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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024 PRESENT THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY AND THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.631 OF 2006 (SP)
BETWEEN:
Sri.M. Tej Prakash, S/o. Sri. Mangilal, Aged about years, No.80, 1st Main, 4th Cross, Chamrajpet, Bangalore-560018. …Appellant (By Sri. Rameshchandra, Advocate)
AND:
Smt. Nirmala Prabhakar, W/o. Sri. C.N. Prabhakar, No.535, 27th Cross, Near Kailash Ashram, Ideal Home Township, Rajarajeshwari Nagar, Bangalore-560098.
Smt. Anitha Prabhakar, @ Smt. Anitha Srinivasan, C/o. Blue Mountain Restaurant, Upper Road, Near Post Office, Opp. Vegetable Market, Ooty, Nilgiris, Tamil Nadu - 643001. …Respondents (By Sri. M.R. Rajagopal, Senior Counsel for Sri. S.N. Bhat, Advocate)
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**** This R.F.A. is filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, with the following prayer:
" WHEREFORE, the appellant above named prays that this Hon'ble Court may be please to call for the records in O.S.No.33/1995 in the file of V Addl. City Civil Judge at Bangalore City and may be pleased to set aside the judgment and Decree dated 17.01.2006 passed in O.S.No.33/1995 in the file of V Addl. City Civil Judge at Bangalore City and may be further please to decree the suit filed by the plaintiff and may be please to grant the reliefs sought for in the suit and prays for such other reliefs as this Hon'ble Court deems fit to grant in the facts and circumstances of the case, including cost of this appeal and the cost of the suit and the professional charges paid by the appellant to his counsel in the court below and before this Hon'ble Court, in the interest of justice and equity."
This R.F.A. having been heard through Physical Hearing/Video Conferencing Hearing and reserved on 20-02-2024, coming on for pronouncement of judgment, this day, Dr.H.B.Prabhakara Sastry J. delivered the following:
J U D G M E N T
The plaintiff, whose suit in O.S.No.33/1995 for the relief of specific performance against the present respondents, arraigning them as defendants in the Court of the learned V Additional City Civil Judge at Bangalore City (hereinafter for brevity referred to as "the Trial Court") since came to be dismissed with respect to specific
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performance and possession, but decreed with respect to the alternative relief of refund of the advance amount, has preferred this appeal.
The summary of the case of the plaintiff in the Trial Court was that, he entered into an agreement for sale on the date 01-09-1991 with the defendants to purchase an immovable property bearing Old No.146, New No.20, situated at II Main Road, Chamarajapet, Bangalore, (henceforth referred to as "the plaint schedule property") from the defendants, for a total sale consideration of a sum of `6,50,000/-. The second defendant, who is the daughter of the first defendant and first defendant's mother by name Smt. Saroja Bai signed the agreement executed by the first defendant. On the date of the negotiation, a sum of `1,001/- was given to the vendors by the plaintiff. On the date of agreement of sale i.e. on 01-09-1991, the first defendant acknowledged a sum of `1,00,000/- towards partial sale consideration. It was agreed that the balance sale consideration was payable at the time of registration of the absolute Sale Deed which
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was to be completed within a period of four months. The draft Sale Deed was required to be given by the plaintiff to the first defendant at least one month before registration so as to enable the defendants to obtain the Income-tax Clearance Certificate. The plaintiff further contends that the defendants failed to obtain the Income-tax Clearance Certificate within the stipulated time i.e. before December 1991. However, the first defendant demanded the plaintiff to pay the additional sale consideration. Accordingly, the plaintiff paid another sum of `2,00,000/- to the first defendant in the instalments of a sum of `50,000/- + `50,000/- + `1,00,000/-. Thus, a sum of `3,01,001/- in total was paid to the first defendant by the plaintiff. At the repeated request by the plaintiff, the defendants could able to obtain the Income-tax Clearance Certificate in the month of February 1992. The first defendant sent the copy of the Income-tax Clearance Certificate at the repeated request of the plaintiff only on 27-03-1992, as such, on the very next day, i.e. on 28-03-1992, the plaintiff applied for purchase of stamp papers for registration. When he was
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about to pay the stamp duty to the Treasury on the next day, i.e. on 29-03-1992, the first defendant called the plaintiff over phone and informed that the registration is postponed for fifteen days, as such, the plaintiff could not obtain the stamp papers. Since the first defendant went on further delaying the matter, the plaintiff got issued a legal notice dated 01-04-1992 to the defendants No.1 and 2 and also to Smt.K. Saroja Bai, who is the consenting party to the sale agreement. Thereafter, the mother of the first defendant got issued a legal notice dated 02-04-1992, for which, the plaintiff got issued a reply dated 04-05-1992, through his advocate. The plaintiff has further contended that he has always been ready and willing to perform his part of the contract of paying the balance sale consideration by purchasing the stamp papers, however, the first defendant, with a mala fide intention, obtained the Income-tax Clearance Certificate only for a sum of `5,00,000/- and also postponed the formality of registration of the absolute Sale Deed and delivery of the vacant possession of the plaint schedule property to the
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plaintiff. This made the plaintiff to institute a suit in O.S.No.33/1995 against the defendants, for the relief of specific performance of the agreement for sale.
In response to the summons served upon them in the Trial Court, both the first and second defendants appeared through their respective counsels. The first defendant filed her Written Statement which was adopted by the second defendant, by filing a memo.
In her Written Statement, the first defendant though admitted that the defendants are the lawful owners of the plaint schedule property, but denied that they had entered into an agreement for sale with the plaintiff on the date 01-09-1991 for a consideration of a sum of `6,50,000/-. The defendant No.1 further denied of receiving a partial sale consideration of a sum of `3,01,001/- from the plaintiff. The defendant No.1 also denied that the defendants had agreed to obtain the Income-tax Clearance Certificate and thereafter to execute the Sale Deed in favour of the plaintiff after receiving the alleged balance sale consideration. The defendants also
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contended that the suit was barred by limitation. With this, they prayed to dismiss the suit of the plaintiff.
Based upon the pleadings of the parties, the Trial Court framed the following issues for its consideration:
Whether the plaintiff proves that on 24.7.1991 the defendants agreed to sell the suit schedule property for consideration of `6,50,000/-?
Whether the plaintiff proves that in all `3,01,001/- has been paid to the first defendant towards sale consideration?
Whether the plaintiff proves that he is ever ready and willing to perform his part of agreement?
