Chattisgarh High Court
Motilal Dayalani vs Ashok Kumar Guha on 2 September, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 16/08/2022
Judgment delivered on : 02/09/2022
FA No. 129 of 2016
Motilal Dayalani S/o Late Dularam Dayalani, Aged About 37 Years
R/o Sindhi Colony, Jarhabhata, Bilaspur, Tehsil and District Bilaspur,
Chhattisgarh ---- Appellant
Versus
1. Ashok Kumar Guha S/o Late Masih Charan Guha, Aged About 68
Years R/o Ward No.-7, Beside Indu Medical, Ring Road No.-2,
Bilaspur, Tehsil and District Bilaspur, Chhattisgarh
2. State of Chhattisgarh through Collector Bilaspur, District Bilaspur,
Chhattisgarh --- Respondents
And
FA No. 151 of 2016
Motilal Dayalani S/o Late Dularam Dayalani, Aged About 37 Years
R/o Sindhi Colony, Jarhabhata, Bilaspur, Tehsil and District Bilaspur,
Chhattisgarh --- Appellant
Versus
1. Ashok Kumar Guha S/o Late Masih Charan Guha, Aged About 68
Years R/o Ward No.7, Beside Indu Medical, Ring Road No.-2,
Bilaspur, Tehsil And District Bilaspur, Chhattisgarh
2. State of Chhattisgarh, Through Collector Bilaspur, District Bilaspur,
Chhattisgarh ---Respondents
For appellant : Shri Sumesh Bajaj and Shri Rishabh
Bajaj, Advocates.
For respondent No.1 : Shri Sunil Tripathi and Shri Vineet Kumar
Pandey, Advocates.
For State : Shri Ashutosh Mishra, Panel Lawyer
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
CAV Judgment
2
Per Goutam Bhaduri, J.
1. Both these appeals are being heard and decided together as similar question of facts and law are involved.
2. Facts of this case are that two agreements were entered by plaintiff Motilal Dayalani with respondent No.1 Ashok Kumar Guha on 05.07.2010. One agreement was for purchase of land bearing Khasra No.621/44 ad- measuring 1510 sq.ft., and the shops, slab house and other structures built thereon situated at Mouja Tifra, Ward No.7, Gurughashidas Nagar Ward, diverted sheet No.27, Block No.20, Plot No.408 by one agreement. Another agreement was executed on the same date for purchase of adjacent diverted plot bearing Khasra No. 622/4 ad-measuring 3500 sqft and the two storied slab-house built thereon situated at Mouja Tifra, Ward No.7, Gurughashidas Nagar Ward at Ring Road No.2. According to the plaintiff, though the defendant agreed to sell the same on a particular price after carrying out the demarcation, sale deed was not executed and notices were exchanged between the parties. Eventually the sale deeds having not been executed, suit for specific performance was filed.
3. The defendant in his written statement contended that the plaintiff was required to pay the sale consideration by a target date of 31/03/2011 and since the amount having not been paid by the plaintiff the agreement of sale was not honored. Consequently, since the time was essence of contract to pay the amount, the sale deed was not executed.
4. Learned trial court on the basis of the pleading primarily framed three issues in both the cases and gave findings thereof i.e., (i) Whether the agreement dated 05/07/2010 was in existence or not ? The trial Court answered it in negative and held that time was essence of the contract and it was the object of parties, therefore, in such situation, when the amount of 3 sale consideration was not paid by 31.03.2011, it cannot be said that the contract agreement was in existence. (ii) The second issue was whether the defendant no.1 has received the earnest money at the time of execution of agreement dated 05.07.2010. The trial Court answered this issue in favour of plaintiff and directed the defendant to return the earnest money which was paid by the plaintiff. (iii) The third issue was whether the plaintiff was ready and willing to execute his part of contract dated 05/07/2010. The trial Court answered it in negative and held that the plaintiff was not ready and willing to complete his part of the agreement. The learned trial court, eventually dismissed both the suits. Being aggrieved by the impugned judgment and decree, the plaintiff has preferred these two appeals.
