Rahima (Died) ... Defendant/ vs P.Mangilal (Died) ... Plaintiff/

The Appellant/Defendant (since deceased) has preferred this second appeal before this Court as against the judgment and decree dated 24.11.1993 in A.S.No.66 of 1993 passed by the learned District Judge, Chengalpattu.

2. The First Appellate Court viz., the learned District Judge, Chengalpattu, in the judgment and decree in A.S.No.66 of 1993, has among other things, observed that the suit is not barred by limitation and further held that the respondent/plaintiff (since deceased) is not entitled to the relief of specific performance and consequently, dismissed the appeal without costs and thereby confirmed the judgment and decree passed by the trial Court namely the learned Sub Judge, Poonamallee, in O.S.No.155 of 1986 dated 27.04.1993.

3. Before the trial Court, two issues have been framed for adjudication in the main case. On behalf of the respondent/plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.4 have been marked. On the side of the Appellant/defendant, witness D.W.1 has been examined and Exs.B.1 to B.16 have been marked.

4. The trial Court on an appreciation of oral and documentary evidence available on record, has come to a consequent conclusion holding that the Appellant/defendant is to receive a sum of Rs.22,000/- (Rupees Twenty Two Thousand only) being the balance sale consideration, along with the interest if any and execute the sale deed in favour of the respondent/plaintiff at the expenses of the respondent/plaintiff and also three months' time has been granted to execute the sale deed, failing which the respondent/plaintiff is permitted to get the sale deed registered in his favour through the Court and decreed the suit without costs.

5. Being dissatisfied with the judgment and decree passed by the trial Court in the main suit, the Appellant/defendant has preferred the first appeal in A.S.No.66 of 1993 on the file of the learned District Judge, Chengalpattu, who confirmed the judgment and decree of the trial Court passed in the main suit and thereby dismissed the appeal.

6. Animadverting upon the judgment and decree passed by the first appellate Court in A.S.No.66 of 1993, the Appellant/defendant (since deceased) has preferred this second appeal before this Court as an aggrieved person.

7. During the pendency of this second appeal, both the Appellant/defendant and the respondent/plaintiff have expired and therefore, their respective legal heirs have been impleaded as the Appellants and the respondents respectively.

8. At the time of admitting this second appeal, this Court framed the following substantial questions of law:

"1) Whether both the Courts below failed to note that the agreement to sell the property had been revoked by both parties under Ex.B5 and B6 and B7, B8 and B15?

2) Whether both the Courts below failed to note that under Ex.B6 the Appellant had refused to perform her part of the contract and hence the suit ought to have been filed within 3 years from Ex.B6 (21.2.1980) or within 3 years after expiry of one month from 21.02.1980?

3) Whether both Courts below failed to note that the suit is barred by limitation?

4) Whether both Courts below failed to note that the respondent was not willing and ready to perform his part of the contract?

5) Whether both the Courts below erred in believing Ex.A2 and A3 even though the respondent in his evidence admitted as follows:

"tHf;Fiuapy; rh.M.2 Bkw;Fwpg;g[ gw;wpa[k; rh.M.3 Bkw;Fwpg;g[ gw;wpa[k; vJt[k; Twtpy;iy."

6) Whether both Courts below erred in decreeing the suit, even though compensation in money is an adequate relief under Section 14(1)(a) of the Specific Relief Act?

7) Whether both Courts below failed to consider the mandatory provision under Section 14(1)(a) and Section 20(1) of Specific Relief Act?"

9. The contentions, discussions and findings on Substantial Questions of Law Nos.1 to 5:

The learned Counsel for the Appellants/defendants submits that both the Courts below have rendered a judgment as against law, evidence and probabilities of the case and further, the respondent/plaintiff (since deceased) has not been ready and willing to perform his part of the sale agreement.

10. It is the contention of the learned Counsel for the Appellants/defendants that Ex.A.3, endorsement dated 28.04.1983, has not been proved as per law, inasmuch as the Appellant/defendant (since deceased) has stated that the signature has been obtained on misrepresentation of fact and indeed, Ex.A.3 ought to have been accepted as per endorsement on Ex.A.1, sale agreement, dated 15.11.1979, entered into between the Appellant/defendant and the respondent/plaintiff (since deceased).

11. The learned Counsel for the Appellants/Defendants expatiating his submissions, contends that in Ex.A.3, endorsement dated 28.04.1983, there is no recital to the effect that Rs.1,000/- (Rupees One Thousand only) has been paid and such a plea mentioned in the plaint is a false one and in fact, both the Courts below should have held that the Appellant/defendant (since deceased) has never given consent to execute the sale deed as per Ex.A.3 endorsement dated 28.04.1983.

12. Advancing his arguments, it is the contention of the learned Counsel for the Appellants/defendants that the plaint averment in paragraph 4 pertaining to Ex.A.3, endorsement dated 28.04.1983, is entirely different from what is actually mentioned in Ex.A.3 endorsement dated 28.04.1983 and as a matter of fact, there is no allegation that the Appellant/defendant (since deceased) agreed to renew the agreement or agreed to execute the sale deed. A plea is projected on behalf of the Appellants/defendants that there are series of notices exchanged between the parties out of which Ex.B.3 dated 02.01.1980, the letter issued by the Appellant/defendant (since deceased) through her Counsel to the respondent/plaintiff (since deceased), in and by which it is specifically mentioned that there is no subsisting contract and that the suit ought to have been filed within three years, etc.

13. The learned Counsel for the Appellants/defendants submits that the Appellant/Defendant (since deceased) and the respondent/plaintiff (since deceased) have rescinded the contract and there has been a bilateral revocation of contract and as per Ex.B.6, the reply of the Appellant's lawyer addressed to the respondent's lawyer dated 21.02.1980, one month's time has been given and after the expiry of one month, in reality, there subsists no contract and that the suit has been filed on 17.09.1986 after three years from the date of Ex.B.3, letter dated 02.01.1980 and that the respondent/plaintiff (since deceased) has not been willing and ready to perform his part of the contract and that the suit is barred by limitation.

14. The learned Counsel for the Appellants submits that both the Courts below have not looked into the material factual aspects of the matter in a proper perspective which has resulted in a miscarriage of justice and therefore, prays for allowing this second appeal to promote the substantial cause of justice.

15. The learned Counsel for the Appellants/Defendants relies on the decision of this Court in Kumarasawamy and another v. Appachi Gounder and another reported in 2001-1-L.W.314, at page 324, it is observed as follows:

"24. Jurisdiction of the courts to decree specific performance is only discretionary. For, it is an equitable relief, such discretion has to be exercised by the Court on sound and reasonable principles, solely guided by judicial precedents. Courts grant the relief of specific performance, not because it is permissible under law, but because it is just and necessary to afford such relief. Section 56 of the Contract Act provides one of the grounds for discharge from the contract.

25. As pointed out by me already, it is not physical or literal impossibility. Here, in this case, on account of the injunction order, the time for performance was extended twice by the parties. Immediately, the defendants have written to say that on account of the injunction order pending and subsisting, they are unable to perform the contract and requested the plaintiffs to treat is as cancelled. Only after that, the plaintiffs choose to rush to court and in doing so, they have committed an act of suppression in not mentioning about the steps taken by the defendants to have the injunction vacated. Therefore, all these circumstances would point out that this is not a fit case, where the plaintiffs can be held to be entitled to the discretionary relief of specific performance of the agreement. They have not come to court with clean hands, but have suppressed the truth. They have themselves contributed for the continuance of the injunction by not filing counter within reasonable time. It is clear from the intention of the parties that the plaintiffs wanted immediate possession, so that they could put up factory in that property. But, it was known to them that even as on the date, when further extension of the period of agreement was made it was not to be. Even within reasonable time, the performance could not be achieved, for which the defendants can never be made responsible. The suggestion of the plaintiffs is that it is a collusive suit. If it was so, the defendants would not have allowed the suit to be dismissed for default. When the intention was to defeat the agreement, the defendants would see to it that the litigation does not end in such a manner, but it is prolonged. Therefore, the suggestion that it is collusive suit, is a suggestion made for the purpose of this case."

and resultantly, held that the plaintiff is not entitled to the relief of specific performance as he has not come to the Court with clean hands.

16. He also places reliance on the decision of this Court in Fathima Majeed v. Subhapratha Ravikumar reported in 2008(4) CTC 494, wherein it is held that on the ground of equity, an alternative relief in the plaint can be granted in a suit for specific performance and therefore, the defendant has been directed to return the advance together with the interest at the rate of 12% p.a.

