A.S. Arukulaimuthu (died) and 3 others vs K. Ramachandran and 4 others

A.R. Lakshmanan, J.—The defendants are the appellants in this appeal. The Ist defendant/Ist appellant, who is the father of defendants 2 to

5 died during the pendency of the appeal. Appellants 2 to 4 and respondents 2 to 5 were recorded as the legal representatives of deceased Ist

defendant/Ist appellant. The above appeal was filed against the judgment and decree in O.S.No.242 of 1987 on the file of the Subordinate Judge,

Poonamallee, dated 1-3-1991. The Ist respondent filed the said suit for specific performance of agreement to sell dated 1-3-1995 relating to the

suit property. Apart from other defences, the defendants contended that the plaintiff was never ready and willing to fulfil his obligations and that the

time fixed under the agreement was not the essence of the agreement and that therefore, the plaintiff was not entitled to the discretionary relief of

specific performance. Apart from that, according to the defendants, the plaintiff was also guilty of delay and laches and in fact, the suit agreement

was cancelled by the defendants in the first instance on the ground that the plaintiff has committed breach and that he was not ready and willing.

The court below decreed the suit for specific performance. The defeated defendants preferred the present appeal.

The Ist defendant purchased the (sic) measuring 4,950 sq. ft. in survey No./28 hearing Door No.3 Rajaji Road, West Tambaram, from

T.Ramaswami Iyengar under the sale deed dated 24-8-1982 and he has been carrying on timber business in the said property. The Ist defendant

borrowed a sum of Rs.20,0007- from the plaintiff on 16-2-1983 for family expenses and business on the security of the abovesaid property. He

again borrowed a sum of Rs.35,000/- on 25-1-1985 from the plaintiff for his family expenses and for the business. The Ist defendant also

executed two mortgaged in favour of the plaintiff in respect of the property in question and that both the mortgages are still subsisting. The Ist

defendant and his sons defendants 2 to 5 have agreed to sell the mortgaged property to the plaintiff who agreed to purchase the same under the

agreement of sale dated 1.3.1985 Ex. A.1 for a net sell consideration of Rs.4,50,00/-, and also received Rs.50,000/- as advance and part of sale

consideration. The defendants have agreed to execute and register the sale deed within five months from the date of agreement and the said time,

according to plaintiff, is not the essence of the agreement. Though the defendants have agreed to deliver vacant possession of the suit property

after obtaining income tax clearance certificate, they did not do so.

According to the plaintiff, on 23.5.1985 the defendants have received a further sum of Rs.30,000/- under Ex. A.2 as advance and part of sale

consideration, which is also duly endorsed on the back of the agreement itself. The plaintiff has always been ready and willing to perform his part of

the agreement and that the delay was purely on the part of the defendants. On 1-8-1985, the plaintiff bad written a letter to the Ist defendant that

he was always ready and willing to pay the balance of sale consideration and called upon the Ist defendant to obtain the income tax clearance

certificate and get ready for the execution and registration of the sale deed. The plaintiff issued another notice on 7-10-86 calling upon the

defendants to execute and register the sale deed after receipt of balance of sale consideration. The defendants sent a reply on 19-10-1986 through

their advocate staling that there was a prior agreement in favour of one Mrs.Saravanabhava to sell the property in question for Rs.7 lakhs and that

she has committed breach of the agreement and hence the same was cancelled. It is further stated that the plaintiff approached the defendants to

purchase the property for the sale consideration of Rs.7 lakhs but the plaintiff insisted the defendants to put the agreement of sale only for Rs.4.50

lakhs and the balance of Rs.2.50 lakhs must be paid by the plaintiff later. The allegation in the reply notice is totally false. The plaintiff sent a

rejoinder on 5-11-1986 setting forth the true and real facts of the case. The defendants wantonly and deliberately evading to execute the sale deed

with a view to get some more amount from the plaintiff. Therefore, the plaintiff filed the suit to direct the defendants to execute and register the sale

deed in respect of the suit property in favour of the plaintiff or his nominee after receipt of the balance of sale consideration, and if the defendants

fail to doso, the Court may be pleased to execute and register the sale deed.

