Karnataka High Court
Shri. C.H. Manilal S/O. ... vs K Ramachandra Raju S/O. Anjaneya Raju on 26 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA No. 100299 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100299 OF 2018 (SP)
BETWEEN:
SHRI. C.H. MANILAL,
S/O. PATTABHIRAMAYYA
AGE:47 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O: MOHAMMED NAGAR,
KOPPAL-583231.
...APPELLANT
(BY SRI. K.L. PATIL, ADVOCATE)
AND:
K. RAMACHANDRA RAJU S/O. ANJANEYA RAJU
AGE:68 YEARS,
OCC: CHARTERED ACCOUNTANT AND AGRICULTURE,
R/O: SULTANPUR-583231,
TQ. AND DIST:KOPPAL,
Digitally signed NOW RESIDING AT FLAT NO.1003, BLOCK NO.13,
by GIRIJA A
BYAHATTI HILL RIDGE SPRINGS, GACHIBOWLI,
Location: HIGH
COURT OF
HYDERABAD-500032, ANDHRA PRADESH STATE.
KARNATAKA
... RESPONDENT
(BY SRI. S.H. MITTALKOD, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
R/W ORDER XLI RULE 1 CPC., AGAINST THE JUDGMENT AND
DECREE DATED 11.06.2018 PASSED IN O.S.NO.95/2014 ON THE
FILE OF THE SENIOR CIVIL JUDGE, KOPPAL, PARTLY DECREEING THE
SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09/07/2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
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RFA No. 100299 of 2018
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the plaintiff has challenged the
judgment dated 11.06.2018 passed in O.S.No.95/2014 by
the Senior Civil Judge at Koppal (hereinafter referred to as
'the Trial Court', for short), in refusing to grant the relief
of specific performance and directing the defendant to
refund an advance amount with interest at 18% p.a.
2. The appellant was the plaintiff and respondent
was the defendant before the Trial Court. For the sake of
convenience, the rank of the parties will be referred to as
per their status before the Trial Court.
3. The brief facts of the case are, the land in
R.S.No.14/1 measuring 01 acre, 14/3 measuring 05 acres
and 14/4 measuring 05 acres, situated in Sultanpur
village, Taluk and District Koppal, is belonging to the
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defendant. The defendant approached the plaintiff for
alienation of the said properties for his legal necessity on
23.05.2014, agreeing to sell the said lands for a
consideration of Rs.16,50,000/- and received part
consideration of Rs.10,00,000/-. It was further agreed by
the defendant that balance consideration of Rs.6,50,000/-
will be received at the time of registration of the sale deed
within three months. The defendant executed a registered
agreement of sale on 23.05.2014 receiving the part
consideration.
3(a) In the first week of August 2014, plaintiff called
upon the defendant to receive balance consideration of
Rs.6,50,000/- and to execute the sale deed. The
defendant sought for more time to execute the sale deed
as it was not convenient for him to come to Koppal from
Hyderabad where he resides.
3(b) In spite of repeated requests, defendant did not
come forward to execute the sale deed by receiving
balance consideration. Hence, on 17.09.2014, a notice
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was issued calling upon the defendant to execute the sale
deed and reply was received on 08.10.2004 contending
that the sale consideration was Rs.29,60,000/- and asking
the plaintiff to pay Rs.13,10,000/- in addition to
Rs.6,50,000/- for execution of the sale deed. As the
defendant failed to execute the sale deed, the plaintiff has
filed the instant suit.
4. The defendant has opposed the suit by filing the
written statement contending inter alia that, he is the
owner of the suit schedule properties, he has agreed to
sell the suit properties for a consideration of
Rs.29,60,000/-, wherein the plaintiff obtained the
registered agreement of sale for a consideration of
Rs.16,50,000/- only and outside the agreement, he has
issued two cheques, one for Rs.10,00,000/- and one
cheque for Rs.3,10,000/- and instructed the defendant to
present the cheque during August, 2014 and further he
will pay the balance consideration of Rs.6,50,000/- within
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three months and get the sale deed registered on or
before 23.08.2014.
4(a) It was agreed that, time was the essence of
contract and the cheques issued by the plaintiff came to
be dishonoured and consideration was not paid as agreed
and dishonour of cheques was intimated to the plaintiff
through notice dated 09.09.2014. In stead of performing
his part of contract by paying the balance consideration
including the cheque dishonoured amount, the plaintiff
issued legal notice on 17.09.2014 and the same was
replied by defendant on 08.10.2014.