17. He further invites the attention of this Court to the decision in M.Rangathan v. M.Thulasi Naicker (Deceased) and either others reported in 2008(5) CTC 428, at page 429, it is observed as follows:

"As held by the Supreme Court readiness and willingness has to be determined from the facts and attendant circumstances of the case. In the present case, the Suit was filed nearly after two years, thereby inducing the Defendant to change his position. As held by the Supreme Court in K.S.Vidyanandam v. Vairavan, 1997 (3) SCC 1 "The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the Plaintiff." Taking note of the conduct of the Plaintiff in not tendering the amount, Lower Appellate Court rightly held that the delay in filing the Suit would disentitle to get the discretionary relief of specific performance."

18. Further, the learned Counsel for the Appellants/ defendants draws the attention of this Court to the decision in Senbagasundari v. Kothandapani Pillai reported in (2007) 1 MLJ 479, wherein it is laid down as follows:

"... It could be seen that it is a case where the time is stipulated in the contract. The agreement was entered into in the year 1988, and Thai what was referred to in the document, would come in February 1989. While the time is stipulated, it would go to show that if the payment of balance of consideration is not made within February 1989, then at the expenses of the plaintiff he should continue to pay waram as he was paying in the past. It is an admitted position that at the time of the filing of the suit or thereafter, no waram has been paid. ...

... Secondly, in a case like this, where the relief of specific performance on the basis of an agreement for sale is sought for, the law requires that the readiness and willingness on the part of the plaintiff must be specifically pleaded. If not pleaded in the plaint, it could be well termed as lack of pleading, which would be suffice to refuse the relief. ...

... This Court is of the considered opinion that in the instant case, the suit has been filed only in the year 1996, and the time for payment made under the agreement Exhibit A1, is within February 1989; but, the suit has been filed after a long lapse of nearly 7 years. The plaintiff's explanation that major part is paid, and hence, he has filed the suit now, cannot be said to be any laches on his part. It can be well stated that it is not a fit case which would warrant for granting the relief of specific performance. ..."

19. Besides the above, the learned Counsel for the Appellants/defendants, cites the following decisions:

(a) In Chinnakannu Naidu and another v. Chinnappan reported in (2008) 3 MLJ 1478, it is held as under:

"The intention to treat time as essence of the contract may be evidenced by circumstances which are sufficient to displace the normal presumption that time is not essence of a contract for the sale of immovable property.

Readiness and willingness to perform the agreement of sale must be shown continuously from the date of the agreement upto the date of hearing of the suit.

Where time is not the essence of the contract, the party must perform his part of the contract within a reasonable time to be determined from all the surrounding circumstances including the express terms of the contract and the nature of the property.

The jurisdiction to decree specific performance is discretionary depending upon various circumstances. Merely because it is lawful to grant specific relief the Court need not grant the decree. But the discretion shall not be exercised in an arbitrary or unreasonable manner."

(b) In Munusamy v. Nava Pillai reported in 2008-3-L.W.252, at page 253, this Court has held among other things that 'granting a relief under the Specific Relief Act under a cloud is totally erroneous one and the Courts below without considering the above aspects accepted the case of the plaintiff and rejected the case of the defendant and even though it is a concurrent finding arrived at by the Courts below, the Court is constrained to interfere in the Second Appeal with such finding.'

(c) In Amirtham v. Subbian and three others reported in 1997(II) CTC 417, it is held that 'the relief of specific performance cannot be granted to a party coming with false case and facts and that a party seeking specific performance should come to the Court with clean hands.'

(d) In Arulmigu Visweswaraswami v. R.V.E.Venkatachala Gounder reported in 1996 Civ.C.R.155 (Mad.), it is laid down that 'in the absence of the plea, no amount of evidence can be looked into and the ground pleaded in the suit had not taken in the notice and there is no justification for giving secondary evidence.'

(e) In Gopirathnan, P. v. Ferrodous Estate (Pvt) Ltd., reported in 2007 (2) CTC 618, at pages 630 and 631, it is held as follows:

"34. If this contention is accepted it would mean that during duration of the Act, i.e., till 1999, the agreement was not enforceable and such agreement could be specifically performed after 1999, when the Act was repealed. In other words, the Court would be called upon to enforce the agreement after 19 years on the basis of a consideration which was fixed almost two decades back. It is of course true that there are many instances where such matters pending before the Court for a long period and thereafter the Court passes a decree at trial stage or appellate stage for enforcement of the contract. But, such a position cannot be compared to the present case, wherein as per the opinion of the Full Bench such agreement was contrary to the Public Policy under Section 23 of the Indian Contract Act and was not enforceable, if not void. To enforce such an agreement after long lapse of time because of the subsequent event, namely, repeal of the Act, would not be equitable.

35. In this context, it would be more appropriate to indicate that during course of hearing, the learned Senior Counsel on the basis of the specific instructions of and in the presence of counsel on record had submitted that apart from Rs.4,40,000/-, which has been deposited in Court and which has been invested in fixed deposit earning interest, the plaintiff/respondent is prepared to pay a further sum of Rs.1.25 Crore for completing the transaction. On the other hand, the learned Senior Counsel appearing for the defendants/appellants submitted that since the agreement itself contemplated payment of compensation/damages in case of default by the defendants, the Court should instead of specifically enforcing the agreement, direct payment of compensation/damages to the plaintiff. Learned Senior Counsel on the basis of specific instructions and in the presence of counsel on record made a submission that the defendants/appellants are prepared to pay a consolidated compensation/damages of Rs.2 Crores.

36. It may be that the plaintiff, if permitted to purchase the property, it would develop the same and earn more profit than Rs.2 Crores offered by the defendants/appellants. However, keeping in view the fact that the defendants are the original owners and weighing both the option, we feel interest of justice would be served by directing the defendants/appellants, on the basis of the concession of the counsels that the defendants/appellants shall be liable to pay a consolidated sum of Rs.2 crores as compensation/damages to the plaintiff, which would discharge their liability in full.

37. In view of the above conclusions, it is not necessary for us to go into other questions raised by the appellants to the effect that the plaintiff was not ready and willing to perform its part of the contract.

38. In the result, the Appeal is allowed in part. The judgment and decree of the learned Single Judge is modified and instead of decree for specific performance of the agreement, we direct that the defendants/appellants shall be liable to pay a sum of Rs.2 crores to the plaintiff, in discharge of their entire liability. Such amount should be paid or deposited in Court on or before 31.03.2007, failing which such amount shall carry interest at the rate of 10% per annum thereafter. The amount deposited by the plaintiff is permitted to be withdrawn by the plaintiff along with the accrued interest. The parties shall bear their own costs throughout."

(f) In E.A.Thirugnanam v. V.P.Rajagopal reported in 2006(1) CTC 809, this Court has among other things, held that 'manifold increase in prices of suit property and delay in seeking relief of specific relief creates equity in favour of vendor and it would be inequitable to grant specific performance.'

(g) In Amar Singh v. Baliram Singh reported in 2006(2) Civ.C.R. 637(Pat.), it is held that 'inaction of the plaintiff in not taking any remedy provided under Registration Act and failure to take any action for about 12 months tantamount to abandonment of contract and waiver of right to sue for specific performance of contract of sale and the plaintiff is not entitled to discretionary relief of specific performance.'

20. Conversely, it is the contention of the learned Counsel for the respondents that both the trial Court as well as the first appellate Court have considered the entire gamut of the matter and upon appreciation of oral and documentary evidence, has come to the right conclusion that the respondent/plaintiff (since deceased) is entitled to obtain the relief of specific performance and accordingly, passed a decree to that effect which need not be interfered with by this Court at this distant point of time sitting in the second appeal.

21. In support of his contentions, the learned Counsel for the respondents/plaintiffs relies on the following decisions:

(a) In P.Kathavan Servai and others v. Rahima Beevi and others reported in 1989 (1) MLJ 298, it is held as follows:

"The alternative relief includes refund of any earned money or deposit paid or made by the plaintiff. The grant of a alternative relief would arise only in case the plaintiff' claim for specific performance is refused. When the plaintiff asks for the alternative relief, there is no legal presumption or assumption that he gives up the main or primary relief of specific performance of the Contract only in the context of the statute, which confirm them. The decision of the first Court and in so far as it negatives the primary relief of specific performance, is materially adverse to the plaintiff. In other words, he has been denied or deprived of something what according to the plaintiff, he is entitled to viewed in the above light, certainly an appeal, by plaintiff obtained only the alternative relief of refund of the earnest money or advance money, and who has been denied the relief of specific performance is a competent appeal. In so far as the first Court denied him of the relief of specific performance the plaintiff must be held to be an aggrieved person. There could be an exception and that is where the plaintiff has acted on conducted himself in such a manner to approbate the judgment and decree given to him, such as taking the benefit thereunder and in such a case, he cannot be permitted, to reprobate the judgment by appealing against it."

