Karnataka High Court
T.Krishna Murthy vs Gangadharaiah on 7 June, 2010
Equivalent citations: AIR 2011 (NOC) 51 (KAR.), 2010 (4) AIR KAR R 256
E M-"A 440/99
IN THE HIGH COURT 0:? KARNATAKA AT BANGALQRE
DATED THIS THE 07TH DAY OF JUNE 2019» L
BEFORE 4 V
THE HON'BLE MR..msTxcE §§»,AS,}fACf£*II§A:I;t;f1ii§: 1'
REGULAR FIRST APPEAL fizogzice' 014*. 1'9§g
BETWEEN:
T. Krishna Murthy,
S/0 Thimmaiah,
Major, R/0. 203/A, I
IV Main, IV Block,
IV Stage, West of_Ch_ord3Roa{i~,; _ :
Bangalore 44, Kaiga:vik_a':Nagar, *
'T " ' APPELLANT/S
Rajajinagar, §I3afig_ai.9r§-.."
(Sri. Le); Nexaia V
Gangadhafiiaha,
S/o Late Ran'g.egcwdVa, *-._ V
Major, j ' 'V
«HR/0 Pd'§.1ceQ;1artefs,~-- .....
Koratagere' Tbwfn,
".fI'uT;1'kur. " '
p RESI~"ONDEN'I'/S
Adv.)
=i===§==§=*>I<
V *~ «Thi;;"RFA is filed u/s.96 r/W. 0 41 R 1 of cpc against
jiicdgment and decree dated 2.3.99 passed in
«Bangalore, decreeing the suit for specific performance.
0.S_.No*;902/90 by the court of the XXXI Addi. CCJ,
2 RFA 440/99
This RFA having been heard and reserved coming on
for pronouncement of judgment, this day, theCourt
pronounced the following:
JUDGMENT
The appellant has challenged the deereefiforlllspecifiell"
performance granted against him on l2:'i'1".".\.:'1§.11'5.'l1. the respondent.
2. The facts relevant for"'tVl.1'e'--pVt2rposefofrthis appeal are as under: f l if f The parties_:w1__ll per:t'heir rank before the Trial Court The__"" plaintiff whereas the appellant is ' in the Court below. The defendant 'entlered_.in'to_la'an agreement of sale of his _ propeprtif at No. liajajinagar, IEI Stage (Slum) Extension, .A(';itjr«-..Corporation. Old Division No.3. Bangalore 15' feet East West and 24 feet North West. _The a'gree__Inen't of sale was executed by the defendant on a sale consideration of Rs.40.000/-. The defe'nd.a'nt received the advance amount of Rs.5.000/- on ethegldate of the agreement and agreed to execute the sale bé.
3 RFA 4.40/99 deed in favour of the plaintiff by accepting the balance consideration of Rs.35,000/- at the time registration. Though the defendant agreed sale deed within four months, he_Jfai1ed if demand by the plaintiff, he pleaded for secure the documents like gsale '-deed, fen.cu--.r.nVhr1ance--.,l' certificate, tax paid receipts, and to vacate the tenant in "g.i'i.tne:"::racant possession of the suit property. execute the sale deed as and as per the endorsement rraore month was granted to him.
3. The deferidant"fai1ed to comply the terms of the agreeprnéent.despitreflizhe readiness on the part of the plaintiff to thlefrcrnaining sale consideration of Rs.35,()()0/~ and aé .s:i'«:_hf, "ta'e.,,eiaivai'ti£f issued a legal notice dated 29.7.1987 V if calling up_on'h;im to perform his part of the contract. After receipts of the notice, the defendant gave reply denying ,the_V'e:*:ecution of the agreement of sale and plaintiff waited 'vforiisttfficient time and also made a personal approach to «>4 5"?
"3 RFA 440/'99 the defendant to execute the sale deed. who went on postponing the same and did not execute the doc;1in:e'nt"--as agreed upon. The defendant also furnished'1th§;"--.[§{ero?<i' copies of the possession certificate,__ kha_1t"h'a'*.:c:ver'tifi'categ. allotment letter. tax paid receipts'~-;etc:;'.'; .o'btai_n'ed' Bangalore Development Authority and-..as de{'e:nd.ant was obtain the sale deed and Encunlhrance in his favour and to keep the p--r_oper*-{fly vacan't..rfor_gthe execution of the sale deed, the plaintipffiavas .foi5it'1i'e same. '
4. The the agreement of sale of the.e,propert:y.._be.aV1-ling'.f¢o,.9v"§' situated in the same extension belonvgiing'-.t"c.sphisinother by accepting a sum of Rs.5.000/- "agreeing eztecute the sale deed through his mother; it The plaintiff having learnt the fraudulent acts of vlfithe'wdei'endan:t.*--and having no other way. approached the ci¢u_rt._£{n=~a§'_c1¢c§eé of specific performance of the contract V of sale.
The plaintiff submits that he has been ready and to pay the remaining sale consideration of W 1'3 RFA 440 /99 Rs.35.000/« at the time of registration of the sale deed and to perform his part of the contract under the dated 9.2.1987. He submits that the defendant to perform his part of the contra.ct if constrained to institute the specific performance of clateqppi» 9.2.1987.
6. The defendant denying the allegations. of the notice issued and sale agreement in favour o.f"t'he. the endorsement on the sale:"'v._¢ee¢"_-pl extension of time of one month. v.his._conte'rition that he was in need of and "ap.prpga.ched one Sri.Venkatagiriyappa for A"g_fin:ancial_a«ssisit'ance who introduced the plaintiff and said the money. The plaintiff demanded the . signat'ure--«V:on' blank stamp paper and hoping the plaintiff, 4'"bein..g__the" Police Constable, will not misuse the signature :&=__si"gned':the said blank paper as a security for the amount of :'_4i"Rs';5,000/~ borrowed. He was taken to Rajajinagar Police \>L / 7 RI*'A 440/99 the basis of these pleadings, the Trial Court has framed the following issues.