4(b) The plaintiff was informed about cancellation of
the agreement dated 23.05.2014 and that Rs.10,00,000/-
advance will be returned on execution of the Cancellation
Deed before the Sub-Registrar office, Koppal. In stead of
complying the same, the plaintiff has ventured into filing
the suit and sought for its dismissal.
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5. Based on the pleadings, the Trial Court has
framed following issues:
i. Whether the plaintiff proves that he is/was
ready and willing to perform his part of the
contract?
ii. Whether the defendant proves that the
plaintiff has failed to perform his part of the
contract under the agreement of sale?
iii. Whether the plaintiff is entitled for the relief
of specific performance of the contract?
iv. Whether plaintiff is entitled for the relief of
refund of consideration amount with interest
as sought?
v. What order or decree?
6. In order to prove the above issues, on behalf of
the plaintiff, he himself is examined as PW1 and got
marked 10 documents as Exs.P1 to P10. On behalf of the
defendant, the GPA of the defendant and one witness are
examined as DW1 and DW2 and got marked 13
documents as Exs.D1 to D13.
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7. After hearing both sides, the Trial Court
recorded its negative finding in respect of issues No.1 and
3 and affirmative finding in respect of issues No.2 and 4
and while answering issue No.4, rejected the claim of the
plaintiff for specific performance and ordered for refund of
advance money of Rs.10,00,000/- with interest at 18%
p.a. Aggrieved by the same, plaintiff seeking execution of
sale deed, has filed the present appeal on various
grounds.
8. We have heard the arguments of Sri. K. L. Patil,
learned counsel appearing for the plaintiff/appellant and
Sri.S. H. Mittalkod, learned counsel appearing for the
defendant/respondent.
9. It is contended by the learned counsel for the
plaintiff that, the defendant has admitted execution of the
sale agreement. Major portion of the consideration amount
of Rs.10,00,000/- out of Rs.16,50,000/- was paid to the
defendant. The plaintiff has pleaded his readiness and
willingness in the plaint, proved the same by placing
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evidence. Even in the cross-examination of the plaintiff, it
has been brought out that more than five lakh rupees is
available in the bank account of the plaintiff. There is no
need to have the ready cash at all the times. The plaintiff
is a businessman having agricultural lands and he has the
capacity to pay and arrange balance sale consideration.
There is no pleading by the defendant that the plaintiff has
weak financial position. In spite of several requests made
by the plaintiff, the defendant has not come forward.
9(a) It is further contended that, time will not be the
essence of contract. There is no forfeiture clause in the
agreement and defendant has unilaterally cancelled the
agreement. The GPA holder of the defendant did not have
personal knowledge about the transaction nor is he the
signatory to the agreement. His evidence without
personal knowledge is not believable.
9(b) The defendant failed to substantiate that the
consideration agreed upon was Rs.29,60,000/-. Contrary
to the same, the Power of Attorney holder of defendant
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admits in his cross-examination that, as per the
agreement, balance sale consideration to be paid is only
Rs.6,50,000/-.
9(c) It is also contended that, the Trial Court has
failed to note the fact that, there is no need for proving of
agreement, as it is already admitted. In spite of admitted
documents, no oral evidence is permitted to alter the
terms of contract. The plaintiff has proved the
consideration agreed upon and part payment made to the
defendant. Readiness and willingness of the plaintiff is
explained through evidence. Though it is a case for grant
of specific performance, which does not involve any
hardship to the defendant, denial of specific performance
has caused hardship to the plaintiff having paid major
portion of the consideration amount. The order of refund is
not justifiable and sought for grant of specific
performance.
9(d) To buttress his argument, learned counsel has
relied upon the judgment of the Hon'ble Supreme Court in
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the case of P. Daivasingamani Vs. S. Sambandan1.
10. Per contra, learned counsel for the defendant
has contended that, the total consideration agreed upon
was Rs.29,60,000/- and not Rs.16,50,000/-. In order to
substantiate the same, outside the agreement, plaintiff
has issued two cheques under Exs.D3 and D4, drawn from
Oriental Bank of Commerce, in favour of the defendant,
asking to encash the same on 23.08.2014, along with the
letter under Ex.D10. The recitals of Ex.D10 explains,
under the agreement - Ex.P1 sale consideration was fixed.
payments were through RTGS at Rs.10,00,000/-, one
cheque for Rs.10,00,000/-, one cheque for Rs.3,10,000/-
paid and agreed to pay remaining Rs.6,50,000/- at the
time of registration of the sale deed.