Whether the plaintiff proves that he is entitled for specific performance of the agreement of sale?
Whether the plaintiff proves that he is entitled for the vacant possession of the suit property?
Alternatively, whether the plaintiff proves that he is entitled for refund of advance amount with liquidated damages with interest at the rate of 24% or at any rate from the defendants?
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Whether the defendants prove that the agreement of sale dated 1.9.1991 is void, ab initio?
Whether the first defendant proves that the suit is time barred?
What Order or decree?
In support of his case before the Trial Court, the plaintiff got himself examined as PW-1 and also got examined one Sri. Chattar Singh Thakur as PW-2, one Sri. T.C. Siddappa as PW-3 and one Sri.Vishnumurthy B. Naik, the Manager of the Corporation Bank as PW-4 and got marked documents from Exs.P-1 to P-11(e). On behalf of the defendants, only the first defendant got herself examined as DW-1 and no documents were got marked as Exhibits from their side.
After hearing the argument from both side and going through the entire material placed before it, the Trial Court, by its impugned judgment dated 17-01-2006, by answering issues No.1, 2 and 3 in the affirmative, issues No.4, 6, 7 and 8 in the negative, issue No.5 as does not arise for consideration and issue No.9 as per the final order, dismissed the suit of the plaintiff with respect to the
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specific performance and possession, however, it decreed the suit of the plaintiff with respect to the alternative relief of refunding of the advance amount of a sum of `3,01,001/- and directed the first defendant to repay the amount of `3,01,001/- to the plaintiff with interest at the rate of `6% per annum from the date 01-04-1992 to the date of realisation. Being aggrieved by the said judgment of the Trial Court, the plaintiff has preferred the present appeal.
The respondents herein, who were the defendants in the Trial Court are being represented through their learned counsel.
Learned counsel for the appellant (plaintiff) and learned Senior Counsel for the learned counsel for the respondents (defendants) are appearing physically before the Court. 10. Heard the arguments of the learned counsel for the appellant and learned Senior Counsel for the learned counsel for the respondents.
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Perused the materials placed before this Court including the impugned judgment and the Trial Court records.
For the sake of convenience, the parties herein would be henceforth referred to as per their rankings before the Trial Court.
Learned counsel for the plaintiff (appellant) in his argument submitted that, even though the Trial Court in its finding, answered issues No.1, 2 and 3 in the affirmative holding that the plaintiff has proved the agreement between the parties and has paid a partial sale consideration and also that he was always ready and willing to perform his part of the agreement, however, it denied the relief of specific performance in favour of the plaintiff by answering issue No.4 in the negative for no valid reasons. He contended that, no ground attracting the provisions (a), (b) and (c) of Section 20(2) of the Specific Relief Act, 1963, as it existed on the date of filing of the suit, was made out to deny the relief of specific performance in favour of the plaintiff.
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Learned counsel further submitted that, there is no pleading of unfair advantage of the situation, by the defendants anywhere in their Written Statement. Learned counsel also contended that, at no stretch of imagination, it can be held that the plaintiff was in a dominant position compared to the defendants and that both of them were in equal position. Thus, there was no reason for the Trial Court to deny the relief of specific performance in favour of the plaintiff. Learned counsel further contended that, without there being any basis, the Trial Court proceeded to observe that, the conduct of the plaintiff was suspicious. He submitted that, no hardship would be caused to the defendants in case the relief of specific performance is ordered in favour of the plaintiff. Learned counsel also submitted that, since the Trial Court has come to the conclusion that, the plaintiff has established that, he was always ready and willing to perform his part of the contract, it ought not to have rejected his prayer for specific performance. With this, he prayed to allow the appeal.
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In his support, he relied upon few judgments of the Hon'ble Apex Court, which would be considered and discussed at the appropriate stages herein afterwards.
Per contra, the learned Senior Counsel for the learned counsel for the defendants (respondents) in his argument submitted that, the defendants would not dispute the finding of the Trial Court with respect to the existence of an agreement for sale between the plaintiff and the defendants, the evidence with respect to the sale of the plaint schedule property in favour of the plaintiff by the defendants and also the receipt of a partial sale consideration of a sum of `3,01,001/- by the defendants, however, he disputes that the plaintiff had proved that he was ready and willing to perform his part of the contract. Learned Senior Counsel further submitted that, though the defendants have not filed any cross appeal, still, without disputing the final decision of the Trial Court in the original suit, the defendants (respondents herein) can dispute the finding of the Trial Court on any one of the issues.
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The learned Senior Counsel for the defendants further contended that, the suit itself was not maintainable since the agreement for sale dated 01-09-1991 was rescinded by the defendants by sending a notice to the plaintiff, as such, without praying the relief for declaration, mere filing of a suit by the plaintiff for specific performance of the agreement for sale, is not maintainable. In his support, the learned Senior Counsel relied upon few judgments of the Hon'ble Apex Court, which would be referred and discussed at the relevant stages herein afterwards.
In the light of the argument of the learned counsels for the parties, the points that arise for our consideration in this appeal are:
[i] In view of the contention of the defendants that the defendants had rescinded the contract before the institution of the suit, whether the suit filed by the plaintiff in the Trial Court was maintainable?
[ii] Whether the plaintiff proves that he has entered into an agreement for purchase of the plaint schedule property from the defendants for a valuable
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sale consideration of a sum of `6,50,000/- on the date 01-09-1991 and there under has paid a sum of `3,01,001/- towards partial sale consideration?
[iii] In the absence of any cross appeal filed by them, whether the defendants can question the correctness of the finding of the Trial Court on issue No.3 where it held that the plaintiff has proved that he was ever ready and willing to perform his part of the promise under the agreement? [iv] Whether the plaintiff proves that he was always ready and willing to perform his part of the promise under the agreement dated 01-09-1991?
[v] Whether the agreement for sale dated 01-09-1991 or the conduct of the plaintiff at the time of entering into the contract has given the plaintiff an unfair advantage over the defendants?
[vi] Whether the plaintiff is entitled for the relief of specific performance of the contract?
[vii] Whether the judgment under appeal deserves any interference at the hands of this Court?
With respect to point No.1:
After submitting that the defendants would not seriously dispute the execution of the agreement for sale dated 01-09-1991 with the plaintiff with respect to the
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sale of the plaint schedule property for a valuable consideration, the learned Senior Counsel for the defendants, in his very first point of argument contended that, the very suit for the relief of specific performance filed by the plaintiff in the Trial Court was not maintainable for the reason that, the agreement for sale dated 01-09-1991 has been rescinded by the defendants, who were shown to be the vendors in the said agreement, vide their notice to the plaintiff dated 02-04-1992 at Ex.P-5.
