M. Rajendran vs M. Shanmugam

S. Palanivelu, J.—Suit is filed for Specific Performance, costs and other reliefs.

The following are the brief allegations contained in the Plaint:

2(a). The Suit properties were allotted to the First Defendant''s father Muthuswamy Gounder under a Partition Deed dated 11.6.1973, who died leaving behind mother, widow, daughter and a son, the First Defendant. Representing that the 1st Defendant is the owner of the Suit property, the Plaintiffs along with 2nd Defendant wanted to purchase the Suit properties and the Agreement was prepared on 29.6.1987 and the price was fixed at Rs.3,25,000/- per acre; that a sum of Rs.50,000/- was paid by the Plaintiffs and advance and part of sale consideration to the First Defendant on the date of Agreement itself and that 1 Vi years was fixed as time for performance. Though time was mentioned, it was not intend to be the essence of the contract.

2(b). Even though the 2nd Defendant agreed initially to pay advance and also sign in the Agreement, he did not do so and he did not pay any amount as advance. Therefore, he has no rights under the Agreement and since his name has been mentioned in the Agreement and hence, he has been added as a formal party to the Suit. At the time of Agreement, the Plaintiffs were assured by the First Defendant that the properties were encumbrance free and he is the absolute owner. It was also specifically agreed in the Agreement that in case any encumbrance arises, the Agreement would be in force till clearance of such encumbrance. In the meantime, one Saradhambal, named sister of the First Defendant filed a Suit for partition in O.S. No.223 of 1987 on the file of the Sub-Court, Erode, claiming l/8th share in the properties. As agreed under the Agreement, the First Defendant requested the Plaintiffs to wait till disposal of the Suit so that encumbrance can be cleared to effect sale free of encumbrance. The First Defendant also requested the Plaintiffs to pay further amount as advance and part of sale consideration and promised to execute the Sale Deed after disposal of the Suit filed by Saradhambal. On 16.5.1991, the First Defendant received a further sum of Rs.20,000/-, then on 19.4.1994, the First Defendant received a further sum of Rs.10,000/- from the Plaintiffs towards part of sale price and made an endorsement on the back of the Agreement. Again on 20.11.1996, he received a sum of Rs.1,00,000/- from the Plaintiffs towards balance sale price and executed a receipt in favour of the Plaintiffs. In the meantime, O.S. No.223 of 1987 was taken up on Appeal in the High Court in S.A. No.719 of 1994 and was pending. Expressing his inability to execute the Sale Deed for the entire Suit properties and First Defendant requested the Plaintiffs for some alternative. The time for performance of the Agreement was extended upto December 2001 and in the event of the case not being disposed of till that period, the First Defendant agreed to execute a Sale Deed in respect of 5/8th share of the properties. Based on the same, the First Defendant received a further sum of Rs.2,00,000/- from the Plaintiffs on 19.8.1999, thus the First Defendant has received totally a sum of Rs.3,80,000/- from the Plaintiffs as advance and part of sale consideration. The Plaintiffs are always ready and willing to get the Sale Deed after paying the balance of sale consideration.

2(c). But the Appeal pending in High Court, Chennai in S.A. No.719 of 1994 was not disposed off till December 2001, the Plaintiffs called upon the First Defendant to execute a Sale Deed in respect of 5/8th share in the Suit properties. But the First Defendant was evading under one pretext or other. Therefore, the Plaintiffs caused a Notice to the First Defendant on 16.5.2002. The First Defendant received the Notice and caused a reply dated 27.5.2002 with many untrue allegations and sought for Xerox copies of the endorsement while admitting execution of the Agreement dated 29.6.1987. The Plaintiffs caused a re-joinder sending Xerox copy of the Agreement dated 29.6.1987 with endorsements and receipt. The First Defendant caused a re-joinder denying the endorsements and execution of receipt and had stated that he sold the properties to one R. Deivasigamani, Ramaswamy Gounder and one Angammal Neither the date of the alleged sale nor the full particulars of the alleged purchase were given in the reply.