5. Learned counsel for the appellant would submit that certainly two agreements were executed for purchase of property, one was for Rs.60 lakhs and another was for Rs.40 lakhs. He submits that in second agreement though consideration of Rs.40 lakhs was written in figures, but in words Rupees Sixty Lakhs was shown and the respondent took the advantage of it to say that sale consideration was Rs.60 lakhs and not Rs.40 lakhs. He would further submit that when the intervention was made by the Society members, the appellant to save the sale forcefully agreed for sale consideration of Rs.60 lakhs each in order to avoid further delay to get the sale deed registered. He would further submit that according to the agreement, time was not the essence of the contract. While going through the contents of the agreement in both the cases Ex.P-1, he would submit that no-where it is termed in agreement that in absence of payment within the target date of 31.03.2011, the earnest money paid would stand forfeited. Instead, the agreement postulates that if any of the parties does not follow the terms of agreement, the said party would be obliged to pay damages. Consequently the time was not essence of the contract and the Court 4 below arrived at a wrong finding.
6. He would submit that the specific clause of waiver existed in agreement and in case of non-compliance of the agreement it was only for damages and further no specific conditions were embodied in agreement instead a duty was cast upon the seller to demarcate his land for completion of sale. It is further submitted that after taking the earnest money, when sale deed was not executed Panch meeting was conducted and the time was extended till May, 2012, thereby the waiver clause in the agreement was exercised. Referring to Ex.P-10, the notice sent by the appellant/plaintiff he would submit that till the extended time of May, 2012, the demarcation was not carried-out nor any effort was made by the respondent inasmuch as the property can only be purchased after demarcation made as per the agreement. Referring to Statement of P.W.1, he submits that since the demarcation was not carried out by the seller within the time, the Panchs were required to intervene wherein the respondent sought time even after extended period and as per the agreement, execution of the sale deed was extended till May 2012. He further submits that since it was incumbent upon the respondent defendant to get the land demarcated, a question was posed specifically on the point of demarcation but it was by-passed, which would show that an obligation was imposed on the respondent seller to get the property demarcated. He further submits that because of tactics adopted by defendant in respect of a different sale consideration mentioned in figures and words in the second agreement, the appellant was constrained to enhance the sale consideration from Rs.40 lakhs to Rs.60 lakhs on pressure but even after such consent, the defendant deliberately did not execute the sale deed.
7. In respect of the readiness and willingness, reading the statement he would submit that the notices exchanged between the parties would show 5 that the plaintiff was ready and willing to perform his part of contract but the respondent is not ready to fulfill the obligation. He refers to case laws reported in AIR 1979 SC 720 (M/s. Hind Construction Contractors by its sole proprietor Bhikamchand Mulchand Jain versus State of Maharashtra and AIR 1993 SC 1742 (Smt. Chand Rani (dead) by LRs Versus Smt. Kamal Rani (dead) and would contend that time was not essence of the contract in the facts situation of the present case. He further refers to a case law reported in AIR 2004 SC 4472 (P. D'Souza V. Shondrilo Naidu) to contend that when the vendor further seeks extension of time for registration of sale deed time was thus not essence of the contract. Learned counsel for the appellant would further submit that the escalation of price cannot be ground for cancellation of agreement for specific performance and without prejudice he referred to the case law laid down in K. Prakash v. B.R. Sampath Kumar AIR 2015 SC 9 and would submit that the appellant plaintiff may be allowed to pay the present price and the prayer for specific performance is accepted by the Court below. Therefore, he prays that he may be allowed to pay the present price and the judgment and decree of the trial Court be set aside.
8. Per contra, learned counsel for the respondent would submit that the agreement was dated 05.07.2010 and according to the agreement the sale consideration was required to be paid by 31.03.2011. He would submit that till 31.03.2011, the plaintiff did not pay as such the notice was given and first time the exchange of notice started on 01.10.2011. In the notice Ex.P-2 it is stated that no whisper has been made about any demarcation of the property and after lapse of 7 months from March, 2011 in the month of October, 2011 first time notice was served to over-come default of the plaintiff. He would submit that the documents like B-1, 22 Point information which are required for registration of the sale deed was obtained by the 6 defendant and was informed to the plaintiff on 16.03.2011 which has rightly been held by the judgment of the trial Court but since the plaintiff had no money with him, he did not execute the sale deed.
9. With respect to the demarcation of the land, he he would submit that the plaintiff himself in the map appended to the plaint has shown the identity of the property and at the time of recording the statement of the defendant witness (D.W.) i.e., the respondent seller, when a question was posed in cross examination, It was categorically informed that the identity of the land was established at the behest of the plaintiff-himself. It is stated that main Patwari Vinod Tamboli has measured the land and in the notice pleading, it is stated that since the land was not demarcated, they did not come. It is submitted that the identity of the land having not been in dispute, the plea as raised by the appellant plaintiff is false. He further submits that the conduct of the defendant should be seen that he himself sent a letter for disconnection of the electricity on 15.03.2011 that is much prior to 31.03.2011 and even the 22 Point information from the revenue department was also obtained without which the sale could not be made, as such, the plaintiff is not ready and willing to perform his part of contract.
