N. Saraswathi Ammal vs Jayaram Rao and 2 others

The Second Appeal arises out of the judgment of the V Additional Judge, City Civil Court, Madras, in A.S.No.292 of 1983 dated 25.1.1985,

confirming the judgment of the learned XI Assistant Judge, City Civil Court, Madras, in O.S.No.1996 of 1980, dated 24.2.1983. The plaintiff is

the appellant in the above Second Appeal.

The suit was filed for specific performance to direct the defendants to execute a sale deed in favour of the plaintiff in respect of the plaint

schedule mentioned property after the receipt of balance of sale consideration of Rs.4,000 and in default by the defendants on their behalf, a deed

of conveyance may be executed by the court, in favour of the plaintiff.

According to the plaintiff, the property belonged to the defendants and an agreement was entered into between the parties for the sale of the

properties to the plaintiff as evidenced by document dated 26.7.1973. The agreement provided that the sale consideration of the property was Rs.

18,000 and a sum of Rs.5,000 was paid by the plaintiff on the date of the agreement and it was agreed that the balance be paid to the defendants

before the completion of execution and registration of the sale deed. According to the plaintiff the document further provided that the defendants

should furnish the plaintiff the encumbrance certificate for the period from 1.1.73 to the date of agreement, namely, 26.7.73 and that the plaintiff

should get a clearance certificate from her Advocate with reference to the validity and conveying capacity of the defendants with reference to the

property and the plaintiff should also take steps to vacate the tenants in occupation of portions of the property. According to the plaintiff, pursuant

to the said agreement several payments were made, namely, Rs.2,000 on 15.10.1973, Rs.5,000 on 13.11.1973 Rs.1,000 on 1.7.1974 and

Rs.1,000 on 5.11.1975 and thus in all the plaintiff had paid towards the sale consideration Rs.14,000 inclusive of the advance amount. All the

payments have been duly endorsed on the agreement itself and the document further provided that the advance shall be adjusted towards sale

consideration; The plaintiff would further state that she had paid Rs.4,500 to one Govindan in order to get vacant possession from him of the

premises in his occupation and the said Govindan had given a receipt evidencing the said fact. The plaintiff would also state that on 13.11.1973 the

defendant had received Rs.5,000 and discharged the mortgage amount due in favour of one L. Subbiah and had delivered the document of title in

respect of the property and the plaintiff had thus performed all the obligations under the document and what remained due by her was only a

payment of Rs.4,000 being the balance of sale consideration.

During 1978 the first defendant informed the plaintiff that the original title deed which was with the plaintiff was necessary for the purpose of

engrossing the sale deed and on such representation, she had parted with the title deed and that she being gullible lady believed the representation

of the first defendant as true. But, the defendants taking advantage of plaintiff''s husband who was at Bombay, with ulterior motive had taken away

the original title deeds. When the plaintiff demanded the execution of the sale deed and the return of the original title deeds, the defendants issued

notice on 2.2.1978 stating that the plaintiff had no right to demand for specific performance of the contract. Thereafter the plaintiff contacted her

husband and sent a reply notice, through her lawyer on 21.2.1978. The plaintiff therefore, contended that the defendants were bound in law and in

equity to perform their part of the contract and the plaintiff was always ready and willing to perform her part of contract without any demur. The

plaintiff would also contend that a sum of Rs.4,500 paid for eviction of the tenants should be adjusted towards sale consideration and if the said

payment was taken into consideration, the plaintiff has actually paid Rs.500 in excess but if the court directs that the plaintiff should pay the entire

balance of sale consideration of Rs.4,000 the plaintiff was willing to deposit the same into court. The plaintiff submitted that the defendants had

refused to perform their part of the contract and refused to receive the balance of sale consideration. Hence, the limitation would commence from

the date of the refusal expressed by the defendants in their registered notice i.e. 2.2.1978 and hence, the suit was filed within the period of

limitation.

In the written statement filed by defendants 2 and 3, it was contended that the property originally belonged to one Hemaji Rao, maternal

grandfather of defendants 2 and 3 and father-in-law of the first defendant, and after the death of Hemaji Rao the property came to his only

daughter, namely the mother of defendants 2 and 3. After her death, defendants 2 and 3 alone have become the absolute owners and in the said

circumstances the claims of the plaintiff were false and it was also false to state that all the defendants have entered into an agreement on 26.7.73.

