Surinder Kumar vs Brahm Prakash
2011 Latest Caselaw 6085 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 01.12.2011

                      Judgment Pronounced on: 13.12.2011


+ CS(OS) 2243/1999


SURINDER KUMAR                               ..... Plaintiff
                        Through: Ms Rachna Agrawal, Adv.


                              versus


BRAHM PRAKASH                          ..... Defendants
                        Through: Mr Jitendra Chaudhary and
                        Mr Bijendra Singh, Advs.


CORAM:-
HON'BLE MR JUSTICE V.K. JAIN


V.K. JAIN, J

1.

Vide an Agreement to Sell dated 15th November,

1996, the defendant agreed to sell his 1/4th share in the

agricultural land measuring 23 bighas, 6 biswas bearing

Mustatil No. 94, Killa Nos. 2/2 (1-16), 14/1 Min. (0-15),

14/2, Min (0-8), 3(4-16), 4 (4-16), 7 (4-16), 8 (4-16), 27 (0-

2), Mustatil No. 67, Kills Nos. 23 South (0-15), Khasra No.

311 (0-16), situated in the Revenue Estate of Village

Bijwasan, Tehsil Mehrauli, New Delhi to the plaintiffs for a

sale consideration of Rs 32,76,526/-. The plaintiffs paid

part sale consideration of Rs 3,20,000/- to the defendant in

three instalments. The balance sale consideration was to be

paid within three months at the time of registration of the

sale deed, after the defendant had obtained NOC, Income

Tax Clearance Certificate and permission to sell from the

concerned authorities. The case of the plaintiffs is that

instead of complying with his contractual obligations, the

defendant wanted the plaintiffs to make more payments on

the pretext that the same was required to get the suit land

partitioned and obtain the requisite permission. The

plaintiffs paid a further sum of Rs 75,000/- to the

defendant in two instalments. The defendant, however, did

not take steps for completion of the transaction and did not

execute the sale deed in favour of the plaintiff, despite

notice dated 05th May, 1999 from the plaintiff. The plaintiffs

have now sought specific performance of the agreement to

sell dated 15th November, 1996 by execution of the sale deed

and handing over of the possession to them. They have

further prayed that in case specific performance cannot be

granted, a decree for damages to the tune of Rs 32,76,526/-

along with interest on that amount at the rate of 12% per

annum be passed in their favour.

2. The defendant has contested the suit. He has

admitted execution of the agreement to sell dated 15th

November, 1996 as also the receipt of part consideration

from the plaintiffs. It is claimed that the plaintiffs failed to

pay the balance sale consideration and, therefore, the

defendant was entitled to forfeit the earnest money paid by

them. It is also alleged that the defendant, after receiving

the signed NOC from the plaintiff, applied for Income Tax

Clearance Certificate and NOC. On receipt of Income Tax

Clearance Certificate and NOC, he informed the plaintiffs in

this regard vide letter dated 05th January, 2001, but the

plaintiffs failed to respond to the same.

3. The following issues were framed on the pleadings

of the parties:-

(i) Whether the plaintiff was ready and willing to

perform his contractual obligations under the Agreement to

Sell dated 15.11.1996? OPP

(ii) Whether the plaintiff violated the terms of the

Agreement to Sell dated 15.11.1996 as alleged in the

Written Statement? OPD

(iii) Whether the defendant was entitled to forfeiture of

earnest money paid under the Agreement to Sell dated

15.11.1996? OPD

(iv) Whether the defendant fulfilled his contractual

obligations under the said Agreement to Sell dated

15.11.1996? If not, its effect? OPD

(v) Whether the NOC obtained after filing of present

suit as alleged by the defendant, is for the same property for

which the Agreement to Sell dated 15.11.1996 was

executed?

(vi) Whether the suit property is still available in the

same form and the Agreement to Sell dated 15.11.1996 is

capable of specific performance? OPD

(vii) If issue No. 6 is decided in negative, whether the

plaintiffs are entitled to the refund of the amount? OPP

(viii) Whether the plaintiffs are entitled to interest, if so

at what rate? OPP

(ix) To what relief the plaintiffs are entitled to? OPP

(x) Relief.

