,000/- on 05.06.1994, 20.06.1994 and 02.02.1995. Since Ex.D.1 notice is issued on 08.07.1996, defendant ought to have instructed his Advocate about the subsequent payments received from the plaintiff on the aforesaid dates. Except mentioning 42 receipt of sum of Rs.1,45,000/- at the time of agreement, the notice is silent with regard to the subsequent amounts received by the defendant which are reflected in the endorsements.
36. This conduct of the defendant itself would be sufficient enough to judge that the defence taken by the defendant is only illusory in nature.
37. As could seen from the grounds urged in the appeal memorandum and the arguments put forth by learned Senior Counsel Sri G.S. Kannur on behalf of the appellant/defendant, it is the case of the defendant that the agreement was terminated on the ground that the plaintiff did not perform his portion of the contract and he failed to show his readiness and willingness in performing his portion of contract. Much is also argued about the Bank statement produced by the plaintiff at Ex.P.8 wherein it is reflected that plaintiff had no money in his bank account.
43
38. A feeble attempt was also made by the defendant that the plaintiff did not demand execution of the sale deed by issuing necessary notice.
39. These grounds which are urged on behalf of the defendant/appellant cannot be countenanced in law for more than one reason.
40. Firstly, as referred to supra, defendant has suppressed the payment of additional sum of Rs.50,000/-, Rs.1,00,000/- and another sum of Rs.1,00,000/- vide endorsements referred to supra in his notice. Since endorsements are sufficiently proved and established by the plaintiff by not only examining himself, but also examining P.Ws.2 and 3, the trial Court was justified in holding that the plaintiff was ready and willing to perform his portion of the contract and decreed the suit of the plaintiff.
41. Secondly, it is not in dispute the sale consideration was in a sum of Rs.6,95,000/- and Rs.1,45,000/- was 44 already paid at the time of agreement and thereafter plaintiff inducted into the suit property by handing over the physical possession.
42. Thirdly, in the remaining sum of Rs.5,50,000/-, Rs.2,50,000/- was paid by the plaintiff to the defendant as per the endorsements as referred to supra. In all, the plaintiff had already paid sum of Rs.3,95,000/-.
43. Lastly, since the notice vide Ex.D.1 came to be issued in the year 1996, one can conveniently infer, the parties were on logger heads with regard to the performance of the contract as agreed.
44. As such, the suit came to be filed on 03.08.1996 as Ex.D.1 is dated 08.06.1996. What transpired in the interregnum is known to the parties and there is no proof that Ex.D.1 was served on the plaintiff. What prevented the defendant to issue the notice through registered post acknowledgement due is also not forthcoming on record. 45
45. Be what it may. Fact remains that plaintiff having paid sum of Rs.3,95,000/- and was interested in getting the sale deed executed in his name and therefore he has approached the Court by filing the suit for specific performance. It is pertinent to note that in the written statement, the defendant except admitting receipt of Rs.1,45,000/- on the date of agreement, receipt of further sum of Rs.50,000/-, Rs.1,00,000/- and another sum of Rs.1,00,000/- on two occasions is denied.
46. It is also pertinent to note that the defendant did not choose to examine anybody else on his behalf to establish that he has not received the additional amount as is found in Ex.P.1 vide endorsements.
47. No attempt was made by the defendant to refer his signatures found on the suit agreement endorsements to the experts. As such, what is available on record is the oral testimony of plaintiff and his witnesses coupled with endorsements as referred to supra. As against the same, 46 there is only oral testimony of D.W.1 and no other evidence is placed on record.
48. The conduct of the defendant in not mentioning the subsequent payment as is found in endorsements at Ex.P.1 and emphatically denying in the written statement about the payment of additional sum of Rs.2,50,000/- as per the endorsement on different dates referred to supra is sufficient enough to conclude that defendant was somehow interested in denying the execution of the sale deed which compelled the plaintiff to file the suit for specific performance.
49. Further more, D.W.1 in his cross-examination has admitted that he has sold a house which was adjacent to the suit property about three years earlier. Suggestion was made that sale consideration for the sale of said house is on par with the sale consideration mentioned in the agreement, but he has denied the said suggestion. 47
50. He pleaded ignorance that the plaintiff is an income tax assessee. He also admitted that the plaintiff has paid the sale consideration in instalments. He also stated that plaintiff has approached him and he was ready to pay the balance sale consideration in instalments. He denied that plaintiff is paying taxes to the suit property, but material evidence on record would go to show that it is the plaintiff who has paid taxes to the suit property. Having inducted the plaintiff into the suit property, D.W.1 goes to the extent of pleading ignorance about the residential address of the plaintiff.
51. All the above factors when viewed cumulatively, this Court is of the considered opinion that the plaintiff has established his case by placing cogent and convincing evidence and he was always ready and willing to perform remaining portion of the contract and was entitled to specific performance of the contract of agreement to sell.
