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15. The learned counsel for the appellant would argue that even if it is found
that the contract was breached by the defendant, the court is not bound to grant the
relief of specific performance. According to the learned counsel, due to the efflux of
time, the market value of the scheduled property has increased considerably and if
specific performance is granted, the same will cause huge loss to the defendant and
unjust enrichment to the plaintiff. On the other hand, the learned counsel for the
plaintiff invited my attention to the evidence of the defendant as DW1, that because
of the delay up to 5.12.2008, the date of issuance of Exhibit A2 notice, no loss was
sustained to him.
16. The learned counsel for the appellant has relied upon the decision of a
Division Bench of this Court in Antony K.O. and Another v. M.K. Krishnankutty
Menoki and Others [2017 (1) KHC 479], to substantiate his argument that the court
has to exercise its discretion not for granting the relief of specific performance, but
for refusing the same. In the above decision it was further held that a decree which
was granted without addressing and without exercising the discretion under section
20 of the Specific Relief Act is bad in law.
17. Section 20 of the Specific Relief Act dealing with discretion as to
decreeing specific performance states 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 reasonable, guided by
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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 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."
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18. The learned counsel would argue that mere pleading regarding readiness
and willingness to perform the contract is not enough and further, the plaintiff has to
prove his financial capacity to pay the balance sale consideration and to get the sale
deed executed. In support of the above argument, he has relied upon the decision of
the Hon'ble Supreme Court in Krishnamurthy (since deceased) Thr. Mrs. U.N. v.
A.M. Krishnamurthy [2022 KHC 6698], Venkatesh C.S. v. A.S.C Murthy (D)
byLRs. And Others [2020 KHC 6123] and Ravindranath P. v. Sasikala [2024
KHC 6379]. In the decision in Krishnamurthy (supra), in paragraph 21 the Apex
Court held:
"21. It is well settled that, in a suit for Specific Performance of an
agreement, it is for the Plaintiff to prove his readiness and willingness to
perform his obligations under the agreement. Where a certain amount has
been paid in advance and the balance is required to be paid within a
stipulated time, it is for the Plaintiff to show that he was in a position to
pay the balance money. The Plaintiff has to prove that he has the money or
has alternatively made necessary arrangements to get the money. In this
case, the Original Defendant/Appellants have all along contended that the
Plaintiff Respondent neither offered to pay nor was in a position to pay the
balance consideration of Rs.15,00,000/- "
19. In paragraph 24, the Apex Court further held as follows:
"24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of
specific performance of a contract in favour of a person, who fails to aver
and prove his readiness and willingness to perform his part of contract. In
view of Explanation (i) to clause (c) of Section 16, it may not be essential
for the plaintiff to actually tender money to the defendant or to deposit
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money in Court, except when so directed by the Court, to prove readiness
and willingness to perform the essential terms of a contract, which involves
payment of money. However, explanation (ii) says the plaintiff must aver
performance or readiness and willingness to perform the contract
according to its true construction."
20. In the decision in Venkatesh C.S (supra), in paragraph 15, the Apex
Court held that:
"15. The words 'ready and willing' imply that the plaintiff was prepared to
carry out those parts of the contract to their logical end so far as they
depend upon his performance. The continuous readiness and willingness on
the part of the plaintiff is a condition precedent to grant the relief of
performance. 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 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. The amount which he has to pay the defendant
must be of necessity to be proved to be available. Right from the date of the
execution of the contract till the date of decree, he must prove that he is
ready and willing to perform his part of the contract. The court may infer
from the facts and circumstances whether the plaintiff was ready and was
always ready to perform his contract."
21. In the decision in Ravindranath P. (supra), the Apex Court reiterated the
following observation from an earlier decision in U.N. Krishnamurthy (Since
Deceased) Thr. Lrs. v. A.M. Krishnamurthy, 2022 SCC OnLine SC 840:
"46. It is settled law that for relief of specific performance, the
Plaintiff has to prove that all along and till the final decision of the
suit, he was ready and willing to perform the part of the contract. It is
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the bounden duty of the Plaintiff to prove his readiness and
willingness by adducing evidence. This crucial facet has to be
determined by considering all circumstances including availability of
funds and mere statement or averment in plaint of readiness and
willingness, would not suffice."