Issues No. (i) to (v)

These issues are inter-connected and can be

conveniently decided together.

4. Section 16(C) of Specific Relief Act provides that

specific performance of a contract cannot be enforced in

favour of a person 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.

Explanation (i) provides that where the contract involves

payment of money it is not essential for the plaintiff to

actually tender the money to the defendant or to deposit it

in the Court unless so directed by the Court.

The philosophy behind the aforesaid statutory

provision is that a person who comes to the Court seeking

specific performance of a contract to which he is a party

must show and satisfy the Court that his conduct having

been blemishless he is entitled to grant of specific

performance of the contract. There is a distinction between

readiness to perform the contract and willingness to perform

the same. By readiness is meant the capacity of the plaintiff

to perform the contract which includes his financial position

to pay the purchase price. Willingness signifies the desire of

the plaintiff to complete the transaction by performing his

part of the contract.

In Ardeshir Mama v. Flora Sassoon (1928) LR 55

IA.360, Privy Council held that in a suit for specific

performance of a contract, the plaintiff has to allege and if

the fact is traversed also to prove a continuous readiness

and willingness from the date of the contract to the time of

hearing, to perform the contract on his part and failure to

make good that averment brings with it and leads to

inevitable dismissal of the suit. The view taken by the Privy

Council was approved by Supreme Court in Premraj vs.

DLF Housing and Constriction Pvt. Ltd. AIR 1968 SC

1355.

In P.D'Souza v. Shondrilo Naidu (2004) 6 SCC

649 Supreme Court referred to its earlier decision in

R.C.Chandiok & Anr. v. Chuni Lal Sabharwal & Ors. (197)

3 SCC 140 observed as under:

"It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the fact and circumstance of each case. No straitjacket formula can be laid down in this behalf...The readiness and

willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."

In R.C.Chandiok & Anr. v. Chuni Lal Sabharwal

& Ors. (supra), Supreme Court observed that "readiness and

willingness" cannot be treated as a straight jacket formula.

This has to be determined from the entirety of the facts and

circumstances relevant to the intention and conduct of the

party concerned.

5. A perusal of the agreement Ex.PW-1/1 would show

that the defendant, who owned 1/4th share in land in

question, other 3/4th share being owned by his brothers,

was to get the land partitioned and inform the plaintiffs,

who thereafter, were to make payment within 30 days and

get the sale deed registered in their favour. He was also

required to obtain NOC and Income-Tax Clearance

Certificate from the concerned authorities, before the final

payment and inform the plaintiffs in this regard by

registered post. The plaintiffs were to make balance

payment and complete the transaction within 30 days

thereafter. There is no evidence to show that the defendant

had obtained either the NOC or Income-Tax Clearance

Certificate, at any time prior to filing of this suit. In his

deposition in the Court, the defendant claimed that he had

obtained the NOC and Income-Tax Clearance Certificate

before filing of this suit. This part of his deposition is

obviously false, since no NOC or Income-Tax Clearance

Certificate issued prior to filing of this suit has been

produced and the NOC as well as the Income-Tax Clearance

Certificate, copies of which have been filed by the defendant,

have been issued much after filing of this suit. Since the

defendant did not obtain either Income-Tax Clearance

Certificate or NOC required under Delhi Lands (Restrictions

on Transfer) Act, 1972, there was no occasion for the

plaintiffs to make payment of the balance sale consideration

to him, before filing of this suit. The obligation to pay the

balance sale consideration did not arise till the time Income-

Tax Clearance Certificate and requisite NOC were obtained

by the defendant which admittedly has been done only

during pendency of this suit.

