T.G. Rangashamaiah and Others vs Abdul Shukur and Others

N. Kumar, J.—The plaintiffs'' have filed this regular first appeal against the judgment and decree of the Trial Court dismissing the suit for specific performance and granting a decree of money directing the defendants to refund the advance amount with interest.

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

The subject matter of the suit is agricultural land measuring 3 acres and 21 guntas in Sy. No. 184/2 situated at Indlabele Village, Attibele Hobli, Anekal Taluk, Bangalore Rural District which is more particularly described in the schedule as the plaint ''A'' schedule property and agricultural land measuring 20 guntas in Sy. No. 173 situated at Indlabele Village, Attibele Hobli, Anekal Taluk, Bangalore Rural District which is also more particularly described in the schedule as ''B'' schedule property, which are referred to in this judgment throughout as ''A'' schedule property and ''B'' schedule property respectively.

Defendants 1 and 2 are the absolute owners of ''A'' schedule property. ''B'' schedule property is in their unauthorized occupation. The plaintiffs entered into an agreement of sale dated 22.06.2005 for purchase of ''A'' and ''B'' schedule properties for a consideration of Rs. 43 Lakhs per acre and a written agreement came to be executed between the parties on 22.06.2005, for which, the family members of defendants 1 and 2 are also signatories, who are arrayed as defendants 4 to 24. On the date of the agreement of sale, plaintiffs paid a sum of Rs. 20 Lakhs as set out in the agreement of sale by way of post dated cheques and a small portion by way of cash. Four months was the period prescribed for completing the sale transaction with an option to extend the period of time by another four months. Party in default, was expected to pay damages of Rs. One lakh per day till the completion of the sale transaction. The agreement of sale stipulating conveyance of schedule ''B'' property to the purchasers shall be condition precedent for conveying the schedule ''A'' property herein and the defendants 1 and 2 shall obtain clear title in respect of ''B'' schedule properties within the stipulated time. It was also agreed that the sale consideration payable is on the basis of actual measurement of ''A'' and ''B'' schedule property.

The case of the plaintiffs is the defendants 1 and 2 got issued legal notice on 06.03.2006 and 07.03.2006 threatening the plaintiffs that in accordance with Mohammedan Law it is not essential that defendants 4 to 24 execute the sale deed in favour of the plaintiffs. Their names are incorporated in the plaint. After issue of legal notice defendants are threatening the plaintiffs by issuing the telegrams stating that the plaintiffs should be present in the Office of the Sub-Registrar on 09.03.2006 and that they would execute the sale deed. The plaintiffs replied to the legal notice by way of reply notice dated 09.03.2006. Therefore the plaintiffs were constrained to file a suit for a decree of permanent injunction restraining the defendants from alienating the ''A'' and ''B'' schedule property. Subsequently plaint was amended to include the prayer for specific performance. In that connection, it is stated at para No. 12(a) of the plaint that plaintiffs from the inception of the agreement have been continuously ready and willing to perform their part of the contract in terms of the agreement. Schedule ''A'' and ''B'' properties were comprehensively agreed to be sold and the comprehensive sale could be concluded only after the defendants obtained requisite grant in respect of the schedule ''B'' property. Schedule ''B'' property provides access to approach ''A'' schedule property.

As the defendants are contending they have no subsisting right in respect of the schedule ''B'' property the plaintiffs are unable to seek enforcement of the contract in respect of schedule ''B'' property. But however are entitled to sale deed in respect of schedule ''A property. The defendants being in possession of the schedule ''B'' property are bound to provide 40 feet access through the schedule ''B'' property to the schedule ''A'' property as assured in the agreement/statement. The plaintiffs were capable and competent to obtain sale deed in terms of the agreement. The plaintiffs have performed their obligation under the contract and have also paid substantial advance sale consideration. The conduct of the defendants is apparent. They would only intend to alienate the schedule ''A'' property. Therefore the plaintiffs sought for specific performance of the contract and they made it clear that they have no intention to waive the same. However, in the event of grant of relief of specific performance being impossible or impractical, without prejudice to the right to enforce the contract, plaintiffs have prayed for alternative relief of refund of the advance amount paid. Therefore, they sought for specific performance of the contract as prayed for. As the defendants 1 and 2 alienated the property during the pendency of the proceedings, the subsequent purchasers 25 and 26 were added as defendants.