2(d). Thereafter the Plaintiffs applied for Encumbrance Certificate and came to know that the First Defendant had executed two nominal Sale Deeds in favour one Deivasigamani on 22.12.2000 in respect of 1.37 acres and an extent of 2.13''/2 acres to one Ramsamy Gounder on 26.12.2000. The Plaintiffs have also applied and obtained registration copies of the alleged Sale Deeds. From the copy document, the Plaintiffs came to know that the alleged transferees are none other than the father-in-law and brother-in-law of the First Defendant. They are Defendants 3 & 4 in the Suit. The Defendants 3 & 4 are well aware of the Agreement entered into between the Plaintiffs and the First Defendant and the alleged sales in favour of the Defendants 3 & 4 are only make believe as and terminal ones. The sales will not clothe any right to the Defendants 3 & 4 over the Suit properties. D3 and D4 are not bona fide purchasers and the alleged sales will not bind the Plaintiffs right over the Suit property. Since the First Defendant agreed to execute the Sale Deed in respect of undisputed 5/8th share in the Suit properties, the Suit is filed in respect of 5/8th share. In any event of this Honourable Court holding that the Plaintiffs are not entitled to Specific Performance they are entitled to refund of the advance with interest at 12 percent per annum.

2(e). The Plaintiffs therefore pray that this Court may be pleased to pass a decree directing the Defendants 1, 3, & 4 to execute and register Sale Deed in respect of 5/8th at share of the Suit properties in favour of the Plaintiffs at their costs after receiving the balance of the sale consideration from the Plaintiffs free of all encumbrance within a time to be specified by this Court; In case of non-compliance by the Defendants 1, 3 & 4, executing the registered Sale Deed respecting the Suit property in favour of the Plaintiffs free of all encumbrance by this Honourable Court itself on behalf of the Defendants 1, 3 & 4; directing the delivery of possession to the Plaintiffs (or) in the alternative directing the First Defendant to pay Plaintiffs a sum of Rs.5,28,833/- with subsequent interest from the date of Suit till date realisation and with costs.

In the Written Statement filed by the 1st Defendant, it is averred as under:

3(a). The allotment of Suit properties of the father of this Defendant is admitted and he died leaving behind this Defendant and others are also admitted. Even at the time of the Agreement the Plaintiffs were aware of this fact. They were also aware of the legal position thereof. It is not true that this Defendant ever represented the Plaintiffs that the entire properties belonged to him absolutely and even in case such a representation was made by this Defendant it cannot be accepted that the Plaintiffs concurred with this Defendant and acted upon it. It is not as if the Plaintiffs and this Defendant are living in far away places and the Suit properties are also within a short distance. Further the Plaintiffs and this Defendant family are not total strangers which may give chance for believing the alleged representation by this Defendant. Even on 29.6.1987 the Plaintiffs were aware of all risks involved in the transaction and in fact they wanted to calculate it to risk.

3(b). This Defendant wanted to sell the Suit properties as he was in dire necessity at that time. The Plaintiffs in fact believed that they would be able to tackle the Defendant''s sister once an Agreement was entered into with this Defendant, who is the major share holder. Hence, the allegations that this Defendant assured that he was the absolute owner is not true. Besides the risk for partition the properties were Encumbrance Free and as set forth already the Plaintiffs were also aware of the same. Only on knowing this risk involved in the transaction the 2nd Defendant decided not to venture upon the further course. This Defendant admits the signing of the Agreement on 29.6.1987 but denies all the signatures alleged to have been made by this Defendant on the reverse of Agreement after receiving the alleged payments. It is stoutly denied by this Defendant that any such payment was received by him and acknowledged by him. It is impossible even after filing of the Suit O.S. No.223/1987 the Plaintiffs being real estate businessmen would have parted with so much of money that too after knowing that the claim for partition has come into force.

3(c). The Plaintiffs are well versed with any kind of litigation in the Court, excepting the signature on 29.6.1987 all other signatures found on the back of the Agreement alleged to have been signed by this Defendant and the are on the receipt alleged to have been executed by this Defendant are rank forgery. This Defendant in spite of this Written Statement if no steps are taken by the Plaintiffs craves the leave of this honorable Court to take steps to prove the forgery by sending all of them to the forensic experts. The Plaintiffs have caused the said forgery to have unlawful gains and with mala fide intentions for creation course faction for the present Suit.