10(a) The cheques under Exs.D3 and D4 have been
dishonored on presentation and therefore, the defendant
has caused notice to the plaintiff on 09.09.2014. Instead
of honouring the cheques, the plaintiff issued notice on
AIR 2022 SC 5009
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17.09.2014. In the cross-examination of the plaintiff, it is
brought out that the plaintiff has no sufficient money in his
bank account. Even if Exs.P9 and P10 - bank passbooks
are accepted, the balance available in the account of the
plaintiff is only Rs.2,02,000/- as on 31.07.2014 and
Rs.3,05,000/- as on 25.12.2014. At no point of time from
the date of agreement till the date of performance of
agreement, the plaintiff has sufficient money in his bank
account and no evidence is placed that he has arranged
the money and offered the same to the defendant.
10(b) It is further contended that, time is the essence
of contract, it is recited in the agreement. Time as
admitted by the plaintiff and defendant is three months for
performance of contract. During the said period, the
plaintiff did not offer any money nor issued notice to the
defendant calling upon him to execute the sale deed.
Under Ex.P8 - notice, reply was issued to the plaintiff
narrating that the sale consideration agreed was
Rs.29,60,000/- and not Rs.16,50,000/-. Therefore, the
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Trial Court has rightly analysed that the plaintiff is/was
ever ready and willing to perform his part of contract, as
he has no sufficient funds in his account and rightly
ordered for refund of advance money.
10(c) To buttress is argument, learned counsel relied
upon the judgment of the Hon'ble Supreme Court in the
case of U. N. Krishnamurthy (since deceased) Thr.
Lrs Vs. A. M. Krishnamurthy2.
11. We gave our anxious consideration to the
arguments addressed on behalf of both the parties and
perused the evidence and also the impugned judgment.
12. Ex.P1 is the agreement entered into between
the plaintiff and defendant. Since the execution is not in
dispute, the Trial Court has framed issue No.1 in respect
of readiness and willingness on the part of the plaintiff.
We have perused the evidence of the plaintiff as well as
the witnesses examined on behalf of the defendant. The
execution of the agreement and part payment of
2022 SCC OnLine SC 840
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Rs.10,00,000/- has been established. In the cross-
examination of the plaintiff, Exs.D3 and D4 - cheques have
been confronted to the plaintiff, who denied the signature
found therein. The evidence explains that Exs.D3 and D4
- cheques belonging to the plaintiff and at the relevant
point of time, the accounts pertaining to the said cheques
has been operated by him. The defendant disputed the
sale consideration of Rs.16,50,000/-, claiming it as
Rs.29,60,000/-.
13. The agreement came into existence on
23.05.2014. Ex.P5 is the notice issued by the plaintiff to
the defendant on 17.09.2014. There is recital in the
agreement that balance consideration has to be paid to
the defendant within 3 months. The plaintiff admits that,
no notice was issued to the defendant within 3 months. In
Ex.P8 - reply notice, the defendant claimed that Exs.D3
and D4 are issued in favour of the defendant outside the
said agreement. On 09.09.2014, the defendant issued
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notice to the plaintiff, expressing that he is not interested
to sell the properties and he is canceling the agreement.
14. It is pertinent to note that, the defendant has
produced letter dated 28.08.2014 as per Ex.D9 along with
postal receipt at Ex.D1 intimating about Exs.D3 and D4 -
cheques issued by the plaintiff in connection with sale of
lands and he called upon the plaintiff to complete the
transaction on 23.08.2014, intimating the plaintiff that he
is going to present the said cheques of Rs.10,00,000/- and
Rs.3,10,000/- for encashment on 28.08.2014. Accordingly
the cheques were presented and they came to be
dishonoured as per the endorsement issued by the bank
as per Exs.D6 and D7. The defendant based his evidence
under Ex.D10, which carry the signature of the plaintiff.
The plaintiff denies his signature. The recitals in Ex.D10
goes to explain the transaction between plaintiff and
defendant under Ex.P1 and amount of Rs.10,00,000/-
received through RTGS by the defendant from the plaintiff.
Exs.D3 and D4 cheques drawn from Oriental Bank of
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Commerce dated 23.08.2014 was issued and
Rs.6,50,000/- was agreed to be paid at the time of
registration.
