Karnataka High Court
Hanumantappa S/O. Chandrappa ... vs Jagadish S/O. Hansraj Thakkar on 13 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 4137 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 4137 OF 2012 (SP)
BETWEEN:
1. SHRI. HANUMANTAPPA
S/O. CHANDRAPPA GORDANAVAR,
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O. KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
SINCE DECEASED BY HIS LR'S
1(A) SMT. NEELAMMA,
W/O HANUMANTAPPA GORDANNAVAR,
AGE: 64 YEARS,
OCC: HOUSEHOLD WORK,
Digitally signed by R/O.KOKATI ONI,
MALLIKARJUN
RUDRAYYA KALMATH NEAR CHURCH UNKAL,
Location: HIGH COURT
OF KARNATAKA HUBBALLI - 580 028.
DHARWAD BENCH
1(B) MANJULA
W/O PEERAPPA DEVAKHATE
AGE: 39 YEARS,
OCC: HOUSEHOLD WORKS,
R/O.KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
1(C) MEENAKASHI
W/O LAXMAN HUNDENNAVAR,
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RFA No. 4137 of 2012
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AGE: 30 YEARS,
OCC: STUDENT
R/O.RAMANNA LAYOUT, KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
1(D) SIDDAPPA
S/O HANUMANTAPPA GORDANAVAR,
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O.KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
1(E) BASAVARAJ
S/O HANUMANTAPPA GORDANAVAR,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O.KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
2. SHRI. ARJUNAPPA
S/O. CHANDRAPPA GORDANAVAR
AGE: 53 YEARS,
OCC: AGRICULTURE,
R/O.KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028
3. SHRI. SAHADEVAPPA
S/O. CHANDRAPPA GORDANAVAR
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O.KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
SINCE DECEASED BY HIS LR'S
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RFA No. 4137 of 2012
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3(A) GEETA
W/O SAHADEVAPPA GORDANAVAR
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O.KOKATI ONI,
UNKAL, HUBBALI ENG COLLEGE,
HUBBALLI - 580 031.
3(B) SUNIL SAHADEVAPPA GORDANAVAR
URF TIPPOJI
AGE: 30 YEARS,
OCC: NIL
R/O.KOKATI ONI,
NEAR CHURCH UNKAL,
HUBBALLI - 580 028.
3(C) SHRUTI
W/O MANJUNATH WAGHMODE
AGE: 29 YEARS,
OCC: HOUSEHOLD WORKS
R/O. DAJIBAN PETH, ANCHATGERI ONI,
HUBBALLI, M V GALLI, DHARWAD,
HUBBALLI - 580 028.
3(D) SUNITHA
W/O VITHAL DEVAKHATE
AGE: 29 YEARS,
OCC: HOUSEHOLD WORKS
R/O. KELAGADE ONI,
KHANDOJI CHAWL,
NAGASHETTIKOPPA,
HUBBALLI, KESHWAPUR,
DHARWAD - 580 023.
3(E) LAXMI
D/O SAHADEVAPPA GORADANNAVAR
AGE: 33 YEARS,
OCC: AGRICULTURE
R/O.KOKATI ONI, UNKAL
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RFA No. 4137 of 2012
HC-KAR
HUBBALLI ENG COLLEGE,
HUBBALLI - 580 031.
..APPELLANTS
(BY SRI. V.M.SHEELVANT, ADVOCATE)
AND:
1. SHRI. JAGADISH
S/O. HANSRAJ THAKKAR
AGE: 53 YEARS,
OCC: AGRICULTURE
R/O. 46, ADARSH NAGAR,
HUBBALLI
2. SHRI. SIDANNA
S/O. BASAVANEPPA KANVALLI
AGE: 54 YEARS,
OCC: AGRICULTURE
R/O. VIDYANAGAR, HAVERI
....RESPONDENTS
(BY SRI. BHAT V.A.GANAPATI, ADVOCATE FOR
SRI. AAYUSH.G.BHAT FOR R1 & R2 (NOC))
THIS RFA IS FILED U/S.96 R/W. ORDER 41 RULE 1 OF
CPC, AGAINST THE JUDGMENT AND DECREE DTD: 31.07.2012
PASSED IN O.S.NO.90/2009 ON THE FILE OF THE FIRST
ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, DECREEING THE
SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, JUDGMENT IS DELIVERED THEREIN AS
UNDER:
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RFA No. 4137 of 2012
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CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
The regular first appeal is filed by the defendants
challenging the judgment and decree dated 31.07.2012
passed in O.S.No.90/2009 by the Court of First Addl.
Senior Civil Judge, Hubli, thereby the suit filed by the
plaintiffs for specific performance of contract is decreed in
full directing the defendants to execute the registered sale
deed in favour of the plaintiffs by receiving the balance
sale consideration amount.
2. Rank of the parties are referred to as per their
rankings before the trial court.
PLAINT:
3. It is the case of the plaintiffs that the defendants
are owners of suit schedule property and they had asked
for financial assistance from the plaintiffs in the first week
of March, 2007 and offered to sell the suit schedule
property to the plaintiffs. The defendants agreed to sell
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suit property for a total sale consideration of
Rs.11,25,000/- and the plaintiffs have agreed to purchase
the said property. Accordingly, agreement of sale dated
06.03.2007 was executed and the plaintiffs have paid a
sum of Rs.2,50,000/- through pay order of State Bank of
India, Hubli, for Rs.1,50,000/- and another sum of
Rs.1,00,000/- was paid through cheque of Bank of
Maharastra.
3.1. Further it is stated by the plaintiffs that
subsequent to agreement of sale dated 06.03.2007 as
above stated the plaintiffs have paid further sum of
Rs.1,25,000/- to the defendants and accordingly, made an
endorsement on the agreement of sale. Thus, plaintiffs
have paid an earnest amount of Rs.3,75,000/- out of total
sale consideration of Rs.11,25,000/- and the plaintiffs
were ever ready and willing to perform their part of
contract and as such called upon the defendants to
execute the registered sale deed, but the defendants
refused to execute the registered sale deed and as such,
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plaintiffs were constrained to file the suit for specific
performance of contract.
3.2. Further it is the case of plaintiffs that
panchayath was convened before the elders of the locality
and in that negotiations the defendants have agreed to
execute the registered sale deed, but even so defendants
have not come forward to execute the registered sale
deed. Therefore, the plaintiffs have got issued legal notice
dated 07.05.2009 to the defendants by calling upon the
defendants to execute the registered sale deed.
Therefore, the plaintiffs also got published public auction
notice in Vijaya Karnataka, Kannada Daily Newspaper,
informing the world at large regarding the agreement of
sale. However, the defendants continued to negotiate to
third parties to cause loss to the plaintiffs. Therefore, with
these facts by showing as cause of action arose for filing
the suit, filed the suit for specific performance of contract
seeking direction against the defendants to execute the
registered sale deed in favour of the plaintiffs by receiving
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balance sale consideration of Rs.8,00,000/- and also
issued direction to hand over the possession of the suit
property as per law.
WRITTEN STATEMENT:
4. The defendants have entered appearance through
their learned Advocate and filed the written statement and
denied all the plaint averments. The defendants have
specifically denied the plaint averments. The defendants
have denied that they had asked for financial assistance
by offering land for sale and execution of agreement of
sale by receiving balance sale consideration amount.
4.1. The defendants have denied that they have
agreed to sell the suit property for total sale consideration
of Rs.11,75,000/- and the plaintiffs agreed to purchase the
same accordingly. Further denied that the agreement was
reduced into writing and executed an agreement of sale by
offering the land for Rs.11,75,000/- in total. Further
denied that the defendants have received an advance
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amount of Rs.3,75,000/- out of total sale consideration
amount of Rs.11,75,000/-. Thus, the defendants have
denied execution of agreement of sale dated 06.03.2007
in presence of two witnesses namely, (1) Rajanna M.
Koravi and (2) Siddu Hanumanthappa Goradanavar, son of
first defendant. Thus, the defendants have totally denied
the case of plaintiffs as it is false one.
4.2. Further the defendants denied that the plaintiffs
were always ready and willing to perform their part of
contract. Further the defendants have denied that
plaintiffs have called upon the defendants to perform their
part of contract by issuing legal notice and also by paying
part sale consideration of Rs.1,25,000/-. Thus, the
defendants have denied the case of the plaintiffs and also
denied that there was settlement talks held between the
plaintiffs and defendants in the presence of elders for
execution of sale deed in favour of the defendants.
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4.3 Further the defendants denied that defendants
have attempted to transfer the suit property to third
parties detrimental to the right and interest of the
plaintiffs. Further denied that the plaintiffs have got
issued public notice through newspaper informing the
whole world regarding the agreement of sale. Though it
might have been published, but that is not concerned to
the defendants.