3(d). The time limit for execution of the Sale Deed was fixed at 1/2 years because the Plaintiffs felt that having regard to the speed in which the sites was being sold in general there will not be any difficulty for them to push through their business for high prices for the sites and to have high margin of profit in the deal. The Plaintiffs wanted to speculate further more as they expected huge profit and in anticipation of the same they had been postponing the sale as long as they could, At the end of the lapse of time of 11/2 years this Defendant insisted and demanded the sale to be completed before the time limit. At that time there was a demand for Rs.4,50,000/- per acre an excess of Rs.1,80,000/- per acre this Defendant was not able to sell the properties even though the parties ware ready with an offer for Rs.4,50,000/- per acre. Thus by creating and atmosphere under which the Plaintiffs were also not willing to perform their part of the contract even though this Defendant was ready and at the same time this Defendant was also not in a position to sell the properties at the rate of Rs. 4,50,000/- per acre even though third parties are ready to purchase the same the Plaintiffs caused a loss of Rs.1,80,000/- per acre to this Defendant. Hence, the Plaintiffs themselves have to reimburse this Defendant to make good of the loss caused to him.

3(e). It is not true that this Defendant received any sum at any point of time excepting on the date of any Agreement namely 29.6.1987 towards the advance or part of the price money as consideration. The signatures of this Defendant forged by the Plaintiffs not only to unlawful gain but also to gain the time so as to avoid the period of limitation the Suit is badly barred by limitation. This Defendant never acquiesced extension of time at any point of time beyond the period of 1-1/2 years mentioned in the Agreement.

3(f). It is true that this Defendant has sold away his properties. He was forced to do so only after finding that the Plaintiffs have miserably failed to perform their part of contract. Since subsequently the real estate business showed downward trend the Plaintiffs probably felt that the expected rate may not be forth coming for the Suit properties they showed a supine indifference to perform their part of contract. This Defendant, who had incurred a heavy loss of Rs.1,80,000/- per acre did not like to incur any further loss and had to meet his necessity. The Plaintiffs at that time not only not willing to purchase the properties but started to play foul games by sending wrong signals to the persons, who came forward to purchase the properties by spreading false rumours that they were the valid Agreement holder and the Agreement was in force, thereby making further loss to this Defendant. As many of the proposals were falling though this Defendant had to sell the properties as his family was in need of money. At lost he found the purchasers only in the present persons who alone were ready to come forward to purchase the Suit properties form this Defendant. The Sale Deeds executed by this Defendant 22.12.2000 and 26.12.2000 are true and genuine. The Plaintiffs were also aware of the sales taken place on the said dates. They ever tried to stall the same but they failed in their attempts as they were not able to deceive the purchase. Since the deceptive rumors by the Plaintiffs were playing havoc this Defendant had no other alternative but to find some person.

3(g). Time was the essence of the contract and that was why unusual time for 18 months was fixed. The Plaintiffs wanted to gain time over and above the 1/2 years and the same was turned down by this Defendant. It is not correct to state that the time was not the essence of the contract in this case. The said allegation is traversed with a view to save limitation. The nature of the endorsements alleged to have been made by this Defendant will also make it clear that the endorsements are created for the purpose of limitation. Hence, this Honourable Court may kindly be pleased to dismiss the Suit with costs.

The following are the contents available in the Written Statement filed by the 3rd and 4th Defendants:

4(a). These Defendants deny all the allegations levelled against them and the two Sale Deeds dated 22.12.2000 and 26.12.2000. Ever since the date of the said sales they are in possession and enjoyment of the Suit properties on their own rights as the absolute owner of the properties purchased by them under valid Sale Deeds.

4(b). In fact the Plaintiffs and their agents had been descending and discouraging many people who offered to purchase the Suit properties and consequently many of them backed out from the transaction. Since every person, who came forward to purchase the property and the First Defendant was in processing needs for money, these Defendants came forward to purchase the same for valuable consideration. These Defendants paid only a legitimate price as by the time when they purchased the Suit property the market value had fell down from the rate in the year 1987.

4(c). The Plaintiffs are not strangers and in fact they are related to the First Defendant and these Defendants. The law forbid to anybody from raising any question regarding the sale in view of the Benami Transaction Prohibition Act. Further since these Defendants are the bona fide purchasers and they could not be prevented by the Plaintiff in their attempts to discourage these Defendants they have come forward with the present Suit with a view to harass them. There was no interest passed on under the Agreement to the properties to the Plaintiffs they are forbidden under law to question the right of these Defendants. After all the prayer for Specific Performance is only a discretionary relief and many of the Specific Performance prayers have been turned down by the Apex Court. These Defendants are unnecessary parties to this Suit. Hence, this Court kindly be pleased to dismiss the Suit with costs.

After scrutiny of pleadings, oral evidence and exhibits in the light of the proceedings, the learned Additional District Judge, Erode passed a Decree for refund of advance payable to the Plaintiffs by the First Defendant, refusing to grant Decree for Specific Performance of contract. Aggrieved with the said judgment, the Plaintiffs arc before this Court with this Appeal.