After service of summons, the defendants 1 and 2, 4 to 24 entered appearance and filed joint written statement. In reply to the suit for bare injunction filed, initially they contended the suit itself is not at all maintainable since the contract of agreement is for the sale of agricultural land but amount involved in the agreement of sale is more than Rs. 1.5 Crores. The plaintiffs in order to avoid the payment of court fee have approached this court by filing suit for bare injunction. Such a suit is not maintainable. They admitted their absolute title to the ''A schedule property. In so far as ''B'' schedule property is concerned, they contended that it is in unauthorized cultivation and it is in their possession. The said land is not regularized in the name of the defendants. Hence they do not have right, title and interest. The contract of sale in respect of schedule ''B'' property is void and such a contract of agreement cannot be enforceable in law. The defendants are prepared and willing to execute the document of absolute sale deed to the plaintiffs at any time, at any hour provided the plaintiffs comes voluntarily. Defendants 1 and 2 are the absolute owners. They have acquired title to the said property and are put in possession through a registered deed of partition dated 08.09.1972. Defendants 4 to 24 have no manner of title, right or interest in the schedule property and they are unnecessary parties. However they made it clear in order to satisfy the plaintiffs all the family members are willing to execute the sale deed. They contend the ''B'' schedule property is to be regularized by the Committee of Unauthorized Cultivation of Lands by the Taluka Committee which is yet to be constituted in the concerned Taluk. When they have no right over the ''B'' schedule property even if they execute the sale deed, it has no legal effect. To that extent the contract is void. However, they are in possession of the schedule ''B'' property. They are prepared to leave 40 ft. road to the plaintiffs subsequently if the land is allotted to them and the plaintiffs agreed to pay the market price to the defendants. They are ready and willing to execute a sale deed in respect of ''A'' schedule property. The names of the defendants 1 and 2 are entered in all the revenue documents. Mutation entry, RTC are all in their names. No other person can claim any right over the ''A'' schedule property including their kith and kin. The cheques issued under the agreement of sale has been dishonored. However subsequently the same was encashed after lapse of time. Though the time stipulated for completing the sale transaction is four months the plaintiffs have drafted the agreement in such a manner that they have extended it by another four months. The defendants have sent the legal notice to the plaintiffs calling upon them to complete the sale transaction, otherwise the sale transaction stands terminated. They have also sent telegraphic messages. The plaintiffs have sent a reply stating unless certain conditions are fulfilled, they will not come to registration. The defendants have fenced the boundary, agreed to measure the available land in ''A'' schedule property and agreed to leave the road entrance of 40 feet. The plaintiff was called upon to be present in the Sub-Registrar''s Office on 09.02.2006, 10.03.2006 and 13.03.2006 to get the sale deed executed and duly registered. Plaintiff is adamant, he is dodging execution of the sale deed in one pretext or the other.