4.4 The defendants have taken pleadings by stating
the truth of matter involved by stating that defendants in
the last week of February 2007 were in dire need of
money for their agricultural activities and as such,
defendant No.3 approached his friend with a request to
advance hand loan of Rs.2,50,000/- to them, but efforts to
secure the amount went to vain. Then the defendants
came to know that plaintiff No.1 advances the loan on
interest to others, therefore, the defendants have
approached plaintiff No.1 with a request to advance hand
loan of Rs.2,50,000/-. Initially plaintiff No.1 declined to
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advance loan to the defendants, but after continuous
persuasion the plaintiff No.1 agreed to advance loan
provided the defendants to give proper security to them
for due repayment of the loan amount and interest
thereon. The plaintiff No.1 insisted defendants to give a
signed non judicial stamp paper for the security purpose
for the payment of loan amount. The defendants declined
to do so. The plaintiff No.1 assured the defendants stating
that said non judicial stamp paper will not be used against
the interest of the defendants so long as they go on
paying the agreed interest at rate of 2% p.m. on the
amount advanced. The defendants without any alternative
agreed to do so. Therefore, plaintiff No.1 has obtained
signature of the defendants in the middle portion of the
non judicial stamp paper of face value of Rs.100/. The
defendants are illiterate. On the strength of assurance
given by the plaintiff No.1, the defendant No.1 has put his
LTM and defendant Nos.2 and 3 have subscribed their
signatures on the said non judicial stamp paper in good
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faith. Then the plaintiff No.1 has paid Rs.2,50,000/- to
the defendants as a loan. It is stated that part of the said
amount is paid through pay order and part of it through
cheques. The defendants promised the plaintiff No.1 to
repay the said loan amount within a period of 6 months.
4.5 Further pleaded that on 15.05.2007 the
defendant No.3 has paid Rs.13,000/- to the plaintiff No.1
towards interest for the said loan amount. On 01.09.2007
the defendant No.3 has also repaid part of the loan
amount of Rs.1,20,000/- to the plaintiff No.1. The
defendants due to failure of crops and other domestic
problems could not repay the remaining loan amount of
Rs.1,30,000/- to the plaintiff No.1. The defendants
requested several times and assured the plaintiff No.1 that
as soon as their financial position is improved they would
repay the entire balance amount of loan with agreed
interest thereon. Then the plaintiff No.1 started
demanding exorbitant interest on the balance loan
amount. The defendants expressed their inability to do so
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and promised to pay reasonable interest but not
compound interest. The plaintiff No.1 being unsatisfied
got issued the notice dated 07.05.2009 to the defendants
contending that the defendants have executed the
agreement of sale with respect to the suit property in
favour of plaintiffs. The defendants were shocked and
surprised to receive such notice, then immediately the
defendants approached the plaintiff No.1 and enquired
about the said notice. The defendants also assured the
plaintiffs to repay the balance amount of loan at the
earliest. Thereafter the plaintiff No.1 and defendants
arrived at a settlement and defendants agreed to settle
the loan amount within a period of three
months. Thereafter, the defendants received the suit
summons. Hence, the defendants submitted that they
have never executed agreement of sale in favour of the
plaintiffs and the defendants have never intended to
execute the sale deed in favour of plaintiffs and whatever
amount received by the plaintiff No.1 is only a loan and
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the alleged stamp paper was executed for security purpose
for the loan. But the plaintiffs have got illegally converted
the said non judicial stamp paper into an agreement of
sale fraudulently and started to make false claim and
accordingly a false and frivolous suit filed. Therefore,
prays to dismiss the suit.
5. Based on the pleadings, the trial court has
framed following issues:
1) Whether the plaintiffs prove that the
defendants have agreed to sell suit property
for Rs. 11,75,000/- received earnest money of
Rs.3,75,000/- and executed agreement of sale
on 06.03.2007?
2) Whether the plaintiffs are ever ready and
willing to perform their part of contract?
3) Whether the plaintiffs are entitled for specific
performance of contract? If not, entitled for
refund of earnest money?
4) Whether the defendants proves the payment
of Rs.13,000/- towards interest and
Rs.1,20,000/- towards principal amount of
loan to plaintiff No.1 on 15.05.2007 and on
01.09.2007 respectively?
5) What order or decree?
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6. In order to prove the case of plaintiffs, plaintiff
No.1 is examined as PW1 and two witnesses are examined
as PW2 and PW3 and got marked documents as Exs.P-1 to
P-10(a), (b) and (c).
7. On behalf of defendants, the defendant No.3 is
examined as DW1 and got marked documents as Ex.D1 to
D3.
REASONINGS OF THE TRIAL COURT:
8. The trial court has decreed the suit for the relief
of specific performance of contract in full and directed the
defendants to execute the registered sale deed in favour of
plaintiffs in respect of suit property by receiving balance
consideration amount of Rs.8,00,000/- from the plaintiffs,
failing which the plaintiffs are to get executed the sale
deed registered through Court as per procedure under the
Law. The trial court has assigned the reason that
defendants have executed Ex.P-1 - agreement of sale by
receiving earnest amount of Rs.3,75,000/- and executed
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agreement of sale on 06.03.2007. Further the trial court
has assigned the reason that plaintiffs were ever ready
and willing to perform their part of contract. The trial
court held that from the evidence on record agreement of
sale is proved to have been executed and thus, the
defendants have agreed to part with the suit property as
per agreement of sale, therefore it is held that the
agreement of sale is proved.
9. Further assigned reasons that the plaintiffs
have issued public notice through newspaper calling upon
the whole world that the plaintiffs have agreed to purchase
the land of suit property as per the agreement of
sale. Therefore, this proves that the plaintiffs were ever
ready and willing to perform their part of contract. Thus,
decreed the suit for a specific performance of contract by
directing the defendants to execute the registered sale
deed by receiving balance sale consideration amount of
Rs.8,00,000/-.
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MEMORANDUM OF APPEAL:
10. Being aggrieved by the decree of trial court, the
defendants have preferred the appeal by raising various
grounds that the trial court has failed to note that time is
essence of contract as the parties by agreement have
fixed time limit of six months for executing the sale deed,
but the plaintiffs did not come forward to get the sale deed
executed till 2009 and they have started issuing notice as
per Exs.P-2 - paper publication and Ex.P-3 - legal notice
so that to make convenient to the case. As per the time
fixed in Ex.P-1, the plaintiffs did not show their readiness
and willingness to perform their part of contract and only
in the year 2009 they issued notice. Therefore, the trial
court has committed error in answering Issue No.2 in the
affirmative.
11. Further raised the ground that the plaintiffs are
not definite about the property for which they have agreed
to purchase as PW1 in his cross examination stated that
he has agreed to purchase 25 guntas of land situated on
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the western side of 4 acres 25 guntas, whereas in the
agreement of sale - Ex.P-1 it is mentioned that the
property executed is to the eastern side of the property
measuring 5 acres 26 guntas. Therefore, there is no
consistency in the story made by the plaintiffs.
12. The relief sought for by the plaintiffs is
discretionary and the trial court ought to have dismissed
the suit since passing the decree for a specific
performance of contract is amounting to arbitrary and
unfair advantage over the defendants by the plaintiffs.
13. Further PW1 in the cross examination admitted
that the defendants do not know to read and write
Kannada language and that they put the signatures in
Kannada only and further expressed their ignorance about
the defendants being agriculturists by avocation and they
do not know about the worldly affairs. The plaintiffs being
businessmen only to gulp the property of the defendants
and taking undue advantage of the innocence of the
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defendants got created document styled as 'agreement of
sale' by obtaining signatures of the defendants on blank
papers and misusing the same as 'agreement of sale'.
14. Further the trial court had committed error to
note that the said agreement of sale is unregistered one
and possession is with the defendants and the defendants
never intended to execute an agreement of sale and have
never given possession and document executed was only
as a security for the loan given by the plaintiff No1.
15. The defendants do not own any other property
other than suit property and they being agriculturists by
avocation, they are fully dependent on the income of the
said land for their livelihood. Further raised the ground
that plaintiffs do not know their definite case because in
the cross examination the PW1 admitted that after
partition the defendant No.3 will become the owner to the
extent of 24 guntas, whereas in Ex.P-1 agreement it is
mentioned as 25 guntas and therefore, the plaintiffs do
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not have definiteness about their case and it proves that
there is no such execution of agreement of sale. Further
the signatures found on Ex.P-1 are falsely taken on the
blank papers. The trial court failed to notice that in Ex.P-1
- agreement of sale in the first two pages signatures of the
defendants are not bearing and there is no explanation to
the effect by the plaintiffs why the signatures on the first
two pages were not taken. Therefore, whatever writings
on the non judicial stamp paper is only for the purpose of
security for taking hand loan from plaintiff No.1, but not
the signatures after having understood the agreement of
sale. Therefore, the trial court has not appreciated the
evidence on record properly resulting into injustice to the
defendants. Therefore, prays to allow the appeal and set
aside the judgment and decree passed by the trial court.
