P. DAIVASIGAMAN VERSUS S. SAMBANDAN

P. DAIVASIGAMAN VERSUS S. SAMBANDAN

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 9006 OF 2011

P. DAIVASIGAMANI …APPELLANT

VERSUS

S. SAMBANDAN …RESPONDENT

 J U D G M E N T

BELA M. TRIVEDI, J.

1. The present appeal is directed against the judgment and order dated

15.06.2010 passed by the High Court of Judicature at Madras in

Appeal Suit No. 196 of 2002, whereby the High Court has allowed the

said appeal, modified the decree passed by the Subordinate Judge,

Poonamallee (hereinafter referred to as the “Trial Court”) in O.S. 212

of 1993, and decreed the said suit by granting the prayer for specific

performance and also for permanent injunction against the present

appellant (original defendant) in respect of the suit property.

2. The respondent (original plaintiff) had filed the suit in the Trial Court

seeking specific performance of an agreement for sale dated

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05.10.1989, against the appellant (original defendant) and had prayed

in the alternative for refund of the earnest (advance) money with

interest, and also for the compensation. The respondent had also

prayed for permanent injunction restraining the appellant – defendant

from alienating or transferring the suit property to any third party. The

Trial Court partly decreed the suit granting prayer for refund of the

earnest money with interest at the rate of 12% per annum and

dismissed the suit so far as other prayers were concerned, vide the

judgment and decree dated 28.06.2002.

3. The short facts given rise to the present appeal are that the appellant

Mr. P. Daivasigamani was the owner of the suit land i.e., the land to

an extent of 1 acre out of 1.80 acre of wetland comprised in survey

nos. 287 and 288, situated in No. 85 Ayanambakkam, District

Ambattur. He had entered into an agreement to sell the suit land with

the respondent Shri S. Sambandan on 05.10.1989. The appellant had

agreed to sell the said land for a sum of Rs. 6,50,000/-. On the date of

execution of the agreement, the respondent had paid a sum of Rs.

50,000/- by way of earnest money as part of sale consideration. The

time for completion of sale transaction was stipulated to be 6 months

in the said agreement. As per the case of the respondent, though he

had periodically contacted the appellant requesting him to execute the

sale deed, and had shown his readiness and willingness to perform his

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part of the contract, the appellant failed to respond or to perform his

part of the contract. The respondent thereafter vide the letter dated

17.03.1990 sent by registered post, called upon the appellant to

execute a deed of power of attorney and to conclude the said

transaction, however there was no response from the appellant to the

said letter. The respondent thereafter again sent a notice through his

lawyer on 26.03.1990, to the appellant which was returned with an

endorsement “refused”. The respondent thereafter caused a public

notice published in the Tamil daily “Dhina Thanthi” on 02.05.1990

and in English daily “Indian Express” on 06.05.1990, informing the

public at large not to enter into any sale transaction with the appellant

in respect of the suit property. Despite the said efforts having been

made by the respondent, the appellant failed to fulfill his obligation

under the agreement. The respondent-plaintiff thereafter filed the suit

seeking specific performance of the said agreement.

4. The suit was contested by the appellant-defendant by filing the written

statement. The appellant while admitting the execution of the

agreement in question had denied the receipt of Rs. 50,000/- as

contended by the respondent. The appellant also denied the readiness

and willingness on the part of the respondent to perform his part of the

contract. The appellant also denied to have received the letter dated

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17.03.1990 sent by the respondent by registered post and also the

notice dated 26.03.1990 sent by the respondent through his lawyer.

