Karnataka High Court
B Boraiah vs Madaiah Dead By Lrs on 12 October, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. NO.906/2011
Between :
B. Boraiah S/o Boralingaiah
Aged about 60 years
R/at No.66/1, 12th 'B' Cross
Agrahara Dasarahalli
Magadi Main Road
Bangalore-560 079 ... Appellant
(By Sri G. Vedavyasachar, Adv.)
And :
Madaiah Since dead by L.Rs.
a) Smt. Ningamma
W/o late Madaiah
Aged about 56 years
b) N. Mahadeva
S/o late Madaiah
Aged about 41 years
c) M. Mallesh
S/o late Madaiah
Aged about 36 years
d) M. Chandrakala
W/o B. Devaraj
D/o late Madaiah
Aged about 35 years
All are r/at No.20/1
2nd Main, 6th Cross
2
Govindarajanagar
Bangalore - 560 040 .. Respondents
(By Sri P Krishnappa, Adv. for R(a-d))
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated 23.04.2011, passed in
O.S.No.7097/1993 on the file of the XXV-Addl. City Civil
Judge, Bangalore, partly decreeing the suit for Rs.1,80,000/-
with interest thereon at 6% P.A. From the date of suit till
realization and also rejecting the suit for specific
performance.
This appeal having been reserved for judgment, coming on
for pronouncement at Dharwad Circuit Bench this day, the Court
pronounced the following :
JUDGMENT
The appellant herein is the plaintiff in O.S.No.7097/1993. The suit was initially filed seeking for specific performance of the agreement dated 12.05.1993. Subsequently it was sought that if the agreement land is acquired, the defendant be directed to make good the area in the southern half of the land. Thereafter by amending the plaint, the alternative relief for refund of the amount of Rs.1,80,000/- was sought. The Court below after considering the rival contentions though held the material issues in favour of the plaintiff has refused the relief of specific performance but has decreed the refund of Rs. 1,80,000/-with interest at 6% 3 p.a. The plaintiff is therefore before this Court in this appeal seeking for the relief of specific performance.
2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
3. The case of the plaintiff is that the defendant agreed to sell to him an extent of 1 acre 20 guntas of dry land out of the property bearing No.8B, with AC sheet roofing houses, borewell, pump shed etc., situate at Malagala Village, Yeshwanthapura Hobli, Bangalore North Taluk for the agreed sum of Rs.1,80,000/- as per the agreement dated 12.05.1993. The defendant is stated have received the full sale consideration which is also recited in the agreement. The plaintiff claims that he was put in possession of the said land and he is therefore in enjoyment of the property. It is his case that it is indicated in the agreement that the sale deed cannot be executed at that juncture since the defendant had obtained loan from Karnataka State Financial Corporation ('KSFC' for short) on the security of the 4 property and as such undertook to discharge the loan and thereafter execute the sale deed. It is averred that the full extent of the land in Sy.No.8 originally belonged to the family of the plaintiff which was purchased by the defendant under sale deed dated 06.12.1980. Thereafter the plaintiff had assisted the defendant raising the brick kiln. In that background, the defendant agreed to sell half of the land to the plaintiff and the said agreement materialized. Hence, it is contended that except for execution of the sale deed, all other formalities were completed.
4. The plaintiff contends that despite the same, the defendant was negotiating and attempting to sell the same to the third parties with dishonest intention. The plaintiff on learning the same caused issue of legal notice dated 09.11.1993 demanding the completion of the sale transaction. The defendant however got the same replied on 25.09.1993 denying the transaction in an attempt to recile. The suit was accordingly filed. The plaintiff thereafter amended the plaint and sought for 5 refund of the amount with 18% interest as he has been deprived of the use of the amount. Thereafter the plaintiff on learning that a portion of the land is acquired for formation of Ring Road, sought for making good that extent from the southern half which is in his possession.
