# C. HARIDASAN v. ANAPPATH PARAKKATTU VASUDEVA KURUP & OTHERS

- **Citation:** [2023] 3 S.C.R. 244
- **Court:** Supreme Court of India
- **Decided:** 2023-01-13
- **Case number:** Civil appeal no. 4072 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-haridasan-v-anappath-parakkattu-vasudeva-kurup-others-36878
- **Pages:** 38

## Headnote

Specific Relief Act, 1963 : ss. 10, 16(c), 20 - Discretion as to
decreeing specific performance - On facts execution of the
agreement to sell land between the parties and receipt of
consideration by the appellant-buyer - Balance amount to be paid
within six months provided the respondent-seller made available
the document of title and purchase certificate after measuring the
property - Thereafter notice served by the appellant to the
respondent to execute the sale deed - Refusal of the respondent to
execute the sale deed and cancelled the agreement - Suit for specific
performance of the agreement to sell by the appellant - Trial court
allowed the suit and also directed the appellant to pay 25% more
amount, over and above the agreed consideration - High Court
while considering s. 20, set aside the decree for specific performance
and directed the respondent to pay the consideration amount to the
appellant - On appeal held: In view of difference of opinion, matter
referred to the larger bench - Reference to larger Bench.
Referring *the matter to larger Bench, the Court
HELD :
PER M. R. SHAH, J.
1.1. It was never the case on behalf of the defendants in
the written statement and/or even before the trial court that the
agreement to sell was inequitable and/or was a forced agreement
to sell. Even the trial court also did not frame the issue, "whether
agreement to sell was a forced agreement to sell/contract or not".
 [2023] 3 S.C.R. 244
244
Ed. Note : Hon'ble Mr. Justice M.R. Shah and Hon'ble Mrs. Justice B.V. Nagarathna
pronounced separate reportable judgments of the Bench comprising Their Lordships.
In view of difference of opinion in the matter it was directed to place the papers before
Hon'ble the Chief Justice of India for appropriate orders for constituting a larger Bench
to decide the controversy.
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On appreciation of entire evidence on record, the trial court after
recording the findings on the execution of the agreement to sell
by the defendants and receipt of part sale consideration and that
the plaintiff was always ready and willing to perform his part of
the contract, decreed the suit for specific performance. The High
Court, as such, has not commented upon and/or set aside any of
the findings recorded by the trial court, recorded while passing a
decree for specific performance. Straightway, the High Court
considered Section 20 of the Specific Relief Act and observed
and held that by enhancing the amount of sale consideration, the
trial court has wrongly exercised the discretion in favour of the
plaintiff. The High Court commented upon the order passed by
the trial court enhancing the amount of sale consideration and
directing the plaintiff to pay more amount than the sale
consideration mentioned in the agreement to sell. [Para 6][257A-E]
1.2 The trial court directed the plaintiff to pay some more
amount than the amount mentioned in the agreement to sell, at
the most, the plaintiff can be said to be aggrieved. Still, the High
Court considered such an order passed by the trial court against
the defendants. As such, the trial court was absolutely justified in
compensating the defendants by paying some more amount while
passing a decree for specific performance. Therefore, in the facts
and circumstances of the case and more particularly when the
trial court exercised the discretion in favour of the plaintiff after
having observed and recorded the findings on the execution of
the agreement to sell by the defendants and that the part sale
consideration was paid by the plaintiff which was accepted by the
defendants and thereafter the finding that the plaintiff was always
ready and willing to perform his part of the contract, the trial
court was absolutely justified in passing the decree for specific
performance. The High Court has erred in interfering with the
judgment and decree passed by the trial court, without setting
aside the findings recorded by the trial court recorded while
passing the decree for s

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SUPREME COURT REPORTS
[2023] 3 S.C.R.
C. HARIDASAN
v.
ANAPPATH PARAKKATTU VASUDEVA KURUP & OTHERS
(Civil appeal no. 4072 of 2022)
JANUARY 13, 2023
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Specific Relief Act, 1963 : ss. 10, 16(c), 20 - Discretion as to
decreeing specific performance - On facts execution of the
agreement to sell land between the parties and receipt of
consideration by the appellant-buyer - Balance amount to be paid
within six months provided the respondent-seller made available
the document of title and purchase certificate after measuring the
property - Thereafter notice served by the appellant to the
respondent to execute the sale deed - Refusal of the respondent to
execute the sale deed and cancelled the agreement - Suit for specific
performance of the agreement to sell by the appellant - Trial court
allowed the suit and also directed the appellant to pay 25% more
amount, over and above the agreed consideration - High Court
while considering s. 20, set aside the decree for specific performance
and directed the respondent to pay the consideration amount to the
appellant - On appeal held: In view of difference of opinion, matter
referred to the larger bench - Reference to larger Bench.