16. Heard arguments from both sides and perused
the records. The points that would arise for consideration
are as follows:
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(i) Whether, under the facts and
circumstances involved in the case, the
plaintiffs prove that the defendants have
executed the agreement of sale dated
06.03.2007 to sell the suit property for a
sum of Rs.11,75,000/- and received
earnest money of Rs.11,75,000/-?
(ii) Whether, under the facts and
circumstances involved in the case, the
plaintiffs prove that they were ever ready
and willing to perform their part of
contract?
(iii) Whether, under the facts and
circumstances involved in the case, the
defendants prove that they have repaid the
amount of Rs.13,000/- towards interest
and Rs.1,20,000/- towards principal
amount of loan to plaintiff No.1 on
15.05.2007 and on 01.09.2007
respectively?
(iv) Whether, under the facts and
circumstances plaintiffs are not entitled for
decree for specific performance but are
entitled refund of amount involved in the
case, plaintiffs are entitled for decree for a
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specific performance of contract? If not,
entitled for refund of earnest money?
(v) Whether the judgment and decree passed
by the trial court requires any interference?
17. All the points are interlinked with each other,
hence, they are taken up for common consideration.
SUBMISSION OF COUNSEL FOR
DEFENDANTS/APPELLANTS:
18. The learned counsel for the
appellants/defendants vehemently submitted that
defendants have never executed agreement of sale dated
06.03.2007. The defendants have never intended to sell
away the land in favour of plaintiffs by entering into an
agreement of sale above stated. Further submitted that
the defendants being agriculturists and the suit schedule
land is the only land for defendants for their agricultural
purpose for their livelihood and for agricultural
operations, the defendants have faced financial crunch,
therefore approached the plaintiffs for loan and in this
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regard, a false agreement of sale was created by the
plaintiff No.1 by taking signatures of the defendants on the
blank non judicial stamp paper, thus whatever the
document is styled as 'agreement of sale' is created and
concocted one. Further submitted that time is the essence
of contract, but the plaintiffs did not stick on to the time
stipulated in the agreement. Also submitted that suit
schedule land is the only land for defendants for
agricultural purpose and therefore, discretionary relief may
be exercised in favour of defendants since the grant of
decree by the trial court for granting a specific relief of
contract in whole, is nothing but undue advantage over
the defendants by the plaintiffs and is arbitrary.
Therefore, prays for exercise of discretionary relief as per
Section 20 of the Specific Relief Act, 1963, by ordering to
refund the hand loan taken by the defendants to the
plaintiffs. Therefore, prays to dismiss the appeal.
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SUBMISSION OF COUNSEL FOR
RESPONDENTS/PLAINTIFFS:
19. On the other hand, learned counsel for the
plaintiffs vehemently submitted that defendants have
collectively executed the agreement of sale dated
06.03.2007 by agreeing for total sale consideration of
Rs.11,75,000/- and have received Rs.3,75,000/- as an
earnest amount. Therefore, agreement of sale is proved
and it is correctly held by the trial court. Further
submitted that as on the date of agreement of sale dated
06.03.2007 an amount of Rs.2,50,000/- was paid by the
plaintiffs to the defendants through pay order for
Rs.1,50,000/- and cheque for Rs.1,00,000/- to the
defendants. Thereafter, once again on 31.08.2007 the
defendants have received further sum of Rs.1,25,000/-
from the plaintiffs and have made an endorsement on
Ex.P-1 agreement of sale, which conclusively prove the
fact that the defendants have executed an agreement of
sale which proves the intention on the part of defendants
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to sell over the land as per agreement of sale. This is
correctly answered by the trial court, which needs no
interference. Therefore, prays to dismiss the appeal.
20. Further argued that the plaintiffs were ever
ready and willing to perform their part of contract and
accordingly, when the defendants have attempted to sell
away the land to others they got issued paper publication
in the newspaper informing the whole word that there was
an agreement of sale between plaintiffs and
defendants. This proves that plaintiffs were ever ready
and willing to perform their part of contract. The trial
court has correctly answered all the issues in favour of
plaintiffs by appreciating the oral and documentary
evidence of both parties and in its well considered
judgment has decreed the suit in full for a specific
performance of contract, which needs no interference.
Therefore, prays to dismiss the appeal.
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21. Further learned counsel for the
plaintiffs/respondents places reliance on the judgment of
Hon'ble Supreme Court in the case of
P.DAIVASIGAMANI v. S.SAMBANDAN1 in which
judgment the Hon'ble Supreme Court has passed decree in
favour of plaintiffs directing the respondents to deposit a
sum of Rupees One Crore in the trial court towards sale
consideration over and above the amount that might have
deposited by him and also on such deposit being made the
appellants shall execute the sale deed in favour of the
respondents. Thereafter, in the said line, the learned
counsel for the respondents/plaintiffs submitted that the
plaintiffs are ready to pay even more Rs.50,00,000/- (Rs.
Fifty Lakhs) towards defendants due to escalation of price
during the pendency of the suit and appeal. Therefore,
prays to dismiss the suit by confirming the judgment and
decree of the trial court directing the
appellants/defendants to receive further sum of
(2022) 14 SC 793
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Rs.50,00,000/- (Rs. Fifty Lakhs) from plaintiffs and
execute registered sale deed in favour of plaintiffs. Thus,
in this way, learned counsel for the respondents/plaintiffs
prays to dismiss the appeal.
REASONINGS:
22. Upon considering the entire case on record,
pleadings and evidence on record, the suit is basically one
for a specific performance of contract. As per the case of
plaintiffs the defendants have agreed for sale of the suit
schedule land for total consideration of Rs.11,75,000/- and
thus, defendants executed an agreement of sale dated
06.02.2007 and the defendants have received earnest
amount of Rs.3,75,000/-. The case of plaintiffs is denied
by the defendants and the case of defendants is that the
defendants being illiterate and rustic persons in the village
and being agriculturists, have faced financial constraints
for agricultural activities. Therefore, requested the
plaintiffs to offer hand loan and in this regard, the
plaintiffs have asked the defendants to give security to the
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loan, thus in this way, the defendants have put their
signatures on the non judicial stamp paper and therefore,
Ex.P-1 is not at all agreement of sale but it is a document
towards security of loan transaction.
23. In these pleadings between the parties and
evidence adduced by both the parties, the case is analysed
with reference to the evidence on record produced before
the trial court. PW1 being plaintiff No.1 is also one of the
agreement holder has reiterated his pleadings taken in the
plaint in the examination-in-chief. Ex.P-1 is the alleged
agreement of sale relied on by the plaintiffs. Ex.P-1 is the
original agreement of sale dated 06.03.2007. Upon
considering this agreement of sale which runs into 4
pages, the first two pages do not contain signature of the
defendants. Only the third and fourth page of the
agreement of sale contains signature of the
defendants. As per the defendants when they have
received hand loan from plaintiff No.1 for the purpose
above stated, the plaintiff No.1 has taken signatures on
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the middle of blank non judicial stamp paper and thus, it is
created falsely for the purpose of agreement of
sale. There is no explanation by the plaintiffs as to why
the signatures are not taken on the first two pages of the
Ex.P-1. If at all there was an execution of agreement of
sale then signatures would have been on all four
pages. This creates doubt whether really the agreement
of sale is executed or not.
24. Then upon considering the oral evidence of
PW1, he has stated that he is an agriculturist doing
agricultural activities but PW1 had admitted that he does
not know what is the survey number of his land. Further
submitted that his land was situated in Netra Village in
Gujarat State. In the cross-examination PW1 admitted
that his main business is manufacturing polythene bags in
Hubballi. When the main business of the PW1 is
manufacturing polythene bags, then the question comes in
the mind of the Court is that when PW1 has intended to
purchase the suit schedule land, which is an agricultural
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land and for what purpose he has intended to purchase
land, is to be considered by taking note of the judicial
fact. Admittedly, the defendants are agriculturists by
profession. It is the evidence of DW1 being defendant
No.3 that he is an agriculturist by profession and the suit
schedule land is the only land for his agricultural activities
for livelihood. Therefore, to exercise the discretionary
relief under Section 20 of the Specific Relief Act, 1963
(hereinafter referred to as 'the Act' for the sake of brevity)
these factors are to be taken into consideration based on
the evidence on record by taking a judicial note of the fact
in the background of evidence on record.
25. Section 20 of the Specific Relief Act (Before
Amendment), 2018, is a discretionary relief, which reads
as follows:
"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
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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;
or
(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 1.-- 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 2.-- The question whether the
performance of a contract would involve
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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 party."