1. Does the plaintiff prove executi_cgf1--.i ~ A' Agreement of Saie on 9.2.87 by the defe-.n:dajr'1tVi' in respect of suit prope.rty-_'endorseirient 7.6.87? 1 " if 1 i' i' V
2. Does the defendar1t"*~prove"-playing'fraud. misrepresentation and coersionuby theiiplainvigziff himself or otherwise?
3. ) Does the p1air1'tiff'aprcye_ has been ever readpyitfrperfornap his 'I5a{rf'~i.of--t.he contract?
4. """ "t'-.";.V1ié;the:rfi.: ~t.h'e_ plaintiff 'is entitled for a degree for "pe'rfor.mance?
5. uT--t>_piiv»-.hait._reiief,the plaintiff are entitled?"
.1! The piliaiirtiff was examined as PW.1 and two and 3 and the documents Exs.P.1 to P.8 were iiinarltedg ..5:The defendant is examined as DW.1. The 'Triai after hearing the counsei for the parties and on ..appre't:iation of the materiai on record granted the decree '--«i«'-fort specific performance of contract by directing to "gipeii:}:ecute the registered sale deed on receipt of the xi, <5' Ri~'A 44%)/SE53 remaining sale consideration of Rs.35,000/--. Aggrieyed by the judgment and decree, the defendant has approaehed this Court in appeal.
8. I have heard the learned for and also the respondent. The consideration are: it I. it it i
1. Whether th.e~..decree" fléby Trial Court directiingr 'the 'to execute the sale deedf after it '''receiving the remai'r;i_ng sale A.co.nsi_d.eration is erro_neous__ arrd--«.ilIegal_?" ' llll o£é3}1é:?"~fj'
9. It is the..conlten't-i__o"1'1"of the learned counsel for the appellant that thesagreernent dated 9.2.1987 has not been iifproved laindfithat itlieiiisuit property was allotted to the had no subsisting title as on the date of the transaction' therefore he cannot sell the property. It is 'also hisvcontention that there is a clause for cancellation agreement at the instance of the defaulting party and the suit for specific performance is not rnaintainable. =>L S3 RFA 446)/as} Furthermore, he submits that there is no material placed on record by the plaintiff to prove that he was everjhready and willing to perform his part of the circumstances, the plaintiff cannot specific performance. It is also is an inordinate delay of 21/pg _years._ thelvplaintiff keeping quite without taking"ve«lai'1y st6lP5.l_ off balance sale consideration and 'tlh;islvli"it'seiflig'~a*lsufficient ground to reject the if also relied upon the decisic»-nls':-in and they will be referred to if " learned counsel for the respondent th_atutl'1e Trial Court on appreciation of the .n3iate'1'i.al on"=reco_rd has arrived at a just decision in grantwirrg a.de_c'r.e_e for specific performance and as the time vvasfl.notl"tli.e--__essence of the contract and the plaintiff had . suffic'ien--t tirne to institute the suit as provided in law and rrnaltilng hectic efforts by approaching the defendant to execute the sale deed, the delay if any has been properly if " "explained and the Trial Court after accepting the same, has sé.
10 RFA 440/99 rightly granted a decree. He submits that the clause for cancellation of the agreement at the instance of both the parties is not a ground to reject the reliefof specific performance of the contract and that the defendan'ti_"h_as not taken any such contention in the that he had no title to the property' and that' time in this appeal, a contention:7has1"'be:en'»r.a'is:ed:wit1iout amending the pleadings. So"aIs..o., ample material on record to of the agreement at Ex.P.1 idefieindpant has received part of the salep._consid.er.aption-.pvtzhe:reas"--.I.t'he plaintiff was ready and willii1g..to«.pa_.VV:fi"'theremaining sale consideration and thereforicphe the Court below was right in granting utheuxdecree and "that the appellant has not made . out grounds tocall for interference.
as the facts are concerned. the plaintiff
-- pleads the eirtecution of Ex.P.1. the agreement of sale on for a consideration of Rs.-40,000/» and at the _gj__ti:ne "of the execution of the document, an amount of Rsl.3,000/-- was paid in advance. So also. he states that he Dd, 3 1 RFA 440/99 was ready and willing to perform his part of the contract by paying the remaining sale consideration of and as the defendant did not take any steps, was constrained to issue the legal notice up calling upon the defendant to eithecntie ithe receiving the remaining sale_4consideration.T'_ git:
pleaded that after the denial agreernent of a reply notice, the plai.nti.ff a_ppi_'oac.hed._&.thei'defendant on many occasions and as .i;gi1iitflate1y failed to execute the sa1e':de'ed, ihe to institute the suit. The oi"-s:a_lé--hvasV"hee--n produced at Ex.P.1. There is noi°d_is_p_ute vais*«.___re_gards the "signature of the defendanituonpthiis Exs.P.2, 13.3, 13.4 and R5 are the xcmx coiipiesof the "possession certificate, allotment iietteriiand tax paidreceipts. Ex.P.1 {a} is the endorsement the time for a month to execute the sa1e._deed..h_ii:lE£:i.P.6 is the notice issued by the plaintiff T3"-v._V'Whereas___iEx.P'.'7 is the reply of the defendant. The i"p_iead4i'Arigs reveal that the defendant had also executed anfother agreement of sale of the property of his mother in \L 12 I-am 440/99 respect of which 0.S.No.901/1990 was instituted. In the suit, the defendant was examined and his deposition has been produced at Ex.P.8. The defendant admits [having deposed before the Court in O.S.No.901/1990_..and,t"in«.£}ie last para of his deposition in the said suit, if t "On that day, VI ag:'eed"'to 'i-sell property to the plaintiffs c::fu:;ba'n.«1Vt"
Rs.4o,ooo/--. I received..__ an'K_ciidvar:ce :2 Rs.5.000/- on that day.'V"i!£"a'id no't.__g'ivé any documents to anybody ort"t~h_:cctiud»qy."