Ex.P-5 is a legal notice dated 02-04-1992 sent by the defendant No.1 to the plaintiff through her counsel, wherein the first defendant, after stating that she had entered into an agreement to sell the subject matter property to the plaintiff under agreement dated 01-09-1991 for a valuable consideration of a sum of `6,50,000/-, has, in paragraph 4 of the said notice stated that, since the plaintiff has failed to comply with the terms of the agreement, the said agreement of sale dated 01-09-1991 stood rescinded and the advance amount of
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`1,00,000/- paid by the plaintiff would be forfeited by her as per the terms under the contract.
The plaintiff, vide his reply to the said notice dated 04-05-1992, which is at Ex.P-9, has counter alleged that though he was always ready and willing to perform his part of the contract, however, the defendants themselves were not ready and prepared to perform their part of the promise under the contract. He also contended that the total advance amount paid by him was not just a sum of `1,00,000/- but it was `3,01,001/-. He has attempted to explain that the fault for not completing the contract in its performance within the stipuated time was not due to any latches on his part, but it was solely due to the latches on the part of the defendants. With this, he contended that the agreement for sale cannot be rescinded by the defendants nor the first defendant was entitled to forfeit any sum much less a sum of `1,00,000/-. On the other hand, he has called upon the defendants to execute the Sale Deed in his favour within fifteen days of the reply to the notice.
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Thus, the fact remains that, the defendant No.1 through Ex.P-5 stated that, she has rescinded the contract, however, the same was not accepted by the plaintiff, who, in turn, called upon the defendants to execute the Sale Deed in his favour, immediately.
The learned Senior Counsel for the learned counsel for the defendants (respondents) in his argument, submitting that, unless the plaintiff challenges the rescinding of the contract by the defendants, the suit for specific performance is not maintainable, relied upon two judgments of the Hon'ble Apex Court, which are as follows:
(i) The first judgment is, in the case of I.S. SIKANDAR (DEAD) BY LRS. Vs. K. SUBRAMANI AND OTHERS reported in (2013) 15 Supreme Court Cases 27. In the said case, the Hon'ble Apex Court in a matter of specific performance of a contract, framed five points for consideration, in which, the point No.1 which is at paragraph 32.1 reads as below:-
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(i) Whether the original suit filed by the plaintiff seeking a decree for specific performance against Defendants 1-4 in respect of the suit schedule property without seeking the declaratory relief with respect to termination of the agreement of sale vide notice dated 28-03-1985, rescinding the contract, is maintainable in law?
After discussion, the Hon'ble Apex Court answered the said question in paragraphs 37 and 38 of its judgment, holding that, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of any such prayer by the plaintiff, the original suit filed by him before the Trial Court for grant of a decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction, was not maintainable in law. Accordingly, the point No.1 framed by it was answered in favour of the defendant No.5 before it.
(ii) The second judgment is, in the case of MOHINDER KAUR VS. SANT PAUL SINGH reported in (2019) 9 Supreme Court Cases 358, where the question
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before the Hon'ble Apex Court was also about the need to seek the relief of declaration to declare the cancellation of the agreement for sale as bad in law, before seeking the relief of specific performance of the said agreement. Though the Hon'ble Apex Court did not specifically answer the said point in the clear terms, however, after noticing that the agreement in question before it was cancelled by the appellant on the date 01-09-1989 and the consideration was already confiscated under intimation to the respondent, it observed that the respondent had never challenged the communication of cancellation. In the process, it referred to the observation made by it previously in paragraphs 37 and 38 of its earlier judgment in I.S. SIKANDAR'S case (supra).
The learned counsel for the plaintiff (appellant) in his argument, while opposing the argument as regards the maintainability canvassed by the learned Senior Counsel for the defendants (respondents), submitted that, the respondents, as defendants in the Trial Court had raised no plea in their Written Statement and no issue was
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framed by the Trial Court. Consequently, the Trial Court has not rendered any finding on the said plea. Under the said circumstance, in the absence of any plea regarding maintainability being taken by the defendants, which they were required to take at the earliest point of time in the Trial Court, now, cannot contend regarding the aspect of maintainability of the suit. In his support, he relied upon a judgment of the Hon'ble Apex Court in the case of Mrs. A. Kanthamani Vs. Mrs. Nasreen Ahmed reported in AIR 2017 SUPREME COURT 1236.
In the afore-mentioned case, in a similar set of circumstances, where the vendors of the immovable property, raising a contention that the agreement executed by them was terminated vide notice dated 03-01-1989, which was before the purchaser filing a suit for specific performance, had taken a contention that in the absence of any prayer in the suit for declaration that the termination of agreement was bad in law, a mere suit
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for specific performance of the agreement simpliciter was not maintainable.
The Hon'ble Apex Court in Mrs. A. Kanthamani 's case (supra), regarding maintainability of the suit, had made the following observations in paragraphs 34 to 39, which are extracted below:
"34. Coming first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason.
First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the Written Statement nor in first appeal before the High Court and nor in grounds of appeal in this Court.
Second, since no plea was raised in the Written Statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea.
Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (Written Statement) then only such plea
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can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14, Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court.
It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here.
Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable."
In the case on hand also, admittedly, the defendants have not taken any plea in their Written Statement regarding maintainability of the suit and not sought for the relief of declaration. Consequently, no issues regarding the aspect of maintainability of the suit and for non seeking of the relief of declaration was framed by the Trial Court.
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Thus, as observed by the Hon'ble Apex Court in paragraph 37 of its judgment in Mrs.A. Kanthamani's case (supra), the said plea regarding maintainability of the suit was required to be raised by the defendants, at the very first instance in their pleading and then only, such a plea can be adjudicated by the Trial Court on its merit as a preliminary issue under Order XIV Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court. With this observation, it observed that the case before it was distinguishable from I.S. SIKANDAR'S case (supra).