10. Learned counsel for the respondent referred to case laws reported in (2019) 8 SCC 575 (Para 14) - Surinder Kaur (dead) through L.Rs Jasinderjit Singh (dead) through L.R. Vs. Bahadur Singh (Dead) through L.R., and (2019) 17 SCC 429 Para 6 (Vijay Kumar V. Om Prakash) and submitted that that the relief of specific performance is discretionary and in the facts and circumstances of the present case, when the capacity to pay the money has not been shown by the plaintiff, the suit for specific performance has rightly been dismissed by the Court below.
11. We have heard learned counsel for the parties and perused the agreements.
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12. The agreement in both the suits are marked as Ex.P-1. Since the issue with respect to sale consideration has been resolved by the appellant by agreeing to pay Rs.60 lakhs instead of Rs.40 lakhs, as such, we do not wish to deliberate on it as to whether in one of the agreements, sale consideration was Rs.40/-. The entire adjudication would be taking into consideration the fact that the sale consideration would be Rs.60 - 60 lakhs in both the agreements. Reading of the agreement Ex.P-1 would show that in one sale agreement, 3 lakhs was paid as earnest money and in another sale deed, Rs.2 lakhs was paid as earnest money.
13. Reading of both the agreements would show that the earnest money was paid on 05.07.2010 by cash and it was further agreed that the amount of remaining sale consideration would be received by the purchaser till 31.03.2011 and the registry would be done without any objection. It further purports that for registration of sale deed, the necessary documents would be supplied by the seller and the "demarcation and measurement" shall be provided by the seller. The agreement further states that if any party flouts the conditions of the agreement, reciprocally he would be liable to pay damages to the other one. The agreement (Ex.P-1) was executed on 05.07.2010. According to the plaint averments, the plaintiff got the notice published in the newspaper on 01.10.2011. Thereafter, a notice dated 04.10.2011 was served to the advocate when the sale deed was not executed. initially the notice was served by the plaintiff on 01.10.2011 and the reply by the defendant was filed on 04.10.2011 (Ex.P-5). The plaintiff stated that when the sale deed was not executed he approached the seller in respect of one sale deed wherein the sale consideration was written as Rs.40 lakhs in words, but in figures Rupees Sixty Lakhs was written. However, the plaintiff agreed to pay Rs.60 lakhs in order to avoid further delay. As per Ex.D-4, which is a letter dated 10.08.2010 addressed to the 8 plaintiff, the defendant/respondent demanded to pay Rs.60 lakhs to purchase the house and additional amount of Rs.10 lakhs. However, in Agreement (Ex.P-1), it is shown that apart from earnest money, the rest of amount would be paid at the time of registration of sale deed. The trial Court interpreted this document that since the amount was not paid by he plaintiff, the plaintiff was not ready and willing to perform his part of contract. In our opinion, apparently it is against the agreed terms of Agreement (Ex.P-1).
14. In the statement of plaintiff P.W.1, it is stated that when notices were exchanged between the plaintiff and defendant, in order to resolve he dispute, a meeting was held in the month of November, 2011 before the members (Panches) wherein the plaintiff in respect of second agreement agreed to pay Rs.60 lakhs instead of Rs.40 lakhs on a condition that the sale deed should be executed forthwith. On which, six months time was sought by the defendant seller and all the Panchas gave an agreed time uptill May 2012 for execution of the sale deed. In cross examination of P.W.1, he has stated that before the agreement of sale was executed, the seller has shown the papers of the house and he enquired about khasra number and the area of property. The plaintiff denied the allegation that an intimation was sent to him by the seller about 22 point document, which is required for registration of sale deed and was informed to get the sale deed registered . He further submits that in the month of March, he approached the defendant to get the sale deed registered and subsequently on 01.10.2011 notices were issued.