26. The Hon'ble Supreme Court in various
judgments by interpreting Section 20 of the Specific Relief
Act (hereinafter referred to as 'the SR Act' for short), has
laid down principle of law that granting relief of decree for
specific performance is discretionary relief, subject to the
principles laid down in Section 20 of the SR Act. Just
because an agreement of sale is proved, that cannot be
made a reason to grant decree for specific performance,
though it is lawful to do so.
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27. The grant of decree for specific performance is
guided by the principle of law laid down and what are the
criteria that the Court shall consider upon the facts and
circumstances involved in the case. It is worthwhile to
refer some of the judgments of the Hon'ble Supreme
Court, which are as follows:
28. The Hon'ble Supreme Court in the case
of JAYAKANTHAM AND OTHERS v. ABAYKUMAR2, at
paragraph Nos.7, 8 and 9 has held as follows:
"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:
(2017) 5 SCC 178
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"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
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time of the contract, except where the hardship has
been caused from an act of the plaintiff subsequent
to the contract.
9. The precedent on the subject is elucidated
below:
9.1. In Parakunnan Veetill Joseph's Son Mathew
v. Nedumbara Kuruvila's Son3, this Court held that:
(scc p. 345, para 14)
"...14. Section 20 of the Specific
Relief Act, 1963 preserves judicial
discretion of Courts as to decreeing
specific performance. The Court should
meticulously consider all facts and
circumstances of the case. The Court is
not bound to grant specific
performance merely because it is
lawful to do so. The motive behind the
litigation should also enter into the
judicial verdict. The Court should take
care to see that it is not used as an
instrument of oppression to have an
unfair advantage to the plaintiff..."
9.2 A similar view was adopted by this Court
in Sardar Singh v. Krishna Devi4: (SCC p.26, para
14)
"14....... 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,
1987 Supp SCC 340 :AIR 1987 SC 2328
(1994) 4 SCC 18
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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."
9.3. Reiterating the position in K.
Narendra v. Riviera Apartments (P) Ltd , this Court
held thus: (SCC p.91, para 29)
"29...... 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
(1999) 5 SCC 77
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Arogiaswamy6 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."
9.4. These principles were followed by this Court
in A.C. Arulappan v. Ahalya Naik7, with the
following observations: (SCC pp.604 & 606, paras 7
& 15)
"7...... The jurisdiction to decree
specific relief is discretionary and the
court can consider various
circumstances to decide whether such
relief is to be granted. Merely because
it is lawful to grant specific relief, the
court need not grant the order for
specific relief; but this discretion shall
not be exercised in an arbitrary or
unreasonable manner. Certain
circumstances have been mentioned
in Section 20(2) of the Specific Relief
Act, 1963 as to under what
circumstances the court shall exercise
such discretion. If under the terms of
the contract the plaintiff gets an unfair
advantage over the defendant, the
court may not exercise its discretion in
favour of the plaintiff. So also, specific
relief may not be granted if the
defendant would be put to undue
hardship which he did not foresee at
the time of agreement. If it is
(1996) 5 SCC 589
(2001) 6 SCC 600
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inequitable to grant specific relief, then
also the court would desist from
granting a decree to the plaintiff."
........
"15...... Granting of specific
performance is an equitable relief,
though the same is now governed by
the statutory provisions of the Specific
Relief Act, 1963. These equitable
principles are nicely incorporated
in Section 20 of the Act. While
granting a decree for specific
performance, these salutary guidelines
shall be in the forefront of the mind of
the court....."
9.5. A Bench of three Judges of this Court
considered the position in Nirmala Anand Vs.
Advent Corporation (P) Ltd8., and held thus : (SCC
p.150, para 6)
"6...... It is true that grant of decree of
specific performance lies in the discretion
of the court and it is also well settled that
it is not always necessary to grant
specific performance simply for the
reason that it is legal to do so. It is
further well settled that the court in its
discretion can impose any reasonable
condition including payment of an
additional amount by one party to the
other while granting or refusing decree of
specific performance. Whether the
purchaser shall be directed to pay an
additional amount to the seller or
converse would depend upon the facts
and circumstances of a case. Ordinarily,
8 (2002) 8 SCC 146
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the plaintiff is not to be denied the relief
of specific performance only on account
of the phenomenal increase of price
during the pendency of litigation. That
may be, in a given case, one of the
considerations besides many others to be
taken into consideration for refusing the
decree of specific performance. As a
general rule, it cannot be held that
ordinarily the plaintiff cannot be allowed
to have, for her alone, the entire benefit
of phenomenal increase of the value of
the property during the pendency of the
litigation. While balancing the equities,
one of the considerations to be kept in
view is as to who is the defaulting party.
It is also to be borne in mind whether a
party is trying to take undue advantage
over the other as also the hardship that
may be caused to the defendant by
directing specific performance. There
may be other circumstances on which
parties may not have any control. The
totality of the circumstances is required
to be seen."
29. In the case of Parakunnan Veetill Joseph's
Son Mathew Vs. Nedumbara Kuruvila's son9, at
paragraph No.14, it is held as follows:
"14. Section 20 of the Specific Relief
Act, 1963 preserves judicial discretion of
courts as to decreeing specific
performance. The court should
meticulously consider all facts and
(1987) Supp SCC 340
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circumstances of the case. The court is
not bound to grant specific performance
merely because it is lawful to do so. The
motive behind the litigation should also
enter into the judicial verdict. The court
should take care to see that it is not used
as an instrument of oppression to have
an unfair advantage to the plaintiff. The
High Court has failed to consider the
motive with which Varghese instituted
the suit. It was instituted because
Kuruvila could not get the estate and
Mathew was not prepared to part with it.
The sheet anchor of the suit by Varghese
is the agreement for sale Exhibit A-1.
Since Chettiar had waived his rights
thereunder, Varghese as an assignee
could not get a better right to enforce
that agreement. He is, therefore, not
entitled to a decree for specific
performance."
30. In the case of Sardar Singh Vs. Krishna
Devi10 at paragraph No.14, it is held as follows:
"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,
(1994) 4 SCC 18
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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."
31. In the case of K. Narendra Vs. Riviera
Apartments (P) Ltd.,11 at paragraph Nos.29, 30, 31, 32,
33 and 34, it is held as follows:
"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
(1999) 5 SCC 77
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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."
31. Very recently in K.S.
Vidyanadam v. Vairavan [(1997) 3 SCC 1]
this Court has held: (SCC p. 7, para 10)
"10. It has been consistently held
by the courts in India, following certain
early English decisions, that in the case of
agreement of sale relating to immovable
property, time is not of the essence of
the contract unless specifically provided
to that effect. The period of limitation
prescribed by the Limitation Act for filing
a suit is three years. From these two
circumstances, it does not follow that any
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and every suit for specific performance of
the agreement (which does not provide
specifically that time is of the essence of
the contract) should be decreed provided
it is filed within the period of limitation
notwithstanding the time-limits stipulated
in the agreement for doing one or the
other thing by one or the other party.
That would amount to saying that the
time-limits prescribed by the parties in
the agreement have no significance or
value and that they mean nothing. Would
it be reasonable to say that because time
is not made the essence of the contract,
the time-limit(s) specified in the
agreement have no relevance and can be
ignored with impunity? It would also
mean denying the discretion vested in the
court by both Sections 10 and 20. As held
by a Constitution Bench of this Court
in Chand Rani v. Kamal Rani [(1993) 1
SCC 519 : AIR 1993 SC 1742] : (SCC p.
528, para 25)
'... it is clear that in the case of sale
of immovable property there is no
presumption as to time being the essence
of the contract. Even if it is not of the
essence of the contract, the court may
infer that it is to be performed in a
reasonable time if the conditions are
(evident?): (1) from the express terms of
the contract; (2) from the nature of the
property; and (3) from the surrounding
circumstances, for example, the object of
making the contract.'
In other words, the court should look at
all the relevant circumstances including
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the time-limit(s) specified in the
agreement and determine whether its
discretion to grant specific performance
should be exercised. Now in the case of
urban properties in India, it is well-known
that their prices have been going up
sharply over the last few decades --
particularly after 1973."
32. Referring to the principle that mere
rise in prices is no ground for denying the
specific performance the Court has
emphasized the need for being alive to the
realities of life and inflationary tendencies
judicially noticeable and observed: (SCC p.
9, para 11)
"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."
33. The Court has further proceeded to
hold: (SCC pp. 9-10, para 11)
"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)."
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34. Having noticed the Constitution
Bench decision in Chand Rani [(1993) 1 SCC
519 : AIR 1993 SC 1742] the Court has
further held: (SCC p. 11, para 14)
"Even where time is not of the essence of
the contract, the plaintiff must perform his
part of the contract within a reasonable time
and reasonable time should be determined
by looking at all the surrounding
circumstances including the express terms
of the contract and the nature of the
property."