Similarly, in the instant case also, since the defendants have not raised a plea regarding maintainability at the earliest point of time, in their Written Statement and no issues were framed by the Trial Court, in the absence of any pleadings, the plea regarding the alleged non-maintainability of the suit cannot be entertained, at this stage, in this appeal. As such, the argument of the learned Senior Counsel for the
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defendants, on the point of maintainability, is not acceptable. With respect to point No.2: 25. It is for the plaintiff to establish that the defendants had executed an agreement for sale with respect to the plaint schedule property in his favour vide agreement of sale dated 01-09-1991 and also that the defendants had received a partial sale consideration of a sum of `1,00,000/-. It is the contention of the plaintiff that, on the date of negotiation, i.e. on 24-07-1991, the defendant No.1 had acknowledged a token advance of a sum of `1,001/- after entering into an agreement for sale dated 01-09-1991 and thereafter, at the request of the defendants, he has paid an additional advance amount of a sum of `50,000/- + `50,000/- + `1,00,000/- = `2,00,000/- and thus under the agreement for sale, he had paid a total consideration of a sum of `3,01,001/-.
The plaintiff, who got himself examined as PW-1, reiterated the contentions taken up by him in his plaint even in his examination-in-chief also, in the form of
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affidavit evidence. In support of his contention, he produced and got marked the agreement for sale dated 01-09-1991 at Ex.P-1; a copy of the legal notice at Ex.P-2; un-served postal covers at Exs.P-3 and P-4; notice got issued by the defendants to the plaintiff at Ex.P-5; reply given by the plaintiff to the notice, at Ex.P-9. He also got examined one Sri. Chattar Singh Thakur and one Sri. T.C. Siddappa, as PW-2 and PW-3, respectively. Both these witnesses have stated that the defendants had agreed to sell the plaint schedule property to the plaintiff for a total consideration of a sum of `6,50,000/- and they had received a partial sale consideration.
In the cross-examination of PW-1 from the defendants' side, it was suggested to the witness that the plaintiff had entered into an agreement for sale only with defendant No.1. The said suggestion was admitted as true by the witness. It was further elicited from the witness that, one Sri.S.N. Shastry was the scribe of the agreement. It was further suggested to the witness that, on the date of the execution of the agreement for sale, the
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plaintiff had not paid any amount as advance. By making these suggestions to none else than the plaintiff (PW-1) at different places, the defendants themselves have admitted that, an agreement for sale was executed by the defendant No.1 in favour of the plaintiff, agreeing to sell the plaint schedule property, for a total consideration of a sum of `6,50,000/-.
The evidence of PW-1 that, apart from paying a token advance of a sum of `1,001/- to the defendants on the date of negotiation, he had also paid a sum of `1,00,000/- under the agreement dated 01-09-1991 and thereafter another sum of `50,000/- each on the dates 01-12-1991 and 06-12-1991 and one more sum of `1,00,000/- on the date 23-12-1991, has not been seriously disputed from the defendants' side.
Even PW-2 and PW-3 also have stated about the advance amounts said to have been paid to the defendant No.1, by the plaintiff, however, PW-2 was not the witness to the agreement. Both PW-2 and PW-3 could not give more details about the alleged further advance amount
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said to have been paid by the plaintiff to the defendant No.1. As such, it is only the evidence of PW-1 that matters with respect to the payment of a total partial sale consideration of a sum of `3,01,001/- to the defendant No.1.
The defendants, who have taken a contention that the agreement was rescinded and claims to have issued a notice in that regard as per Ex.P-5, have not denied the execution of the agreement dated 01-09-1991 in favour of the plaintiff. The very notice at Ex.P-5 issued by the defendant No.1 admits the execution of the agreement for sale dated 01-09-1991 and also receipt of advance amount of a sum of `1,00,000/- under the said agreement. Further, the agreement at Ex.P-1 which is dated 01-09-1991 also shows that a sum of `1,00,000/- has been paid by the plaintiff to the defendant No.1 towards partial sale consideration out of a total consideration of a sum of `6,50,000/-. Further, the very same agreement shows that another sum of `1,00,000/- in the form of two cheques for a sum of `50,000/- each
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were also received by the defendant No.1. The legal notice issued by the plaintiff through his counsel to the defendants including to Smt.K. Saroja Bai and dated 01-04-1992 which is at Ex.P-2 also mentions the payment of these amounts by the plaintiff to the defendant No.1 including one more payment of a sum of `1,00,000/- shown to have been paid by the plaintiff to the defendants, subsequent to the payment of two cheques of a sum of `50,000/- each. Towards the payment alleged to have been made by the plaintiff to the defendant No.1, the plaintiff has also got produced a Pass Book of his Bank Account with the Corporation Bank, Chamrajapet Branch, Bangalore, and got it marked at Ex.P-11. The relevant entries regarding the alleged payment of a total sum of `3,00,000/- have also been marked at Exs.P-11(a), P-11(b), P-11(c), P-11(d) and P-11(e).
PW-4 - Sri. Vishnu Murthy, the then Manager of the said Corporation Bank, Chamarajapet Branch, Bangalore, has recognised the Pass Book at Ex.P-11 as issued by them with respect to the account of the plaintiff
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and also the entries therein with respect to the account maintained by the plaintiff with their Bank. He has also identified Exs.P-11(a), P-11(b), P-11(c), P-11(d) and P-11(e) as the entries corresponding to the payments made to Smt. Nirmala Prabhakar (defendant No.1). In his cross-examination, PW-4 has reiterated his contention that all those entries were showing the payment of the proceeds of the two cheques to Smt. Nirmala Prabhakar (defendant No.1).
The above evidence led by the plaintiff makes to believe that, apart from paying a token advance of a sum of `1,001/- and a partial sale consideration of a sum of `1,00,000/- in the form of two cheques of a sum of `50,000/- each to the defendants on the date of agreement for sale dated 01-09-1991, the plaintiff has further paid an advance amount of a sum of `50,000/- + `50,000/- + `1,00,000/- = `2,00,000/-, which, in gross total, comes to a sum of `3,01,001/-, out of the total sale consideration of a sum of `6,50,000/-. Therefore, even though the defendant No.1 got herself examined as DW-1
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and reiterated the contentions taken up by her in her Written Statement, still, in view of the receipt of a sum of `1,00,000/-, as admitted by her in her evidence, it also stands established that the plaintiff has paid to her an additional sum of `2,00,000/-, thus amounting to a total sum of `3,00,000/- and a token advance of a sum of `1,001/-, out of a total sale consideration of a sum of `6,50,000/-. Therefore, it stands proved that, the plaintiff has paid a total sum of `3,01,001/- to the first defendant towards the part of sale consideration under the agreement for sale dated 01-09-1991. With respect to point No.3: 33. The Trial Court, by answering issue No.3 in the affirmative, held that the plaintiff before it has proved that he was ever ready and willing to perform his part of the promise under the agreement. However, it answered issue No.4 in the negative, observing that the plaintiff could not prove that he was entitled for the relief of specific performance of the agreement for sale. It is aggrieved by the said finding on issue No.4 and denial of
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the relief of specific performance to him, the plaintiff has approached this Court through this appeal.