The defendants contend that they have entered into an agreement of contract with four brothers namely, Ravi, Shankar, Suresh and Govindaraj who are all the owners of Venkatadri Clay products and Neeladri Clay products, MTC bricks manufacturing units, for purchase of the same for valuable consideration of Rs. 72,50,000/-. The total consideration receivable by them from the plaintiff in the suit agreement is Rs. 1,51,57,500/-. If the defendants fail to pay Rs. 44 Lakhs under the agreement entered into by them on or before 10.03.2006 their amount will be forfeited. The defendants have borrowed loan from KSFC. They have also borrowed hand loans. They are paying an interest of Rs. 2,50,000/- per month. It is to discharge all these obligations they have sold the property. Plaintiff did not come forward to perform their part of the contract and pay the balance sale consideration. In fact, in the suit for injunction itself defendants entered appearance and offered to execute the sale deed provided the balance sale consideration is paid. Therefore the order of injunction granted was kept in abeyance. However the plaintiffs were neither ready nor willing to pay the balance sale consideration and receive the sale deed. Under these circumstances, they contend plaintiff is not entitled for the relief of specific performance. Defendants also filed an additional written statement. Then the plaint was amended including the prayer of specific performance. They have categorically stated that plaintiffs was never ready and willing to perform his part of the contract, he was not prepared to pay the balance sale consideration and take the sale deed. Defendants had no intention to prolong the sale transaction, they have paid interest on the purchase of brick factory at Malur as damages even after selling their property to the defendants 25 and 26. The sale deed was executed in favour of defendants 25 and 26 as they were in the urgent need of money to perform their contractual obligations under the agreement and therefore they sought for dismissal of the suit.

Defendants 25 and 26 the subsequent purchasers have also filed a written statement reiterating the allegations made by the defendants in their statement. They have purchased the suit schedule ''A'' property from the defendants 1 and 2 after going through the averments in the plaint, written statement and the order passed by the court with due notice to the plaintiff, as plaintiff failed to perform their part of the contract. They have got the sale deed registered in their names, they are put in possession of the suit schedule property. Defendants 1 to 4 are ceased to be the owners of the property and therefore they sought for dismissal of the suit.

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

"Whether the plaintiffs prove that they have always been ready and willing to perform their part of agreement of sale of suit property dated 22.06.2005?

Whether the plaintiffs prove that the defendant Nos. 1,2 and 4 to 24 have committed breach of terms and conditions of the agreement of sale dated 22.06.2005?

Whether the Defendant No. 1, 2 and 4 to 24 prove that the said agreement dated 22.06.2005 so far as it relates to suit ''B'' schedule property is void ab initio and hence cannot be enforceable?

Whether the Defendant No. 25 & 26 prove that the agreement entered into between the plaintiff and defendant No. 1 to 24 written statement terminated and all the rights of the agreement have been extinguished?

Whether the defendant No. 25 & 26 prove that after due notice to the plaintiffs, they (defendant No. 25 & 26) purchased the suit ''A'' schedule property for valuable consideration?

Whether the defendant 1, 2 and 4 to 24 prove that since they have already sold out the suit ''A'' schedule property to defendant 25 & 26, the relief sought for by the plaintiffs cannot be fulfilled by them?

Whether the court fee paid by the plaintiff is correct?

Whether plaintiffs entitled to the relief of specific performance of agreement of sale of suit ''A'' schedule property dated 22.06.2005 and for vacant possession of the same with 40 feet uninterrupted access to schedule ''A'' property through schedule ''B'' property? Or

In the alternative, the plaintiffs are entitled for refusal of advance sale consideration of Rs. 20 Lakh?

What order or decree?"

The plaintiffs in order to substantiate their claim examined the first plaintiff as PW 1, examined fourth plaintiff as PW 2 and one K. Nagaraj as PW 3 and produced 29 documents which were marked as exhibits P1 to P29. On behalf of the defendants 8th defendant-Noor Ahammed was examined as DW 1 and 16th defendant-Shabber Ahammed was examined as DW 2 and 25th defendant-B.G. Anjanappa was examined as DW 3 and have produced 34 documents which were marked as exhibits D1 to D34.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record, held that not only have the plaintiffs failed to prove that they have always been ready and willing to perform their part of agreement of sale of suit property dated 22.6.2005 but also that they have failed to prove that defendants 1, 2 and 4 to 24 have committed breach of conditions of agreement of sale. On the contrary defendants 1, 2 and 4 to 24 have proved that the suit agreement insofar as B schedule property is concerned, is void ab initio as the title of the said property does not vest with them and the title vests with the Government. It also held defendants 25 and 26 have proved that the suit agreement entered into between the plaintiffs and defendants 1 to 24 is duly terminated and all the rights in the agreement insofar as plaintiffs are concerned stood extinguished. Defendants 25 and 26 also have proved that they have purchased the property for valuable consideration with due notice to the plaintiffs. It also held the plaintiffs are not entitled to the relief of specific performance of the agreement of sale in respect of suit A schedule property and for vacant possession of the same with 40 ft. uninterrupted access to schedule A property through schedule B property. However, the court below held that the plaintiffs are entitled to receive back the advance sale consideration of Rs. 20,00,000/- with interest and accordingly, the suit of the plaintiffs was decreed for refund of Rs. 20,00,000/- with interest at 8% p.a. from the date of execution of the agreement till its realisation.