Referring *the matter to larger Bench, the Court
HELD :
PER M. R. SHAH, J.
1.1. It was never the case on behalf of the defendants in
the written statement and/or even before the trial court that the
agreement to sell was inequitable and/or was a forced agreement
to sell. Even the trial court also did not frame the issue, "whether
agreement to sell was a forced agreement to sell/contract or not".
 [2023] 3 S.C.R. 244
244
Ed. Note : Hon'ble Mr. Justice M.R. Shah and Hon'ble Mrs. Justice B.V. Nagarathna
pronounced separate reportable judgments of the Bench comprising Their Lordships.
In view of difference of opinion in the matter it was directed to place the papers before
Hon'ble the Chief Justice of India for appropriate orders for constituting a larger Bench
to decide the controversy.
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On appreciation of entire evidence on record, the trial court after
recording the findings on the execution of the agreement to sell
by the defendants and receipt of part sale consideration and that
the plaintiff was always ready and willing to perform his part of
the contract, decreed the suit for specific performance. The High
Court, as such, has not commented upon and/or set aside any of
the findings recorded by the trial court, recorded while passing a
decree for specific performance. Straightway, the High Court
considered Section 20 of the Specific Relief Act and observed
and held that by enhancing the amount of sale consideration, the
trial court has wrongly exercised the discretion in favour of the
plaintiff. The High Court commented upon the order passed by
the trial court enhancing the amount of sale consideration and
directing the plaintiff to pay more amount than the sale
consideration mentioned in the agreement to sell. [Para 6][257A-E]
1.2 The trial court directed the plaintiff to pay some more
amount than the amount mentioned in the agreement to sell, at
the most, the plaintiff can be said to be aggrieved. Still, the High
Court considered such an order passed by the trial court against
the defendants. As such, the trial court was absolutely justified in
compensating the defendants by paying some more amount while
passing a decree for specific performance. Therefore, in the facts
and circumstances of the case and more particularly when the
trial court exercised the discretion in favour of the plaintiff after
having observed and recorded the findings on the execution of
the agreement to sell by the defendants and that the part sale
consideration was paid by the plaintiff which was accepted by the
defendants and thereafter the finding that the plaintiff was always
ready and willing to perform his part of the contract, the trial
court was absolutely justified in passing the decree for specific
performance. The High Court has erred in interfering with the
judgment and decree passed by the trial court, without setting
aside the findings recorded by the trial court recorded while
passing the decree for specific performance. The impugned
judgment and order passed by the High Court is unsustainable,
both, on law as well as on facts, and is quashed and set aside and
the judgment and decree passed by the trial court for specific
performance of agreement to sell is restored. However, to do
C. HARIDASAN v. ANAPPATH PARAKKATTU VASUDEVA
KURUP
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complete justice and in exercise of powers under Article 142 of
the Constitution of India, it is directed that over and above the
sale consideration mentioned in the agreement to sell and the
amount already deposited by the plaintiff, the plaintiff to pay a
further sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) to the
original defendants, to be paid within the stipulated period. The
amount which might have been deposited by the original
defendants, deposited pursuant to the impugned judgment and
order passed by the High Court, i.e., Rs. 3,10,000/- be also
returned/paid to the original defendants. [Para 7, 8][257-F-H; 258A-E]
Pratap Lakshman Muchandi v. Shamlal Uddavadas
Wadhwa, (2008) 12 SCC 67 : [2008] 1 SCR 854 - relied
on.
PER B. V. NAGARATHNA, J. (Dissenting) :
1.1 The High Court relied on Section 20 of the Specific
Relief Act, prior to the same being substituted by way of Act No.
18 of 2018, to deny the relief of specific performance to the
plaintiff. Section 20 of the Act as it stood prior to the Amendment
Act of 2018 provided that the jurisdiction to decree specific
performance is discretionary. It said that the Court is not bound
to grant such relief merely because it is lawful to do so. Such a
discretion, however, was not to be exercised arbitrarily, but ought
to have been based on sound and reasonable judicial principles.
