Mundanthara Subramanian vs Kaatholil Madhava Menon (Died, Lrs ... on 2 March, 2022

[Cites 18, Cited by 0]

Kerala High Court

Mundanthara Subramanian vs Kaatholil Madhava Menon (Died, Lrs ... on 2 March, 2022

This is an appeal filed against the judgment and decree dated 16/03/2013 in O.S.No.414/2011 on the file of the Subordinate Judge's Court, Kozhikode. The suit is one for specific performance and in the alternative for return of advance money and compensation. The suit has been partly decreed and the amount paid as advance has been directed to be refunded. Aggrieved the plaintiff is before us in this appeal. The sole respondent herein is the defendant in the suit. The respondent passed away during the pendency of this appeal and hence his heirs have been impleaded as additional respondents 2 to

4. The parties in this appeal will be referred to as described in the suit.

2. The plaintiff and the defendant entered into Ext.A1 sale agreement dated 21/02/2011 by which the latter agreed to sell the plaint schedule property to the former for a sale consideration of ₹ 50 lakhs. Pursuant 4 R.F.A.No.626 of 2013 to the agreement, an amount of ₹ 15 lakhs was paid as advance on the same day. According to the plaintiff, he was always ready and willing to perform his part of the agreement. However, the defendant was never ready to perform his part of the agreement. After the execution of the agreement, the defendant made himself scarce and for one reason or the other, attempted to wriggle out of the agreement. The breach of the contract has been committed by the defendant and hence the suit.

3. The defendant admits the execution of Ext.A1 and the receipt of the advance amount of ₹15 lakhs. However, he denies the allegation that he had violated the terms of the agreement. According to him it was the plaintiff who was not ready and willing to perform his part of the contract. The plaintiff never had the necessary resources with him. The defendant had entered into Ext.A1 agreement with the intention of purchasing another property for which he had entered into Ext.B5 agreement dated 25/02/2011 and had also paid an advance amount of ₹ 8 lakhs. Since the plaintiff failed to take the sale of the plaint schedule property, he sustained a loss of ₹ 8 lakhs and hence the plaintiff is not entitled to return of the entire advance amount. The defendant is liable to return only an amount of ₹ 7 lakhs after deducting an amount of ₹ 8 lakhs, 5 R.F.A.No.626 of 2013 which he has suffered as loss as he was unable to take sale of Ext.B5 property.

4. On the side of the plaintiff, PWs.1 and 2 were examined and Exts.A1 to A8 were marked. DW1 was examined and Exts.B1 to B6 series were marked on the side of the defendant. The court below after considering the oral and documentary evidence as well as hearing the parties, decreed the suit in part and ordered the defendant to return the advance amount of ₹ 15 lakhs along with interest @ 12% p.a. from the date of Ext.A1 agreement i.e., 21/02/2011, till realisation and costs from the defendant and his assets.

5. In the appeal memorandum it is contended that the court below totally misdirected itself in arriving at its conclusions. As the impugned judgment is against facts, evidence and law, the same is liable to be set aside.

6. Heard Sri.N.Subrahmaniam, the learned counsel for the appellant and Sri.P.B.Krishnan, the learned counsel for the respondents.

7. The only point that arises for consideration in this appeal is - Did the court below err in arriving at the conclusion that the plaintiff was not ready and willing to perform his part of the contract, thus calling for an interference by this Court?

8. As noticed earlier, execution of Ext.A1 agreement dated 6 R.F.A.No.626 of 2013 21/02/2011, payment and receipt of an amount of ₹ 15 lakhs as advance are admitted. As per Ext.A1, the contract was to be performed within a period of two months, i.e., by 21/04/2011. Admittedly the period for performance was extended from 21/04/2011 till 27/04/2011 and necessary endorsement to the said effect has been made in Ext.A1. The fact that time was extended till 27/04/2011 is also admitted. However, the parties dispute the reason for the extension to which, we will come to shortly. The court below refused to grant the relief of specific performance mainly on the following grounds - (i) the bonafides of the plaintiff was doubted as he had brought in a new case in the plaint that the purchase of the property was for his daughter and not for him;

(ii) in the draft sale deed, namely Ext.A4, the sale consideration is shown as ₹6,33,300/- in the place of the actual value of ₹ 50 lakhs; (iii) non examination of the plaintiff's daughter to prove that the latter was ready to provide necessary funds for the purchase and (iv) the conduct of the plaintiff in approaching authorities like, the District Sainik Welfare Officer and the District Collector who had no authority to adjudicate the dispute, without immediately filing the suit.