The learned Senior Counsel for the learned counsel for the defendants (respondents herein) in his very first point of argument, as observed above, contended that, though he has not preferred any cross appeal or cross-objection, still, it is open for him to challenge the said finding given by the Trial Court on issue No.3, about the readiness and willingness of the plaintiff to perform his part of the promise under the agreement, however, without challenging the final order of the Trial Court. In his support, he relied upon a judgment of the Hon'ble Apex Court in the case of PRABHAKAR GONES PRABHU NAVELKAR (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS VS. SARADCHANDRA SURIA PRABHU NAVELKAR (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2020) 20 Supreme Court Cases 465, wherein with respect to Order XLI Rule 22 of the Code of Civil Procedure, 1908, (hereinafter for brevity referred to as "the CPC"), the
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Hon'ble Apex Court was pleased to observe that, a cross objection need not be filed when the respondent does not want any alteration in the decree, dismissing the suit. But even without filing an appeal against any part of the decree and instead while seeking to have decree confirmed entirely, the respondent can challenge only a finding recorded against him in the Court below, for which no cross objection or appeal is necessary.
Learned counsel for the plaintiff (appellant) contending that, in the absence of preferring any cross appeal or cross objection, the defendants cannot challenge the finding given by the Trial Court on an issue framed by it, relied upon a judgment of the Hon'ble Apex Court in the case of Dheeraj Singh Vs. Greater Noida Industrial Development Authority & Ors and connected matters reported in 2023 0 Supreme (SC) 599.
In the said case, the Hon’ble Apex Court had an occasion to analyse Order XLI, Rule 22 of the CPC. In its analysis, it made the following observations in paragraphs 13 to 16 of its judgment which are as follows:-
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"13. In cases where the decree passed by the court of first instance is in favor of the respondent in whole, in such circumstance, no remedy exists in favour of the respondent to appeal such decree, since no right to appeal can be vested onto a party, which is successful.
However, in cases where the decree given by the court of first instance, is partly in favour of the respondent, but is also partly against the respondent, two remedies within Order 41 Rule 22 remain with the respondent, which are (i) To file their cross objections and, (ii) To support the decree in whole. A third remedy in law also exists, which is the right to file a cross appeal, which will also be discussed in brief.
In cases where the opposing party files a first appeal against part or whole of the original decree, and the respondent in the said first appeal, due to part or whole of the decree being in their favour, abstains from filing an appeal at the first instance, in such cases, to ensure that the respondent is also given a fair chance to be heard, he is given the right to file his cross objections within the appeal already so instituted by the other party, against not only the contentions raised by the other party, but also against part or whole of the decree passed by the court of first instance.
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In a similar circumstance, where the other party in the first instance has preferred an appeal, apart from the remedy of cross objections, the respondent can also file a cross appeal within the limitation period so prescribed, which in essence is a separate appeal in itself, challenging part or whole of the original decree, independent of the appeal filed by the other party. The respondent also has the right to fully support the original decree passed by the lower court in full.”
A reading of the above observations would go to show that, the respondent in an appeal who is not fully satisfied with the impugned judgment has got three remedies to pursue, one, filing a cross objection; another one to support the decree in full; and thirdly, his right to file a cross appeal. However, with great respect, it is submitted that the said judgment has not considered the point as to, whether the respondent in a decree can challenge any of the finding of the Trial Court on an issue, however, without challenging the final order of the Trial Court, i.e. by accepting the final order of the Trial Court
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but only not satisfied with a particular finding given on any of the issues framed by the Trial Court. 37. The said point has been answered by the Hon'ble Apex Court, directly in the case of PRABHAKAR GONES PRABHU NAVELKAR's case (supra). The Hon’ble Apex Court has clearly observed therein that, a cross objection need not be filed when the respondent does not want any alteration in the decree, dismissing the suit. But without even filing an appeal against any part of the decree and instead while seeking to have the decree confirmed entirely, the respondent can challenge only a finding recorded against him in the Court below, for which, no cross-objection or appeal is necessary. 38. In the instant case, the Trial Court has not dismissed the suit of the plaintiff in its entirety. However, it has dismissed the suit only with respect to the relief of specific performance and possession, but has allowed the alternative relief prayed for by the plaintiff for refund of the advance amount of a sum of `3,01,001/-. Thus, the defendants are satisfied with the final order passed by the
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Trial Court, but are not happy with the finding given by the Trial Court on issue No.3. Therefore, by virtue of the law laid down by the Hon'ble Apex Court in the judgment in PRABHAKAR GONES PRABHU NAVELKAR's case (supra), the contention of the defendants that, the finding given by the Trial Court on issue No.3 was not proper and erroneous and therefore the same can be agitated by them without preferring any cross appeal or a cross- objection, stands accepted. 39. This finding leads us to consider the next point for consideration as to, whether the plaintiff has proved that he was always ready and willing to perform his part of the promise under the agreement dated 01-09-1991? With respect to point No.4: 40. In our analysis with respect to the above points No.2 and 3 above, we have observed that the plaintiff has proved that he has entered into an agreement for purchase of the plaint schedule property from the defendants for a valuable sale consideration of a sum of `6,50,000/- on the date of 01-09-1991 and there under
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has paid a sum of `3,01,001/- towards partial sale consideration. According to the plaintiff, the balance sale consideration was agreed to be paid at the time of execution of the Sale Deed in his favour by the defendants. 41. The plaintiff, in his pleading has specifically stated that, he has always been ready and willing to perform his part of the promise under the contract, however, the defendants did not perform their part of the contract. The time limit agreed between the parties for the performance of the contract was shown to be four months' period from the date of the agreement for sale. In the very same agreement, it is also mentioned that the draft Sale Deed shall be given to the vendors by the purchaser at least one month before the registration to enable the vendors to obtain the Income-tax Clearance Certificate from the Income-tax Department. 42. The learned Senior Counsel for the defendants in support in his argument to hold that the plaintiff was not ready and willing to perform his part of the promise under