The following points have arisen for consideration:

(1) Whether Exs.A2 to A5 are forged endorsements and receipt as pleaded by the First Defendant ?

(2) Whether time is essence of contract ?

(3) Whether the Plaintiffs were ready and willing to perform their part of contract ?

(4) Whether the Plaintiffs are entitled to Specific Performance of contract ?

(5) To what relief are the parties entitled to ? Point No.1:

The Suit property belongs to First Defendant. Even though the Second Defendant agreed initially to pay advance, he did not do so and he did not pay any amount as advance. Hence, he has no right under the Agreement. The First Defendant agreed to sell the Suit property to the Plaintiffs for a sum of Rs.73,25,000/- per acre and had received a sum of Rs.750,000/- as advance. He also executed Ex.A1-Sale Agreement on 29.06.1987 in favour of the Plaintiffs. It is stated in the Plaint that one Saradhambal, the sister of the First Defendant filed a Suit for partition praying for 1/8th share in the Suit properties and since the Suit was pending in Fast Track Court, he requested the Plaintiffs to wait till disposal of the Suit and in the meantime, O.S. No.223 of 1987 was taken up on Appeal in High Court in S.A. No.719 of 1994 and was pending. Expressing his inability to execute the Sale Deed for the entire Suit properties, the First Defendant agreed to execute Sale Deed in respect of 5/8th share of the properties and in the meanwhile received the advance amount on the following dates -

1

On 16.5.1991

Rs.20,000/-

2

On 19.4.1994

Rs.10,000/-

3

On 20.11.1996

Rs.71,00,000/-

by means of endorsements on the reverse of the Agreement-Ex.A1 and on 20.11.1996 he also received a sum of Rs.1,00,000/- by passing a receipt.

On 19.08.1999 a further sum of Rs.2,00,000/- was also received by the 1st Defendant from the Plaintiffs The receipt was marked as Ex.A4. The endorsements on 16.5.1991, 19.4.1994 and 19.8.1999 have been marked as Exs.A2, A3 & A5 for receipt of Rs.20,000/-, Rs.10,000/-, and Rs.2,00,000/- respectively. Ex.A4 is the receipt passed by the First Defendant separately for receipt of Rs.1,00,000/- on 20.11.1996. The First Defendant has taken a defence in the Written Statement that he did not receive any advance amounts as stated by the Plaintiffs on various dates and the endorsements in Exs.A2, A3, A5 & Ex.A4 are not signed by him, that the signatures found thereon do not belong to him, that the Plaintiffs have forged his signatures to gain time so as to avoid period of limitation and that his signature found in Ex. A2 to A5 are fabricated.

Even though First Defendant pleaded in his Written Statement as above and stated as such in his proof Affidavit for his chief-examination, in the cross-examination he has admitted that on 26.3.1992 he received a sum of Rs.1,00,000/- and put his signature in the receipt. Hence, the Court has to see whether Exs.A2, A3 & A5 have been proved to be endorsements made by the First Defendant. PWs.2 & 4 arc the witnesses who signed as witnesses in Exs.A3 & A5 respectively. They speak about the receipt of advance amount by the First Defendant from the Plaintiff and the fact of their signing as witnesses. In the cross-examination, no motive was attributed to them for deposing against 1st Defendant. Their evidence would indicate that Ex.A3 & A5 are genuine. Moreover Ex.A2 to A5 were referred to the Handwriting Expert to find out whether the signatures available in those documents belong to First Defendant. PW5-Handwriting Expert is working as Assistant Director in Handwriting Expert Division in Forensic Science Laboratory'' at Chennai. He has given a report Ex.C1 with the positive finding about the signatures stamped and marked as A1 to A8 also wrote the signatures similarly stamped and marked Q1 and Q2. He was examined as PW.5. His firm opinion is that the disputed signatures were put by the First Defendant. There is no material to reject his opinion. In this context, it has to be necessary observed that Exs.A2 to A5 bear the signatures of First Defendant and they are not fabricated. In view of the above, the point is answered in the negative.