Aggrieved by the said judgment and decree of the Trial Court the plaintiffs have preferred this appeal.

Learned counsel for the appellants/plaintiffs assailing the impugned judgment and decree of the Trial Court, contended that in view of the agreement of sale, plaintiffs paid a sum of Rs. 20,00,000/- and they were ready and willing to pay the balance of sale consideration if defendants 1 to 24 performed their part of obligation under the contract. The defendants 1 to 24 were expected to get the land surveyed, give a survey report, make good the title in respect of B schedule property and then only they were entitled to get the balance sale consideration. It is the defendants who committed breach of the terms of the agreement and even to this date they are not able to make good the title. In those circumstances the plaintiffs were entitled to the decree for specific performance in respect of ''A'' schedule property and an access to the ''A'' schedule property from ''B'' schedule property which is in the possession of the defendants. On the contrary, the defendants 1 to 24, having appeared in the suit filed for injunction where an order of temporary injunction has been granted not to alienate the property and they having submitted that they are ready to execute the sale deed and on that submission that the order of injunction granted was kept in abeyance, they cannot sell the property to defendants 24 and 25. This conduct of the defendants disentitles them from getting any relief from the hands of this Court. Therefore, he submits the Trial Court was not justified in refusing specific performance of the agreement of sale to the plaintiffs, at least in respect of the A schedule property.

Per contra, learned Senior counsel appearing for the defendants submitted that agreement of sale is not in dispute. Payment of Rs. 20,00,000/- is not in dispute. Defendants 1 to 24 have entered into an agreement to purchase brick factory, they had paid advance of Rs. 44,00,000/- and they had to pay the balance sale consideration, failing which Rs. 44,00,000/- paid was liable to be forfeited. Time was essence of the contract. They were ready and willing to execute the sale deed. In fact they sent telegrams to the plaintiffs and in terms of the telegrams, they went to Sub Registrar office, waited for the plaintiffs to pay the balance sale consideration and to execute the sale deed. In fact defendants issued notice terminating the contract and giving the plaintiff a chance to pay the balance consideration and take the sale deed. In spite of these efforts on their part, plaintiffs were adamant, were not ready with the sale consideration, they were not willing to get the sale deed executed, they were interested on survey being conducted though the land was fenced on three sides. It is within their knowledge, that there was no dispute regarding title and therefore, he submits Trial Court rightly held that the plaintiffs were not ready and willing to perform their part of the contract, they committed breach and therefore, they forfeited their right to the relief of specific performance and hence, no case for interference is made out.

In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration are:-

(1) Whether the finding of the Trial Court that the plaintiffs were not ready and willing to perform their part of the contract is contrary to the evidence on record and calls for interference?

(2) Whether the plaintiffs were entitled to decree for specific performance in respect of ''A'' schedule property at least?