(b) In P.D.'Souza v. Shondrilo Naidu, reported in AIR 2004 SUPREME COURT 4472, it is observed as follows:

"41.It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that non-performance of the agreement would not cause any hardship to the plaintiff. The defendant was the landlord of the plaintiff. He had accepted part-payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August 1981 i.e. just two months prior to the institution of suit, he had accepted Rs.20,000 from the plaintiff. It is, therefore, too late for the appellant now to suggest that having regard to the escalation in price, the respondent should be denied the benefit of the decree passed in his favour. Explanation I appended to Section 20 clearly stipulates that merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of Section 20.

42. The decision of this Court in Nirmala Anand3 may be considered in the aforementioned context.

43. Raju, J. in the facts and circumstances of the matter obtaining therein held that it would not only be unreasonable but too inequitable for courts to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question, preserved all along by Respondents 1 and 2 by keeping alive the issues pending with the authorities of the Government and the municipal body. It was in the facts and circumstances of the case held: (SCC p. 501, para 23) 23. ... Specific performance being an equitable relief, balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into (sic consideration) the totality of circumstances of each case.

44. The Court for arriving at the said finding gave opportunities to the parties to settle the matter and Respondents 1 and 2 were prepared to pay up to Rs.60 lakhs as against the demand of the appellant to the tune of rupees one-and-a-half crores which was subsequently reduced up to Rs.120 lakhs. In view of the respective stands taken by the parties, the Court inter alia directed Respondents 1 and 2 to pay a sum of Rs.40 lakhs in addition to the sum already paid by them.

45. Bhan, J., however, while expressing his dissension in part observed: (SCC pp. 506 & 507, paras 38 & 40) 38. It is well settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff.

40. Escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case.

46. The learned Judge further observed that delay in performance of the contract due to pendency of proceedings in court cannot by itself be a ground to refuse relief of specific performance in absence of any compelling circumstances to take a contrary view. However, the learned Judge noticed the events which occurred subsequent to the passing of the decree and held: (SCC p. 509, paras 45-47) 45. The appellant has always been ready and willing to perform her part of the contract at all stages. She has not taken any advantage of her own wrong. The appellant is in no way responsible for the delay at any stage of the proceeding. It is the respondents who have always been and are trying to wriggle out of the contract. The respondents cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would amount to an unfair advantage to the appellant.

46. Requiring the appellant to pay further sum of Rs.40 lakhs would/ may amount to frustrating the agreement itself as the appellant may not be in a position to pay the sum of Rs.40 lakhs. Respective counsel for the parties had quoted the figure of a particular sum which could be paid to the appellant in lieu of avoiding the decree of specific performance. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of Rs.40 lakhs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other.

47. For the reasons stated above, I am of the view that the appellant is entitled to the specific performance of agreement to sell Flat No. 71 on the 7th floor of Divya Prabha Building on the price mentioned in the agreement to sell which would be subject to the terms (iii), (iv), (v) and (vi) of the last paragraph of the judgment of my learned Brother. There would be no order as to costs.

47. The said decision cannot be said to constitute a binding precedent to the effect that in all cases where there had been an escalation of prices, the court should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum. No law in absolute terms to that effect has been laid down by this Court nor is discernible from the aforementioned decision."

(c) In Sugani v. Rameshwar Das reported in AIR 2006 SUPREME COURT 2172, it is held that 'interference with in the second appeal is not proper when the concurrent finding of fact that averments in plaint fulfilled requirements of Section 16 C.P.C and equally, interference with concurrent finding that there was collusion between the defendant ad subsequent purchasers was improper.'

22. At this stage, it is useful to refer to the evidence of P.W.1 (deceased plaintiff) and D.W.1 (deceased defendant) for better appreciation of the facts of the present case.

23. P.W.1 (the respondent/plaintiff), in his evidence, has deposed that the suit property is situated at Pallavaram and he has entered into a sale agreement, Ex.A.1 dated 15.11.1979 with the defendant (since deceased) and the sale consideration in regard to the purchase of the suit property is Rs.25,000/- (Rupees Twenty Five Thousand only) and that he has paid an advance of Rs.2,000/- (Rupees Two Thousand only) to the defendant at the time of entering into the said sale agreement, Ex.A.1, and in Ex.A.1, the defendant has made an endorsement, Ex.A.2, to the effect that he will vacate the house on 14.12.1979. It is further evidence of P.W.1, the respondent/plaintiff that he paid a sum of Rs.1,000/- (Rupees One Thousand only) in the year 1983 and the said payment of endorsement is Ex.A.3 and he has been ready to pay the balance sale consideration and to get the sale deed executed in his favour and he informed the defendant by requiring her to execute the sale deed in his favour and Ex.A.4 is the reply sent by the defendant (since deceased) that she will not register the sale deed and he has deposited the balance sale consideration into the Court and from the date of entering into the sale agreement namely 15.11.1979, he has been ready to perform his part of the contract by paying the balance sale consideration and that he has been in possession of the money.

24. The evidence of P.W.1 is to the effect that received a notice from the defendant on 27.12.1979 and on 01.09.1980, he has sent a notice through the Advocate to the defendant for which a reply has been sent by the defendant during the year 1980, for which he issued the rejoinder, for which also the defendant has sent a reply in the year 1980 and he has issued a notice to the defendant by stating that if the defendant is not able to execute the sale deed, then he asked her to return the money paid by him and the defendant has issued a notice to him mentioning that one Thameen has got a share in the suit property and therefore, if he purchased the property, then a dispute will arise and therefore, he issued the notice to the defendant requiring her to return his money, but she has not returned the money.

25. According to the evidence of P.W.1, the defendant informed him that she will convince the said Thameen and later, will register the document and after convincing him, the defendant has received a further sum of Rs.1,000/- (Rupees One Thousand only) in the year 1983 from him in respect of the suit property and afterwards, the defendant has executed Ex.A.3 endorsement, agreeing to sell the suit property and after convincing the said Thameen, the defendant executed Ex.A.3 endorsement, and further, he has sent a lawyer's notice to the defendant mentioning that he is prepared to purchase the suit property, but the defendant has not executed the sale deed.

26. P.W.1 (respondent/plaintiff) (since deceased) goes to add in his evidence that in Ex.A.3, endorsement, (seen on back of Ex.A.1, sale agreement dated 15.11.1979), it is mentioned that he has paid a sum of Rs.1,000/- (Rupees One Thousand only) on 28.04.1983 to the Appellant/defendant (since deceased). Further, it is the evidence of P.W.1 that as per Ex.A.1, sale agreement dated 15.11.1979, in case, the Appellant/defendant (since deceased) delays the execution of sale deed or refuses to execute the sale deed, even though the respondent/plaintiff is ready to perform his part of the contract, then the respondent/plaintiff is entitled to collect a sum of Rs.2,000/- (Rupees Two Thousand only) paid by him as an advance to the Appellant/plaintiff along with a further sum of Rs.2,000/- (Rupees Two Thousand only).

27. Continuing further, it is the evidence of P.W.1 that in Ex.B.1, the lawyer's notice dated 27.12.1979 addressed to the Appellant/defendant (since deceased) and the respondent/plaintiff (since deceased), it is, among other things, mentioned that 'Thameen and Zainab Bi do have the share in the suit property' and further in Ex.B.5, lawyer's notice dated 10.02.1980 issued on behalf of P.W.1 (respondent/plaintiff) addressed to the Appellant/defendant, he has stated that there is encumbrance in the suit property and therefore, he has cancelled the agreement and has asked for return of advance to him, for which the Appellant/defendant (since deceased) has sent Ex.B.6, reply dated 21.02.1980 mentioning that the advance cannot be refunded since as per Ex.A.1, sale agreement, the same has been forfeited, for which he has issued Ex.B.7, notice claiming the advance amount from the Appellant/defendant for which also the Appellant/defendant (since deceased) has sent a reply dated 06.03.1980 stating that it is not possible for her to return the advance amount.