Point Nos. 2 to 5:

Adverting to the material recitals contained in Ex.A1, the Plaintiffs had to pay balance sale price to the First Defendant within 1-1/2 years and to get the Sale Deed executed. In case, if the Plaintiffs were ready to pay the amount and if the execution of Sale Deed is delayed by the First Defendant, then the Plaintiffs had to deposit the sale price to the Court and they can take possession of the property through Court and the First Defendant would be liable for the costs. The possession of the land was entrusted to the Plaintiffs since they planned to sell the same as house sites. As the Plaintiffs proposed to sell as house sites, the First Defendant might execute Sale Deeds either to any person or same person, on a single occasion or various occasions and then and there he had to receive the amount from Plaintiffs and to pass receipts therefor. If there were any acquisition by the Government or any other category of transaction affecting the Suit property the First Defendant was responsible to settle those payments till settling the last amount if any, the Sale Agreement would be in force.

One cannot fix time frame for settling the issues which would arise on account of acquisition by the Government or any other transactions which affect the property. Even though the time for execution of Sale Deed is fixed as 18 months in Ex.A1, in view of the above said recitals, the parties have agreed to treat the time as not essence of contract. If happened, the above said events may consume time beyond 18 months.

Some other instances would indicate that the parties are not particular that the execution of Sale Deed should be within 18 months, by allowing the time to pass beyond 18 months so as to make the time as not essence of contract. After the execution of Ex.A1, the First Defendant on various occasions received advance amounts on different dates by executing Exs.A2, A3 & A5 by endorsements and passing Ex.A4 receipt. The date of agreement is 29.6.1987. If so, the parties intended to perform their part of contract with 18 months, the Sale Deed should have been executed by December 1998. But the First Defendant received advance amount on 16.5.1991, 19.4.1994, 20.11.1996 and 19.8.1999 by means of Exs.A2 to A5. In Ex.A.5 in addition to the acknowledgment of receipt of 72,00,000/- as advance, he also mentioned that if the case filed by his sister Saradambal could not be disposed of before 2001, he would agree to sell his 5/8 share in the property. In this context, the Court has to ascertain whether the long delay caused in this regard could be attributed to the Plaintiffs.

Ex.A1-Agreement came to existence on 29.6.1987, the Suit was filed by the sister and mother of First Defendant in the year 1987. The Suit Number is O.S. No.223/1987. From Ex.A.5 it is understood that the Suit was disposed of and Appeal was pending before the High Court. Hence, the First Defendant had requested the Plaintiffs not to initiate any legal action and if the Appeal could not be disposed of within December 2001, he would execute Sale Deed as regards his 5/8th share. In the chief-examination, PW1 has stated that since his sister filed a Suit for Partition for 1/8th share in the property, the First Defendant requested the Plaintiffs to wait till the Suit was disposed of and they agreed. Even though the Suit was disposed of, since Appeal was pending before the High Court, then and there, First Defendant had been receiving various amounts as advance on various occasions. It is his further evidence that since the First Defendant did not intimate whether the Appeal in A.S. No.719 of 1994 was disposed of in the High Court, they sent Suit Notice-Ex.A6 on 16.5.2002 calling upon the First Defendant to execute the Sale Deed. Ex.A7 is the Reply Notice sent by the First Defendant for which the Plaintiffs sent rejoinder Ex.A8 and for that rejoinder, the First Defendant sent Reply Notice-Ex.A9 on 2.7.2002. The Plaint was presented by the Plaintiffs on 28.11.2002. Exchange of Notices between the parties was upto 2.7.2002. In this juncture, it has to be necessarily observed that the Plaintiffs have been ready and willing to perform their part of contract and the delay for performing their part could not be attributed to them.

Turning to the legal proposition governing this field, both the learned Senior Counsel would cite various authorities in support of their contentions. Mr. S. Parthasarathy learned Senior Counsel appearing for the Plaintiffs/Appellants would rely upon a judgment of the Honourable Supreme Court reported in Silvey and others v. A run Varghese and another, 2008 (3) MLJ 951 (SC) wherein Their Lordships have observed that the conduct of the Defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a Decree for Specific Performance. In this case on hand also, the First Defendant even though has taken a plea that Exs.A2 to A5 are forged, in his evidence he admitted his signatures in Ex.A4. Such a stand of the First Defendant would pave way for the Court to conclude that he is not bona fide. Subsequently this Court has also found that Exs.A2, A3 & A5 are genuine as established by the oral testimonies of PWs.2 & 3 and Hand Writing Expert Report. In this context the grant of relief of Specific Performance could be considered in favour of the Plaintiffs.