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the agreement relied upon two judgments of the Hon’ble Apex Court, which are as follows. 43. In the case of RAVI SETIA VS. MADAN LAL AND OTHERS reported in (2019) 9 Supreme Court cases 381, in paragraph 10 of its judgment, the Hon’ble Apex Court was pleased to observe that, the plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. It observed that, to their mind, that was sufficient evidence of the incapacity or lack of readiness and willingness on the part of the plaintiff to perform his obligations. 44. The above observation was made by the Hon’ble Apex Court, taking into consideration the facts and circumstances of the case before it, particularly, the alleged pendency of the first appeal preferred by the defendants, wherein the plaintiff had sought for extension of time to deposit the balance amount as otherwise the amount would lie in the bank without interest. In the same judgment, the Hon’ble Apex Court further observed that, mere extension of time to deposit
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does not absolve the plaintiff of his obligation to demonstrate his readiness and willingness coupled with special circumstances beyond his control to seek such extension. More importantly, it observed that the plaintiff did not aver in the application that, he was ready and willing to perform his obligations and was prevented from any special circumstance from doing so. 45. The defendants' contention was that, the plaintiff was not ready and willing to perform his part of the contract. However, the contention of PW-1 that, he has always been ready and willing to perform his part of the contract was not shaken in his cross-examination from the defendants’ side, except making denial suggestion to PW-1 that, he was not having funds to pay the balance sale consideration to the defendants before the expiry of time. Though PW-2 and PW-3, in their examination-in- chief have stated that, they, joined by the plaintiff, had been to Ooty in the month of December-1994 and requested the first defendant to execute the Sale Deed in favour of the plaintiff, however, as already observed
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above, PW-2 was not a witness to the agreement for sale at Ex.P-1. PW-2 has stated in his cross-examination that except he accompanying the plaintiff to Ooty and talking with the defendants in connection with the sale transaction, he did not know anything about the sale transaction. Thus, the evidence of PW-2 would not be of much avail to the plaintiff to prove that he was always ready and willing to perform his part of the contract. However, PW-3 has supported the case of the plaintiff on the point by stating that he was a witness to the agreement for sale at Ex.P-1 and that he also accompanied the plaintiff to Ooty to request the defendants to execute the Sale Deed. Still, PW-3 has not stated about the availability of funds with the plaintiff to pay the balance sale consideration before getting the Sale Deed executed in his favour. 46. It is in the light of the above evidence of PW-1 to PW-3, the learned Senior Counsel for the defendants in his argument submitted that, the plaint averment regarding readiness and willingness are too bald and
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vague in its nature. It does not say that the plaintiff had sufficient funds to pay the balance amount due to the defendants under the agreement for sale. Even the Bank balance of the plaintiff, as could be seen in the Pass Book at Ex.P-11, as on the date 31-12-1991 shows only a sum of `1,02,101/-, which was insufficient to pay the balance sale consideration. Except the documentary evidence at Ex.P-11, no other document has been produced by the plaintiff to show his financial capacity to pay the balance sale consideration. As such, mere oral say that he has been ready and willing to perform his part of the promise by paying the balance sale consideration, is not acceptable. 47. No doubt, the bank balance of the plaintiff, as could be seen in his Bank Pass Book at Ex.P-11, as on the date 31-12-1991, was only a sum of `1,02,101/-. However, by that itself it cannot be inferred that the plaintiff did not have any other source of mobilising the funds and no evidence is led to show that he did not possess any other Bank account or sufficient cash or even any
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accessibility to procure the balance sale consideration in the form of loan etc. In that regard, no suggestion also was made to PW-1 in his cross-examination or any details were elicited from the defendants’ side. On the other hand, the plaintiff, as PW-1, even in his examination-in-chief also, maintained that, he orally communicated the defendants to show his readiness and willingness to pay the balance sale consideration amount and get the Sale Deed executed before the expiry of the time fixed under the agreement for sale. He has stated that, in November 1991 itself, he went to the house of the defendants and requested the defendant No.1 to execute the Sale Deed in his favour. 48. As observed above, even PW-3 also has stated that he had accompanied the plaintiff to Ooty in December 1994 since the defendant No.1 was in Ooty at that time and requested the defendant No.1 to execute the Sale Deed in favour of the plaintiff. Even in the cross- examination of PW-3 also, it was no where suggested to the witness that at the time when they are alleged to have
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been to Ooty, the plaintiff did not have sufficient funds to pay the balance sale consideration to defendant No.1 and get the Sale Deed executed. Thus, when the plaintiff, accompanied by PW-3 had been to Ooty requesting the defendant No.1 to execute the Sale Deed, it cannot be suspected that, without making the arrangement for money to pay the balance amount, he had been to Ooty to request the defendant No.1 to register the Sale Deed in his favour. 49. Thus, as observed above, the plaintiff, both in his plaint as well in his evidence as PW-1, has not only pleaded and stated that he has been ready and willing to perform his part of the contract and to get the Sale Deed executed, but also had taken PW-3 to Ooty and meet defendant No.1 and requested her to execute the Sale Deed in his favour. 50. The other case relied upon by the learned Senior Counsel for the defendants is, in the case of U.N. Krishnamurthy (Since Deceased) Thr. Lrs. Vs. A.M. Krishnamurthy reported in 2022 SCC OnLine SC 840.
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In paragraph 25 of the aforesaid judgment, the Hon’ble Apex Court was pleased to observe that, to aver and prove the readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show the availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligations under the terms of the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. 51. Needless to say that there can be no straightjacket formula with regard to the readiness and willingness which will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances of the case.
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In the instant case, as observed above, the plaintiff has not only pleaded in his pleading and led his evidence on the lines of his pleading that, he was always ready and willing to perform his part of the contract under the agreement by paying the balance sale consideration, but also has examined PW-3, who has stated that he had accompanied the plaintiff to Ooty to request the defendant No.1 to execute the Sale Deed in favour of the plaintiff. Thus, the very conduct of the plaintiff in approaching the defendant No.1 with a request to execute the Sale Deed in his favour shows, that he was ready and willing to perform his part of the contract. Otherwise, he would not have gone from Bengaluru to Ooty only to meet the defendant No.1 with a request to execute the Sale Deed. Admittedly, the balance sale consideration was agreed to be paid by the plaintiff to the defendant only at the time of execution of the Sale Deed. Therefore, it has to be inferred that by keeping ready the balance fund or being sure of getting the balance funds to pay off the balance sale consideration, the plaintiff had approached the defendants to execute the Sale Deed in his favour.