This portion of his dep.osition5ha.s_:l3ee:i_marked as Ex.P.8
(a). The piaintiff«.i;i_%this of plaintiff in Q,s,No_Q01._,'gQ; defendant denied in his written staternelnt ' the execution of the sale V agreezfjnent and" stated in para 6 of his written statement that_iI:.ei'in need of Rs.5,000/~ and approached one 'V'en'k__ata'gi'ri5i(appVa' for financial assistance, who introduced _ the 'p.1ai:.;tiffA:and the piaintiff lent the money to him and Viwhen hzeudemanded the signature on a blank stamp paper, _ih.e"=signed the same as a security for repayment of £355,000/--. So the defendant has given a go--bye to his <>£_., 13 I{F'A 440/99 defence raised by him in his written statement at Para 6 and in the suit filed by the wife of the plaintiff :regard to the execution of the agreement of sale of the mother of the defendant in'; "
aémits the execution of the sale agreementf'in:
plaintiff for a consideration 7 that he received an advance So this version of the defendan_.tfa's inithe written statement and the lead to the only inference" he took a false that the document Ex.P.1 'a_d_'ocument of security for the loan amount of he made a statement on oath. befoure..,the ':co'in-t" in 0.S.No.901/1990 stating that ' fit &w"a~sC'a3n= ag;eem¢h't'"'¢r sale for Rs.4'0,000/-- and that he aadv_ahnce amount of Rs.5,000/--. So this conduct of th_eVhdefe.nd?ant is an act of misrepresenting the Court and 'making' afalse statement denying the execution of Ex.P.1. v}lj«en on oath before the Court the defendant admits BC.
:5 RFA 440/99
13. So far as the second contention with regard to the invalid title of the defendant, it is relevant to note that the plaint contains the statement that there wasp an agreement of sale of the property in disputelé'andflie defendant executed an agreement of sale on in answer to this contention, in thjewritteii state'ment~file'd by the defendant. thereis no denlialitat ailghs-no"far title is concerned. The main contention that"v_he3has takenll in the written statement" is tl.1a't p.roperfy~.,aras given as a security for a loan' l{s..:i'>,:0(ll()i,lif'dadvanced by the plaintiff. Apai"tfi'1'o_m noycontention in the written.:statein1£-_--ntV ;that,V.he__doe--s not have any title to this property." Likewise-ifVif"tlile'«évidence led by the parties is looked .into,lth.e defendant who has been examined as DW. 1 i°does~--not'>dispute inmhis evidence that he is not the owner oflthleplre.pe.rty or that he does not have a title to the same. In 'absence of any pleading or contention by the fidefendaynt.-. any amount of evidence cannot be considered the lacunae in the pleadings. On this aspect of the Inatter, the learned counsel for the appellant has placed
04..
1&5 Ri'~'A 4.4:')/99 reliance on the decision of the High Court of Madras reported in AIR 1975 Madras 3'79 [Rajendrakumar v. Poosarnmal and others] in the following circ;1i=ustan:ces"'it« * is held: _ "A, the lesse of B, obtained "\dec1:'e:3:a$'i0n"
entitling him under Section 9 of "City Protection Act {Madras} t'o,_Vpurchase land over which he had' put upma" str1i'ct_ure. C 'He 'was allowed to pay lithe-A ins»t_allments. Before his title was..p_e'rfected"h'eCentered into an agreenie'ntp.with._ C gto.*:se'll Later on, A it payment of installm~eVntsV«1_;a_nd for his eviction. to B. Thereafter. when C hrought' performance of contract. * V Held th'at""A had no transferable right uwherx. 'i*:.e">e__ntered into the agreement of sale eAV.:'E'{ren if C was ready and willing to A his part of contract he lost his right to for specific performance when A " +.__suri9endered the land to B. Thus A having no V' = rnarketable title or a title free from reasonable doubt. C was not entitled to specific x><., 1 1' RFA 440/99 performance as a matter of right or even in.-.__ equity.
Title cannot be understood as somethinig equivalent to a process involving ' title. In order to convey should have a present iinte'rest' .in if immovable property he"~ciontractsqto... convey. A title which hasnyot_Vbeen'--plerfected and which cannot '"x'~a_tionally' to be free from doubt is no title at
14. At thVeflfir~st instance,-..Vthej«above principle could have been cqn'si?.lererl3f'_lifv had disputed title in his writte11'~istat'en1en£; I'-nhthie absentee of any such defence and any ievidenice"on_re.c'o'rd""disputing the title. the above principle cannot bierniadeifapplicable. Even otherwise. as ._could..¥§:e seen from itvheffacts of the case referred to supra. Afithe: lessee wnasjallowed to pay the price in installments to gettliee ti'tle3.»,_'I'l_.1Ve. installments were not paid. there was default onlihisvipart and the lessor sued for his eviction and lessofsurrendered the land to the lessor. It is in such circumstances that the vendee had filed a suit for specific iperformance of the contract against 'A' and it was held DC.
18 mm 440/s9 that 'A' had no transferable right to the property. Considering the facts on hand, though there is no defence in the written statement disputing the title, 3 reveals that the site in question was allottedv Bangalore Development Authority jtohthe in possession of the same and since from the date of allotrne:nt"e.until now; no if interference by a third.zpart}"""a:s:_:'regards lithe allotment made. The plaintiff has copies of the documents are possession certificate isg as regards the defendant beingV_..g;1llallottene or; a person in possession of the propertgyl' and there i"s.__:ln'o'thing on record to show that there A.':.r.,as an'y._:vdef.ault- the defendant in paying the .i'nstalln1£=:fnt "or anylvclonsideration for allotment of the site in 'l"nislrAfa"v.olur} «._It_'_. is in such circumstances, I am of the opinion thattiiis decision cannot be applied to the facts on hand. firstly, on the ground that the defendant has not 'dis.pu.t'ed his title: secondly, that the evidence cannot be .._Tlloo§:ed into as there is no such pleading disputing the title (>4 59 RFA 440/99 and thirdly, the facts in the case referred are all together different from the facts on hand.
