In my opinion, if at all the remedy of specific performance of
contract cannot be availed of, then only, the sum of damages may be
considered as an alternative. But it must be ensured that the sum
must be sufficient and exemplary enough to discourage rampant
breach of obligation under the agreement to sell. In such cases,
damages may be awarded by way of grant of higher interest, if for
any reason specific relief of performance cannot be granted, then
only the trial Judge may grant alternative relief of appropriate
damages. I, therefore, reject the argument of the learned Counsel
for the defendantrespondent that specific performance cannot be
granted and at the most, only damages should be awarded. This
was the case where the respondentsdefendants tried to raise false
defences in order to avoid execution of the registered sale deed and
by their conduct, the respondentsdefendants attempted to create
third party interest intending to defeat the fruits of the decree for
appellantplaintiff even while the proceedings remained pending for
final decision before the Court. These facts could not have been
ignored by the learned Appellate Judge. The evidence led on record
indicates that the appellantplaintiff was not only ready but also
willing to perform his part of the contract in order to get the
registered sale deed executed in accordance with law. That being
1. Heard learned counsel for the rival parties.
contract cannot be availed of, then only, the sum of damages may be
considered as an alternative. But it must be ensured that the sum
must be sufficient and exemplary enough to discourage rampant
breach of obligation under the agreement to sell. In such cases,
damages may be awarded by way of grant of higher interest, if for
any reason specific relief of performance cannot be granted, then
only the trial Judge may grant alternative relief of appropriate
damages. I, therefore, reject the argument of the learned Counsel
for the defendantrespondent that specific performance cannot be
granted and at the most, only damages should be awarded. This
was the case where the respondentsdefendants tried to raise false
defences in order to avoid execution of the registered sale deed and
by their conduct, the respondentsdefendants attempted to create
third party interest intending to defeat the fruits of the decree for
appellantplaintiff even while the proceedings remained pending for
final decision before the Court. These facts could not have been
ignored by the learned Appellate Judge. The evidence led on record
indicates that the appellantplaintiff was not only ready but also
willing to perform his part of the contract in order to get the
registered sale deed executed in accordance with law. That being
so, the second appeal succeeds.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,
V
Sau. Sheelabai W/o Kishor Shrungare,
CORAM : A. P. BHANGALE, J.
Sau. Sheelabai W/o Kishor Shrungare,
CORAM : A. P. BHANGALE, J.
DATED : September 10, 2015
Citation:2016(3) ALLMR105
Citation:2016(3) ALLMR105
1. Heard learned counsel for the rival parties.
2. By this second appeal, the appellantplaintiff has sought
to challenge Judgment and Order dt.4.9.1999 passed by learned
District Judge, Yavatmal in Regular Civil Appeal No.112 of 1995
whereby the decree for specific performance of the suit agreement
passed in favour of the appellantplaintiff by Judgment and Order
dt.30.6.1995 by learned Civil Judge (Sr.Dn.), Ner, District
Yavatmal in Regular Civil Suit No.57 of 1993 was modified by
refusing specific performance of the agreement to sell and granting
merely refund of the earnest money with interest.
3. The facts of the case stated, are thus :
On 23.2.2004, this Second Appeal was admitted on the
following substantial question of law :
Whether the First Appellate Court is wrong in
setting aside the findings of the trial Court on the
readiness and willingness when the appellantplaintiff
was ready and willing to perform his part
of the contract and there was specific pleading in
the plaint?
The substantial question of law as stated above must be
to challenge Judgment and Order dt.4.9.1999 passed by learned
District Judge, Yavatmal in Regular Civil Appeal No.112 of 1995
whereby the decree for specific performance of the suit agreement
passed in favour of the appellantplaintiff by Judgment and Order
dt.30.6.1995 by learned Civil Judge (Sr.Dn.), Ner, District
Yavatmal in Regular Civil Suit No.57 of 1993 was modified by
refusing specific performance of the agreement to sell and granting
merely refund of the earnest money with interest.
3. The facts of the case stated, are thus :
On 23.2.2004, this Second Appeal was admitted on the
following substantial question of law :
Whether the First Appellate Court is wrong in
setting aside the findings of the trial Court on the
readiness and willingness when the appellantplaintiff
was ready and willing to perform his part
of the contract and there was specific pleading in
the plaint?
The substantial question of law as stated above must be
answered in the affirmative for the following reasons :
4. The dispute between the parties relates to agricultural
land bearing Survey No.33, total admeasuring 3H 23 R, situated at
village Udapur, Taluka Ner, District Yavatmal. It is the case of the
appellantplaintiff that respondent No.1defendant and her
deceased husband had agreed to sell southern portion of the said
land admeasuring 1H 21R to the appellant/plaintiff by an
agreement to sell dt.7.4.1991 for valuable consideration of
Rs.15,000/. The appellantplaintiff had paid substantive part of
consideration in the form of earnest money in the sum of Rs.9,000/
to respondentsdefendants and balance amount of consideration in
the sum of Rs.6,000/ was payable on 18.1.1992 when the parties
had agreed to execute the registered sale deed. Thus, agreement to
sell was entered into (Exh.45). It is the case of the
appellant/plaintiff that he had gone to the Office of the Sub
Registrar, Ner, District Yavatmal on 19.1.1992. The appellantplaintiff
had purchased the Stamp Paper (Exh.46) to show his
presence in the Office of Sub Registrar, Ner to execute the
registered sale deed as agreed between the parties, but the
4. The dispute between the parties relates to agricultural
land bearing Survey No.33, total admeasuring 3H 23 R, situated at
village Udapur, Taluka Ner, District Yavatmal. It is the case of the
appellantplaintiff that respondent No.1defendant and her
deceased husband had agreed to sell southern portion of the said
land admeasuring 1H 21R to the appellant/plaintiff by an
agreement to sell dt.7.4.1991 for valuable consideration of
Rs.15,000/. The appellantplaintiff had paid substantive part of
consideration in the form of earnest money in the sum of Rs.9,000/
to respondentsdefendants and balance amount of consideration in
the sum of Rs.6,000/ was payable on 18.1.1992 when the parties
had agreed to execute the registered sale deed. Thus, agreement to
sell was entered into (Exh.45). It is the case of the
appellant/plaintiff that he had gone to the Office of the Sub
Registrar, Ner, District Yavatmal on 19.1.1992. The appellantplaintiff
had purchased the Stamp Paper (Exh.46) to show his
presence in the Office of Sub Registrar, Ner to execute the
registered sale deed as agreed between the parties, but the
respondentsdefendants did not turn up in the Office of Sub
Registrar to execute the registered sale deed as agreed.
