Karnataka High Court
S Subramaniam vs R Babu on 18 December, 2009
Bench: K.L.Manjunath, B.V.Nagarathna
IN THE HIGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 18TH DAY OF DECEMBER: . PRESENT THE HONBLE MRJUSTICE 4- _ " AND1__ . V THE HON'BLE MRs.JUs_TIcE'"B,V.NAG.Afe;ATHNA; R.F.A.NO."i5 64 /12003-. A 1 BETWEEN: " in ' ' K SSUBRAMANIAM S/O LT SAD1YAN_ MAJOR R/A # 2683., =4THf _(:.;ROss_, 1gTH- 1»/1:4 . HALIIS S'iT'AG.EV_ ' BANGA;OR£;g5€;4Q:V_Q38,_"' " " ... APPELLANT (By Sri: M HOT,LAgsz.. ADVS.] ' .:."1" R G' S HAMACHANDAR R AGED ABOUT 55 YEARS R'/A-.#"'2, NEW ANDHRA BLOCK ,. LAXMIPURAM, ULSOOR 13.AiNGALORE--560 O08 H GAYATHR1 BABU W/O R BABU AGED ABOUT 41 YEARS R/A # 2, NEW ANDHRA BLOCK LAXMIPURAM, ULSOOR BANGALORE--56O O08 ... RESPONDENTS
{By Sri: AMARESH A ANGADI, ADV. FOR C/R R-1 AND R-2} RFA FILED U/S. 96 OF CPC_-*";'&(D'{AIl\T$lT'- JUDGMENT AND DEGREE I)'I'."22«_l 1,103 IN O.S.NO.10005/95 ON THE FILE THEfivX;'{VIiI.I'ABD'L. CITY CIVIL JUDGE, MAYOHALL UN1T,*.eANGALoRE--,~ ..(cCc:"H..-V2'siV DECREEING T}-IE SUIT F0R.s1§Ec1F1r:_, 'PERF0RM.A1§Ic£;. This RFA having.beenVAtheai'd and reservedvvvgfor orders on this day, the NAGARA'.IHI'.JA J, ,pr._Qn_Ou.nced the following:«« This5appea.l"is"ifiledebytlltliie*defendant by challenging the Judgment _vDe:eflee:D:passed l.i§i"'e.s.No. 10005/1996 by the Mayo Hall Unit, Bangalore.
The said was fi1ed'*°l:)y the plaintiffs seeking specific 0fADa'r1""*agreement dated 12.8.1993. The trial ' the suit and being aggrieved by the said Jzzdgnaenttldand Decree the defendant has preferred this D . V. aPI3eal.l V .5 '~.
4%. D For the sake of convenience the parties shall be V hmteferred to in terms of their status before the trial Court. ?>..
3. According to the plaintiffs '_ the defendant is the absolute owner of the property bearing No.2683 situated in HAL If Stage, BangaIore~38, more fully descritnecfin the schedule and he had acquired the said site Development Authority by a registered 8.3.1989 that as per sanctionecifplalni dated' .i:5';3fp,.19s9 he 7 had put up a ground floor and firstfloor buildji_ng.* Development Authority had 'da.e:livered. p--osses_sionp ofthe site as per possession certi_iicatei"datv_ed According to the plaintiffs the plarties _.yme"ta..v"'through advocate Sri.H.N.Srini_vas' Anand ands the"s'ale agreement was reduced to a VflRs.7,1O,OO0/-- and earnest rnoney_of paid on 26.6.1993. That another sum of paid on 12.8.1993 and further Rs.2,2O'O','G--0--0/-- was paid by way of advance by ' .-llB:.E_2;.,i_993a,ifthereby total advance amount of Rs.4,70,000/--
"wast 'jflizcording to the plaintiffs it was agreed that the balance; sale consideration amount of Rs.2,40,000/-- was to if ible'«,paid at the time of registration of the sale deed. The fgdefendant had to obtain the necessary Income Tax clearance 'certificate from the Income Tax Authorities and the defendant had also stated at the time of agreement and assured that the schedule property was not alienated or 55'.
encumbered, but that he had taken a loan from the LIC of India for the purpose of construction and the defendant had promised to discharge the said loan amount outhhof the second advance of Rs.2,00,000/- to be paid and that the defendant had also promised to ass:ignt V' of the plaintiffs the amount paid:'bj} 'tl1e_tenantAlV:i'1i.a_sum."of T Rs.1,50,000/--.
4. According to the plaintiffs_}'~ defend-ant' after the clearance of the loan 'secure the original documents of title.,ancf._' the plaintiffs. The defendants lo.anlcum--additional advance of Rs.2,(l0p,(l00/rover the documents of title and discharge°certifica._tethe loan. The plaintiffs have stated wereffreadgwand willing to perform their part of the ' ;cont.ra::t'andaocording to them the sale deed wasirqegistered 'in their' by the defendant.- That the ground floor of the schedule property which was in occupation of the if ideferndant and the first fioor of the said property was in Afoocupation of a tenant and that the ground floor was vacated V "lay the defendant and possession was given to the plaintiffs after entering into the agreement and since the ground floor was in dilapidated condition, the plaintiffs were permitted to iv 2' carry out renovation and repair Work and according to the plaintiffs a sum of Rs.50,000/-- was spent for the same. But the defendant locked the doors of the ground floor and prevented the plaintiffs from using it and them fact even failed to obtain Income Tax clearancejcevrtificattet' and he did not come forward tom execute f«s_a_le":Vdee'd. According to the plaintiffs, ~ den:4a'n.ded, Rs.18,00,000/- for the S8_]~fL:\"~~K,«)\f then. .sche'c_1ulew'premises whereas the plaintiffs mvas al.l"a1ofnglVre.ady and"Wi'1Vling to pay the balance sale considetration.lof:'Rs'Q -- on the date of registration .5_ale;_'deed;:: _Ttia_t.._the";plaintiff sent a legal notice 'dated the defendant, but the defendant did not cornplv and therefore, the suit for specific pe'rforrnar;.ce'~.afnd"fpermanent injunction Was filed. ' is'e.rv1ce of notice from the trial court, the 'defendari~tf: appeared and filed his Written statement adhniittivnghvthat an agreement of sale which the plaintiff was "c=nt_erevd' into on 12.8.1993 that he had received a sum of '"'Rs."7:0,000/~ as advance on the said date and that the sum of if ""Rs.2,00,000/- was received as the second advance on 12.8.1993, but the plaintiff had failed to pay a sum of Rs.2,00,000/- towards the third advance as agreed on or ta c M6...
before 30.9.1993. The defendant had handed over the original documents to the plaintiff to enable the plaintiffs to produce the documents before the HDF-'C or other financial institutions to avail a loan and colnplete the traiisaction. The defendant denied that in part perform*an.cfe'__'p_olf Jtlie agreement of sale dated 12.8.1993, posseSSi0lf1~--..wasp'given the plaintiffs as far as the ground floor' the defendant had spent huge surns of money for f'its"'.re'pai1"ag and renovation. According to 'Vthpeldefendant',' the plaintiff was never ready and willingpto hi's..ppart'of contract. In fact the plaintiff did not with him for paying the if The defendant had agreed to seltthe. fi'or_ffa.:llesser price as he was in urgent need of fu"n.ds"for'setting"up his son's business. However, in thfe9.abs:en.ce of Vltrie----plaintiff coming forward to complete his 3 .»part_of:tl3e»transaction, the defendant was put to loss and 'Lordship'.n*f'.I'j_ V 2 V» " 9n the above rival pleadings. the trial court framed the following issues:
1) Whether defendant proves that plaintiffs failed to pay Rs.2,00,000/~ as further advance on or before 30.9.93 as per clause~3 of the agreement dated 12.8.93'? jg /'f.