52. Further, though the defendant has come up with a theory that he has terminated the contract, the same is 48 not proved except marking notice Ex.D.1 and Ex.D.1(a). He could have very well examined the author of Ex.D.1. But, he did not do so. Service of Ex.D.1 is also not proved by the defendant by placing cogent evidence on record. The certificate of posting marked at Ex.D.1 (a) is not the proper acknowledgement for having served Ex.D.1 on plaintiff. As such, the said theory of termination of agreement or rescinding the contract of defendant cannot be countenanced in law.
53. Further, on behalf of respondent, reliance is placed in the latest case of Hon'ble Apex Court in the case of Ramasubbamma v. V. Vijayalakshmi (2022) 7 SCC 384, wherein it is held as under:
"9. Considering the fact that original Defendant 1--vendor original owner admitted the execution of agreement to sell dated 12-4-2005 and even admitted the receipt of substantial advance sale consideration, the learned trial court decreed the suit for specific performance of agreement to sell dated 12-4-2005. Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was 49 admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff vendee. Therefore, as such the learned trial court rightly decreed the suit for specific performance of agreement to sell. The High Court was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required.
54. Thus, applying the principles of law enunciated in the Ramasubbamma's case supra, out of total sale consideration of Rs.6,95,000/-, plaintiff had paid Rs.1,45,000/- at the time of agreement and subsequently a sum of Rs.2,50,000/- which is substantial advance sale consideration.
55. These aspects of the matter have been rightly appreciated by the learned trial Judge in the impugned judgment.
50
56. This takes the Court to the next stage of the case namely the alleged hardship that may be caused to the defendant by decreeing of the suit.
57. According to the counsel for the appellant, the sale consideration fixed for sale of the property in a sum of Rs.6,95,000/- is on the lower side. Since this Court is of the considered opinion that the decree of specific performance granted by the trial Court needs to be confirmed, having regard to the discussion made supra, this Court bestowed its attention to the arguments put forth on behalf of the appellant with regard to the sale consideration.
58. Suit Property is situated at Wilson garden and taking note of the value of the property as on the date of agreement and the present value, this Court is of the considered opinion that sale consideration needs to be reassessed, following the principles of law enunciated in the case of Nirmala Anand v. Advent Corpn. (P) Ltd., 51 (2002) 5 SCC 481, wherein the Hon'ble Apex Court held as under:
17. On a careful consideration of the decisions brought to our notice, it can safely be recorded that it is too late in the day to deny a claim for specific performance of an agreement to sell an immovable property in existence or to be brought into existence according to the specification agreed to merely because the vendor had to make applications or move the concerned and competent authorities to obtain permission/sanction or consent of such authorities to make the sale agreed to be made an effective and full-fledged one. The principles laid down in the above decisions clearly indicate that unless the competent authorities have been moved and the application for consent/permission/sanction has been rejected once and for all and such rejection made finally became irresolutely binding and rendered impossible the performance of the contract resulting in frustration as envisaged under Section 56 of the Contract Act, the relief cannot be refused for the mere pointing out of some obstacles. Since the agreement to sell, in this case, relates to an immovable property, which indisputably is of special value, having regard to its location and special importance of the area, it 52 cannot be readily assumed or taken for granted that the respondents opposing the claim of the appellant have discharged their burden to displace the initial statutory presumption engrafted in Explanation (i) to Section 10 of the Specific Relief Act. Even the so-called imponderables noticed both by the learned Single Judge and by the Division Bench of the High Court, if could not stand in the way of or did not impede the assignment of the rights in the building and the interests in the land in favour of the seventh respondent under the deed of assignment dated 14-10-1994, it is beyond comprehension as to what could legitimately be pleaded against for a similar or identical relief being granted in the suit by compelling transfer of such and similar rights to and in favour of the appellant in respect of Flat No. 71 on the 7th floor, agreed to be sold which she is prepared to receive and take upon herself at her risk and responsibility even in the complete (sic incomplete) shape as it stands unless it is that Respondents 1 and 2 are trying to avoid their obligations and liabilities to suit their own convenience, wishes and welfare taking advantage of the steep appreciation in the value of real estate in the locality in question. The competent courts of justice, which exercise not only statutory powers, but jurisdiction in equity, should not be mere onlookers of an attempt by one 53 of the parties to unreasonably, unjustifiably and unethically try to evade specific performance in order to make profit at the expense of the other party to the contract, who, as concurrently found by the learned Single Judge as well as the Division Bench of the High Court, was always ready and willing to perform the remaining part of her contract.
Reasons as to why term (ii) requiring the appellant-Plaintiff 4 to pay the sum of Rs 40 lakhs and consequent term (vii) should not be imposed are
29. Section 20 of the Specific Relief Act, 1963 provides that relief of specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The discretion cannot be exercised arbitrarily. It has to be exercised in a sound and reasonable manner guided by judicial principles. Sub-section (2) enumerates the circumstances in which the court may exercise its discretion in not granting the decree of specific performance; sub- section (3) gives guidelines for proper exercise of the discretion in decreeing the relief of specific performance; and sub-section (4) does away with the requirement of mutuality as a condition for grant of relief of specific performance. The 54 circumstances enumerated in sub-sections (2) and (3) are not exhaustive.