5. The defendant on being served with the suit summons appeared and filed his written statement. The entire transaction as claimed by the plaintiff was denied and it is contended that the plaintiff taking advantage of their close relationship has concocted and fabricated the document. The alleged agreement dated 12.05.1993 is denied, the receipt of Rs. 1,80,000/- and delivering possession is also denied. The defendant would state that it is a fact that he has secured loan of Rs. 4,51,000/- from KSFC by mortgaging the property. By obtaining such loan and by investing further amount has put up both residential and non-residential constructions, in all there are eleven ACC sheet houses and brick factory sheds measuring 120X40 ft, 130X40 ft 6 and 140X40 ft which are all tiled roof and another shed measuring 70 X 50 ft of ACC sheet roof as also borewell, pump shed etc. For all the said improvements, he has invested more than Rs.20,00,000/-. Hence, the property in all is worth more than Rs. 50,00,000/-. It is situate in a well developed area of Bangalore surrounded by the layouts formed by Bangalore Development Authority at Nagarabhavi II Stage. The suit property is also notified for acquisition under the preliminary notification dated 15.07.1982 and final notification dated 05.08.1986. The plaintiff is also aware of these aspects but has suppressed, is his allegation.
6. The defendant further contends that the plaintiff being a close relative of the defendant was treated as a Manager of his brick business and as such he was looking after the business and was also maintaining the accounts relating to lorries meant for transportation of bricks. In respect of the residential buildings constructed by the defendant in Govindarajanagar, the lease agreements etc were made 7 with the tenants at the instance of the plaintiff and during that time the plaintiff must have created the alleged agreement without the knowledge of the defendant in order to knock off the property for the paltry sum of Rs. 1,80,000/- though the property was worth much more. The question of delivering possession also is false inasmuch as the defendant is carrying on the business therein.
7. In view of the amendment to the plaint, the defendant has filed the additional written statement. It is contended that as already pleaded in the written statement, the land had been acquired in 1986 and the Ring Road is formed recently in a portion and the defendant in any event could not have objected to such acquisition. The prayer made for the alternate extent of the land is also disputed.
8. The Court below after taking note of the rival contentions has framed seven issues initially and then three additional issues were framed in view of the 8 amendment made to the pleading. The issues are as hereunder:
Issues
1. Whether plaintiff proves that the defendant agreeing to sell the schedule property for sale consideration of Rs.1,80,000/- executed an agreement of sale Dt.12.05.93 and received entire sale consideration of Rs.1,80,000/-?
2. Whether plaintiff further proves that the defendant in part performance of the agreement dtd.12.05.1993 delivered possession of the suit schedule property to him?
3. Whether plaintiff proves that he is always ready and willing to perform his part of the contract?
4. Whether the suit is not maintainable for the reasons stated in para 11 of written statement?
5. Is the plaintiff entitled for specific performance of the agreement of sale dtd.12.05.1993?
6. Whether the plaintiff proves that in the alternative he is entitled to the possession of the suit schedule property as prayed?
7. What decree or order?9
Additional Issues
1. Whether the plaintiff proves that in the alternative he is entitled to the refund of the amount of Rs.1,80,000/- paid in full consideration with interest at 18% p.a. from the date of payment till realization?
2. Whether plaintiff proves that southern side of Sy.No.8/1A is still in the ownership & possession of LRs of defendant?
3. Whether plaintiff proves that he is entitled to a corresponding area of space in the southern side of Sy.No.8/1A, of what is lost due to acquisition for ring road, in the northern side of the property?
9. In order to discharge the burden cast on the parties, the plaintiff examined himself as PW-1 and examined the witnesses to the agreement as PWs-2 and 3 and relied upon the documents marked as Exhs.P-1 to P-19. The defendant examined himself as DW-1 and examined two witnesses as DW-2 and DW-3 and relied upon the documents marked as Exhs.D-1 to D-31 (c). The Court below on analysing the evidence has though held the issues relating to proof of the agreement in 10 favour of the plaintiff, has held Issue No.5 against him but Additional Issue No.1 was held in his favour and decreed refund of the amount with 6% interest per annum instead of granting specific performance.