Defendants 1 and 2 filed a common written statement. According to them, they entered into an agreement to sell the suit property, to one

Smt.Saravanabhava of Tambaram for Rs.7 lakhs and executed a sale agreement. The said Saravanabhava committed breach of contract.

Therefore, the Ist defendant raised a loan of Rs.35,000/- from the plaintiff on 25-1-1985 and executed a mortgage in his favour. The Ist defendant

was taken to the office of M r. A. Shanmugavel, advocate by the plaintiff. He drafted the mortgage deed and through the said advocate the Ist

defendant had sent a notice on 28 1-1985 along with a demand draft for Rs.35,000/- to the said Saravanzbahava, Thus, the sale agreement in

favour of Saravanabhava had been cancelled. The defendants have denied that they have agreed to sell the property to the plaintiff for Rs.4.50

lakhs. According to them, the plaintiff has agreed to purchase the property for Rs.7 lakhs and paid a sum of Rs.50,000/- as advance and another

sum of Rs.30,000/- in May 1985. The plaintiff insisted that the agreement should be executed for Rs.4.50 lakhs and the balance of Rs.2.50 lakhs

would be paid separately. The plaintiff has also drafted a promissory note in a stamp paper and gave a xerox copy of the same to the defendants.

It was agreed between the parties that time is the essence of the contract. The conduct of the plaintiff shows that he had abandoned the sale

agreement. The plaintiff had no sufficient funds to complete the transaction. The plaintiff was never ready and willing to complete the transaction

within the stipulated time. The plaintiff has filed the suit only with a view to get an unfair advantage and unlawful enrichment. As the plaintiff has

committed breach of contract, the suit is liable to be dismissed.

On the side of the plaintiff Exs.A.1 to A-13 were marked and on the side of the defendants Exs.B-1 to B.21 were marked. The plaintiff has

examined himself as P.W. 1 and one Selvaraj as P.W. 2 On the side of the defendants, Ist defendant examined himself as D.W.I and the 2nd

defendant as D.W.2 and one Ravi as D.W.3, The learned Subordinate Judge, on the basis of the above pleadings framed the necessary issues and

on a consideration of the materials placed before him, decreed the suit for specific performance, and after giving credit to the amounts paid

already, directed the plaintiff to deposit a sum of Rs.2,25,160/- in the trial court within three months from the date of the judgment and also

permitted the defendants to withdraw the said sum and execute the sale deed in favour of the plaintiff at his expense and in default there of,

permitted the plaintiff to take the sale deed from the Court.

We have heard the arguments of Mr.N.S.Varadhachari for the appellants and Mr.A.Shanmughavel for the Ist respondent.

The property, which is the subject matter of the suit and the agreement Ex. A.1 is of an extent of 4,950 sq.ft. in Door No3, Rajaji Street, West

Tambaram. The consideration as per the agreement is Rs.4.50 lakhs. Admittedly, there is an earlier with one Smt. Saravanabhava dated 19-10-

1983 for a consideration of Rs.7 lakhs. The main contention of Mr.N.S.Varadhachari apart from others is that the plaintiff wanted to take an unfair

advantage over the defendants and that decreeing the suit for specific performance will cause great hardship to the defendants whereas its non-

performance would involve no such hardship to the plaintiff. Mr.N.S.Varadachari also contended that the time for performance is the essence of

the agreement and that the plaintiff was never ready and willing to perform his part of the contract, that he is aware of the previous litigations and

that therefore, he is not entitled to the equitable and discretionary relief of specific performance.

Much stress was made by Mr.N.S.Varadhachari regarding unfair advantage to the plaintiff and hardship to the defendants.