5. On the next day, the appellantplaintiff went to the house
of respondentsdefendants to question them about their absence for
execution of the registered sale deed as agreed. At that time, the
respondentsdefendants assured that they would execute the
registered sale deed within 8 to 12 days. The appellantplaintiff
waited and since there was no response from the respondentsdefendants,
the appellantplaintiff served notice dt.21.4.1993
(Exh.47) calling upon the respondentsdefendants to appear in the
Office of the Sub Registrar on 30.4.1993 and to execute the
registered sale deed as agreed between the parties.
6 Accordingly, on the date appointed, the appellantplaintiff
though attended the Office of the SubRegistrar again on
30.4.1993 and also purchased Stamp Paper to show his presence in
the Office of the Sub Registrar to get the registered sale deed
executed as agreed between the parties, but the respondentsdefendants
did not turn up even on that extended date. Thus,
Registrar to execute the registered sale deed as agreed.
5. On the next day, the appellantplaintiff went to the house
of respondentsdefendants to question them about their absence for
execution of the registered sale deed as agreed. At that time, the
respondentsdefendants assured that they would execute the
registered sale deed within 8 to 12 days. The appellantplaintiff
waited and since there was no response from the respondentsdefendants,
the appellantplaintiff served notice dt.21.4.1993
(Exh.47) calling upon the respondentsdefendants to appear in the
Office of the Sub Registrar on 30.4.1993 and to execute the
registered sale deed as agreed between the parties.
6 Accordingly, on the date appointed, the appellantplaintiff
though attended the Office of the SubRegistrar again on
30.4.1993 and also purchased Stamp Paper to show his presence in
the Office of the Sub Registrar to get the registered sale deed
executed as agreed between the parties, but the respondentsdefendants
did not turn up even on that extended date. Thus,
ultimately, with no other alternative left for the appellantplaintiff,
he was constrained to file the suit for specific performance of
contract to insist upon execution of the registered sale deed as
agreed or in the alternative, refund of the earnest money along
with interest accrued thereupon.
7. Regular Civil Suit No.57 of 1993 was instituted on
1.10.1993 after the respondentsdefendants by their reply (Exh.57)
dt.31.5.1993, acknowledged on 3.6.1993 by the appellantplaintiff,
refused to execute the registered sale deed as agreed between the
parties. Regular Civil Suit No.57 of 1993 instituted in the Court of
learned Civil Judge (Jr.Dn.), Ner, District Yavatmal was decided by
Judgment and Order, dt.30.6.1995. Learned Judge of the trial
Court found that the respondentsdefendants had entered into the
agreement to sell dt.7.4.1991 in respect of the aforesaid agricultural
land admeasuring 1H, 21R out of agricultural land bearing Survey
No.33, total admeasuring 3H, 23 R, situated at village Udapur,
Taluka Ner, District Yavatmal. Learned Judge of the trial Court
further found that the appellantplaintiff had proved payment of
earnest money in the sum of Rs.9,000/ pursuant to the agreement
he was constrained to file the suit for specific performance of
contract to insist upon execution of the registered sale deed as
agreed or in the alternative, refund of the earnest money along
with interest accrued thereupon.
7. Regular Civil Suit No.57 of 1993 was instituted on
1.10.1993 after the respondentsdefendants by their reply (Exh.57)
dt.31.5.1993, acknowledged on 3.6.1993 by the appellantplaintiff,
refused to execute the registered sale deed as agreed between the
parties. Regular Civil Suit No.57 of 1993 instituted in the Court of
learned Civil Judge (Jr.Dn.), Ner, District Yavatmal was decided by
Judgment and Order, dt.30.6.1995. Learned Judge of the trial
Court found that the respondentsdefendants had entered into the
agreement to sell dt.7.4.1991 in respect of the aforesaid agricultural
land admeasuring 1H, 21R out of agricultural land bearing Survey
No.33, total admeasuring 3H, 23 R, situated at village Udapur,
Taluka Ner, District Yavatmal. Learned Judge of the trial Court
further found that the appellantplaintiff had proved payment of
earnest money in the sum of Rs.9,000/ pursuant to the agreement
to sell dt.7.4.1991 and that the appellantplaintiff was ready and
willing to perform his part of the contract in the said agreement to
execute the registered sale deed.
8. The defence put up by the respondentsdefendants was
that the suit transaction is in the nature of security for loan and
that the appellantplaintiff does a money lending business and
furthermore that the respondentsdefendants have the only source
of income from the agricultural land. After recording the evidence
led by the parties and hearing the parties, findings in favour of the
appellantplaintiff were recorded and the suit was decreed with
costs. In the result, the respondentsdefendants were directed to
execute the registered sale deed of the suit property admeasuring
1H, 21R in favour of the appellantplaintiff within three months
from the date of the decree at the costs of the appellantplaintiff.