30. Grant of relief of specific performance being discretionary, it cannot be claimed as a matter of right. It is governed by sound judicial principles and one of the foremost principle is that the court should be satisfied that circumstances are such that it is equitable to grant the relief of specific performance of the contract. Under this principle, one of the questions which has been considered at times by the courts is: as to whether due to delay in the grant of decree and the escalation of prices of real estate during the period is a ground to deny the relief of specific performance. It has repeatedly been held that per se the delay or the escalation of price is no ground to deny the relief of specific performance. In certain cases the courts in equity and to mitigate the hardship to the vendor have directed the vendee to pay further compensatory amount. But this is not a principle of universal application. It would depend upon the facts and circumstances of each case.
45. The appellant has always been ready and willing to perform her part of the contract at all stages. She has not taken any advantage of her own wrong. The appellant is in no way responsible for the delay at any stage of the proceeding. It is 55 the respondents who have always been and are trying to wriggle out of the contract. The respondents cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would amount to an unfair advantage to the appellant.
46. Requiring the appellant to pay further sum of Rs 40 lakhs would/may amount to frustrating the agreement itself as the appellant may not be in a position to pay the sum of Rs 40 lakhs. Respective counsel for the parties had quoted the figure of a particular sum which Scould be paid to the appellant in lieu of avoiding the decree of specific performance. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of Rs 40 lakhs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other.
59. In this regard, the Court heard the parties in detail. The learned Senior Counsel representing the respondent/plaintiff Sri M.N. Seshadri fairly submitted that the Court may re-fix the sale consideration by enhancing 56 the same reasonably and the plaintiff would be willing to get the property registered on the enhanced sale consideration as well.
60. However, Sri G.S.Kannur, learned Senior Counsel did not agree for the offer made by the plaintiff in this regard and therefore, necessity has arisen for this Court to reassess the sale consideration, taking note of the hardship pleaded by the defendant.
61. The material on record and the guideline value that has been fixed by the Government at relevant point of time and also taking note of the fact that the plaintiff has been inducted into the possession of the property and he has used the premises for his business purpose and has enjoyed the same, directing the plaintiff to pay sum of Rs.25,00,000/- as against sum of Rs.6,95,000/-, in the considered opinion of this Court, would be just and proper and would meet ends of justice.
62. However, the amount already paid by the plaintiff in a sum of Rs.3,95,000/- the plaintiff is entitled to be 57 deducted from Rs.25,00,000/-. With the above modification, this Court is of the considered opinion that the impugned judgment needs to be confirmed as there is no legal infirmity and perversity in the impugned judgment as the said aspect of the matter namely the enhanced sale consideration was not urged before the trial Court.
63. Both the parties have placed on record the judgments in support of their arguments as referred to supra.
64. In the case of U.N. Krishnamurthy supra, their Lordships were dealing with a situation where under it has been observed by their Hon'ble Supreme Court that the plaintiff has to plead that he has sufficient funds or was in a position to discharge his obligation under the contract.
65. In the case on hand, since the defendant has not even acknowledged payment of Rs.2,50,000/- as per endorsements, and there is a suppression of material of fact, the said decision would not advance the case of the appellant.
58
66. In case of Man Kaur, Hon'ble Supreme Court ruled that even if there is a breach on the part of the defendant, the plaintiff has to prove that he was ready and willing to perform his portion of the contract, failing which suit for specific performance cannot be granted.
67. In the case on hand, it is the case of the defendant that he has terminated the contract and therefore, factually the above decision distinguishable.
68. In Katta Sujatha Reddy's case, the Hon'ble Supreme Court was referring to the amended specific relief act and there cannot be any dispute as to the legal principles in the enunciated in the decision. But, facts of the present case are different from the facts involved in Katta Sujatha Reddy's case and the same is of not any benefit to the case of the appellant.
69. Next set of decisions relied on by the appellant in the case of Daivasigamani, Madhukar Nivrutti Jagtap and 59 Pratap Lakshman Muchandi, Hon'ble Supreme Court has considered the use of discretion while granting specific performance by the Court and while exercising such discretionary power, Court can also considered the steep increase in the prices of immovable property.
70. This Court having taken note of the principles of Nirmala Anand case supra and re-fixed the sale consideration from Rs.6,95,000/- to Rs.25,00,000/-, detail discussion of the aforesaid cases are unnecessary.
71. In view of the foregoing discussion, point No.1 is answered in the affirmative, point No.2 in the negative, point No.3 in the partly affirmative and point No.4 in the negative.
72. Regarding point No.5: In view of findings on point Nos.1 to 4, this Court pass the following order: 60
ORDER Appeal is allowed in part.
The impugned judgment and decree is modified as under:
While maintaining the decreeing of suit of plaintiff, plaintiff shall pay sum of Rs.25,00,000/- as the sale consideration, less sum of Rs.3,95,000/- paid by him within three months from today and is entitled to get the sale deed executed from the defendant, failing which, plaintiff is entitled to deposit the balance sale consideration before the trial Court and get the sale deed executed through the process of law.
No order as to costs.
Sd/-
JUDGE MR