Mr. T.R. Rajagopalan, the learned Senior Counsel for the Respondents would contend that the Plaintiffs have not established that they have been ready and willing to perform their part of contract from the inception, that since the Plaintiffs were engaged in real estate business they have been waiting for the time for the prices to shoot up and hence they could not show their readiness and willingness to purchase the property, that since the Real Estate business showed downward trend, the Plaintiffs exposed supine indifference to perform their part of contract by means of which this Defendant had incurred a heavy loss of Rs. 1,18,000/- per acre and that the time was the essence of contract which could be seen from Ex.A1-Agreement of Sale limiting time for execution of Sale Deed within 18 months. In support of his contention he placed reliance upon a decision of Honourable Supreme Court in Situ Ram v. Radhey Shyam, 2008 (1) CTC 86.

"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the Specific Performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the Plaintiff entitles him to get the relief on perusal of the Plaint he should not be denied the relief. (See Aniglase Yohannan v. Ramlatha and Ors., 2005 (7) SCC 534)"

Referring to the above said decision, the learned Senior Counsel would contend that in the case on hand the Plaintiffs have not proved that from the beginning they have been ready and willing to perform their part of contract.

In Swarnam Ramachandran (Smt) and another v. Aravacode Chakungal Jayapalan, 2004 (5) CTC 369 : 2004 (8) SCC 689, the following observations have been made in the matter of time as essence of contract:

"Time is presumed not to be of the essence of the contract relating to immovable property, but it is of the essence in contracts of reconveyance or renewal of lease.

A vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract.

Whether time is of the essence is a question of fact and the real test is the intention of the parties. In cases where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. The intention can be ascertained from:

"(i) the express words used in the contract;

(ii) the nature of the property which forms the subject-matter of the contract;

(iii) the nature of the contract itself; and

(iv) the surrounding circumstances."

The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. That when the Plaintiff pleads that time was not of essence and the Defendant does not deny it by evidence, the Court is bound to accept the plea of the Plaintiff."

In Suryagandhi v. Lurduswamy, 2002 (4) CTC 31 : 2002 (3) MLJ 788, this Court has held as follows:

"It cannot be said that the Plaintiff has acted reasonably. Nine years and odd is not a reasonable time at all by all standards and the Plaintiff has to blame himself in keeping quiet for nine years and thereafter issuing a notice. Further, there is nothing to show that the Plaintiff has kept the contract alive for nine years except his assertion that he is in possession of the Suit property. The possession of the Plaintiff is not in terms of the Agreement to Sell, nor it is in part performance, but possession is that of a tenant, which commenced long prior to the Sale Agreement, the plea of part performance is untrue and false."

The Apex Court in K.S. Vidyanadan and others v. Vairavan, 1997 (1) CTC 628 : AIR 1997 SC 1751 has held as follows:

"In the instant case from the date of Agreement to Sell till the date of Suit Notice the purchaser was sitting quiet without taking any steps to perform his part of the contract under the Agreement though the Agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the vendors to execute the Sale Deed and deliver possession of the property. Further, the delay was coupled with substantial rise in prices - according to the vendors three times - between the date of Agreement and the date of Suit Notice. The delay has brought about a situation where it would be inequitable to give the relief of Specific Performance to the purchaser."

In Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others, AIR 1996 SC 2814(1), it is observed as follows:

"Under Section 20 of the Specific Relief Act, 1963, (for short "the Act") the decree for Specific Performance is in the discretion of the Court but the discretion should not be refused arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an Appellate Court.

It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and Specific Performance being equitable relief, must come to the Court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."

Guided by the principles contained in the above said authoritative judicial pronouncements, when the points of this case are approached, as it has been found out that the time is not essence of contract and that the Plaintiffs have shown their readiness, they are entitled for the equitable relief of Specific Performance of contract. The Trial Court has refused to grant the relief on flimsy reasons which arc not sustainable. Having found that they are entitled for refund of advance amount, the Trial Court should have granted the relief as prayed for in the Plaint as per the existing rights of the Plaintiffs. In such view of the matter, the Judgment and Decree passed by the Court below have to be set aside and they are accordingly set aside The Suit is decreed as prayed for granting Specific Performance of contract. The Appeal deserves to be allowed. These points are answered as indicated above.

In fine, the Appeal Suit is allowed with costs. A Decree is passed for Specific Performance of contract in the Suit directing the Defendants 1, 3 & 4 to execute and register Sale Deed in respect of 5/8 share of the Suit properties in favour of Plaintiffs after receiving the balance sale consideration. Time for deposit of balance sale consideration : 2 (two) months. Execution of Sale Deed by Defendants 1, 3 & 4 in 2 (two) months thereafter.