The appellantplaintiff was directed to deposit remaining amount of
Rs.6,000/ of consideration agreed within three months from the
date of order in the Court and the amount was directed to paid to
the respondentsdefendants upon execution of the registered sale
deed. The trial Court also directed that if the respondents
willing to perform his part of the contract in the said agreement to
execute the registered sale deed.
8. The defence put up by the respondentsdefendants was
that the suit transaction is in the nature of security for loan and
that the appellantplaintiff does a money lending business and
furthermore that the respondentsdefendants have the only source
of income from the agricultural land. After recording the evidence
led by the parties and hearing the parties, findings in favour of the
appellantplaintiff were recorded and the suit was decreed with
costs. In the result, the respondentsdefendants were directed to
execute the registered sale deed of the suit property admeasuring
1H, 21R in favour of the appellantplaintiff within three months
from the date of the decree at the costs of the appellantplaintiff.
The appellantplaintiff was directed to deposit remaining amount of
Rs.6,000/ of consideration agreed within three months from the
date of order in the Court and the amount was directed to paid to
the respondentsdefendants upon execution of the registered sale
deed. The trial Court also directed that if the respondents
defendants fail to execute the registered sale deed, the appellantplaintiff
is entitled to get it executed through the Court.
9. Shri Amol Mardikar, learned counsel for the appellantplaintiff,
submits that the unsuccessful respondentsdefendants
preferred First Appeal before the learned District Judge, Yavatmal
being Regular Civil Appeal No.112 of 1995. Learned Appellate
Judge too found that the respondentsdefendants had agreed to sell
the suit property and that the appellantplaintiff had paid earnest
money in the sum of Rs.9,000/ to the respondentsdefendants
pursuant to agreement to sale dt.7.4.1991. Learned Appellate
Judge, however, held that the appellantplaintiff was not always
ready and willing to perform his part of the contract. In the result,
therefore, the decree for specific performance of contract granted by
the trial Court was set aside and instead, order was made merely
for the refund of the earnest money with interest at the rate of 15%
per annum by way of damages to the appellantplaintiff since
7.4.1991 till realization of the entire amount.
10. Learned Counsel for the appellantplaintiff vehemently
is entitled to get it executed through the Court.
9. Shri Amol Mardikar, learned counsel for the appellantplaintiff,
submits that the unsuccessful respondentsdefendants
preferred First Appeal before the learned District Judge, Yavatmal
being Regular Civil Appeal No.112 of 1995. Learned Appellate
Judge too found that the respondentsdefendants had agreed to sell
the suit property and that the appellantplaintiff had paid earnest
money in the sum of Rs.9,000/ to the respondentsdefendants
pursuant to agreement to sale dt.7.4.1991. Learned Appellate
Judge, however, held that the appellantplaintiff was not always
ready and willing to perform his part of the contract. In the result,
therefore, the decree for specific performance of contract granted by
the trial Court was set aside and instead, order was made merely
for the refund of the earnest money with interest at the rate of 15%
per annum by way of damages to the appellantplaintiff since
7.4.1991 till realization of the entire amount.
10. Learned Counsel for the appellantplaintiff vehemently
submits that learned Appellate Judge failed to exercise judicial
discretion in favour of the appellantplaintiff, though, according to
him, the agreement to sell was proved and established by the
appellantplaintiff and also he was and is always ready and willing
to perform his part of the contract.
11. Shri Amol Mardikar, learned Counsel for appellantplaintiff,
took me through the evidence led before the trial Court
and submits that the appellantplaintiff in his deposition (Exh.44)
deposed about the suit transaction of agreement to sell duly
executed by the respondentsdefendants. The appellantplaintiff,
pursuant to the agreement to sell had attended the Office of the
SubRegistrar and also purchased Stamp Paper on two occasions as
deposed, but despite agreement to sell, the respondentsdefendants
avoided to execute the registered sale deed in favour of the
appellantplaintiff. The respondentsdefendants were called upon
by notice dt.21.4.1993 (Exh.47) to execute the registered sale deed
in favour of the appellantplaintiff, but despite their all earlier
assurances to execute the registered sale deed in favour of the
appellantplaintiff, they continued to avoid their liability to perform
discretion in favour of the appellantplaintiff, though, according to
him, the agreement to sell was proved and established by the
appellantplaintiff and also he was and is always ready and willing
to perform his part of the contract.
11. Shri Amol Mardikar, learned Counsel for appellantplaintiff,
took me through the evidence led before the trial Court
and submits that the appellantplaintiff in his deposition (Exh.44)
deposed about the suit transaction of agreement to sell duly
executed by the respondentsdefendants. The appellantplaintiff,
pursuant to the agreement to sell had attended the Office of the
SubRegistrar and also purchased Stamp Paper on two occasions as
deposed, but despite agreement to sell, the respondentsdefendants
avoided to execute the registered sale deed in favour of the
appellantplaintiff. The respondentsdefendants were called upon
by notice dt.21.4.1993 (Exh.47) to execute the registered sale deed
in favour of the appellantplaintiff, but despite their all earlier
assurances to execute the registered sale deed in favour of the
appellantplaintiff, they continued to avoid their liability to perform
their part of the contract to execute the registered sale deed in
favour of the appellantplaintiff.