Re Point No. 1:

It is not in dispute that out of two items of the property, which are the subject matter of the agreement of sale, ''A'' schedule property was agreed to be sold to the plaintiffs by defendants 1 and 2 was acquired by them under a registered partition deed. Mutation entries, RTC extracts all stood in their name. They are in peaceful possession and enjoyment of the property. There were no claims insofar as ''A'' schedule property is concerned. Insofar as ''B'' schedule property is concerned, defendants 1 and 2 were in unauthorized occupation for more than 50 years. They had filed an application for regularization of their unauthorized occupation. On the date of the agreement, on the date of the suit and even on the date of decree, regularisation order has not been passed. It is submitted even to this date no such regularisation order is passed. This fact was well within the knowledge of the plaintiffs. They entered into an agreement to purchase ''B'' schedule property knowing fully well that defendants 1 and 2 are not the owners of the suit schedule property. The agreement stipulates that the defendants who are in possession of the schedule property agreed that conveyance of schedule B property to the purchasers herein shall be condition precedent in conveying the ''A'' schedule property herein and vendors shall obtain a clear title of the schedule property within the stipulated period of time. Initially four months is the period agreed upon with a proviso that it could be extended by another four months. Thus in all eight months is the period agreed upon for completing the sale transaction. It is true one more clause is introduced which made it clear if either of the parties committed breach of the agreement or not able to complete the sale transaction, the defaulting party shall pay a sum of Rs. 1,00,000/- p.m. till the property is registered. The evidence on record discloses that defendants 1 and 2 entered into an agreement as per Exhibit D. 25 on 3.12.2005 to purchase the land bearing No. 61/2 measuring about 2 acres for a sum of Rs. 72,50,000/- and paid Rs. 44,00,000/- under the agreement. The balance sale consideration of Rs. 28,50,000/- was agreed to be paid within three months from the date of the agreement. Earlier to that they had entered into suit agreement dated 22.6.2005 as per Ex. P1. Therefore, they were badly in need of money to complete the sale transaction as per Ex. D25. That is the reason why initially four months was agreed upon and if for any reason it is not completed, another four months was agreed upon. It is in this context we have to see the conduct of the parties. In fact 20 lakh is the amount agreed to be paid under the agreement of sale. Post dated cheques were issued. The evidence on record shows the cheques were dishonoured. However, on representation they have been honoured. It only shows plaintiffs were not ready even with the consideration which was agreed to be paid as advance. Further, the evidence on record shows the property was surveyed, measured and fenced on three sides. In fact the case of the plaintiffs is to be believed that he got the land fenced at his own cost and once the land is fenced, boundaries are fixed, still insistence on survey being conducted and survey report being given to them only shows plaintiff was not willing to perform his part of the contract. Evidence on record shows the plaintiffs did not move their little finger after the expiry of four months or after the expiry of eight months calling upon the defendants to perform their part of the contract. On the contrary the evidence on record discloses it is the defendants who got issued the legal notice as per Ex. P14 on 10.3.2006. The defendants 1 to 24 are accused of breach of the agreement pointing out that they are not able to get the regularization order made in respect of the ''B'' schedule property though they were in possession of the property for the past 60 years. It was also pointed out if the plaintiffs are not paying the balance sale consideration, the defendants will not be able to complete the sale transaction as per Ex. P25. Consequently the advance amount will have to be forfeited. He has borrowed money. He is paying interest in a sum of Rs. 2,50,000/- p.m. and therefore, the contract entered into was liable to be terminated. However, the last and final opportunity was given to the plaintiffs to pay the balance sale consideration and take the sale deed. It was made clear if the payment is not made, the agreement stands terminated. On receipt of the said legal notice, plaintiffs sent reply as per Ex. P18 on 3.8.2006. It was contended time is not the essence of the contract as the defaulting party has to pay Rs. 1,00,000/- per month, that means if the said damages is paid the sale deed could be obtained at any point of time. Defendants 1 and 2 were accused of not obtaining the grant of ''B'' schedule property in their favour which is coming in the way of completion of the sale transaction. Further, the plaintiffs took the exception of the conduct of defendants 1 and 2, sending telegrams informing them that they would be present before the Sub Registrar''s office to receive the balance sale consideration and execute the sale deed. Further it was stated when the defendants have not performed their part of the contract, they cannot threaten the plaintiffs by termination of the contract. Therefore, in the said reply plaintiffs did not offer to pay the balance sale consideration and take the sale deed but on the contrary defendants 1 and 2 were accused of not obtaining the requisite grant and also failed to measure the land from the local surveyors and it is the defendants 1 and 2 who have committed the breach of the agreement.