15. One of the Panchas P.W.2 Rahul Chabra has stated that initially in one of the sale deeds, a dispute about the sale consideration arose that it was for Rs.40 lakhs but in words and figures, the discrepancy existed in one sale deed, since the seller Ashok Guha insisted that in words Rs.60 lakhs is 9 shown therefore he would not reduce the sale consideration to Rs.40 lakhs and on that the purchaser agreed to pay Rs.60 lakhs to avoid the dispute. In cross examination, he has sated that he had no knowledge about the defect in agreement and before November, 2011 he was not informed anything by Plaintiff Motilal except the information of transaction. He has further stated that in November, 2011, he along with Doctor James, Ashish Nath and plaintiff Motilal went to the place of Ashok Guha, wherein for the first time they read the agreement. On a query made to this witness, he has answered that it is incorrect to say that after November, 2011 Ashok Guha had never sought time for execution of the sale deed. The inference therefore would be that after November, 2011 the seller also sought time for execution of the sale deed. This witness further deposed that despite there being an agreement for sale consideration of Rs.40 lakhs, the purchaser agreed to pay Rs.60 lakhs instead of Rs.40 lakhs in one agreement. It was complained by the purchaser that the seller is not showing any interest to get the sale deed executed despite the entire amount was agreed to be paid.
16. A perusal of the agreement shows that the seller consented that before the registry, he would demarcate the land and will measure it. A plain reading of agreement would further show that a duty was cast upon the defendant "to get the land demarcated and measured". D.W.1 Ashok Guha has stated that two agreements were executed for a sale consideration of Rs.60 lakhs each and he stated that initially it was agreed that at the time of agreement Rs.60 lakhs would be paid as demanded by letter Ex.D-4 and the rest of the amount would be paid at the time of registration. A perusal of the agreement Ex.P-1 in both the cases goes to show that only earnest money of Rs.3 lakhs and Rs.2 lakhs was paid as agreed and rest of the amount was to be paid at the time of Registry. The defendant has further 10 stated that though it was agreed that Rs.60 lakhs would be paid but just before the agreement, the plaintiff got him intoxicated with a cup of tea as such he became semi-unconscious and taking advantage of it, the plaintiff got the signature of the defendant seller along with the witness on such agreement to sell.
17. There is nothing on record to show that any complaint of fraud was pleaded, nor any such report to the police was made complaining that by fraud Ex.P-1 was executed. On the contrary, the defendant tried to develop a case contrary to the terms of agreement which purports that an earnest money of Rs.3 lakhs and Rs.2 lakhs was paid for two agreements and the remaining amount was to be paid at the time of registry. If such oral submission of the defendant is accepted, it would be contrary to sections 91 & 92 of The Indian Evidence Act, which prohibits that any oral statement to change the terms of contract reduced in writing and oral evidence would not be admissible. Further the agreement though casts a duty on defendant to get the land demarcated and measured, but D.W.1 at Para 17 of the cross examination has deposed that at Ex.P-1 there is no agreement of carrying out demarcation, therefore, such statement appears to be wrong on the face of it as against the terms of Ex.P-1. He further admitted that he did not get the land demarcated and named one Vinod Tumbale, Patwari, who came to measure the land. Further he has stated at para 21 that the land was measured by the plaintiff. At para 24 he denied the suggestion that he never became semi unconscious and further stated that it is true that the actual property can only be identified/shown by the plaintiff alone. It is further stated that he had shown the original documents to the plaintiff. No document or copy has been filed to show that the land was demarcated by the plaintiff itself.
18. It is quite obvious that it is the seller/owner who can demarcate his 11 land and property as the identity of the property for all practical purposes can be correctly made by the seller without any fault. The purchaser may have a tentative idea about the marking of open land along-with superstructure built thereon, but when the open land with superstructure is required for execution of sale deed with consideration amount, it is very natural that the purchaser would enquire to identify the property, which can be carried out by proper demarcation alone. When as per the terms of agreement the seller agreed to demarcate and measure the land, it is not expected that without any such measurement, any large amount of sale consideration would be parted with by any purchaser only on oral assurance. Consequently though a date was given to get the sale deed executed by 31.03.2011 but it was inter-dependent on the measurement and demarcation to be carried out and in absence thereof, the target in agreement cannot be fixed.
19. Further at para 37 of D.W.1, a question was posed by the court that when the defendant himself had failed to get the land demarcated despite notice on 02.03.2013 how it can be stated that 31.03.2011 was the target date ? In reply to it, the defendant averred that his land is situated adjacent to the land of Rahul Chabra and Rahul Chabra was also dealing in transaction of sale and purchase of property and the plaintiff in connivance with him has got his land demarcated in November, 2010 itself and Rahul Chabra got his sale deed executed in December 2010 and he was holding a copy of the same. However, no such document has been placed to show that the land of the seller was demarcated as per aforesaid statement.