12. Shri Amol Mardikar, learned Counsel for the appellantplaintiff,
submits that there was no challenge by the respondentsdefendants
to the evidence of continuous readiness and willingness
to perform his part of the contract by the plaintiff in order to get
the registered sale deed executed in respect of the suit property. It
is, therefore, submitted that the appellantplaintiff was entitled to
insist upon specific performance of the contract with the
respondentsdefendants pursuant to which substantial part of
consideration as agreed in the sum of Rs.9,000/ was already paid
to the respondentsdefendants and the balance consideration in the
sum of Rs.6,000/ was to be paid on the date when the registered
sale deed was to be executed. Shri Mardikar, learned Counsel,
criticised the Judgment and Order passed by the learned Appellate
Judge on the ground that there was no justification for the learned
First Appellate Judge to refuse to exercise judicial discretion in
favour of the plaintiff; particularly when the respondentsdefendants
despite pendency of the appeal had intended to defeat
favour of the appellantplaintiff.
12. Shri Amol Mardikar, learned Counsel for the appellantplaintiff,
submits that there was no challenge by the respondentsdefendants
to the evidence of continuous readiness and willingness
to perform his part of the contract by the plaintiff in order to get
the registered sale deed executed in respect of the suit property. It
is, therefore, submitted that the appellantplaintiff was entitled to
insist upon specific performance of the contract with the
respondentsdefendants pursuant to which substantial part of
consideration as agreed in the sum of Rs.9,000/ was already paid
to the respondentsdefendants and the balance consideration in the
sum of Rs.6,000/ was to be paid on the date when the registered
sale deed was to be executed. Shri Mardikar, learned Counsel,
criticised the Judgment and Order passed by the learned Appellate
Judge on the ground that there was no justification for the learned
First Appellate Judge to refuse to exercise judicial discretion in
favour of the plaintiff; particularly when the respondentsdefendants
despite pendency of the appeal had intended to defeat
the suit by attempting selling the suit property in favour of one
Ramnath Pandharinath Vidhate and others who sought to
interevene in the present appeal on the ground that they are
claiming under the respondentsdefendants alleging that they are
subsequent purchasers from the respondentsdefendants in respect
of the suit property. According to Shri Mardikar, learned Counsel,
in view of Section 52 of The Transfer of Property Act, 1882, the
intervenors claiming to be subsequent purchasers under the
respondentsdefendants have no locus standi as such to
participate in the hearing of the Second Appeal upon substantial
question of law for want of any privity of the contract between the
intervenors and the appellantplaintiff. Shri Mardikar, learned
Counsel, submits that the appellantplaintiff is legally entitled to
insist upon execution of the registered sale deed pursuant to the
agreement to sell executed from the respondentsdefendants.
Therefore, substantial question of law ought to be answered in
favour of the appellantplaintiff as it was wrong on the part of the
learned Appellate Judge to set aside the findings recorded by
learned trial Judge based upon the evidence led by the parties and
the provisions of law under the Specific Relief Act, 1963.
Ramnath Pandharinath Vidhate and others who sought to
interevene in the present appeal on the ground that they are
claiming under the respondentsdefendants alleging that they are
subsequent purchasers from the respondentsdefendants in respect
of the suit property. According to Shri Mardikar, learned Counsel,
in view of Section 52 of The Transfer of Property Act, 1882, the
intervenors claiming to be subsequent purchasers under the
respondentsdefendants have no locus standi as such to
participate in the hearing of the Second Appeal upon substantial
question of law for want of any privity of the contract between the
intervenors and the appellantplaintiff. Shri Mardikar, learned
Counsel, submits that the appellantplaintiff is legally entitled to
insist upon execution of the registered sale deed pursuant to the
agreement to sell executed from the respondentsdefendants.
Therefore, substantial question of law ought to be answered in
favour of the appellantplaintiff as it was wrong on the part of the
learned Appellate Judge to set aside the findings recorded by
learned trial Judge based upon the evidence led by the parties and
the provisions of law under the Specific Relief Act, 1963.
13. Shri Mardikar, learned Counsel, also refers to Sections
16(c) and 20 of the Specific Relief Act, 1963 in order to submit that
the appellantplaintiff is entitled to the benefit of judicial discretion
to insist upon execution of the registered sale deed from the
respondentsdefendants pursuant to specific performance of
agreement to sell.
14. Shri A.V. Bhide, learned counsel for respondent No.1
defendant, opposes the submissions made by Shri Amol Mardikar,
learned Counsel for the appellantplaintiff. Shri Bhide, learned
Counsel, submits that he also appears for the intervenors who
sought to intervene on the ground that they are subsequent
purchasers from respondentsdefendants. According to him, the
appellantplaintiff had failed to establish continuous readiness and
willingness to get the sale deed executed from the defendants.
15. Shri Bhide, learned Counsel, has placed reliance on the
case of J.P. Builders and another ..vs.. A. Ramdas Rao and
16(c) and 20 of the Specific Relief Act, 1963 in order to submit that
the appellantplaintiff is entitled to the benefit of judicial discretion
to insist upon execution of the registered sale deed from the
respondentsdefendants pursuant to specific performance of
agreement to sell.
14. Shri A.V. Bhide, learned counsel for respondent No.1
defendant, opposes the submissions made by Shri Amol Mardikar,
learned Counsel for the appellantplaintiff. Shri Bhide, learned
Counsel, submits that he also appears for the intervenors who
sought to intervene on the ground that they are subsequent
purchasers from respondentsdefendants. According to him, the
appellantplaintiff had failed to establish continuous readiness and
willingness to get the sale deed executed from the defendants.
15. Shri Bhide, learned Counsel, has placed reliance on the
case of J.P. Builders and another ..vs.. A. Ramdas Rao and
another, reported at (2001)1 SCC 429 in order to submit that the
appellantplaintiff must plead and prove his continuous readiness
and willingness as condition precedent to insist upon the specific
performance of agreement to sell and failure to aver and prove such
continuous readiness and willingness on the part of the appellantplaintiff
must result in the failure of the suit for specific
performance of the contract. According to Shri Bhide, learned
Counsel, the purchasers pendente lite are not bound by the
Judgment and Order by which the learned Appellate Judge had
refused to grant specific performance.