On receipt of reply to the legal notice, the defendants denied all the allegations made in the reply and gave the plaintiffs one more opportunity to pay the balance sale consideration and take the sale deed on 13.3.2006 i.e. Monday. Though the defendants had taken a contention that defendants 3 to 24, who are the only signatories to the agreement of sale, are totally unconnected with the property, still they made an offer that all of them would come to the Sub Registrar''s office and execute the sale deed. It was also pointed out that the land has been measured. ''A'' schedule property measures 3.21 acres. In fact, defendants also got the land measured. It has been fenced and again they brought to the notice the threat of termination of contract. They also brought to the notice of the plaintiffs the committee for unauthorized occupation is yet to be constituted by the Government which will take years and therefore, not to insist on the grant certificate in respect of the ''B'' schedule property as the condition precedent for completing the sale transaction. The said notice was replied as per Ex. P20 asserting that the sale deed has to be executed by the defendants in respect of both the schedule property. When they have agreed to sell ''B'' schedule property at the rate of 44 lakhs as per agreement, the defendants cannot state that a portion of 40 ft. x 30 ft. or any portion of the ''B'' schedule property will be sold at the rate prevailing as on the date of sale. Thus even on that occasion the plaintiffs were not ready and willing to offer the balance sale consideration and take the sale deed. Both the parties have struck to their stand while giving evidence.

From the aforesaid documents and the oral evidence on record it is clear the plaintiffs were not ready and willing to pay the balance sale consideration until the defendants obtained the grant certificate in respect of the ''B'' schedule property and sell both ''A'' and ''B'' schedule property to the plaintiffs. Admittedly though the defendants are in possession of ''B'' schedule property for more than 60 years as unauthorized occupants, the land belongs to the Government, it totally vests with the Government and defendants 1 and 2 are not the owners. If plaintiffs insist on getting a grant and selling the property, it is a contract which is impossible of performance. The defendants made it very clear the committee for regularisation of unauthorized lands is not yet constituted by the Government and the defendants have no control on the constitution of the committee and they pleaded inability. In fact they went to the extent of saying as they are in possession of the property, they will give access and will also execute sale deed in respect of the suit ''B'' schedule property if and when the land is granted. That is all what the defendants in the circumstances can do. Even then the plaintiffs was not ready to part with the balance sale consideration and take the sale deed only in respect of ''A'' schedule property. The consideration agreed upon is 43 lakhs per acre. Thus in all the plaintiffs have to pay a sum of Rs. 1,51,57,500/-. They had paid an advance of Rs. 20,00,000/-. The balance payable was 1,31,57,500/-. In order to demonstrate that they were ready with the consideration, plaintiffs have not produced any evidence. Though the law does not require the plaintiffs to produce the cash before the Court or evidence to show that they are in possession of the said amount, Section 16 of the Specific Relief Act places embargo on the Court granting a decree of specific performance who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Only when the plaintiff proves his readiness and willingness to perform the contract, the Court gets the jurisdiction to grant the decree for specific performance.

In the instant case the plaintiffs have failed to place on record any acceptable evidence to show that they were ready with the balance sale consideration either on the date of agreement or within four months from the date of agreement or within eight months from the date of agreement or on the date of issue of reply notice or on the date of suit or on date of hearing or on the date of decree. The tenor of the reply notice and the tenor of the evidence abundantly makes it clear that they were not willing to perform their part of the contract. It is in this context the trial court has rightly held the plaintiffs are not entitled to the relief of specific performance. We do not see any justification to interfere with such a finding of fact based on legal evidence recorded by the Court below.