Even in the absence of discretionary power under Section 20 to
deny the relief of specific performance, the plaintiff was not entitled
to claim such relief as a matter of right. The position of law, even
following the amendment of 2018 remains that the provisions of
Section 16 of the Act have to be mandatorily complied with by
the party seeking the relief of specific performance. The relief of
specific performance cannot be granted in favour of a party who
has not performed his obligations under the contract. It is
therefore necessary to ascertain whether, the plaintiff had
complied with the statutory prerequisites under Section 16 (c),
before claiming the relief of specific performance. [Para
12,18][268-B-C; 270-H; 271-A-B]
1.2 Clause (c) of Section 16 of the Act, which is relevant in
the instant case, though amended w.e.f. 01st October, 2018 clearly
states that unless the plaintiff establishes his readiness and
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willingness to perform his part of the contract, he would not be
entitled to a decree of specific performance. Prior to the
amendment, the expression "who fails to aver and prove" was
on the statute book and its substitution by the words "who fails
to prove" does not bring about any drastic change to the object
and intent of the clause. This is because failing to prove readiness
and willingness to perform the essential terms of the contract
would first require averments to that effect to be made in the
plaint by the plaintiff. The absence of such averments regarding
readiness and willingness to perform the essential terms of the
contract by the plaintiff would not permit him to let in any evidence
on that aspect. It is a settled principle of law that no evidence can
be permitted to be let in in the absence of averments in the plaint
/ pleadings. [Para 19][271-G-H; 272-A-C]
1.3 Notwithstanding the amendment to Section 16 of the
Act whereby the expression "who fails to aver and prove" has
been substituted with the phrase "who fails to prove," the law
remains that no evidence can be let in on a plea that was never
put forward in the plaint/pleadings. But, it is necessary to sound
a caveat. Even the absence of the words "ready and willing to
perform the contract" in the plaint would now not have an adverse
impact on the plaintiff's case, so long as plaintiff's readiness and
willingness to perform the essential terms of the contract could
be gathered on a holistic reading of the plaint. In fact, even in
relation to the earlier scheme of Section 16 of the Act which
required a plaintiff seeking the remedy of specific performance
to 'aver and prove' that he was ready and willing to perform his
obligations under an agreement, it was sufficient if the averments
in substance indicate continuous readiness and willingness on
the part of the person suing, to perform his part of the contract
language in Section 16 (c), as it stood prior to the Amendment
Act of 2018, did not require any specific phraseology to be followed
in relation to the averments as to readiness and willingness. That
the compliance of requirements of readiness and willingness have
to be in spirt and substance and not in letter and form. That is
why the deletion of the words "who fails to aver" in Section 16
(c) of the Act does bring about any real change in the position of
law as it stood prior to the amendment. [Para 20, 21][272-E-H;
273-A-B]
C. HARIDASAN v. ANAPPATH PARAKKATTU VASUDEVA
KURUP
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1.4 Readiness and willingness cannot be considered in a
straitjacket formula; it has to be inferred on a consideration of
the entire facts and circumstances of each case and the intention
and conduct of the parties concerned. Even if a party to the
contract is ready and has the requisite funds he may not be willing
to perform his part of the contract and vice versa. Thus, both
readiness as well as willingness have to be established by the
plaintiff on whom the burden is cast in a suit for specific
performance of an agreement. [Para 22, 23][273-C-D; 274-B]
1.5 Nothing was brought on record by the plaintiff to
demonstrate that positive steps were taken by him in pursuance
of the agreement of sale of Kanam and Kuzhikoor rights. It is
trite that the relief of specific performance cannot be granted in
favour of a party who has not performed his obligations under the
contract. The only exception to such rule is that a party is not
required to perform those obligations, as are prevented or waived
by the other party to the contract. [Para 26][275-G-H]
1.6 It is an admitted fact that the plaintiff had paid an amount,
which constituted merely 4% of the consideration. The trial court
itself recorded findings to the effect that neither party had initiated
timely steps to perform their respective obligations under the
contract. Although the defendants did not make available the title
deeds of the schedule property to the plaintiff, it could not be
said that the conduct of the defendants had prevented the plaintiff
from tendering the balance sale consideration, within the
stipulated date, or at any time before filing the suit for specific
performance as the whole object of the intended sale was to garner
funds for discharging a debt which was ultimately done by the
defendants by selling family jewellery. Further, there was no delay
on the part of the defendant in acting in pursuance of the
agreement. The fact that the purchase certificate was granted by
the concerned authority only on 31st May, 2007, was beyond the
control of the defendants and such delay could not be attributed
to the defendants. The defendants had duly initiated the process
of obtaining a purchase certificate soon after entering into the
agreement. [Para 27, 28][276-A-E]
1.7 While the counsel for the appellant-plaintiff has
contended that since the transaction in question involved the
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transfer of rights in immovable property, a prudent purchaser
would have to satisfy himself as to the genuineness and validity
of the documents of title, and therefore, owing to the
nonavailability of documents of title, the plaintiff was unable to
proceed with his obligations, no explanation has been provided
as to why ancillary steps such as measurement of the property
was not proceeded with. Delay in securing relevant documents
from the concerned authorities could not absolve the plaintiff of
his obligations under the agreement of sale of Kanam and
Kuzhikoor rights. Further, this aspect of the matter is to be
appreciated in light of the fact that there is nothing on record
which would demonstrate any step taken by the plaintiff to pursue
the agreement, until, 2nd November, 2006, on which date, the
legal notice was served on the defendants calling upon them to
execute the sale deed in respect of the Kanam and Kuzhikoor
rights over the suit property. No explanation has been provided
as to why the legal notice was not served earlier, particularly
when the six-month period stipulated under the agreement had
expired on 7th February, 2006. Such conduct of the plaintiff is
certainly not reflective of willingness, in terms of Section 16(c) of
the Act. Further, the Court has to be mindful of circumstances
which compelled the defendants to enter into the agreement of
sale of Kanam and Kuzhikoor rights dated 7th February, 2006.