15. As the defendant has admitted in in i o.s. No.9()1/1990 regarding :he::";éi§;el¢'u;i¢;1 agreement in favour of the p»la.intiff«._a's--._per there is no dispute with regVar'd:V'to 'this document, Ex.P.1 wiil"~..hav'e«"toi_:'he""e-taken""'as"V: proved. Furthermore, the plaintiff himself as PW.1 has also spveaks about the execution of; "hi_s""presence at that time and signing (b) in the presence of the parti.gs;-- the Police Constabie and as the plaintiffiiisi also'A._aa.:p'erson working in the Police ..V.Depar«§{rxieiit, it V'c"ann_ot_be said that there was compulsion V_so'1"ar aVs'«.the"'~-.execution of Ex.P.1 is concerned. Even there is an admission by the V .defen'danvt:hi:riseIf that he has executed the sale agreement So taking into consideration the evidence of PWS. 1 '5.%;"'the contents of Ex.P.1 and the document Ex.P.8, I of the opinion that this material is sufficient to hold (31.
20 RFA 440/39 that the plaintiff is successful in proving the document Ex.P.1.
16. As could be seen from this Cl0e7;4'llIl'lvPE3'1_':1Vll;''.,:a "
defendant agreed to sell the propertyefnr a of if Rs.40,000/~ and on the date of agfeerhteiiit, amount of Rs.5.000/~. The'iidocuInentV wasi'i..vex:ecut.ed onkii 9.2.1987. There is also a defendant would vacate the tenant_wl1o l4"inv'fipo,s_session of the property and then. execut'e:.--f:i}eV favour of the vendee. He cjertairiildocuments from the Bangalore He agreed that on payInen:t¢,of« would execute the sale deed. There is a "defaultclaixsepfthat in case if the defendant is not algile to execute the document, apart from advance A'~._aIAn'oun'i; _of..RsA}'5,000/-, he would pay the compensation of plaintiff and cancel this deed. So also, V _there"~i.s ziiciaiise that in case if the plaintiff does not pay ainount of Rs.35,000/- within the period agreed, the a.ar'n:ount of Rs.5.000/-- paid in advance would be forfeited the document would be cancelled. Now so far as this D¢~ 21 Rm 440/99 default clause is concerned. a specific contention has been raised by both the parties and the appellant contends that whenever there is a default clause in the document antipthe default is committed. in such circumstances, i't«pisf'I;ot proper to direct the specific performance of contriactie it On this aspect of the matter, the vlearned appellant has placed reliance on the off-the Court reported in 1999 (9) 1O3.u(iVBadarao "and i' antoehr Vs. Ramrao and__others}..... ifilhe'-._perusial-ofVt'he facts reveal that the agreement 'lconternf.«1ate'd..that on or before 15"' April 1972, thevsa1eA'dee§l'&tvou1d be eitecuted and that the agreement" ifi;_se_a1f:3.4p1*ovidves_as to what is to happen if either thehsueller 1'efus;e.sV1';h:e"«sale or the purchaser refuses to buy and infthvat..event.iTthe agreement provides that in {to the earnest money of Rs.1.000/~, a sum of given back to the vendee and that no i sale' 'deed wilifhe; executed. Considering this aspect of the matter, thei.Apex Court held as under:
V _ "6. If the agreement had not stipulated to what is to happen in the event of the sale not going through, then perhaps the plaintiff 22 RFA 440/99 could have asked the court for a decree of specific performance but here the parties to the agreement had agreed that even if the sellor did not want to execute the saie deed her' would only be required to refund the amount A' of Rs.1,000/- plus pay Rs.500/- in --1~ thereto. There _was thus no obligatiponpponf' up Balwantrao to complete the salehtra.ns'act.i«ori;'7_ V
17. In the decision reported ii'2.2007 (as. Ranakrishna Reddy Vs. M§'K§Bhagya1'a1§s'i:§s1i &_ Ar1r.). it V was held by the Apex .Co1;rt of 'judgment which reads as under:
-------- d¢.".:>(3i$i('_iI-'i'-~--..¢;}f"§ this Court 'in Dct»:v_iarf£19iVVV(s7£r_p2jéI}L pwhereupon reliance has been placed " .__.i1illr*.Clrandfashekhar is wholly misplaced." it~s_:rr;;"iiVof the agreement therein 'absoirite.1yv____different. We need not dilate decision in View of the fact that in _f_;: as decision ' of this Court in .'P;DlSouéj1got'vVv. Shondrilo Naidu (2004) 6 sec i'."84-9;l..i'E".V'has been held to have been rendered per iricuriam, stating:
"34. In Dadarao whereupon Mr. Bhat placed strong reliance, the binding decision of M.L. Devender fig 23 RFA 440/99 Singh was not noticed. This Court furthermore failed to notice and consider the provisions of Section 23 of the Specific Reiief Act, 1963. The said decision, thus, was rendered per incuriarn."
18. So takinginto consideration these@i'actsi__i't'h:e.., decision reported in 1999 (9) Supreme 103 9 another Vs. Ramrao and others) as perin.cu.riu'n1.'V ixdoi'nVoti7 think that the appeliant can take 4adifantagpe:..".of the decision.