10. Heard Sri.G.Vedavyasachar, learned counsel for the plaintiff, Sri.K.Bhanu Prasad, learned Counsel for the defendant and perused the appeal papers including the records received from the Court below.
11. As already noticed, the Court below has held that the agreement dated 12.05.1993 has been executed by the defendant and that the consideration has passed and in that regard has directed refund of the amount with interest at 6% p.a. It is to be noticed that despite the material issues being answered against the defendant after rendering the finding against him, the defendant has neither filed an appeal assailing the same nor has he final objection on service of notice in this appeal despite the decree for refund. Notwithstanding the same, the learned counsel for the plaintiff and the learned counsel for the defendant have taken me 11 through the pleadings and the evidence relied upon by the parties. The learned counsel for the defendant in any event was not able to point out specific error committed by the Court below in the finding rendered by it on issues No.1 and 3 with regard to the validity of the agreement and the plaintiff being ready and willing to perform his part of the agreement. In that regard, the plaintiff had examined himself as PW-1 to state about the execution of the agreement. After stating about the manner in which the negotiations had taken place and the presence of the witnesses Sri Nagaraj and Sri Nanjundaswamy who is a relative of both the plaintiff and the defendant, he has stated about the Advocate Sri K.T.Prakash having drafted the agreement at Ex.P-1. The presence of another witness Sri Ramakrishna was also stated.
12. The said witness Sri Nanjundaswamy has been examined as PW-2 who has spoken with regard to the agreement and the said lawyer Sri.Prakash having drafted the same. Though it is sought to be pointed out 12 from the cross examination that he is a relative of the plaintiff, known to him for 20 years, the fact that he is a relative of the defendant also cannot be disputed. In so far as the negotiation and agreement, he has withstood the cross examination except stating about not knowing the name of lawyer. The other witness to the agreement Sri.Nagaraj has been examined as PW-3 and he has stated about the agreement being executed and about the lawyer Sri.K.T.Prakash having drafted the same. He has maintained the same in his cross-examination. In so far as the minor discrepancies in the cross examination of PW-2 relating to the name of the Advocate, the learned counsel for the plaintiff in order to contend that it would not be material has relied on the decision of the Hon'ble Supreme Court in the case of Rammi alias Rameshwar Vs. State of Madhya Pradesh (AIR 1999 SC 3544).
13. In any event, by the evidence tendered by PWs-1 to 3, the primary burden of proving the execution of the agreement has been discharged and the 13 details of payment of the amount had been contained therein. When this was the position and when the defendant had taken a contention that the agreement (Ex.P1) was concocted and fabricated and had also referred to the circumstance under which the agreement must have been prepared, the onus was heavy on the defendant to discharge that the agreement shown to have been executed was a concocted one when the signature itself has not been disputed. The defendant no doubt examined himself as DW-1 and reiterated the stand taken in the written statement. The rental agreements entered into with the tenants of the Govindarajanagar property of the defendant are marked at Exhs.D-9 to 15 being on 06.03.1993, 08.03.1993, 11.03.1993 and 20.03.1993 to show that the plaintiff was a witness to the same. Hence it is contended that the sale agreement dated 12.05.1993 must have got signed when the said agreements were signed. Such presumption cannot be drawn unless acceptable evidence in that regard was tendered. The learned counsel for the plaintiff in order to rule out even such 14 possibility would point out that the date of the availability of stamp paper (Ex.P-1) itself is on 30.04.1993 as seen on the face of it which is subsequent to the date of the said rental agreements. In any event, based on the said evidence available on record when the Court below had rendered its finding on Issues No.1 and 3 and nothing has been pointed out to indicate that such finding is perverse or erroneous, the same will not call for interference in the appeal filed by the plaintiff.