Vide notice dated 05th May, 1999, sent through counsel, the

plaintiffs wrote to the defendant that they had been

requesting him to obtain Income-Tax Clearance Certificate

and NOC as well as to get the land partitioned. It was

further intimated that the plaintiffs were ready and willing

to perform their part of the contractual obligations by

making payment of balance sale consideration of Rs

28,81,526/- simultaneous to the execution of the sale deed

and other legal documents and delivery up of vacant

possession of land to them after getting intimation of

partition of the land from the defendant. The defendant was

called upon to obtain requisite permissions and deliver

possession to the plaintiffs against receipt of balance sale

consideration, within 15 days. The notice was replied by

the defendant through his counsel vide reply dated 26 th

May, 1999. In the reply, the defendant, inter alia, stated as

under:

"It is stated for your information that in fact no complete and final agreement to sell was executed between my client and your clients. Although your clients while giving the earnest money to my client, have got the signatures of my clients on an unfilled agreement to sell, which never become complete or final inspite of requests made by my clients and assurances given by your clients X X X

X The alleged agreement as stated X X above remained unfilled, incomplete and

the same has never become final. X X X. When no agreement to sell was make complete or final, so no question of payment of balance consideration or completing other formalities at all arises.

X X X

X X I therefore through this reply X request you to advise your clients to immediately withdraw the notice under reply and if at all they are ready to purchase the land genuinely, they should come within 15 days to my clients from the date of receipt of this reply and make the payment of the interest at 24% p.a. on the value of the land to my client and got the alleged incomplete agreement to sell, complete and final."

The plaintiffs responded to this reply vide

communication dated 13th July, 1999 sent through their

counsel and again expressed their readiness and willingness

to discharge his part of contractual obligations under the

agreement to sell dated 15th November, 1996 by making

payment of the balance sale consideration. The defendant

again responded through counsel, vide reply dated 23rd

August, 1999, which inter alia, read as under:-

"That you have mentioned the agreement dated 15th November, 1996 with our client above named whereas it has been told to us that no such agreement has been executed between our client and you both.

That it is further reported to us by our clients that they being innocent villagers

and not much educated have been got signed in good faith for a proposal of entering into an agreement wherein there was no mention of the amount as well as the intending purchaser thereby they feel defrauded.

That even from your notice it is clear that your said alleged agreement is an agreement in air as there was no specific mention of the land of our client being individually absolute owner. It, itself prove that it was a proposal on which our client in good faith signed on blank papers without admitting any amount or the intending buyer."

It would thus be seen that while responding to

notice from the plaintiff, the defendant, tried to wriggle out

of his contractual obligation by disputing the very execution

and completion of the agreement to sell dated 15th

November, 1996. It would be pertinent to note here that

contrary to his stand in the communications sent through

counsel, in his written statement the defendant has not

claimed that the agreement between him and the plaintiffs

was not complete or final or that he had signed the

document, without understanding its contents.

The stand taken by the defendant in the

communications sent through his counsel clearly indicates

that he was not willing to complete the transaction as per

the terms stipulated in the agreement to sell dated 15th

November, 1996 and that is why he not only wanted the

plaintiffs to pay interest to him at the rate of 24% per

annum, despite their being no default on their part, but also

went to the extent of trying to wriggle out of the contract by

claiming that it was not a complete agreement and his

signatures were obtained on unfilled document. It would

also be pertinent to note here that no notice was sent by the

defendant to the plaintiffs at any time before receipt of

notice dated 05th May, 1999 from them, claiming that he

had been willing to complete the transaction and it were the

plaintiffs, who were in default. In any case, the transaction

at that point of time could not have been completed without

obtaining Income-Tax Clearance Certificate and no action

on the part of the plaintiffs was required to obtain the said

clearance.

6. One of the obligations of the defendant under the

agreement to sell dated 15 th November, 1996 was to get the

joint land partitioned and intimate the plaintiffs in this

regard. In his deposition the defendant has claimed that

partition of the joint land was effected within 03 months of

execution of agreement to sell. In his deposition dated 8 th

August, 2007, he claimed that the partition did not take

place in writing but in his deposition dated 7th November,

2007 he claimed that he had document to show that a

partition was effected and a copy of the same was also given

to the plaintiffs and also filed in the Court. No document

regarding alleged partition has been filed by the defendant

and there is no documentary evidence showing the

defendant having sent any such document to the plaintiffs

at any point of time. In his deposition dated 8 th August,

2007, the defendant stated that he had obtained „Fard jama

bandi‟ indicating the partition amongst the brothers.