19. So far as the__."t.hiru.d covntientiopn regarding the default clause inpthe the learned counsel 7for__ .9 relied upon the decision reported (Lt.Co1.K.C.Bheemaiah vs. KakarrgadaA.A.Iiuttappa and others) wherein it is held as uvnderif ' us then examine whether the 9 ' ,__agree:ne:nt:: set up by the plaintiff in the instant V caseflishvione that can be specifically enforced it ,against the defendants. The Trial Court has 'v.._1{e1d and in our opinion rightiy so that Ciause~ 6 of the agreement was a part of the transaction not because of any compassion 25 RFA 440/99 interest is not material for purposes of determining the true nature of the_..__' arrangement between the parties.
question is not whether the amount actually offered within the period stipu:lated.:,:
thereby putting the arrange_me,nt u;"'at:
The question is whether the .i at the option of the de.fenda4n.ts¥v_endors' shaves i' been put to an end by paying to the veendjeeether amount received from interest. If the answer be the case would squarely fall §maer«r of the Specific Reilli-e__f Act; contract unenfoxfHc3eab:5;e.l__. at :1:hisV's"i:'age mention that .it,--he=ep'arties had fairly cdncededi"-".etihateWth'e__ time stipulated for execution was not the essence of the"~1:o11traeti;~.elit.-"that be so, just as a sale could. have been executed beyond the period so also the option to retain i_ it could have been exercised by the "'ryende'rslAbeyond the said' date. It follows that right given to the vendors to retain the piroperty at their will was exercisable by them their discretion not only upto 24.4.1991, 'but even beyond, thereby meaning that the agreement executed between the parties did b4 228 RFA 440 /as
21. The counsel for the respondent has placed reliance on the decision of the Apex Court reported in AIR 1973 SC 2457 (M.L.Devender Singh v. Syed Khaja} wherein the Apex Court taking into consideration the eirpjlaiiatiion to Sections 20. 23 and 10 of the Specific held that the provision for damages"'u--r. penaltiviihrieacilié is not sufficient to rebut the presuinpptioii. 'l'heVA'A.pe.;;
also held that the jurisdiction'~e..pf C()21.:1I'.1:'. eannait be"? curtailed or taken away. by 1n.e--_rel3r "fizfzingi ia*vsurn§ even as liquidated damages. under the provisions of Secffiqn 205$ ij::1a.¢" Act...pi[corresponding to Section::23 olflithve of «the Court has to determine on the facts VandV.icirctirzista.nces of each case before it. whetherv spe4c'ifi_:c vperforrnance of a contract to convey a if "'prop'e.rtyi_...9u'ght to 'lié"'giranted. ._ :liilfnr'tQhermore. in AIR 1991 Madras 163 [Rarnani V vitliisilaznrnal} the Division Bench of the High C011?.'._t_ held that the default clause providing for e._canc'e*llation of contract on the default committed both by plaintiff and defendant is not a bar to grant specific 01;
29 Rm 440/99 performance. The Apex Court in the decision reported in AIR 1971 SC 1238 (Ramesh Chandra Chandiok and.'ariother v. Chuni Lal Sabharwal (dead) by his legal . and others] held that the discretioinmto gra'r"1t'r'eli"ef of if"
specific performance wherein the'-._defen--*:lant 'agreieiing sell his lease hold right in plot to A deem aiiciondpition Verdi» lease requiring R to obtain it authority for transfer, the amount feailnegdtoiih and cancelling contract Without AaPDlYiAIA1g.:fcr suit was filed for specific iangd .:_'thVere"----wias readiness and willingness contract and it was held by tlieiiiplaintiff is entitled to a decree for So also. in AIR 2000 SC 191 (Manzoor Ahmed it/Iafgray v. Gularn Hassan Ararn] the 'Ji'z"~dpex-i:e.(.i3<ot;rt taking"iritofconsideration the fact that the suit family property and the plaintiff and hisrson had'3._'?:/3" share, who had also" executed an ia_gree:mer1itj_of sale for whole of the suit property, the Apex that the suit to" enforce the contract to the ___":ext;ent of the share of the plaintiff is not barred. : 30 RFA 440/99
23. Furthermore, the counsel has relied upon a decision reported in 2007 AIR SCW 1383 (P.S.Ranakl:r_iShna Reddy v. M.K.Bhagya1akshmi 8: Anr.). The facts there was a term in the agreement that if has, committed breach of the agreementnhejav amount received and shall. _' in itl Rs.10,000/~ as damages. In the the breach, the amount paid invladeance was to be forfeited. The Apea agreement holder is entitl§ecl:li:'Vol_r--
24. Fin;-tr;..;e;,""iii-V..AIRiij.1s79]sci' 1241 (Prakash Chandra vs. Angadlal' and'cthlerrs}.rV_viherein there was an amicable settlementl"betwVeen_ ti1le"p:a;rties and it was held by the Apex Courtgthat it doesflfinot har the enforcement of the contract counsel for the appellant relying _ upon««..the_v'declisicn of the Apex Court in AIR 1996 SC 1504 Vl{'Mn/sp.1'...Itv..D;eb and Associates, v. Sunanda Roy)' contended r.ithat..xanfhen the purchaser was to make the part payment A4, 31 RFA 440/99 Within the stipulated time, the failure on the part of the respondent to comply with the terms of the agreement affected the appellants right to purchase suitaiole accommodation for himself out of the part paymen__ti'lan'd.p the respondent was unwilling to perform tiheu contract, it was held that idecree -;.9e¢ifi¢ performance cannot be granted.