3}
4) _l7s Whether plaintiff proves that he was ready and willing to perform his part of the contract? Whether plaintiff proves that the defendant handed over original documents of title to the plaintiff in part performance of the agreemento_f_ sale dated 12.8.93'?
Whether plaintiff proves that he » is possession of the ground floor of -the property?
Whether plaintiff proves that Rs.50,000/-- for carrying out renovation,'repairsfi. and painting €llC., to tphe_grourid_ floor'? A . Whether the plaintiff proves that"the"ideferrdant locked the doors of ground "t3.oor_." and prevented the vplaicntiff fron;..._mai=:ing use of the said ground floor "as. c'On'te1.idedrV:lintpara--7 of the Dlaint'? - 1 Z'-.VWhethei",~plaiinti'ff°vp_roves that the defendant 'demaIV1ded*Rs.Vf2' vlakhsV.vin excess of amount as per agreement o'f.'sale--._ to perform his part of the contr.act'?p E\?ff\'TnetherAAV"'defen'dant proves that the plaintiff 'misei"a_bly failed to perform their part of the 1 'ieont1'ac't----_and that they did not pay as per the
9)~{ ll}
-a.greeme.rit, as contended in para 8 of the W.S'? _'.3Vl';€tt"l'1Ae1' the defendant proves that he agreed to , sell the suit property to the plaintiffs for a lesser price since he was in urgent need of money as contended in para~8 of the W.S'?
Whether plaintiff proves that he was ready and willing to pay the balance amount of sale consideration within the stipulated period'? Whether the defendant proves that time was the essence of contract and that plaintiff agreed to pay and complete the sale on or before 25.1 1.93. failing which the defendant IS entitled to forfeit 9% Q' V8"
Rs.70.000/- paid as earnest as per clause 14(3) of the agreement?
12] Whether the defendant proves that the plaintiffs':
failed to furnish the draft sale deed to_"'th_e. defendant so as to enable him to obtain income , ' tax certificate to convey the suit property"? if f' 13] Whether the plaintiff proveathatphefusold"h.i's car]; . to pay the initial earnest s-;um_to jiihe defendant f and that they borrowed 'further amount _ security of car garageybyé paying heavy }}1'1't"Cr€St?
14] Whether defendant proves' that hoand' plaintiff ought to have applied _"to"«.the Ingome" tax authorities undei*~._Ser.269of,U;--L.Act and U/s 269 of UL Act for§.o}btaining'»»no objection certificate from Income.'ta:>k: a'11th'-Qifitlés in terms of the Income T*I"a§§"aVutho;V'it_iesV.iny terms of the Income taagby1'Act *19E_Si--~as"cont.end_ed in para--12[a] of the'xv.s3;3__-.i_ ~ 4-
15] Wiiflihefd¢fEndafit..._pr'ovies that the agreement of salehas. bec:om'e«voi.d and that this court has not jurisdiction totryfthe suit'?
16);" " lVVhet1"i'er_ plaintiff proves that he is ever ready ;a_I1d.__ willing'v~ts«'perform his part of the contract and that they approached the defendant time "and.v4"%lgain to pay the balance amount of A "co'nVsidera"tion of Rs.2,40 lakhs?
17'). ..__W1"iei".her the plaintiff is entitled to the relief .. prayed for'?
W '» 1;8'}--..A What decree or order'?
In support of his case, the plaintiffs, examined themselves as PW.1 65: 2 and examined PW.3 to 5 and got marked Ex.P1 to P4 While the defendant examined himself as f/;'.
,9"
DW.l and another person as DW2 and got marked Ex.Dl to D8.
8. On the basis of the said evidence, answered issue Nos.l, 8, 9, 11 toWl.5 in the"ne_gative;,issvue' » L' Nos.2 to 4 in the affirmative as Vwell::'as :'iss'i1_e'«.i\ios.lEl;f»,,1ACi',igl6 and 17 in the affirmative and«..i_ssue'-Nos.5 Eiivill"/"Av.t:{.3a.rtly..3in lthei"
affirmative and decreed the the «.plaintiffs. Being aggrieved by the saivd-..;..Jl:L1dgn1e;ntll.a--n'd..Debcree the defendant has preferred this appealtg 'V
9. "haej;re learned counsel for the appellant and the learned 'c'o:_un's«el"forthe respondents. is subrnittedlon behalf of the appellant that he had ' .V.a'greAe'd:to the suit schedule property only because he was .'it1"-widirel of funds to set up his unemployed son in businesslthat in order to meet his urgent necessity, he had ~ agreed to sell the schedule property at a lesser price. As per Agthe terms of the agreement of sale, the entire sale transaction had to be completed by 25.11.1993, but the respondent had failed to comply with the terms of the said agreement. i.e., though the respondent pleaded that he was fizz ready and willing to perform his part of the contract, there was no material on record to show that he had thebalance consideration and was ready to pay the same. in--'jfac_t";.pthere were no documents to show that the responden.tT'hla'dihtheqfl necessary funds to pay the balanceiisale ' p. the mother--in«law of the first respondent get over the lacuna in the 'ev_fi'd.e11ce A'ofpP'N_. there!' was no other corroborativeivewdencel "with_:§regard to statements made by T ."£'I4i.erefc;re';'~according to the learned counsel for theappellaiit'»iIi"thelighttlof 'Judgments of the Supreme the respondents did not havethgiineceislsary.fundsulfor"completing the transaction and hence they ready and willing to perform their part of the..obligation: l'~I5le has relied upon certain decision p.artic}ilarly (il99e;....4 sec 526 and [1978(2) sec 115 to ' there is no documentary proof with regard to .'availabi1ity_ oflfunds to pay the balance sale consideration the1'1.tl'1e suit for specific performance has to be dismissed. it » i4fe«..had also contended that the grant of specific performance the instant case would be in equitous since the appellant had agreed to sell the property on account of his urgent financial need to set up his son in business. But since the respondent failed to pay balance consideration in time the % _ A entire object with which the property was to be sold was frustrated. That for the appellant the schedule property is his only shelter and house and therefore, granting-afdecree of specific performance would be wholly this regard he has relied upon _Se.c,t_ion Relief Act.
11. Per contra, learned couriselfor the«_respo§ndent has submitted that the Ju'dgineI'l_t and 'Deveree..ppassed by the trial court does notcall for"anyjinterferen_ce"inthis appeal in as much as it comply with the terrnsland asl'_"a"resu1t the respondent could not ail/ail' the l.oa'nV'Zat°an"appropriate point of time that there was no delay' on of the respondent with regard to of the'"bal--ance sale consideration. In fact evidence ' let in to show that they were ready and willing "for"lfpayriiejnt:' of the sale consideration. It is only the appellvaritvwho did not show any interest in completing his 2 of the obligations and also executing the sale deed in Algfavlour of the respondent, that the trial court has rightly ' answered the issues raised in the instant case which are as many as 18 in number by appreciating the material on record in its proper perspective and hence he has submitted gs.
agreement and a further sum of Rs.2,00,000/~ was paid. All put together, the plaintiffs had paid a sum of - and the balance sale consideration to be plaintiffs was Rs.2,-40,000/- at the time of the 'V . sale deed, which according to their agreern-e'nt":v....,_dated 12.8.1993 (Ex.P~»l) was to be on or before 25.'iei1*__.Ai9_o3._j'; it also not in dispute that the defendant hadygllclezared the loan amount outstanding the :IaIvCj«._Vofvl"india after receiving advance of tjriehlplaintiffs and had delivered the ;:lo'ctg1ii'1en':i's of ti'tle"of.th'e" schedule property.