9. In Ext.A1 agreement, the plaintiff is stated to be the buyer of 7 R.F.A.No.626 of 2013 the property. There is no reference in Ext.A1 to the plaintiff's daughter or the fact that the property is being purchased by the plaintiff for and on behalf of his daughter. In the plaint it is stated that the property was intended to be purchased for the plaintiff's daughter who is working abroad. Referring to this aspect, it was submitted by the learned counsel for the defendant that the new story in the plaint that the property was intended to be purchased for the daughter has been introduced only to show that the plaintiff had sufficient resources/funds in his possession for taking the sale of the property, whereas the actual position was that he did not have the necessary or the required funds to take the sale of the property. Reference was made to the decision of the Hon'ble Supreme Court in Kamal Kumar v. Premlata Joshi (2019 KHC 6012) in which it has been held that it is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance are - (i) whether there exists a valid and concluded contract between the parties for sale / purchase of the suit property; (ii) whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the 8 R.F.A.No.626 of 2013 contract; (iii) whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; (iv) whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff. Referring to the above requirements, it was submitted by the learned counsel for the defendant that requirement (iii) has not been satisfied by the plaintiff, as the case averred in the plaint and attempted to be proved is not in conformity with the terms of Ext. A1.

10. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115 it has been held that S.16(c) of the Specific Relief Act (the Act) envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to 9 R.F.A.No.626 of 2013 grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract.

11. In P.D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649, the Apex court 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 circumstance of each case. No strait - jacket formula can be laid down in this behalf. The readiness and 10 R.F.A.No.626 of 2013 willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale.

12. In addition to the aforesaid decisions, there are several other decisions on the matter. We do not intend to refer to all of them as the aforesaid two decisions including the one cited by the learned counsel for the defendant are more than sufficient to make the position quite clear. In the instant case, according to the court below, the alleged non-disclosure of the identity of the actual buyer to the defendant tells upon the bonafides of the plaintiff and specific performance being a discretionary remedy, cannot be given to a person like the plaintiff for concealing the aforesaid fact. We fail to comprehend the reasoning of the court below. According to the plaintiff and his witness, namely, PW2, the defendant had actually been informed about this fact. However, the defendant denies this case of the plaintiff. Let us assume for a moment that this fact was never disclosed by the plaintiff to the defendant. Does that disentitle the plaintiff to the relief of specific performance? In Ext.A1, it is stated that the sale deed shall be executed in the name of the plaintiff or in the name of any person as instructed/desired by him. It is true that in Ext.A4 draft sale deed 11 R.F.A.No.626 of 2013 also, the name of vendor/buyer, is the plaintiff. We are at a loss to understand how that in any way affects the bonafides of the plaintiff or can be made a ground to reject his claim. In our view, the same cannot be the sole ground or one of the grounds for rejecting the relief sought for in the light of the aforesaid settled principles of law in the matter of specific performance.

13. The factum of the plaintiff's readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The main aspect to be looked into is whether the plaintiff was ready and willing to perform the essential terms of Ext.A1 which were to be performed by him. Ext.A2 certificate dated 21/02/2011 issued by the SBT, Main Branch, Kozhikode, makes it clear that the advance amount of ₹ 15 lakhs had been paid by the plaintiff from his daughter's account. Ext.A1 also mentions the fact that the advance was paid by way of demand draft dated 21/02/2011 issued by the SBT, Main Branch, Kozhikode. Neither Ext.A2 nor the statement in Ext.A1 relating to the mode of payment of the advance amount is disputed by the defendant. The mode of payment of the advance amount was also never objected to by the defendant. Therefore, the plaintiff's daughter is seen to have been in the picture right from 12 R.F.A.No.626 of 2013 the beginning and in all possibility/probability the plaintiff must have been aware of this fact also. Even assuming that this fact had not been revealed to the defendant as contended by him, the same will not in any way affect the bonafides of the plaintiff or disentitle the plaintiff to the relief of specific performance.