32. In the case of A.C. Arulappan Vs. Ahalya
Naik12 at paragraph No.7, 8, 9, 10 and 15, it is held as
follows:
"7. The jurisdiction to decree specific
relief is discretionary and the court can
consider various circumstances to decide
whether such relief is to be granted. Merely
because it is lawful to grant specific relief,
the court need not grant the order for
specific relief; but this discretion shall not be
exercised in an arbitrary or unreasonable
manner. Certain circumstances have been
mentioned in Section 20(2) of the Specific
Relief Act, 1963 as to under what
circumstances the court shall exercise such
discretion. If under the terms of the contract
the plaintiff gets an unfair advantage over
the defendant, the court may not exercise
its discretion in favour of the plaintiff. So
(2001) 6 SCC 600
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also, specific relief may not be granted if the
defendant would be put to undue hardship
which he did not foresee at the time of
agreement. If it is inequitable to grant
specific relief, then also the court would
desist from granting a decree to the
plaintiff.
8. In Damacherla Anjaneyulu v.
Damcherla Venkata Seshaiah [1987 Supp
SCC 75 : AIR 1987 SC 1641] the High Court
declined to grant a decree for specific
performance in favour of the plaintiff, even
though the defendant was guilty of breach
of agreement. That was a case where the
defendant had constructed costly structures
and if a decree for specific performance was
granted, the defendant would have been put
to special hardship. This Court directed the
defendant to pay compensation to the
plaintiff.
9. In Parakunnan Veetill Joseph's Son
Mathew v. Nedumbara Kuruvila's Son [1987
Supp SCC 340 : AIR 1987 SC 2328] this
Court cautioned and observed as under:
(SCC p. 345, para 14)
"14. Section 20 of the Specific Relief Act,
1963 preserves judicial discretion to courts
as to decreeing specific performance. The
court should meticulously consider all facts
and circumstances of the case. The court is
not bound to grant specific performance
merely because it is lawful to do so. The
motive behind the litigation should also
enter into the judicial verdict. The court
should take care to see that it is not used as
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an instrument of oppression to have an
unfair advantage to the plaintiff."
10. In Lourdu Mari David v. Louis
Chinnaya Arogiaswamy [(1996) 5 SCC 589 :
AIR 1996 SC 2814] the plaintiff, who sought
for specific performance of an agreement to
purchase immoveable property, filed a suit
with incorrect and false facts. In the plaint,
it was alleged that the plaintiff was already
given possession of Door No.2/53 as a
lessee and he was given possession of Door
No.1/53 on the date of the agreement itself.
But he did not give any evidence that he
had got possession of Door No.1/53 on the
date of the agreement. It was found that his
case as regards Door No.1/53 was false. He
also alleged that he had paid Rs.400 in
addition to the sum of Rs.4000 paid as
advance, but this was proved to be an
incorrect statement. He alleged that the
third defendant had inspected the house
during the course of negotiations, but this
also was found to be false. This Court held
that it is settled law that the party who
seeks to avail of the jurisdiction of a court
and specific performance being equitable
relief, must come to the court with clean
hands. In other words, the party who makes
false allegations does not come with clean
hands and is not entitled to the equitable
relief.
15. Granting of specific performance is an
equitable relief, though the same is now
governed by the statutory provisions of the
Specific Relief Act, 1963. These equitable
principles are nicely incorporated in Section
20 of the Act. While granting a decree for
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specific performance, these salutary
guidelines shall be in the forefront of the
mind of the court. The trial court, which had
the added advantage of recording the
evidence and seeing the demeanour of the
witnesses, considered the relevant facts and
reached a conclusion. The appellate court
should not have reversed that decision
disregarding these facts and, in our view, the
appellate court seriously flawed in its
decision. Therefore, we hold that the
respondent is not entitled to a decree of
specific performance of the contract."
33. Section 20 of the Act is a discretionary
relief. Just because an agreement of sale is proved and
grant of decree is lawful to be so, still the Court has its
discretion which are governed as per sub-section (2) of
Section 20 of the Act. Therefore upon the principle of law
laid down by the Hon'ble Supreme Court and applying the
factors governing as per sub-section (2) of Section 20 of
the Act, when the case is considered the alleged
agreement is dated 06.03.2007, there is no evidence by
the plaintiffs that the defendants have also other
agricultural lands and as per the evidence on record it is
proved that the defendants are owners of the suit
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schedule land only for their agricultural activities for their
livelihood. There is no evidence by the PW1 that the
defendants also own other agricultural lands. In this
regard, there is no evidence by PW1 either oral or
documentary. Therefore, from the evidence on record it is
proved that the suit schedule land is the only land for the
defendants for their livelihood. The suit schedule land
admittedly is an agricultural land. As per the evidence of
PW1 what is admitted in the cross examination is that
plaintiff No.1 is proved to be a businessman being
manufacturer of polythene bags, as such PW1 is not an
agriculturist, but PW1 is desiring to purchase the
agricultural land that too small bit of land. Therefore
when making a comparison of hardships between plaintiffs
and defendants, if decree is granted for specific
performance of contract in full then the defendants will
lose their entire source of livelihood also for their family
members, whereas the PW1 intended to purchase
agricultural land is not the only source of income for
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him. Therefore, when compared to hardship analysed
between plaintiffs and defendant and the principle of law
laid down by the Supreme Court and enshrined in sub-
section (2) of Section 20 of the Act, if the decree is
granted for specific performance of contract then the
defendants would face more hardship compared to
plaintiffs. The interest of the plaintiffs could be protected
by refunding the earnest amount with interest, but if the
decree is granted then the defendants and their family
members could be deprived of their livelihood. Therefore,
if this factor is considered then the discretion must be
exercised in favour of the defendants by only ordering
defendants to refund the earnest amount received by
them with interest. Therefore, considering the hardship is
also one of the factors governing for exercising proper
discretion involved in the case.
34. By considering the above said documentary
evidence of Ex.P-1 and admissions in cross-examination of
PW1 it is proved that agreement of sale is doubtful one,
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since the first two pages do not contain signatures of the
defendants. Moreover, upon considering the factors of
hardship the plaintiffs are not entitled to relief of decree
for specific perform of contract, but their interest could be
protected by refunding the amount.
35. Further upon considering the admissions of PW1
in his cross examination and the recitals in Ex.P-1 -
agreement of sale, there is a material contradiction
between Ex.P-1 and admission of PW1 in his cross
examination. In Ex.P-1 in the first page it is the recital
that total agricultural land is 5 acres 29 guntas and as per
Ex.P-1 - agreement of sale eastern side to the extent of 0-
25 guntas is subject matter in the agreement of sale Ex.P-
1. Whereas the PW1 in the cross examination admitted
that in Ex.P-1 - agreement of sale he has intended to
purchase western side of the land. This proves the fact
that plaintiffs are not definite about their intended
purchase of land. Therefore, this proves the fact that
plaintiff just they have intended to purchase the land
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without knowing on which side they want the land. If an
agriculturist has real intention source to purchase land,
then he will have a definiteness of the intended purchase
of land. In the present case, as discussed above,
PW1/plaintiff No.1 is a businessman/industrialist of
manufacturing polythene bag. Therefore, Ex.P-1
document creates doubt in the mind of the Court whether
really there was an execution of agreement of sale.
36. The defendant No.1 had put his Left Hand
Thumb impression as admitted by PW1 in the cross
examination as well as it is proved from appearance on
the agreement of sale Ex.P-1. Further PW1 admitted
in his cross examination that defendant Nos.2 and 3 do
not know reading and writing in Kannada language and
they can only do the signatures in Kannada. This evidence
of PW1 and upon seeing Ex.P-1 it is proved that the
defendants are illiterates and rustic persons do not know
much about worldly affairs and taking undue advantage of
the innocence and ignorance of the defendants, the Ex.P-1
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might have been prepared just to suit the convenience of
plaintiffs. Therefore, this evidence creates doubt
regarding the genuineness of the execution of Ex.P-1
agreement of sale.
37. Further in the cross examination PW1 admitted
that there was no partition amongst defendants in the
family and after writing down Ex.P-1, the PW1 had made
division of numbers and it is a difficult task. After partition
the suit schedule land to the extent of 0-13 Guntas was
fallen to the share of defendant No.3. At the same time,
PW1 admitted that there was no partition in the family of
the defendants by metes and bounds. Therefore, it is not
clear as to who is the real owner of the suit schedule land
to the extent 4 acres 25 guntas whether all the defendants
collectively or defendant No.3 only. Upon appreciating
evidence of PW-1 the execution of agreement of sale is
proved to be doubtful one.
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38. Further PW1 admitted in the course of cross
examination that at the time of execution of Ex.P-1 it was
not to be determined where exactly the land is situated.