15. The plaintiff seriously disputed Ex.D10.
Plaintiff and defendant are well educated, one is
businessman and another is a Chartered Accountant. By
production of Exs.D3 and D4 cloud is created against the
plaintiff. The plaintiff is the owner of these cheques and
he has to explain how these cheques were gone to the
hands of the defendant.
16. In this regard we have perused the evidence of
the plaintiff. We do not find any explanation nor in the
course of cross-examination of DW1, anything suggested
in the nature of explanation, under what circumstance
Exs.D3 and D4 came to the hands of the defendant. It is
not the case of the plaintiff that he had any earlier
financial transaction with the defendant and these cheques
were issued in connection with the said transaction. When
the defendant is the holder of the cheques belonging to
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the plaintiff, it is for the plaintiff to explain how these
cheques have been gone to the hands of the defendant,
otherwise adverse inference has to be drawn against the
plaintiff.
17. We have carefully perused the evidence of the
GPA holder of the defendant, so also his cross-examination
on behalf of the plaintiff.
18. DW1 is the GPA holder. He admits the sale
consideration mentioned in Ex.P1 as Rs.16,50,000/-. He
is not the signatory to Ex.P1. Is unaware of the contents
of Ex.P1 though present during the negotiation on
23.05.2014. DW3 has informed him personally about
cancellation of the agreement.
19. As we referred above, Exs.D9 and D10 are the
letters of the plaintiff in connection with issuing of Exs.D3
and D4 - cheques. Ex.D9 refers to transaction under
Ex.P1. It is admitted that, the agreement was executed
on 23.05.2014 and the time mentioned for paying the
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balance consideration of Rs.6,50,000/- is 3 months, that is
on or before 23.08.2014.
20. As referred above, plaintiff never approached
the defendant offering balance consideration on or before
23.08.2014. This goes to show that the plaintiff has not
paid the balance consideration of Rs.6,50,000/- within 3
months as recited in Ex.P1. Even we have not found any
explanation from the plaintiff why he has not approached
the defendant within 3 months offering to pay balance
consideration of Rs.6,50,000/- and asking him to execute
the sale deed. From this, it is very much clear that the
evidence of the plaintiff is not sufficient to hold that he
was acted in terms of Ex.P1.
21. The main issue is readiness and willingness of
the plaintiff. Plaintiff has produced Exs.P9 and P10 - Bank
Passbooks. As referred supra, the balance amount in the
bank, even together will not exceed more than
Rs.3,05,000/- as on 30.06.2014. The plaintiff is required
to explain his readiness and willingness to perform his part
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of contract. First time the plaintiff came out with a notice
on 17.09.2014 calling upon the defendant to execute the
sale deed. There is no explanation for belated notice and
in this regard, the evidence of the plaintiff is not
convincing.
22. Adverting to the argument of the learned
counsel for the plaintiff, the conduct of the plaintiff is not a
ground for refusing specific performance and the suit is
filed within 3 years. The Hon'ble Apex Court in P.
Daivasingamani's case (supra) held that, the delay in
payment of full consideration would go to the advantage of
the plaintiff, which will be a relevant consideration to
examine the readiness and willingness of the plaintiff. The
plaintiff though averred that he is ready and willing to
perform his part of contract, the Hon'ble Apex Court in this
judgment referring to Section 16(c) of the Specific Relief
Act, held that the plaintiff must aver performance of
contract, or readiness and willingness to perform contract
according to its true construction. If that is shown, there
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is compliance of Section 16(c). In order to accept the
readiness and willingness of the plaintiff, the plaintiff is
required to aver his readiness and willingness.
23. As discussed supra, though Ex.P1 carry 3
months time for payment of balance consideration, the
plaintiff never pleaded that he has offered payment of the
balance consideration of Rs.6,50,000/- to the defendant
within 3 months, rather a letter under Ex.D9 indicate that,
on 28.08.2014, the plaintiff was informed about the
transaction under Ex.P1 on 23.05.2014 and his liability to
pay the balance consideration on or before 23.08.2014,
with an intimation that the cheque under Exs.D3 and D4
are being presented on that day expressing his readiness
to register the sale deed. This goes to show that, above
the Ex.P1, parties have done some more transaction.