14. In a contract for sale of immovable property, normally it is presumed that time is not the essence of the contract. The Apex Court in Gomathinayagam Pillai vs. Palaniswami Nadar (AIR 1967 SC 868) held that fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. The intention to treat time as the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not the essence in contract for sale of land. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. To find out whether time was the essence of the contract, reference has to made to the terms and conditions of the contract itself. The legal position is clear from the 13 R.F.A.No.626 of 2013 Constitution Bench decision in Chand Rani v. Kamal Rani, 1993 KHC 877:

AIR 1993 SC 1742, wherein the Apex Court held that it is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.

15. In Ext.A1 agreement, time is stated to be the essence of the contract. As held by the Apex Court in the aforesaid decisions, mere fixation of the period within which the contract is to be performed does not make the stipulation as to time, the essence of the contract. What has to be ascertained is whether under the terms of the contract, the parties intended the contract to be performed within the time specified. Here the intention to make time the 14 R.F.A.No.626 of 2013 essence of the contract has been expressed in unequivocal language in Ext.A1. This coupled with the fact that even the extension agreed to by the parties was for quite a short period, would show that the parties did intend to treat time as essence of contract.

16. According to the plaintiff, he was always ready and willing to perform his part of the agreement. He was even ready to pay the entire sale consideration at the time of execution of Ext.A1 agreement itself, for which he had the necessary resources also. However, the defendant wanted time to shift his residence from the plaint schedule property and hence the time for execution of the sale deed was fixed as two months. In the plaint it is also alleged that as per the terms of the agreement, for the preparation of the sale deed, the defendant was bound to hand over all the documents, that is, the prior title deeds, the encumbrance certificate, property and building tax receipts, possession certificate, location certificate to the plaintiff. But after the execution of Ext.A1, the defendant made himself scarce and all attempts were made by the defendant to wriggle out of the agreement.

17. This case of the plaintiff is denied by the defendant who contended that the breach had been committed by the plaintiff as he was never 15 R.F.A.No.626 of 2013 in possession of the required funds and hence not ready and willing to perform his part of the agreement. The learned counsel for the defendant drew our attention to Ext. B6 copy of sketch dated 09/03/2011; and B6 series dated 01/03/2011, which are copy of applications for sketch, possession certificate, location certificate and copy of location certificate and submitted that within about 10 days of the execution of Ext. A1 agreement dated 21/02/2011, the defendant had taken all steps for getting the necessary documents though the period fixed for performance was two months. This itself would show that the allegation in the plaint that though the plaintiff approached the defendant several times, he had refused/failed to hand over the necessary documents for preparation of the sale deed is false. Disputes actually arose on the eve of the execution of the sale deed, that is, on 26/04/2011 when the plaintiff showed Ext. A4 draft sale deed to the plaintiff with gross undervaluation of the property. This was objected to by the defendant. This finally led to the defendant repudiating the contract by way of Ext. A7 notice dated 21/05/2011. Hence, it was submitted on behalf of the defendant that the breach has actually been committed by the plaintiff. Time was the essence of the contract. However, the plaintiff was not ready and willing to perform his part of the 16 R.F.A.No.626 of 2013 contract within the time specified and hence the defendant was constrained to repudiate the contract. In such circumstances, the court below was justified in refusing the relief of specific performance, goes the argument.

18. The reason given by the plaintiff for fixing two months' time for performance of the agreement is not disputed by the defendant when he was examined before the court below as DW1. He was asked during his cross examination whether he would have been able to shift from his residence, had the performance of the contract been fixed on the very same day of the execution of Ext.A1 agreement, to which he replied that he is not sure whether he could vacate so. Further to a question that it was he who wanted time for vacating the house, he replied that time till he purchased an alternate property as per Ext.B5 was required for shifting. He also deposed that as per Ext.A1 he was required to shift on the same day of the execution of the sale deed. ( വവാദദികക വസ കകവാടുതവാൽ അന്നുതകന ഒഴദിഞ കകവാടുകവാൻ കഴദിയുമമവാ എനക പറയവാൻ കഴദിയദില. തവാങൾകവായദിരുന്നു വവീടക ഒഴദിയവാൻ സമയയ മവണദിയദിരുനതക (Q) Ext.B5 വുമവായദി മവാറദിതവാമസദിമകണ സമയയ മവണദി വരുയ. Ext.A1 പ്രകവാരയ അനക തകന വവീടക ഒഴദിഞ കകവാടുകണയ.) Therefore, the case of the plaintiff that the period of two months 17 R.F.A.No.626 of 2013 was fixed for performance of the contract to enable the defendant to shift his residence appears to be probable.