The time limit stipulated in the agreement is of significance in
the instant case when this aspect is viewed in light of the fact that
the defendants were debt-ridden and sought to sell their Kanam
and Kuzhikoor rights over suit property with the sole intention of
clearing off such debts which were incurred to support the cardiac
treatment of defendant no. 1. It was therefore necessary that the
plaintiff paid a significant portion of the consideration, if not the
entire sale consideration, within the period of six months as
stipulated in the agreement. But the plaintiff refused to do so
even on being repeatedly requested by the defendants. [Para 29,
30][276-E-H; 277-A-C]
1.8 The period of six months which was stipulated in the
agreement of sale of Kanam and Kuzhikoor rights, in the present
case, has to be accorded its due significance while deciding the
suit for specific performance. Having regard to the urgency of
the financial need of the defendants, which need had prompted
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them to sell their Kanam and Kuzhikoor rights over the suit
property, it must be held that time stipulated in the agreement
was the essence of the contract. The plaintiff in the present case
served a legal notice only on 02nd November, 2006 while the six
month period stipulated in the agreement had elapsed on 07th
February, 2006. There is no explanation as to what occasioned
the delay in serving the legal notice on the defendants and why
such steps were not adopted soon after the expiry of the six month
period stipulated in the agreement of sale of Kanam and Kuzhikoor
rights. Therefore, it is held that the plaintiff, having paid no more
than 4% of the sale consideration, and having not done even as
much as getting the property measured within the period of six
months stipulated under the agreement, cannot, at a belated date,
claim specific performance of the agreement dated 7th August,
2005 to the disadvantage and hardship of the defendants. [Para
32-34][279-B-F]
1.9 The Courts may grant additional amount of
consideration, a relief to balance equities, such a decree would
be warranted only in cases where the plaintiff satisfactorily
establishes compliance with Section 16 of the Act. That the
measure of enhancement of compensation may be awarded at the
discretion of the Court only if insufficiency of compensation is
the only impediment to ensuring equity and preventing undue
gain to one party. In the absence of compliance with the
elementary requirements of Section 16 of the Act, enhancement
of compensation cannot be employed as a device to allow specific
performance in cases where the plaintiff has not performed his
obligations under the contract as in the instant case. [Para 35][280A-C]
1.10 The appeal fails on the sole ground that the conduct of
the plaintiff was not reflective of his readiness as well as
willingness on his part to pursue the agreement of sale of Kanam
and Kuzhikoor rights, in terms of Section 16(c) of the Act. [Para
36][280-C-D]
1.11 The impugned judgment of the High Court whereby
the High Court set-aside the judgment and decree passed by the
trial court, (by which the suit for specific performance of an
agreement of sale of Kanam and Kuzhikoor rights, filed by the
plaintiff was decreed), is affirmed. [Para 38][280-H; 281-A]
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Pratap Lakshman Muchandi and Ors. vs. Shamlal
Uddavadas Wadhwa and Ors., (2008) 1 SCC 67;
Shenbagam vs. K.K. Rathinavel, 2022 SCC OnLine SC
71; Mehboob-Ur-Rehman (Dead) through LRs vs.
Ahsanul Ghani (2019) 19 SCC 415; Sughar Singh vs.
Hari Singh (Dead) through LRs and Ors., A.I.R. 2021
SC 5581; B. Santoshamma vs. D. Sarala and Anr.,
(2020) 19 SCC 80; Bachhaj Nahar vs. Nilima Mandal
and Ors., (2008) 17 SCC 491; Motilal Jain vs. Ramdasi
Devi, A.I.R. 2000 SC 2408 : [2000] 1 Suppl. SCR 615;
Syed Dastagir vs. T.R. Gopalakrishna Shetty, (1999) 6
SCC 337 : [1999] 1 Suppl. SCR 351; His Holiness
Acharya Swami Ganesh Dassji vs. Sita Ram Thapar,
(1996) 4 SCC 526 : [1996] 2 Suppl. SCR 111; J.P.