Mr.N.S.Varadhachari invited our attention to section 20(2)(a) and (b) of the Specific Relief Act, which runs as follows:

20(2)(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, given 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 fore-see whereas its non-performance

would involve on such hardship on the plaintiff.

Section 20(2)(a) of the Act specifically states that the contract though not voidable, gives the plaintiff and unfair advantage over the defendants.

In this case, as pointed out by Mr.N.S.Varadhachari, the plaintiff is aware of the agreement of sale in favour of Mrs.Saravanabhava, admittedly for

Rs.7 lakhs, though a specific mention was not made in the plaint about this. According to Mr.N.S.Varadhachari, the following will show the unfair

advantage the plaintiff wants to have over the defendants:

a) For cancellation of the agreement with Tmt.D.Saravanabhavananda, the plaintiff took the Ist defendant to his lawyer Mr.A.Shanmughavel and

notice under Ex. B.5 was issued by the said advocate for the plaintiff to Tmt.D.Saravanabhavananda cancelling the agreement, and the plaintiff

advances money for such cancellation, Citing this instance Mr.N.S.Varadhachari would contend that the plaintiff is, therefore, well aware of the

earlier agreement for Rs.7 lakhs.

b) However, the plaintiff has taken and agreement for Rs.4.50 lakhs only under Ex. A.1, According to Mr.N.S. Varadhachari, there is no reason

given anywhere in the plaint or in the course of evidence why the agreement is for a lesser amount. On the other hand, the plaintiff admits in his

cross-examination (page 24 of The typed set of select documents) as follows:

Earlier agreement was in 1983. My agreement was one year and four months thereafter. Meanwhile, value of properties is going up is true. Value

of properties is always going up. Time was agreed to be the essence of the contract"".

c) The plaintiff denies the case of she defendants that they agreed to sell to the plaintiff only for the same price and that the plaintiff agreed to

execute a promissory note for Rs.2.50 lakhs covering up the difference between Rs.7 lakhs and Rs. 4.50 lakhs. Therefore, Mr.N.S.Varadhachari

contended that the plaintiff wanted to have an unfair advantage and that he had a scheme to somehow knock down that property for a lower price

taking advantage of the impecunious circumstances of the defendants.

d) To substantiate the contention in regard to impecunious circumstances of the defendants, Mr.N.S.Varadhachari pointed out the following

instances:

i) On 16-2-1983 the plaintiff takes a mortgage of the property for Rs. 20,000/- payable with interest at 24% per annum.

ii) On 25-1-1985, the plaintiff takes a second mortgage for Rs.35,000/- payable with interest at 24% per annum.

iii) On 1-3-1985, the plaintiff enters into an agreement with the Ist defendant and puts the value in the agreement as Rs.4.50 lakhs.

Mr. N.S. Varadachari invited our attention to the following evidence of P.W. I in cross-examination (Page 27 of the typed set of select

documents:

The sale has to be completed within a period of five months from the date of agreement; otherwise, I will lose the advance. If within five months the

defendant does not obtain income tax clearance, I can take steps through Court. But, I did not take steps at the expiry of five months. I did not

send any reply to Ex. A.5, the notice dated 14-9-1985 issued by Mr.S.K.Bala Subramanian on behalf of R.Parthasarathi ...""I did not make

arrangements to pay the money. F have no evidence to show that on the date of the notice I had money. I was confident that the property will not

go out of the hands of the defendant. I had complete trust"".

Mr. N.S. Varadhachari again invited our attention to page 23 of the typed set of select documents, which relates to the cross-examination of

P.W. 1 wherein he admits that be can have mortgage only on the basis of the property and that he had no doubts about the property and that he

tried to purchase the property but did not succeed. Even though there was an earlier agreement for Rs.7 lakhs for the sale of the very same

property in question, according to the plaintiff, he never bargained for Rs.7 lakhs and that he insisted on the sale going through for Rs.4.50 lakhs

only. However, we have no doubt whatever that the state of things that existed clearly show that the property is worth much more or at the worst

Rs.7 lakhs at the relevant point of time.