20. A perusal of the statement of D.W. Avanish Guha, son of Ashok Guha (defendant) shows that he stated that an oral agreement was executed that Rs.60 lakhs would be paid within a month from the date of agreement. However, the said amount of Rs.60 lakhs is contrary to terms of the sale 12 agreement Ex.P-1. Further at para 18, he stated that they have not demarcated the land at any point of time and the burden was shifted on the plaintiff that he himself got the land demarcated. On the contrary, the plaintiff denied the averments and stated that he has not demarcated the land at any point of time. It is obvious that if the land was officially demarcated and if it was at the behest of the plaintiff, then the defendant could have established those facts by producing the certified copy of the demarcation order of the revenue case. Only bare statement has been made that since the defendant plaintiff got the land demarcated as such they were not required to do it and would not favour them in any manner whatsoever.
21. The supreme Court in Smt. Chand Rani (dead) by Lrs Appellants v. Smt. Kamal Rani (dead) by Lrs AIR 1993 S.C. 1742 observed that the fixation of the period within which the contract has to be performed does not make the stipulation as to the time the essence of the contract. It was further observed that when a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. At paras 20 & 21 , the Court held as under:
20. In Govind Prasad Chaturvedi v. Hari Dutt Shastri, (1977) 2 SCC 539 : (AIR 1977 SC 1005) following the above ruling it was held at pages 543-544 (of SCC) (at pp.1007-08 of AIR) :
"It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to the time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. (Vide Gomalthinayagam Pillai v. Pallaniswami Nadar (1967) 1 SCR 227, 233) : (AIR 1967 SC 868 at p.
871). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable 13 terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract."
(Emphasis supplied) "21. In Hind Construction Contractors case (1979 (2) SCR 1147 : AIR 1979 SC 720 (supra) quoting Halsbury's Laws of England, this Court observed at pages 1154-55 (of SCR) : (at pp.724-25 of AIR) as under :
"in the latest 4th edn.,of Halsbury's Laws of England in regard to building and engineering contracts the statement of law is to be found in Vol. 4, Para 1179, which runs thus:
"1179. Where time is of the essence of the contract. The expression time is of the essence means that a breach of the condition as to the time for performance will entitle the innocent party to consider the breach as a repudiation of the contract. Exceptionally, the completion of the work by a specified date may be a condition precedent to the contractor's right to claim payment. The parties may expressly provide that time is of the essence of the contract and where there is power to determine the contract on a failure to complete by the specified date, the stipulation as to time will be fundamental.
Other provisions of the contract may, on the construction of the contract, exclude an inference that the completion of the works by date is fundamental, time is not the essence where a sum is payable for each week that the work remains complete after the date fixed, nor where the parties contemplate a postponement of completion.
Where time has not been made of the essence of the contract or, by reason of waiver , the time fixed has ceased to be applicable, the employer notice fix a may by reasonable time for the completion of the work and dismiss 14 the contractor on a failure to complete by the date so fixed."
(Emphasis supplied) It will be clear from the aforesaid statement of law that even where the parties have expressly provided that time is the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental, for instance, if the contract were to include causes providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of the contract. The emphasis portion of the aforesaid statement of law is based on Lamprell v. Billericay Union (1849) 3 Exch 283 at 308, Webb v. Hughes (1870) LR 10 Eq 281 and Charles Rickards Ltd v. Oppenheim, (1950) 1 KB 616."
22. Thus in the light of the above legal proposition and the analysis of the evidence, it would show that there cannot be presumption as to the time being essence of the contract for execution of sale deed uptill 31.03.2011. The target date was interdependent on performance of the seller to get the land demarcated and measured. The agreements further expressed that in case any of the parties commits breach of agreement then the said party would be liable to pay damages. Therefore, both the parties agree that in case of a breach of any one of the parties, the said party who committed breach would be liable for damages. Consequently by implied act of the parties, performance of contract within the stipulated contract was to be led. In the result, from the express terms of the contract, it is held that time was 15 not the essence of the contract.
23. Now with respect to the readiness and willingness, the Supreme Court in His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 observed that in order to arrive at a decision of compliance of clause (c) of Section 16 of the Act, 1963 to demonstrate the readiness and willingness of the plaintiff to perform his part of contract, it should be adjudicated on the facts as there is a distinction between readiness to perform the contract and willingness to perform the contract. The readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of contract, the conduct has to be properly scrutinized.
24. A perusal of the contents of the document (Ex.P-1) would show that consequent upon the demarcation and measurement carried out by the seller the obligation to perform the sale deed would shift upon the plaintiff.