Builders vs. A. Ramdas Rao, (2011) 1 SCC 429 : [2010]
15 SCR 538;
Saradamani Kandappan vs. S.
Rajalakshmi, (2011) 12 SCC 18 : [2011] 8 SCR 874;
K.S. Vidyanadam vs. Vairavan (1997) 3 SCC 1 : [1997]
1 SCR 993 - referred to.
Case Law Reference
In the Judgment of M. R. SHAH, J.
[2008] 1 SCR 854
relied on
Para 7
In the Judgment of B. V. NAGARATHNA, J.
(2008) 1 SCC 67
referred to
Para 9.4, 35
(2019) 19 SCC 415
referred to
Para 15
A.I.R. 2021 SC 5581
referred to
Para 16
(2020) 19 SCC 80
referred to
Para 17
(2008) 17 SCC 491
referred to
Para 19
[2000] 1 Suppl. SCR 615
referred to
Para 21
[1999] 1 Suppl. SCR 351
referred to
Para 21
[1996] 2 Suppl. SCR 111
referred to
Para 23
[2010] 15 SCR 538
referred to
Para 24
[2011] 8 SCR 874
referred to
Para 31
[1997] 1 SCR 993
referred to
Para 32
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CIVIL APPELLATE JURISDICTION : Civil Appeal No.4072
of 2022.
From the Judgment and Order dated 03.11.2021 of the High Court
of Kerala at Ernakulam in RFA No.63 of 2009.
M. K. S. Menon, Ms. Usha Nandini V., Biju P. Raman, M. S.
Vishnu Sankar, Ravi, Advs. for the Appellant.
Raghenth Basant, Ms. Rashmi Nandakumar, Ms. Roopali Lakhotia,
Shankar Narayanan, Advs. for the Respondents.
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 03.11.2021 passed by the High Court of Kerala at
Ernakulam in Regular First Appeal No. 63 of 2009, by which the High
Court has allowed the said appeal preferred by the original defendants
and has set aside the judgment and decree dated 18.08.2008 passed by
the learned trial Court in Original Suit No. 205/2006, decreeing the suit
for specific performance, the original plaintiff has preferred the present
appeal.
2. That the plaintiff and the defendants entered into an agreement
to sell dated 07.08.2005 under which the defendants agreed to sell the
land in question for a consideration of Rs. 8,750/- per cent. The plaintiff
paid an amount of Rs. 10,000/- as advance towards the part sale
consideration amount. The balance consideration was agreed to be paid
by the plaintiff within six months from the date after measuring the
property provided the defendants make available the documents of title
including the purchase certificate under the Kerala Land Reforms Act.
2.1 That thereafter, the plaintiff served a legal notice dated
02.11.2006 upon the defendants to execute the sale deed to which the
defendants sent reply and refused to execute the sale deed and cancelled
the agreement to sell. Therefore, the appellant herein - original plaintiff
instituted a Suit being Original Suit No. 205/2006 before the learned trial
Court for specific performance of agreement to sell and in the alternative
return of the plaintiff's amount with interest.
2.2 The said suit was resisted by the defendants by filing written
statement. It was denied that the plaintiff was ever ready and willing to
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perform his part of the contract. It was also submitted that the suit was
filed after one year from the date of expiry of the agreement. It was the
case on behalf of the defendants that defendant No.1 was a heart patient
and he had undergone the surgery on which huge amount was spent
which was borrowed from others and therefore to clear off the said
liability, the defendants agreed to sell the property in question. It was
also the case of the defendants that even though the defendants had
approached the plaintiff to pay some more money, he was not prepared
for the same, thereby defendants had been compelled to sell the gold
ornaments and clear the liabilities. It was submitted that the defendants
were always ready and willing to perform their part of the agreement.
2.3 The learned trial Court framed the following issues:
"1. Whether plaintiff had performed his part of the contract, thereby
entitling him for specific performance of the agreement?
2. Whether plaintiff has got any cause of action against defendants?
3. Whether the plaintiff is entitled to the reliefs sought?
4. Relief and costs?"
2.4 On appreciation of the entire evidence on record, the learned
trial Court decreed the suit for specific performance of agreement to
sell dated 07.08.2005. However, at the same time and to do complete
justice between the parties, the learned trial Court directed the plaintiff
to pay 25% more amount, over and above the agreed consideration i.e.,
sale consideration at the rate of Rs. 11,000/- per cent (Rs. 8750/- per
cent + 25% = 10,037/-, rounded off to Rs. 11,000/-). The learned trial
Court also directed the plaintiff to deposit the balance sale consideration,
i.e., Rs. 3,97,000/-, within a period of two months.