28. It is the categorical evidence of P.W.1 (respondent/plaintiff) in his cross-examination that it is not correct to state that he has himself written Exs.A.2 and A.3, endorsements and therefore, the same has not been made mention of by him through the lawyer's notice sent to the Appellant/defendant and further, it is not correct to state that the same has not been made mention of in the plaint.

29. D.W.1 (Appellant/defendant) (since deceased) in her evidence has stated that she has entered into a sale agreement in respect of the suit property with the respondent/plaintiff (since deceased) and she has received an advance amount of Rs.2,000/- (Rupees Two Thousand only) and that the sale consideration has been determined at Rs.25,000/- (Rupees Twenty Five Thousand only) and as per the sale agreement, the sale has to be completed within a month by the respondent/plaintiff and as per the agreement, the respondent/plaintiff has not paid her the balance sale consideration and in the suit property, no one else has got a share and she has given a reply to the notices issued by the respondent/plaintiff and Thameen and others have no interest in the suit property and the notices and the reply notices are Exs.B.1 to B.10.

30. It is the evidence of D.W.1 that in the suit property, she has constructed a new building and at the time of herself constructing the building in the suit property, at the initial stage, an order has come from the Court she has filed a counter by saying that she will construct the building and she will abide by the result of the judgment and the Court has permitted her to construct the remaining building and further ordered that no new construction shall be made by her.

31. Added further, it is the evidence of D.W.1 that in the year 1983, the marriage of her daughter has been taken place, for which she has purchased a jewellery from the respondent/plaintiff for a sum of Rs.1,000/- (Rupees One Thousand only) and at that time, the respondent/plaintiff has obtained her signature in the agreement, but she has not signed in the agreement for the second time.

32. D.W.1, in her cross-examination has specifically stated that the signature found in the vakalat belongs to her and at the time of purchasing the jewellery, she has signed in the agreement and at the time of purchasing of the jewellery, the respondent/plaintiff (since deceased) informed her that he has no trust in her and therefore, asked her to sign her and therefore, she signed in the agreement.

33. Ex.A.1, the sale agreement dated 15.11.1979, has been executed by the Appellant/defendant (since deceased) in favour of the respondent/plaintiff (since deceased) in respect of the suit property. In Ex.A.1, sale agreement, the sale consideration is mentioned as Rs.25,000/- (Rupees Twenty Five Thousand only).

34. Further, in the said agreement, it is mentioned that approximately, an extent of 1,100 sq.ft vacant site together with a house therein, has been decided to be sold by the Appellant/defendant. The advance amount of Rs.2,000/- (Rupees Two thousand only) has been paid on the date of Ex.A.1, sale agreement, dated 15.11.1979. The balance has been agreed to be paid within a month from the date of Ex.A.1, sale agreement and the sale deed has to be registered and moreover, in the agreement, it is also mentioned that at the time of registration of sale deed, the possession of the property will be handed over by the Appellant/defendant and also that if the sale deed is not executed within one month time, then, the respondent/plaintiff has to forfeit the advance amount ad if the respondent/plaintiff is ready to perform his part of contract and if the Appellant/defendant delays the execution of sale deed and refuses to pay another sum of Rs.2,000/- (Rupees Two Thousand only) along with the advance amount of Rs.2,000/- (Rupees Two Thousand only) and the respondent/plaintiff is entitled to collect the same from the Appellant/defendant.

35. Ex.A.2, is an endorsement dated 14.12.1979 made by the Appellant/defendant (since deceased) in and by which, the Appellant/defendant has made assurance that she will register the sale deed within two months, since she is not able to vacate the tenant who is in occupation of the house.

36. Ex.A.3 is an endorsement made by the Appellant/defendant dated 28.04.1983 wherein it is mentioned that since the tenant is not vacating the house, she will vacate the said tenant by 27.04.1984 and execute the sale deed by means of a registration.

37. Ex.A.4 is the reply lawyer's notice of the Appellant/defendant issued to the respondent/plaintiff's lawyer in any by which it is mentioned that the respondent/plaintiff has been evaded with an ulterior motive to compel the Appellant/defendant to sell the property for a lesser sum and in view of the averment made in the reply notice, the respondent/plaintiff has forfeited his rights and cannot reopen the matter after the lapse and further the agreement is not enforceable by reason of the respondent/plaintiff's conduct, etc.

38. Ex.B.1 is the lawyer's notice dated 27.12.1979 issued on behalf of the Thameen addressed to the Appellant/defendant (since deceased) and the respondent/plaintiff (since deceased). In the said Ex.B.1, the lawyer's notice, it is among other things mentioned that the property described in the notice schedule has been the absolute property of late Masthan Saheb, who passed away leaving behind him surviving his two sons, viz., Anser Saheb and Dada Saheb and four daughters viz., Chotima, Halima Bi, Azeeza Bi, Gori Bi, who is the mother of Thameen. Smt.Fathima Bi, wife of Masthan Saheb was also alive. Smt.Chotima has passed away long time back and her share has devolved on her brothers and sisters and hence, the property of Masthan Saheb described in the Schedule has to be divided between his widow Fathima Bi, his two sons viz., Anser Saheb and Dada Saheb and his daughters viz.., Halima Bi, Azeeza Bi, Gori Bi, as under:-

Fathima Bi - 1/8th share Anser Saheb - 2/8th share Dada Saheb - 2/8th share Halima Bi - 1/8th share Azeeza Bi - 1/8th share Gori Bi - 1/8th share and further, the share of Gori Bi has devolved on her children viz., Zainab Bi, Madar Bi, Chand Bi, Begum and K.Thameen and further the Appellant/defendant (since deceased) has been put on notice by mentioning that she has exclusive right over the property and added further, since the property has to be shared by the heirs and legal representatives of Masthan Saheb, she is not entitled to sell the property to the respondent/plaintiff etc.

39. Ex.B.2 is the reply lawyer's notice dated 02.01.1980 to Ex.B.1, lawyer's notice dated 27.12.1979, issued on behalf of the Appellant/defendant addressed to the Thameen's lawyer, whereby and whereunder it is denied that the property belongs to Masthan Saheb and moreover, it is mentioned that the Appellant/defendant is the absolute owner of the suit property having the right, title and interest and also subsisting right to deal with the property as she likes and the notice issued to the respondent/plaintiff is a mischievous one intended only to scare him away and deprive the Appellant/defendant's absolute right in the property.

40. Ex.B.3, is the Appellant/defendant's lawyer's notice dated 02.01.1980 addressed to the respondent/ plaintiff i and by which, it is mentioned that the Appellant/plaintiff has been in exclusive possession of the property for over a statutory period and the so-called persons alleged to have share in the property have no legal right, etc.

41. In Ex.B.4, the lawyer's reply notice dated 08.01.1980, issued on behalf of Thammen addressed to the Appellant/defendant's lawyer, it is mentioned that the Appellant/defendant is attempting to fabricate a false and bogus claim with a view to sell the property M/s.Santhosh Jewellery and make money.

42. In Ex.B.4, the respondent/plaintiff's lawyer's notice dated 10.02.1980, addressed to the Appellant/ defendant, it is stated that 'on investigation of title, it is found that the Appellant/defendant has no marketable title to the property agreed to be sold and in the circumstances, the respondent/plaintiff does not want to purchase the litigation by going in for the purchase of the property, especially in the face of the notice addressed by Sri Ali Hussain and in view thereof the agreement entered into by the Appellant/defendant with the respondent/plaintiff cannot be implemented and therefore, the respondent/plaintiff is entitled to return of a sum of Rs.2,000/- (Rupees Two Thousand only) which has been received by the Appellant/defendant in part and has asked for refund of the sum of Rs.2,000/- (Rupees Two Thousand only), etc.'

43. In Ex.B.6, the Appellant/defendant's lawyer's reply notice addressed to the respondent/plaintiff's lawyer, it is inter alia mentioned that the respondent/ plaintiff has specified about the right, title and interest of the property agreed to be sold and therefore, no question of the respondent/plaintiff resiling from the agreement and also the Appellant/defendant has given extension of time for the completion of the transaction by the respondent/plaintiff as required by him and inspite of the same, the respondent/plaintiff is now resorted to such vexatious allegations, etc. Moreover, the respondent/plaintiff having failed to complete the transaction inspite of the extension of time granted to him, has forfeited the advance of Rs.2,000/- (Rupees Two Thousand only) and the Appellant/defendant is not liable to repay the same.