22. From the above decisions, it is clear that in order to get the discretionary
relief of specific performance, the plaintiff has not only to plead the readiness and
willingness all along the period of contract, but also has to prove her readiness and
willingness by adducing evidence. It is also evident that even if it is found that the
breach was on the part of the defendant, the Court is not bound to grant the relief
of specific performance, if return of advance amount will do justice to the plaintiff.
23. In this case, from the evidence of the defendant itself, it is revealed that
she had a total extent of 30 cents of property and the plaintiff originally wanted to
purchase the entire 30 cents. However, at that time, mutation in respect of 10 cents
was not effected in her favour and that is why initially sale deed was executed only
in respect of 16 cents. After purchasing the above 16 cents of property, the plaintiff
constructed a residential building and residing therein. The remaining 14 cents
involved in this case situates on the north and east of the residential plot referred
above. Therefore, according to the plaintiff, purchase of the plaint schedule property
is necessary for the beneficial enjoyment of the 16 cents already purchased by her.
The learned counsel for the appellant would argue that, with respect to 10 cents alone
mutation was not effected and for the remaining four cents, there was mutation and
in spite of that the plaintiff has not purchased the above four cents along with the 16
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cents. Therefore, it was argued that purchase of the plaint schedule property was not
a necessity to the plaintiff for the beneficial enjoyment of the property already
purchased and it is only a desire and as such this court is not bound to grant specific
performance in favour of the plaintiff.
24. On the other hand, as I have already noted above, from the evidence of
the defendant itself it is revealed that the idea of the plaintiff was to purchase the
entire 30 cents and only because mutation was not effected over 10 cents, entire 30
cents could not be purchased at the beginning. Immediately after the mutation was
effected in respect of the remaining ten cents, Exhibit A1 sale agreement was
executed. Even from the evidence of DW1, it is revealed that the plaint schedule
property situates on the immediate north and east of the property already purchased
by the plaintiff and therefore, it can be seen that there is merit in the case of the
plaintiff that the plaintiff agreed to purchase the plaint schedule property as it is
abutting the 16 cents she already purchased from the defendant. Therefore, there is
merit in the argument of the plaintiff that the plaint schedule property was agreed to
be purchased for the beneficial enjoyment of the 16 cents already in her possession.
25. Though the learned counsel has argued that because of the efflux of time,
the value of the property has increased considerably, there is no evidence to prove the
same. On the other hand, from the evidence on record, it is revealed that out of the
total sale consideration of Rs.2,13,500/-, Rs.1,00,000/- was paid by the plaintiffs to
the defendant by 4.10.2008, ie, within 11/2 months from the date of the agreement. It
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means, a considerable portion of the sale consideration was paid by the plaintiff to
the defendant immediately after the execution of Exhibit A1. Further, it is revealed
that after the decree, the plaintiff has deposited the entire balance sale consideration
before the trial court.
26. Though the period of Ext.A1 is 3 months, even before the expiry of three
months provided in Exhibit A1, the plaintiff approached the defendant on 20.11.2008
demanding execution of the sale agreement. On the other hand, though the period of
agreement was orally extended by 15 days up to 10.12.2008, the defendant went to
the Sub Registry on 25.11.2008 without informing the plaintiff and stood herself as a
witness in Exhibit B1 document. The conduct of the plaintiff in personally contacting
the defendant on 20.11.2008 and issuing Exhibit A2 lawyer's notice on 5.12.2008
assumes significance in this context, to show her readiness and willingness to get the
sale deed executed after paying the balance sale consideration. Exhibit A2 lawyer's
notice is seen issued within ten days of the expiry of Exhibit B1 and five days before
the expiry of the period orally extended between the parties. Even then, instead of
performing the contract, the defendant waited till 29.12.2008 and sent a reply
denying specific performance alleging default on the part of the plaintiff.