25. The Supreme Court in case of P. D'Souza AIR 2004 SC 4472 (supra) held that "it is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case and no straight-jacket formula can be laid down in this behalf".
26. A perusal of the evidence would show that since it was incumbent upon defendant to carry out the demarcation, the obligation on the part of the plaintiff would start. The evidence of plaintiff and defendant would show that no efforts were made by the defendant to carry out the obligation as per the agreement. Instead, the averments have been made that the said agreement was got signed in semi unconscious stage by the defendant which is completely without any evidence and only a knee jerk defence. A 16 perusal of evidence of the plaintiff shows that the plaintiff has repeatedly stated that he is ready and willing to perform his part of contract and he was ready with money. The trial Court misdirected itself that when the first notice was served by the plaintiff on 01.10.2011 and held that he was not willing to perform his part of contract but at the same time the trial Court failed to take into account the obligation which was imposed on defendant, the seller. Virtually the defence of respondent is also about the fact that the agreement is an outcome of fraud and therefore by implication the entire agreement was denied.
27. The Supreme Court in 2021 SCC OnLine 365 Kadupugotla Varalakshmi v. Vudagiri Venkata Rao held that when a defence is raised in the written statement about the non-existence of the agreement, the defence cannot be entertained that the plaintiff is not ready and willing to perform his part of contract. Further in Silvey v. Arun Varghese (2008) 11 SCC 45 the Court held that when a false plea has been taken by the defendant about the non execution the agreement then the conduct of the parties would be relevant to exercise the discretion for decreeing the suit for specific performance. Again in Narinderjit Singh v. North Star Estate Promoters Ltd (2012) 5 SCC 712, the Supreme Court held that when a contract itself was denied the defendant could not have raised the other plea that the plaintiff was not ready and willing to perform his part of contract. Later, in A. Kanthamani v. Nasreen Ahmed (2017) 4 SCC 654 the Court held that it was not necessary to show that the plaintiff has money in his account to purchase the property
28. In case of K. Prakash v. B.R. Sampath Kumar (supra) the Court held that subsequent rise in price will not be treated as hardship entailing refusal of decree for specific performance. It is further held that rise in price is a normal change of circumstances and, therefore, on that ground a 17 decree for specific performance cannot be reversed. It is further held that however the court may take notice of the fact that there has been an increase in price of property and considering the other facts and circumstances of the case, the Court while granting decree for specific performance can impose a condition which may to some extent compensate the defendant-owner of the property. At para 20, the Court observed as under:
"20. However, the Court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant owner of the property. This aspect of the matter is considered by a three Judge Bench of this Court in Nirmala Anand v. Advent Corporation (P) Ltd. (2002) 8 SCC 146 : (AIR 2002 SC 3396) : 2002 AIR SCW 3960), wherein this Court held :-
"6. It is true that grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff 18 cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which the parties may not have any control. The totality of the circumstances is required to be seen."
29. Applying the above principles laid down by the Supreme Court in the instant case and further considering the facts and evidence led by the parties, we are inclined to allow this appeal and grant decree for specific performance of contract. The agreement was entered on 05.07.2010 and by now more than 12 years have passed and the price of property in the area must have seen increase. Keeping in mind the factual position and the conduct of the parties in this case, we direct that the sale price would be according to the fresh guidelines of the property of the Government which is existing in the area so that it would compensate the seller by way of damage without any financial loss. Accordingly both the appeals are allowed. The plaintiff would be entitled for a decree of specific performance of both the agreements dated 05.07.2010 in respect of the property mentioned in Agreements (Ex.P-1). The price of property shall be according to the guidelines of the State which are prevailing at present, as observed above. Considering the nature of dispute, the parties shall bear their own cost. Accordingly, a decree be drawn in terms of this order.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Rao
19
HEAD-NOTES
(i) For performance of agreement of sale of immovable
property, normally time is not the essence of the contract.
(ii) When a false plea has been taken about the non-
execution of the agreement then the conduct of the parties would be relevant to exercise the discretion for decreeing the suit for specific performance.
(i) LFkkoj laifÙk ds fodz; ds djkj ds ikyu gsrq lkekU;r% le; lafonk dk eeZ ugha gksrk gSA
(ii) tc ,d djkj ds fu"ikfnr ugha fd;s tkus ds laca/k esa feF;k vfHkopu fy;k tkrk gS rc fofufnZ"V vuqikyu ds okn esa fMdzh iznku fd;s tkus gsrq foosdkf/kdkj dk iz;ksx djrs le; i{kdkjksa dk vkpj.k lqlaxr gksxkA