2.5 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned trial Court decreeing the suit for specific
performance of agreement to sell dated 7.8.2005, the defendants
preferred an appeal before the High Court. Without upsetting the findings
recorded by the learned trial Court on execution of agreement to sell
dated 7.8.2005; payment of part sale consideration and the other issues
held in favour of the plaintiff, straightway the High Court considered
Section 20 of the Specific Relief Act and opined that the trial Court was
not justified in enhancing the sale consideration and ought not to have
exercised the discretion in favour of the plaintiff. By the impugned
C. HARIDASAN v. ANAPPATH PARAKKATTU VASUDEVA
KURUP [M. R. SHAH, J.]
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judgment and order, the High Court, while relying upon and/or considering
Section 20 of the Specific Relief Act, has partly allowed the appeal and
has set aside the judgment and decree for specific performance and has
directed the defendants to pay Rs. 3,10,000/- to the plaintiff.
2.6 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, setting aside the judgment and
decree passed by the learned trial Court for specific performance of
agreement to sell, the original plaintiff has preferred the present appeal.
3. It is vehemently submitted by the learned counsel appearing on
behalf of the appellant that in the facts and circumstances of the case,
the High Court has committed an error in reversing the decree of specific
performance.
3.1 It is submitted that the execution of the agreement to sell and
receipt of part sale consideration have not been disputed by the
defendants.
3.2 It is submitted that as per the conditions mentioned in the
agreement to sell, the balance sale consideration was required to be paid
within a period of six months from the date after measuring the property
provided the defendants make available the documents of title including
the purchase certificate under Kerala Land Reforms Act, which was
yet to be obtained.
3.3 It is submitted that even the purchase certificate was issued
by the Government during the pendency of the suit. It is submitted that
therefore once the execution of agreement to sell is admitted and the
part sale consideration is received and it was found that the plaintiff was
always ready and willing to perform his part of the contract, the learned
trial Court was justified in decreeing the suit for specific performance.
3.4 It is then submitted that even, though not required, the learned
trial Court enhanced the sale consideration to do complete justice, which
the plaintiff agreed. It is submitted that enhancement of the sale
consideration by the learned trial Court could not have been gone against
the plaintiff.
3.5 It is further submitted that even otherwise when while
exercising the discretion in favour of the plaintiff to pass a decree for
specific performance, the learned trial Court enhanced the amount of
sale consideration and directed the plaintiff to pay some more amount
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than the sale consideration mentioned in the agreement to sell, the same
was not required to be interfered with by the High Court.
3.6 It is submitted that as such the High Court has straightway
gone and considered Section 20 of the Specific Relief Act, without
adverting to the findings recorded by the learned trial Court on execution
of the agreement to sell; payment of part sale consideration and that the
plaintiff was always ready and willing to perform his part of the contract.
3.7 Making the above submissions, it is prayed to allow the present
appeal.
4. The present appeal is opposed by Shri Raghenth Basant, learned
counsel appearing on behalf of the original defendants.
4.1 It is vehemently submitted by the learned counsel appearing
on behalf of the original defendants that as such the agreement to sell
was a forced agreement to sell as at the relevant time, defendant no.1
suffered a heart attack and he was in need of money and therefore he
was compelled to sell the property in question. It is therefore submitted
and as rightly observed by the High Court, the learned trial Court ought
not to have exercised the discretion in favour of the plaintiff, rather
ought to have exercised the discretion in favour of the defendants on the
ground of equity.
4.2 Learned counsel appearing on behalf of the original defendants
has submitted that at the time of execution of agreement to sell, the
plaintiff paid a meagre amount of Rs. 10,000/- only as advance towards
the consideration amount. It is submitted that as the defendants were
hard pressed and were in need of immediate money as defendant no.1
suffered a heart attack, it was agreed that the balance consideration to
be paid within six months from the date of agreement to sell. It is
submitted that thereafter as the plaintiff did not pay the balance sale
consideration within six months, the defendants cleared their liabilities
by selling gold ornaments of their family members and therefore thereafter
the defendants were not in need of money and therefore there was no
cause and/or reason to sell the property in question and thereafter the
agreement to sell was cancelled. It is submitted that considering the
aforesaid circumstances, the High Court has rightly set aside the decree
for specific performance, considering Section 20 of the Specific Relief
Act and has rightly exercised the discretion in favour of the defendants,
rather than in favour of the plaintiff.
C. HARIDASAN v. ANAPPATH PARAKKATTU VASUDEVA
KURUP [M. R. SHAH, J.]
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4.3 It is further submitted by the learned counsel appearing on
behalf of the defendants that as on today the price of the property in
question has gone very high and therefore it is prayed not to interfere
with the impugned judgment and order passed by the High Court.