14. plaintiffs that they were ready v"and.wiliing* their part of the contract. But the defendant has "g-flen.ie<l:'i"'"the said aspect by contending that thefgalalintitls diiiiio-t'Vhave the balance sale consideration . /- and that they were not ready and willing to part of the contract. The said aspect would be considered as point N01. Before considering this aspect if the matter, it is necessary to extract the relevant portion the agreement to sell the property dated 12.8.1993 " m{Ex.Pl}. The reason for entering into an agreement to sell the property is stated in the following manner in the recital of
2. the agreement: /7* alglw "WHEREAS the VENDOR being in need of funds (C1) to DISCHARGE the LIABILITY OUTSTANDING with the LIFE INSURANCE CORPORATION INDIA, in respect of the aforesaid Property and (b) to PROVIDE himself I" It for his domestic necessities, has to SELL the aforesaid ImmovaE;3JteIIPrOper'ty. -- = _
15. Clause 3 of the agreement :'=.aI'so states payments made and receiveIcI--_the AdCf_'€Il:'l§I1'1:t sum of Rs.70,000/- on 26.2.1993 end:'a--.sum of "Rs..2,o:3,00o/W on the date of the agreetfient. with the third advance consideratiorxtoI'be¥paid.t'whieh«e;7e'ads as follows:
agree and undertake to 'PAY. % Unto' AI.ijVth:e"1~..j?;3,*NDoR, a further SUM of Rs:2,OOv,Ooh/;'._(RLI}5EES TWO LAKHS ONLY7. as I and by of THIRD ADVANCE, for the _ I E"PftrRC1§.rAsE the SCHEDULE PROPERTY, ON .- I . 1993,"
regaf;1..e::to the balance sale consideration to be paid. C1a'1.lSEa'1.4._- reads as follows:
"The said PURCHASERS shall PAY unto the said VENDOR, the BALANCE of the SALE CONSIDERATION, at the time of the registration of /1» ¢s the Sale deed, in their favour. before the Sub Registrar, Shiuqjz'. Nagar, Bangalore."
As per Clause 5 of the agreement, the parties had to complete the transaction on or before 25.1l..--l'Q93 in Clause 5 in the following mannerzl "The PARTIES hereto MUTUXSLLY TRANSACTION of SALE', i shall 'be C0MFLE'I}':',D,V on; or before the 25"' of Nozfierriber, 1993. it As a trade preconditionitol' transaction, the Vendor viz., the e:_lefen'dant*:;tiad««..agreed'»:.to obtain necessary clearance the"-1*ncome--tax authorities is as stated: in " clause "as follows:
speefiically agrees, assures and "V undertakes' to 'obtain at his cost, NECESSARY ' icLE;A,RANcE"'CERTIFICATE from the Income Tax _ for the sale of the schedule property injeuour of the Purchasers."
.AWithz iegard to the encumbrance of the schedule property ll --..VVclau;se 9 clearly states about. the LIC loan which the VA .. _..e1efendar1t had to clear and a sum of Rs.1,50,000/-- which the defendant had to pay to the tenants of the first floor and the schedule property which reads as follows: [Q //:t _ 15 _ The VENDOR fiirther declares and assures unto the PURCHASERS that he has not alienated or encumbered the Schedule Property in any or to any extent whatever, Except to the 'V' {a} Loan outstanding withmthe L..-.';"C'.'"Qf=India;_ which shall be duly Discharged' from out , Additional/Second Advance Of ..1eRse,,2,00;'0o0[;z_ {Rupees Two Lakhs Only) Paid this day,'vos"stated. above:
(b) Amount of Rs.1,50,,00O/' {Rupees 2 One Lakh & Fifty Thousand"Onl.y,' remaininlgiwith the Vendor, as uiagg of"~--.Se.curi_ty Deposit in connection with the.e_'Occuf)ancy/ease--in favour of the Occupant of...the'-first' Floor o"fi,Vthe Schedule Property.' Lajihichj: "shall" be duly Ass1gn.ed;}1i717rarisferi'ed in favour of the Pure-ha"sers.,v~--uvith._the-.Consent_of the Occupant of theffirsit Floor; be mutually agreed by Ciause vspelaks" failure on the part of either pe?141jt3/" in perfortriivhg the contract and the liberty to enforce it .the seek penalty from the other party. Clause 14 . iS'_eXtr:i<':t,ed "follows:
"Thei~,uPAART1ES here to further MUTUALLY AGREE the TRANSACTION shall be completed within the stipulated period stated here in above, failing O which EITHER PARTY is ENTITLED to ENFORCE this CONTRACT of SALE, as and by way of SPECIFIC PERFORMANCE, at the COST of the DEFA ULTING PARTY. ALTERNATIVELY, the 3;/»« I M1""]_ PARTIES hereto are M UTUALLY ENTITLED to the PENALTY OPTIONS as STATED ........
The VENDOR f1:rthe*r agree, assure and undertake to HAND OVER/ FURNISH Unto PURCHASERS, the DOCUMENTS of ORIGINAL, relating to the SCHEDULE PROP.F2RTi'fr'.j' " , immediately on RECEIPT of the "
L.I.C. of India, authorities ....{u_)_herein"'"i'hey'V"are,V presently deposited), in corlnectionfjyuujith the .' taken from them, after fully anti" it satisfying the Loan from 'them, period shall not Exceed,:""in_ any case.__beyv(:3>nd :
151" of Septen1ber;'~ .1 993. VA --. it conftmis that he shall put his be"st_4ej"forts.'toAspeed up delivery of the title deeds " relating .. itovl the Schedule Property, unto the A E i,Pur'chasers,Htofacilitate the Purchasers, to obtain ,, ., V the Purchase of the Schedule Property, H.D.F.C or other financial nsatuttons / Agencies Etc. , .
The Vendor further confirms that the Additional/ Second Advance of Rs.2,00,000/» (Rupees Two Lakhs Only] is paid this day, as aforesaid, to enable the Vendor, to discharge the amounts outstanding with the L.I.C. Authorities. % ../v It is also noted that clause 15 speaks of the undertaking given by the defendant to deliver possession ofthie property and the said clause is as follows: _. ~ The Vendor further specificallyAA4pdg;;rees:.'A_'assur-eeltipll and undertakes to oEr,rVER;'.PossEssi;3i\7 of the''~ ' Schedule Property, to "bet sotctv-sjurtto""t31e Purchasers. in the mannerstctted he'reu_nder:f% Ct} Actual. Phys1'co,_tfand_ V;ucortt_'p'Possession of the Ground Floor, on the date the .re_§jt3té'ation of the Sale deed' infatfour theAPu_rchasers; b} Po.ss'esstoln--:'_ of 'the First, Floor, through same. from the Occupdr--it--'l..ofi _the:"First' Floor, & as mutually decided' agate Parties';
the staid----agreement itself there is receipt dated ' a sum of Rs.1,00,000/- and another receipt "satedVle".j12';'i993 for a sum of Rs.1.00.000/~ which are markeld; as Exs.P--2 and P3 respectively. Ex.P--4 is the reply if dated 12.1995 to the legal notice dated 19.9.1995 issued if " ionfbehalf of the plaintiffs.