It is relevant to note tha"tV._so far payment is concerned. the defendant hVadV_'VAr'e.ceii'red an diairnount of Rs.5,000/- at the time of thethe document and he himself~vrc'q;l'este_d for7extens'ioVnWof time to execute the dociiAment.hiVy=f:anit endorsernent as per Ex.P.8 (a) and despite thepéfacvt had to vacate the tenant in possession of tl1"e=proper.'ty and produce certain records, did notndo so tillvthve institution of the suit. Hence, -he cannot b1«.nr1;-.__Vp:he for inaction on his part as it was a part V dd _ of thecontraclt of the defendant that was to be enforced by .4""yua.:tat__ingi't'he tenant and producing the relevant records. In ' r.such'~circumstances, the decision referred to supra is of no niahelp to the appellant. C 13;; Rm 440/99 Furthermore. he relied upon the decision reported in AIR 1996 SC 2095 (His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar) wherein the Apex Court taking into consideration the term "ready and willing to perform" held that it has to be inferred from of the party and attending circumstances.-'..':fl'hVefTfieridhopri herein was in dire need of cash alfifihfltp daughter's marriage and the timei'1'wais_A_theiesvsence contract. The purchaser haifiiig to* i pay the consideration.' Then.---dr'aft"«isalei "deed_.i§was not returned by him after being. with seven days as stipulated. am;-._i'n._'su_c':'1i circumstances, the relief of specific pi::r_forn1ancie.i rightly refused. There are no such._circumsta'nc,es established by the defendant about the nn'W,iillin:Agnes's«~..of the plaintiff being ready and wining to of the contract. Much the less, as stated aborfe. t~here"':was a denial of the agreement of sale at the H _ufirsrt_'ins't'ance by filing written statement and later in the s._ie1._rider1ce. it was admitted and furthermore, when the nrstguired documents were not produced. the reply notice DL 33 RFA 440 /99 did not contain any inaction on the part of the plaintiff to make a statement of denial of the execution of-"the agreement and in such circumstances, the down in the above decision cannot be applied.
26. Finally, the learned relied upon AIR 1985 A1lahabad4_'22i3'.(jBijai V others v. Shri Shiv Kurnar an"ci:'an_othex<]l. the Hon'ble High Court of the requirements of Section relief Act is mandatory and n1e'i'eL.'proof of-.rea'dinefss,__aVnd willingness is not enough .to._lthat--~e.ffect is in the pleadings must be tftadte.' oittmjs aspect of the matter, if the plaint is looked intlo,__4iln_parai specifically stated that the '..plaintiff;\iras readyiavndpvwilling to pay the balance sale A'consid.e:rat_ioin -o:f'=Rs.35,000/-- to the defendant through out onlithe..exeVctitviori~:;of the sale deed in his favour and though the is i.i'eacijr. to perform his part of the contract, the :'i.v',dei'ez1dant has failed to perform his part of the contract by the sale deed. So apart from this pleading, the 'plaintiff in his evidence as PW.1 has stated that he was A 34 RFA 440/99 ready and willing to perform his part of the contract and was ready with the cash amount of Rs.35,€)OO/~ and as the defendant did not execute his part of the contract, he issued the notice, wherein the defendant replied_4vde"n_yi.ng the execution of the agreement itself and even after the notice, he approached_"ti1ei:=z1e'fendant personally on many occasions and as-~h.i3s iefforts were vain, he had to institute the suit___.
27. It is no doubt truer-*t*h.a_t-- after thereply notice Ex.P.'7 is dated 17.3.i"98_7-, came to be instituted in .__mon'th'V' lieh~ruary«v:.lll990. But the plaintiffijn 'hiss eyidence4Vt'st:ates"that even after the receipt of the notie"e.__4fro_mxl'th'eldefendant, he went personally to the _.V.defensi{ant'~to pxersuvadev him to execute the sale deed by A'~._rec'ei,ving theérernaining sale consideration all along and as ldefendiavntifefused and as his efforts were in vain. he V had in.stitute the suit. It is no doubt true that except oral Veriridence of PW.1, there are no such documents t.inh_letWeen this period but that itself is not sufficient to .:'_"ed»is--card the oral evidence of PW.1. Much the less, it is ad 35 ' I RFA 440/99 relevant to note that the conduct of the defendant was not appreciable as he at the first instance denied the execution of Ex.P.}., but under Ex:.P.8, he admitted the sale. His conduct also makes it very clear tiiajt before the Court with the clean hands. and cannot be permitted to take conduct and put forth the blaxneon ad'vers_ar:3fVV."VS'o there" i is pleading as required Specific Relief Act. There is of it and therefore, the referred to supra deriot ;1a.p;ply':.:tpl'the." facts. Furthermore, the counsel als'ofj_.V AIR 1919'? SC 1751 (K.S.Vid3Aranadam_an.dv_ot§1pe'rs Vairavan) wherein there was an agreement of sale and" certain time limit was prescribed "for steps or other party, it was held that the utiineii/Vthiehpessence of the contract. There was total ina.';tionV_oni3--.V_the part of the purchaser for 2'/2 years in V.,vio1ation'i.of terms of agreement and delay coupled with "es-uVhst*antial rise of properties. The Apex Court held that it 5L.-
36 RFA 440/99 would be inequitable to give relief of specific performance to the purchaser.
28. The sale agreement in the case was for an amount of Rs.60,000/-» and amount of Rs.5.000/~gWa:s'--«pai'd in advance. In para 11 of the above judgment, ' Court observed thus: ._ "11 ......................... .. Thé, expressly provides thatif-'the p'ia_intiff fa'ilsA performing his part of"'gthe con:§_ac:f;'.= tihiefl defendants are entitled to Viforfe'itA the iie'ag<ne.5§t money of if the defendants fail to "p_e'rf9rvrn of the pay double the said paying the small amount [as against the total r_.z:'unsideiration'iof l?.s.v60.000/-J the plaintiff did '-.,..l'1'0'iA.hil"tvD'A unti1""i-rev issued the suit notice 21/2 _¢ye='-lf$iaftevr._ the agreement (Emphasis supplied indeed, we are inclined to think that A-__the.~regjor of the rule evolved by Courts that ti~rn'e;_ is not of the essence of the contract in A' ytheiiicase of immovable properties -- evolved in it '-- times when prices and values were stable and inflation was unknown-requires to be relaxed. 37 RFA 440/99 if not modified, particularly in the case of urban immovable properties. It is high time. we do so."