5. I have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that the execution of
agreement to sell and receipt of part sale consideration paid under the
agreement to sell has not been disputed by the defendants. It is not in
dispute that the defendants as such agreed to sell the property in question.
The relevant terms of agreement to sell, as agreed between the parties,
are as follows:
"(a) the balance consideration was to be paid by the Petitioner to
the Respondents within six months from the date of sale
agreement.
(b) The Petitioner was obligated to measure the property at his
own expense, arrange the balance consideration amount and
prepare the deeds with respect to the plaint schedule property in
favour of himself or in favour of its nominees.
(c) Respondents were to handover the abovementioned deeds as
also the anterior documents, possession certification, tax receipt
and encumbrance certificate for the last 13 years, purchase
certificate, either in their originals or certified copies within the
stipulated six months to the Petitioner.
(d) After the fulfilment of the above terms and conditions, the
Respondent No.1 and his wife were obligated to execute the sale
deed prepared by the Petitioner and register the same after
obtaining the balance consideration amount and then accordingly,
the Respondents were to hand over actual possession of the plaint
schedule property to the Petitioner."
6. It is contended on behalf of the defendants that the agreement
to sell was a forced agreement to sell. On the contrary, the defendants
stated in the written statement in para 4 that the defendants were always
ready and willing to perform their part of the contract. It may be true
that at the relevant time the defendants may be in need of money.
However, the fact remains that they agreed to sell the property in question
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for sale consideration mentioned in the agreement to sell and as observed
hereinabove, it was the case on behalf of the defendants that they were
always ready and willing to perform their part of the contract. Therefore,
as observed hereinabove, it was never the case on behalf of the
defendants in the written statement and/or even before the learned trial
Court that the agreement to sell was inequitable and/or was a forced
agreement to sell. Even the learned trial Court also did not frame the
issue, "whether agreement to sell was a forced agreement to sell/contract
or not". On appreciation of entire evidence on record, the learned trial
Court after recording the findings on the execution of the agreement to
sell by the defendants and receipt of part sale consideration and that the
plaintiff was always ready and willing to perform his part of the contract,
decreed the suit for specific performance. By the impugned judgment
and order, the High Court, as such, has not commented upon and/or set
aside any of the findings recorded by the learned trial Court, recorded
while passing a decree for specific performance. Straightway, the High
Court has considered Section 20 of the Specific Relief Act and has
observed and held that by enhancing the amount of sale consideration,
the learned trial Court has wrongly exercised the discretion in favour of
the plaintiff. The High Court has commented upon the order passed by
the learned trial Court enhancing the amount of sale consideration and
directing the plaintiff to pay more amount than the sale consideration
mentioned in the agreement to sell.
7. When to do the complete justice and relying upon and/or
considering the decision of this Court in the case of Pratap Lakshman
Muchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67, the
learned trial Court directed the plaintiff to pay some more amount than
the amount mentioned in the agreement to sell, at the most, the plaintiff
can be said to be aggrieved. Still, the High Court has considered such an
order passed by the learned trial Court against the defendants. As such,
the learned trial Court was absolutely justified in compensating the
defendants by paying some more amount while passing a decree for
specific performance. Therefore, in the facts and circumstances of the
case and more particularly when the learned trial Court exercised the
discretion in favour of the plaintiff after having observed and recorded
the findings on the execution of the agreement to sell by the defendants
and that the part sale consideration was paid by the plaintiff which was
accepted by the defendants and thereafter the finding that the plaintiff
was always ready and willing to perform his part of the contract, the
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learned trial Court was absolutely justified in passing the decree for
specific performance. The High Court has erred in interfering with the
judgment and decree passed by the learned trial Court, without setting
aside the findings recorded by the learned trial Court recorded while
passing the decree for specific performance. The impugned judgment
and order passed by the High Court is unsustainable, both, on law as
well as on facts.
8. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order passed by
the High Court is hereby quashed and set aside and the judgment and
decree passed by the learned trial Court for specific performance of
agreement to sell is hereby restored.
However, to do complete justice and in exercise of powers under
Article 142 of the Constitution of India, I direct that over and above the
sale consideration mentioned in the agreement to sell and the amount
already deposited by the plaintiff, the plaintiff to pay a further sum of
Rs. 10,00,000/- (Rupees Ten Lakhs only) to the original defendants, to
be paid within a period of six weeks from today. The amount which
might have been deposited by the original defendants, deposited pursuant
to the impugned judgment and order passed by the High Court, i.e., Rs.
3,10,000/- be also returned/paid to the original defendants.
9. The present appeal is accordingly allowed in the aforesaid terms.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
NAGARATHNA, J.