5. The Trial Court had framed as many as seven issues, pursuant to which

the respondent-plaintiff examined himself as PW-1 and adduced the

documents at Ex. A1 to A7. The appellant-defendant also examined

himself as DW-1, however had not adduced any documentary

evidence. The Trial Court partly decreed the suit as stated hereinabove

by observing, inter alia, that though the plaintiff had paid Rs. 50,000/-

by way of earnest money/advance money to the defendant, the plaintiff

had not deposited the balance sale consideration of Rs. 6,00,000/- in

the court at the time of filing of the suit, and that the plaintiff had also

not proved that he had got adequate financial strength to pay the

balance sale consideration of Rs. 6,00,000/- to the defendant within

the time stipulated in the sale agreement. The Trial Court, therefore,

came to the conclusion that the plaintiff had failed to prove his

readiness and willingness to perform his part of the agreement, and

therefore was not entitled to the decree for specific performance of the

agreement, however he was entitled to recover from the defendant the

amount of Rs. 50,000/- paid by way of advance, together with interest

at the rate of 12% per annum from the date of sale agreement till the

date of realization.

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6. The High Court in the appeal, decreed the suit of the respondentplaintiff vide the impugned order, observing as under:

“26. As the appellant/plaintiff has made clear averments

to the effect that he was and has been ready and willing

to pay the balance consideration and get the sale deed

registered at his cost, there cannot be any inference

against the readiness and willingness, especially in the

absence of evidence adduced by the

respondent/defendant to the effect that any call made by

the respondent/defendant for accepting performance

was not responded by the appellant/plaintiff. Therefore,

this Court comes to the conclusion that the finding of the

Court below to the effect that the appellant/plaintiff had

not proved his continued readiness and willingness to

perform his part of the obligations under the agreement

is not based on sound reasoning and in fact it is perverse

finding, which deserves interference by this Court.

Accordingly, the said finding of the trial court regarding

Issue No. 4 framed in the suit is set aside and reversed. It

is hereby held that the appellant/plaintiff has complied

with the requirements of Section 16(c) of the Specific

Relief Act by making a specific pleading regarding his

readiness and willingness and proving the same by

reliable evidence.”

7. While raising multiple contentions, the learned counsel appearing for

the appellant submitted that the suit having been filed by the

respondent – plaintiff after three years of the execution of the

agreement, it was barred by the Law of Limitation. Even otherwise,

the time being the essence of the contract, and the respondent having

failed to perform the essential terms of the contract within the time

limit stipulated in the agreement, the High Court had committed a

gross error in granting the discretionary relief of the specific

performance in favour of the respondent. According to him, there was

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no explanation given by the respondent for the delay occurred in filing

the suit. He further submitted that as per the legal position settled by

this Court, the respondent was not only required to aver in the pleading

but was also required to prove by cogent evidence like producing

statement of his bank account or other document that he was

financially capable of making payment of the balance amount of sale

consideration, which the respondent-plaintiff had failed to prove. The

respondent had also failed to deposit the remaining amount of sale

consideration in the court at the time of filing the suit.

8. Per contra, the learned counsel appearing for the respondent submitted

that time is never considered to be an essence of the contract in case

of immoveable property, and even otherwise the respondent had

shown his readiness and willingness to perform the essential terms,

namely calling upon the appellant to execute a power of attorney and

complete the sale transaction, by issuing three notices one after the

other, within the stipulated time limit, however, the appellant had

failed to respond the said notices and had also failed to execute the

sale deed in favour of the respondent. According to him, there was no

requirement of law to deposit the balance of the amount of sale

consideration, at the time of filing of the suit, as sought to be submitted

by the learned counsel for the appellant.

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9. Now, adverting to the first contention raised by the learned counsel for

the appellant that the respondent – plaintiff having filed the suit for

specific performance of the agreement after the expiry of three years

of the agreement, it may be noted that as per Article 54 of the

Limitation Act, 1963, the suit for the specific performance of contract

could be filed within three years from the date fixed for the

performance, or when no such date has been fixed, from the date when

the plaintiff has noticed that performance is refused. In the instant

case, the execution of the agreement on 05.10.1989 has not been

disputed. It was also proved by the respondent by leading the evidence

that the respondent had sent a notice dated 17.03.1990 by registered

post and called upon the appellant to execute the power of attorney

and to conclude the sale transaction in view of Clause 10 of the

agreement. However, there was no response from the appellant to the

said letter. The respondent thereafter had again sent a notice through

his lawyer on 26.03.1990, which had come back with the endorsement

“refused”. Thereafter, again the respondent caused a public notice

published in the Tamil daily “Dhina Thanthti” on 02.05.1990 and in

the English daily “Indian Express" on 06.05.1990. The appellant

having not responded to any of the said notices, the suit was filed on

26.03.1993. Since the sale had to be completed within a period of six

months from the date of the execution of the agreement dated

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05.10.1989, the respondent had called upon the appellant to perform