However, there is no documentary evidence of any such

„Fard jama bandi‟ having been sent by the defendant to the

plaintiffs and no such „Fard jama bandi‟ has been filed in

the Court. In any case, even if, it is presumed that there

was a partition of the joint land within 03 months of the

agreement to sell, as is claimed by the defendant, that by

itself would show that he was ready to perform his

obligations under the agreement to sell dated 15th

November, 1996. No sale deed in favour of the plaintiffs

could have been registered without the defendant obtaining

Income-Tax Clearance Certificate and NOC under Delhi

Land (Restriction on Transfer) Act, 1972 and the agreement

to sell obliged the plaintiff to pay the balance sale

consideration to the defendant only on his obtaining

Income-Tax Clearance and NOC and informed the plaintiff

in this regard.

7. Coming to financial capacity of the plaintiffs to pay

the balance sale consideration, the law does not require the

purchaser to have the balance sale consideration ready in

cash with them and it is sufficient if he is able to satisfy the

Court that he had the means and capacity to pay the

balance sale consideration to the seller. Ex. PX-3 is the

photocopy of the income-tax return of plaintiff No. 1 which

his Chartered Accountant PW-2 Shri Sushil Jain had filed

for the Accounting Year 1996-97 (Assessment Year 1997-98)

on his behalf, whereas Ex.PX-2 is the photocopy of his

income-tax return for the Accounting Year 1997-98

(Assessment Year 1998-99) which also was filed by Mr

Sushil Jain on his behalf. Ex. PX-1 is the copy of

assessment order of plaintiff No. 1 in respect of Assessment

Year 1998-99. Though the originals of these documents

have not been filed by the plaintiffs, the deposition of

plaintiff No. 1, as corroborated by his Chartered Accountant

Mr Sushil Jain, shows that the originals have been lost with

the passage of time. The photocopy being secondary

evidence is, therefore, admissible in view of the provisions

contained in Section 65(c) of Evidence Act. These

documents show that in the Financial Year 1996-97 plaintiff

No. 1 had business profit of Rs 54,59,516/- and his total

income was Rs 55,21,280/- During the Accounting Year

1997-98, his income from business profit was Rs

96,74,657/- and his total income was Rs 99,06,550/-. This

is also confirmed from the assessment order dated 31st

March, 2000, purported to be passed by ITO Co, Ward

25(4). The agreement between the parties having been

executed on 15th November, 1996, the obligation of the

plaintiffs to make payment of the balance sale

consideration, subject, of course, to the defendant fulfilling

his obligation under the agreement by obtaining partition of

the joint lands as well as Income-Tax Clearance Certificate

and NOC, would have arisen in the Financial Year 1996-97.

Since plaintiff No. 1 had income of about Rs 55,00,000/- in

that year, which got increased to about Rs 99,00,000/- in

the next financial year, it is difficult to say that the plaintiffs

did not have the capacity to pay the balance sale

consideration of Rs 28,81,526/- to the defendant. Since the

plaintiffs have led documentary evidence to prove their

income during the relevant years, their failure to produce

their bank statement, which the bank officer could not

produce on account of record being old and having been

weeded out, becomes immaterial.

8. A perusal of the orders passed by this Court from

time to time would show that when this suit came up for

admission and suit summons were issued to the defendant

on 11th October, 1999, the learned counsel for the plaintiffs

sought instructions as to whether the plaintiffs were willing

to deposit the balance sale consideration in the Court.

When the matter came up for hearing on 09 th March, 2000,

it was noted that the suit summons had not been issued for

want of PF and the matter was directed to be listed before

the Joint Registrar on 10th August, 2000. When the matter

came up before the Joint Registrar on 24th October, 2000,

the learned counsel for the defendant stated, in the

presence of the defendant, that the defendant was ready to

execute the sale deed on payment of the balance amount.