44. In Ex.B.7, undated, the respondent/plaintiff's rejoinder addressed to the Appellant/defendant's lawyer, it is among other things mentioned that the Appellant/ defendant has no marketable title and therefore, a sum of Rs.2,000/- (Rupees Two Thousand only) has got to be refunded to the respondent/plaintiff, etc.

45. Ex.B.8, is the notice issued by the respondent/plaintiff's lawyer addressed to the Appellant/defendant in and by which, it is among other things, mentioned that the respondent/plaintiff is ready and willing to complete the sale by paying the balance sale consideration of Rs.23,000/- (Rupees Twenty Three Thousand only) provided the Appellant/defendant rectifying the defect in title and conveying him a clearing marketable title and also the Appellant/defendant is now obliged either to file a suit for declaration of title or give a security of immovable property worth Rs.25,000/- (Rupees Twenty Five Thousand only), etc.

46. In Ex.B.9, reply notice dated 03.07.1982, issued on behalf of the Appellant/defendant's lawyer addressed to the respondent/plaintiff's lawyer, it is stated that there are no encumbrances over the property and the respondent/ plaintiff has inspected the document to title entitling the Appellant/defendant to deal with the property as absolute owner thereof, cannot by no stretch of imagination, offer to purchase the property after committing the breach of contract after such a long time and that the Appellant/defendant regrets her inability to comply with the notice under reply, etc.

47. In Ex.B.10, the respondent/plaintiff's lawyer's notice dated 16.04.1984, addressed to the Appellant/ defendant, the Appellant/defendant has been called upon to receive the balance sale consideration of Rs.23,000/- (Rupees Twenty Three Thousand only) from the respondent/plaintiff and execute the sale deed in favour of the respondent/plaintiff (since deceased) within seven days from the date of receipt of notice.

48. Ex.B.15, is the rejoinder issued by the Appellant/defendant's lawyer dated 06.03.1980, addressed to the respondent/plaintiff's lawyer, in and by which it is mentioned that on account of the notice sent by Zainub Bi and Tamil, the respondent/plaintiff has approached the Appellant/defendant and the Appellant/defendant has assued the respondent/plaintiff that he could retain a sum of Rs.10,000/- (Rupees Ten Thousand only) out of the sale price to vouch for the perfect title of the Appellant/defendant in the property, etc. and even now, without prejudice to the terms of agreement and to show her bona fides, the Appellant/defendant states that the respondent/plaintiff may retain a sum of Rs.15,000/- (Rupees Fifteen Thousand only) and complete the transaction and the said sum of Rs.15,000/- (Rupees Fifteen Thousand only) is to be paid as a condition precedent immediately on completion of one year from the date of sale, etc.

49. In the plaint, the respondent/plaintiff (since deceased) has averred among other things that the Appellant/defendant (since deceased) has entered into an agreement with him on 15.11.1979 to convey the property mentioned in the schedule of the plaint to him for Rs.25,000/- (Rupees Twenty Five Thousand only) and received a sum of Rs.2,000/- (Rupees Two Thousand only) on the date of agreement and further that he has been ready and willing to pay the balance sale consideration and also to complete the sale.

50. Also, the respondent/plaintiff (since deceased) has mentioned in the plaint that he has received a notice from the rival claimants of the Appellant/defendant intimating that they have a right in the suit property also and the respondent/plaintiff (since deceased) issued a notice to the Appellant/defendant (since deceased) on 09.06.1982 calling upon her to clear the defect in the title if any and also arrange to execute the sale deed after discharging all the outstanding debts. Thereafter, the respondent/plaintiff has issued a lawyer's notice dated 16.04.1984 calling upon the Appellant/defendant to execute the sale deed in favour of him, but the Appellant/defendant has been evading and neglecting to complete the sale.

51. In this connection, it is not out of place for this Court to make a relevant mention that the respondent/plaintiff (since deceased) in his plaint, at paragraph 4, has stated that the Appellant/defendant (since deceased) has received further advance of Rs.1,000/- (Rupees One Thousand only) on 28.04.1983 and also made an endorsement on that date and therefore, the Appellant/defendant (since deceased) has been keeping the agreement in force even till now. The respondent/plaintiff (since deceased) in the plaint has prayed for a decree being passed in his favour directing the Appellant/defendant to execute and register the sale deed in respect of the suit schedule property or in the alternative appointing an officer of Court to execute and register a sale deed in his favour in respect of the plaint schedule property.

52. In the written statement, the Appellant/defendant (since deceased) has stated that there has been no defect in title and the exchange of notices have taken place and the notices have been issued to her only with a view to harass her and that she purchased a ring in the year 1983 for her daughter's marriage and badly in need of funds and the respondent/plaintiff exploited the situation and has given the ring and taken the signature in the said agreement and that the time for execution of the agreement has expired and that the suit has been hopelessly barred by limitation.

53. Added further, the Appellant/defendant in paragraph 7 of the written statement, has stated that she has spent more than Rs.1 lakh (Rupees One Lakh only) and has constructed a seven shops and there is a value change in regard to the suit property and that the value of the property is appreciated to a considerable extent and if the plaintiff succeeds, then greater hardship will cause to her.

54. At this juncture, this Court aptly points out the decision in Manickathammal v. Nallasami reported in AIR 1977 MADRAS 83, at page 84, wherein it is held as follows:

"In construing deeds which speak by them-selves, but which speech is likely to affect some parties to it, the Court should take the precaution of seeing that the document is not only technically proved but the recitals therein are true. The Courts ought not to, as a matter of course, adopt the recitals as true if a genuine doubt by reason of the circumstances and the evidence let in the case arises and which would prompt the Court to require a much better standard of proof of the recitals rather than accepting the recitals as such without any further expatiation of the same. In such cases where the Courts are compelled to probe into the realities of the situation and the truth of the recitals the Court's have jurisdiction to buttress such recitals. Such recitals may be telling and forcible but yet, they might require further proof for acceptance by a Court of law. (Para 3) While deciding a case the facts appearing in each of them have to be borne in mind before adopting, as a matter of course, the rule that the contents of a document which has been admitted should be taken as true and proved conclusive. If a genuine doubt is raised about the truth of the recital, as in the instant case then, Court are not helpless but they are in a position to make a further probe into the truth or falsity of the recital and come to a conclusion."

Also in the aforesaid decision, at page 87, in paragraph 9, it is further held hereunder:

"9. We have made the above observation only at the last stage for we are convinced that even assuming that Exhibit A-1, which has been admitted in evidence, contains the said recital to the effect that Veerappa Pillai received Rs. 25,000/-, that by itself nut being conclusive and the plaintiff having failed to establish that he made such deposits as claimed by him, he cannot claim the equitable relief of specific performance. The relief of specific performance either under the Common Law or under the Specific Relief Act is always a discretionary relief. To exercise such a judicial discretion the party claiming such an equity should be entitled to such an equity. We find that the plaintiff is not entitled to it. The judgment and decree of the trial Court are set aside, and the appeal is allowed. But as both the parties below have not placed the truth before the Court, there will be no order as to costs here and in the lower Court."

55. This Court worth recalls the decision of the Honourable Apex Court in V.Muthusami v. Angammal reported in AIR 2002 SUPREME COURT 1279, at page 1284, wherein at paragraphs 22 to 25, it is laid down as follows:

"22. Coming to the facts of the case in hand all the parties proceeded on the basis that Angammal was a limited owner over the suit land and Dhanapal was the full owner and on that basis both the agreements for sale - Ex.B-1 and Ex.B-24 were executed. All the Courts have held that Ex.B-1 executed by Angammal and Dhanapal in favour of the plaintiff was subsequent to the agreement for sale-Ex.B-2 executed by Dhanapal in favour of defendant Nos.3-6. The Courts also held that defendant Nos.3 to 6 were bona fides purchasers for valuable consideration without notice of the agreement for sale, Ex.B-1.

23. Defendant Nos. 3-6 purchased this suit land on February 21, 1975 and they are in possession of suit land by investing a considerable sum for improvement. On these facts, we are of the opinion that a decree for specific relief of the contract would involve hardship on the purchasers - defendant Nos. 3-6 and no hardship would be caused to the plaintiff and he can be compensated by a decree of compensation. We are also of the view that it will also be inequitable, on the facts and in the circumstances of this case, to enforce specific performance of the agreement, Ex.B-1.