As such when there is no definiteness of the land which is
stated in Ex.P-1, then it creates doubt whether really the
Ex.P-1 was executed or not.
39. This evidence above discussed fortify the case
made out by the defendants that defendants have
received the amount from plaintiff No.1 as hand loan, but
have not executed agreement of sale Ex.P-1 as contended
by the plaintiffs. When it is proved that the PW1 has
advanced loan to the defendants, quite naturally whoever
advances the loan amount takes some security towards
loan amount and that is what is done in the present
case. Upon appreciating the evidence of PW-1 and Ex.P-1,
the alleged agreement of sale on all its preponderance of
probabilities, it is conclusively proved that the signatures
of the defendants found on Ex.P-1, the alleged agreement
of sale, are towards security for the loan advanced of PW-
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1, but not towards the agreement of sale. Thus, in this
way, the trial court has committed error in appreciating
the evidence on record. Thus, the approach of trial court
is perverse in nature.
40. PW2 is stated to be one of the attesting
witnesses of Ex.P-1. Upon considering the admissions in
cross examination of PW2, whose name and signature is
found in Ex.P-1 alleged agreement of sale and upon
perusing the admissions in cross examination he has
studied B.Com and LLB degrees. PW2 was admitted that
he was not present at the negotiation of alleged sale
transaction. This admission of PW2 is fatal to PW1/plaintiff
No.1 regarding execution of Ex.P-1 - agreement of
sale. In agreement of sale Ex.P-1 in page No.3 the name
and signature of PW2 is appearing but in the cross
examination he has admitted that he was not present at
the time of negotiation regarding alleged sale
transaction. This admission proves the fact that Ex.P-1
agreement of sale is not executed between the plaintiffs
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and defendants styled as 'agreement of sale'. Further
admitted that he does not know who gave instructions for
writing the sale agreement at Ex.P-1. Also admitted that
even PW2 do not know regarding writing of agreement of
sale-Ex. P-1. Therefore upon perusing the evidence of
PW2 above discussed, it is proved that PW2 was not
witness to the Ex.P-1 and he was not present during
negotiation regarding the alleged agreement of sale and
sale transaction, but his name is found as witness in the
Ex.P-1. These conclusively prove the fact that execution
of Ex.P-1 is styled as 'agreement of sale' was not at all
executed. Whatever signatures found on third and fourth
page of the non judicial stamp paper - Ex.P-1 is towards
security purpose as the defendants have received loan
amount from the PW1. Therefore, it is proved that Ex.P-1
styled as 'agreement of sale' is proved to be not at all
executed.
41. This PW2 is not an ordinary person, he has
studied B.Com and LLB degrees. Though he has
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contended that he has not completed his law degree, but
he was sitting Corporator of the locality wherein the
defendants are residing and also it is revealed in the cross
examination that this PW2 was also MLA candidate of
Hubballi constituency in the MLA election. When this being
the fact PW2 being educated person and is holding a
responsible position in the Society, had stated that he was
not present during the negotiation of the sale transaction
and he does not know who has given instructions to write
Ex.P-1. Therefore, Ex.P-1 styled as 'agreement of sale' is
not proved to have been executed.
42. Further PW2 had admitted in the cross
examination that as true that he has purchased 0-4 guntas
of land property from the members of defendants' family
and the said purchased property is situated adjacent to
the suit property. Therefore this PW2 knows very well the
defendants, but PW2 was not present during the execution
of alleged agreement of sale - Ex.P-1. Therefore,
agreement of sale is not proved.
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43. PW3 is an Advocate whose evidence is only with
regard to making paper publication as per Ex.P-8. Ex.P-6
is the paper publication issued by the plaintiffs informing
to the world that there was an agreement of sale between
plaintiffs and defendants. Also Ex.P-5 is the paper
publication issued at the instance of defendants. These
are the paper publications issued by the respective parties
regarding execution of agreement of sale cautioning the
public not to enter transaction with the defendants and
nothing more than the purpose of agreement of sale.
44. Upon considering the entire evidence on record,
as above discussed, the plaintiffs failed to prove the
execution of agreement of sale - Ex.P-1. Also as discussed
above, the defendants are agriculturists by profession and
PW1 is an industrialist manufacturer of polythene
bags. The decree passed by the trial court granting relief
of specific performance of contract is nothing but arbitrary
causing unfair advantage and hardship over the
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defendants by the plaintiffs. Whereas, it is proved that
the suit schedule land is the only land of the defendants
for their livelihood.
45. Though learned counsel for the
respondents/plaintiffs places some loose sheets of RTC
extracts, but those are belonging to other family members
of the defendants. Even if these RTC extracts are
considered which do not prove that defendants are owners
of the other agricultural lands, also just because the lands
are situated in the name of other family
members/relatives of the defendants that does not mean
that defendants are also owners of other lands. Therefore,
it is proved that the suit schedule land is the only land for
defendants for their livelihood and if it is sold to the
plaintiffs by the decree, then the decree would be
amounting to unfair advantage, arbitrary and also
hardship over the defendants by the plaintiffs. Therefore
on these two reasons, firstly, execution of Ex.P-1
agreement of sale is highly doubtful and is not proved to
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be executed; and secondly, this sale transaction is
amounting to unfair advantage over the defendants by the
plaintiffs, arbitrary and hardship to the
defendants. Therefore, plaintiffs are not entitled for the
decree of specific performance of contract. In this regard,
the trial court has committed a grave error in not correctly
appreciating the evidence on record. Thus, the judgment
and decree is perverse in nature, unjust and illegal and the
trial court has not exercised its discretion properly. The
trial court has just swayed away by the fact that Ex.P-1
agreement of sale and granted decree. This finding of the
trial court is absolutely not correct approach thus the
judgment and decree passed by the trial court is liable to
be set aside.
46. Also besides the Court has ventured into
considering whether the plaintiffs prove their readiness
and willingness to perform their part of contract, but there
is no pleadings that how they are ready and willing to
perform their part of contract is not found in the plaint and
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also there is no deposition in the examination in chief of
PW1. Just because the plaintiffs have issued paper
publication in the newspaper cautioning the others not to
make any transaction, that does not amounting to proof of
readiness and willingness to perform their part of
contract. Ex.P-1 alleged agreement is dated 06.03.2007,
but the suit is filed on 16.05.2009. The suit is filed after
lapse of two years whereas in the alleged Ex.P-1 -
agreement of sale that time stipulation six months from
the date of execution of agreement of sale. Ex.P-3 is the
legal notice issued by the plaintiffs calling upon the
defendants to execute sale deed dated 07.05.2009, for the
first time. The plaintiffs have opened their eyes to issue
legal notice calling upon the plaintiffs to execute sale deed
after two years from the date of agreement of sale. But
within that period what are the efforts made by the
plaintiffs to prove that they were ready and willing to
perform their part of contract, is not forthcoming from the
evidence. In the evidence the PW1 has deposed that
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there was a partition in the family and the property was
divided by mentioning numbers and in that process the
said transaction could not be completed. This is the only
reason given by PW1 which does not prove that the
plaintiffs were ever ready and willing to perform their part
of contract.
47. In this regard, I place reliance on the judgment
of Hon'ble Supreme Court in the case of
U.N.KRISHNAMURTHY (SINCE DECEASED) AND
OTHERS LRS. vs. A.M.KRISHNAMRTHY13, at paragraph
Nos.32, 33 and 34, it is held as under:
"32. In a suit for specific performance of a
contract, the Court is required to pose unto itself the
following questions, namely:
32.1. Whether there is a valid agreement of sale
binding on both the vendor and the vendee.
32.2. Whether the plaintiff has all along been
and still is ready and willing to perform his part of the
contract as envisaged under Section 16(c) of the
Specific Relief Act, 1963.
33. There is a distinction between readiness and
willingness to perform the contract and both
ingredients are necessary for the relief of specific
performance. In Acharya Swami Ganesh Dassji v. Sita
(2023) 11 SCC 175
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Ram Thapar [Acharya Swami Ganesh Dassji v. Sita
Ram Thapar, (1996) 4 SCC 526] cited by Mr
Venugopal, this Court said that there was a difference
between readiness and willingness to perform a
contract. While readiness means the capacity of the
plaintiff to perform the contract which would include
his financial position, willingness relates to the
conduct of the plaintiff. The same view was taken by
this Court in Kalawati v. Rakesh
Kumar [Kalawati v. Rakesh Kumar, (2018) 3 SCC 658
: (2018) 2 SCC (Civ) 609] .
34. Even in a first appeal, the first appellate
court is duty-bound to examine whether there was
continuous readiness and willingness on the part of
the plaintiff to perform the contract. This proposition
finds support from Balraj Taneja v. Sunil
Madan [Balraj Taneja v. Sunil Madan, (1999) 8 SCC
396] and H.P. Pyarejan v. Dasappa [H.P.