27. During the cross examination of DW1, she admitted that because of the
delay in performing Exhibit A1, till 5.12.2008, there was no loss to her. Though
subsequently, she tried to wriggle out from the above admission and claimed that she
sustained loss, she could not explain the manner in which she sustained any such
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loss. Generally, as far as immovable property is concerned, time is not essence of the
contract. In this case, there was no default on the part of the plaintiff as she was
always ready and willing to perform her part of the contract. Even before the expiry
of Exhibit A1 she personally contacted the defendant and at that time it was at the
instance of the defendant, the period was orally extended. Thereafter, when the
plaintiff approached her for specific performance even before the expiry of the
extended period, the defendant refused to execute the sale deed saying that the
period has already expired. Since the defendant herself admitted that because of the
delay of ten days, till 5.10.2008, she has not sustained any loss, there was absolutely
no justification for the defendant not to perform Exhibit A1 as demanded in Exhibit
A2 lawyer's notice.
28. In this context, it is also to be noted that as per the terms of Exhibit A1,
before the execution of the sale deed, the defendant had to measure the property and
convince the extent of the property to the plaintiff. Further, the defendant had to
convince that there was no encumbrance over the scheduled property. Admittedly,
no such attempt was made from the side of the defendant to measure and convince
the extent of the property and to show that there was no encumbrance over the
property, before the execution of the sale deed.
29. At the time of arguments, the learned counsel for the defendant attempted
to show that when the plaintiff purchased the first 16 cents of property from the
defendant, the entire 30 cents was measured and encumbrance over the said property
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was also verified and therefore, there was no necessity to measure the property again
and convince that there is no encumbrance over the property. However, it is revealed
from the evidence of DW1 itself that from the 30 cents belonged to her, some
portion was taken for widening the adjacent road. Therefore, it is evident that the
plaintiff was not in possession of the entire 30 cents when the previous sale deed was
executed. Though in Exhibit A1, it is stated as 14 cents, and the sale consideration is
shown as Rs.2,13,500/-, the centage value of the property shown was Rs.15,250/-.
Therefore, the measurement of the property to ascertain its extent and to ascertain
whether there is any encumbrance over the property are necessary before the
execution of the sale deed. It was in the above context, such conditions were
stipulated in Exhibit A1. Further, it is to be ascertained whether there is any shortage
in the extent of the property. Since it is revealed that the defendant has not taken any
steps to measure the property to convince the extent and to show that the property is
free from encumbrance, it is to be held that the default was on the part of the
defendant and there was absolutely no default or breach on the part of the plaintiff.
30. During the cross examination of the defendant, she claimed that the
property was measured earlier when the plaintiff purchased the 16 cents of property
and also subsequently after the execution of Exhibit A1. However, she has not
produced the sketch showing the extent of the property available for sale. During the
cross examination when questions were asked about the same, she pleaded ignorance
and stated that everything was done by her husband and that she does not know the
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details. It is interesting to note that the husband of the defendant was not examined
to prove that the defendant has complied the requirements stipulated in Exhibit A1
before the execution of sale deed. The learned counsel would argue that the plaintiff
herself is a Village Officer and as such there was no necessity on the part of the
defendant to convince that there is no encumbrance over the schedule property. It is
true that at the time of evidence, it is revealed that the plaintiff is a Village Officer by
profession. However, in Exhibit A1 there is specific clause to the effect that before
the execution of the sale deed, the defendant has to measure and convince the extent
of the property and also show that there was no encumbrance over the schedule
property. Therefore, for the mere reason that the plaintiff was a Village Officer, the
defendant cannot contend that she is not bound by the terms of Exhibit A1
agreement.