24. At the time of execution of the agreement for sale, the plaintiff paid an advance of Rs. 3,000/-. We are of the opinion that the interest of justice would be met if we direct the defendant Nos. 3-6 to pay a sum of Rupees 3,000/- to the plaintiff together with interest @ 12% from the date of the filing of the suit, i.e. March 14, 1975 till the date of payment. Accordingly, we modify the judgment and the decree under challenge.

25. In the result, the appeal is allowed by modifying the impugned judgments and decrees. The suit of the plaintiff is decreed for a sum of Rs. 3,000/- with interest @ 12% from 14-3-1975 till the date of payment in lieu of specific performance. Defendants shall pay the amount within a period of six months from today. Considering the facts and circumstances of the case, we direct the parties to bear their own costs."

56. Further, this Court quotes the following decisions:

(a) In Gobind Ram v. Gian Chand reported in (2000) 7 Supreme Court Cases 548, at page 549, paragraphs 6 to 9, it is held thus:

"6. Next decision on which learned Senior Counsel for the appellant relied is in Parakunnan Veetill Josephs Son Mathew v. Nedumbara Kuruvilas Son (1987 Supp SCC 340) We may extract the relevant portion of the said judgment:

14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.

7. It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it will be fair, just and equitable. The court is guided by principle of justice, equity and good conscience. As stated in P.V. Josephs Son Mathew the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered.

8. The High Court considering the facts of this case observed as follows:

We are conscious of the fact that the defendant has been in possession of the said quarter for the last several decades and logical consequence of affirming the judgment of the trial court would mean considerable hardship to him, at the same time the conduct of the defendant does not justify any further indulgence by the court. We have no doubt that the defendant has tried to wriggle out of the contract between the parties because of the tremendous escalation in the prices of real estate properties all over the country and in Delhi, in particular in the last few years.

9. In view of the above clear finding of the High Court that the appellant tried to wriggle out of the contract between the parties because of escalation in prices of real estate properties, we hold that the respondent is entitled to get a decree as he has not taken any undue or unfair advantage over the appellant. It will be inequitable and unjust at this point of time to deny the decree to the respondent after two courts below have decided in favour of the respondent. While coming to the above conclusion we have also taken note of the fact that the respondent deposited the balance of the consideration in the trial court and also the amount in the High Court, as directed. On the other hand the appellant, as held by the High Court, tried to wriggle out of the contract in view of the tremendous escalation of prices of real estate properties. However, to mitigate the hardship to the appellant we direct the respondent to deposit a further sum of Rs.3,00,000 within 4 months from today with the Registry of this Court and the amount shall be kept in short-term deposit in a nationalised bank. While giving the above direction we have taken note of the offer made to us on behalf of the respondent. This amount is to be paid to the appellant on his giving possession of the suit property to the respondent within 6 months from the date of the deposit of the above amount. The appellant shall also be entitled to withdraw the amount already deposited in the trial court and the amount of Rs.1,00,000 which has been kept in interest-bearing fixed deposit in the Registry of the High Court."

(b) In Union Construction Co. v. Chief Engineer, Eastern Command, Lucknow and another reported in AIR 1960 ALLAHABAD 72, at page 73, it is held thus:

"Section 12(c) clearly shows that the Court can exercise the discretion only in a case where pecuniary compensation would not afford adequate relief. A petitioner for a writ who takes building contracts with a view to make profit is interested in the contracts only with a view to earn money and it should not matter to the petitioner if he obtains that money by way of damages by filing a suit for the same instead of earning it as profit after completing the contract. Hence, compensation in money can be an adequate relief to the petitioner. Therefore, though there may be some difficulty in the way of the petitioner in filing a suit for specific performance of the contract there can be no difficulty in his way in filing a suit for damages and such a suit would be an alternative remedy for the purposes of Art. 226 of the Constitution."

(c) In Devchand M.Shah v. P.Sivapragasa Mudaliar reported in AIR 1998 MADRAS 304, at page 309, in paragraphs 24 to 26, it is held as follows:

"24. The learned Counsel for the respondents cited the following decisions:

1. Chand Rani v. Kamal Rani, AIR 1993 SC 1742 : (1993 AIR SCW 1371); and

2. Vidyanadam, K. S. v. Vairavan, 1997 (1) CTC 628 : (AIR 1997 SC 1751).

In the first cited decision the Apex Court in paragraph 21, the Learned Judges have approved the statement in para 1179, in the 4th edition of Halsbury's Laws of England, which runs as follows :

"Where time has not been made of the essence of the contract or, by reason of waiver, the time fixed has ceased to be applicable, the employer may by notice fix a reasonable time for the completion of the work and dismiss the contractor on a failure to complete by the date so fixed."

The aforesaid statement clearly applies to the facts of the present case.

25. In the second cited decision, the Apex Court has stated as follows :

"Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."

26. From the aforesaid discussion, we have to necessarily answer the point that the first plaintiff was not entitled for specific performance and he has abandoned the agreement itself by his conduct. In the circumstances, I have no hesitation to hold that the appellants are not entitled to any relief in the appeal and it has to be dismissed. Accordingly, it is dismissed with costs of the respondents."

(d) In In re: Kuttadan Valayudhan and others reported in AIR 2001 KERALA 123, it is held as under:

"Mere putting of signature does not amount to admission of the execution of the document. Ordinarily signature merely means putting one's name or any other mark to identify a person making the mark. But when a word 'signature' is attributed with regard to the written document, which creates obligation on the person signing it, it can only mean signing the document after the document is prepared and completed. There, the signature is put to show that the person who signed has agreed the terms and conditions of that document. The intention with regard to the acknowledgement of the term should be there. When the person signs the same, then only it can be said that the person has executed the document. Hence when person says that he put the signature on a blank paper that does not mean that he had admittedly executed the document."

Also, in the aforesaid decision, at page 124, it is observed that 'normally, the rule is that the agreement will be specifically enforced and mere fact that it will cause hardship to the defendants cannot prevent High Court from passing any decree for specific performance.'

(e) In Ramji Patel v. Rao Kishore Singh reported in AIR 1929 Privy Council 190, it is held that 'Where compensation in money is an adequate relief to the plaintiff a decree for specific performance of the contract should not be made. Proper decree in such cases would be one for damages which should be calculated on the price of the property at the date of breach of the contract.'

(f) In Dr.Jiwan Lal and others v. Brij Mohan Mehra and another reported in AIR 1973 SUPREME COURT 559, it is held that 'Where the plaintiffs have been pursuing their claim under an agreement and the specific performance of the agreement on the date of the institution of the suit was not likely to cause any prejudice to the other party, the suit could not be dismissed on account of delay.'

(g) In Kota Satyanarayana v. Qamarunnisa Begum reported in AIR 2003 ANDHRA PRADESH 63, at page 69, it is observed as follows:

"15. It is no doubt true that the learned Counsel for the appellant had stressed on the aspect that the extension of time was mutually agreed and hence absolutely there was no breach of contract on the part of the plaintiff. It is also not in dispute that several endorsements had been made extending time. As can be seen from the sequence of events and also the series of events, the trial Court in fact had discussed in detail the evidence of PW-1, DW-1 and DW-2, Exs. A-1 to A-8 and also Exs. B-1 to B-6. The trial Court also was well convinced that the evidence of PW-1 is corroborated in all material particulars by the evidence of DW-2, whereas the plaintiff had not chosen to examine either his father or Ramaswamy. Further, on the material available on record, the trial Court was satisfied that it is the plaintiff and the father of the plaintiff who had collusively got Ex. A-4 and made them to file the fictitious suit O.S. No. 232/80 and further a finding had been recorded that the plaintiff put the defendant into trouble by obtaining an order of attachment relating to other house making her to deposit Rs. 25,000/- and further the trial Court had discussed several other aspects in detail at paragraph 8 of the Judgment and had ultimately arrived at the conclusion that in the facts and circumstances of the case, the plaintiff is not entitled to the relief of specific performance. For the reasons recorded in detail by the trial Court, especially the appreciation of evidence of DW-1 and DW-2 and Exs. B-1 to B-6 and also the non-examination of Ramaswamy or the father of the plaintiff, at any stretch of imagination, it cannot be said that the judgment of the trial Court granting only the relief of refund of amount, is not justified. In fact, clear findings had been recorded why the trial Court was not inclined to exercise the discretion in granting the relief of specific performance. It is a peculiar case where for reasons best known the father of the plaintiff and the plaintiff had sought for certain properties, got a suit instituted and not being satisfied by it, had obtained an order of attachment relating to the other house of the defendant and made her to deposit some amount and had put the defendant into lot of trouble. All these aspects are borne out by record and as can be reflected from the evidence of PW-1 and also DW-1 and DW-2 and hence at any stretch of imagination it cannot be said that the discretion was not exercised properly by the trial Court. In fact specific questions were posed to DW-1 relating to the collusive nature of O.S. No. 232/80 and she had deposed categorically under what circumstances she is making such a statement.