17. In support of their case PW} who is plaintiff No.2 in her eXaminatior1--in»chief while reiterating the details of 5% _ _ payment made to the defendant has stated that the defendant had availed a loan from LIC and had deposited the title deeds and in order to discharge the loan with LIC and get back the original title deeds the advance moneyel..paid by the plaintiffs was utilised and in Novembe;';"'«l19Sj9_{'5l§. ;_.the defendant gave the original title deeds. s_Lii:ii"o£ Rs.4,70,000/-- was paid and thejiloalance i paid at the time of execution of J['f1€."d€€C1 aftcrvlVgettii;1g'ithelg lncome Tax clearance. According toVPWV1c,--v'the;: defendant delivered vacant posses_si0i:if.'"gf' i..¢;'hfle.<Vy'VlgrQundvfloor and the plaintiffs got it repaired ltrierea.-ftehivx.th.e'_'..defendant locked it andlreiuseld to iilalloilvtlhem tolenter the property. That the tenantvvas in fii's«t:floo.i~' who had paid a sum of Rs.l.5 lakhs to the defeiidantarid according to PW1. the plaintiffs agreed to V"tal:--e«'the property subject to attornment of ' lease in their favour. When the defendant was "asked completion of the transaction, the plaintiffs were. that he would handover the keys provided the if plaintiffs pay a sum of Rs.l8,00.000/~. According to PW1.
Atsince the building was in a dilapidated condition, a sum of Rs.80,000/~ was spent for renovation of ground floor and got the entire property painted and the damage to the wall was repaired. According to the plaintiffs. even after receipt of 3/:
rx EX.P~«él, defendant did not execute the sale deed in their favour. PW1 is willing to deposit the balance amount in the court which has been kept ready.
18. In her cross~examination she has"
defendant declined to accept thegthirda Ainstallrne-nt"
her that he would accept .the__ sarne. _ after e'lea.ifanVce lof dues. She has also admitted' the loriiginallvfdocuments furnished by the defendant :..1_;:"993 for Which she had issued acknowledgement ipisas Ex.D--1. She has also sta_ted};t1.ia_t..sheihad lonly""rnad'e oral request to the defendant"t<:{jp;c'alll to'_lle5<'ecute the sale deed and that she had no that she had kept the balance amount ready by-_ and that she had paid amounts Srinivas 'Anand (Advocate) to purchase the stamp S .-paper.' 1 19: _She_has also stated that she has documents to show that spent Rs.80,000/-- to repair the ground floor. She lhajlsfllso admitted that legal notice dated 10.1 1.1995 sent by __the defendant and the postal acknowledgement which were marked as Exs.D--2 and 13-3. She has denied that plaintiffs are not ready to purchase the property and that defendant «':» ,-
M 21 M does not own any other property or that she has not kept the balance amount ready.
20. PW2 who is piaintiff No.1 in his examination--in--chief has stated that Advocate, Sri. Srinivas Anand, introduced defendant to him and that since the original the property were with LIC after a sum of paid by the plaintiffs, the LIC io'an"was 'the 9 T defendant and the documents wferefgiyfen if time, the house was in a dilapidated "co_nditio;_n 'after the defendant handed over the.i-'keyps-- of__the «suit property, he renoj?ated'ethVe_ ofuthev same and that the tenant was atfirst the defendant had taken a sum of R_s.1.50'=.lakh that the plaintiffs would pay the to the 'tenant and the remaining sale consideration V to the defendant. That after repairing the f' the property, the defendant locked the house and ..too._kVaway the keys. That a sum of Rs.80,000/- was spent on the said repair. That though PW2 stated that he fgwould pay Rs.2,00,000/-- more, the defendant demanded H Rs.18,00,000/-- for the suit schedule property. When the balance sale consideration was offered to the defendant to complete the sale deed. he did not do so. That amounts were /Ea M 22 M paid for stamps for completing the sale deed. According to PW2 he is willing to pay the balance amount for execution of the sale deed.
21. in his cross--examination, he has stated not pay the third installment on 30.9.1993 sinc_elv_fthe' did not give him the papers by the dated jalsie) stated in the cross--exarnination that he does.'t.l,n.ot have any document to show that he 2 .50 laiihl'inf-hisfaccount to pay to the defendant. 'He pdeniedfthllat he does not have any balance sale to be paid to the defendant"or{f,thatfVhe to perform his part of the obligation under agreernrsnt.
22. PW3_ is the 4liTI1O'l.Llfilii.i;--I"--i1'l~laW of the first plaintiff and rnotheriiof thel"sec:ond plaintiff who has stated that she knows theftransaction between the parties and that the .det'endaf1_t,l___ha'd"'given the keys of the suit property to the plaintiffs "after receiving the advance and the plaintiffs had ..spentl'rnoney for the renovation of the property, but the l'z_ld'efe-'ndant forcibly locked the schedule property and later * Jdernanded Rs.l8,00,000/--. She has stated that the balance consideration which is to be paid to the defendant is with fig' V _i23_i her and that she is ready to pay the amount at the time of execution of the sale deed. In her cross-eXarnination, she has denied that the suit property was not renovated.'loy_ the plaintiffs or that the defendant had not taken_ayyayi.l_tl"ie:ls:ey's or that she does not have the balance con.sider§1tion: amount.» to pay to the defendant.
23. PW4 is a person known tofthie the defendant, has spoken about__t_h:evVtransactionyandilhas stated in his--examination--in;nhief: poi' affidavit that the ground floor was vacated» and first floor was occupied by tenantlland fullllydarnaged and not in a good condition the plaintiff that it is not worth Rs.7,00,9@Ol/'-- , V lB._uti~the...lplaintiffs had stated that the area is relsidvential area and hence, they agreed to ' ,.p'urcl"i.ase;'th:e schedule property with an intention to get the " repair Worjlclydone and alter the house according to vastu. He stated" that on 26.3.1993 on the date of the inspection of the if if placegthe plaintiffs advanced a sum of Rs.70,000/- towards sale consideration. That in the office of Sri.Srinivas Anand, Advocate, the sale agreement was executed on 12.8.1993 and he had signed the agreement on that date as a witness and his signature is at EX.P--2[g). That on
5. M24, 30.9.1993, when the plaintiffs and Sri. Srinivas Anand, Advocate, Went to the defendant with a sum of Rs.2,00,000/- by Way of third advance, the defendant pleaded ii-n_:ability to pay the loan amount and get the original and stated that he required sometime to get the~'loa:n and get the original document. Thereafter:4.the"de'fe.nd1ant handed over the originalyfdo_cumen_t" on possession was handed ovef"'i'c;_{'15.121993'onlgwhich day the defendant receiv'e_d"'~«a :«.R.sv;'l«,.O0,00(j/ by way of Cash and another supnfil on 16.12.1993 through pay" fdr Which'"'rec'eipi's..:he'had signed as a witnelssf" hadptherefore, received a sum of carried out the repairs of the ground poiitions including kitchen which was badly daihaged __andhVrep1aced the tiles and painted and suitably ' ;.alterevd4V'andj"'repaired by spending a sum of Rs.80,000/-
"ivliichVrepjairr1'vvas completed in May 1994 and that they had engazged s Savita Furniture and Home Repairs and after 2 Althea renovation, the defendant demanded higher Altconsideration of Rs.18,00,000/- in place of Rs.7,00,000/-- whereas the defendant was requested to register the sale deed after taking the baiance sale consideration amount of Rs.2,-40,000/-- as agreed, where as the defendant locked the 1/3:.