14. The question therefore for consideration is as to whether the Court below was justified in refusing specific performance atleast to the extent of the property available after excluding the portion used for formation of the Ring Road by the BDA and as to whether the discretion exercised by the Court below in view of the power available under Section 20 of the Specific Relief Act ('SR Act' for short) is proper. Further, whether the refund of the amount with interest at 6% p.a. granted is sufficient. In that regard, whether the judgment and 15 decree of the Court below will call for interference needs consideration.
15. The learned counsel for the plaintiff with reference to Section 20 of the SR Act would contend that for exercise of such discretion in favour of the defendant in a suit for specific performance, there should be plea and proof. Section10 of the SR Act wherein there is provision for granting specific performance is also to be kept in view is his contention. The learned counsel for the plaintiff would further contend that in the instant case, except for denying the agreement, the hardship faced if specific performance is granted has not been pleaded and proved. Even the appreciation of the value of the property as stated is imaginary and the attempt is only to wriggle out. Though it is contended that BDA has acquired the property, it has lapsed and defendant is still in possession. If in fact it is acquired, he cannot contend that he has carried out improvements on that portion. The defendant cannot take advantage of his own wrong 16 even if he has sold portions or carried out improvements during the pendency of the suit. The plaintiff on the other hand has mobilized the resources with great difficulty and the entire sale consideration of Rs. 1,80,000/ had been paid as far back as in the year 1993 with the hope of acquiring the property and settling his sons. Hence, the discretion to grant specific performance should be exercised in favour of the plaintiff is his contention. In order to contend that the defendant has not lost right over the land despite the acquisition initiated by the BDA, the decision in the case of Dr.G.H.Grant -vs- State of Bihar (AIR 1966 SC 237) is relied, wherein it is held that the right of the owner is extinguished only when compensation is paid and possession is taken. The decision in the case of Sardar Singh vs Smt. Krishna Devi and another (AIR 1995 SC 491) wherein it is held that as provided under Section 12 of SR Act, specific performance of the part of the contract can be granted is relied on to contend that even if a portion is utilised by BDA for the Ring Road, remaining extent of the northern portion 17 agreed to be sold is still available and decree be granted for the same.
16. In support of the contention that escalation of the property value cannot be a ground to deny specific performance, the learned counsel for the plaintiff has relied on the decisions in the case of Nirmala Anand -vs- Advent Corporation Pvt. Ltd., and others (AIR 2002 SC 2290) wherein one of the Hon'ble Judges of the Supreme Court was of the view that though specific performance is to be granted, the escalated value of Rs. 40,00,000/- was to be paid. However the other Hon'ble Judge of the Bench was of the view that requiring the purchaser to pay further sum of Rs.40,00,000/- may amount to frustrating the agreement. It was held that it would be unfair to grant the decree by one hand and take it by the other since she would not be able to pay the sum of Rs.40,00,000/- In view of the difference of opinion on that aspect though both Hon'ble Judges had agreed on grant of specific performance, the same case was placed, before 18 the Bench consisting of three Hon'ble Judges. The decision of the larger bench is reported in 2002 AIR SCW 3960, wherein it was held as hereunder:
"6. It is true that grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. 19 There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
17. Holding so, in that case it was ordered that in addition to balance amount of Rs.25,000/- which was payable by Nirmala Anand, she shall also pay a sum of Rs.6,00,000/-.
18. The decision in the case of P.D'Souza
-vs- Shondrilo Naidu (AIR 2004 SC 4472) was relied by the learned counsel for the plaintiff, wherein the Hon'ble Court after referring to the two Judges Bench decision in Nirmala Anand (supra) has clarified that the said decision is not a precedent to the effect that in all cases where there has been escalation of prices, the Court should either refuse to pass a decree for specific performance of contract or direct the plaintiff to pay a higher sum. It appears that the three judges view has not been noticed in this case. The learned counsel for the plaintiff has further relied on the decision in the case of Laxman Tatyaba Kankate and another -vs- 20 Taramati Harishchandra Dhatrak [(2010) 7 SCC
717) wherein it is held that a total denial and there being no evidence that amount was still due to society and even if there is considerable increase in the price of land, it is not a ground to deny specific performance. Lastly the decision in the case of Narinderjit Singh
-vs- North Star Estate Promoters Ltd [(2012) 5 SCC 712] is relied on, wherein reference was made to an earlier decision of the Hon'ble Supreme Court while considering the scope of Section 20 of the SR Act and it has been held that the doctrine of comparative hardship has been recognised in India but mere inadequacy of consideration or mere fact that the contract is onerous to the defendant or improvident in its nature and that it shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. Noting the same, the Hon'ble Court held that in the case on its hand the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance but the plea taken was that the agreement 21 was fabricated. Hence, grant of specific performance was upheld.