Re. Point No. 2:

Learned counsel for the appellants/plaintiffs submitted even if there was difficulty in executing the sale deed in respect of ''B'' schedule property, the Court ought to have granted specific performance in respect of ''A'' schedule property as the agreement is not in dispute, payment of Rs. 20,00,000/- is not disputed and title to ''A'' schedule property is not disputed. In this context it is necessary to refer to Section 12 of the Specific Relief Act which reads as under:-

"12. Specific performance of part of contract.--

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--

(a) forms a considerable part of the whole, though admitting of compensation in money; or

(b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--

(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), 1[pays or had paid] the consideration for the whole of the contract without any abatement; and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

Explanation.--For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance.

Therefore, the language employed is very clear. As a Rule, the court cannot grant specific performance of the part of the contract. If the Court has to perform its role, the plaintiff who seeks that relief has to comply with the requirements provided in the said section. Sub-Section (3) of Section 12 of the Act provides, where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either forms a considerable part of the whole, though admitting of compensation in money or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. However the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party in a case falling under clause (a) pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b) the consideration for the whole of the contract without any abatement. In either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

Therefore, it is not for the court to grant specific performance of part of the contract. On the contrary court can grant specific performance only if the plaintiff complies with the requirement of Sub-Section (3) of Section 12 i.e. he must offer to pay the entire consideration agreed upon proportionate to that part of the contract which he wants the defendant to perform and more importantly, he must relinquish his claim to perform that part of the contract which cannot be performed.

In the instant case the plaintiffs have not offered to pay the consideration agreed upon in respect of the ''A'' schedule property in respect of which there is no dispute regarding title. They have not relinquished their right over B schedule property. On the contrary their stand throughout is contract is not enforceable. Without execution of the sale deed in respect of the ''B'' schedule property, no sale deed can be executed in respect of ''A'' schedule property for the reason there is no access to ''A'' schedule property. They did not relinquish their right to the ''B'' schedule property. In that view of the matter they are not entitled to part performance of the contract and also for the relief of specific performance of the contract. The trial Court has rightly negatived their contention.

Under these circumstances this Court cannot decide the contention raised by the plaintiffs regarding the legality of the sale deed executed by defendants 1 to 24 in favour of defendants 25 and 26. However in this context it is necessary to point out the plaintiffs initially filed a suit for bare injunction restraining the defendants from alienating the suit schedule property. They filed application for temporary injunction. Court did pass an order of temporary injunction. At that stage defendants entered appearance and contended they were ready and willing to execute the sale deed in favour of the plaintiffs subject to payment of balance sale consideration. Acting on the said submission order of injunction was kept in abeyance until further orders. But the balance sale consideration was not paid by the plaintiffs. It is in that context the defendants 1 to 24 sold to defendants 25 and 26 the ''A'' schedule property as otherwise advance amount of Rs. 44,00,000/- would have been forfeited by the vendor in the other contract entered into by them. Seen from any angle we do not find any justification to interfere with the approach of the trial Court dismissing the suit of the plaintiffs owing to the conduct of the plaintiffs and denying them the extraordinary and discretionary relief of specific performance of the contract of sale. The Trial Court in its equitable jurisdiction without going into the technicalities has directed the defendants to refund the advance sale consideration of Rs. 20,00,000/- to the plaintiffs with interest at 8% p.a. from the date of execution of the agreement i.e. 22.6.2005 till its realisation. The said order is just. In fact the defendants who had received Rs. 25,00,000/- from the plaintiffs have deposited the said amount with interest at 8% p.a. from the date of agreement of sale till the date of deposit which the plaintiffs are legitimately entitled to withdraw.

In the circumstances, we do not see any merit in this appeal. Hence, we pass the following

The appeal is dismissed.