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

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