19. The plaintiff further alleges that he had approached the defendant several times after the execution of Ext.A1 agreement to get the sale deed executed. When he along with the two brokers who had introduced him to the defendant went to the house of the latter to collect the necessary documents, the defendant was not in station. The plaintiff made enquiries to Krishnan Kutty, the brother-in-law of the defendant, who is also a witness in Ext.A1. He was informed that the defendant had gone to Dubai. When the plaintiff again approached the defendant on 16/04/2011 after the latter's return from Dubai, he was informed that it was not possible to register the sale deed on 21/04/2011, as the defendant's son had to come from Bangalore and that time was required for the defendant to shift his residence and so time was sought till 10/05/2011. The plaintiff was not amenable to this request. However, he agreed to extend the time for performance till 27/04/2011. Hence time was extended till 27/04/2011 and necessary endorsement made in Ext.A1. On 18/04/2011 the plaintiff accompanied by the two brokers went to the house of the defendant to show him the draft sale deed. However, the defendant asked them to come on another 18 R.F.A.No.626 of 2013 day as his wife was sick. On 23/04/2011 when the plaintiff again went to the house the defendant, he found the house locked. The plaintiff and the brokers again approached the defendant on 24/04/2011. On the said day they were informed by the defendant's wife that the defendant was laid up and so asked them to come after 5 days. Again, an attempt was made on 25/04/2011. But they were unable to meet the defendant. On 26/04/2011 when the plaintiff along with the brokers approached the defendant and showed him the draft sale deed, the defendant objected to the sale consideration being shown as ₹6,33,300/- and he wanted it to be shown as ₹ 25 lakhs. The plaintiff agreed to this demand made by the defendant as he wanted the deed to be executed at the earliest. As his daughter was in Dubai, he decided to take the sale in his name. The defendant then informed him that out of the balance sale consideration, an amount of ₹ 10 lakhs must be transferred through the NRE account of the defendant's daughter who is also in Dubai. The plaintiff agreed to this demand also. He informed his daughter and immediately made arrangements to transfer the amount from the NRE account of his daughter with the SBT, Main Branch Kozhikode to his daughter's account. As soon as the money was credited to the plaintiff's daughter's account in Dubai, she contacted the defendant's daughter 19 R.F.A.No.626 of 2013 for transferring the amount to the account of the latter. However, the defendant's daughter informed her that she had received instructions from defendant, her father, not to accept the money. On 27/04/2011 when the plaintiff again approached the defendant, he found that the defendant and his wife were absent / not present at their residence. The plaintiff thereafter continued to inquire about the whereabouts of the defendant. On 10/05/2011 when the plaintiff along with the brokers again approached the defendant, the latter abused and threatened them. Seeing this incident an employee of a school situated nearby informed the plaintiff that the defendant on earlier occasions also had entered into contracts of such nature, received advance and later on, has withdrawn from the same. The said person is also alleged to have informed the plaintiff that this was the modus operandi of the defendant whenever he was in need of money. He would enter into such contracts, receive money as advance, use it for his own needs and then citing some reason or the other resile from the contract. Realizing that the defendant was deliberately refusing the execution of the sale deed and because of the delay involved in getting reliefs if a case is filed, he approached the District Sainik Welfare Officer as he is an Ex- Service man with a request dated 11/05/2011 to help him out. The plaintiff was 20 R.F.A.No.626 of 2013 advised to again try for settling the matter amicably. But the defendant refused to meet him. On the other hand, the plaintiff was directed to contact one Narayanan Kutty a Chartered Accountant and a relative of the defendant. The plaintiff and the brokers approached the said Narayanan Kutty, who was convinced from the documents shown by the plaintiff that he had sufficient funds in his possession even on the date of execution of Ext.A1. Therefore, as advised by Narayanan Kutty, the defendant agreed to register the sale deed on 23/05/2011. However, when the plaintiff went to the house of the defendant on the said day, his house was found locked. So, on 23/05/2011 the plaintiff gave a complaint to the District Collector. Thereafter he received Ext. A7 lawyer notice dated 21/05/2011 from the defendant raising false allegations that he had committed breach of the contract and so the defendant is repudiating the contract. According to the plaintiff Ext. A7 lawyer notice has been sent on 23/05/2011 with a prior date.