24. The Hon'ble Apex Court in U. N.
Krishnamurthy's case (supra), held that the plaintiff not
only to aver and prove his readiness and willingness to
perform an obligation to pay money in terms of the
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contract, he has to show the availability of funds to make
payment in terms of the contract in time. At para 48 of
the judgment, the Hon'ble Apex Court specifically
observed that, the plaintiff if failed to prove his readiness
and willingness to perform his part of contract from the
date of execution of the agreement till date of decree,
which is a condition precedent for grant of relief of specific
performance, the plaintiff was not entitled for the relief of
specific performance. The conduct of the plaintiff if shows
that he is trying to take time to discharge his part of
contract, it is a case for refund of money and not a case
for grant of specific performance.
25. In view of the law laid down by the Hon'ble
Apex Court referred to supra, the conduct of the plaintiff is
very relevant at the relevant point of time. As referred to
supra, the recital of Ex.P1 that 3 months time is granted
for payment of balance consideration, but only after 4½
months the plaintiff issued notice calling upon the
defendant to execute the sale deed, in fact, the first notice
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issued from the defendant on 28.08.2014, informing that
as per the agreement the transaction is to be completed
by 23.08.2014 and presentation of cheques - Exs.D3 and
D4. If really time was not agreed as essence of contract,
why in Ex.D9 defendant reminds the plaintiff that the time
was agreed to be the essence of contract.
26. Section 91 of the Evidence Act contemplate
that, the oral evidence is not permissible to controvert the
terms of the documents. The explanation is culled out in
Section 92 of the Evidence Act that the evidence is
permissible to explain the real nature of transaction
between the parties.
27. On 17.09.2014, the notice of the plaintiff under
Ex.P5 was replied with a specific averment that the agreed
consideration was Rs.29,60,000/-, part consideration was
also paid through Exs.D3 and D4 and balance
consideration of Rs.6,50,000/- to be paid at the time of
registration of sale deed. Even otherwise the
consideration is accepted to be Rs.6,50,000/-, the plaintiff
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failed to place evidence to show that he has sufficient
funds in his hands within 3 months from the date of the
agreement. Even Exs.P9 and P10 are accepted, money
available in the hands of the plaintiff during the
subsistence of the agreement is not more than
Rs.3,05,000/-.
28. The plaintiff claims to be a businessman holding
agricultural lands. That is not sufficient to specify his
readiness and willingness as is required to show to the
defendant that he was always ready and willing to perform
his part of contract, holding the money in his hands.
29. In U. N. Krishnamurthy's case (supra), the
Hon'ble Apex Court referring to the case of Chand Rani Vs.
Kamal Rani3, referred to that, in case of sale of immovable
property there is no presumption as to time being the
essence of contract. Even if it is not of the essence of
contract, the Court may infer that it is to be performed in
a reasonable time if the conditions are (evident):
(1993) 1 SCC 519
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i. from the express terms of the contract;
ii. From the nature of the property; and
iii. From the surrounding circumstances, for
example, the object of making the contract.
30. The defendant is a Chartered Accountant
residing in Hyderabad and plaintiff is a businessman
residing in Hospete. They are all highly learned people and
they knew the pros and consequences once of the terms of
agreement. We cannot ignore that, in case of sale deeds,
in order to avoid payment of stamp duty, parties generally
undervalue the consideration amount, and acting outside
the agreement by receiving the cash consideration. This
aspect cannot be unknown even in respect of the plaintiff
and defendant.
31. Hence the circumstances clearly point out that
the plaintiff has failed to place convincing evidence that he
is/was ready and willing to perform his part of contract
from the date of agreement till the date of notice on
17.09.2014.
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32. The Trial Court has framed issue No.2 in
respect of the time is the essence of contract, as
contemplated in the agreement. We have carefully
perused the evidence and pleading to this extent. As
referred supra in U. N. Krishnamurthy's case, in case of
an agreement with respect to immovable property, time is
not essence of contract. But in Ex.P1 - agreement, it is
specifically mentions the terms providing date of payment
of balance consideration as three months. As admitted by
the plaintiff, he has not paid the balance consideration nor
offered to defendant to pay consideration within three
months. From this we can draw an inference that plaintiff
failed to perform his part of contract. From this conduct of
the plaintiff, it is very clear that he is not ready to get the
sale deed registered within 3 months and the explanation
that the plaintiff issued cheques at Exs. D3 and D4,
outside the terms of agreement cannot be ignored.
Hence we are of the opinion that time agreed upon for
payment of balance consideration has not been acted upon
by the plaintiff.