The defendant would submit that the second defendant was very much at Madras and he has never given any power of attorney to enter into any

agreement. The third defendant, younger brother of the second defendant, was instructed by the first defendant to sign a document which was now

put forward as an agreement for the sale of the property and that neither the second defendant nor the third defendant had any intention to sell the

property much less, for Rs.18,000 to the plaintiff. Assuming that such an agreement had been executed by the third defendant, it had become

unenforceable in view of Clause 2 of the agreement that the sale should be completed within three months from the date of the agreement and the

time was the essence of the contract. The defendants would also deny the receipt of the advance amount of Rs.5,000. According to the

defendants, the plaintiff wanted to occupy the house on lease and infact had entered into the property representing that she had advanced monies

for getting possession of the properties and that the said amounts can be deducted from the rent and in view of that, rent was not demanded from

the plaintiff. Even if the payments as alleged in the plaint was true, the said payments were made to the first defendant who had no manner of right

over the property. The contention that the plaintiff had received the title from Subbiah was also denied. Likewise, the plaintiff''s contention

regarding parting with the title deeds were also denied by the defendants. The allegation that the defendants were bound in law and in equity to

perform their part of the contract was also incorrect and it was contended by the defendants that there was no concluded contract between the

second defendant and the plaintiff and the adjustment sought for with reference to the sum of Rs.4,500 said to have been paid by Govindan was

fraudulant and that the plaintiff had entered into the property only in the capacity of a tenant. According to the defendants, the plaintiff had collected

more than the advance amount she has given as a loan. Therefore, the plaintiff cannot speak about equity. As regards limitation the cause of action

for the suit cannot start from 2.2.1978 in as much as even according to the plaintiff, the last payment was only on 5.11.1975 itself and therefore,

the suit should have been filed during 1978. Therefore, the suit was hopelessly barred by limitation.

On the basis of the said pleadings and evidence both oral and documentary, the learned trial judge held that the suit was barred by limitation and

dismissed the suit. The learned appellate judge also on appeal confirmed the findings of the trial court and dismissed the appeal filed by the plaintiff.

Hence, the above Second Appeal:

The trial court had rendered a pedantic treatise on the law of limitation by merely scissoring and pasting the statutory provisions and portions of

various rulings of the Courts with little or no reference to the facts of the case. In the judgment containing 27 paragraphs, the discussion of facts is

to be found only in a negligible portion of paragraph No.23. The appellate court on the other hand had made a detailed analysis of the facts and

had recorded a clear finding completely in favour of the appellant, but misapplied the law of limitation against the appellant. The fallacy in the

approach of the appellate court will be discussed infra.

The recitals in the sale agreement state that the owner of the property was one Sundarbai and after her death, the first vendor being the husband

and the second and third vendors being the sons of Sundarbai had inherited the property from her and that there was a mortgage by deposit of title

deeds in favour of one Subbiah to secure repayment of the loans under four promissory notes for a sum of Rs.4,000 and that he was pressing for

immediate repayment and that as the property was in dilapidated condition, requiring huge investment for construction, the vendors had

approached the purchaser to sell the property for a sum of Rs. 18,000 for which the purchaser had agreed and on the date of the agreement the

purchaser had paid a sum of Rs.5,000 as advance to be adjusted towards the sale consideration at the time of the execution of the sale deed or to

refund the said sum if the sale fell through. Clause No.2 as extracted below is relevant for consideration in this Second Appeal.

The transaction of sale is to be completed within three months from this date, time being the essence of contract.

Notwithstanding the stipulation of the said time limit, the period was extended five times as follows as against the respective dates as could be seen

from the endorsement on the agreement:-

(i) 15.10.1973 - Rs.2,000 paid and time extended till 26.4.1974.

(ii) 13.11.1973 - Rs.5,000 paid for discharging the mortgage and title deeds handed over to the purchasers.

(iii) 1.7.1974 - Rs.l,000 paid and time extended upto 1.2.1975.

(iv) 25.2.1975 - Time extended upto 1.6.1975 (No payment)

(v) 25.11.1975 - Rs.1,000 paid and time extended upto 25.1.1976.

Thereafter, admitted facts of both sides are that nothing was done subsequently till the suit was filed on 19.6.1979. The appellant claims that

during January, 1978, the first defendant took the title deeds from the plaintiff for engrossing on the sale deed and when the plaintiff had demanded

the sale deed, the defendants had issued a notice dated 2.2.1978 stating that the plaintiffs cannot ask for specific performance as the time had

lapsed and a reply was sent by the plaintiff on 21.2.1978. The question which arises for consideration is as to whether the limitation for the suit

would start from 25.1.1976, being the last extended period or 2.2.1978, which according to the plaintiff was the date on which the refusal was

conveyed to the plaintiff.

