Allahabad High Court

Dhanu vs Ajai Kant And Others on 22 April, 2019

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 47								A.F.R.
 

 
Case :- SECOND APPEAL No. - 228 of 1995
 

 
Appellant :- Dhanu
 
Respondent :- Ajai Kant And Others
 
Counsel for Appellant :- H.N. Sharma,Manish Kumar Niranjan,Sandeep Saxena
 
Counsel for Respondent :- B.N. Agarwal,S. Agarwal,Ved Prakash Pandey,Virendra Singh,Yadvendra Pratap Singh,V0490
 

 
Hon'ble J.J. Munir,J.

1. This is defendant's appeal from an appellate decree of Sri G. Ram, the then Additional District Judge/ Special Judge (Dacoity), Jhansi, dated 07.02.1995 passed in Civil Appeal no.51 of 1991, dismissing the said appeal and affirming an original decree of Sri Pratap Singh-II, the then Civil Judge (JSCC), Jhansi, dated 15.05.1991, decreeing Original Suit no.132 of 1989 for Specific Performance of Contract in favour of the plaintiffs-respondents.

2. This appeal was admitted to hearing on the following substantial questions of law as framed by this Court vide order dated 02.08.1996:

(1) Whether the plaintiff had proved his readiness and willingness to perform his part of the contract? and

(2) Whether the discretion under Section 20 of the Specific Relief Act should have been exercised in view of the pleaded hardship of the defendant?

3. A brief résumé of facts would be necessary to appreciate the background of the dispute between parties, giving rise to these substantial questions of law. The suit here was instituted by the four plaintiffs-respondents while they were minors through their fathers and natural guardians, Ramesh Chandra and Suresh Chandra, sons of Jwala Prasad, acting as their next friends. The plaintiffs-respondents shall hereinafter be referred to as the 'plaintiffs' whereas defendant-appellant would be referred to as the 'defendant'. According to the plaintiffs, the defendant struck a bargain with them on 11.07.1986 agreeing to sell his bhumidhari plot bearing no. 67, admeasuring 6.5 decimals, situate at Village Luka, Pargana Moth, District Jhansi in favour of plaintiffs for a contracted sale consideration of Rs.45,000/-. It is pleaded that in furtherance of the aforesaid bargain, a registered agreement to sell dated 11th July, 1986 was executed by the defendant in favour of the plaintiffs, that was duly admitted to registration. It is also pleaded that the defendant accepted an earnest money of Rs.9000/- at the time when the agreement to sell was executed. He further accepted out of the agreed sale consideration, a sum of Rs.1500/- in the presence of the Sub-Registrar, when the document was registered. The defendant, thus, received as earnest out of the total agreed sale consideration of Rs.45,000/-, a sum of Rs.10,500/- from the plaintiffs by the time the agreement to sell was executed and admitted to registration. It is the plaintiffs' further case that the defendant covenanted through the agreement to sell that a sale deed would be executed by 15.02.1987 in favour of the plaintiffs by the defendant, upon receipt of the balance of Rs.34,500/-, at the time of the execution of the conveyance. It is also pleaded in the plaint that the plaintiffs in accordance with the terms of the agreement have always been ready to pay the balance of Rs.34,500/- and to secure execution of a sale deed in accordance with the agreement to sell, and are still ready, but the defendant has taken resort to diverse pretexts in order to ward off their liability so to do; he is still postponing performance of his obligations.

4. It is also pleaded by the plaintiffs that it was a firm covenant between parties in terms of the agreement that the sale deed would be executed by 15.02.1987. The plaintiffs pursued the matter and demanded of the defendant to execute a deed within that time, but the defendant did not do so. It is the plaintiffs' further case that finding no other way to enforce, they got a notice dated 17.06.1989 served upon the defendant through their legal counsel, but the notice was answered by the defendant on false premises. Accordingly, the plaintiffs were left with no other alternative but to bring the present suit for Specific Performance, claiming relief in terms that by a decree of Specific Performance in favour of the plaintiffs and against the defendant, the defendant be directed to execute a sale deed of his land bearing Araji no.67, admeasuring 6.50 decimals situate at Village Luka, Pargana Moth, District Jhansi, and upon failure to do so, the Court may cause to be executed the requisite sale deed, on behalf of the defendant in favour of the plaintiffs, through its process. It was further prayed that the defendant be directed to deliver possession of the suit property.

5. The defendant filed a written statement traversing the plaint allegations. It was averred that the father of the plaintiffs had filed the suit on the foundation of wrong allegations, in order to usurp his property. It was also averred that the defendant is an uneducated, landless and poor farmer, and the suit property that he has inherited from his ancestors is his sole source of livelihood. He further asserted in the written statement that in the month of July, 1986, his wife fell ill, and that for the purpose of her treatment he needed money.

6. It is specifically averred in the written statement that the plaintiffs' father was engaged in the business of money lending, and that the defendant and the plaintiffs' father were on friendly terms. It was pleaded that the defendant borrowed a sum of Rs.9000/- from the plaintiffs' father for the purpose of securing treatment for his wife. The plaintiffs' father took the defendant to the Tehsil, and there he got some paper work done asking the defendant to put his thumb impression on certain blank papers, all of which he presented before the Sub-Registrar. Before the Sub-Registrar, with all that done, he lent the defendant a sum of Rs.9000/-. The defendant's wife passed away 10-15 days afterwards. Her treatment entailed an expenditure of Rs.2000/- alone. The residue of the loan, being a sum of Rs.7000/-, was refunded by the defendant to the plaintiffs' father, leaving the defendant with an outstanding debt of Rs.2000/- only, besides interest.