19. The learned Counsel for the defendant on the other hand, with reference to use of discretion under section 20 of SR Act relied on the decision in the case of Parakunnan Veetill Joseph's Son Mathew vs. Nedumbara Kuruvila's Son and others (AIR 1987 SC 2328) wherein it is held that Section 20 of SR Act preserves judicial discretion to Court as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into judicial verdict. The learned Counsel has also relied on the decision in the case of A.C. Arulappan vs. Smt. Ahalya Naik (2001 AIR SCW 3046) where in it is held that the jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief should be granted. Merely because it is 22 lawful to grant specific relief, the Court need not grant the order for specific relief, but such discretion should not be exercised in an arbitrary or unreasonable manner. Circumstances mentioned in Section 20(2) of SR Act would guide the exercise of discretion.
20. What is discernible from the above decisions cited by the learned counsel for the respective parties is that Section 20 of the SR Act provides the discretion to the Court in the matter of granting specific performance and the Court is not bound to grant such relief merely because it is lawful to do so. Under Sub-Section (2) and its explanation, the cases in which such discretion may be exercised properly not to decree the suit is explained. The Hon'ble Supreme Court on considering the said provisions has declared the said position and has also provided guidance for the manner in which such discretion is to be exercised. As provided in the Section, it is held by the Hon'ble Supreme Court that though the Court has the power to exercise the discretion either to grant or not grant the specific performance, such 23 discretion cannot be arbitrary but should be sound and reasonable guided by judicial principles. While dealing with the cases arising before it in different circumstances, the Hon'ble Supreme Court has recognised the principle that such exercise of discretion is in the nature of doctrine of comparative hardship but, mere inadequacy of consideration or that the contract is onerous to the defendant alone cannot be the consideration. It is also laid down that there should be evidence available on record and that while exercising discretionary jurisdiction, the Court should meticulously consider all facts and circumstances of the case and should take care to see that the process of Court is not used as an instrument of oppression.
21. It is in that context, the learned counsel for the plaintiff would contend that in the instant facts also the defendant except for stating that the agreement has been concocted and fabricated, has not raised any plea with regard to the hardship or regarding the same being onerous if specific performance is granted. In the 24 absence of such plea, the same cannot be considered and in any event, when inadequate consideration or the escalation cannot be the only basis, the exercise of discretion would not arise. The learned counsel for the defendant would however refer to the entire aspect of the case put forth by the defendant to contend that it would indicate that even as on the date of agreement, the property was worth much more than the value which is indicated in the agreement. According to the learned counsel, this is one of the circumstances to indicate that there was no need for executing the alleged agreement at all and despite the same, if specific performance is ordered, it will be onerous. The fact regarding the property being notified for acquisition is also contended. It is no doubt true that in the instant facts also the case of the defendant is one of total denial and it was further contended that the agreement in question was concocted and fabricated. However, though not by way of specific pleading with regard to the hardship, there is sufficient pleading in the written statement relating to the fact that as on the date of the 25 alleged agreement, the defendant had raised loan by mortgaging the entire property with KSFC and had secured the loan of Rs.4,51,000/- and with the said amount along with his own investment had carried out improvements to the property. It was further contended that due to such investment, the property was worth more than Rs.50,00,000/- even as on the date of the alleged agreement and also that the property had been notified for acquisition and the final notification was issued on 05.08.1986.