,25_ ground floor portion and forcibly dispossessed the plaintiffs when the plaintiffs had paid their hard earned money to the defendant with an intention to have shelter of his Vo\}vn';c._fi'hat the proprietor of M/s Savita Furniture and _n'om¢~ who repaired the schedule house, of October, 2002. In his cross~exar1r1ination., dhgeihas 4stated..rAth,at ' the first plaintiff is the son~;in--lavvA_o'f his £1e"1~.a:s_ denied that defendant did not.:handover_ 'possession of the ground floor on 15.i§?,;~~1g_993"or:Athat.Tpiaintiff renovated the suit property. He has defendant had locked the su'i'i'««g.rpfropertyg was made by the plaintiffs' 'and thetamoudntvtvvas paid to Sri. Srinivas Anand,gAdvocate:i"or stamp paper.
Murugesn Swamy has deposed as PW5 as a ' .i.p"ersgon_Vwhoiddwas attached to the Proprietor of M/s Savita Home Repairs, Uisoor, Bangalore and had carriedion the repair in the ground floor of the premises. He 2 V. Adhasyalso given the details of the repair in the month of June and that the defendant used to visit schedule premises 'to see the renovation work. That in the second week of June 1994 or in the evening hours after work the defendant had locked the premises by removing the earlier lock and that
---27-
26. On the basis of the aforesaid material, it is necessary to consider the readiness and willingness on the part of the plaintiffs to perform their part of the contract. 'I'he':capacity of a party to perform the contract includinggthej;finan;ci~al capacity to pay the purchase price is conduct of a party would indicate if the contract. While appreciating'readiness on the part of the plaintiffs, regardfto-unonivpayment of the requisite sale consideratiolngr tobeappreciated IS the fact that the plaintiffs' to pay the sale consideration.'dinporder"to"p:proVeVf"that the plaintiffs had the requ1.sitei'bal'apnceifisaie"'consideration, it is not necessary that the said fact' h.as*:t'o« by documentary evidence. It is sufficientfrom the Aoralv.--eVidence that it is established that thee. plaintiff .... the funds to pay the balance sale ' ;cons1dVeration*..__En this context it is necessary to see that the 'total consideration for the schedule property was Rsfli and a sum of Rs.4,70,000/-- has been "aceepteld by the defendant and out of which a sum of l"«i2sl..l'A2A,00.0O0/«~ was utilised by him to pay of the outstanding if "debts with LIC of India and after obtaining the documents of title to the schedule property for the clearance of the said land, the said documents were also handed over to the §« Wggm plaintiffs by the defendant. According to PWI, the plaintiffs had the funds to pay the balance sale consideration and according to PW8 the mother of PW2, she was ready-...yto._pay the said amount at the time of registration ofclieedv as she has the requisite fund. In fact, PW:&"whof_vis'V'one.o1'the . witnesses to Ex.P--1 has stated that :l'1e.."I°ldyo':Vate Sri. Srinivas Anand requesteoflthe defendant: 'to; register lthe"
sale deed by accepting the vbalance sale: consideration of Rs.2,40,000/--. But --t.hei-- defe_r_1r_ian.t who did not come forward to do so. I I I
27. On other established that out of Rs.7,oo,o0o'/i._,V' Rs.4,70,000/- which is a substantial. portionffopf sale consideration had been paid 'itheffyplaintiffs 'an-dfia balance of Rs.2,40.000/-- only had to I time of execution of the sale deed. In fact, in .'tefxns oi'.fC_laeuse 14 of the agreement to sell, the defendant was ..toAhandover the original title deeds to the plaintiffs after reteiving the same from LIC of India on clearance of the A"§o1'.1tstanding with the help of the advance amount paid by the I plaintiffs and the original document was to be made use of by the plaintiffs, by producing the same before HDFC Bank or any other financial institution so that the loan could be 5, ,/f.
availed to pay the amount to the defendant. In fact, Ex.P--1 is the acknowledgement of the title deeds by the defendant to the plaintiff, on 20.11.1993, which was only 'five to the date agreed by the parties to complete.utransaction, Although the agreement stated that title ' handed over by the defendant to thehplaintiffs-V.tofobtaignuloariit for paying the balance sale co'n:sideration_ same was also handed over, onltheefplaintiffs to do so if he could = other manner.
Therefore, that Vayfailed by the plaintiffs from even after the receipt of would not imply that the plaintiffs' had they had failed to make use of the title the loan. Since it has come in the that "F"W3.,...tne mother-in--laW of plaintiff No.1, had ' ,,the. requ*isi<t.e" funds to pay the balance sale consideration. a "It, also contended by the plaintiffs that they were put 2 Afiiixpossession of the ground floor of the schedule property that they had spent considerable sum for carrying out repair and renovation work, but subsequently, the defendant locked the ground floor and prevented the plaintiffs from making use of the ground floor. It is seen from clause 15 %.
zf;/7* n30n that possession of the ground floor was to be handed over only on the date of the registration of the sale deed. But it is the case of the defendant that possession of the grotfnd floor was not handed over to the plaintiffs. Howe§ver;p&'pp13:lN's.:.l",',2 and 4 have deposed that the defend_a;1f!""..Vyhanded ffoverffl possession of the suit schedule jpropiefrcty to on if 15.12.1993 and the plaintiffs 'carried o.Lijt.'I'e:pairf."'andpp alteration work and PW5 haspstated that"th.e plaintiffs met the expenditure for eailterationflanid rep.air andthereafter the defendant locked the pfrernisfesff to this evidence, the defenda_nt':ha-s placied«.Va:iyfi~eyidfence to contend that the grolundyiflioorff not-in a'.di'Eapidated condition and it did not that possession was not handed over to plvaintiffs..Vor«..t'hat no repair work was done by the p_laintifi's in the prerriises. in fact, in the cross--exarn1nation ' ;fo*f.eVPWVsL'lf,"Qfand 5, nothing contrary has been elicited by the therefore there is no reason as to why the contention of the plaintiffs that possession was handed over " tioathefitn by the defendant and that they had carried out "'i.f:=,pair work in the ground floor of the schedule property and "thereafter, the defendant locked the ground floor and demanded higher sale consideration cannot be accepted. 5%» ' 9 _ __
29. In fact, it is the case of PW1 that the defendant had demanded a sum of Rs.18,00,000/~ and therefore, he had refused to execute the sale deed by stating that the..pr_iceV_has risen unless the plaintiffs paid a higher execute the sale deed in favour of the plaintiffstlifij la. has also stated that the market:=__vVal:u.elA. increased and he is not ready-to execute any"sa1e4_deed niowl.'H In fact, even PW2 has stated he requested defendant that he would pay additional confsi<:lera'ti.on of lRsN.2,O0,O0O/-, but the defendant denA1_and.ed.vlV_a ~:.Rs--}18,00,000/--. The stand taken:_"bfp;jptl1e defendant"'inV 'his..ei}idence would clearly indicatellfVt'l1ai'l¢,tlie7fdefe'ndantlwasflconscious of the fact that the price of the~:'gé'clied_Ltile:'property has risen and therefore, unwillingness on._tli~es of the defendant to execute the sale can"'be....infer1'ed, although the evidence of the V they were willing to pay the additional sum of if as sale consideration is not corroborated.