Pyarejan v. Dasappa, (2006) 2 SCC 496] where this
Court approved the views taken by the Privy Council
in Ardeshir Mama v. Flora Sassoon [Ardeshir
Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 :
(1927-28) 55 IA 360 at p. 372 : AIR 1928 PC 208] ."
48. In the case of P.DAIVASIGAMANI vs.
S.SAMBANDAN14 at paragraph Nos.21, 22, 23, 24 and
25, it is held as under;
"21.Readiness and willingness are not one, but
two separate elements. Readiness means the capacity
of the plaintiff to perform the contract, which would
include the financial position to pay the purchase price.
Willingness refers to the intention of the plaintiff as a
purchaser to perform his part of the contract.
Willingness is inferred by scrutinising the conduct of
the plaintiff purchaser, including attending
circumstances15. Continuous readiness and willingness
(2022) 14 SC 793
See para 2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526
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on the part of the plaintiff purchaser from the date the
balance sale consideration was payable in terms of the
agreement to sell, till the decision of the suit, is a
condition precedent for grant of relief of specific
performance16.
22. The expression "readiness and willingness"
used in Section 16 (c) of the said Act, has been
interpreted in a catena of decisions by this Court, in
the light of facts and circumstances of the cases under
consideration for the purpose of granting or refusing to
grant the relief of Specific Performance of a contract.
The said expression cannot be interpreted in a
straitjacket formula. In a very apt decision of this
Court in Syed Dastagir vs. T.R. Gopalakrishna Setty
(1999) 6 SCC 337, a three-Judge Bench of this Court,
construing a plea of "readiness and willingness to
perform" in view of the requirement of Section
16(c) and its explanation, observed as under: (SCC p.
341, para 9)
"9. So the whole gamut of the issue
raised is, how to construe a plea specially
with reference to Section 16(c) and what
are the obligations which the plaintiff has to
comply with in reference to his plea and
whether the plea of the plaintiff could not
be construed to conform to the requirement
of the aforesaid section, or does this section
require specific words to be pleaded that he
has performed or has always been ready
and is willing to perform his part of the
contract. 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. Such
See para 5 in N.P.Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC
115. Also see Anleshir Manu v. Flora Sassoon, 1928 SCC Online PC 43:
(1927-28) 55 IA 360 : AIR 1928 PC 208
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an expression may be pointed, precise,
sometimes vague but still it could be
gathered what he wants to convey through
only by reading the whole pleading,
depending on the person drafting a plea. In
India most of the pleas are drafted by
counsel hence the aforesaid difference of
pleas which inevitably differ from one to the
other. Thus, to gather true spirit behind a
plea it should be read as a whole. This does
not distract one from performing his
obligations as required under a statute. But
to test whether he has performed his
obligations, one has to see the pith and
substance of a plea. Where a statute
requires any fact to be pleaded then that
has to be pleaded may be in any form. The
same plea may be stated by different
persons through different words; then how
could it be constricted to be only in any
particular nomenclature or word. 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) 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. So to insist for a mechanical
production of the exact words of a statute is
to insist for the form rather than the
essence. So the absence of form cannot
dissolve an essence if already pleaded".
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23. It was further observed therein that: (Syed
Dastagir case17, SCC p.342, para11)
"11........It is significant that this
explanation carves out a contract which
involves payment of money as a separate
class from Section 16(c). Explanation (i)
uses the words "it is not essential for the
plaintiff to actually tender to the defendant
or to deposit in court any money except
when so directed by the court". (emphasis
supplied) This speaks in a negative term
what is not essential for the plaintiff to do.
This is more in support of the plaintiff that
he need not tender to the defendant or
deposit in court any money but the plaintiff
must [as per Explanation (ii)] at least aver
his performance or readiness and
willingness to perform his part of the
contract".
(emphasis in original)
24. In Sukhbir Singh v. Brij Pal Singh18 this Court
had laid down that law is not in doubt and it is not a
condition that the respondents (Plaintiffs) should have
ready cash with them. 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. The said
principle was followed in A. Kanthamani v. Nasreen
Ahmed19, in case of C.S. Venkatesh v. A.S.C. Murthy20
etc.
Syed Dastagir v. T.R. Gopalakrishna setty, (1999) 6 SCC 337
(1997) 2 SCC 200
(2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596
(2020) 3 SCC 280 : (2020) 2 SCC (Civ) 90
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25. Section 20 of the Specific Relief Act (Pre-
amendment), which confers discretion on the court to
exercise jurisdiction to decree of specific performance,
states that this exercise should not be arbitrary, but
guided by sound and reasonable judicial
principles. Interpreting and elucidating on Section
20 of the Specific Relief Act (pre-amendment) and
factors to be considered, this Court in Kamal Kumar v.
Premlata Joshi21 has also referred to Sections
16(c), 22, 23 and 24 of the Specific Relief Act and
Forms 47/48 of Appendix A to C of the Code of Civil
Procedure, 1908, to summarise: (SCC pp.705-706,
paras 7-8)
"7. It is a settled principle of law that the
grant of relief of specific performance is a
discretionary and equitable relief. The material
questions, which are required to be gone into for
grant of the relief of specific performance are:
7.1 First, whether there exists a valid and
concluded contract between the parties for
sale/purchase of the suit property;
7.2 Second, whether the plaintiff has been
ready and willing to perform his part of contract
and whether he is still ready and willing to
perform his part as mentioned in the contract.
7.3 Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so, how
and to what extent and in what manner he has
performed and whether such performance was in
conformity with the terms of the contract.
7.4 Fourth, whether it will be equitable to
grant the relief of specific performance to the
plaintiff against the defendant in relation to suit
(2019) 3 SCC 704 : (2019) 2 SCC (Civ) 405
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property or it will cause any kind of hardship to
the defendant and, if so, how and in what
manner and the extent if such relief is eventually
granted to the plaintiff.
7.5 Lastly, whether the plaintiff is entitled for
grant of any other alternative relief, namely,
refund of earnest money etc. and, if so, on what
grounds.
8. In our opinion, the aforementioned
questions are part of the statutory requirements
[See Sections 16 (c), 20, 21, 22, 23 of the
Specific Relief Act, 1963 and Forms 47/48 of
Appendix A to C of the Code of Civil Procedure].
These requirements have to be properly pleaded
by the parties in their respective pleadings and
proved with the aid of evidence in accordance
with law. It is only then the Court is entitled to
exercise its discretion and accordingly grant or
refuse the relief of specific performance
depending upon the case made out by the
parties on facts."
49. The Hon'ble Supreme Court in the case of
J.P.BUILDERS AND ANOTHER VS. A.RAMDAS RAO
AND ANOTHER22, at paragraph Nos.20, 21, 23, 24, 25,
26 and 27, it is held as under:
(2011) 1 SCC 429
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Readiness and willingness
"20. Section 16(c) of the Specific Relief Act,
1963 provides for personal bars to relief. This
provision states that:
"16.Personal bars to relief:--- Specific
performance of a contract cannot be
enforced in favour of a person ---
a) who would not be entitled to recover
compensation for its breach; or
b) who has become incapable of
performing, or violates any essential term
of, the contract that on his part remains to
be performed, or acts in fraud of the
contract, or wilfully acts at variance with, or
in subversion of, the relation intended to be
established by the contract; or
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.
Explanation.- For the purposes of clause
(c),-
(i) where a contract involves the
payment of money, it is not essential for
the plaintiff to actually tender to the
defendant or to deposit in court any money
except when so directed by the court;
(ii) the plaintiff must aver performance
of, or readiness and willingness to perform,
the contract according to its true
construction."
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21. Among the three clauses, we are more
concerned about clause (c). "Readiness and
willingness" is enshrined in clause (c) which was
not present in the old Act of 1877. However, it
was later inserted with the recommendations of
the 9th Law Commission's report. This clause
provides that the person seeking specific
performance must prove that he has performed
or has been ready and willing to perform the
essential terms of the contract which are to be
performed by him.
23. In N.P. Thirugnanam vs. Dr. R. Jagan
Mohan Rao23., at SCC para 5, this Court held:
(SCC pp. 117-18)
"5......Section 16(c) of the Act envisages
that the plaintiff must plead and prove that
he had 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 those terms the performance
of which has been prevented or waived by
the defendant. The continuous readiness and
willingness on the part of the plaintiff is a
condition precedent to grant the relief of
specific performance. This circumstance is
material and relevant and is required to be
considered by the court while granting or
refusing to grant the relief. If the plaintiff
fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff is
ready and willing to perform his part of the
contract, the court must take into
consideration the conduct of the plaintiff
prior and subsequent to the filing of the suit
along with other attending circumstances.