22. The learned counsel for the plaintiff however disputed with regard to the value of the property as on such date by referring to the value which was mentioned in the reply notice dated 25.11.1993 and the value which was mentioned in the written statement on 10.12.1993 to indicate that such major escalation is not possible and also the value indicated in the sale deeds made in favour of D.W.2 and D.W.3 was also of lesser value. Notwithstanding the said contention, keeping in view the entire case which has been put forth by both 26 the parties, even assuming that the inadequacy of the sale consideration and the escalation of the value by itself cannot be a reason to exercise discretion against the plaintiff, the other attendant circumstances in the present case requires to be noticed, more particularly keeping in view the observations of the Hon'ble Supreme Court that the Court should meticulously consider all facts and circumstances of the case while exercising its discretion under Section 20 of the SR Act.
23. In order to appreciate that aspect of the matter, it is seen that the very case pleaded by the plaintiff is that he is a relative of the defendant and he was also involved in the business of brick-kiln and as on the date of the agreement dated 12.05.1993, they were in cordial terms. While contending with regard to the agreement, he had also claimed that he was in possession of the property which in fact is not correct, more particularly in a circumstance when admittedly a portion of the property which is agreed to be sold as per the plaintiff has been used for formation of the ring road by the BDA. Hence, it is not a fact that only the 27 formality of execution of the sale deed had remained as made out by the plaintiff. If this aspect is kept in view and if the plaintiff was not in possession, the fact that the defendant continued to be in possession of the property would be evident and in that context, the contention that as on such date the property had been mortgaged and the defendant had obtained the loan from the KSFC to improve the property would become relevant. If that be the position, the improvement on the land was being carried out even prior to the date of the alleged execution of the sale agreement. The improvements being carried out to the land by the construction of the bricks factory over the suit property has been admitted by the plaintiff in his cross- examination, but has attempted thereafter to explain that it is on the southern side. Insofar as the construction existing therein, the plaintiff would also say that he does not know when the construction was put up. Though the plaintiff has stated with regard to the sale deeds being executed in respect of certain extents of the property to Smt.Lakshmidevi, 28 Smt.Padmavathi and Sri Ramegowda as per Exhs.P3 to P5, subsequent to filing of the suit, with regard to the transactions at ExhsD.5 to D7, he would admit that the said transaction in respect of Smt.Padmabai and Sri Javaregowda are during the years 1990-91. As noticed, the plaintiff would admit with regard to the mortgage that had been created by the defendant and the mortgage deed has been produced as Ex.D3. The plaintiff is not only a witness to the said document, but is also a witness to the documents in respect of the transaction which Smt.Padmabai and Sri Javaregowda. That apart the plaintiff has also admitted that he was aware of the acquisition proceedings initiated by BDA.
24. No doubt, the learned counsel for the plaintiff sought to contend that the acquisition in any event has lapsed in view of Section 27 of the BDA Act and even if the mortgage had subsisted, the plaintiff will only take the consequence of the same and as such that in itself cannot be a reason to deny specific performance. However, while considering the said 29 aspect what cannot be lost sight is that the plaintiff in an attempt to justify that specific performance should be the only relief has contended that the plaintiff had with great difficulty mobilised the amount and had entered into the transaction so that the property could be utilised by his children. The bonafide of such contention gets eroded when in fact it is clear that the plaintiff was entering into an agreement to purchase the property which was to his knowledge encumbered and was also a subject matter of the acquisition process. Hence, in that regard, the plaintiff has only speculated when he was aware that there was no certainty with regard to the completion of the transaction as he was aware of the risk and the possibility of there being no specific performance. Therefore, this becomes relevant while considering whether specific performance alone should be the relief or not since the above noticed situation will point to a situation that the plaintiff was also aware of the risk involved if either loan was not repaid or acquisition was proceeded, the specific performance would be in jeopardy and had yet entered 30 into the transaction. These aspects in fact had been brought out in the cross-examination of the plaintiff himself. As such when all facts are taken into consideration, the exercise of discretion against specific performance cannot be refused on the ground that the defendant had not taken any specific plea to exercise the discretion in his favour.
