J. Margret Fernandez and Others vs K.V. Seetharamaiah

N. Kumar, J.—This is a defendant''s Regular First appeal challenging the Judgment and Decree of the trial Court decreeing the suit of the plaintiff as prayed for.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit is, a house property bearing No. 89/1 House List No. 489 New No. 250 in the layout plan approved by the BDA situated in the Main Road, Vajrahalli, Talaghatapura, Kanakapura Road, Bengaluru-62 measuring East to West 42'' and North to South 85.71'' which is more fully described in the schedule to the plaint (hereinafter referred to as ''schedule property'').

The schedule property was acquired by the first defendant under a registered sale deed dated 8.7.1999. Subsequently, khatha was made in the name of 1st defendant and she was paying tax. She constructed a house with RCC roofing measuring 7.54 squares and she was residing with her family members. The schedule property was situated within the limits of Balaji House Building Co-operative Society Ltd., who got the land notified through the Government and acquired for the purpose of its members. In the Society, a resolution came to be passed to admit some members who have already constructed houses in the revenue belt and accordingly called upon the 1st defendant to become the member of the Society and in turn considered her application and allotted the house constructed by her as that of a site by giving a new number as 250.

The case of the plaintiff is, the first defendant was in dire need of funds for discharging the debts so also to get the sale deed from the Society. Therefore, she offered to sell the schedule property in favour of the plaintiff. The plaintiff accepted the offer and the terms were reduced to writing by way of an agreement of sale dated 31.12.2004. Under the terms of agreement, schedule property was agreed to be sold for a sum of Rs. 27 lakhs. A sum of Rs. 1,00,000/- was paid as advance by way of a cheque. It was also agreed that the plaintiff has to pay a sum of Rs. 5,50,000/- on behalf of the first defendant to the Balaji House Building Co-operative Society and to get the absolute sale deed in favour of the 1st defendant. The agreement of sale has been consented by the husband of 1st defendant who is arrayed as second defendant in the suit. In fact, the daughter also signed the agreement of sale and she is also made a party to the suit. In terms of the agreement of sale, the plaintiff paid a sum of Rs. 5,25,000/- to the Balaji House Building Co-operative Society to get the sale deed in favour of the first defendant. The payment of said amount of Rs. 5,25,000/- is also acknowledged by the first defendant as part of sale consideration. Thereafter, sale deed has been obtained in the name of first defendant. The plaintiff has taken all pains to persuade the Society to execute the sale deed in favour of the first defendant. It is in pursuance of his persuasion, the sale deed has taken place. In terms of the agreement of sale, the first defendant has to execute the sale deed in favour of the plaintiff by receiving the balance sale consideration by handing over the vacant possession of the plaint schedule property. The defendant did not do so. After obtaining the sale deed from the Society, the first defendant demanded payment of further sum of Rs. 1 lakh to enable them to get an alternative accommodation. They went on postponing execution of sale by one or the other reason. After obtaining the sale deed, they did not obtain khatha from the BDA took further time to complete the sale transaction.

The plaintiff submits that, he was ever ready to perform his part of the contract to pay the balance sale consideration and to get the sale deed executed but, the defendants went on postponing the same for one reason or the other. Therefore, left with no alternative, he got issued the legal notice dated 19.3.2005 against the defendants calling upon them to perform their part of contract in particular, getting the Khatha from the BDA and handing over vacant possession. Notice was duly signed and the defendants sent untenable reply contrary to the terms of the agreement. The same was clarified by giving a rejoinder on 6.4.2005.

The plaintiff received another notice dated 06.04.2005 wherein it has been stated that the possession of the premises has been kept vacant since last 15 days. The documents such as khatha, tax paid receipt upto date, encumbrance certificate and a copy of the sale deed have been sent and the plaintiff would be ready to get the sale deed registered on 08.04.2005 before the Sub-Registrar, Kengeri. Plaintiff submits, he was ready to get the sale deed registered on 08.04.2005. On verification, it was found that property has not been vacated. When the second defendant was questioned, he said he requires further 15 days time after registration of sale deed to vacate and hand over the schedule property. When the notice issued by the Advocate was shown to him, he pleaded his ignorance however, plaintiff went to Sub-Registrar''s office to complete the sale transaction.

