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He has referred to the judgment in the case of Parakunnan Veetill Joseph’s son Mathew Vs. Nedumbara Kuruvila’s son & Ors.[5], in support of the proposition of law that the court must meticulously consider all the facts and circumstances of the case for grant of a decree for specific performance and the court should take care to see that it is not used as an instrument of oppression to have an unfair advantage. Further reliance is placed upon another judgment of this Court in Nirmala Anand Vs. Advent Corporation Pvt. Limited & Ors.[6], wherein this Court has held that specific performance is an equitable relief and the Court has to strike a balance of equities between the parties keeping in view the relevant aspects, including the lapses that occurred in the facts of the case. Further, the High Court has held that the parties are respectively responsible and though the plaintiff- purchaser always remained ready and willing to perform his part of the contract, the defendant Nos.1-4 have not performed their part of contract. Therefore, the High Court has set aside the findings of fact on the contentious issues recorded by the trial court against the plaintiff. Further, the learned Judge of the High Court has held that Section 53-A of the Transfer of Property Act, 1882 provides protection to a transferee on certain conditions, one of which is that transferee has performed or is willing to perform his part of the contract. It is further held that once a party to a contract has repudiated the contract, it is not necessary for the other party to tender the amount payable under the contract in the manner provided in the contract in order to successfully claim the specific performance of the contract by placing reliance upon the judgment of this Court reported in International Contractors Ltd. Vs. Prasanta Kumar Sur (Deceased) & Ors[7]. wherein this Court has explained the above legal position. In another decision in A. Maria Angelena Vs. A.G. Balkis Bee[8], this Court has made observations with reference to the plea that for grant of a decree for specific performance would result in serious hardship to the vendor or the subsequent purchaser and that the plaintiff should be compensated in terms of money must be taken at the earliest stage. Further, the High Court with reference to the deed of conveyance in favour of the 5th defendant executed by defendant Nos. 1- 4 raised the question as to whether the defendant No.5 was a bona fide purchaser for consideration without notice of the earlier Agreement of Sale in favour of the plaintiff is examined and answered against the 5th defendant. The defendant Nos. 1-4 have remained absent and unrepresented in the original suit proceedings, hence they were placed ex-parte, and therefore, the plea of the 5th defendant that the plaintiff must always be ready and willing to perform his part of the contract under such circumstances is wholly untenable in law. In view of the said factual position, the plea that the plaintiff has not been ready and willing to perform his part of contract as per the agreement, is available to the 5th defendant under the concluded contract between the plaintiff and defendant Nos. 1-4, as per Agreement of Sale dated 25.12.1983. In this regard, the High Court has placed reliance upon the judgment of this Court in MMS Investments, Madurai & Ors. Vs. V. Veerappan & Ors.[9] in support of the proposition of law that the 5th defendant stepped into the shoes of the vendors, and that the question of readiness and willingness cannot be pressed into service at all in facts of the case. The learned Judge of the High Court while recording his findings and reasons on the contentious issues has re-appreciated the pleadings and evidence on record with reference to rival legal contentions, and he has placed reliance upon the catena of decisions of this Court and the Division Bench of the Karnataka High Court and has held that not granting of the decree for specific performance in favour of the plaintiff is held to be bad in law and he has set aside the judgment and decree of the trial court and the same was modified granting decree for specific performance as per Agreement of Sale in favour of the plaintiff and modified the judgment restraining the defendant Nos.1-4 not to disturb the possession and enjoyment of the suit schedule property of the plaintiff.

As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5.

27. Further, the High Court should have considered the relevant and important aspect of the case namely that the plaintiff is entitled to compensation as agreed upon by him under clause 12 of the Agreement of Sale which is in favour of defendant Nos. 1-4. It provides that the defendant Nos.1-4 have agreed that in the event of their failure to comply with the terms of the agreement they shall pay sum of Rs.10,000/- to the plaintiff and also such sum which is spent by him towards conversion charges and building plan charges. Similarly, the plaintiff had agreed that in the event of his failure to comply with the terms of the agreement the defendant Nos. 1-4 are entitled to forfeit the advance amount. This important aspect of the terms of the Agreement of Sale has not been noticed by the learned Judge of the High Court while reversing the judgment and decree of the trial court and granted the decree for specific performance in favour of the plaintiff in exercise of his discretionary power under sub-sections (1) and (2) of Section 20 of the Specific Relief Act. Further, in view of the foregoing reasons and statutory provisions of Sections 16(c), 20 (1) and (2) and 21(2) of the Specific Relief Act, the plaintiff is not entitled for a decree of specific performance in respect of the suit schedule property and also he had lost the right to seek a decree of specific performance.

28. The learned High Court Judge has gravely erred in reversing the findings of fact recorded on the issue Nos. 3, 4 and 5 by the trial court in favour of the defendants. He has also failed to take into consideration the very important aspect of the matter, namely, that the Agreement of Sale in favour of the plaintiff was terminated and he had not sought declaratory relief to declare that the termination of agreement in the original suit is bad in law and therefore the suit for specific performance is not maintainable. Even assuming for the sake of argument that agreement was subsisting, the suit for specific performance is not maintainable in law in view of the breach of the terms and conditions of the agreement by the plaintiff. Keeping in view the purpose for which the Agreement of Sale was executed and the time stipulated in the agreement as per clause 6 of the agreement, the contract should have been complied with within seven months including the extended period and that has not been done by the plaintiff. The findings recorded by the trial court on issue Nos. 4 and 5 and with regard to the readiness and willingness on the part of the plaintiff, the appellate court should have exercised its discretionary power under sub-sections (1) and (2) of Section 20 of the Specific Relief Act, and for this reason also we hold that the grant of the decree for specific performance by the High Court in the impugned judgment is wholly unsustainable in law. The trial court has come to the right conclusions on the contentious issues framed by it and has held that even though Agreement of Sale is proved, the plaintiff is not entitled for the decree of specific performance in respect of the suit schedule property in view of the findings of fact and reasons recorded in the contentious issues by it in its judgment and we are in agreement with the same.