his part of the contract by issuing the notices within six months of the

said agreement. However, the appellant having failed to respond to

any of the said notices, it was deemed that the appellant had refused

to perform his part of contract. The period of limitation had started

running from the date the respondent noticed that the performance was

refused by the appellant and not from the date of the execution of

agreement in question.

10. It cannot be gainsaid said that even though time is not considered as the

essence of the contract in case of immoveable property and that the suit

could be filed within three years as provided in Article 54 of the

Limitation Act, the respondent - plaintiff had to perform his part of the

contract within the reasonable time having regard to the term of the

agreement prescribing the time limit. The time limit prescribed in the

agreement cannot be ignored on the ground that time was not made the

essence of the agreement or that the suit could be filed within three

years from the date fixed for performance or from the date when the

performance is refused by the vendor. Nonetheless, as discussed above,

the suit having been filed by the respondent well within the prescribed

time limit under Article 54 of the Limitation Act, the respondent could

not have been non-suited on the ground of the suit being barred by

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limitation as sought to be submitted by learned counsel for the

appellant.

11. As regards, the delay in filing the suit, it is very pertinent to note that

the rule of equity that exists in England, does not apply in India, and

so long as a suit for specific performance is filed within the period of

limitation, delay cannot be a ground to refuse the relief of specific

performance to the plaintiff. In Mademsetty Satyanarayana vs. G.

Yelloji Rao AIR 1965 SC 1405 it has been observed as under:

“7. Mr Lakshmaiah cited a long catena of English

decisions to define the scope of a court's discretion.

Before referring to them, it is necessary to know the

fundamental difference between the two systems—

English and Indian—qua the relief of specific

performance. In England the relief of specific

performance pertains to the domain of equity; in India,

to that of statutory law. In England there is no period of

limitation for instituting a suit for the said relief and,

therefore, mere delay — the time lag depending upon

circumstances — may itself be sufficient to refuse the

relief; but, in India mere delay cannot be a ground for

refusing the said relief, for the statute prescribes the

period of limitation. If the suit is in time, delay is

sanctioned by law; it is beyond time, the suit will be

dismissed as barred by time; in either case, no question

of equity arises.”

12. The aforesaid ratio has also been followed recently by this Court in R.

Lakshmikantham V. Devaraji (2019) 8 SCC 62. We, therefore, have

no hesitation in holding that mere delay alone in filing the suit for

specific performance, without reference to the conduct of the plaintiff,

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could not be a ground for refusing the said relief, when the suit was

filed within the statutory time limit by the respondent- plaintiff.

13. This takes us to the next question as to whether the High Court was

justified in granting the relief of specific performance in favour of the

respondent – plaintiff? Now, before answering the said question, it may

be noted that some of the relevant provisions contained in the Specific

Relief Act, 1963 (hereinafter referred to as the “Said Act”) have

undergone a substantive change by way of amendments made by the

Act 18 of 2018, which came into force with effect from 01.10.2018. As

per the recent decision of the three-judge bench of this Court, in case of

Smt. Katta Sujatha Reddy v. Siddamsetty Infra Projects Ltd., Civil

Appeal No. 5822 of 2022 decided on 25th August, 2022, the said Act

18/2018 amending the Specific Relief Act is prospective in nature and

cannot apply to those transactions that took place prior to its coming

into force. In the instant case, the subject agreement having taken place

prior to the said Amendment, we will have to take into consideration

the legal position as it stood prior to the 2018 amendment. The relevant

provisions contained in Section 10, Section 16 and Section 20 as they

stood prior to the amendment are reproduced for ready reference.