Three blank forms 37(i) under Income Tax Act and three

forms under Section 8 of Delhi Lands (Restrictions on

Transfer) Act, 1972 duly signed by both the plaintiffs were

supplied to the learned counsel for the defendant to obtain

permission. The matter was adjourned to 21st March, 2001

so that the defendant could obtain permission for transfer of

property in the meanwhile. IA No. 218/2001 was then filed

by the defendant in the meanwhile stating therein that he

had obtained Income Tax Clearance Certificate and NOC

from the competent authority and had informed the plaintiff

in this regard and asked him to arrange for the balance sale

consideration within seven days. Notice of the application

was issued to the plaintiff. When the matter was taken up

on 29th March, 2001, copies of Income Tax Clearance

Certificate and NOC were supplied to the learned counsel

for the plaintiff and it was also stated on behalf of the

defendant that he was ready and willing to execute the sale

deed, provided the balance sale consideration was paid to

him. The learned counsel for the plaintiff, however, stated

that the copies which had earlier been supplied to her on

21st March, 2001, did not relate to the property involved in

the suit. The Court, thereupon, directed the defendant to file

written statement within four weeks and the matter was

directed to be listed before Joint Registrar on 30 th May,

2001. When the matter came up before the Court on 09 th

November, 2004, the learned counsel for the defendant

stated that the defendant was ready and willing to execute

the documents pertaining to land in question. The Court

noted the statement made by the learned counsel for the

plaintiff on 29th March, 2001 claiming that Income Tax

Clearance Certificate and NOC supplied to him did not

relate to the property involved in the suit and as to whether

NOC and Income Tax Clearance Certificate related to the

same land. The Court, on the request of Joint Registrar,

permitted her to avail the assistance of Revenue authorities,

in order to ascertain whether the NOC and the Income Tax

Clearance Certificate supplied by the defendant related to

the same land which was involved in the suit. When the

matter was taken up by the Joint Registrar on 16 th

December, 2004, the learned counsel for the plaintiff, on

instructions from the plaintiff, stated that they no longer

disputed that the Income Tax Clearance Certificate and

NOC supplied by the defendant on 21st March, 2001 did

relate to the suit property. When the matter came up before

the Court on 06th January, 2005, the learned counsels for

the parties submitted that the parties were agreeable to

complete the transaction in terms of the sale agreement

executed between them. The matter was adjourned to 12 th

January, 2005 and the parties were left free to finalize the

sale transaction. When the matter was came up before the

Court on 12th January, 2005, the learned counsel for the

defendant stated that since the validity period of the NOC

had expired, the defendant was taking steps to get the same

renewed from the competent authority for which six weeks

were required. When the matter came up before the Court

on 12th April, 2005, the learned counsel for the plaintiff

stated that application for issue of NOC could not be

submitted since requisite form had not been signed by the

plaintiff. The learned counsel for the plaintiffs stated that

since no form was ever offered for signature, there was no

question of plaintiff signing the same. He maintained that in

case a form is sent or presented for signature, the plaintiff

would sign immediately and hand over the same to the

defendant to enable him to make an application for issue of

the NOC. The matter was adjourned by the Court. This was

followed by some adjournments. When the matter came up

on 06th February, 2006, the learned counsels for the parties

stated that the matter had already been settled and only

payments were to be made. When the matter was taken up

by the Court on 23rd February, 2006, the learned counsel

for the parties stated that there was no possibility of a

compromise. The Court then proceeded to frame the issues

and listed the case for trial.

9. Even if I presume, despite my finding to the

contrary, that the plaintiffs were not ready and willing,

before filing of this suit, to perform their part of the

contract, the default on the part of the plaintiffs were

condoned by the defendant when he repeatedly reiterated,

during pendency of the suit, that he was ready and willing

to complete the transaction in terms of the agreement to

sell, executed by him in favour of the plaintiffs. The

willingness to complete the transaction was expressly

conveyed by the defendant to the Court on 24th October,

2000, when the matter came up before the Joint Registrar.