16. Having heard the rival submissions and the substantial
question of law formulated, Section 52 of The Transfer of Property
Act, 1882 cannot be ignored which runs thus :
52. Transfer of property suit relating thereto –
During the [pendency] in any Court having
authority [ [within the limits of India excluding the
State of Jammu and Kashmir] or established
beyond such limits] by [the Central Government]
{***] of [any] suit or proceedings which is not
collusive and in which any right to immovable
property is directly and specifically in question, the
appellantplaintiff must plead and prove his continuous readiness
and willingness as condition precedent to insist upon the specific
performance of agreement to sell and failure to aver and prove such
continuous readiness and willingness on the part of the appellantplaintiff
must result in the failure of the suit for specific
performance of the contract. According to Shri Bhide, learned
Counsel, the purchasers pendente lite are not bound by the
Judgment and Order by which the learned Appellate Judge had
refused to grant specific performance.
16. Having heard the rival submissions and the substantial
question of law formulated, Section 52 of The Transfer of Property
Act, 1882 cannot be ignored which runs thus :
52. Transfer of property suit relating thereto –
During the [pendency] in any Court having
authority [ [within the limits of India excluding the
State of Jammu and Kashmir] or established
beyond such limits] by [the Central Government]
{***] of [any] suit or proceedings which is not
collusive and in which any right to immovable
property is directly and specifically in question, the
property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to
affect the rights of any other party thereto under
any decree or order which may be made therein,
except under the authority of the Court and on
such terms as it may impose.
[Explanation. For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the
plaint or the institution of the proceeding in a
Court of competent jurisdiction, and to continue
until the suit or proceeding has been disposed of by
a final decree or order and complete satisfaction or
discharge of such decree or order has been
obtained, or has become unobtainable by reason of
the expiration of any period of limitation
prescribed for the execution thereof by any law for
the time being in force.
17. Thus, pending disposal of the suit or the proceedings,
right to immovable property is directly and specifically in question;
the suit property cannot transferred or disposed of so as to affect
the right of the other party under any decree or order. The
explanation to Section 52 of the Transfer of Property Act also
clarifies that pendency of the suit commences from the date of
presentation of the plaint or the institution of the proceeding in a
Court of competent jurisdiction and to continue until the suit or
with by any party to the suit or proceeding so as to
affect the rights of any other party thereto under
any decree or order which may be made therein,
except under the authority of the Court and on
such terms as it may impose.
[Explanation. For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the
plaint or the institution of the proceeding in a
Court of competent jurisdiction, and to continue
until the suit or proceeding has been disposed of by
a final decree or order and complete satisfaction or
discharge of such decree or order has been
obtained, or has become unobtainable by reason of
the expiration of any period of limitation
prescribed for the execution thereof by any law for
the time being in force.
17. Thus, pending disposal of the suit or the proceedings,
right to immovable property is directly and specifically in question;
the suit property cannot transferred or disposed of so as to affect
the right of the other party under any decree or order. The
explanation to Section 52 of the Transfer of Property Act also
clarifies that pendency of the suit commences from the date of
presentation of the plaint or the institution of the proceeding in a
Court of competent jurisdiction and to continue until the suit or
proceeding has been disposed of by a final decree or order and
complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution thereof by any
law for the time being in force.
18. In my view, the respondentsdefendants in the suit
cannot be allowed to create a situation whereby right of the
appellantplaintiff in the suit is defeated due to transaction
between the alleged subsequent purchasers and the respondentsdefendants.
The subsequent purchasers claiming under the
respondentsdefendants may have their remedy as against the
respondentsdefendants to claim damages for breach of agreement,
if any, with the respondentsdefendants, but such subsequent
purchasers claiming under the respondentsdefendants in the
absence of privity of contract with the appellantplaintiff are not
entitled to defeat otherwise sustainable decree by seeking to
intervene and participate at the hearing of the second appeal. That
being so, Civil Application No.2848 of 2004 for grant of permission
to add the subsequent purchaser as respondent preferred by the
complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution thereof by any
law for the time being in force.
18. In my view, the respondentsdefendants in the suit
cannot be allowed to create a situation whereby right of the
appellantplaintiff in the suit is defeated due to transaction
between the alleged subsequent purchasers and the respondentsdefendants.
The subsequent purchasers claiming under the
respondentsdefendants may have their remedy as against the
respondentsdefendants to claim damages for breach of agreement,
if any, with the respondentsdefendants, but such subsequent
purchasers claiming under the respondentsdefendants in the
absence of privity of contract with the appellantplaintiff are not
entitled to defeat otherwise sustainable decree by seeking to
intervene and participate at the hearing of the second appeal. That
being so, Civil Application No.2848 of 2004 for grant of permission
to add the subsequent purchaser as respondent preferred by the
appellant must be rejected with costs.