20. The aforesaid case of the plaintiff is denied by the defendant in his written statement. According to the defendant the default was committed by the plaintiff and the transaction did not materialize only because the plaintiff was never ever ready and willing to perform his part of the contract as he did 21 R.F.A.No.626 of 2013 not have the required funds with him either at the time of execution of Ext.A1 or within the extended period of the contract.

21. The plaintiff when examined as PW1 stands by the case pleaded in the plaint. PW2, one of the brokers involved in the transaction, also ably supports the case of the plaintiff. Their testimony has not been discredited in any way. On going through the deposition of PWs1 and 2, it can be seen that there is practically no cross examination of the crucial points stated in the chief affidavit of both the witnesses relating to the case pleaded in the plaint. Therefore, the evidence of PWs.1 and 2 establish the fact that they had in fact approached the defendant several times for the execution of the sale deed. The defendant's only contention that the plaintiff did not have the necessary resources with him for the purpose of taking sale of the property, appears to be incorrect from the documents that have been produced by the plaintiff. Ext.A5 certificate dated 21/04/2021 issued by State Bank of Travancore, Kozhikode Main Branch, shows that there was an amount of ₹ 1,05,31,709/- in the bank account of the plaintiff's daughter. It is true that the amount shown is not in the account of the plaintiff, but that of his daughter. But that is the case that is pleaded in the plaint also. Further, Ext. A6 probabilises the case of the plaintiff 22 R.F.A.No.626 of 2013 that he had in fact made arrangements to transfer ₹ 10 lakhs to the account of the defendant's daughter as instructed by the latter. The plaintiff has let in evidence as per the case pleaded in the plaint. PW2 also supports his case. Merely because Ext.A1 is silent on the aspect that the property is being purchased for his daughter, is no ground to reject the relief of specific performance. Ext.A5 will establish the plaintiff's case that he had necessary resources with him even at the time of execution of Ext.A1 agreement.

22. The court below found non examination of the plaintiff's daughter to be another reason for rejecting the case of the plaintiff. The examination of the plaintiff's daughter was quite unnecessary in this case when neither PW1 nor PW2 had been discredited in any way. As stated earlier, the advance amount of ₹15 lakhs is also seen paid from the account of the plaintiff' daughter which is clear from Ext.A2 certificate. This certificate issued by the State Bank of Travancore, Kozhikode Main Branch, states that Smt.Vani Dinesh (plaintiff's daughter) has a fixed deposit of EURO 109501.34/- with the Bank since 29/12/2010 and that she has availed an amount of ₹15 lakhs as loan from that deposit in connection with the purchase of some immovable property. This document is not seen disputed by the defendant. In such circumstances, it 23 R.F.A.No.626 of 2013 was quite unnecessary for the plaintiff to examine his daughter also because evidence has to be weighed and not counted. It is not the number of witnesses who are examined that matters, but the quality of evidence that matters.

23. Another ground on which the court below rejected the claim of the plaintiff was because he had under-valued the property in Ext.A4 draft sale deed. In Ext.A4, the sale consideration is shown as ₹ 6,33,300/- in the place of ₹ 15 lakhs. In the plaint it is alleged that the amount of ₹ 6,33,300/- was shown in Ext.A4 draft sale deed in accordance with the fair value fixed by the Government. This valuation was objected to by the defendant who insisted that an amount of ₹ 25 lakhs must be shown in the sale deed. As the plaintiff wanted the sale deed to be registered at the earliest, he had agreed to this demand also made by the defendant. The defendant in his written statement denies this allegation and contends that he had objected to the under valuation and informed the plaintiff that the deed should reflect the actual consideration of the property. It was submitted by the learned counsel for the defendant that differences of opinion and disputes between the parties arose when the plaintiff refused to show the actual sale consideration in the sale deed. Referring to the decisions in Herman D'souza v. Pradeep [2018(1) KHC 384] and Rafeeq 24 R.F.A.No.626 of 2013 v. Abdul Bari [2018 (2) KHC 276] it was argued that, as the plaintiff had acted contrary to the terms of the contract and insisted for sale on terms different from the terms of the contract, is an indication that he was not willing to perform his part of the contract; that the plaintiff by floating a fresh offer had given up his original offer and has waived his right to stick on to the original terms agreed upon and that such conduct of the plaintiff could be put forward as a successful defence in a suit for specific performance and so the court below was justified in refusing the discretionary remedy of specific performance.