The intention of the defendants has to be seen. By giving all untenable reply, the first defendant did not perform her part of contract. The plaintiff was ready and willing to perform his part of contract. There is no breach of terms on the side of the plaintiff. On the other hand, the defendants started to act detrimental to the interest of the plaintiff and contrary to the terms of agreement. Therefore, the plaintiff was constrained to file a suit for specific performance of agreement of sale dated 27.5.2005.

On receipt of suit summons, the defendants entered appearance, filed a detailed written statement traversing all the allegations made in the plaint. The defendants admitted that the first defendant is the absolute owner of the plaint schedule property. The construction of the house by the first defendant was also admitted. They also admitted that first defendant was in dire need of funds for discharging the debts and also to acquire alternative property. The first defendant offered to sell the schedule property in order to meet the legal necessities i.e. to attend urgent medical expenses and also to purchase alternative shelter, agreed to sell the schedule property and the offer was accepted by the plaintiff. The total consideration agreed upon was Rs. 27 lakhs and a sum of Rs. 1 lakh was accepted subject to terms and conditions set out in the sale agreement. It is stated that it is not true that Rs. 5,50,000/- was paid to the Society on the contrary, the amount of Rs. 5,25,000/- was paid to the Society and the first defendant has acknowledged the payment by issuing receipt. Further, the defendants contended that 2nd defendant took all pains to get the absolute sale deed which is with the first defendant. The 1st defendant would vacate and deliver the vacant possession only after payment of balance amount and registration of the sale deed. She has denied payment of further Rs. 1 lakh. The said amount was advanced for purchase of property at Chamarajpet which is more fully described in the schedule to the written statement which was owned by one Prakash Raju. They denied the allegation in the plaint that plaintiff was ever ready and willing to perform his part of contract. On the contrary, the defendants were ready and willing to perform their part of contract but, the plaintiff failed to pay the amount and register the property. Eventhough the property was kept vacant inspite of the latches and in order to give an opportunity and to save the money of defendant given as advance to Prakash Raju. The plaintiff was called upon to pay the balance amount and register the property in his favour before 6.4.2005 and the plaintiff failed to make use of the said opportunity and as such, sale agreement stood cancelled. The amount paid is forfeited as mentioned in the notice issued by the 1st defendant dated 1.4.2005. The legal notice was suitably replied. The premises was kept vacant for a period of more than 45 days to facilitate the registration.

In order to honour the obligation of the first defendant, the first defendant being a God fearing lady who is suffering from heart ailment and her son-in-law is suffering from failure of both kidneys. Therefore, money was required for the said purpose and thus the property was agreed to be sold on the premise that they will pay the money. Therefore, the defendants entered into an agreement with Prakash Raju and shifted their residence to the schedule property mentioned in the written statement. But, the plaintiff failed to pay the amount and register the sale deed. The said agreement was cancelled and the house was vacated and defendants have lost Rs. 1 lakh paid to the said Prakash Raju. The said facts are all intimated to the plaintiff and inspite of that, the plaintiff did not care to honour the terms of the agreement. They admitted receipt of notice, reply sent and the rejoinder. It is further contended that the LRs of first defendant have contended that suit is not only defective but also a fraud played on the plaintiff. The schedule property was purchased and improved by the joint efforts of the LRs of 1st defendant. The plaintiff was requested to find out a suitable purchaser to resell the same for higher rate. In this case, the plaintiff failed to discharge his obligation as he was unable to get re-purchaser. The plaintiff had not paid the balance amount at any point of time. This fact is proved on the very conduct of the plaintiff. Thus the plaintiff is not entitled for discretionary relief of specific performance. Since the first defendant was suffering from ailments and her son-in-law was suffering from kidney problem and dialysis procedures were going on. Thus, they sought for dismissal of the suit.

Subsequently, an additional written statement came to be filed on 28.08.2012. It is submitted that the suit schedule property was purchased and improved by the joint efforts of the LRs of the first defendant. The first defendant is only a name vendor. The first defendant died leaving behind her two daughters. They are necessary and proper parties to the suit and they prayed for dismissal of the suit.

On the aforesaid pleadings, the trial Court framed the following issues:

"(1) Whether the plaintiff proves that the defendants have executed agreement of sale dated 31.12.2004 agreeing to sell the suit schedule property for a total sale consideration of Rs. 27 lakhs?

(2) Whether the plaintiff proves that in pursuance of the agreement of sale, he has paid a sum of Rs. 7,25,000/- to the defendants?

(3) Whether the plaintiff proves that he was ever ready and willing to perform his part of contract?