In this background we may consider some of the leading decisions relied upon by Mr. V. Raghavachari, learned counsel for the appellant in

support of his contention that on the facts of the present case, time was not the essence of the contract and therefore, the starting point of limitation

would be the date of refusal by the vendor and that it is only the second limb of Article 54 of the Limitation Act would apply and not the first limb.

Article 54, dealing with the suits for specific performance prescribing a limitation of three years is as follows:-

Description of suit period of Limitation Time from which period begins to run

54 For Specific performance of a Three years The date fixed for the performance or, if no such date is

contract fixed, when the plaintiff has notice that performance is

refused.

Reference is made to the judgment of a Division Bench of this court in Lakshminarayana Reddiar Vs. Singaravelu Naicker and Another, . On

the facts of the case, a period of three months was fixed within which the sale deed should be executed and it was contended that the said date

should be taken as the date fixed for performance. After referring to various earlier rulings and considering the facts, the Division Bench held as

follows:- (At Page 158)

Every contract, including a contract for sale of immovable properties has to be construed with reference to not only the intention of the parties as

stated in the contract, but also the circumstances under which the terms and conditions of the contract were agreed upon by the patties. The

doctrine of imputing intention to the parties to a contract which may at times be at variance with the terms of contract reduced to writing is a

doctrine which has found acceptance of late with courts. This doctrine really rests upon the principle of construing an agreement with reference to

the real situation or context in which it was entered into and not relying upon the mere working of the contract as fixing the real intention of the

parties.

The Supreme Court in a number of cases has pointed out that fixation of the period within which the contract has to be performed, does not

make the stipulation as to one of the time being the essence of the contract and that when a contract relates to immovable property, the normal

presumption was that time was not the essence of the contract. But this presumption can of course be rebutted by positive evidence by showing

that the parties did mean to treat the time as the essence of the contract. Equally, even When a fixed time is mentioned in the agreement, it would

be open to the parties to prove from the contract of the parties that it was not intended to be so. In Govind Prasad Chaturvedi Vs. Hari Dutt

Shastri and Another, , the Supreme Court dealt with a clause in the agreement which stipulated that the purchaser should get the sale deed

completed and executed within two months, namely upto 24.5.1964 failing which the purchaser shall forfeit the earnest money. The Supreme

Court held that notwithstanding the stipulation of time limit, the vendor did not establish that the time was of the essence of the contract. In Hind

Construction Contractors by its Sole Proprietor Bhikamchand Mulchand Jain (Dead) by Lrs Vs. State of Maharashtra, the Supreme Court again

dealt with a case where a period of 12 months was prescribed for completion of the contract and it was also specifically provided that time was of

the essence of the contract, and it was held that such a provision had to be rend along with other parts of the agreement. A clause providing for

extension of time would render the clause providing time limit, ineffective.

In Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., , a Constitution Bench of the Supreme Court has held as follows:-

It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in

compliance therewith, that the other parly may avoid the contract, such an option arises only if it is intended by the parties that time is of the

essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be

inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract.

Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period; if

having regard to the express stipulation of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the

relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere

incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the

essence.

Mr. V. Raghavachari also referred to a catena of some more decisions of the Supreme Court, this court and other High Courts and it is not

necessary to extract the observations in those rulings. Having regard to the rulings already cited above, it is sufficient to conclude that the following

criteria would be relevant for interpreting the agreement in question.

(a) In sale of immovable property, the normal presumption is that time is not the essence of the Contract.

(b) The presumption can be rebutted by positive evidence regarding the actual intention and conduct of the parties.

(c) The mere stipulation of a date or time limit by itself will not mean that time was of the essence of the contract and if consideration of other

clauses in the contract, intention, conduct of the parties and surrounding circumstances pointed out otherwise, the stipulation of time limit becomes

ineffective.

In the light of the above analysis it follows that the mere stipulation of a date or time limit alone is not decisive to hold that in such cases, only

the first limb of Article 54 would be automatically attracted. On the other hand, if the intention and conduct of the parties point out otherwise, it is

only the second limb of the said article which would apply. In the present case, the following circumstances would clearly establish that

notwithstanding the stipulation of the time limit, the parties did not intend so.