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Added to the above, it also can be noticed that the plaintiff has produced apart from the legal notice, calling upon the plaintiff to execute the Sale Deed in his favour, a duly filled-in challan of Reserve Bank of India, Bengaluru, showing that the plaintiff had obtained the necessary challan from the concerned Authorities and filled it with a request to accept the payment of a sum of `60,000/- towards purchase of non-judicial stamp papers. The said documentary evidence to show that the plaintiff had obtained the challan for payment to purchase the stamp papers from the concerned Authorities and had kept it ready to purchase the stamp papers has not been specifically denied in his cross-examination. The plaintiff, as PW-1 has further stated that, though he had been to pay the challan amount for purchase of the stamp papers, at that time, the first defendant approached him and informed that she has proceeded to Ooty since the second defendant was not keeping good health and that she would inform after her return from Ooty and asked him not to purchase the stamp papers. The said specific averment of the plaintiff has not been denied in the cross-
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examination of PW-1. This itself would go to show that, the plaintiff was not suffering with any deficiency of funds to pay the balance amount of sale consideration to the defendants and get the Sale Deed executed in his favour. 54. As analysed above, the agreement in question between the parties is dated 01-09-1991 which had fixed the time limit of four months for completion of the performance of the promise under the contract from both side. 55. The plaintiff has contended that though he had given the draft Sale Deed to the first defendant to enable her to obtain the Clearance Certificate from the Income- tax Department, but the Clearance Certificate was obtained by her only in the month of February 1992 i.e. after the expiry of the alleged four months’ time. 56. On the other hand, the first defendant contends that, the plaintiff did not handover the draft Sale Deed within time which has caused delay in obtaining the Clearance Certificate from the Income-tax Department.
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However, the fact remains that, the first defendant obtained the Clearance Certificate from the Income-tax Department, only after four months' time that was fixed under the agreement and handed it over to the plaintiff after the expiry of the time stipulated under the agreement. 58. The defendant No.1 contends that she had given a telegram to the plaintiff and in that regard, the receipt of which telegram has been admitted by the plaintiff. Thus, all these circumstances shows that, even though the parties to the agreement had fixed four months’ time limit for the performance of the contract and shown the time as the essence of the contract, however, by their conduct they have shown that, time was not the essence of the contract. Therefore, when the time is not shown to be the essence of the contract and the plaintiff apart from taking a specific plea about the readiness and willingness, has also, by leading cogent evidence including that of PW-3 and documentary evidence in the form of the legal notice at Ex.P-2 and more particularly, by producing
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the challan to purchase the stamp papers at Ex.P-6 has proved that, he has always been ready and willing to perform his part of the promise under the agreement for sale, the finding given by the Trial Court answering issue No.3 framed by it in the affirmative cannot be found fault with. With respect to point No.5, 6 and 7: 59. In spite of answering issue No.3 in the affirmative, the Trial Court has answered issue No.4 in the negative, holding that the plaintiff has failed to prove that he was entitled for the discretionary relief of specific performance of the contract. The plaintiff is very much aggrieved by the finding given by the Trial Court on this issue. 60. According to Section 20 of the Specific Relief Act, 1963 (prior to the amendment of the Act in the year 2018, which came into effect from the date 01-10-2018), the jurisdiction to grant a decree of specific performance was discretionary, and the Court was not bound to grant such relief merely because it is lawful to do so; but the
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discretion of the Court was not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Since this relief being an equitable relief, the Court has to take into consideration all the facts and circumstances of the case. 61. In the instant case, as observed above, the plaintiff has proved the existence of agreement for sale between him and the defendants with respect to the purchase of the plaint schedule property from the defendants for a valuable consideration under the agreement for sale dated 01-09-1991. He has also able to prove that he has always been ready and willing to perform his part of the promise under the agreement. Under the said circumstance, generally, there cannot be any bar for granting the relief of specific performance in his favour. 62. However, the Trial Court even after noticing the fact that the plaintiff through his pleading and evidence and also by producing the documentary evidence in the form of the invitation card in connection with the house
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warming ceremony of the house constructed by the first defendant which is at Ex.P-7, has shown that the defendant No.1 intended to sell the plaint schedule property in order to mobilise the funds for construction of her new house, still, opined that the house warming ceremony was performed on the date 15-09-1991 i.e. fifteen days after the execution of the agreement dated 01-09-1991, as such, there was no material to hold that the first defendant was in absolute need of money to construct the house. Further, it also opined that the plaintiff has not placed before the Court any convincing evidence to the effect that the first defendant executed an agreement for mobilising the funds required for construction of the house. It further opined that under the said circumstance, it indicates the plaintiff might be having dominant position over the defendants to take unfair advantage of the situation. Further, holding that PW-2 and PW-3 were intentionally planted by the plaintiff and that he had not approached the Court with clean hands, the Trial Court denied the relief of specific performance in favour of the plaintiff.