7. The defendant repaid the loan of Rs.2000/-, together with the accrued interest. It is averred that the suit has been brought in the above background in order to usurp his land. It is specifically pleaded in the written statement that the defendant never bargained any kind of a sale transaction with the plaintiffs or did he execute an agreement to sell on 11.06.1986, covenanting to transfer the said property for a sum of Rs.45000/-. It was also denied that the defendant ever received as earnest, a sum of Rs.10500/- from plaintiff. It is also specifically pleaded that in time contemporary to the execution of the agreement to sell dated 11.06.1986, the minimum market value of the suit property was Rs. Two lacs and, therefore, it could not have been covenanted to be sold for a price, as ridiculously low as Rs.45000/-.

8. It was also averred that in case the plaintiffs had drawn up some documents misusing his thumb marked papers, it would have no binding effect on the defendant. It was also averred that the plaintiffs' father took undue advantage of the defendant's confidence that he enjoyed, and violating that trust he made him thumb mark the document that later turned out to an agreement, on the basis of which, no rights can accrue in the plaintiffs' favour.

9. It was also pleaded that the plaintiffs never demanded of the defendant that he should execute a sale deed in terms of the agreement, or did the defendant execute a sale deed. It is specifically pleaded in paragraphs 15 and 19 of the written statement that the suit property is the defendant's sole means of earning his livelihood, that he has inherited from his ancestors. The defendant has, particularly, pleaded in paragraph 19 that in case he were to lose the suit property, he would be driven to such penury that he cannot feed himself and, therefore, the relief of specific performance is in any case barred by Section 20 of Specific Relief Act, where discretion should not be exercised in favour of the plaintiffs.

10. On the pleadings of parties, the following issues were struck by the Trial Court:-

(I) Whether the defendant executed an agreement to sell dated 11.07.1986 in favour of the plaintiffs and did so for an agreed valuable sale consideration of Rs.45000/-, of which he took as earnest, a sum of Rs.10500/- ?

(ii) Whether the plaintiffs have been ready and are still ready to perform their part of the contract ?

(iii) Whether the agreement to sell dated 11.07.1986 executed by the defendant in favour of the plaintiffs has been brought about by practice of fraud? If so, its effect?

(iv) Whether the plaintiffs are entitled to relief, if any?

11. The parties went to trial on the said issues where issue no.(i) and (iii) were determined together by the Trial Court and answered in the manner that issue no. (i) was answered in the affirmative, in favour of the plaintiff. Issue no. (iii) was answered in the negative again in favour of the plaintiffs. Issue no. (ii) again, was answered in the affirmative by the Trial Court, in favour of the plaintiffs, and in deciding issue no. (iv), the Trial Court held that since the agreement to sell was not the result of any fraud practiced by the plaintiffs, there was no reason to decline exercise of discretion to grant specific performance in favour of the plaintiffs. The Trial Court, thus, decreed the suit for specific performance, directing the defendant to execute a sale deed in accordance with the agreement to sell dated 11.07.1986 in favour of the plaintiffs, conveying them all his agricultural land, comprised of Plot No.67 admeasuring 6.50 acres, upon receiving from the plaintiffs the balance sale consideration of Rs.34500/- within a month, attended with the usual direction that in the event of default, the plaintiffs would be at liberty to secure execution of the requisite sale deed through process of court.

12. The lower Appellate Court entered a judgment of affirmation, writing an opinion with reference to the issues framed by the Trial Court, dealing with those issues almost in the same sequence as that done by the Trial Court, but with a far more elaborate consideration of evidence relative to each issue, and the law bearing on it. No points for determination in accordance with the Order XLI Rule 31 of the Code of Civil Procedure (for short 'the Code') were culled out. The lower Appellate Court, thus, treated the issues framed by the Trial Court to be the points for determination whereon findings were recorded, and in affirmation. The appeal was consequently ordered to stand dismissed with costs.

13. This is what has brought the defendant in appeal from the appellate decree before this Court, where on the substantial questions of law framed and extracted above, this appeal is to be determined.

14. Heard Sri Manish Kumar Niranjan, learned counsel for the appellant, Sri Y.P. Singh and Sri Ved Prakash Pandey, learned counsel appearing on behalf of the respondents.

15. The question whether the plaintiff has proved his readiness and willingness to perform his part of the contract, essentially lies in the domain of the Courts of fact. But, the test and the standard they have applied to record their findings about the question can certainly be scrutinized by this Court, in the exercise of jurisdiction under Section 100 of the Code. The law is without any ripple that it is for the plaintiff who asks for Specific Performance of Contract to plead and prove that he was ready and willing to perform his part of the contract, as mandated by Section 16(c) of the Specific Relief Act. It is also of prime importance that 'readiness' and 'willingness' are quite distinct and different, in the context of Section 16(c) (supra). Whereas readiness connotes financial capacity of the one who seeks to enforce Specific Performance, willingness distinctly refers to his personal or mental inclination, to seek performance of the covenant. The two words employed by the statute are not mere surplusage for the other or even words with a connotation that have closely resembling shades. The two being distinct, both must be pleaded and proved independently of the other throughout, from the time the contract is entered into and till the suit is filed; and, also pending suit till a decree is passed.

16. In the present case, paragraph 3 of the plaint reads as under (translated into English from Hindi vernacular):

"That the plaintiffs according to the agreement have always been ready to pay a sum of Rs.34,500/- and to secure execution of a sale deed in accordance with the agreement, and still are ready, but the defendant on one pretext or the other has warded off his obligation, which he continues to do."