“Section 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 -

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(a) when there exists no standard for ascertaining 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

(ii) xxx xxx xxx xxx

Section 16 – Personal bars to relief –

Specific performance of a contract cannot be enforced in

favour of a person -

(a) xxx xxx xxx xxx xxx

(b) xxx xxx xxx xxx xxx

(c) who fails to aver and prove that he has

performed or has always been ready and willing

to perform the essential terms of the contract

which are to be performed by him, other than

terms the performance of which has been

prevented or waived by the defendant.

Explanation. —For the purposes of clause (c), —

(i) where a contract involves the payment of money, it is

not essential for the plaintiff to actually tender to the

defendant or to deposit in court any money except when so

directed by the court;

(ii) the plaintiff must aver performance of, or readiness

and willingness to perform, the contract according to its true

construction.

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Section 20 - Discretion as to decreeing specific performance.—

(1) The jurisdiction to decree specific performance is

discretionary, and the court is not bound to grant such relief

merely because it is lawful to do so; but the discretion of the

court is not arbitrary but sound and reasonable, guided by

judicial principles and capable of correction by a court of

appeal.

(2) The following are cases in which the court may properly

exercise discretion not to decree specific performance:—

(a) 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 an unfair advantage over

the defendant; or

(b) where 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

(c) where the defendant entered into the contract

under circumstances which though not rendering the

contract voidable, makes it inequitable to enforce

specific performance.

Explanation 1. Mere inadequacy of consideration, or the mere

fact that the contract is onerous to the defendant or

improvident in its nature, shall not be deemed to constitute an

unfair advantage within the meaning of clause (a) or hardship

within the meaning of clause (b).

Explanation 2. The question whether the performance of a

contract would involve hardship on the defendant within the

meaning of clause (b) shall, except in cases where the hardship

has resulted from any act of the plaintiff subsequent to the

contract, be determined with reference to the circumstances

existing at the time of the contract.

(3) The court may properly exercise discretion to decree

specific performance in any case where the plaintiff has done

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substantial acts or suffered losses in consequence of a contract

capable of specific performance.

(4) The court shall not refuse to any party specific

performance of a contract merely on the ground that the

contract is not enforceable at the instance of the party”.

14. From the bare reading of the afore-stated provisions, it clearly emerges

that the Specific Performance of the contract, may in the discretion of

the court, be enforced, when the act agreed to be done, was such that

compensation in money for its non-performance would not afford

adequate relief, and that the breach of a contract to transfer immoveable

property could not be adequately relieved by compensation in money.

It also emerges that specific performance of a contract could not be

enforced in favour of a person, who failed to aver and prove that he had

performed or had always been ready and willing to perform the

essential terms of the contract, which were to be performed by him. It

could also not be enforced in favour of a person who failed to aver in

the plaint the performance of, or readiness and willingness to perform

the contract according to its true construction.

15. Readiness and willingness are not one, but two separate elements.

Readiness means the capacity of the plaintiff to perform the contract,

which would include the financial position to pay the purchase price.

Willingness refers to the intention of the plaintiff as a purchaser to

perform his part of the contract. Willingness is inferred by scrutinising

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the conduct of the plaintiff/purchaser, including attending

circumstances1

. Continuous readiness and willingness on the part of

the plaintiff/purchaser from the date the balance sale consideration was

payable in terms of the agreement to sell, till the decision of the suit, is

a condition precedent for grant of relief of specific performance2

16. The expression “readiness and willingness” used in Section 16 (c) of

the said Act, has been interpreted in catena of decisions by this Court,

in the light of facts and circumstances of the cases under consideration

for the purpose of granting or refusing to grant the relief of Specific

Performance of a contract. The said expression cannot be interpreted

in a straitjacket formula. In a very apt decision of this Court in case of

Syed Dastagir vs. T.R. Gopalakrishna Setty (1999) 6 SCC 337, a

three-Judge Bench of this Court, construing a plea of “readiness and

willingness to perform” in view of the requirement of Section 16(c) and

its explanation, observed as under:

“9. So the whole gamut of the issue raised is, how to

construe a plea specially with reference to Section 16(c)

and what are the obligations which the plaintiff has to

comply with in reference to his plea and whether the plea

of the plaintiff could not be construed to conform to the

requirement of the aforesaid section, or does this section

require specific words to be pleaded that he has

performed or has always been ready and is willing to

perform his part of the contract. In construing a plea in

1 See paragraph 2 in His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526

2 See paragraph 5 in N.P. Thirugnanam(dead) by LRs v Dr. R. Jagan Mohan Rao and Others, (1995) 5 SCC 115.

Also see Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208.