1. I have had the advantage of reading the judgment proposed by
His Lordship M.R. Shah, J. However, I regret to agree with the reasoning
as well as the conclusion arrived at by His Lordship. Hence, my separate
judgment.
2. The plaintiff in Original Suit No. 205/2006 has assailed the
judgment dated 03rd November, 2021, passed by the High Court of Kerala
at Ernakulam in Regular First Appeal No. 63 of 2009. By the impugned
judgment, the High Court has set-aside the judgment and decree passed
by the Trial Court, i.e., the Court of the Subordinate Judge, Tirur in O.S.
No. 205/2006, by which the suit for specific performance of an agreement
of sale of Kanam and Kuzhikoor rights, filed by the plaintiff, was allowed.
Hence, the appeal by the plaintiff in the suit.
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3. For the sake of convenience, the parties herein shall be referred
to in terms of their rank and status before the Trial Court.
4. The case of the plaintiff in a nutshell is stated as under:
4.1 That the defendants who have Kanam and Kuzhikoor rights
over the suit property, measuring 37 cents since 1989, assigned such
rights over the same in favour of the plaintiff for a consideration of Rs.
8750/- per cent. That an agreement of sale in respect of the Kanam and
Kuzhikoor rights over the suit property was entered into between the
defendants-sellers and the plaintiff-buyer on 7th August, 2005 in the
presence of witnesses. An advance sale consideration of Rs. 10,000/-
was paid by the plaintiff. The remaining sale consideration was required
as per the agreement to be paid within six months from the date on
which agreement of sale was entered into, following which the sale
deed was to be executed in favour of the plaintiff or his nominees, in
respect of the Kanam and Kuzhikoor rights, which are valuable
usufructuary rights and possession of the suit property was to be handed
over to the plaintiff.
4.2 That before the expiry of six months, the defendants were to
make available to the plaintiff documents pertaining to the suit property,
such as tax receipts, non-encumbrance certificate, purchase certificate
etc. That the plaintiff contacted the defendants repeatedly and expressed
his willingness to comply with the terms of the agreement of sale dated
7th August, 2005. However, defendants sought to evade and delay
compliance with the said agreement on the ground that anterior documents
and certificates relating to the suit property could not be obtained.
4.3 That though the plaintiff had sent a legal notice dated 02nd
November, 2006 calling upon the defendants to execute the deed
assigning Kanam and Kuzhikoor rights after accepting the balance sale
consideration from the plaintiff, the defendants took no positive steps in
this regard.
4.4 That the plaintiff was ready and willing to tender the balance
sale consideration and have the deed of assignment registered in his
name within the period stipulated in the agreement. That the defendants
were attempting to evade the agreement of sale in an attempt to obtain
a better price for the Kanam and Kuzhikoor rights over the suit property
as the market value thereof had increased manifold. Therefore, the
plaintiff was constrained to file a suit for specific performance of the
C. HARIDASAN v. ANAPPATH PARAKKATTU VASUDEVA
KURUP [B.V. NAGARATHNA, J.]
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agreement of sale of Kanam and Kuzhikoor rights, dated 7th August,
2005.
4.5 With the aforesaid averments, it was prayed that the defendants
be directed to receive the balance sale consideration from the plaintiff
and execute the sale deed in respect of the Kanam and Kuzhikoor
rights over the suit property in his favour. In the alternative, it was prayed
that the defendants may be directed to return the advance amount of
Rs. 10,000/- paid by the plaintiff, together with interest thereon.
5. In response to the plaint, the defendants filed a written statement,
the contents of which are encapsulated as under:-
5.1 That the plaintiff was never ready and willing to perform his
obligations under the agreement dated 7th August, 2005. That the suit for
specific performance was filed on 13th December, 2006, which was
nearly one year after the expiry of the deadline fixed in the agreement,
for compliance of the terms thereof.
5.2 That as per the agreement of sale of Kanam and Kuzhikoor
rights, the plaintiff-purchaser was to measure the suit property and
accordingly ascertain the sale consideration payable at the rate of
Rs. 8750/- per cent. That no attempt was made by the plaintiff in this
regard. Therefore, it could not be said that the plaintiff was ready and
willing to perform his part of the agreement, more so, when no attempt
was made by the plaintiff to determine even as much as the exact purchase
price for the Kanam and Kuzhikoor rights over the suit property. That
the plaintiff had paid only Rs. 10,000/- which is a very negligible portion
of the purchase price. That the defendants were in dire need for finances
in order to bear the expenses for cardiac treatment of defendant no. 1.
Therefore, the defendants had approached the plaintiff repeatedly, with
requests to tender the balance sale consideration.