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In so far as the alleged unfair advantage alleged to have been taken by the plaintiff against the defendants is concerned, as rightly contended by the learned counsel for the plaintiff (appellant), there is no pleading of alleged unfair advantage by the defendants anywhere in their Written Statement. Though Section 20(2)(a) of the Specific Relief Act, 1963 (prior to the amendment of the Act in the year 2018, which came into effect from the date 01-10-2018) mentions that where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff unfair advantage over the defendant, then the relief of specific performance of the agreement need not be granted by the Court. Similarly, under the same Section 20(2) of the Act, if the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or if the contract makes it
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inequitable to enforce the specific performance, then the relief of specific performance would not be normally granted by the Court. 64. In the instant case, the defendants have neither pleaded either regarding the alleged unfair advantage said to have been taken by the plaintiff against them or any hardship that is being caused to them or even any alleged element of inequitableness to enforce the specific performance of the contract. 65. Our Hon'ble Apex Court in the case of PRAKASH CHANDRA VS. NARAYAN reported in (2012) 5 Supreme Court Cases 403 with respect to Section 20(2)(b) of the Specific Relief Act, 1963 (prior to amendment), was pleased to observe in paragraph 17 of its judgment that, the question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of clause (b) of sub-section (2) of Section 20 of the Special Relief Act, 1963, being a question of fact, the first appellate Court, without framing such an issue, ought not to have reversed the finding of the trial court
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while concurring with it on all other issues with regard to the appellant's entitlement to the relief of specific performance of the contract. 66. On the similar lines, if there was any plea/contention by the defendants regarding taking of unfair advantage in their Written Statement, then, definitely, the Trial Court would have framed necessary issue to decide the same, since it is also a question of fact. However, the defendants no where in their Written Statement have taken any such plea of unfair advantage or hardship in their Written Statement. As such, rightly the Trial Court has not framed any issue on the point. Still, the Trial Court, in its reasoning on issue No.4, ignoring the fact that the defendants had not taken the contention of the alleged unfair advantage, invented the said point and introduced it in its reasoning on its own by observing that, the alleged construction of the house by the defendants and incurring expenses in that regard for which defendant No.1 intended to sell her property would indicate that the plaintiff might be having dominant
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position over the defendants to take unfair advantage of the situation. In the said process, it did not consider the aspect that the defendants no where had contended the practice of any coercion or duress or undue influence or taking of any unfair advantage of the situation by the plaintiff. On the contrary, the evidence of the plaintiff as PW-1 that the defendants, in order to mobilise the fund, intended to sell their property, would go to show that the defendants, after due thinking, had decided to sell their old property and intended to have a new property of their choice. Thus, considering that their decision to sell the plaint schedule property would be more beneficial for them, the defendants had entered into an agreement with the plaintiff. As such, in entering into an agreement for sale, as per Ex.P-1, both the parties were in equal position and neither of them was in an advantageous position compared to the other. As such, the said reasoning given by the Trial Court to deny the relief of specific performance as one of the major reasons to deny the relief
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of specific performance in favour of the plaintiff, is not convincing. 67. The second reasoning given by the Trial Court for denying the relief of specific performance in favour of the plaintiff is that, the plaintiff got planted PW-2 and PW-3 as his witnesses to create a ground for his case. Therefore, the conduct of the plaintiff in planting those two witnesses also plays an important role to decide whether the specific performance can be granted or not. With this, the Trial Court came to a conclusion that, the plaintiff was not entitled to the relief of specific performance of the agreement for sale. 68. The Trial Court has not given any convincing reason as to why PW-2 and PW-3 have to be treated as 'planted witnesses' by the plaintiff. An observation by the Court that the evidence of a particular witness appears to be not believable or trustworthy or even unsafe to believe is different than its observation to hold a particular witness as a 'planted witness'. By whatever reason, if the evidence of a witness is not convincing and does not
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inspire confidence to believe, then it may make that observation and need not give much importance to the evidence of the said witness in deciding an issue in question. Whereas in the case of a witness whom the Court intends to call him as a 'planted witness', then, it requires something more than a mere treating the evidence given by the said witness as not inspiring confidence or trustworthy. It requires additional action on the part of the plaintiff in creating or generating a witness or some documents in his support and introducing a witness or documents through that witness, who truly is not associated with the transaction in question, in any manner. Thus, an ulterior motive or a mala fide intention is required to be there on the part of the plaintiff in the said action of intentional planting of a witness. As such, merely because the evidence of PW-2 or PW-3, according to the Trial Court was not trustworthy and believable, it was not required for the Trial Court to call those two witnesses as 'planted witnesses' by the plaintiff, particularly, when there was no other material to show that the plaintiff had any such mala fide intention and
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that, he had, with some ulterior motive, introduced two strangers, who were unconnected with the transaction as the one connected to the suit schedule transaction in some manner. 69. Further, as analysed above, though the evidence of PW-2 was found to be not safe to believe, however, no such infirmity could be noticed in the evidence of PW-3. As such also, the Trial Court coming to a conclusion that PW-2 and PW-3 were 'planted witnesses' and thereby denying the relief of specific performance of the contract to the plaintiff was not called for, in the facts and circumstances of the present case. 70. The learned counsel for the plaintiff, lastly in his argument, contending that if the vendee was ready and willing to perform his part of the contract, he is entitled to the relief of specific performance, relied upon a judgment of the Hon'ble Apex Court in the case of Sughar Singh vs. Hari Singh (Dead) Through LRs. And Ors. reported in AIR 2021 SUPREME COURT 5581.
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The point before the Hon'ble Apex Court in the aforementioned case was, whether the relief of specific performance was continued to be a discretionary relief even when the plaintiff/vendee proves that he had always been ready and willing to perform his part of the contract. Under the said circumstance, the Hon'ble Apex Court in paragraph 10 of its judgment was pleased to observe as follows: "10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to
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be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously."
In the instant case also, as observed above, the plaintiff has pleaded and proved that he has always been ready and willing to perform his part of the contract, however, due to the delay and latches on the part of the defendants, the same could not be completed within the stipulated period. He has even paid a substantial part of sale consideration as a part of total sale consideration to the defendants and had taken every step even to buy the necessary stamp papers required for preparation and registration of the absolute Sale Deed. Under the said circumstance, not granting the decree of specific performance would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff
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rather than in favour of the defendants/executants of the agreement to sell, while exercising the discretion judiciously. As such, the plaintiff is entitled for the relief of specific performance of the contract, which is an agreement for sale executed between the plaintiff and the defendants dated 01-09-1991 which is at Ex.P-1. 73. Since the Trial Court, which has answered the other relevant issues, which are issues No.1, 2 and 3 in favour of the plaintiff, has committed an error in answering issue No.4 in the negative, the same requires to be modified by this Court, for which, intervention by this Court, in the impugned judgment and decree of the Trial Court, is warranted. Accordingly, we proceed to pass the following: O R D E R
[i] The Regular First Appeal is allowed;
[ii] The impugned judgment and decree dated 17-01-2006, passed in O.S.No.33/1995, by the learned V Additional City Civil Judge at Bangalore City, stands set aside;
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[iii] The suit of the plaintiff in O.S.No.33/1995, stands decreed;
[iv] The defendants No.1 and 2 in O.S.No.33/1995 are directed to execute and register an absolute Sale Deed in favour of the plaintiff, in respect of the plaint schedule property, by accepting the balance sale consideration of a sum of `3,50,000/-, within a period of four months from today, failing which, the said Sale Deed be executed and registered according to the provisions of Order 21, Rule 34 clause (4) of the Code of Civil Procedure, 1908;
Consequently, the defendants No. 1 and 2 are also directed to handover the vacant possession of the plaint schedule property to the plaintiff at the time of execution of the Sale Deed either by themselves or under Order 21, Rule 34 (4) of the Code of Civil Procedure, 1908;
[v] There is no order as to costs.
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Draw the decree accordingly.
Registry to transmit a copy of this judgment to the Trial Court, along with its records, without delay.
Sd/- JUDGE
Sd/- JUDGE
BMV*