17. In the evidence of PW-3, who is the father of the plaintiffs nos.3 & 4, the closest spokesman for the plaintiffs who were minors at the relevant time, has testified in his examination-in-chief regarding the plaintiffs' obligation under Section 16(c), in the following words (translated into English from Hindi vernacular):

"According to the said agreement I am still ready to get the sale deed executed and earlier was ready too. I thereafter got a notice through my Advocate, Sri Jagdish Prasad Likhdhari served......"

18. Surprisingly, in the notice dated 17.06.1989, Ex.2, the relevant assertion in paragraph 2 thereof, is worded as follows (translated into English from Hindi vernacular):

"That my client in accordance the agreement has always been ready after paying the remainder of sale consideration to get a sale deed executed and he is still ready, but you on one or the other pretext have been avoiding my client; your act aforesaid is absolutely unlawful."

19. The agreement to sell was executed on 11.07.1986 by the defendant, and a perusal of the same shows that it was covenanted between parties that the defendant had received a sum of Rs.10,500/-, and the balance he would receive from the plaintiffs at the time of execution of the sale deed, that was not being immediately executed as the land had been tilled for a crop, and, there was no income tax clearance with the defendant available. It was, therefore, agreed that the defendant would execute a sale deed in favour of the plaintiffs, by 15.02.1987. It was further covenanted that in the event of default in doing so on the defendant's part, the plaintiffs would have a right to enforce specific performance and secure execution of a sale deed in their favour. The plaintiffs got a legal notice issued on 17.06.1989, that is to say, after 2 years and 4 months of the agreed date by which the sale deed should have been executed, in terms of the contract. There is neither material facts alleged in the plaint or much evidence about it coming from the plaintiffs, as to what steps the plaintiffs took between 15.02.1987 and 17.06.1989. Even if the willingness of the plaintiffs is to be inferred from the notice that the plaintiffs got served through legal counsel on 17.06.1989, it is to be seen if there is good evidence to indicate that willingness, between 15.02.1987 and 17.06.1989. About the readiness, though there is an averment in the plaint but there is nothing apparently said in evidence or in the notice to show that from 15.02.1987 to 17.06.1989, the plaintiffs were in possession of sufficient funds, being a sum of Rs.34,500/- - a substantial sum of money, going by the prevalent monetary value at the time.

20. The suit was instituted as a Miscellaneous Case on 10.07.1989 in deficiency of court fees and that deficiency being shortly made good, it was registered as an Original Suit on 13.07.1989. By the said overt actions, if one were to infer willingness on the defendant's part to get a sale deed executed, there is no evidence about it prior to 17.06.1989 when legal notice calling upon the defendant was caused to be served by the plaintiffs, followed within a month by institution of the present suit. So far as readiness is concerned, the plaintiffs have not demonstrated the availability of funds with them during the period of 24 months when performance fell due, the time when they got the notice to execute a sale deed served upon the defendant or thereafter pending suit, till the decree was passed. This Court, however, refrains from expressing any final opinion on the basis of facts noticed above, whether readiness and willingness as required by law has been proved by the plaintiffs.

21. This Court would revert to the approach of the courts below in the matter of judging the issue of readiness and willingness, for it is essentially a matter to be determined by the two Courts of fact. What has to be seen by this Court is whether the conclusions of the Courts below suffer from a patent error of law or a perverse approach, vitiating their findings.

22. The law in this regard has been recapitulated most succinctly in Jagjit Singh v. Amarjit Singh1, where their Lordships of the Supreme Court, in paragraph 4 of the report have said:

"4. It is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract [ "16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--(a)-(b) ***(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."] . Section 16(c) of the Specific Relief Act mandates that the plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. As far back as in 1967, this Court in Gomathinayagam Pillai v. Palaniswami Nadar [Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1 SCR 227 : AIR 1967 SC 868] held that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of the filing of the suit. This law continues to hold the field and it has been reiterated in J.P. Builders v. A. Ramadas Rao [J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429 : (2011) 1 SCC (Civ) 227] and P. Meenakshisundaram v. P. Vijayakumar [P. Meenakshisundaram v. P. Vijayakumar, (2018) 15 SCC 80 : (2018) 5 Scale 229] . It is the duty of the plaintiff to plead and then lead evidence to show that the plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract."

23. About the importance of proving willingness as well as readiness to perform his part of the contract by the plaintiff that has to be shown throughout and established by the plaintiff, the decision of the Hon'ble Supreme Court in Vijay Kumar vs. Om Parkash2, constitutes guidance of much importance. It has been held in Vijay Kumar (supra) thus:

"7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondent-plaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs. 22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondent-plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs. 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part."

24. This Court is not unmindful of the well established legal principle that 'readiness' and 'willingness' are matters that have to be proved substantially and not left to mere ceremony and form. About readiness also, therefore, it has been said on high judicial authority that there should be consistent proof of capacity to pay the sale consideration, which this Court thinks should be there throughout, and it is not necessary that the plaintiffs should be carrying around requisite money with him at all times after performance falls due and till such time that a decree is passed. But those authorities do not absolve the plaintiffs of proving their capacity at all times after performance has fallen due, by leading appropriate evidence in the circumstances obtaining. The aforesaid principle of substantial compliance in the matter of establishing readiness and willingness is most eloquently exposited by the Hon'ble Supreme Court in A. Kanthamani v. Nasreen Ahmed3, where their Lordships held thus in paragraphs 24, 25 & 26 of the report:

"24. The expression "readiness and willingness" has been the subject-matter of interpretation in many cases even prior to its insertion in Section 16(c) of the Specific Relief Act, 1963. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian courts (Bombay) in Bank of India Ltd. v. Jamsetji A.H. Chinoy [Bank of India Ltd. v. Jamsetji A.H. Chinoy, 1949 SCC OnLine PC 81 : (1949-50) 77 IA 76 : AIR 1950 PC 90] , approved the view taken by Chagla A.C.J., and held inter alia that

"it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness."