30.. It «is the further contention of the defendant that the .A pplaintiffs failed to perform their part of the contract and l f't»herefore, when time was the essence of the contract and the plaintiffs had agreed to complete the same on or before 25.11.1993, the plaintiffs in the absence of making the third )1- /3 n32n advance payment within the said time are not entitled to the relief of specific performance. But what has to beebsleen is that the defendant handed over the documentsjof tdthe plaintiffs only on 20.11.1998 and defenda.ntv_Al':f~e;as:.A_fio'_where9"x_ stated that he had obtained certificate from the Income tag; Authorities and by doing 1 so the sale deed could and neither has the defendant evidence that he had made arrang~eAmen'ltsvto--=get.'t~he_i.tenancy rights of the first floereeietgfied so that when the tenant would pay a sum of Rs.1:'50;lOO9.}f,~:v toiifittriefltenantslfl"Therefore, the defendant has committed Jcohntract by not performing the 0bli_gatioh"s..Which._ "A71:-'._Ib'le"~~l<.l*'ast upon him under the agreement. fact even aftervthedate set out in the agreement regarding 9 :.lp'a3rrneI:it ivofrthe third advance, the defendant accepted the "same eh'--".j':s.:i2.1993 and 16.12.1993 which is beyond the time. for completion of the contract i.e., 25.1 1.1993 and it therefore, it has to be implied that though the date for Algcompletion of the agreement was mentioned in the 'agreement both the parties had given up the same and therefore time was not the essence of the contract. It is also to be noted that in the absence of income tax clearance £5;
certificate the transaction could not have been completed as it would have otherwise resulted in penal consequences. In . fact, even when the title deeds were handed overgthe fact that permission was obtained from the authorities to execute the sale deed by the is established. In fact, nowhere it";has"come -:one:_'r:ecord'Vwith if such a permission was ever obtained by the defendant;--'
31. On the other .l_1and;'lthetidefenpdantfhad 'made use of the advance amount.' fpl=ain.tiffs to get the document release-d of°Ifndipa'a:t1d has submitted to the ptlaint'iff5t};. in abseunce of further performance of the obligations I bj(e«.the..f_'defe.i1dant the transaction could not have been. taken to logical conclusion. Though, the hadV'giv--e~::«'the title deeds to the plaintiffs, he got ' seeking return of the title deeds which act of 'thief defenxstant has to be construed as an expression of his own unwillingness to perform his part of the contract. In If » nfactit has come in the evidence that the plaintiffs were ready willing to perform their part of the contract. But until 'and unless the defendant had obtained the income tax clearance, the sale agreement could not be registered. Therefore, the defendant cannot allege that the plaintiffs éar m34_ were not ready- and willing to perform their part of the contract. On the other hand, it is to be held that the contract could not be concluded between the parties. on account of the non--performance of the obligation'Vibylfthey defendant and that the plaintiffs were ready__pa1a.d _ perform their part of the contract.
32. At this stage it is necessary to regfe'r:'to" cl.a.1'1se'=, (3), (4), (5), [8] and (9) agreem_e'ni;",V.= tfijiolaglh in if clauses (3), [4] and".,__{5) stated 'thaththe third advance of Rs.2,00,000/'bio on or before 30.9.1993 and balanceifconsideration was to be paid at the time §a;1'e"deed and the transaction was to be lcomp.1ete'cl«.Qfi.o:r*- before 25.11.1993, it is necessary to note that. the 3¥'d'Aad'vance paid in December £993 was by the 'defendant and the sale deed was to be reg'1ste1"ed'isubject to the defendant obtaining necessary clearance 'Vecrtificate from Income Tax Authorities. As far as th.eiWplaintiffs are concerned, they had completed their if part«.of the obligations under the contract and it is the defendant who did not get the necessary Income Tax llnhfuliearance before 25.11.1993 so that the sale could be completed. On a reading of the various clauses of the contract and the conduct of the parties, we 5%.
c35_ find that the plaintiffs had performed their part of the obligations and were ready and willing to perform those obligations at the time of the registration of the sa:le»cdeed. However, it is the defendant who was not ready---andl__i'wil:l'ing to perform his part of the contract. 'Iherefore;--..point llisl held in favour of the plaintiffs and againstithe'defendant; J
33. With regard to point l\l?o.. concernecli, Cection 20 of the Act states that" ~..the .jurisldictlio.n to 'decree specific performance is discretioriaiyg'lt:'says'--,that_j_the Court is not bound to gran-tyyjstich'V.mere'lyj_beca;1se it is lawful to do so. fSluch-- dis'cfietio.n'.' however. is not to be exercised arbitrarily, but 'zfi1eustv._.bie.,4b.ased on sound and reasonable judicial ll principleslfill Section also specifies the circuirlstances linvwhi'ch the Court may properly exercise the ' ;.discretion_*not«_ to decree specific performance and it also "specifies'~lwh.en, in an appropriate case. a decree could be given by proper exercise of discretion. Section 20 is not an 2 if exhaustive provision, but merely illustrative as it is not Cpossible to define the circumstances in which equitable relief 'could or could not be granted. If, therefore, on a consideration of all the circumstances of the case, the Court thinks that it will be inequitable to grant the relief asked for, 3;»;
it should not give the relief. In this context, it is necessary to refer to explanation to Section 10 of the Act provides that, unless and until the contrary is proved, the Cou:rt»,shall presume that the breach of a contract to transfer. property cannot be adequately relieved by"
money. But the said presL;"mption,_v His-S f'--rebuttable if presumption.
34. Sub--section [,?;)~.__ of specifies certain circumstances when dis_c'retioi*1:' may' 'exercised not to decree specific,' 'performan¢::e;.,V"~.."]?]riese:' circumstances are illustrativeesaiiid cfangbe as followsg Ii) ._ V . ternis of the contract or the ' con'duct"o.f the parties at the time of entering " into Acor:~--tract or the circumstances under _ _which'the contract was entered into are such ti'iat---«*'they give the plaintiff an unfair advantage over the defendant.
A ~.'ii'}._ ffV.~"Where the performance of the contract would 1' involve some hardship to the defendant whereas, its non--performance would involve no such hardship on the plaintiff.
[iii] that it makes it inequitable to enforce specific performance.