31. Similarly, it was admitted by the defendant that she had not handed
over or shown her original title deed for the purpose of preparing the draft sale deed
and to prove that the scheduled property is not encumbered with any financial
institution. At the same time, from the conduct of the plaintiff it can be seen that
even before the expiry of the period provided in Exhibit A1, she had advanced
considerable portion of the sale consideration to the defendant and approached the
defendant before the expiry of the period in Exhibit A1 expressing her readiness and
willingness to get the sale deed executed and it was postponed only at the instance of
the defendant. Immediately thereafter, the plaintiff issued Exhibit A2 lawyer's notice
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requesting the defendant to execute the sale deed. In spite of the receipt of the
notice, it was the defendant who refused to perform the contract. Thereafter, without
delay, the plaintiff filed the suit seeking specific performance.
32. In the plaint, the plaintiff has specifically pleaded that she has always
been ready and willing to perform her part of the contract by paying the balance sale
consideration. It is true that the plaintiff has not adduced any positive evidence to
prove that she was in actual possession of the balance sale consideration or that she
has made any arrangements with anybody for the balance sale consideration.
However, from the conduct of the plaintiff in advancing Rs.75,000/- before the time
stipulated in Exhibit A1 for payment of balance amount, in addition to the advance
already paid at the time of execution of Ext.A1, personally approaching the
defendant even before the expiry of the period in Exhibit A1 expressing her readiness
and willingness to perform the contract, issuing Ext.A2 notice demanding specific
performance and filing the suit immediately after the defendant refused to execute
the sale deed by sending Exhibit A3 reply notice etc. clearly shows the readiness and
willingness on the part of the plaintiff in performing her part of the contract. In
Ext.A2 notice, in the plaint and in the proof affidavit the plaintiff has specifically
stated that she was always ready and willing to perform her part of the contract and it
was not challenged by the defendant. In this case the defendant has no case that the
plaintiff was not in possession of the required amount for paying the balance sale
consideration. During the cross examination of the plaintiff also, her evidence to the
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effect that she was always ready and willing to pay the balance sale consideration
and to get the sale deed executed, was not challenged. Therefore, from the above
conduct of the plaintiff and also from the evidence adduced in this case, it can be
safely concluded that plaintiff was always ready and willing to perform her part of
the contract and she had also the financial capacity to pay the balance sale
consideration.
33. Even from the evidence of DW1 it is revealed that from the very
beginning, the plaintiff had the intention to purchase the entire 30 cents from the
defendant and only because the defendant had not mutated 10 cents of property, at
first, 16 cents was assigned in favour of the plaintiff. Thereafter, immediately after
the mutation was effected, Exhibit A1 sale agreement was executed. It is also
revealed that in the property already purchased by the plaintiff she had constructed a
residential building and the plaint schedule property situates on its immediate east
and north. Therefore, it is evident that the plaintiff agreed to purchase the plaint
schedule property so as to enjoy the same along with the 16 cents already purchased
from the defendant.
34. Since the defendant has received considerable portion of the sale
consideration immediately after the agreement and was always ready and willing to
perform her part of the contract, while it could not be performed solely due to the
default of the defendant, denial of specific performance will cause more prejudice to
the plaintiff. If specific performance is denied, the plaintiff will be put to much
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hardships and inconvenience. Since the plaintiff has already paid considerable
portion of the sale consideration immediately on execution of Exhibit A1 and
deposited the entire balance consideration immediately after the decree, increase in
the value of the plaint schedule property, if any, has no relevance in the facts of this
case. Moreover, as I have already noted above in this case, there is no positive
evidence to prove that the value of the schedule property has increased considerably
as now claimed. Therefore, it is to be held that the trial court has exercised the
discretion in favour of granting specific performance after evaluating the evidence on
record in the correct perspective. In other words, I do not find any irregularity or
illegality in the impugned judgment and decree of the trial court so as to call for any
interference. Points answered accordingly.
35. In the result, this appeal is dismissed. Considering the facts, I order no
costs.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