29. It is true that the herein the casejas ~ time is not the essence of the contract. but'it*:'i;s lrelevaatu"
to note that the conduct of the deafenjdarit horiafifiei, in the sense that he never "agreed. that l'the.r'e--..V.wa3s a1L_"
agreement of sale till his deposi'tion.._»in theother? suit was produced at Ex.P.8. Vl<'ur"che'rmsore;'*-it relevant to note that the suit property is-av.si'te'i--n Va as mentioned in the plaint4_it.§e1'£;.t'Ti1e'i'e with regard to the rise inV"jiricesiifinbeitweleni'-the Hate of agreement and the institution of thVe«.'Vsuit._.'i3o"'far as the suit is concerned. though it xl1as* been} instituted in the year 1990, the "'~._vlitigat:ionV'is penEEin.g...before the Courts for the last more th;an«..._This delay on the part of the Courts to disgirzse oi"-.Vt._he'c1=litigation cannot be to the detriment of the [Vpersonx §v.1;§' 'approaches the Court for the relief. So far as "_'~the'l*-péricles of the properties inbetween the date of the transaction and the date of the institution of the suit, "there is no material at ali placed on record to prove that >4 38 RFA 440/99 there was rise in the prices. Though the defendant has taken up a contention that the property was "worth Rs.l,50,000/- on the date of the transaction, the written statement about the execution did not say anything with regard ;toAiVits.actua:1ii he admitted the sale valuation is less or more is not:ja~..criterion.55:-._gg.#§'ider the"
refusal of specific perfo.rrnan.ce*.ii:..iiiilntltper i:3iip'lan.a:tion E to Section 20 of the isstated:
''Ex.p41_an.@l\tio.nH--if ' of consideraiticnii mere' "faet that the contract gins,' onerous. to-' the defendant or irnvprovident-«sin'Vits«.n'aturef, shall not be deemed to 'constitute' advantage within the meaning of c1ause".{a) or hardship within the , aning ofclause (b]".
V in the decision cited supra, after the agfeernentplaintiff kept quite for 21/2 years and then fissued they notice calling upon the defendant to execute the
2..:sax1eiic¥;.eed but in this case on hand the agreement was cit:
and the notice by the plaintiff was issued on " 29.07.97 i.e., within five months of the sale agreement and $6,.
39 RFA 440/99
not after 21/2 years. Hence. the fault lie with the defendant as it is he who denied the execution and did not perform his part of contract.
30. So mere inadequacy of considerations'isifriot e-I criterion to reject the specific perforrriance., 73Z'o:
the counsel for the respondent has relied upon_"_a"de'cisio'nc it reported in AIR 2000 so 'mics [MotiEal_"'.= d"&.inW Vs. Sn1t.Ramdasi Devi and Vothers}Ai"i2vi;creiii.._ the 'Apeit Court taking into consideration aspects held:
"The _ ioilowifigg :'espee'£e.i"_;.er' "delay are re1evant._i--n:».a __s*p_eci_fic§' vperforrnance of contract saie' iirnmovable property: (i) Delay} _ running' « period prescribed under theii1.»irnitatAio'n..:Act : (ii) Delay in cases wheree..though_Vthe suits are within the period of A l'irriitatio'n., ye£""(e)i due to delay the third ' acquired rights in the subject ._ }eatt'e,;"*'_..1,,1¢,,{f"euit; (b) in the facts and Ac'ircuVrnstia~nces of the case. delay may give rise to 'plea of waiver or otherwise it will be i. it inequitable to grant a discretionary reiief".
bi, 40 RFA 440/99
31. The Apex Court took into consideration the fact that there was a contract stipulated for executionwp'o'f_the sale deed within five months. the purchaser the last notice to the seller about 14 months%afte'rV.expiry V' of five months period, the suit fi1e'd"ni'ne_n--;onthis" i«after7th'e last notice and it was held that cannot be belated so as to deny the re1ief--v.;i)if'sbpecitic.peprfornsiance.
32. As could seen :.th_eW.facts the above case, there was an agreement forian of Rs.38,000/-- and Rs.17,0Q0)'>«p._pivas :=_paid--..7as'a amount and the Apex Court a--e..d,e4c:5'e.ei"foi'Aspecific performance. It is no doubttrue on hand. the advance money paid is on1yeRs¢5,iG!_)il/if," 'it cannot be forgotten that the plaintiff was all while ready and willing to perform his part_, of contract and issued a notice Ex.P.6. There was de.niia._1_«Aof:iiVt~he'i~:e}i.ecution of the agreement by the reply V by _ notice and though the defendant had to produce documents to the plaintiff, he did not do so. He also 'e.exec--1:ted anether agreement of sale in respect of his ;nether's property in favour of the wife of the plaintiff, who b4 41 Rm 440/99 filed the suit in O.S.No.901/1990 and it is in the said suit that the defendant admitted the execution ";the agreement Ex.P.1 in this case. So this shows on the part of the defendant in executing" do_c~u'n:ie'nt_ if and then to deny the same and therefore,._ if. thisfpcondiicft is taken into consideration in equityV.1__th'e_ discreti'on'~ be exercised in favour of thev.__d"efend.antV ineirelyyufibecause if that an amount of Rs.5,.0.(_)O/--,w'asAea_s advance money.