25. The following observations of the Privy Council are apposite: (Jamsetji case[Bank of India Ltd. v. Jamsetji A.H. Chinoy, 1949 SCC OnLine PC 81 : (1949-50) 77 IA 76 : AIR 1950 PC 90] , SCC OnLine PC)

"... Their Lordships agree with this conclusion and the grounds on which it was based. It is true that Plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact, and in the present case the appellate court had ample material on which to found the view it reached. Their Lordships would only add in this connection that they fully concur with Chagla A.C.J. when he says:

''In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion that Plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury--if the matter was left to the jury in England--would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from Defendants 1 and 2.'

For the foregoing reasons, their Lordships answer Question (4) in the affirmative."

(emphasis supplied)

26. This Court in Sukhbir Singh v. Brij Pal Singh [Sukhbir Singh v. Brij Pal Singh, (1997) 2 SCC 200 : AIR 1996 SC 2510] followed the aforesaid principle with these words: (SCC p. 202, para 5)

"5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law."

25. About this issue, learned counsel for the plaintiffs has emphasized that the omission of the word ''willingness' in the plaint, does no disservice to his case as the principle is that a pleading should be construed substantially for what it is, that is to say, to understand its spirit and not merely its form. In this regard, he has placed reliance upon the decision of the Hon'ble Supreme Court in Motilal Jain vs. Smt. Ramdasi Devi and others4, where paragraphs 9 and 10 of the report read as under:

"9. That decision was relied upon by a three-Judge Bench of this Court in Syed Dastagir case [(1999) 6 SCC 337] wherein it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed: (SCC Headnote)

"Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of ''readiness and willingness' has to be in spirit and substance and not in letter and form."

It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.

10. In the instant case a perusal of paras 6 to 11 of the plaint does clearly indicate the readiness and willingness of the plaintiff. The only obligation which he had to comply with was payment of balance of consideration. It was stated that he demanded the defendant to receive the balance of consideration of Rs 8000 and execute the sale deed. The defendant was in Patna (Bihar) at the time of notices and when he came back to his place the plaintiff filed the suit against him. In support of his case, he adduced the evidence of PW 1 and PW 2. The plaintiff had parted with two-thirds of the consideration at the time of execution of Ext. 2. There is no reason why he would not pay the balance of one-third consideration of Rs 8000 to have the property conveyed in his favour."

26. Learned counsel for the plaintiffs further relied, in support of this particular submission, on a decision of the Uttarakhand High Court in Mahendra Singh vs. Rahul Dev Shekhavat5. It has been held in paragraph 14 of the report:

"14. No doubt ''readiness' and ''willingness' are two different expressions. ''Readiness' generally refers to the capacity of the plaintiff (as a purchaser) to pay consideration for specific performance of contract, and ''willingness' refers to his conduct in getting executed the sale deed. In the present case word ''willingness' is not mentioned in the plaint but it is pleaded as well as proved that the plaintiff from time to time continued to request the defendant to execute the sale deed after accepting remaining Rs. 20,000/-. Also it is proved that when defendant did not pay any heed, the plaintiff gave notice to the defendant and remained present in the office of the Sub-Registrar on the date for which the written notice was also sent to the defendant. Both the courts below after discussing the evidence found that from the oral and documentary evidence it is proved on the record that the plaintiff had always been ready and willing and still ready and willing to perform his part of contract. Said concurrent finding of fact is neither perverse nor against the weight of the evidence on record."

27. The decisions above referred are expressions of high judicial opinion, and for whatever is said there, there cannot be any quarrel. But, it has to be seen on the facts obtaining in the case in hand, which includes pleading as also the evidence, in what manner the principles relating to substantial compliance with the requirement of proving readiness and willingness would operate. It is for the Courts of fact again to determine this question. Illustratively, in A. Kanthamani (supra) the agreement to sell was executed between parties on 5th March, 1989 for a total sale consideration of Rs.3,43,200/-. A sum of Rs.1,30,000/- was paid by the vendee to the vendor as earnest. Close on heels, a sum of Rs.20,000/- was further paid towards sale consideration on 03.04.1989, Rs.10,000/- on 04.05.1989, Rs.15,000/- on 03.07.1989, Rs.15,000/- on 06.07.1989 and Rs.16,000/- on 16.08.1989, aggregating a sum of Rs.76,000/-. This figure added to the initial earnest of Rs.1,30,000/-, would make the advance payment, a figure of Rs.2,06,000/-. It was also found there that the vendor orally agreed to transfer to the vendee, an additional area of 132.25 square feet, at the ground floor, and, an undivided share. In relation to the additional property covenanted to be sold, the vendee paid his vendor a sum of Rs.46,000/-, as earnest. Upon the total advance money paid, the Courts of fact in that case found that the vendee had paid more than Rs.2 lacs to the vendor, of the total agreed sale consideration, where a balance sum of Rs.1,47,200/- remained to be paid. Added to it was the conduct of the vendee, sending the vendor, a draft sale deed on 10.11.1989, for an area admeasuring 847.25 square feet and one ½ undivided share. It is also noticed that the vendor had orally agreed to sell an additional area of land, but on receipt of the draft sale deed, she refused to do so and returned the draft sale deed to the vendor on 04.12.1989 for his approval, asking him to treat the sum of Rs.46,000/- paid by him for the additional area, as further advance, paid in relation to the registered agreement dated 05.03.1989. Thereafter, on 15.12.1989, the vendor sent another draft sale deed for approval of the vendee, effecting necessary changes there.