On that day, three blank forms 37 (i), required for obtaining

Income-Tax Clearance Certificate as well as three forms

under Section 8 of Delhi Lands (Restrictions on Transfer)

Act, 1972, duly signed by the plaintiffs, were supplied to the

learned counsel for the defendant. The willingness to

complete the transaction was reiterated by the defendant

when the matter came for hearing on 29 th March, 2001, 09th

November, 2004, 06th January, 2005 and 12 th January,

2005. In fact, on 06th February, 2006, the counsel for the

parties also stated that the matter had been settled and only

payments were to be made. In view of his express

willingness to complete the transaction on the terms set out

in the agreement to sell, executed between the parties, it is

no more open to the defendant to resist the claim of the

plaintiff on the ground that there was a default on their part

in performing their part of the contract, before the suit was

filed by them or before 06th February, 2006. The learned

counsel for the defendant pointed out that on 29 th March,

2001, The learned counsel for the plaintiffs made a false

statement in the Court that the copies of Income-Tax

Clearance Certificate and NOC which were supplied to her

on 21st March, 2001, did not relate to the suit property,

though on 16th December, 2005, the counsel, on

instructions from the plaintiff, accepted those very

documents by stating that they were no longer disputing

that the documents did not relate to the suit property

which, according to the learned counsel, clearly shows that

the plaintiffs were not interested in completing the

transaction and that is why they deliberately disputed the

Income-Tax Clearance Certificate and NOC which the

defendant had obtained, in order to complete the

transaction. It has come in the deposition of the plaintiff

that the particulars of land given in the documents filed by

the defendant did not tally with the particulars of the land

given in the agreement to sell, executed by the defendant in

their favour. The learned counsel for the plaintiffs has

pointed out that khasra numbers given in the agreement to

sell dated 15th November, 1996 are "Mustatil No. 94, Killa

Nos. 2/2 (1-16), 14/1 Min (0-15), 14/2 Min (0-8), 3 (4-16), 4

(4-16), 7 (4-16), 8 (4-16), 27 (0-2), Mustatil No. 67, Killa

Nos. 23 South (0-15), Khasra No. 311 (0-16)", whereas the

particulars given in Income-Tax Clearance Certificate and

NOC, DW-1/1 and DW-1/2 are "94/7 Min. 3-14, 14/2 (0-8),

94/14/1 (0-15), 94/08 Min (0-19½) = 5-16½" and that was

the reason why she told the Court that the particulars given

in the documents were different from the particulars given

in the agreement to sell dated 15th November, 1996. It was

also submitted by the learned counsel for the plaintiffs that

since the defendant claimed that in the partition, which he

had with his brothers, the land described in Ex.DW-1/1 and

DW-1/2 had fallen to his share, the plaintiffs decided to

accept his claim and gave up their objection in this regard.

It was also pointed out by the learned counsel for the

plaintiffs that the particulars of the land given in the NOC at

the time signature of the plaintiffs were obtained on the

document were exactly the same as are given in the

agreement to sell dated 15th November, 1996 and the

defendant scored off those particulars and wrote revised

particulars, without getting the documents signed by the

plaintiffs after this alteration had been done. A bare perusal

of the Ex.DW-1/1 confirms the alternation pointed out by

the learned counsel for the plaintiffs. In these

circumstances, it would not be appropriate to conclude, on

account of the objection raised by the plaintiffs on 29 th

March, 2001, with respect to particulars of the land given in

these documents, that the plaintiffs were not ready and

willing to perform their part of the contract. The Court

cannot lose sight of the fact that after serving notices on the

defendant, the plaintiffs filed the suit and were duly

prosecuting it. During pendency of the suit, the plaintiffs

also obtained a pay order of Rs 28,81,526/- dated 11th

January, 2005 in favour of the defendant. A copy of that

pay order is available on the Court record. The act of the

plaintiffs in obtaining the aforesaid pay order in favour of

the defendant is a clear indicator that they were ready and

willing to complete the transaction in terms of their

agreement with the defendant. It was contended by the

learned counsel for the defendant that the pay order dated

11th January, 2005 was never offered to the defendant.