Our attention was drawn to Illustration (d) of Section 14 of the Evidence Act wherein it is clearly stated as follows: -

A thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things shall

cease to exist, is still in existence"".

He drew our attention to a passage occurring at page 1522 of Sarkar on Evidence, 14th Edition, Volume, 2, which runs as follows:-

This illustration is founded on the presumption in favour of continuance or immutability. It is very general presumption founded on the experience

of human affairs, that persons, state of mind or things once proved to have existed previously or subsequently in a particular state are to be

understood as persisting on continuing in that state until the contrary is established by evidence either direct or circumstantial"".

Thus Mr.N.S. Varadhachari contended that the plaintiff wanted to take an unfair advantage over the defendants.

In support of the above contention Mr. N.S. Varadhachari cited two decisions. The first decision is reported in A.M.Gandnisan v. Ayyasami

(1979 (1) M.1.J. 270) wherein S. Padmanabhan, J., has indicated the basis of unfair advantage after considering the various authorities and also

the text books. On the facts and circumstances of the said case, the learned Judge held that the plaintiff took an unfair advantage and used his

position against the defendant to compel him to sell the property to him under the agreement and so, the relief of specific performance cannot be

granted to the plaintiff.

In the Second decision sited by Mr.N.S.Varadachari, reported in Rangasami Gounder v. Periamuthu Gounder (1977 (1) M.1J., 231) the

expression ''unfair advantage'' has been discussed, wherein their Lordships T.Ramaprasada Rao and S. Ratnavel Pandian, JJ (as the then were)

have hold as follows:-

The expression ''unfair advantage'' appearing in section 20(2) of the Specific Relief Act is not one of art but is one which is pregnant with meaning.

The unfair advantage should be such that on an overall appreciation of the situation the Courts which are to adjudicate upon the subject matter

should come to a conclusion that the party which is complaining of such an unfair advantage should have been tricked and that there was a

designed approach on the part of the plaintiff to victimise the alleged affected party. In the light of Explanation 1 to the section, mere inadequacy of

consideration is no ground to refuse the discretionary relief of specific performance. There is a mountain of difference between inaccuracy of price

and gross inadequacy of price. Even in cases where the price is grossly inadequate, Courts require an additional does of proof that by reason of

such a design on the part of an avaricious purchaser, the vendor has been victimised"".

The next decision cited by Mr. N.S. Varadhachari is reported in Parakunnan Veetill Joseph''s Vs. Nedumbara Kuruvila''s and Ors, wherein

the Supreme Court has held as follows:

Section 20 preserves judicial discretion to Court 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.

The above decision lays down the principles relating to the motive behind the litigation as well as the application of Section 20 of the Specific Relief

Act. Citing the above decisions, Mr. N.S. Varadhachari would contend that the principles laid down in the above cases will equally apply to the

facts of the instant case and therefore, decreeing the suit for specific performance will cause great hardship to the defendants whereas there is no

hardship to the plaintiff.

Mr. N.S. Varadhachari next contended that the defendants have no other property for their business and at present, they are carrying on

business in the place in question. According to him, they wanted to start a separate business and in fact, made arrangements for carrying on such

business as would be evident from Exs.B.14 to B.21. He would submit that this business could not be effectively started on account of the fact that

the plaintiff could not completed the, sale within the period of five month. There will be no hardship caused to the plaintiff in any way as he is

already carrying on business in the property situated behind the suit property in any event, the plaintiff advanced moneys for interest initially and

then wanted to purchase the property for a lower price.