(4) Whether the defendants prove that due to latches and default on the part of the plaintiff, the transaction was failed and the sale agreement was cancelled?

(5) Whether the plaintiff is entitled for the relief of specific performance of contract?

(6) What Decree or Order?"

The plaintiff in order to substantiate his claim, examined himself as PW. 1 and produced 34 documents which were marked as Ex. P1 to P34. On behalf of the defendants, the second defendant was examined as DW.1, third defendant was examined as DW.2 and one of the LRs of first defendant Joseph Cril as DW.3 and also produced 107 documents which were marked as Ex. D1 to D107.

Though second defendant is the husband of first defendant was examined as DW.1 and through him, 90 documents were produced and marked as Ex. d1 to d90. Thereafter, at the request of the counsel for the defendants, evidence of DW. 1 was discarded as per order dated 13.02.2013 in substitution of that evidence, third defendant has filed her affidavit in lieu of her examination chief and she was cross-examined.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record, held, the plaintiff has proved the defendants have executed an agreement of sale dated 13.12.2004 agreeing to sell the suit schedule property for a total consideration of Rs. 27 lakhs. Further, the plaintiff has also proved in pursuance of agreement to sell and the plaintiff has paid Rs. 7,25,000/- to the defendants and has also proved that he was ever ready and willing to perform his part of contract. However, defendants have failed to prove that due to latches and default on the part of the plaintiff, the transaction failed and the sale agreement was cancelled. Therefore, the trial Court held, the plaintiff is entitled to a decree for specific performance and accordingly decreed the suit of the plaintiff and directed the defendants to execute the sale deed by receiving the balance sale consideration.

Aggrieved by the said Judgment and Decree of the trial Court, the defendants have filed this appeal.

Sri D.L. Jagadessh, learned Sr. Counsel appearing for defendant-appellants assailing the Judgment and Decree of the Court below contended firstly, that the plaintiff was not ready and willing to perform his part of the contract. The requirements of Section 16(c) of the Specific Relief Act, 1963 was not satisfied which fact has not been properly appreciated by the trial Court thus, it has committed an error in decreeing the suit of the plaintiff as prayed for. Secondly, he contended, even otherwise, money was required for the purpose of meeting the medical expenses of the first defendant and her son-in-law whose both kidneys failed and dialysis was required. Both first defendant as well as her son-in-law died therefore, the trial Court ought to have considered the question whether the Court is justified in passing a decree for specific performance as the relief is discretionary and the Court was not bound to grant such relief may be because, it is lawful to do so. Therefore, he submits, the Judgment and Decree of the trial Court is liable to be set aside.

Per contra, the learned counsel appearing for the plaintiff- respondent supporting the impugned Judgment and Decree contended that the execution of the agreement of sale is not in dispute. Payment of Rs. 7.25 lakhs of money is not in dispute. The sale ought to have been completed on or before 31.3.2005 in terms of the agreement. The plaintiff borrowed a sum of Rs. 19,85,000/- from HDFC Bank which was in his account as per Ex. P33 the pass book which was the balance consideration payable to the defendants and in fact, he issued the legal notice on 19.3.2005 bringing to the notice of the defendants that he was ready and willing to perform his part of the contract and calling upon the defendants to perform their part of the contract, an untenable reply was sent to the legal notice. In the rejoinder he reiterated his stand of going to the Sub-Registrar''s office but, the defendants evaded to perform their part of contract. Immediately thereafter, without any loss of time, on 27.5.2005, the present suit is filed. These undisputed facts which are borne out from the records clearly demonstrate that the plaintiff was ready and willing to perform his part of contract prior to 31.3.2005 and on subsequent dates. In support of his contention, plaintiff has produced pass book and also loan sanction letter as per Ex. P32 dated 16.3.2005. Ex. P32 discloses that the plaintiff has applied for loan on 10.3.2005 at Syndicate Bank, Banashankari 2nd Stage, Bangalore and an amount of Rs. 11 lakhs was sanctioned on 16.3.2005. The trial Court, on appreciating the same, has rightly answered that issue in his favour.