24. The defendant has no case in his written statement or in his evidence that though he had asked the plaintiff to show the actual/correct consideration of the property in the deed, the plaintiff had refused to accede to his demand. In the written statement the defendant only says that the plaintiff has no right to insist so. He has no case that the transaction did not materialize due to this reason. His only defence is that the plaintiff did not have the necessary funds with him to take the sale of the property, which is proved wrong from the documents produced by the plaintiff. Apart from this contention the defendant does not seem to have any other contention as to why 25 R.F.A.No.626 of 2013 the plaintiff was not ready and willing to perform his part of the contract. From the evidence we find that the plaintiff has averred and proved that he was ready and willing to perform his part of the contract in compliance with Section 16(c) of the Act.

25. Further, the mere fact that the plaintiff before filing the suit had approached the District Sainik Welfare Officer and the District Collector in getting his grievance redressed, is also no ground to find against the plaintiff. It is true that the said authorities do not have the jurisdiction to adjudicate on the issues involved. The plaintiff seems to have been ill advised on the matter. However, that is no ground to reject the relief prayed for. Therefore, we find that the reasons given by the court below are certainly no grounds for rejecting the relief of specific performance.

26. The learned counsel for the defendant made fervent pleas that we should not exercise our discretion in granting the relief of specific performance to the plaintiff in this case. According to the learned counsel, there are no compelling reasons or circumstances whatsoever for this Court to do so after all these years. The price of the property has gone up manifold. If the relief of specific performance is not granted to the plaintiff, no hardship is 26 R.F.A.No.626 of 2013 going to be caused to him. On the other hand, if the same is granted after a lapse of all these years, it would be highly inequitable for the defendant, goes the argument.

27. Section 20(2)(a) of the Act (before amendment dated 01/08/2018) reads -

"20. Discretion as to decreeing specific performance -

(1) xxx (2) The following are cases in which the court may properly exercise discretion not to decree specific performance: -

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or...."

Section 20 of the Act which confers discretion on the court to refuse a decree for specific performance even in cases where it is lawful for the court to do so, has now been substituted and the courts have no longer any discretion to refuse a decree for specific performance. The Apex Court in Sughar Singh v. Hari Singh, 2021 SCC ONLINE SC 975, held that though the amended 27 R.F.A.No.626 of 2013 provisions do not have retrospective effect, the same shall be a guide for the court in the matter of exercising the discretion under Section 20.

28. S.20, as it stood before amendment, makes it clear that the jurisdiction to decree specific performance is discretionary; but S.20(1) says that this discretion is not arbitrary but has to be exercised soundly and reasonably, guided by judicial principles, and capable of correction by a court of appeal. S.20(2) speaks of cases in which the court may properly exercise discretion not to decree specific performance. Significantly, under clause (a) of sub-section (2), what is to be seen is the terms of the contract or the conduct of the parties at the time of entering into the contract. Even "other circumstances under which the contract was entered into" refers only to circumstances that prevailed at the time of entering into the contract. It is only then that this exception comes in - and this is when the plaintiff gets an unfair advantage over the defendant. Equally, under clause (b) of sub-section (2), the hardship involved is again at the time of entering into the contract which is clear from the expression "which he did not foresee". This is made clear beyond doubt by Explanation 2 of S.20 which states that the only exception to the hardship principle contained in clause (b) of sub-section (2) is where hardship results 28 R.F.A.No.626 of 2013 from an act of the plaintiff subsequent to the contract. The act cannot be an act of a third party or of the court - the act must only be the act of the plaintiff. Clause (c) of sub-section (2) again refers to the defendant entering into the contract under circumstances which makes it inequitable to enforce specific performance. Here again, the point of time at which this is to be judged is the time of entering into the contract (Ferrodous Estates (Pvt.) Ltd. v. P.Gopirathnam (2020 KHC 6584).

29. This is not a case where the defendant did not foresee the hardship. It is furthermore not a case that nonperformance of the agreement would not cause any hardship to the plaintiff. Explanation 1 appended to S.20 clearly stipulates that merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of S.20 [P.D'Souza v. Shondrilo Naidu, [(2004) 6 SCC 649].