(1995) 5 SCC 115
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The amount of consideration which he has to
pay to the defendant must of necessity be
proved to be available. Right from the date
of the execution till date of the decree he
must prove that he is ready and has always
been willing to perform his part of the
contract. As stated, the factum of his
readiness and willingness to perform his part
of the contract is to be adjudged with
reference to the conduct of the party and the
attending circumstances. The court may infer
from the facts and circumstances whether
the plaintiff was ready and was always ready
and willing to perform his part of the
contract."
24. In P.D'Souza vs. Shondrilo Naidu24, this Court
observed: (SCC p. 654, paras 19 and 21)
"19. 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 facts and
circumstances of each case. No straitjacket
formula can be laid down in this behalf....
21......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."
25. Section 16(c) of the Specific Relief Act, 1963
mandates "readiness and willingness" on the part of
the plaintiff and it is a condition precedent for
(2004) 6 SCC 649
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obtaining relief of grant of specific performance. It is
also clear that in a suit for specific performance, the
plaintiff must allege and prove a continuous "readiness
and willingness" to perform the contract on his part
from the date of the contract. The onus is on the
plaintiff.
26. It has been rightly considered by this Court
in R.C. Chandiok. vs. Chuni Lal Sabharwal25., that
"readiness and willingness" cannot be treated as a
straightjacket formula. This has to be determined from
the entirety of the facts and circumstances relevant to
the intention and conduct of the party concerned.
27. It is settled law that even in the absence of
specific plea by the opposite party, it is the mandate of
the statute that plaintiff has to comply with Section
16(c) of the Specific Relief Act and when there is non-
compliance with this statutory mandate, the Court is
not bound to grant specific performance and is left
with no other alternative but to dismiss the suit. It is
also clear that readiness to perform must be
established throughout the relevant points of time.
"Readiness and willingness" to perform the part of the
contract has to be determined/ascertained from the
conduct of the parties."
50. Further rely on the judgment of Hon'ble
Supreme Court in the case of ZARINA SIDDIQUI vs. A.
RAMALINGAM ALIAS R.AMARNATHAN26 at paragraph
Nos.30, 33, it is held as under:
(1970) 3 SCC 140
(2015) 1 SCC 705
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"30. In a recent judgment dated 22.9.2014 in Civil
Appeal No.9047 of 2014 entitled K. Prakash vs. B.R.
Sampath Kumar , this Court observed that: (SCC
p.605 and paras 16 & 18-19)
"16. The principles which can be enunciated
are that where the plaintiff brings a suit for
specific performance of contract for sale, the law
insists a condition precedent to the grant of
decree for specific performance: that the plaintiff
must show his continued readiness and
willingness to perform his part of the contract in
accordance with its terms from the date of
contract to the date of hearing. Normally, when
the trial court exercises its discretion in one way
or other after appreciation of entire evidence and
materials on record, the appellate court should
not interfere unless it is established that the
discretion has been exercised perversely,
arbitrarily or against judicial principles. The
appellate court should also not exercise its
discretion against the grant of specific
performance on extraneous considerations or
sympathetic considerations. It is true, as
contemplated under Section 20 of the Specific
Relief Act, that a party is not entitled to get a
decree for specific performance merely because
it is lawful to do so. Nevertheless once an
agreement to sell is legal and validly proved and
further requirements for getting such a decree
are established then the Court has to exercise its
discretion in favour of granting relief for specific
performance.
18. Subsequent rise in price will not be treated
as a hardship entailing refusal of the decree for
specific performance. Rise in price is a normal
change of circumstances and, therefore, on that
ground a decree for specific performance cannot
be reversed.
(2015) 1 SCC 597
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19. However, the court may take notice of the
fact that there has been an increase in the price
of the property and considering the other facts
and circumstances of the case, this Court while
granting decree for specific performance can
impose such condition which may to some extent
compensate the defendant owner of the
property. This aspect of the matter is considered
by a three-Judge Bench of this Court in Nirmala
Anand vs. Advent Corporation (P) Ltd...28
33. The equitable discretion to grant or not to
grant a relief for specific performance also depends
upon the conduct of the parties. The necessary
ingredient has to be proved and established by the
plaintiff so that discretion would be exercised
judiciously in favour of the plaintiff. At the same time,
if the defendant does not come with clean hands and
suppresses material facts and evidence and misled the
Court then such discretion should not be exercised by
refusing to grant specific performance."
51. Further I place reliance on the judgment of
Hon'ble Supreme Court in the case of R.SHAMA NAIK vs.
G.SRINIVASAIAH29 at paragraph Nos.8, 9, 10 and 11, it
is held as under:
"8. Section 16(C) of the Specific Relief Act, 1963
(prior to amendment w.e.f. 1.10.2018) bars the relief
of the specific performance of a contract in favour of a
person who fails to aver readiness and willingness to
perform his part of the contract.
9. There is a legion of precedents on the subject
of readiness and willingness.
10. The law is well settled. The plaintiff is obliged
not only to make specific statement and averments in
the plaint but is also obliged to adduce necessary oral
(2002) 8 SCC 146
2024 SCC ONLINE 3586
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and documentary evidence to show the availability of
funds to make payment in terms of the contract in
time.
11. There is a fine distinction between readiness
and willingness to perform the contract. Both the
ingredients are necessary for the relief of specific
performance."
52. As per the principle of law laid down above
stated, it is the burden on the plaintiffs to prove that they
were ever ready and willing to perform their part of
contract, but the plaintiffs have not produced any evidence
that how they were willing and ready to perform their part
of contract. Whether plaintiff Nos.1 and 2 had sufficient
amount in their account so as to purchase the property, is
not found in the evidence. As per Section 16(c) of the Act,
it is the burden on the plaintiffs to prove that they were
ever ready and willing to perform their part of contract,
but in this regard there is no proper pleading and no
evidence. Hence, on this reason also the plaintiffs are not
entitled for decree of specific performance of contract.
53. Further the alleged agreement of sale is dated
06.03.2007 and the total sale consideration is
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Rs.11,75,000/-. As per plaintiffs an amount of
Rs.3,75,000/- is paid to the defendants and remaining
balance sale consideration is only Rs.8,00,000/-. After
lapse of all these years, if decree is granted to execute the
sale deed by receiving remaining amount of Rs.8,00,000/-
only, then it is amounting a highly unfair advantage over
the defendants by the plaintiffs and arbitrary at its
peak. Therefore, the decree for specific performance
cannot be granted in favour of plaintiffs.
54. At this stage, learned counsel for the
respondents/plaintiffs by placing reliance on the judgment
of Hon'ble Supreme Court in P.DAIVASIGAMANI's
case (supra) submitted that plaintiffs are ready to give
some more money to the tune of Rs.50,00,000/- (Rs. Fifty
Lakhs) to the defendants and requested to direct the
defendants to execute registered sale deed. Even this
prayer could not be honoured for the reason that it is
proved that the suit schedule land is the only land for the
defendants for their livelihood. If this land is sold to the
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plaintiffs then virtually the defendants would be put into
starvation as it is their only land for cultivation for their
livelihood. Moreover, considering above reasons, the
execution of agreement of sale is found to be highly
doubtful. Therefore, upon making comparison of hardship
between plaintiffs and defendants, the plaintiffs' interest
could be protected by making an order of refund of
amount whatever the defendants received as loan amount
with interest. Under these circumstances, the defendants
could retain their land for their livelihood and the plaintiffs
are entitled for refund of their amount with
interest. According to this Court, this is the perfect
balancing of rights between plaintiffs and defendants. The
facts and circumstances in the present case and in the
P.DAIVASIGAMANI's case (supra) are
different. Therefore, the respondents/plaintiffs are not
entitled to take benefit of this decision. Accordingly, I
answer point Nos.(i) to (iii) in the Negative; point No.(iv)
that the plaintiffs are not entitled for decree for specific
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performance of contract but are entitled refund of amount
and point No.(v) in the Affirmative.
55. Therefore, for the reasons discussed above, the
trial court has committed a grave error in decreeing the
suit for specific performance, as it is found to be perverse,
not legal and unjustified and as such, it is liable to be
interfered with. Accordingly, judgment and decree passed
by the trial court is liable to be set aside.
56. Hence, I proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree judgment
dated 31.07.2012 passed in
O.S.No.90/2009 by the Court of First
Addl. Senior Civil Judge, Hubli, is hereby
set aside.
(iii) Consequently, suit filed by the plaintiffs
is allowed in part to the extent that
plaintiffs are entitled for refund of
amount of Rs.3,75,000/- from the
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defendants with interest at the rate of
18% p.a. from the date of 06.03.2007 till
the amount is realised.
(iv) The relief claimed for decree of specific
performance of contract is rejected.
(v) The appellants/defendants are hereby
directed to deposit the amount of
Rs.3,75,000/- with interest at 18% p.a.
as above ordered before the trial Court
within a period of three months from the
date of receipt of copy of this order.
(vi) No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DR