19. Regarding agreement to sell which is executed and
proved between the appellantplaintiff and the respondentsdefendants,
in view of Section 16(c) read with Section 20 of the
Specific Relief Act, 1963, when the respondentsdefendants have
denied their liability to execute the sale deed despite legal notice
issued from the appellantplaintiff to them, it was clear that the
respondentsdefendants were evasive to perform their part of the
contract to execute the registered sale deed, though the plaintiff
had attended the Office of the Sub Registrar on the appointed date,
defendants failed to perform their part of the contract. The
appellantplaintiff had approached them again and the
respondentsdefendants had assured the appellantplaintiff to
execute the registered sale deed. Since the respondentsdefendants
had failed to comply with the same, the appellantplaintiff issued
legal notice calling upon the respondentsdefendants to execute the
registered sale deed, but they avoided by alleging money lending
transaction on the part of the appellantplaintiff without adducing
any evidence to prove it. The respondentsdefendants dishonestly
19. Regarding agreement to sell which is executed and
proved between the appellantplaintiff and the respondentsdefendants,
in view of Section 16(c) read with Section 20 of the
Specific Relief Act, 1963, when the respondentsdefendants have
denied their liability to execute the sale deed despite legal notice
issued from the appellantplaintiff to them, it was clear that the
respondentsdefendants were evasive to perform their part of the
contract to execute the registered sale deed, though the plaintiff
had attended the Office of the Sub Registrar on the appointed date,
defendants failed to perform their part of the contract. The
appellantplaintiff had approached them again and the
respondentsdefendants had assured the appellantplaintiff to
execute the registered sale deed. Since the respondentsdefendants
had failed to comply with the same, the appellantplaintiff issued
legal notice calling upon the respondentsdefendants to execute the
registered sale deed, but they avoided by alleging money lending
transaction on the part of the appellantplaintiff without adducing
any evidence to prove it. The respondentsdefendants dishonestly
tried to defeat the suit for specific performance by the appellantplaintiff.
All these facts could not have been ignored by the learned
Appellate Judge who refused to confirm the decree for specific
performance of the contract in favour of the appellantplaintiff
despite the clear findings recorded by learned trial Judge upon
evidence led before it. The decree passed by the trial Court could
not have been brushed aside lightly. The legal position cannot be
disputed that it is an ordinary rule that the specific performance of
contract ought to be granted when the appellantplaintiff was ready
and willing to perform his part of the contract. The appellantplaintiff
had parted with substantial payment of consideration
agreed by paying earnest money and was/is ready and willing to
perform his part of the suit agreement to sell.
20. In the case of R.C. Chandiok and another ..vs.. Chuni
Lal Sabharwal and others, reported at 1970(3) SCC 140, the
Hon'ble Apex Court observed that the readiness and willingness
cannot be treated as a straightjacket formula and issue has to be
decided keeping in view of the facts and circumstances relevant to
All these facts could not have been ignored by the learned
Appellate Judge who refused to confirm the decree for specific
performance of the contract in favour of the appellantplaintiff
despite the clear findings recorded by learned trial Judge upon
evidence led before it. The decree passed by the trial Court could
not have been brushed aside lightly. The legal position cannot be
disputed that it is an ordinary rule that the specific performance of
contract ought to be granted when the appellantplaintiff was ready
and willing to perform his part of the contract. The appellantplaintiff
had parted with substantial payment of consideration
agreed by paying earnest money and was/is ready and willing to
perform his part of the suit agreement to sell.
20. In the case of R.C. Chandiok and another ..vs.. Chuni
Lal Sabharwal and others, reported at 1970(3) SCC 140, the
Hon'ble Apex Court observed that the readiness and willingness
cannot be treated as a straightjacket formula and issue has to be
decided keeping in view of the facts and circumstances relevant to
the intention and conduct of the party concerned. This view was
also reiterated in the ruling of P.D'souza ..vs.. Shondrilo Naidu,
reported at (2004)6 SCC 649. It is true that continuous readiness
and willingness on the part of the appellantplaintiff is a condition
precedent to grant the relief of specific performance. Now, the
material and relevant circumstances which are required to be
considered by the Court whereby the appellantplaintiff led
evidence about his persistence of readiness and willingness to
perform his part of the contract, such evidence showing readiness
and willingness to perform his part of the contract cannot be
ignored. It was not the case of the respondentsdefendants that the
appellantplaintiff was not ready and willing to pay balance
amount of consideration which he was required to pay to the
respondentsdefendants. The respondentsdefendants wanted to
defeat the suit on the ground that the appellantplaintiff is money
lender but they miserably failed to prove the allegations made
against the appellantplaintiff. The evidence led by the appellantplaintiff
in the facts and circumstances that he attended twice the
Office of the Sub Registrar, he had purchased stamp paper, he
also reiterated in the ruling of P.D'souza ..vs.. Shondrilo Naidu,
reported at (2004)6 SCC 649. It is true that continuous readiness
and willingness on the part of the appellantplaintiff is a condition
precedent to grant the relief of specific performance. Now, the
material and relevant circumstances which are required to be
considered by the Court whereby the appellantplaintiff led
evidence about his persistence of readiness and willingness to
perform his part of the contract, such evidence showing readiness
and willingness to perform his part of the contract cannot be
ignored. It was not the case of the respondentsdefendants that the
appellantplaintiff was not ready and willing to pay balance
amount of consideration which he was required to pay to the
respondentsdefendants. The respondentsdefendants wanted to
defeat the suit on the ground that the appellantplaintiff is money
lender but they miserably failed to prove the allegations made
against the appellantplaintiff. The evidence led by the appellantplaintiff
in the facts and circumstances that he attended twice the
Office of the Sub Registrar, he had purchased stamp paper, he
waited for the respondentsdefendants, he had again approached
the respondentsdefendants on next day, the respondentsdefendants
had assured the appellantplaintiff that they would
execute the sale deed, but they did not comply the same and
furthermore that the appellantplaintiff was constrained to issue
legal notice and despite receipt of such legal notice, the
respondentsdefendants by their persistent conduct of evasiveness
refused to perform their part of the contract was totally ignored by
the learned Appellate Judge. It is true that, under Section 20 of
the Specific Relief Act, 1963, it is the discretion of the Court to
grant decree for specific performance, but such discretion is a
judicial discretion. It cannot be arbitrary but must be sound and
reasonable guided by judicial principles. There cannot be
unreasonable denial of equitable relief.