Though the above argument of Mr. N.S. Varadhachari appears to be convincing in the first blush, yet, on a consideration of the same on the

facts and circumstances of the cash and the readiness and willingness of the plaintiff all through, we have no other option except to reject the said

contention. In our opinion, the plaintiff was ready and willing to perform his part of the contract. It is true that the agreement is to be completed

within a period of five months. It is also equally true that lime is the essence of the contract as mentioned in Ex. A1 However; the Ist defendant has

not admittedly produced the income tax clearance certificate without which the sale deed could not be registered at all. No acceptable reason is

given by the defendants as to why they did not take steps to have the income tax clearance certificate obtained within a reasonable time We must

also see in this context that the plaintiff, in fact, purchased stamp papers and thereafter, because of the delay, applied for refund of the same. There

is no reason to reject the contention of Mr.A.Shanmughavel as to what prompted the plaintiff to purchase the stamp papers and later apply for

refund, It may be true that stamp papers were purchased only for Rs.10,000/- even though the stamps required were nearly for Rs.50,000/- That

will not in any way show that the plaintiff was not ready and willing to purchase the suit property. Purchase of stamp papers for Rs. 10,000/-

would, in our view, show that the plaintiff was willing to go through the sale.

The pleadings in this case clearly go to show that the plaintiff has expressed his readiness and willingness all through. The plaintiff has clearly

stated in the plaint that he was ready and willing to perform this part of the obligation under the agreement. It is true that the trial court has written a

judgment in a brief manner. However, the same is compensated by both sides by arguing the matter as elaborately as possible. We had been taken

through the entire pleadings and of the evidence, both oral and documentary. Mr.N.S. Varadhachari has pointed out the plea of the defendants in

paragraph 13 of the written statement wherein it is clearly stated that the plaintiff has filed the suit only with a view to get unlawful enrichment. As

such, Mr. N.S. Varadhachari would submit that there is clear pleadings for the proposition of ""unfair advantage"" for the plaintiff and hardship to the

defendants. As pointed out by the Division Bench in 1977 M.1.J.231, the unfair advantage should be such that on an overall appreciation of the

situation, the Courts which are to adjudicate upon the subject matter should come to a conclusion that the party which is complaining of such an

unfair advantage should have been tricked and that there was a designed approach on the part of the plaintiff to victimize the alleged affected party.

In the instant case, on an overall appreciation of the entire situation. We are not able to come to any conclusion that the party who is complaining

of such unfair advantage viz., the defendants herein have been fooled or tricked and that there was a pre-planned approach on the part of the

plaintiff to victimise the defendants. The voluminous evidence, both oral and documentary, and an overall appreciation of the same would only

drive us to the conclusion other way about.

Though a contention was raised in regard to the falsity of the plaintiff''s claim, we are unable to accept the said contention that there is any

falsity with regard to material particulars in the plaintiff''s case which would disentitle him to get a decree for specific performance. Though very

may decision were cited by both parties, we are not inclined to go through the same since we feel that the case on hand can be decided on the

available materials placed before Court.

Mr. N.S.Varadhachari in his concluding remarks contended that decreeing the suit to-day will be an unfair advantage to the plaintiff and

hardship to the defendants. We are unable to agree with this contention. The defendants them selves in their memorandum of grounds of appeal

filed in this Court in ground No.6, as an alternative plea contended as follows:

The Court below failed to see that there was an agreement for sale of the property for Rs.7 lakes and consequently, the agreement Ex. A.1 relied

upon by the plaintiff cannot be enforced without the plaintiff providing for the balance of the agreed consideration as spoken to by the defendants"".

Keeping the above ground in mind, we a asked the counsel for the plaintiff Ist respondent to ascertain from the plaintiff whether he is willing to

purchase the property for Rs.7 lakhs and also charge a reasonable rate of interest on the mortgages made by the Ist defendant in favour of the

plaintiff. Mr.A.Shanmughavel, Learned Counsel for the Ist respondent, on as certainment informed the court the the plaintiff is ready and willing to

purchase the suit property for Rs.7 lakhs and pay the balance of Rs.2.50 lakhs. The Learned Counsel for the Ist respondent was directed to file a

memo of calculation to the said effect and also calculating interest at 24% as per the sale agreement and also at 8%, 15% and 12% per annum. On

the next hearing date Mr.A.Shanmughavel himself volunteered and filed another calculation memo charging no interest for the mortgages. Both the

calculation memos are extracted below: [omitted - Ed.]