Insofar as invoking Section 20 is concerned, he submits, the evidence on record shows, first defendant died only on 25.9.2010, 5 years after the date of agreement. Probably, if the defendant had completed the sale transaction, the money would have been with her to meet the medical expenses. If really, it was necessary, she could have taken care of her son-in-law. Therefore, those factors which are subsequent to the date, Section 20 will be not be of much aid to the defendants. On the contrary, the evidence on record discloses, though plaintiff was not expected to pay any additional amount before registration, on the request made by defendants a sum of Rs. 1 lakh was paid to enable the defendants to purchase the property which is mentioned in the schedule to the written statement on 15.2.2015. Therefore, with the sale consideration, they could have made out an alternative arrangement however, it is clear from the evidence of DW.2 that they did not complete the sale transaction because, there is hike in the property value, hence, they did not want to sell the property though they entered into agreement as they were in financial torture as on the date of execution of Ex. P1. Therefore, he submits, after getting over the financial torture, they could have got the sale deed in their favour but, they changed their mind and they sought higher price contrary to the terms of the agreement. Therefore, the specific performance being discretionary relief, the defendants wanted to invoke Sec. 20 should also come to the Court with clean hands. The aforesaid conduct of the defendants disentitle them from the benefit of Section 20 of the Specific Relief Act and rightly the trial Court has declined to grant the relief under Section 20 of the Act.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:

"(a) Whether the finding of the trial Court that the plaintiff was ready and willing to perform his part of contract is not supported by any legal evidence on record?

(b) Whether the trial Court has committed a serious error in not exercising the discretion in favour of the defendants as stipulated in Section 20 of the Specific Relief Act and declined to grant decree of specific performance?"

POINT No. A:

From the material on record, it is clear that the execution of the agreement of sale dated 31.12.2004 by the 1st defendant in favour of the plaintiff is not in dispute. It is also not in dispute that the husband of the 1st defendant has affixed his signature to the said agreement as a consenting witness. It is also not in dispute that the 3rd defendant - daughter of the 1st defendant who is examined as DW2 in the case has also affixed her signature as a witness. In other words, the agreement is not in dispute. The agreement recites that the 1st defendant decided to sell the schedule property for family and legal necessities. The said agreement is marked as Ex. P.1. The total consideration agreed for the sale is Rs. 27.00 lakhs. A sum of Rs. 1.00 lakh was paid by way of a cheque as earnest money and advance which cheque has been duly encashed. It was also agreed between the parties that in view of lack of funds, 1st defendant expressed her inability to pay the development/betterment charges of about Rs. 5,15,000/- to Sri Balaji Housing Building Cooperative Society Limited as demanded by them to get the absolute sale deed executed in favour of the 1st defendant. Therefore, 1st defendant requested the plaintiff and authorized the plaintiff to pay the said amount on her behalf to the society directly in her name, obtain the receipt of the same to enable the society to register the absolute sale deed in favour of the 1st defendant so that thereafter, 1st defendant could execute and register the sale deed in favour of the plaintiff. It was mutually agreed that the amount to be paid by the plaintiff to the society could be deducted out of the sale consideration payable to the 1st defendant. It is not in dispute the plaintiff paid a sum of Rs. 5,25,000/- to discharge the debt due by the 1st defendant to the society. It is in pursuance of the said payment, on 26.2.2005 the society executed a registered sale deed in favour of the 1st defendant. As per the terms of the agreement, the 1st defendant shall deliver all the original title deeds relating to the schedule property to the plaintiff within a week from the date of the agreement. Similarly, it was agreed that the delivery of vacant possession of the schedule property is an essential condition precedent to the completion of sale. The 1st defendant shall deliver vacant possession of the schedule property to the plaintiff on receipt of the balance sale consideration on the date of registration of the sale deed. 1st defendant also agreed to bare and pay the taxes, rates and cesses and other outgoings relating to the schedule property up-to-the date of execution and registration of absolute sale deed. 1st defendant agreed to get the katha transferred to the name of the plaintiff without any problem or inconvenience. The period agreed upon for completion of the sale transaction was three months from the date of the agreement. The evidence of PW1 discloses after the execution of the sale deed by the society in favour of the 1st defendant on 26.2.2005, the plaintiff was ready to pay the balance sale consideration. The balance sale consideration payable was Rs. 19,75,000/-. In order to demonstrate that the plaintiff was ready with the balance sale consideration, the plaintiff has produced Ex. P.32 - the letter sanctioned by the Syndicate Bank dated 16.3.2005 which showed a sum of Rs. 11.00 lakhs was sanctioned. The plaintiff and his wife were holding shares and on the basis of the said shares, they availed loan upto a maximum amount of Rs. 19,85,000/- during 1.3.2005 to 15.4.2005 as is clear from Ex. P.33. Similarly, Ex. P. 34 is yet another communication from HDFC Bank showing that the plaintiff has availed loan against shares upto the maximum amount of Rs. 7,30,000/- during 1.3.2005 to 15.4.2005. Ex. P.31 is the statement for the period from 1.1.2005 to 31.3.2005 of the plaintiff and his wife who have a joint account in Oriental Bank of Commerce which showed that a sum of Rs. 3,14,880/- was available in their account on 9.2.2005. In the cross examination, PW1 has stated all the loans narrated in Exs.P.33 and 34 were availed by him and utilized and it was only for the purchase of the property. The said loan amount was reserved to complete this contract of sale. Even on the date he was giving evidence, he asserted that he was having the said amount in his account. Only he has spent little part of the amount to meet the expenses to celebrate the marriage of his daughter. The remaining amount is in fixed deposit. The loan was availed on overdraft. Hence, there is no question of discharging the loan by any of the modes of finance. He has denied the suggestion that the amount of loan was obtained only for his trading business in shares but not to purchase and conclude the contract of sale. He has asserted that he had withdrawn the amount as on the date when he went to the office of the Sub-registrar to get the original sale deed for registration. He has not purchased the DD on that day to pay the defendant. He has deposed that he had carried the amount on that day.