30. Given the conduct of the defendant in this case, as contrasted with the conduct of the plaintiff who was ready and willing throughout to perform his part of the contract, we think that this is a fit case in which the 29 R.F.A.No.626 of 2013 discretion can or must be exercised. The defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff. No case of hardship has been also pleaded in the written statement.

31. True, it is more than a decade since the filing of the suit in the year 2011. In the light of S.20, the courts have uniformly held that the mere escalation of land prices after the date of the filing of the suit cannot be the sole ground to deny specific performance. (Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146; P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi, (2007) 10 SCC 231; P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] and Jai Narain Parasrampuria v. Pushpa Devi Saraf [(2006) 7 SCC 756]).

32. The Hon'ble Supreme Court in Madana Gopal A. R. v.

M/s.Ramnath Publications Pvt. Ltd. (2021 KHC 6226) relying on Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam, 2020 SCC OnLine SC 825, held that a suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the 30 R.F.A.No.626 of 2013 essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage.

33. Specific performance being an equitable relief, balance of equities has also to be struck taking into account all the relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into consideration the totality of circumstances of each case. It is not necessary that in all cases where there has been an escalation of prices, the court should either refuse to pass a decree on specific performance of contract or direct the 31 R.F.A.No.626 of 2013 plaintiff to pay a higher sum.

34. In K. Narendra v. Riviera Apartments (P) Ltd. [(1999) 5 SCC 77] the Apex court while interpreting S.20 of the Act laid down that, where performance of the contract involves some hardship on the defendant which he did not foresee, while non - performance involve no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant.

35. In the present case, the defendant has neither pleaded any hardship nor produced any evidence to show that it would be inequitable to order specific performance of the agreement. Be that as it may, it is by now settled that a court dealing with a suit for specific performance of an agreement for sale can impose, having regard to the delay in the judicial process and the 32 R.F.A.No.626 of 2013 consequential escalation of price of the property, any reasonable condition including payment of an additional amount by one party to the other while granting or refusing a decree for specific performance. [See Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 5 SCC 481 and Zarina Siddiqui v. A. Ramalingam, (2015) 1 SCC 705]. On a query from the Court, the learned counsel for the appellant submitted that the price of similar lands in the locality would now be around ` 10 lakhs to 12 lakhs per cent. Taking into account the fact that more than a decade has passed since execution of the agreement, we deem it appropriate to direct the plaintiff to pay a sum of ` 20 lakhs more to the legal representatives of the defendant towards the price of the plaint schedule property. We have arrived at the said figure having regard to the benefit of interest that might have been accrued to the plaintiff on the balance sale consideration which the plaintiff would have paid to the defendant, if the sale had taken place. In the event the plaintiff is not willing to pay any additional amount for purchasing the property from the defendant, we are of the view that the plaintiff is entitled to by way of compensation on account of the breach of the contract committed by the defendant, a sum of ` 15 lakhs in addition to the decree for return of the advance sale consideration ordered by 33 R.F.A.No.626 of 2013 the court below. It is common knowledge that the price of the property would have escalated many fold during the last 10 years and the above figure has been arrived at on the basis that the defendant is bound to share with the plaintiff atleast a portion of the benefit of escalation accrued in his favour corresponding to the advance paid by him, reckoning the escalation of the price of the property at 100%.

In the result, the appeal is allowed and the impugned decree and judgment are modified as follows:

1. The plaintiff is directed to deposit the balance sale consideration in terms of the agreement together with a sum of ` 20 lakhs before the court below within three months from the date of this judgment.

2. The legal representatives of the defendant shall thereupon transfer to the plaintiff, by way of sale, the plaint schedule property after receiving the balance sale consideration deposited by the plaintiff as directed above. On the failure of the legal representatives of the defendant in doing so, the plaintiff would be free to get the transfer deed executed through court.

3. In the event the plaintiff is not desirous of purchasing the property 34 R.F.A.No.626 of 2013 for the aforesaid price, he will be entitled to realise from the defendant the advance sale consideration with interest as ordered by the court below together with a sum of ` 15 lakhs with interest at the rate of 6% per annum from the date of the judgment till the date of realisation.

4. The plaintiff will be entitled to realise the costs of the suit and the appeal.

All interlocutory applications, if any pending, shall stand disposed of.

Sd/-

P.B.SURESH KUMAR JUDGE Sd/-

C.S.SUDHA JUDGE ami/

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