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any pleading, courts must keep in mind that a plea is not

an expression of art and science but an expression

through words to place fact and law of one's case for a

relief. Such an expression may be pointed, precise,

sometimes vague but still it could be gathered what he

wants to convey through only by reading the whole

pleading, depending on the person drafting a plea. In

India most of the pleas are drafted by counsel hence the

aforesaid difference of pleas which inevitably differ from

one to the other. Thus, to gather true spirit behind a plea

it should be read as a whole. This does not distract one

from performing his obligations as required under a

statute. But to test whether he has performed his

obligations, one has to see the pith and substance of a

plea. Where a statute requires any fact to be pleaded

then that has to be pleaded maybe in any form. The same

plea may be stated by different persons through

different words; then how could it be constricted to be

only in any particular nomenclature or word. Unless a

statute specifically requires a plea to be in any particular

form, it can be in any form. No specific phraseology or

language is required to take such a plea. The language in

Section 16(c) does not require any specific phraseology

but only that the plaintiff must aver that he has

performed or has always been and is willing to perform

his part of the contract. So the compliance of “readiness

and willingness” has to be in spirit and substance and not

in letter and form. So to insist for a mechanical

production of the exact words of a statute is to insist for

the form rather than the essence. So the absence of form

cannot dissolve an essence if already pleaded”.

17. It was further observed therein that:

“It is significant that this explanation carves out a

contract which involves payment of money as a separate

class from Section 16(c). Explanation (i) uses the words

“it is not essential for the plaintiff to actually tender to

the defendant or to deposit in court any money except

when so directed by the court”. (emphasis supplied) This

speaks in a negative term what is not essential for the

plaintiff to do. This is more in support of the plaintiff

that he need not tender to the defendant or deposit in

court any money but the plaintiff must [as per

Explanation (ii)] at least aver his performance or

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readiness and willingness to perform his part of the

contract”.

18. In Sukhbir Singh v. Brij Pal Singh3

this Court had laid down that Law

is not in doubt and it is not a condition that the respondents (Plaintiffs)

should have ready cash with them. It is sufficient for the respondents to

establish that they had the capacity to pay the sale consideration. It is

not necessary that they should always carry the money with them from

the date of the suit till the date of the decree. The said principle was

followed in case of A. Kanthamani v. Nasreen Ahmed4

, in case of C.S.

Venkatesh v. A.S.C. Murthy5etc.

19. Section 20 of the Specific Relief Act (Pre-amendment), which confers

discretion on the court to exercise jurisdiction to decree of specific

performance, states that this exercise should not be arbitrary, but guided

by sound and reasonable judicial principles. Interpreting and

elucidating on Section 20 of the Specific Relief Act (Pre-amendment)

and factors to be considered, this Court in Kamal Kumar v. Premlata

Joshi and Others6 has also referred to Sections 16(c), 22, 23 and 24 of

the Specific Relief Act and forms 47/48 of Appendix A to C of the Code

of Civil Procedure, 1908, to summarise:

“7. It is a settled principle of law that the grant of relief

of specific performance is a discretionary and equitable

relief. The material questions, which are required to be

3

(1997) 2 SCC 200

4

(2017) 4 SCC 654

5

(2020) 3 SCC 280

6

(2019) 3 SCC 704

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gone into for grant of the relief of specific performance

are:

7.1 First, whether there exists a valid and concluded

contract between the parties for sale/purchase of the suit

property;

7.2 Second, whether the plaintiff has been ready and

willing to perform his part of contract and whether he is

still ready and willing to perform his part as mentioned

in the contract;