From the aforesaid cross-examination it is clear, obtaining of loan by the plaintiff is not disputed. On the contrary, suggestion was the said loan was obtained for his trading in business in shares in respect of which no evidence is adduced. Therefore, from the aforesaid documentary evidence, it is proved and it is clear that roughly about Rs. 40.00 lakhs was available with him to pay the balance sale consideration of Rs. 19,85,000/- + stamp duty and registration charges. This evidence shows that plaintiff was ready with the balance sale consideration. In order to demonstrate that he was willing to pay the balance sale consideration, the plaintiff relies on the legal notice issued by him on 19.3.2005 well before 31.3.2005 - the date fixed for completion of the sale transaction. The said legal notice is marked as Ex. P.3. In the said legal notice, the fact that he was ready and willing to pay the remaining sale consideration is clearly set-out. It is also mentioned the 1st defendant demanded a sum of Rs. 1.00 lakh from the plaintiff so as to enable him to get alternate accommodation. Accordingly, the plaintiff paid a sum of Rs. 1.00 lakh by each which amount has been duly acknowledged by the 1st defendant in writing on the last page of the agreement by way of receipt dated 19.2.2005. It was pointed out the 1st defendant is under an obligation to deliver vacant possession of the schedule property after the registration but, it was stated that he has not vacated the premises. It was also brought to their notice that he has obtained necessary financial assistance from the bank and even the bank has also granted the loan which has been sought for and it is awaiting the green signal from the plaintiff to release the amount for the completion of the sale transaction. As the 1st defendant is avoiding to complete the sale transaction, the 1st defendant was called upon to appear before the Sub-registrar, Kengeri, Bangalore South Taluk on 30.3.2005 at 11.00 AM without fail and execute a registered sale deed after receipt of the balance sale consideration and hand-over vacant possession of the schedule property. The said notice was duly served on the 1st defendant. She sent a reply on 1.4.2005 which is marked as Ex. P.4 admitting the agreement of sale, acknowledging payment of Rs. 1.00 lakh paid under the agreement, the amount paid to the society and yet another amount of Rs. 1.00 lakh paid to getting an alternative accommodation. For the first time, it was stated in the reply that 1st defendant does not know whether plaintiff is ready and willing to perform his part of the obligation before three months from 31.12.2004. The plaintiff was accused that he has not done his part of the obligation. Thereafter, it is stated that the terms of the agreement is concerned, they are unilateral and not binding on the 1st defendant. She is ignorant of the terms. She was not made known of the terms. It is pointed out that it is agreed that the development charges has to be paid by the plaintiff. Exclusive of the development charges, the plaintiff has to pay the agreed sale consideration, totally a new case contrary to the agreed terms. It is further stated that the 1st defendant has entered into an agreement with one Sri Prakash Raju to purchase a house property at Chamrajpet on the assurance of the plaintiff. As the plaintiff has not performed his part of the contract, she is unable to perform her part of the contract in respect of the agreement between her and Prakash Raju. Thereafter, asserting that she is ready and willing to perform her part of the contract, 6.4.2005 was fixed as the date on which the plaintiff has to pay the balance sale consideration and take the sale deed and in the event, it is not done, the agreement stands cancelled. From the tenor of the said reply notice, it is clear that 1st defendant wanted the plaintiff to pay the balance sale consideration excluding Rs. 5,25,000/- paid to the society as development charges, otherwise she was not willing to execute the sale deed. Thus, 6.4.2005 is fixed as the date before which the sale deed is executed. There is no whisper in the reply notice that whether she has obtained the katha of the property, whether she has paid tax as due to the property as on 31.3.2004 and whether the property is vacant to handover the same to the plaintiff. In fact, in the written statement at paragraph 7, has stated when the 1st defendant entered into an agreement with Prakash Raju, she shifted her residence to the written statement schedule property. As the plaintiff failed to pay the balance sale amount and register the sale deed, the said agreement was cancelled and the house was vacated and once again the defendant occupied the suit schedule property. The said plea is conspicuously missing in the reply notice. She did not say in the reply notice that after entering into an agreement with Prakash Raju in respect of the house property at Chamarajpet, she has shifted her residence and the schedule property is vacant and she is ready to handover vacant possession. As is clear from the terms of the agreement, the sale transaction has to be completed within three months. At the time of registration, the balance sale consideration had to be paid by the plaintiff and defendant in turn had to deliver possession immediately thereafter. But prior to the registration, defendant shall get the katha transferred to her name, pay up-to-date tax and handover the said document. Though, plaintiff was ready with the balance sale consideration and was willing to part with the balance sale consideration in terms of the agreement, the payment would arise only after the defendant obtains the katha endorsement, pays up-to-date tax, execute the sale deed and ready to deliver possession of the property. The plaintiff after receipt of the reply, has sent a rejoinder. The evidence of 2nd defendant discloses that till 06.04.2005 - the day fixed for registration of the sale deed by the 1st defendant, the katha of the schedule property has not been changed in the name of the 1st defendant. To the said reply, he plaintiff has sent a rejoinder as per Ex. P. 5. In the said reply, he reiterated the fact that the katha of the schedule property is not ready, vacant possession is not available, the 1st defendant has not secured any alternative accommodation. Again, it was stated the plaintiff is ready and willing to perform his part of the contract provided the 1st defendant furnished the katha extract, tax paid receipts immediately and also keep the premises vacant, then the plaintiff at the earliest point of time would pay the balance sale consideration in terms of the agreement and take the sale deed in his favour. Therefore, the material on record clearly establishes that plaintiff was ready and willing to perform his part of the contract, he was ready with the balance sale consideration and it demonstrates his willingness by sending a legal notice and the rejoinder.