21. It was the case where the appellantplaintiff had averred
and established his readiness and willingness to perform his part of
the contract but the respondentsdefendants continued to avoid to
execute the registered sale deed on some pretext or the other
pursuant to the suit agreement to sell. Therefore, the learned
the respondentsdefendants on next day, the respondentsdefendants
had assured the appellantplaintiff that they would
execute the sale deed, but they did not comply the same and
furthermore that the appellantplaintiff was constrained to issue
legal notice and despite receipt of such legal notice, the
respondentsdefendants by their persistent conduct of evasiveness
refused to perform their part of the contract was totally ignored by
the learned Appellate Judge. It is true that, under Section 20 of
the Specific Relief Act, 1963, it is the discretion of the Court to
grant decree for specific performance, but such discretion is a
judicial discretion. It cannot be arbitrary but must be sound and
reasonable guided by judicial principles. There cannot be
unreasonable denial of equitable relief.
21. It was the case where the appellantplaintiff had averred
and established his readiness and willingness to perform his part of
the contract but the respondentsdefendants continued to avoid to
execute the registered sale deed on some pretext or the other
pursuant to the suit agreement to sell. Therefore, the learned
Appellate Judge ought not to have refused remedy of specific
performance of agreement to sell, as prayed for by the appellantplaintiff.
The averment of readiness and willingness is not a
mathematical formula. There was evidence that the appellantplaintiff
was/is all along ready and willing to abide by his
contractual obligation while the respondentsdefendants
continuously were avoiding to perform their respective part of the
contract. In my opinion, the appellantplaintiff was entitled to
insist upon specific performance of the suit agreement to sell. The
discretionary relief ought to have been granted in favour of the
appellantplaintiff in the facts and circumstances of the case.
22. Shri A.V. Bhide, learned Counsel, argues that there was
a delay on the part of the appellantplaintiff to approach the Court
of learned Civil Judge (Jr.Dn.) within reasonable time. However, it
was not the case of the respondentsdefendants in the trial Court
that time was essence of the contract to execute the registered sale
deed as agreed between the parties. The appellantplaintiff was
ready and willing to perform his part of the contract within
reasonable time and looking to the circumstances including express
performance of agreement to sell, as prayed for by the appellantplaintiff.
The averment of readiness and willingness is not a
mathematical formula. There was evidence that the appellantplaintiff
was/is all along ready and willing to abide by his
contractual obligation while the respondentsdefendants
continuously were avoiding to perform their respective part of the
contract. In my opinion, the appellantplaintiff was entitled to
insist upon specific performance of the suit agreement to sell. The
discretionary relief ought to have been granted in favour of the
appellantplaintiff in the facts and circumstances of the case.
22. Shri A.V. Bhide, learned Counsel, argues that there was
a delay on the part of the appellantplaintiff to approach the Court
of learned Civil Judge (Jr.Dn.) within reasonable time. However, it
was not the case of the respondentsdefendants in the trial Court
that time was essence of the contract to execute the registered sale
deed as agreed between the parties. The appellantplaintiff was
ready and willing to perform his part of the contract within
reasonable time and looking to the circumstances including express
terms of the contract and the nature of the suit property, the
appellantplaintiff had approached the Court with clean hands and
was/is entitled for the relief of specific performance of the contract.
23. Section 10 the Specific Relief Act reads thus:
10. Cases in which specific performance of contract
enforceable. Except as otherwise provided in this
Chapter, the specific performance of any contract
may, in the discretion of the court, be enforced
(a) when there exists no standard for ascertaining
the actual damage caused by the non performance of
the act agreed to be done; or
(b) when the act agreed to be done is such that
compensation in money for its non performance
would not afford adequate relief. Explanation.
Unless and until the contrary is proved, the court
shall presume
(i) that the breach of a contract to transfer
immovable property cannot be adequately relieved by
compensation in money; and
24. The provision clearly indicates that when an obligation
enforceable by law is created, the party under the obligation cannot
be allowed to escape from it on flimsy excuse especially in a
transaction wherein a promise is made to transfer valuable
immovable property.
25. There must be proof of a proper explanation or
justification from the defendant to avoid the agreement or for the
delay that has occurred to execute the sale deed in favour of the
plaintiff. In the aforesaid manner, the burden lies on both the
parties to prove their respective contentions. True it is that, specific
performance of a contract is an equitable relief and equity of both
the sides has to be weighed. Prices of immovable property do
escalate. As a general rule, one cannot say that ordinarily the
plaintiff cannot be allowed to have, for him alone, the entire benefit
of phenomenal increase of the value of the suit property during the
pendency of the litigation. While balancing the equities, one of the
consideration to be kept in view is as to who is the defaulting party.
It is also to be borne in mind whether any party is trying to take
appellantplaintiff had approached the Court with clean hands and
was/is entitled for the relief of specific performance of the contract.
23. Section 10 the Specific Relief Act reads thus:
10. Cases in which specific performance of contract
enforceable. Except as otherwise provided in this
Chapter, the specific performance of any contract
may, in the discretion of the court, be enforced
(a) when there exists no standard for ascertaining
the actual damage caused by the non performance of
the act agreed to be done; or
(b) when the act agreed to be done is such that
compensation in money for its non performance
would not afford adequate relief. Explanation.
Unless and until the contrary is proved, the court
shall presume
(i) that the breach of a contract to transfer
immovable property cannot be adequately relieved by
compensation in money; and
24. The provision clearly indicates that when an obligation
enforceable by law is created, the party under the obligation cannot
be allowed to escape from it on flimsy excuse especially in a
transaction wherein a promise is made to transfer valuable
immovable property.