28. A perusal of the aforesaid facts would show that the vendee moved with utmost dispatch in claiming enforcement of his right to execution of a sale deed under the agreement to sell, involved in that case. The calendar of events would show that between 05.03.1989 and 15.12.1989 much happened in terms of acts done by the vendor, including substantial compliance on his part, in payment of the agreed sale consideration, which was liquidated almost to the extent of a little less than 2/3rd of what was covenanted. It was in the context of these facts, based on findings of the two Courts of fact, approved by the High Court there in Second Appeal, that their Lordships held thus, in paragraphs 32.3, 32.4, 32.5, 32.6 and 32.7 of the report, in A. Kanthamani (supra):

"32.3. Third, the plaintiff proved her readiness and willingness to perform her part of the agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence.

32.4. Fourth, the plaintiff had paid more than Rs 2 lakhs to the defendant prior to execution of the sale deed in terms of the agreement dated 5-3-1989 and was, therefore, required to pay balance sum of Rs 1,47,200 to the defendant.

32.5. Fifth, on the admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed.

32.6. Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from LIC.

32.7. Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property."

29. This Court should not be misunderstood to say that the facts in A. Kanthamani (supra) are to be understood by the courts below as an endorsed model of readiness and willingness, well established. All that this Court wishes to indicate is that the Courts of fact must look at the facts in hand from the perspective that the law regarding readiness and willingness, within the meaning of Section 16(c) of the Specific Relief Act, mandates. It has been pointed out in the earlier part of the judgment that there are some aspects of the facts obtaining in this case, which are required to be taken into consideration by Courts of fact, before returning their finding on the question of readiness and willingness. Certainly, those vital aspects have been ignored from consideration.

30. This Court is of opinion that the Courts below have inferred readiness and willingness on the plaintiffs' part, without carefully sifting all relevant evidence that could lead to a contrary conclusion on the issue also. The Court has inferred both, readiness and willingness as a matter of course, presumably going by the fact that the suit was instituted within limitation, reckoned from the date when performance first fell due, that is to say, 15.02.1987. Both courts below have not bestowed any consideration to the conduct of the plaintiffs in waiting for a period of 24 months, before they made the first move. If there be anything that they did positively to show willingness in that period of 24 months, apart from bald assertions that they asked for execution of the sale deed, the same requires to be scrutinized as the evidence stands. The finding about readiness and willingness in favour of the plaintiffs suffers from a patent error of law as it stands. However, it is not for this Court to reassess the issue of readiness and willingness for that is always a question of fact. Nevertheless, in the circumstances obtaining it would be appropriate for the lower Appellate Court, the last Court of fact, to redetermine the issue regarding readiness and willingness in the perspective of law indicated by this judgment, evaluating evidence on record afresh, accordingly.

31. The substantial question of law no.1 is answered, accordingly.

32. Turning to the second substantial question of law on which this appeal has been heard, what has to be really determined is that how and in what manner, discretion to grant specific performance within the meaning of Section 20 of the Specific Relief Act, should be exercised in a case, where hardship is pleaded by the defendant. In the defendant's evidence it has been said in the examination-in-chief that the land in dispute is ancestral, inherited by him from his forefathers. It is further testified that apart from the said land, the defendant has no other land. He has further stated that he does not do any dairy business. It has, particularly, been said that in case the land in dispute is lost, he would be deprived of all source of livelihood. He has been cross-examined on behalf of the plaintiffs where with regard to the question of hardship as above indicated, it has been said by the defendant that he does not own any cattle heads. He has acknowledged that his brother does own buffaloes, but he has stoutly refuted the suggestion that he is engaged in the business of supply of milk. A perusal of his cross-examination does not reveal that he was questioned much about availability of any other land with him, or about his stand in the examination-in-chief that in case he were to loose the land in dispute, in execution of the decree, he would be deprived of all source of livelihood.

33. DW-1, Shivphal Singh has also generally said in his cross-examination, so far as occupation of the defendant is concerned that he earns his livelihood by depending upon the produce of the land in dispute. He does not have any other occupation. It has been specifically said that the defendant does not own any cattle and is not engaged in the business of milk supply. The lower Appellate Court has dealt with the question of hardship, while answering issue no.4, relating to the relief to which the plaintiff is entitled. After generally acknowledging the law that relief of specific performance is a discretionary relief, and in case the Court arrives at a conclusion that in the performance of the suit agreement, the defendant would suffer irreparable loss or injustice, the relief of specific performance may be refused, the lower Appellate Court has gone on to take note of the submission that the land in dispute is the only source of livelihood available to the defendant, regarding which he entered into an agreement to sell with the fathers of the plaintiffs under compelling circumstances, that is to say, to raise funds for the treatment of his wife. It has also been noted that the case of the defendant that agreement was got executed by playing fraud, has not been established. The Court has also taken into account the fact that it has been pleaded and brought in evidence that the transaction is grossly undervalued, but has gone on to remark that merely because there is evidence about a higher value of the land in dispute, relief of specific performance cannot be refused on that ground alone. In these circumstances, the lower Appellate Court, concurring with the Trial Court, has found it fit to grant specific performance.