35. While explaining these circumstances, EXpIanation--1 speaks about unfair disadvantage. Explanation-IE relates to hardship which is a circurlastance in favour of téie defendant, /3 M37".
while Explanations-Ill and IV are in favour of the plaintiff when in a case Where the plaintiff has done substantial acts in consequence of a contract capable of specific perfotfinatlce or refused specific performance, merely because theVlcoritr_act'~ 4_ is not enforceable at the instance -of"tl3-epdelfendarlt', if
36. As far as Point No.2 is coricerned,j. it._is" the co'ntention l of the defendant that he required money on urgent zbasisland be therefore, had agreed to sell tlieilsiiiit property for a lesser value since re_qui_reld_ money tolldischarge the liability outstanding with respect of the veiyischedeule tolprovide himself with fund for his domestic had offered to sell the property. The sarnle"'«i.s Ex.P--1. It is contended on behalf defendant in the absence of the plaintiffs paying ' sthe _b'alan_ce:ls--ale consideration the defendant could not set '' upihis business and therefore, the defendant suffered not only by selling the property at a lower market value, but also on account of not being able to set up his son in llgblusiness at an appropriate time since the plaintiffs failed to 'pay the balance sale consideration and conclude the contract. The said submission cannot be accepted for the reasons that the defendant: on receiving the substantial /5/ n---- 38 I-4L! portion of the sale consideration had utilised the advance amounts to discharge his LIC loan and release the documents. If really the defendant required the balafice sale consideration of Rs.2,40,000/-- which would haizeé' patid at the time of registration of the sale de_edv,fth'en' defendant ought to have been taken step_s'l--.in 7 that the income tax clearance other obl:igationVs:.:.which were required to be performedillby hirnunder,theagreement were performed in time so cinild recleivethe balance sale consideration to le>l:e_cuteV.lth'e and utilise the funds on settir1g._1ip But what we find fromgthe factlvlthlat the defendant no doubt utilised the consideration for releasing the docurnentalandlhandirigiilover the title deeds to the plaintiffs the of obtaining permission from the ' «authorities by the defendant the sale transaction concluded and therefore, the plaintiffs cannot bellbplainedllfor the said reason. if indeed the defendant had "t'a}genl"steps in right earnest, then the plaintiffs were duty to pay the balance sale consideration and get the sale "deed executed in their favour. In the absence of the defendant acting in accordance with the terms of the
3. /5 agreement, the plaintiffs cannot be blamed for non» performance.
37. The contention of the learned couie'i"sell.f..fl__(_l:)1l"5;_.the defendant that under Section 20 of the ::R:e1iefllAct,l the defendant is entitled to the ' contract gave an unfair padvantagelwto thel. p:laintiffs't one? account of the low sale consiVderat.ion fi'Xed"'in-I the agreement in question cannot vb3e~~..acc_e'pted--- inlview of there being no material evidence on record market value of the agreement"toV:'sell§was h;igher"tha.n__tlie sale consideration. It isalso to'~.note inadequate consideration IS not a";re-ason.toinldenyyspecific performance. Similarly, the hardshipthat would, 'caused to the defendant in case the suit. isidecreed also be accepted for the simple reason ' Lyltiiat :'de"fe.ndant has taken advantage of the sum of " l--l paid by the plaintiffs and thereby has got his LlC yploanhlddischarged and the defendant himself is to be if blamed for not concluding the contract within a reasonable so that he could utilise the funds for setting up his son " 1n the business. ,1 -40-
38. Therefore, the plea regarding hardship of the defendant or that this is the only shelter he has cannot be accepted.
39. Similarly, the equities are more iI1""f%1V0:1V';tI'VV"(Z>"'f i'theV' plaintiffs so as to be entitledj'to"'a« g_d'ecree:Ah'foi' Vvspecific performance inasmuch as they:__ 2 Rs.4,70,000/-- out of the sale @611side1?au;m..pf,as:.};'o'o';ooo/9;' to show that they cou1d..'acquire suit sched'ule"property at the relevant point of Ii'e.th'e:'de'fen'daii--t. had taken steps to perform his _ther.s« the plaintiffs would haveV'ip'aid"the baifai1cle~.s'alte consideration and get the sale deed executed. iri.'Vtheir_. In the absence of the same, the _p1aintiffs'vha\/fe opportunity of buying the suit scf:':_ti'e<:l1;1_?le propertyva-t"the relevant point of time and further ' ;o'n~acc_o'un't.ggofsteep increase in the price of properties in plaintiffs would not get the property for the same rate. Therefore, it would be equitable to enforce » xspecific performance. I-Ience, point No.2 is answered against A' "theappellantwdefendant.
40. In 1999(3) Kar.L.J. 677 (Y.N.GOPALA RAG vs D.R.LAXMINARAYANA AND OTHERS) it has been held by
3. /3 IRS» 41" I-CIA this Court that the presumption in a suit for specific performance is that a breach of contract cannot be adequately reheved by compensation in money«j"arid_f"'that' contract can be satisfied only by conVeyanc.e"--«ofApaafticularg estate contracted for sale rebuttable, and the burden of :'reb1,itting opposing enforcement of contract and wheref..suci1--V.party has i' failed to rebut presumption, y_s_tfii"t_f0r_y_vspec'ificperformance is to be decreed agains't.l:suAch principle is also stated in Explanation.-'fi')v»t.ow of Section 10 of the Specific A"~'1.Ci-.."'. if 4}. VV.WhileVadvertirigjto__:Secti'on 20 of the Act, it is stated in this decision _thgtt_ irigprice is no ground to refuse specific pesiforr11ancef'faVndv_ the refusal may also have tendency to .' :cause:hardshi_p in the plaintiff in acquiring such property or _ othierwxat such time.
it in AIR 2004 so 909 (M.S.MADHUSOODHANAN AND 'ANOTHER vs KERALA KAUMUDI P'VT.LTD., AND OTHERS} "fit is observed that the guidelines for the exercise of the Court's discretion to decree specific performance of an agreement have been statutorily laid down in subsection (2) £ ii"?
_,42M of Section 20 of the Act and that, in Explanation 1 to Section 20, it is stated that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defen-d_an_t or improvident in its nature shall not be deemedljto"conlistiiute an unfair advantage Within the meaning"'of...:clause<-- [a)__'org hardship within the meaning of clause. {S
43. {LR 1992 KAR 717 [YOGAMBIKA v relied upon by the responderitpiltopcontend that "'rnére fact that a person is a retired G.o\?e1*n1nen.t. servant cannot at all be considered to be a lVla_ili'dl'itofrgebfugse to enforce the contractl" 'hell', 'V'vo'l'uri'i;aril:tf""agreed to and that, under Section of grounds which enable the Court to refuse togranta'vdeCr§;'e.--~fnust be such which were not in the c.o_ii.teE:nplation"'of~----the parties when they entered into an S sale and also that the defendant had no control .' oifer tbosej_ grounds and as a result of those grounds, it has belcorne impossible for him to get on without the property agreed to be sold.
The decisions cited at the Bar are referred to as follows: Learned counsel for the appellant has relied upon several decisions in support of his contentions: Z; ./5 ' 'V is _ 43 _ AIR 2001 SC 2783 (A.C.Arulappan Vs. Smt.Ahalya Naik), (199915 SCC 77 (K.Narendra Vs. Riviera Apartments (P) Ltd], AIR 1997 so 1 751 [I{.S.Vidyi1fiadam 82, Others Vs. Vaircwan), AIR 1982 (Smt.Ranganayakamma Vs. N.GovindqV__pl'VaraZg'ar1]i (2000) 6 sec 420 (Motilal Jaiiiiililfsl.' ~1zamazc.~$;i"«.r;ge;}ij"i1aire 7 been cited to contend that thereisfundue.:h:_ardsl1ip:.4.t(3.theL defendant or there is astronoinical rise of the properties and if thereis a .:ie'1a;}I'~fm"r:iing a'sL1i.i;" for specific performance which wotxfid "rp.e§1«:e to grant the decree, then specific §perfoijmanc.e*i.ou'gh:tnot to be granted. These 'dec'isioV'ns gifge' not to the facts of the present case 'since 'we: against the appellant on the question 'of. hard V' SCC 526 (His Holiness Acharya Swami "swash Vs. Sita Ram Thapar} and [1978 2 sec
116.. [:S1nt.Sandhya Rani Sarkar Vs. Smt.Sudha Rani ' ~ ibiebpi 82. Others) have been cited to contend that readiness to 'perform the contract would mean that the plaintiff has the 'Hfinancial capacity to pay the purchase price and for which there must be sufficient proof that the plaintiffs had funds to 55 /:1 __44__ pay the balance consideration. On this aspect of the matter we have held in favour of the respondents. H.