This, however, was disputed by the learned counsel for the

plaintiffs, who stated that the pay order was tendered to the

defendant who refused to accept the same and therefore, it

was at a later date encashed by the plaintiffs. The record

does not indicate whether the pay order was tendered to the

defendant in the Court or not. However, it is unlikely that

even after getting the pay order prepared, the plaintiffs

would not offer the same to the defendant. More

importantly, even after January, 2005, the defendant told

the Court on 12th January, 2005 that since validity period of

NOC had expired, he was taking steps to get the same

renewed from the Competent Authority for which six weeks

were required. As noted earlier on 06th February, 2006, the

counsels for the parties told the Court that they had settled

the matter and only payments were to be made. Had there

been default on the part of the plaintiffs, the defendant

would not, on 12th April, 2005, have sought six weeks time

to obtain renewal of the NOC. This is also not the case of

the defendant that during the pendency of the suit, the

parties had agreed to terms other than those stipulated in

the agreement to sell dated 15th November, 1996. In these

circumstances, I hold that the plaintiffs were all along ready

and willing to perform their part of the agreement to sell

dated 15th November, 1996.

10. As regards availability of the land, since the case of

the defendant is that out of joint land subject matter of the

agreement, the land measuring 5 bighas 16 ½ biswas

comprised in Khasra No. 94/7 Min. 3-14, 14/2 (0-8),

94/14/1 (0-15), 94/08 Min (0-19½) has fallen to his share

in the partition, which he had with his brothers and the

plaintiff has accepted this position, the defendant can be

directed to execute the sale deed by executing the sale deed

in respect of the aforesaid land measuring 5 bighas and 16

biswas. The issues are decided accordingly.

Issues No. (vii) to (x)

11. In view of my findings on the issues, the plaintiffs

are entitled to specific performance of the agreement to sell

dated 15th November, 1996.

12. The next question which comes up for

consideration is whether the facts and circumstances of the

case, including the fact that the agreement was executed

about 15 years ago and the land prices in the meanwhile

have escalated quite substantially, justify payment of

amount in addition to the agreed sale consideration, to the

defendant, in order to balance the equities.

As observed by Supreme Court in Sardar Singh v.

Krishna Devi and Anr. AIR 1995 SC 491, the jurisdiction of

the Court to decree specific performance being

discretionary, the Court is not bound to grant such relief,

merely because it is lawful to do so, though it can hardly be

disputed that the discretion being a judicial discretion

needs to be guided by the settled judicial principles and

exercised in a reasonable manner.

In Gobind Ram Vs. Gian Chand AIR 2000 SC

3106, Supreme Court, in order to mitigate the hardship

resulting to the vendor due to lapse of time and escalation of

prices of urban properties, directed payment of further

compensation to the vendor while granting a decree for

specific performance, in terms of the agreement between the

parties.

In Nirmala Anand Vs. Advent Corporation (P)