16. No doubt, reliance was placed by the learned Counsel for the appellant on the decisions referred (1), (2) and (3) supra. The principles relating to the grant of specific performance or refusing specific performance no doubt are well settled. In the decision referred (4) supra, it was held that specific performance of agreement of sale of immovable property and the relief relating thereto lies within the discretion and such discretion should be exercised in accordance with justice, equity and good conscience and fairness to both the parties. In the light of the view expressed in the above decision, on appreciation of the facts and circumstances, since the trial court had exercised the discretion properly in decreeing the suit for refund only, I do not see any compelling reasons to arrive at a different conclusion or to record different findings in this regard and hence the findings recorded by the trial Court are hereby confirmed."

57. A jurisdiction of a Court of law to pass a decree for specific performance is a discretionary one and must be exercised on sound and reasonable grounds "guided by judicial principles and capable of correction by a Court of appeal." The grant of decree of specific performance is one of discretion of Court and the Court has to consider whether it will be fair, just and equitable. The jurisdiction vested in the Court to decline specific performance and grant alternative relief is a jurisdiction of equity and good conscience and must be exercised in consonance of the settled principles of law. A party seeking specific performance of contract must satisfy all the requirements necessary for seeking relief in equity. To put it precisely, the relief of specific performance either under the common law or under the Specific Relief Act, is always a discretionary relief and to exercise such a judicial discretion the party seeking such an equity should be entitled to such equity.

58. Section 20 of the Specific Relief Act, 1963, says that a Court of law has a discretionary power to grant a decree for specific performance. However, Section 20 of the Act also speaks of the fact that the Court is not bound to grant such relief merely because it is lawful to do so. In Common Law and the Specific Relief Act, the relief of specific performance is a discretionary one.

59. A party who sets up a false case, cannot obtain a relief of specific performance as per the decision in Venkata Subaiya v. Kavam Seth reported in AIR 1971 A.P. 279.

60. As far as the present case is concerned, in Ex.B.5, the respondent/plaintiff's lawyer's notice dated 10.02.1980, addressed to the Appellant/defendant (since deceased), it is stated among other things that 'on investigation of title, the respondent/plaintiff has found that the Appellant/defendant has no marketable title to the property agreed to be sold and in the circumstances, the respondent/plaintiff does not want to purchase the litigation by going in for the purchase of the property, specifically in the face of the notice addressed by Sri Ali Hussain and therefore, the agreement cannot be implemented.

61. In Ex.B.6, the Appellant/defendant's lawyer's reply notice dated 21.02.1980, addressed to the respondent/plaintiff's lawyer, it is among other things mentioned that the respondent/plaintiff inspite of the extension of time, has failed to complete the transaction and has forfeited the advance amount of Rs.2,000/- (Rupees Two Thousand only) paid by him and therefore, the Appellant/defendant is not liable to refund the same for the reasons stated therein and also without prejudice to her rights, she is willing to complete the transaction within a month thereof and giving all sorts of indemnity, the respondent/plaintiff may require for the assurance of the title to the property.

62. Ex.B.7, is the Rejoinder issued by the respondent/plaintiff's lawyer addressed to the Appellant/defendant's lawyer, wherein it is mentioned that the Appellant/defendant has no marketable title and therefore, a sum of Rs.2,000/- (Rupees Two Thousand only) has got to be refunded to the respondent/plaintiff.

63. In Ex.B.8, the respondent/plaintiff's lawyer notice dated 09.06.1981, addressed to the Appellant/ defendant, it is among other things mentioned that in the absence of clear title, the Appellant/defendant should offer a security of any of the unencumbered immovable property worth of Rs.25,000/- (Rupees Twenty Five Thousand only) and that the Appellant/defendant has neither cleared the encumbrances nor complied with the request of the respondent/plaintiff to offer an immovable property as security.

64. In Ex.B.15, the Appellant/defendant's lawyer's rejoinder dated 06.03.1980, addressed to the respondent/ plaintiff's lawyer, it is stated that the respondent/plaintiff may retain a sum of Rs.15,000/- (Rupees Fifteen Thousand only) and complete the transaction and the said sum of Rs.15,000/- (Rupees Fifteen Thousand only) is to be paid as a condition precedent immediately on completion of one year from the date of sale.

65. From the recitals of Exs.B.5, the respondent/ plaintiff's lawyer's notice dated 10.02.1980, addressed to the Appellant/defendant (since deceased), and B.7, undated rejoinder issued by the respondent/ plaintiff's lawyer addressed to the Appellant/defendant's lawyer, it is quite evident that the respondent/plaintiff has demanded only the return of advance of Rs.2,000/- (Rupees Two Thousand only) paid by him to the Appellant/defendant at the time of entering into the sale agreement dated 15.11.1979 and moreover, it is candidly clear that in Ex.B.5, the respondent/plaintiff has stated that the Appellant/defendant has no marketable title ad as such, he is not interested in regard to the completion of sale agreement by means of specific performance relief.

66. In Ex.B.6, the Appellant/defendant's lawyer has stated that the respondent/plaintiff has failed to complete the transaction and therefore, the plaintiff has forfeited the advance of Rs.2,000/- (Rupees Two Thousand only) paid by him, etc.

67. In Ex.B.8, the legal notice issued by the respondent/plaintiff's lawyer addressed to the Appellant/defendant, the respondent/plaintiff has demanded from the Appellant/defendant the security of any unencumbered immovable property worth of Rs.25,000/- (Rupees Twenty Five Thousand only).

68. A reading of Exs.B.6, appellant/defendant's lawyer's notice and B.8, legal notice of the respondent/plaintiff's lawyer shows that the respondent/ plaintiff has forfeited the advance of Rs.2,000/- (Rupees Two Thousand only) and further that the respondent/plaintiff has demanded from the Appellant/ defendant a security of any unencumbered immovable property. Though both the Respondent/plaintiff and the Appellant/defendant have exchanged the notices, reply notices and rejoinders etc, through their respective Counsels, the Respondent/plaintiff by means of Exs.B.5 and B.7 has only demanded the return of advance of Rs.2,000/- (Rupees Two Thousand only) paid by him to the Appellant/defendant. Moreover, the Respondent/plaintiff has come to the conclusion that Ex.A.1, sale agreement dated 15.11.1979, cannot be implemented and that as per Exs.B.5 and B.7, the Respondent/plaintiff's lawyer's notice dated 10.02.1980, the Respondent/plaintiff has not exhausted upon his right of specific performance. In regard to Exs.B.6 and B.8, the Appellant/Defendant has stated that the Respondent/plaintiff has failed to complete the transaction and forfeited the advance amount and also that the Respondent/plaintiff's lawyer has demanded from the Appellant/Defendant the unencumbered immovable property worth of Rs.25,000/- (Rupees Twenty Five Thousand only) as security and further that the Respondent/plaintiff has not been always ready and willing to perform his part of contract because of the defects in title found on investigation and accordingly, the substantial questions of law Nos.1 and 4 are answered.

69. The case of the Appellants is that as per Ex.B.6, reply notice dated 21.02.1980, issued by the Appellant/defendant's lawyer addressed to the respondent/plaintiff's lawyer, the Appellant/defendant (since deceased) has refused to perform her part of the contract and therefore, the suit ought to have filed by the respondent/plaintiff from the date of Ex.B.6 reply notice dated 21.02.1980 or within three years after the expiry of one month from 21.02.1980 and since the time has already expired and further inasmuch as the respondent/plaintiff has never been ready and willing to perform his part of the contract and all the more, when the suit has been filed on 17.09.1986 before the trial Court, the suit is barred by limitation.

70. Ex.A.1 is the sale agreement dated 15.11.1979 entered into between the respondent/plaintiff (since deceased) and the Appellant/defendant (since deceased). The time for execution of the sale agreement by the Appellant/defendant is one month from the date of execution of sale agreement dated 15.11.1979. Admittedly, the Appellant/defendant has received a sum of Rs.2,000/- (Rupees Two Thousand only) as advance from the respondent/plaintiff. On the reverse side of Ex.A.1, sale agreement, Ex.A.2, endorsement dated 14.12.1979 has been made by the Appellant/defendant mentioning that she has assured the respondent/plaintiff that she will register the sale deed within a period of two months because of the reason that she has not been in a position to register the sale deed as per Ex.A.1, sale agreement and further because of the fact that the tenant has not vacated the house.