34. Learned counsel for the defendant has urged that in view of Section 20(2)(b) of the Specific Relief Act, it would be a decisive guide, which the courts below ought to have looked into carefully that the performance of the contract would involve some hardship to the defendant that he did not foresee, whereas its non-performance would involve no such hardship to the plaintiffs. In this connection, it would be apposite to refer to the provisions of Section 20 of the Specific Relief Act, 1963 (as it stood prior to the Amendment of 2018). Section 20 (supra) is quoted in extenso:

"20. Discretion as to decreeing specific performance.--(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

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

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

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation I.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation II.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff, subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party."

35. The submission of the learned counsel for the defendant is that the courts below ought to have taken into consideration the hardship that would be caused to the defendant, in consequence of land in dispute going out of his hands as a result of the decree of specific performance, the said land being the solitary source of his livelihood. By contrast, there is no such hardship that the plaintiffs would suffer, in case specific performance were not granted in their favour. Learned counsel submits that the courts below have rather mechanically moved on to enforce specific performance, merely because they have held on other issues against the defendant. Learned counsel for the plaintiff has refuted this submission and has pointed out that consideration of hardship does figure in the judgment of the lower Appellate Court, where the learned Judge has dealt with the issue of relief. He submits that the question as to whether relief of specific performance would result in hardship to the defendant, within the meaning of Section 20(2)(b) of the Specific Relief Act is a question of fact, which this Court is not entitled to determine otherwise than what has been found by the two courts below. Learned counsel for the plaintiffs in this connection has placed reliance upon the decision of the Supreme Court in Prakash Chandra vs. Narayan6, where in paragraph 17 of the report, it has been held:

17. The question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the appellant's entitlement to relief for specific performance of contract.

36. Learned counsel for the plaintiffs has further urged that the question of hardship going by the words of Section 20(2)(b) read with explanation (2), bears reference to hardship, which the defendant did not foresee at the time of entering into the contract. The explanation elucidates the point of time at which hardship has to be determined, by saying that the issue as to whether performance of a contract involves hardship on the defendant, has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiffs, subsequent to the contract. Learned counsel submits that there is no such pleading or evidence to show that there was a hardship of the kind, which the defendant did not foresee at the time he executed the agreement to sell, or that the hardship which he would face is the result of an act of the plaintiffs, based on their supervening acts.

37. It may be true that hardship has to be judged on basis of incidents that performance of the contract would entail, which the vendee did not foresee at the time he entered into the suit agreement, but introduction of the element of foresight on the vendee's part while entering into the suit agreement, may be with reference to the circumstances contemporaneous to the execution of that agreement does involve an element of error of human judgment, about which the Court may make just allowance. This, of course, is not to be done by the Court whimsically or fancifully, but taking into account the entire facts and circumstances as established by evidence on record, attending the transaction. The element of error of judgment in foreseeing the hardship when the vendee entered into the contract is strongly pronounced by employment of the words in Section 20(2)(b) that read: "........... would involve some hardship on the defendant which he did not foresee, ......" as distinguished from the words 'hardship on the defendant, which he could not foresee'. This difference in phraseology clearly takes away the case from an expectation of the law by which a man of ordinary prudence, placed in those circumstances ought to have acted or foreseen. It makes the defendant liable for the hardship which upon entering into the suit agreement, he actually did not foresee; not constructively. This would involve the Court's assessment, apart from what the defendant has said in evidence, of circumstances both personal to the defendant and extrinsic. The personal circumstances would include, in particular, the education of the defendant, his occupation, his monetary status and the like. The extrinsic circumstances would include a vis major leading to a destruction of other valuable property, effacement of an alternate means of income, for instance an earthquake destroying an income yielding commercial property of the defendant, altogether. Illustratively again, an extrinsic circumstance could be a sudden economic depression causing widespread unemployment, loss of occupation and means of livelihood, affecting everyone including the defendant.

38. There is absolutely no difficulty so far as the extrinsic circumstances are concerned for these, the defendant cannot be expected to actually foresee or constructively, by imputing to him the foresight of a reasonable man of ordinary prudence. The difficulty does arise in cases of circumstances personal to the defendant, such as, total lack of education, the total absence of any alternate means of livelihood, but for that what is subject matter of the suit agreement. Personal to the defendant would also be the character of his occupation, particularly, if it is perilously vagrant in its reward; it would be all the more relevant if the nature of occupation is somehow connected, directly or indirectly, to the subject matter of the suit agreement. A farmer's occupation would eminently fall into that category. More would be said about this, a little later in this judgment. It is here that the Court has to step in to judge whether the exercise of discretion to grant specific performance would cause the defendant some hardship, which he did not foresee. The lack of foresight may come from utter ignorance, personal hardships faced by the defendant at the time, such as ailment of someone in the family or a sudden tragedy, like an accidental death or an unexpected natural death, all of which may adversely affect the defendant's judgment in actually foreseeing the hardship, which the bargain embodied in the suit agreement would entail. These are very subtle aspects about hardship which certainly do not involve concepts like the decision being induced by fraud or undue influence, but nevertheless oblige the Court to do a fine balance of the comparative hardship between the defendant and the plaintiff, while deciding to grant specific performance. Again, these are matters to be taken into account and sensitively judged on all relevant evidence by the Courts of fact. In this connection, it would be apposite to say that Section 20 of the Specific Relief Act is not an exhaustive guide about how the Court is to exercise its discretion, in the matter of ordering specific performance. The provision only illustrates certain circumstances, to guide and regulate the discretion of the Court in this regard. This point is eloquently illustrated by the guidance of the Supreme Court in Sardar Singh vs. Krishna Devi (Smt.) and another7, where in paragraph 14 of the report, it has been held by their Lordships, thus:

"14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."