The factum of readiness with the balance sale consideration is clearly demonstrated by Exs.P.32, 33 and 34, which has been amply proved. Relying on these documents, the trial Court has rightly held the plaintiff has proved his readiness and willingness to perform his part of the contract. The said finding of the trial Court is based on legal evidence.

In fact, learned Sr. counsel for the appellant in support of his contention relied on the Judgment of the Apex Court in Bal Krishna and Another Vs. Bhagwan Das (Dead) and Others, which reiterates the said legal position that in a suit for specific performance of the contract, the averment in the plaint to the effect that plaintiff is ready and willing to perform his part is mandatory. In the instant case, in more than one place in the plaint, the plaintiff has pleaded his readiness and willingness and by producing acceptable evidence, he has demonstrated his readiness and willingness before the Court by adducing cogent evidence in support of the said pleas.

Similarly, the Apex Court in Narinder Kumar Malik Vs. Surinder Kumar Malik, has held that burden of proving readiness and willingness to perform his part of the contract is on the plaintiff. Mere showing of readiness and willingness would not discharge the obligation unless it is shown to be real or genuine. In the instant case, the burden of proving the readiness and willingness was placed on the plaintiff by framing an appropriate issue. Plaintiff to discharge the said burden, has stepped into the witness box, produced documentary evidence and demonstrated that at the relevant point of time i.e., prior to the three months period fixed for completion of the transaction, he could have raised an amount of Rs. 40.00 lakhs whereas hardly the consideration required was about Rs. 19,75,000/-. Therefore, the said judgment is of no assistance in supporting the case of the defendants. In that view of the matter, we do not see any substance in any of the contentions urged on behalf of the defendants on this issue.