25. There must be proof of a proper explanation or
justification from the defendant to avoid the agreement or for the
delay that has occurred to execute the sale deed in favour of the
plaintiff. In the aforesaid manner, the burden lies on both the
parties to prove their respective contentions. True it is that, specific
performance of a contract is an equitable relief and equity of both
the sides has to be weighed. Prices of immovable property do
escalate. As a general rule, one cannot say that ordinarily the
plaintiff cannot be allowed to have, for him alone, the entire benefit
of phenomenal increase of the value of the suit property during the
pendency of the litigation. While balancing the equities, one of the
consideration to be kept in view is as to who is the defaulting party.
It is also to be borne in mind whether any party is trying to take
undue advantage over the other party as also the hardship that
may be caused to the defendant by directing the relief of specific
performance. There may be other circumstances upon which parties
may not have any control. Totality of the circumstances in the case
is required to be seen. Ordinarily, as of rule, the relief of specific
performance ought to be granted and only rarely the relief of
specific performance is to be denied. In the present case, the
defendants were the defaulting party for delay that has occurred to
get the sale deed executed as agreed and the defendant was
responsible for escalated cost of the registration, stamp duty and
increase to the current ready reckoner price at which the sale deed
is expected to be executed. The increased expenses will have to be
borne by the plaintiff as it is for the plaintiff to get the sale deed
executed at market price as applicable on the date of the sale deed.
In my opinion, if at all the remedy of specific performance of
contract cannot be availed of, then only, the sum of damages may be
considered as an alternative. But it must be ensured that the sum
must be sufficient and exemplary enough to discourage rampant
breach of obligation under the agreement to sell. In such cases,
damages may be awarded by way of grant of higher interest, if for
may be caused to the defendant by directing the relief of specific
performance. There may be other circumstances upon which parties
may not have any control. Totality of the circumstances in the case
is required to be seen. Ordinarily, as of rule, the relief of specific
performance ought to be granted and only rarely the relief of
specific performance is to be denied. In the present case, the
defendants were the defaulting party for delay that has occurred to
get the sale deed executed as agreed and the defendant was
responsible for escalated cost of the registration, stamp duty and
increase to the current ready reckoner price at which the sale deed
is expected to be executed. The increased expenses will have to be
borne by the plaintiff as it is for the plaintiff to get the sale deed
executed at market price as applicable on the date of the sale deed.
In my opinion, if at all the remedy of specific performance of
contract cannot be availed of, then only, the sum of damages may be
considered as an alternative. But it must be ensured that the sum
must be sufficient and exemplary enough to discourage rampant
breach of obligation under the agreement to sell. In such cases,
damages may be awarded by way of grant of higher interest, if for
any reason specific relief of performance cannot be granted, then
only the trial Judge may grant alternative relief of appropriate
damages. I, therefore, reject the argument of the learned Counsel
for the defendantrespondent that specific performance cannot be
granted and at the most, only damages should be awarded. This
was the case where the respondentsdefendants tried to raise false
defences in order to avoid execution of the registered sale deed and
by their conduct, the respondentsdefendants attempted to create
third party interest intending to defeat the fruits of the decree for
appellantplaintiff even while the proceedings remained pending for
final decision before the Court. These facts could not have been
ignored by the learned Appellate Judge. The evidence led on record
indicates that the appellantplaintiff was not only ready but also
willing to perform his part of the contract in order to get the
registered sale deed executed in accordance with law. That being
so, the second appeal succeeds.
26. In view of above, the Second Appeal is allowed. The
Judgment and Order dt.4.9.1999 passed by learned District Judge,
Yavatmal in Regular Civil Appeal No.112 of 1995 is set aside. The
only the trial Judge may grant alternative relief of appropriate
damages. I, therefore, reject the argument of the learned Counsel
for the defendantrespondent that specific performance cannot be
granted and at the most, only damages should be awarded. This
was the case where the respondentsdefendants tried to raise false
defences in order to avoid execution of the registered sale deed and
by their conduct, the respondentsdefendants attempted to create
third party interest intending to defeat the fruits of the decree for
appellantplaintiff even while the proceedings remained pending for
final decision before the Court. These facts could not have been
ignored by the learned Appellate Judge. The evidence led on record
indicates that the appellantplaintiff was not only ready but also
willing to perform his part of the contract in order to get the
registered sale deed executed in accordance with law. That being
so, the second appeal succeeds.
26. In view of above, the Second Appeal is allowed. The
Judgment and Order dt.4.9.1999 passed by learned District Judge,
Yavatmal in Regular Civil Appeal No.112 of 1995 is set aside. The
Judgment and Order dt.30.6.1995 passed by the learned Civil
Judge (Jr.Dn.), Ner, District Yavatmal in Regular Civil Suit No.57
of 1993 is restored accordingly with a direction that registered sale
deed shall be executed for consideration at current market ready
recknor price of the suit land as applicable on the date of the sale
deed. In the event the plaintiff fails to get the sale deed executed
accordingly, the alternative prayer shall stand as decreed in terms
of refund of earnest money with interest at the rate of Rs.15 % p.a.
from the date of the suit till full repayment.
Decree accordingly with costs of the suit.
JUDGE
Judge (Jr.Dn.), Ner, District Yavatmal in Regular Civil Suit No.57
of 1993 is restored accordingly with a direction that registered sale
deed shall be executed for consideration at current market ready
recknor price of the suit land as applicable on the date of the sale
deed. In the event the plaintiff fails to get the sale deed executed
accordingly, the alternative prayer shall stand as decreed in terms
of refund of earnest money with interest at the rate of Rs.15 % p.a.
from the date of the suit till full repayment.
Decree accordingly with costs of the suit.
JUDGE
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