7.3 Third, whether the plaintiff has, in fact, performed his

part of the contract and, if so, how and to what extent

and in what manner he has performed and whether such

performance was in conformity with the terms of the

contract;

7.4 Fourth, whether it will be equitable to grant the relief

of specific performance to the plaintiff against the

defendant in relation to suit property or it will cause any

kind of hardship to the defendant and, if so, how and in

what manner and the extent if such relief is eventually

granted to the plaintiff;

7.5 Lastly, whether the plaintiff is entitled for grant of any

other alternative relief, namely, refund of earnest money

etc. and, if so, on what grounds.

8. In our opinion, the aforementioned questions are part

of the statutory requirements [See Sections 16 (c), 20, 21,

22, 23 of the Specific Relief Act, 1963 and the Forms

47/48 of Appendix A to C of the Code of Civil

Procedure]. These requirements have to be properly

pleaded by the parties in their respective pleadings and

proved with the aid of evidence in accordance with law.

It is only then the Court is entitled to exercise its

discretion and accordingly grant or refuse the relief of

specific performance depending upon the case made out

by the parties on facts.”

Sub-section (2) to Section 20 of the Specific Relief Act (Preamendment) lists some of the principles that the court should take into

consideration while exercising discretion. The factors to be considered

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while exercising discretion include hardship to the defendant/seller

which he did not foresee, hardship to the plaintiff/purchaser in case of

non-performance, or whether the contract, even when not void, was

entered under the circumstances that make the enforcement of specific

performance inequitable, or whether the plaintiff has done substantial

acts or suffered losses as a consequence of the contract, and the conduct

of the parties, including that of the defendant/seller and other

circumstances under which the contract was entered are such that they

give an unfair advantage over the defendant/seller. The court should

examine whether the plaintiff/purchaser had, in fact, performed his part

of the contract, and if so, how and to what extent, and in what manner

he has performed, and whether such performance was in conformity

with the terms of the contract. The status of the parties, and whether

the plaintiff/purchaser is a speculator in the property, who buys and

sells properties, and whether his conduct reflects an attempt to gain on

account of the rise in the price of the property, hoping that the delay in

payment of full consideration would go to his advantage, will be a

relevant consideration7

. Incapacity of the defendant/seller and whether

the plaintiff/purchaser is operating in property trade, or as a financer or

middleman and the defendant/seller is a typical property owner, may

7 See K.S. Vidyanadam and Others v. Vairavan, (1997) 3 SCC 1

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also affect the exercise of discretion. In cases where the

defendant/seller claims that he was gullible and nescient, who got

caught by entering into the agreement to sell, facts like whether the sale

consideration is lower than the market price and the terms and

conditions settled are unfavourable, should be given due weightage.

Sometimes the defendant/seller, post the agreement to sell, in

consultation with elders or family members, wishes to back out because

the decision to sell was a folly, unwise, or a result of trickery. In such

cases, the conduct of the defendant/seller would be of consequence.

The defendant/seller would be well advised to immediately and without

delay write to the plaintiff/purchaser reneging the agreement to sell and

enclose a cheque for the amount received. His offer to pay or payment

of interest or damages would be an added factor as the intending

purchaser would then be entitled to look for another property.

20. Time, it is stated, is not the essence of the contract in the case of

immovable properties, unless there are grounds to hold to the contrary.

This doctrine is applied, without being unfair and inequitable to the

defendant/seller, as the court should not ignore that a person sells the

property when he needs money, and, therefore, expects the money in

the stipulated or reasonable time, which would meet the purpose of the

sale. The purpose of sale can vary from the need for liquid cash to be

invested to earn interest, medical, educational, child’s marriage or

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purchasing another property. To save capital gains, the seller has to

purchase another immovable property, unless the proceeds are exempt.