(Emphasis by Court)

39. In a rather offbeat context, how different can be the parameters and criteria on which the discretion to grant or deny specific relief may be founded, is best illustrated by the decision of their Lordships of the Supreme Court in Her Highness Maharani Shanti Devi P. Gaikwad vs. Savjibhai Haribhai Patel and others8, which arose out of an agreement entered into while the Urban Land (Ceiling and Regulation) Act, 1976 was in force, and the question of its enforcement came up before their Lordships at a time, after the Urban Ceiling Act had been repealed. An agreement was entered into between the original defendant, F.P. Gaekwad as the owner and one Savjibhai Haribhai Patel, as the licensee of a portion of immovable property, called the Laxmi Vilas Palace Estate. The agreement covenanted that the plaintiff, that is to say, Patel, had evolved a Scheme for construction of dwelling units for the accommodation of weaker sections of the society, as envisaged under Section 21(1) of the Urban Land Ceiling Act, 1976. Patel was also constituted the holder of an irrevocable power of attorney by the defendant, Gaekwad to execute schemes as envisaged under Section 21 of the Urban Land Ceiling Act, and in respect whereof the suit agreement had been executed between parties. The suit agreement and the power were both cancelled by Gaikwad on 23.02.1980, informing the Authority under the Urban Land Ceiling Act not to proceed with any application relating to the suit property under Section 21 of that Act. It was in those circumstances that the suit was filed on 07.04.1980. It was decreed by the Trial Court on 12.03.1992. On appeal from the Original Decree, the High Court upheld the decree of the Trial Court vide judgment and decree of 15th June, 1998, and that is how the matter came up before their Lordships of the Supreme Court. There were other issues also examined by their Lordships regarding the user of the land with reference to the master plan etc., but the decisive event was repeal of the Urban Land Ceiling Act, by the Repeal Act of 1999. It was in this maze of rather unconventional facts that their Lordships considered the question of exercise of discretion, under Section 20 of the Specific Relief Act, and held thus:

59. The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act, 1963. The court is not bound to grant such relief merely because it is lawful to do so but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles. One of the grounds on which the court may decline to decree specific performance is where it would be inequitable to enforce specific performance. The present is clearly such a case. It would be wholly inequitable to enforce specific performance for (i) residential houses for weaker sections of the society cannot be constructed in view of the existing master plan and, thus, no benefit can be given to the said section of the society; (ii) in any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses; (iii) the decree is likely to result in uncalled-for bonanza to the plaintiff; (iv) patent illegality of order dated 20-6-1998; (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units; and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favour of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the Act was to prevent concentration of urban land in the hands of a few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance.

40. Not only the discretion of the Court about decreeing specific performance, but its duty to consider the option to do so or not, in the facts and circumstances of the particular case is well illustrated by the decision of the Supreme Court in Gobind Ram vs. Gian Chand9. In Gobind Ram (supra) it has been held:

"7. It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it will be fair, just and equitable. The court is guided by principle of justice, equity and good conscience. As stated in P.V. Joseph's Son Mathew [1987 Supp SCC 340 : AIR 1987 SC 2328] the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered."

41. The principle about exercise of discretion was again endorsed by the Hon'ble Supreme Court in K. Narendra vs. Riviera Apartments (P) Ltd.10, where in paragraph 29 of the report, it is said thus:

29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 2814] by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.

30. Chitty on Contracts (27th Edn., 1994, Vol. 1., at p. 1296) states:

"Severe hardship may be a ground for refusing specific performance even though it results from circumstances which arise after the conclusion of the contract, which affect the person of the defendant rather than the subject-matter of the contract, and for which the plaintiff is in no way responsible."

42. It may be mentioned in the passing here that in the decision of their Lordships in K. Narendra (supra), there is a reference with approval to Chitty on Contracts (27th Edn., 1994, Vol.1 at p.1296), where the passage quoted clearly indicates that one of the grounds for refusing specific performance, though they arise from circumstances post-contract, are factors which affect the person of the defendant rather than the subject-matter of the contract, and to which the plaintiff is in no way a contributory. It is these personal circumstances of the defendant, which this Court has alluded to in the earlier part of this judgment while dwelling upon the issue of hardship under Section 20(2)(b) of the Specific Relief Act. The discretion there being wide, it is certainly not limited to what is illustratively mentioned in the statute. At the cost of some repetition, it, therefore, deserves emphasis that circumstances of the plaintiff also are very relevant in the exercise of discretion to grant specific performance, based on the parameters of hardship to the defendant. It would render the perspective about the law as to exercise of discretion incomplete and truncated, unless allusion is made to the decision of the Supreme Court in K.S. Vidyanadam vs. Vairavan11, where ameliorating the rigor of the principle carried in Explanation-I to Section 20(2) of the Specific Relief Act that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b) of Section 20(2) (supra), it was held thus:

"11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar [AIR 1952 Mad 389 : (1952) 1 MLJ 44] holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality -- and the reality is constant and continuous rise in the values of urban properties -- fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs 5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs 5000 (as against the total consideration of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties -- evolved in times when prices and values were stable and inflation was unknown -- requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).

12. Shri Sivasubramaniam relied upon the decision of this Court in Mademsetty Satyanarayana v. G. Yellogi Rao [(1965) 2 SCR 221 : AIR 1965 SC 1405] , wherein it has been held:

"As Article 113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that field. Diverse situations may arise which may induce a court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal."