POINT No. B

Section 20 of the Specific Relief Act provides that specific relief being a discretionary relief, the Court has the discretion in the matter of decreeing specific performance. It 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, guided by judicial principles and capable of correction by a court of appeal. Sub-section (2) of Section 20 sets out the case in which the Court may properly exercise discretion not to decree specific performance. One such case is, 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. Nowhere in the written statement nor in the evidence, the defendants have whispered that the plaintiff got an unfair advantage over the defendant while entering into the agreement. On the contrary, the 2nd defendant has categorically stated as under:

"Witness volunteers that on the date of execution of Ex. P. 1, we were in financial trouble. As such, we have entered into the sale agreement with the plaintiff. Now there is a hike in the property. Hence, we do not want to sell the property to him".

It is also stated by the very defendants that for medical expenses and also to discharge the debts, we got executed Ex. P.1. It is true to suggest that much before 26.2.2005, when the site was purchased from the society, we were under the family risk to lead life. It is true to suggest that to get release the mortgage from the society, we were much under stress for finance. Therefore, as 1st defendant was in serious financial troubles, if the amount due to the society had not been paid, she would have lost her right to the property. To meet other commitments of the family, they have entered into an agreement. The consideration agreed upon is the market price. By extending a helping hand by entering into the agreement, paying the money due to the society and getting a sale deed in favour of the 1st defendant, the plaintiff did not take any unfair advantage over the defendants as contemplated in Clause (a) of Sub-section 2 of Section 20 . On the contrary, it is the defendants who took advantage of the assistance of the plaintiff in getting the papers of the property cleared and once the property was free from encumbrances, they went back on their promise because there was hike in the market value of the property and therefore, did not want to execute the sale deed.

Sub-clause (b) of Section 2 deals with the situation where the performance of 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. No such plea is found in the written statement nor in the additional written statement filed by the legal representatives of the deceased 1st defendant. On the contrary, the legal representatives have taken a stand quite inconsistent with the stand taken by their mother which they were not entitled to take in law at all. In the reply, for the first time, they contend the schedule property was purchased and improved by the joint efforts of the legal representatives of the 1st defendant. The sons of the 1st defendant were all earning members, contributed the entire amount for the purpose of purchase and improvement of the suit schedule property. 1st defendant is only a name vendor. 1st defendant has no absolute right to enter into the agreement of sale. This plea in the additional written statement is inconsistent with the stand taken by the 1st defendant in her written statement. It is contrary to the recitals in the sale agreement which came into existence at an undisputed point of time, the execution of which is not disputed. It is to be remembered now that 1st defendant is dead. 2nd defendant - her husband and 3rd defendant - her daughter are witnesses to the said agreement. They have not put forth any such pleas.

Yet another circumstance which contemplated in Section 20 is where the defendant has entered into contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. As set-out in detail the defendants were in trouble, they were in financial distress, they had to get cleared the titles of the property to the name of the 1st defendant. Therefore, they needed money for which they entered into contract. Plaintiff believing their version agreed to pay Rs. 27.00 lakhs advance, paid Rs. 5,25,000/- to the society and got the property free from encumbrances, paid one more lakh to secure an alternative accommodation which was utilized by the 1st defendant to enter into an agreement to purchase the house property in Chamarajpet for her residence. Thereafter, he obtained loan of Rs. 11.00 lakhs from Syndicate bank, he obtained loan from HDFC Bank on the basis of shares which he possessed to the extent of about Rs. 26.00 lakhs. Money was kept in Overdraft, to be readily available for payment and therefore, if the specific performance is denied to the plaintiff, virtually it would ruin him. On the contrary, it would be inequitable to decline a decree for specific performance as the defendants had the benefit of substantial portion of the sale consideration out of which they were able to save the property. It is only because the market price went up, they want to rescind the contract of executing the sale deed. They have entered into a solemn contract. Explanation 1 of Section 10 categorically states unless and until the contrary is proved the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and therefore, it is inequitable to refuse to grant specific performance when plaintiff was ready and willing to perform his part of the contract, ready with the balance sale consideration and has performed all the terms of the agreement. Therefore, the argument that the trial Court did not properly exercise its discretion under Section 20 of the Specific Relief Act is without any substance.

The trial Court was justified in exercising the discretion and in granting the decree for specific performance. In the light of the above discussions, we do not see any merit in this appeal. Hence, we pass the following:

Appeal is dismissed. No order as to costs.