25. That apart in furtherance to the above observation, what is also relevant is that the plaintiff had not sought the relief of refund as an alternate prayer at the first instance itself. However, in view of the change in circumstance, the alternate prayer has been made by amending the plaint on coming to know of the formation of the Ring Road in the middle of the land which according to him was agreed to be sold. This would indicate that the plaintiff had yielded to the position that specific performance of the agreement is not the option due to the altered situation. In addition the plaintiff instead of appropriately taking note of the actual extent that had been used for the Ring Road did 31 not alter his claim only to the remaining extent but, on the other hand has sought for the equivalent extent from the southern portion of the land. In fact this aspect of the matter would become relevant while looking into the balance of convenience since that situation would not have been foreseen by the defendant at the time of the agreement even if he had entered into such agreement. When the defendant had carried out improvements to the property and even assuming that the plaintiff had proved the agreement, but due to subsequent acquisition, if a portion of the land is lost and in order to compensate the same, if the land available with the defendant is directed to be included while executing a sale deed as per prayer (d) to the plaint, it would cause hardship to the defendant as against the position which would have been under consideration at the point of the alleged agreement.
26. Hence, keeping the above aspects in view and taking into consideration all aspects of the matter, the instant facts is not a case where specific 32 performance is the only remedy. It is no doubt true that the property is in a developed area and as compared to the year 1993, the value has increased leaps and bounds, but even if that aspect is ignored, the other aspects noticed above, in any event will indicate that there are third party rights created even prior to the agreement and immediately thereafter such persons have altered their position and if specific performance is granted, it would lead to multiplicity of litigations. As held by the three Judges Bench in Nirmala Anand's case which is extracted above would indicate that it would be open for the Court to order payment of additional amount by one party to another while granting or refusing decree of specific performance. The plaintiff in the instant case, in any event, has been held entitled to refund of the amount with 6% interest. Whether that is sufficient compensation is another aspect. Hence, the facts herein would therefore call for exercise of discretion in favour of the defendant to refuse the decree of specific performance. 33
27. The law is also well settled that though the ordinary rule would be grant of specific performance and if it is refused on equitable consideration, the damages would constitute adequate relief. In the instant case, though the defendant had denied the execution of the agreement and the receipt of the consideration, the same has been held against the defendant and as noticed above, the said finding has not been assailed even though there was decree against him to that extent. Hence, the position would be that the defendant had received the sum of Rs.1,80,000/- in the year 1993 and nearly two decades have passed by. I have arrived at the conclusion that the plaintiff despite knowing the encumbrance on the property and that the acquisition proceedings were pending, had entered into the agreement. Therefore, though it cannot be held in the instant facts that the plaintiff has been denied the opportunity of investing the same amount in any other property, since if that was the case, he would have chosen a property with clear title, the fact that he has been denied the benefit of the amount for such long 34 period is not in doubt. Therefore, the grant of interest only at 6% may not be justified since at least the interest he would have earned if the amount was kept in fixed deposit would have to be kept in mind and the growth of the amount and the subsequent investment also could be taken into consideration. Hence, it would be appropriate to direct payment of interest on the said amount of Rs.1,80,000/- at 12 % p.a. from 12.05.1993 till the date of payment which would constitute sufficient compensation.
28. In the result, the following:
ORDER
i) The appeal in RFA No.906/2011 is allowed in part.
ii) The judgment and decree dated
23.04.2011 passed in
O.S.No.7097/1993 is modified by
holding that the plaintiff is entitled to refund of Rs.1,80,000/- with interest 35 at 12% p.a. from 12.05.1993 till realisation.
iii) In the facts and circumstances of the case, the parties shall bear their own costs.
Sd/-
JUDGE Akc/bms