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33. Another issue framed by the Trial Court and
also discussed is the grant of specific performance in
favour of the plaintiff. As we discussed from the pleadings,
the extent of land agreed to be sold was 10 acre 21
guntas. The sale price is fixed at Rs.16,50,000/- according
to the recital in the agreement. The defendant claims it is
Rs.29,50,000/-. To substantiate the same, defendant
relies on Ex.D10, so also Exs.D3 and D4. The plaintiff is
the owner of the said cheques and he has failed to explain
how the said cheques came to the hands of the defendant.
These cheques were dishonoured and the same has been
intimated to the plaintiff by a notice dated 09.09.2014 by
the defendant. Instead of replying to the said notice,
plaintiff issued notice on 17.09.2014, calling upon the
defendant to execute the sale deed. Even on that day, the
evidence produced at Exs.P9 and P10 and also the oral
evidence did not point out that the plaintiff was having
enough funds to pay balance consideration of
Rs.6,50,000/-.
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34. Section 16(c) of the Specific Relief Act is clear
that compliance of the same Court is bound to grant
specific performance. If there is no compliance, the Court
is not bound to grant specific performance. The specific
performance cannot be granted arbitrarily, unless the
Court satisfies that it is a case for grant of discretion. The
agreement provides clear terms that for performance, time
should be treated as essence of contract. The
documentary evidence placed by the plaintiff clearly
explains that he was not having enough funds in his hands
on the date of issuing notice.
35. Section 20 of the Specific Relief Act reads as
follows:
20. Substituted performance of contract.-(1)
Without prejudice to the generality of the
provisions contained in the Indian Contract Act,
1872 (9 of 1872), and, except as otherwise agreed
upon by the parties, where the contract is broken
due to non-performance of promise by any party,
the party who suffers by such breach shall have
the option of substituted performance through a
third party or by his own agency, and, recover the
expenses and other costs actually incurred, spent
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or suffered by him, from the party committing
such breach.
(2) No substituted performance of contract
under sub-section (1) shall be undertaken unless
the party who suffers such breach has given a
notice in writing, of not less than thirty days, to
the party in breach calling upon him to perform
the contract within such time as specified in the
notice, and on his refusal or failure to do so, he
may get the same performed by a third party or
by his own agency:
Provided that the party who suffers such
breach shall not be entitled to recover the
expenses and costs under sub-section (1) unless
he has got the contract performed through a third
party or by his own agency.
(3) Where the party suffering breach of
contract has got the contract performed through a
third party or by his own agency after giving
notice under sub-section (1), he shall not be
entitled to claim relief of specific performance
against the party in breach.
(4) Nothing in this section shall prevent the
party who has suffered breach of contract from
claiming compensation from the party in breach.
36. The Trial Court read Section 20 of the Specific
Relief Act to understand that it is the discretion of the
Court in granting or not granting the relief of specific
performance and it is not arbitrary, but discretionary
governed by the rules of equity. If the plaintiff proves his
case, the Courts will have no jurisdiction to refuse the
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specific performance. In proving the same, as referred
supra, the plaintiff shall have sufficient funds in his hands
as on 27.08.2014. The Trial Court has considered the
hardship in favour of the defendant in granting the specific
performance and order of refund will not cause hardship to
the plaintiff.
37. We have carefully perused the impugned
judgment. The Trial Court has referred all the relevant
evidence, pleadings and rightly appreciated that it is not
arbitrary to grant specific performance. It is the discretion
of the Court as the plaintiff failed to prove his readiness
and willingness, time is the essence of contract, no money
was in the hands of the plaintiff to perform his part of
contact and the defendant has placed evidence explaining
transaction outside the terms of Ex.P1 - agreement.
Thereby the Trial Court has weighed the hardship in favour
of both the plaintiff and defendant and held that hardship
weighed in favour of the defendant if specific performance
is ordered. The plaintiff is a businessman and defendant
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NC: 2024:KHC-D:10619-DB
is a Chartered Accountant. The Trial Court exercised its
discretion in granting interest of 18% p.a. on the advance
money, which meets the ends of justice in the facts and
circumstances of the case.
38. Hence, we are persuaded to hold that the Trial
Court has not committed any error in appreciating the
case and not committed any illegality in directing refund of
advance money while refusing to grant specific
performance. The appeal is devoid of merits, in the result,
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
gab/Ct-cmu