Copies of the above calculations were given to the counsel for the appellants and the Learned Counsel was asked to consult the appellants and

report to this Court. On the next adjourned date Mr. N.S. Varadhachari submitted that the defendants are willing to provide a small area of open

space to able the plaintiff to reach his land, which is situated behind the suit property, and sell that portion alone but, at the same time, the

defendants must be permitted to retain the remaining portion of the suit property since they are actually carrying on business to eke out their in live

hood. The plaintiff was not willing for the said course.

The contention of Mr. N.S. Varadhachari that the plaintiff all through had an eye on the suit property and therefore has decided to purchase

the same some how or other, may be true to some extent but that cannot be a ground to characterise the intention of the plaintiff as a scheme or

design to have an unfair advantage over the defendants. As pointed out by this Court and other High Courts in a number of decisions, the conduct

of the parties at the time of entering into the contract is a relevant factor to be considered and also the other circumstances under which the

contract was entered into. It may be true that the performance of the contract by the defendants would involve some hardship to them since they

may have to part away with the property which they did not fore see. But, in our opinion, the non-performance of the same would involve much

hardship on the plaintiff. We see bona fides on the part of the plaintiff of his intention to purchase the property even for an enhanced price. Though

the agreement mentions the sale considerations as Rs.4,50 lakhs, the plaintiff has now come forward to purchase the property for a sum of Rs.7

lakhs and is even prepared to completely forego and waive interest chargeable on the mortgages. In our opinion such a course, if adopted, would

only to be to the fair advantage of the defendants, since, in our view, the defendants have failed to satisfy or convince us an the other points alleged

in the grounds of appeal. As stated already, strenuous attempt was made by Mr.N.S.Varadchachari only on the question of the alleged unfair

advantage to the plaintiffs.

Two decisions cited by Mr.A.Shanmughavel, Learned Counsel for the Ist respondent/plaintiff can be usefully referred to in this context. The

first one is reported in Prakash Chandra Vs. Angadlal and Others, . The appellant in that case has entered into as agreement with one Mosinali and

Qurban Hussain for sale in his favour of a plot for Rs.4,000/- The vender, infact, informed the appellant of the pendency of the civil suit between

himself and certain others for declaration of title and for possession. The suit was contested by the vender and he pleaded that the appellant had

waived his right under the agreement for sale and had opted for refund of Rs.3,000/- paid by him. The trial Court refused the relief of specific

performance and granted a decree for Rs.1,000/- by way of damages and for the refund of Rs. 3,000/- paid towards the price of the site. The first

appeal was allowed by the learned District Judge, who held that the vendor had committed breach of contract, and accordingly passed a decree

for specific performance and required the appellant to pay the balance of Rs.1,000/- to the vendor to execute a sale deed in his favour. The

vendors filed a second d appeal in the High Court, which was allowed and the decree of the first appellate court was set aside and that of the trial

court was restored. The High Court has observed that the appellant by executing the document dated 18-11-1957, permitted the vendors to settle

the disputes in civil suit by conveying ownership in the land to respondents 1 and 2 who had succeeded to the interest of Girjashankar Since it was

a mode of settlement of disputes, it fell within the terms of the document executed by the appellant. The Supreme Court interfered with the finding

of the High Court and observed that by the original agreement for sale dated 11-9-56, the appellant be come entitled to a sale of the land on

payment of Rs.4,000/- and thereafter, he executed the document dated 18-11-1957, which provided for the settlement, etc., while allowing the

appeal, the Supreme Court held as follows:

The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and

the circumstances show that damages would constitute and adequate relief. In the present case, the conduct of the appellant has not been such as

to disentitle him to the relief of specific performance.. Even of a sum has been named in the contract for sale as the amount to be paid in case of

breach the appellant is entitled in law to the enforcement for the agreement"".