(I) The time limit was extended not once, but four times, out of which three times extension was made after a long lapse of time limit provided

under the earlier extension. For instance, as per the agreement, the first extension which was given upto 26.4.1974 was renewed only on

1.7.1974. for the period up to 1.2.1975 and again it was only on 27.2.1975, the period was extended upto 1.6.1975. Likewise subsequent

extension up to 25.1.1976 was given only on 25.11.1975. Therefore, Clause 2 had been varied, violated and ignored at least four times. This

circumstance alone is sufficient to hold the point against the vendor.

(II) Even though there is no stipulation in the agreement that the purchaser should give any amount for discharging the mortgage debt, on

13.11.1973 after a lapse of the time provided under agreement (26.10.1973) the vendor accepted payment of Rs.5000 on 13.11.1973 towards

the mortgage debt and cleared the mortgage debt. It is true that this was done during the extended period up to 26.4.1974. But this circumstance

which will go io show that the rigour of the time limit was given a go-bye. The title deeds had also been handed over to the purchaser only on

13.11.1973, after receiving the same from the mortgage after discharging the loan. But Clause 15 of the agreement reads as though the title deed

was handed over on the date of the agreement itself. This would show the casual manner and lack of seriousness in which various clauses in the

agreement had been drafted.

III. The following extract of Clause 6 in the agreement is also relevant:-

It is hereby agreed that as the Vendors are not in a position to give vacant possession of the scheduled mentioned property, the purchaser is

hereby authorised to take such necessary action against the tenant and in the event of his getting vacant possession before registration of the Sale

Deed the purchaser can take possession and occupy the same. But however as per agreement the Sale Deed shall be completed within 3 months

as mentioned in Clause 3.

But for the mechanical repetition of the period of these months as incorporated in Clause 2, it is obvious that no one could have reasonably

contemplated that out of a period of three months, the tenant could be evicted after the purchaser would take appropriate action after the

execution of the agreement. The clause itself makes it clear that the tenants in occupation of the premises were not willing to oblige the vendor and

hence any legal action by the purchaser to secure possession within three months will not be possible by any stretch of imagination.

(IV) No prudent vendor would agree to part with possession of a property, if the idea of time limit of three months was seriously meant and would

also be clothe the purchaser with the statutory protection u/s 53-A of the Transfer of Property Act.

(V) Ex.A.2, a scamped letter executed by the tenant Govindan, has been filed by the plaintiff to prove that he had vacated the premises on receipt

of Rs.4,500 from the plaintiff on 3.9.1973 (within the stipulated time). Though this claim is baldly denied by the defendants, neither the trial court

nor the Appellate Court had disbelieved the claim of the plaintiff. The subsequent possession of the property by the plaintiff is also not denied by

the defendants. No land owner would have simply slept over his rights, if really time was considered to be of essence of the contract, doing nothing

till the purchaser himself filed the suit in 1979.

(VI) The defendants did not do anything even after the lapse of a very long time after the expiry of the extended time limit up to 25.1.1976. They

were satisfied by just issuing a notice only on 2.2.1978 for which a reply was sent by the plaintiff promptly on 21.1.1978. Thereafter also the

defendants as land owners had not bothered to do anything to have the agreement cancelled or claimed back the possession of the property. It is

only the plaintiff who later filed the suit on 19.6.1979.

(VII) If the vendors had considered the agreement had fallen through and not enforceable they ought to have returned the amount due to the

plaintiff which was not at all done.

Therefore, considering the above facts there cannot be a stronger case for a purchaser to plead that the agreement did not consider time to be

of the essence of the contract. It is also very pertinent to note that the appellate Court had recorded a positive finding of fact holding that the date

25.1.1976 could not be held to be a time limit for the purpose of the contract and the finding of the trial Court in that context was specifically held

to be erroneous. The finding of fact thus recorded by the appellate Court has to be sustained and has not been shown to suffer from any illegality

or perversity. Even, so, I have independently considered the evidence as discussed above. But inspite of having held so, the learned appellate

Judge fell into an error in thinking that it is only the first limb of Article 54 of the Limitation Act which would apply.