46. AIR 1996 so 2314 (Lourdu Mari David Vs".""Louis Chinnaya Arogiaswamy} has been relied that specific performance being an equitable"'re.lic:f:'Vrn'us[ tug 3' granted to a person who approaches'the*<.court wit.h"'clean hands and not to one who makes fals:e.Vallegatjv_ons. ' decision has no relevance to tizefacts oftherrpresentllcase.
47. In AIR 1987 SC 2328 g_[1?dr<;i<:1,L_»nnan" Veettlvi Joseph's Son .Mdth°c;j}t',Vs!iififilecturnbarzfitllvfftivruvila's son and Others}, it haszbeen stated»':th_at..tlt1-edcourt is not bound to give specific perforrnance 'rneVrely"--because it is lawful to do so and the gshould taKe----------sare to see that it is not used as an V 'oppression to have an unfair advantage to the lplaitntiffsdf the instant case however by not granting the relief. olfispecific performance to the respondents would create 2 :1' ~ Alpanainfair advantage to the appellant vendor. With regard to the readiness and willingness (1999) 7 " "SCC 303 (Ramkumar Agarwal 82. Another Vs. Thawar Das (Dead) through L.Rs], (1995) 5 SCC 115 E», W45..."
(N.P.Thirugnanam (Dead) by L.Rs Vs. Dr.R.Jagan Mohan Rao 82. Others), AIR 1928 Privy Council 208 (Ardeshir H.Mama Vs. Flora Sassoon], ILR 1993 [email protected]§'a._V_427 {DB} (Saraswathi Ammal Vs. V.C.Lingam] _(;fi'ct KLJ 186 (G.M.Chinnaswamy Vs. have been cited to contend the C';ontiniao1isg ':readi'n.eg§ ..,and willingness on the part of the hp-1ain.tiffs :c0r;.dition', precedent to grant the reliefs» specific 'perf0r:1;1ance and person who falsely claims ca sumldofflvmoney and attempts to prove the plea at itrialistageicannot be said to be readyiVand5,uIilli:hg topay theflsurn due under the contract in question. V Fro1n'the«.ei?'idei1ce on record we have come to a conclusiori"..th'atgtherrespondents were ready and willing to their paitofthe contract and therefore this decision ' has n'o._relevan::e to the facts of the case. 49.2 .. A13' 1961 Calcutta 359 (A.E.G.Carapiet Vs. it iAl.iY,De'rderian) and (1971) 3 SCC 273 {Amar Singh Vs. State of Bihar) have been cited to contend that when i there is no cross--examination on crucial aspects. then the testimony of witness has to be believed. Having regard to the It ,4.
evidence on record, the said decision is not appiicabie to the facts of the present case.
50. Counsel for the respondent has relied upon ILR 2000 Kar. 3536 (C.Nazeer Ahmed Vs. S.Jahan Ara) t,oVc_o'ri.t¢nd that circumstances sufficiently strong couId__;'_'di'sp.l_acer. ordinary presumption that in any contractV----f0r:".sai*e: of land. 9 stipulation as to time, is not of essences. }In--,the.'in.stant case, the fact that the third advance4__wasdi°eceived dappeiddiant' 3, herein after the stipulated ddaterand :fi~-:.:§E::"':afté;;- the date contract implies that both parties did nottreat dtheessence of contract.
51. (2000) 6'=SCC' 420 ('Motflal Jain Vs. Radasi Devi 82. Othe'r*s) has-» been cited to contend that where a major .pvo'1*tioEn:'ofVd'the consideration (two--~thirds in the said case} was I ipaidd the of execution of the contract, it was held that re-adinessvito pay the remaining amount is apparent. ILR AA2003-.fi'ar. 3533 [ T.Mohan Vs. Kannammal 82. Another) 'has been cited to contend that when the vendee is in épossession of the property. the question of readiness and willingness to pay the balance money does not assume much /if fi,{1l7_ importance. ILR 1998 Kar. 2730 (N.Venkatappa Vs. Lingappa Reddy by his L.Rs) has been cited tofc"ontend that when the plaintiff is put in possession of~«~th¢V:p_I'ope1'ty which is the subject matter of an agreementfandifdefendant ' also delivered some d0cume:nts,b"i3ut._ sta1lec1u._pVt'u'rther '' proceedings and the plaintiff vl1as«._com.p1'_ied"
requirements under the contract, fI€_V to a Judgment and Decree" of spec'i'iiclV[oerf'orinanceI ILR 1988 Kar. 1340 m.n.Na;~¢amnai Vs. Madhava Tenkillaya), '-hasi-beer); if readiness and willintgnes'sA.. estfVab1i's'hed, itfis not proper to non~suit a persovnpon vVerbalV"ommis*si'on. The afore said decisions are applicable'rt.o"the[factsof the present case. keeping in mind tlie9e\(i.de:1Ce onflrecord.
1h'l'ii1_.i:" 2007 Kar. 1625 (P.S.Ramakrishna Reddy Vs; M:I$'.I?hagyalakshmi 82, Another) it has been held that th'e._re1ief of specific performance cannot be denied on the fgground that the price of immovable property has risen. In AIR 2008 so 1205 [Balasaheb Dayandeo Naik (Dead) by L.Rs 82, Others Vs. Appasaheb Dattatreya Pawar} it is stated that where agreement though specified time for if} _48u execution of sale deed and where stipulation for forfeiture of earnest money in the event of failure to execute sale deed was also made, then it would indicate that time wouldnever intended by parties to be of essence of the In (1998) 2 SCC 488 {Smt.Indira Kaur Lal Kapoor), in the context of the '4 plaintiff when the deferidai:-1;_ or th-edcourt endquireqp about the name of the banl§'V"io:r'calledVuponif-thegiplaintiff to produce the pass book' wasddheldiéptha-tpno adverse inference can be drawn against the plaintiff had depogsvedlfvtliadtl hedfxhad requisite amount in the bank,--~the pass book in respect of the bank account. VV'I:heA'adfoi'esaid propositions are applicable to of the xcas--e--.« "
.'53".'A (Civil) 308 (Silvey 82. Others Vs. Arum Vargltese 82. another) deals with the case when the it Afdefepndants failed to furnish the documents to the plaintiffs, the conduct of the defendant cannot be ignored while 'Hweighing the question of exercise of discretion for decreeing a decree for specific performance. This decision is applicable ,4' AN Wfiigw to the facts of the case as the defendant failed to obtain income Tax clearance in the instant case.
54. Though we have answered all the points for consideration in favour of the respondent. considering. the long lapse of time involved in litigation and estate that have arisen in the inte'rregnu.rn,_v'are of the View that the respondent, while ha!.ar1ce«.p"a§Inei1tV of Rs.2,40,000/-- to the appellant,» should arrested to pay'? interest at 24% pa Q11 its-u_m from the date of agreement till the datelofhis' direction, we feel would V if
55. ':.E'or the aforesaidctgpreasons, the appeal filed by the defendant the judgment and decree passed by._§thei'.trial is confirmed Jsubject to above direction. . Parties to -bear their own costs.
Sd/* IUDGE sd% IUDGE KVN*