The next decision is reported in Surya Narain Upadhyaya Vs. Ram Roop Pandey and others, . That appeal was filed against the judgment of

the Allahabad High court in a Second Appeal. A suit was filed for specific performance of the agreement for a total consideration of Rs.12,000/-

A sum of Rs.3,000/- was; paid as earnest money. The contract was to be executed within a period of one year thereafter. Instead of executing the

sale deed in favour of the appellant, the Ist respondent started disposing of the properties and also executed a gift deed in favour of respondents 2

and 3, who in turn have further alienated the property in favour of the 8th respondent and others. The trial court decreed the suit for specific

performance and the Ist appellant court confirmed the same. The High Court in second appeal reversed the judgment and decree and dismissed

the suit on the ground that the appellant did not pay sufficient court fee on the date of presenting the plaint and that the deficit was not made good

for some time thereafter which would show that the appellant had no capacity to pay the consideration and willing to perform his part of the

contract. The Supreme Court allowed the appeal and however, directed the appellant to pay a further sum of Rs.12,000/- in view of the long lapse

of lime and appreciation of value of the property. The appellant had also agreed to the said proposal suggested by the Supreme Court.

Accordingly, a direction was issued to the appellant to deposit a sum of Rs.12,000/- in addition to the sum already deposited by the appellant As

pointed out by the Supreme Court, discretion of the Court should be exercised reasonable and guided by judicial principles of law

Keeping in view the settled principles of law as envisaged in section 20 of the Specific Relief Act, and the readiness and willingness to perform

his part of the contract by the plaintiff all through, we direct the Ist respondent/plaintiff to pay a further sum of Rs.2.50 lakhs to the defendants

towards sale consideration. We make it clear that the total sale consideration will be Rs.7 lakhs instead of Rs.4.50 lakhs. The two mortgage

amounts of Rs.20,000/- and Rs.35,000/- and of the advances of Rs.30,000/- paid by the plaintiff under the sale agreement, in all totalling Rs.7

lakhs. The balance payable by the plaintiff comes to Rs.5,65,000-00. This amount shall be paid by the plaintiff/Ist respondent to the heirs of the Ist

defendant within one month from to-day. If they refuse to receive the money, the plaintiff is at liberty to deposit the same to the credit of the suit in

the trial court within the above stipulated time. On receipt of the said sum, appellants 2 to 4 and respondents 2 to 5 shall execute a sale deed in

favour of the plaintiff/Ist respondent or his nominee within one month thereafter, failing which the Sub Court, Poonamallee shall execute the sale

deed in favour of the plaintiff or his nominee within one month after the expire of the time given to the appellants and respondents 2 to 5 to execute

the sale deed. The above direction, in our opinion, will meet the ends of justice and satisfy both parties. It is settled law that specific performance

should be denied only when equitable consideration point to its refusal and the circumstances show that damages would constitute an adequate

relief. In the present case, the conduct of the plaintiff has not been such as to disentitle him to the relief of specific performance. There is no

evidence that the plaintiff secured an unfair advantage when he entered into an agreement with the Ist defendant nor is there anything to show that

the performance of the contract would involve the defendants in some hardship which they did not fore-see. In our opinion, there is no reason as to

why the plaintiff should not be granted the relief of specific performance, of course, with the modified direction in regard to the sale consideration

and of the complete waiver of interest payable on the two mortgages by the defendants. Is the result, the appeal is dismissed with the modified

directions given above. However, there will be no order as to costs. The Demand Draft will be in the name of the second appellant Mr. A.

Rajaram.