Per contra, it was strenuously urged by Mr. K.V. Sundararajan and Mr. V.N. Krishna Rao, who had appeared at a later stage that the case

would squarely fall under the first limb or Article 54 and that the Article made a clear distinction between the cases in which time is stipulated and

cases where no time is stipulated. The said distinction according to the learned counsel, is clear and binding and not subject to any qualification,

exception or conditions. I am afraid that the said submission cannot be upheld in view of the clear statement of law as extracted from the leading

judgments to the effect that the more stipulation of a date or time limit was not conclusive by itself and it would be necessary to consider the real

intention of the parties as could be gathered from various circumstances.

Reliance was placed on the very judgment of the Constitution Bench of the Supreme Court referred to above as reported in Smt. Chand Rani

(dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., . It is true that in the said judgment, on facts, the Court held against the purchaser on the

ground that he had not shown his readiness and willingness. But the statement of law pertaining to time being of the essence of the contract already

extracted above, clearly brings out that more specification of the time limit was not decisive and the intention and conduct of the parties have to be

considered.

Reliance was placed on a judgment of a Division Bench of this court in R. Muniswani Goundar (died) and Another Vs. B.M. Shamanna

Gouda and Others, . In the said judgment, the scope of expression ""Date fixed"" was examined. It is not an authority for the proposition as to

whether not with standing the date fixed, the intention and the conduct of the parties were otherwise and whether still the date would have any

relevance or not.

Reference was also made to the judgment of a learned single judge of the Karnataka High Court reported in K. Kallaiah v. Ningegowda., AIR

1982 Kar. 93. That was a case in which the learned Judge held that the principles that time stipulated in a contract for sale of immovable property

was not the essence of the contract had nothing to do with the period of limitation within which a suit for specific performance of contract has to be

filed. One dealt with the right to enforce the contract and the other touched on the period within which right had to be enforced. The learned Judge

went on to hold that by ignoring the period stipulated in the contract or by holding that the time was not the essence of the contract in a given case,

the period of limitation stipulated in the Act cannot be ignored or extended by the Courts. With due respect I am unable to agree with the

observations in the said judgment having regard to the rulings already cited above. In.fact, the learned Judge had disagreed with the view of the

Division Bench of this court reported in Lakshminarayana Reddiar Vs. Singaravelu Naicker and Another, . Reliance was placed on a judgment of

the Division Bench of the Orissa High court reported in Baruna v. Rajakishore, AIR 1933 Ori. 107. The said judgment dealt with a question

whether possession by the verndee who was put in possession of the property would become adverse as against the vendor was considered and

the Court held that the possession was only permissive unless proved to be adverse. The said ruling has no relevance to the present issue. In fact,

in the said judgment it is held that the right of defence u/s 53-A of the Transfer of Property Act would not be lost even though the right to enforce

the contract may be based as against the purchaser.

Mr. V.N. Krishna Rao, laid emphasis on the observation of the Supreme Court in T.L. Muddukrishna and Anr. v. Smt. Lalitha Ramachandra

Rao, 1997 (2) LW 809. It was a case where the appellants and respondent entered into an agreement on 16.3.1989, fixing the date for the

purpose of the contract as 28.5.1989. On an examination of the facts, the Court held that the first limb of Article 54 of the Limitation Act would

apply. There is no observation in the said judgment anywhere to the effect that the purchaser would in any manner be disentitled to plead and

prove that notwithstanding the stipulation of time limit, the intention of the parties was otherwise. In fact, the observation of the Constitution Bench

referred to above have been extracted in the Judgment itself to the effect that the rights of parties in a suit for specific performance will depend not

on the letter of the agreement, but the substance of the agreement, and that it has to be ascertained whether it was really intended in substance that

the contract should be completed within a reasonable time. Therefore, the said judgment relied on by the learned counsel cannot be interpreted as

holding that the moment a time limit is stipulated, it will not be open to the purchaser to show that the parties did hot intend time to be the essence

of the contract.

Apart from the above discussion the question has to be considered also from the angle as to whether the equitable relief is to be denied to the

plaintiff in this case. The principle that who seeks equity must do equity and that the parties should approach the Court with clean hands would

apply equally to the plaintiff as well as the defendant. An equitable relief to be granted or to be refused should be based on sound judicial principles

as mandated u/s 20 of the Specific relief Act. The genera principle that the defendant is at liberty to putforth inconsistent pleadings will not come to

the rescue of inconsistent pleadings which are totally contrary to the truth and unconscionable and aimed at denying an equitable relief to which the

plaintiff would be entitled to. The attitude of the defendants, in this case as enlisted herein is bound to weigh in the judicial conscience in rendering

the ultimate verdict.