Ltd. and Ors. (2002) 8 SCC 146, Hon‟ble Mr Justice

Doraiswamy Raju, after noticing the facts and

circumstances of the case, including that out of the total

sale consideration of Rs 60,000/-, only a sum of Rs

35,000/- had been paid by the purchaser, observed that it

would be not only unreasonable, but too inequitable for

Courts to make the appellant the sole beneficiary of the

escalation of real estate prices and the enhanced value of

flat in question which the respondents had all along

preserved by keeping alive the issues pending with the

authorities of the Government and municipal bodies. The

Hon‟ble Judge was of the view that the balance of equity has

also to be struck taking into account all the relevant aspects

of the matter, including the lapses which had occurred and

parties respectively responsible therefor. The Hon‟ble Judge

felt that before decreeing the specific performance, it is

obligatory for the Courts to consider, whether by doing so

any unfair advantage would result for the plaintiff over the

defendant, the extent of hardship that may be caused to the

defendant and if it would render such enforcement

inequitable, besides taking into consideration the totality of

the circumstances of each case. The Court, therefore,

directed the appellant to pay at least a sum of Rs 40 lakh to

the respondent Nos. 1 and 2, in addition to the amount

which she had already paid. She was also held entitled to a

decree for specific performance only subject to compliance

of condition for this additional amount. Hon‟ble Mr Justice

Ashok Bhan, however, had reservations with respect to this

part of the order. Noticing that in certain cases, the Court

in equity and to mitigate the hardship to the vendor had

directed the vendee to pay further compensatory amount,

His Lordship was of the view that this is not a principle of

universal application and payment of additional

compensation would depend on the facts and circumstances

of each case. His Lordship was of the view that escalation of

price during the period may be relevant consideration under

certain circumstances for either refusing to grant the decree

of specific performance or for decreeing the specific

performance with a direction to the plaintiff to pay an

additional amount to the defendant and compensate him. It

would depend upon on the facts and circumstances of each

case. His Lordship observed that the respondents cannot

take advantage of their own wrong and then plead that the

grant of decree of specific performance would amount to an

unfair advantage to the appellant. The view taken by his

Lordship is that the appellant was entitled to specific

performance of the agreement on the prices stipulated in the

agreement to sell.

13. The proposition of law, which emerges from these

judgments, is that though the vendors cannot claim

payment of additional compensation to him, merely on

account of appreciation in the price of the property nor can

the Court direct such payment in each and every case,

where there is appreciation in the price of the property

subject matter of an agreement to sell, it is open to the

court, in appropriate cases, if the facts and circumstances

of the case so warrant, to direct payment of additional

compensation by the vendee to the vendor, in genuine cases

of hardship, so as to balance the equity between the parties.

In the case before this Court, the circumstances

which justify additional payment to defendant are:

(i) the defendant is a farmer who had agreed to sell

his share in the joint agricultural land to the plaintiffs;

(ii) the agreement to sell was executed about 15 years

ago and there has been astronomical appreciation in the

price of land, including agricultural land during this period;

(iii) the first notice to the defendant was sent only on

05th November, 1999, though the transaction was to be

completed within three months from 15 th November, 1996

and, therefore, the plaintiffs could have sent a notice at any

point of time after 15th May, 1997 and could have come to

the Court soon thereafter;

(iv) the plaintiffs paid only a sum of Rs 3,95,000/- to

the defendant, which constitutes only about 12% of the

agreed sale consideration;

(v) the plaintiffs took more than three years before

they withdrew their objection with respect to the particulars

of the land given in the NOC and Income-Tax Clearance

Certificate obtained by the defendant;

(vi) the defendant, on the second date of hearing after

his service, expressed his willingness to complete the

transaction and also obtained the NOC and Income-Tax

Clearance Certificate, during pendency of the suit.

14. In fact, during the course of arguments, the

learned counsel for the plaintiffs was not found averse to

make additional payment to the defendant so as to

persuade him to agree to complete the transaction. I,

therefore, feel that in the facts and circumstances of the

case, the equities need to be balanced by directing the

plaintiffs to pay the current circle rate to the defendant as

the sale consideration after deducting the amount of Rs

3,95,000/- which they had paid to him, before filing of this

suit.

ORDER

A decree for specific performance of the agreement

to sell dated 15th November, 1996, with costs, is hereby

passed in favour of the plaintiffs and against the defendant

by directing the defendant (i) to execute the sale deed in

favour of the plaintiffs, in respect of land measuring 5

bighas 16 ½ biswas comprised in Khasra No. 94/7 Min. 3-

14, 14/2 (0-8), 94/14/1 (0-15), 94/08 Min (0-19½), subject

to the plaintiffs‟ depositing the balance sale consideration in

terms of this order, by way of a pay order in the name of

Registrar General of this Court within four weeks and (ii) to

hand over the peaceful and vacant possession of the

aforesaid land to them. The balance sale consideration will

be calculated by the plaintiffs on the basis of current circle

rate of land in question and deducting the amount of Rs

3,95,000/- which they have already paid to the defendant

from the aforesaid amount. The sale deed will be executed

by the defendant within six weeks of the plaintiffs‟

depositing the balance sale consideration in this regard

under intimation to him. If the defendant fails to execute

the sale deed in favour of the plaintiffs and/or hand over the

possession of land in question to them, it will be open to the

plaintiffs to apply to the Court for appointment of a Court

Commissioner to execute the sale deed and for issue of

warrant of possession of land in question in their favour.

(V.K. JAIN) JUDGE DECEMBER 13, 2011 VN/bg