33. The counsel for the .i};g§f'_1'-elied upon the decision reportesiriyii g19«96"«.§C-j_"1l_6:VVfi(N.P.Thirugnanam (D) by LRs. v; and others) wherein the Apex Ctourtiivhield ..t4ha,it"'--wi1en the plaintiff was never ready with"resources'.ia1:.gj"_.~e.money to fulfil his part of the contract, 'the dismissalvof the suit for specific performance ofthe con.t1'.act, was justified. As held in the case referred tio.ah.oj.re"an_d_"facts stated, there is nothing on record to if _ shovcfwhen the plaintiff refused to perform his part of the i""iv.u'*--contract*"in paying the remaining sale consideration. the said principle do not apply to the case on hand. 54 42 RFA 440/99
34. The counsel also relied upon the decision of the Apex Court reported in (2008) 4 SCC 212 (Ramalgrishna Pillai and another vs. Muhammed Kunju wherein the High Court was of the View thatflthereVVi'iist plea of readiness and willingness :and"the 'i.Sui.ti:caf_ne to; he dismissed as barred by time. But, the the agreement was valid ar:d*.th'e_re was no coriteiition in"
the written statement '"»tLhe iireadiness and willingness on the part' _ So when the defendant in ._<_:age:."'drj--the extent of denying the. --eannot"rnake a claim that there was no willaintigness on the part of the plaintiff in 'paying'A:the".§§'1rz-aiming sale consideration and therefore, the _o1aintiff'v.cannot be put at fault. The coiiiiééll also further relied upon (2008) (4) Dayandeo Nail: (dead) through I..Rs and others) the facts reveal that the agreement of sale f"~.«.._"was dated 31.7.1985 and the sale consideration was and Rs.20.000/-- was paid in advance and the sale deed was to be executed within six months. The notice ti 44 REA 440/99 thereafter the plaintiff approached the Court for the relief. In such circumstances, merely because that afjsmall amount of Rs.5,000/- was paid in advance is ground to refuse the specific performance. for' if the appellant has relied upon the decision of of Delhi reported in AIR 1990 _I)e1hilI280_.(C.IilJ'ain 'vf Chand] wherein .in the suit 'fore-lspecificl pefr;:ro'£m"ah¢e of if agreement to sell, th.e...V.defendan:t' 'seller has Qaady to perform his part off' l" ,:and in such circumstances, vrgourt V buyer under Section 16 .th_e,.:_?entireilbalance consideration in Court earn interest and the interest is safeguarded. As could be seen from the pre.visiovns"of Section 16 (c] of the Specific V' Relieif the explanatvion to the said provision reads:
................... ..' ...... ..
- -- For the purposes of clause (c)-
l(i}"llwhere a contract involves the payment of tnoney, it is not essential for the plaintiff to lfilactually tender to the defendant or to deposit court any money except when so directed by the court:
45 RFA 440/99
(ii) the plaintiff must aver performance of or readiness and willingness to perform. the contract according to its true construction";
37. So as could be seen from these Provi.$i(ii'1s.Vi'Va?hen V' the contract involves the payment l'vIf:1.('I)I1It':§:t,Q"
necessary for the plaintiff togdeposit in or tender the same to the deifenidant siarheniii the Court so directs. .
38. Furthermore,' the plaintiff must aver pg;»f'o.rn1ancAe to perform the contract ac£?:ord'i~ng"t'o_ itsft-ru'e.__construction. In the facts on hand, t.,her__e. .g_p;eci'flpc"'-averinent by the plaintiff of his readiness ._and ' Vito perform his part of the COI1t1';'aCt_tO paAyV'theV' remaining sale consideration and °:a9;igh contractwinvolves the payment of money, the , iVdi.d.?not give a direction to deposit the money soithat v_ti1-evifeiefendant could have taken the benefit of the R"*.__V"'interest_accrued on the said deposit as held in the decision i."referjr§ed to above. When the law given a discretion u/S. of the Act to direct the plaintiff to deposit the oi, 46 RFA 449/99 balance sale consideration so that the defendant couid get the accrued interest it is in the ends of justicie"--._»that discretion should be exercised by the Courts direction as no injustice would be caused parties and even if the plaintiff:-'fails.he:jrro'ulVd.4_ amount with interest. So talting aspect, I am of the Opinion could"
have been given to the ,p.laintiff--to-deposit' themdney with interest and the Trial Court in not giving suchia Vdirec't'iorr::1;nde'r_the eicplanation stated above, shoigidv._ingfailurewof justice to the defendant entree tr-:.cVV1'uitji«e.:has tomprevail, So if the plaintiff had deposited' sale consideration of Rs.35A,0_00/-finpithe ..TrialviC"ourt and if such a direction was r_giveit1::'t11-e arnountcould have been paid to the defendant the specific performance of the contract._ wrong committed by the Court shali not "result i~I'vl'1'§'}SS to the defendant and at the same time, when A f}:heViip~l.aintiff had retained the amount of Rs.35,000/-, I f think that the interest of justice would be met in case if he <><L..
47' RFA 440/99 is directed to pay the accrued interest on the amount of Rs.35.000/- and considering the nature of the tran-.sac4t1o_n, the rate of interest etc.. it is just and proper _ plaintiff to pay interest at 8% p.a.mon the 'reIri:aining.Asai:e * V. consideration. In the circumstances, ltihifés directiodndhpaseitd be incorporated in the decree granted in apfavuour of then', plaintiff by modifying it. for dthisidirection the appellant has not madedint to call for any interference and taken into consideration record and has granted the 'c.ircu.i:1stances, I answer the point A' _ partly in negative and directing'ti1epayinentiiofidhinterest and proceed to pass the following:
ORDER aidppeal is allowed in part. Affirming the judgn1ent."i'a_1fd decree for specific performance. the V'-Iespondeiit (plaintiff) is directed to pay interest at 8% p.a. d"iidion_n"'t_=he amount of Rs.35.000/~ the balance sale consideration. from the date of institution of the suit till ti 48 RFA 440/99 its payment to the appellant and this accrued interest shakl not form part of the sale consideration and shali be paid to the appellant on or before the date of the exeeution of the registered sale deed. No costs. ~ ~ 1 - ~ JL