71. Ex.A.3 is the endorsement dated 28.04.1983 made by the Appellant/defendant wherein she has stated that she will vacate the tenant before 27.04.1984 and register the sale deed in favour of the respondent/plaintiff.

72. In this connection, it is to be pointed out that as per Article 113 of the Limitation Act, a period of three years is prescribed from the date fixed therein for a specific performance of a contract. Therefore, it follows that mere delay without more extending upto the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. As per Article 54 of the Limitation Act, which deal with the limitation for specific performance of contract is three years and the time begins to run from the date fixed for performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. In our case on hand, from the date of Ex.A.1, sale agreement, viz. 15.11.1979, it has been extended upto 27.04.1984 and ultimately, on 17.05.1984, when the Appellant/defendant refused to complete the sale, has made a mention of by the respondent/plaintiff in the cause of action paragraph at paragraph 8. However, the respondent/plaintiff has filed the suit on 17.09.1986. From the date of refusal made by the Appellant/defendant namely 17.05.1984, within three years thereof, the suit has been filed by the respondent/plaintiff on 17.09.1986 and therefore, the suit is not barred by limitation and hence, the contra contention on behalf of the Appellant/defendant that the suit ought to have been filed by the respondent/plaintiff within three years from the date of Ex.B.6 dated 21.02.1980 or within three years after the expiry of the period from 21.02.1980, is not accepted by this Court and accordingly, the Substantial Questions of Law Nos.2 and 3 are answered against the Appellants/defendants.

73. P.W.1 in his evidence has clearly referred to Ex.A.2, endorsement on the reverse side of Ex.A.1, sale agreement and he has also spoken about Ex.A.3, endorsement. Though the respondent/plaintiff in his evidence has deposed that he has paid Rs.1,000/- (Rupees One Thousand only) to the Appellant/defendant during the year 1983 and in Ex.A.3, endorsement, dated 28.04.1983, the same has not been written. On going through Ex.A.3, endorsement, this Court is of the considered view that there is no express or implied mention of the said amount of Rs.1,000/- (Rupees One Thousand only) being paid by the respondent/plaintiff and in the absence of the same, viz, what has not been found in the recitals of Ex.A.3, endorsement, the plea of the respondent/plaintiff that he has paid a sum of Rs.1,000/- (Rupees One Thousand only) to the Appellant/defendant during the year 1983, is unworthy of acceptance by this Court.

74. In Ex.A.1, sale agreement dated 15.11.1979, the Appellant/defendant has signed in Urudhu. The recitals of Ex.A.1 are written in Tamil. Though the recitals in Ex.A.1 are written in Tamil, the Appellant/defendant has sgined in Urudhu. In Exs.A.1, sale agreement dated 15.11.1979 and A.2, endorsement dated 14.12.1979, there are witnesses like Muthukrishnan and another. However, in Ex.A.3, the Appellant/defendant's signature in Urudhu is found. However, in Ex.A.3, endorsement, no witnesses' names or signatures are there. Though the Appellant/ defendant (since deceased) as D.W.1, has deposed in her evidence that at the time of purchasing a jewellery, she has put her signature in the agreement and it is not correct to state that she has signed on the reverse side of Ex.A.1 sale agreement. On going through the signature of the Appellant/defendant found in Ex.A.1, sale agreement and that of Exs.A.2 and A.3, endorsements, it is clear that the Appellant/defendant has put the signatures in all Exs.A.1 to A.3, documents and Exs.A.2 and A.3 endorsements are made in a natural way and there is nothing wrong in both the Courts below believing Exs.A.2 and A.3, endorsements and further, this Court is also of the considered view that the signature found in Ex.A.2 and A.3 are only that of the Appellant/defendant and there is no difference in signature made by the Appellant/defendant in Exs.A.2 and A.3 in comparison to that of her signature found in Ex.A.1, sale agreement. Accordingly, the Substantial Question of Law No.5 is answered against the Appellants/defendants.

75. The contentions, discussions and findings on Substantial Questions of Law Nos.6 and 7:

It is not in dispute that the relief of specific performance cannot be negatived on the ground of bargain or the price is not adequate one or the price of the property has increased. Even though Section 14 of the Specific Relief Act, 1963 in terms mentioned the cases in which specific performance cannot be granted, it cannot be construed that Section 20 is a departure from the rigours of Section 14 of the Act. The discretionary remedy of granting specific performance relief must be exercised by a Court of law based on sound judicial principles and not arbitrarily. Moreover, mere delay in putting to the period of limitation refusing the relief of specific performance also. Further, a person who seeks the relief of specific performance, must come to the Court with clean hands since the relief itself is a discretionary relief. However, the Court cannot grant the relief of specific performance if the plaintiff, by his own conduct, makes it impossible for the Court to enforce the contract in its entirety. The Doctrine of laches can be applied to both the promisor and the promisee. Laches is not the same as mere delay. The delay within the period of limitation may not affect the rights of the plaintiff to enforce specific performance unless some prejudice is caused to the defendant because of the change of circumstances.

76. A Court of law while dealing with the case of specific performance is a Court of equity. Admittedly, the Appellant/defendant has constructed a new building and that at the time of her construction, initially, the Court has passed an order not to construct the building, but she filed the counter stating that she will construct the building and abide by the result of the judgment.

77. Even though the respondent/plaintiff after issuing Exs.B.5 notice dated 10.02.1980 and B.7, rejoinder notice, addressed to the Appellant/defendant's lawyer, wherein he has demanded for the return of the advance amount of Rs.2,000/- (Rupees Two Thousand only) paid by him to the Appellant/defendant and also he has made a mention that on investigation of title, he has found that the Appellant/defendant has no marketable title and later, he has not given up his right of specific performance, yet this Court, on taking note of the facts and circumstances of the case and also after perusing the contents of the different notices, reply notices and rejoinders exchanged between the parties, is of the considered view that the relief of specific performance is an equitable discretionary remedy and since the respondent/plaintiff has not demanded only for the return of the amount paid by him to the Appellant/defendant, even at the earliest point of time, as per Exs.B.5 and B.7, this Court comes to an inevitable conclusion that the plaintiff has not been always ready and willing to perform his part of the contract and moreover, this Court is not inclined to grant the relief of specific performance by exercising its discretionary power based on sound and reasonable ground guided by judicial principles, but this Court opines that the ends of justice will be met by directing the Appellants/defendants 2 to 10 (after the death of the sole Appellant/defendant) to return the advance amount of Rs.2,000/- (Rupees Two Thousand only) received by the Appellant/defendant (since deceased) together with interest at the rate of 12% p.a. from the date of sale agreement Ex.A.1, i.e., 15.11.1979 till date of realisation with proportionate costs and ordering the return of the advance is an alternative and viable remedy to the respondents/plaintiffs.

78. Even though the concurrent finding rendered by both the Courts below need not be generally interfered with by a Court of law, yet when the said concurrent findings are not based on proper appreciation of facts and circumstances of the case in a cumulative fashion, this Court sitting in second appeal has got ample and wide powers to do complete justice between the parties and accordingly, holds that a direction to the Appellants/defendants to return the advance of Rs.2,000/- (Rupees Two Thousand only) to the respondents/plaintiffs is an adequate relief as per Section 14(1)(a) of the Specific Relief Act and unfortunately, this aspect of the matter has not been adverted to by both the Courts below in a proper and real perspective and they have also ignored the relevant facts and exercised discretion against judicial principles which have resulted in a miscarriage of justice and accordingly, this Court answers the Substantial Questions of Law Nos.6 and 7 and consequently, the second appeal succeeds.

79. In the result, this second appeal is allowed leaving the parties to bear their own costs and the judgment and decree passed by both the Courts below are set aside by this Court for the reasons assigned in this second appeal. Resultantly, the Appellants are directed to refund the advance of Rs.2,000/- (Rupees Two Thousand only) to the Respondents/plaintiffs together with interest at the rate of 12% p.a from the date of sale agreement Ex.A.1, i.e, 15.11.1979 till date of realisation with proportionate costs. Time for payment is two months.

rsb To

1.The District Judge, Chengalpattu.

2.The Sub Judge, Poonamallee