There has been a steep rise in the prices of land in the last quarter of the

20th Century in India. With the rise in property value, the value of

money has fallen. At times, delay in payment would defeat the

defendant/seller’s purpose8

. Therefore, the offer of the

plaintiff/purchaser in writing and the time and occasion when the offer

to pay the balance amount to the defendant/seller is an important factor

which would matter when the court examines the question of discretion,

that is, whether or not to grant a decree of specific performance. While

examining these aspects, the quantum of money paid by the

plaintiff/seller to the defendant/purchaser may become a relevant fact

that merits due consideration. There is a distinction between limitation

and delay and laches. Limitation is a ground for dismissing a suit even

if the plaintiff is otherwise entitled to specific performance, while delay

operates to determine the discretion and exercise under Section 20 of

the Specific Relief Act, even if the suit is not dismissed on account of

limitation. However, not one but several aspects have to be considered

when the court, in terms of Section 20 of the Specific Relief Act,

8 See Paragraphs 25, 36 & 37 in Saeadamani Kandappan v. S. Rajalakshmi and Others (2011) 12 SCC 18.

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exercises discretion, guided by judicial principles, sound and

reasonable.

21. Having said that, let us examine the facts of this case. As discussed

earlier, the respondent – plaintiff had not only averred in the plaint

about his issuing notices within the period of six months of the

agreement in question, calling upon the appellant – defendant to

perform his part of contract and conclude the sale transaction, also

showing his readiness and willingness to perform his part of the

contract, but the respondent had also proved the same by stepping into

the witness box. Though much reliance was placed by the learned

counsel for the appellant on the decisions of this Court in case of Ritu

Saxena vs. J.S. Grover & Another (2019) 9 SCC 132, in case of

Abdullakoya Haji Vs. Rubis Tharayil (2019) 17 SCC 216, and other

cases, to submit that the respondent had failed to establish his financial

capacity to pay the balance amount of consideration at the relevant time

and had also failed to deposit the said amount in the court at the time of

filing of the suit, he was not entitled to the discretionary relief of

Specific Performance as granted by the Court, we do not find any

substance in any of the said submissions. As per the ratio of judgment

laid down by the three-judge bench in case of Syed Dastagir (supra),

the compliance of “readiness and willingness” has to be in spirit and

substance and not in letter and form, while making averments in the

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plaint. As per the Explanation (i) to Section 16(c), he need not tender

to the defendant or deposit the amount in the court, but he must aver

performance of, or readiness and willingness to perform the contract

according to its true construction.

22. Having regard to the facts and circumstances of the case and to the

conduct of the parties, we have no hesitation in holding that there was

due compliance of Section 16(c) read with its Explanation on the part

of the respondent and that it was the appellant who had failed to perform

as per the terms of the agreement, though called upon by the respondent

to perform. The High Court also had rightly held that the plaintiff had

complied with the requirements of Section 16(c) of the said Act by

making a specific pleading with regard to his readiness and willingness

and also proving the same by reliable evidence. This Court does not

find any illegality or infirmity in the impugned judgment passed by the

High Court. We, therefore confirm the same, so far as granting of

decree for specific performance of the agreement in question is

concerned.

23. At this juncture, the Court cannot be oblivion to the fact that there has

been a steep rise in the price of immovable properties since last few

decades. Before the final hearing of the appeal, the parties were sent to

the Mediation Centre for exploring the possibility of settlement,

however, the mediation remained unsuccessful. Having regard to the

23

fact that the agreement in question was entered into between the parties

in October 1989, and considering the steep rise in the prices of land, we

are of the opinion that interest of justice would be met if the respondent

is directed to pay some more amount. It is also noted that the appellant

had enjoyed the possession of the suit land all through out. Hence in the

facts and circumstances of the case, the respondent is directed to deposit

a sum of Rupees One Crore in the Trial Court towards the sale

consideration, over and above the amount that might have been

deposited by him, within a period of eight weeks from today. On such

deposit being made, the appellant shall execute the sale deed in favour

of the respondent and shall also be at liberty to withdraw the said

amount deposited by the respondent.

24. The appeal is dismissed subject to the aforesaid directions.

 ………………………. J.

 [SANJIV KHANNA]

 …................................J.

 [BELA M. TRIVEDI]

NEW DELHI;

12.10.2022