(emphasis supplied)

Subba Rao, J., speaking for the Bench, pointed out the distinction between Indian law and the English law on the subject and stated the conclusion in the following words:

"While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. ... It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief."

13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."

43. After a review of their Lordships' authority in various decisions, some of which have been referred to hereinabove, the Supreme Court in a very recent decision in Jayakantham vs. Abaykumar12, dealt with the issue and held:

"7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub-section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-section (2) of Section 20 is in the following terms:

"20. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance--

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

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."

8. However, Explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, Explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract."

44. The question, therefore, ultimately turns on facts of the individual case which way the scales would tip, while balancing comparative hardship between the plaintiff and the defendant for the grant or refusal of specific performance. Myriad factors would go into the making of that decision regarding which, for sure, Section 20(2)(b) of the Specific Relief Act is not an exhaustive guide, as decisions on the point lay down the law. What is mentioned in the statute is illustrative and in the dynamic course of human affairs, many factors would become relevant in judging this competing hardship. Much of those factors have already been indicated by high authority, to which elaborate reference has been made hereinbefore. There is one aspect which is an added dimension where agricultural land of a farmer, particularly, the only land available with him as his exclusive source of livelihood becomes the bone of contention between two parties in a private claim by one against the other, for specific performance founded on contract. Invariably, concerns for life, liberty and welfare of a citizen are subjects not associated with private law. But, something as mercantile as enforcement of a contract, with a traditionally unemotional approach may require a different perspective in certain areas, where galloping changes in socio-economic sphere of our contemporary life have made certain sections of the society, based on their avocation, very vulnerable as individuals.

45. Farmers as a class identified by their avocation have emerged in contemporary times as a very vulnerable group of individuals, who have exhibited extreme tendencies of self-destruction - suicide in different parts of the country. Their problems have generally arisen from loss of their land in cases of unpaid loans or all that is happening due to vagaries of fortune in agriculture. Unliquidated debts have certainly been a singular factor, making this class of citizens very vulnerable. Unpaid debts lead to loss of agricultural holdings, that are attached and sold by creditors, leading many a farmer to end his life. It is a phenomenon so recurrent, consistent and well known that judicial notice of it can legitimately be taken.

46. All this is not to say, that a different standard of law is to be adopted in case of farmers while dealing with the suits for specific performance relating to their agricultural holdings. All that is to be borne in mind is that if the defendant happens to be a farmer dependent on land that is subject matter of a suit for specific performance, it must somewhere enter the totality of considerations that the Courts of fact look into, before judging the issue of comparative hardship from the grant of specific performance to the defendant, or by the refusal of it to the plaintiff. It only requires a more wholesome, careful and sensitive approach to the balancing of competing interest in the scale of hardship, under Section 20(2)(b) of the Specific Relief Act. The decision in Gobind Ram (supra) obliges the Court to exercise that discretion by considering whether to decree specific performance would be fair, just and equitable. It is also said there, that the Court is guided by the principle of justice, equity and good conscience. The aforesaid rule gives to the Courts of fact a very wide canvas to responsibly and fairly exercise their discretion on the parameters of Section 20(2)(b) (supra). This Court is of considered opinion that the two Courts of fact below have not at all done this careful balancing of competing interests of the defendant on the one hand, and the plaintiff on the other, while judging the issue of hardship under Section 20(2)(b). There is much evidence available on record on the basis of which discretion can be far better exercised, and in a manner that would further the interest of both parties, in a much better way. The Courts of fact here can much better fulfill the requirements of justice, equity and good conscience while balancing the hardship of parties, which they must do bearing in mind what has been said in this judgment, and whatever is indicated by the noticed authority on the issue.

47. With so much evidence on record bearing on broad and fine aspects of hardship to the parties consequent upon grant of specific performance or its denial, this Court would have felt tempted to record a finding on the issue and pass a decree drawing curtains down on this litigation, that commenced in the year 1989. But, this Court is mindful of the law that the issue regarding hardship to the defendant, within the meaning of Section 20(2)(b) of the Specific Relief Act, is essentially a question of fact that must be decided by a Court of fact - if not the Trial Court by the first Appellate Court - the last Court of fact. The caution again in this regard is pronounced loud in Prakash Chandra (supra), allusion to which has already been made in the earlier part of this judgment, on a reference to it made by the plaintiff. To that extent, the plaintiff is certainly right about reminding this Court of its limitation on the issue.

48. It is, accordingly, held that it is for the lower Appellate Court to re-examine the issue of hardship to the defendant within the meaning of Section 20(2)(b) of the Specific Relief Act, taking into consideration all relevant factors discernible from the evidence on record, and to judge afresh in view of the guidance here.

49. The second substantial question of law is answered, accordingly.

50. In the result, this appeal succeeds and is allowed in part. The impugned judgment and decree passed by the lower Appellate Court is set aside with an order of remand to that Court to decide in terms that Civil Appeal no.51 of 1991 would stand restored to its file, which the lower Appellate Court will decide afresh limited to the issues of readiness and willingness and the discretion to grant specific performance, bearing in mind what has been said in this judgment. The findings on other issues will not be open to determination. Both parties will appear before the lower Appellate Court on 03.05.2019. The said Court will thereafter fix a date for hearing within 15 days next and proceed to decide the appeal afresh within three months of the date fixed for the first hearing.

51. Costs in this Court and the Courts below shall abide by and follow the event in the appeal, subject to any variation that may be made on further appeal, preferred by any of the parties. It is ordered, accordingly.