(a) The first defendant who had undoubtedly an interest in the property and had signed the document for himself and the second defendant, keeps

out of the Court and the second defendant would take advantage of the situation to contend that he is not a signatory and therefore, the agreement

will not bind him. The claim was found against by the lower appellate Court.

(b) Merely for the purpose of denying the statutory benefit available to the plaintiff u/s 53-A of the Transfer of Property Act, the defendants would

go to the extent of falsely contending that the plaintiff had entered into the property only under the guise of a tenant. They would also state that the

amount paid by the plaintiff towards discharge of the mortgage as claimed by the plaintiff was not true and that the said payment was only towards

the oral agreement of the tenancy. There is absolutely no proof of any tenancy and all these statements are nothing but falsehood in the face of the

recitals in Ex. A.1. The defendants would appear to refer to Ex.A.l only for the purpose of pleading"" limitation under the first limb of Article 54, but

would expect the Court to shut its eyes with reference to all the other clauses and endorsements.

(c) Even the payments made by the plaintiff and fully acknowledged and endorsed by the first defendant are denied by the defendants.

(d) The intention between the parties to hand over possession of the property on the execution of the agreement is clear from clause 6 of the

agreement. The said clause also discloses that the defendants found it not possible to have the tenant vacated from the premises. The uphill task of

evicting the tenant in a Metropolitan City was thrown on the shoulders of the purchaser and after the purchaser successfully got possession of the

property by paying the tenant Rs.4,500 (One-fourth value of the property), the defendants would not give credit to the said amount towards the

sale consideration and at the same time seek to deprive the plaintiff the benefit of Section 53-A of the Transfer of Property Act.

Therefore, the unpalatable pleadings and the stand taken by the defendants have also to be taken note of as one of the circumstances to decide

whether to provide a relief to the plaintiff or not, vide the Judgment of the Supreme Court reported in K. Kalpana Saraswathi Vs. P.S.S.

Somasundaram Chettiar, . That was a case on a suit for specific performance in which the Supreme Court held that the disentitling circumstance

relied upon by the defendant/respondent (vendor) were off-set by the false pleas raised by him and rightly negatived by the Courts.

One of the factors to be taken note of by the Courts in dealing with a suit for specific performance is also to the quantum of hardship which the

plaintiff or the defendant would be made to suffer. Section 20(2)(b) of the Specific Relief Act requires consideration of hardship on the defendant

which he did not force whereas the non-performance may not result in such hardship on the plaintiff. In the present case, the plaintiff has taken

possession of the property in the year 1973 itself pursuant to Clause 6 of the agreement and after having spent considerable amount for evicting the

tenant and is also entitled to the protection u/s 53-A of the Transfer of Property Act. Therefore, if specific performance should be refused, the

hardship on the plaintiff would be more than on the defendants who had consciously bargained to part with the tenant property. It will also lead to

a very futile and nebulous situation even if the defendants are to seek for relief of possession in view of Section 53-A of the Transfer of property

Act. Moreover, hardship on the defendants as visualised u/s 20(2)(b) or the Specific Relief Act should be one which he could not have foreseen.

No such pleadings or argument had bee raised on behalf of the defendants.

I have also considered the issue of ""readiness and Willingness"" of the plaintiff even though it was not raised before me on behalf of the

defendants/respondents. The plaintiff has specifically pleaded so in paragraph Nos. 8 and 9 of the plaint. It is contended that the defendants had

refused to receive the balance sale consideration surprisingly not only there is no denial of the said averment, but on the other hand, the defendants

would only harp on the agreement being one of lease and not of sale and that the plaintiff''s possession was only in the capacity of a tenant and

whatever amounts paid by the plaintiff were only towards arrears of rent.

Therefore, hardship if any, for the defendants as a result of granting specific performance to the plaintiff would be only monetary and they are

entitled to receive the balance sale consideration with adequate interest. Therefore, I am inclined to hold that while decreeing the suit in favour of

the plaintiff, the ends of equity and justice would be met by ordering that the plaintiff shall pay the balance amount of Rs.4,000 with interest at the

rate of 24 twenty four per cent per annum from 25.1.1976 being the extended date of payment till the date of payment till the date of payment. The

amounts already paid or deposited to the credit of the suit if any shall be adjusted with the due amount payable to the defendants.

With the result, the Second Appeal is allowed and the suit is decreed subject to the above terms. No costs.