Chandrasekharan @ Stephen and Gracy v. Thressia @ Salomy and Hema Elizabeth Kurian and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 8[TH] DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945** ## **RFA NO. 322 OF 2004 (C)** **AGAINST THE DECREE AND JUDGMENT DTD 28.7.2003 IN OS 579/1996 OF THE SUBORDINATE JUDGES' COURT, PALAKKAD** ## **APPELLANTS/DEFENDANTS 1 AND 2:** |**1**|**CHANDRASEKHARAN @ STEPHEN (DIED)**| |---|---| ||**S/O. THONGALIL KRISHNAN, AGED 57 YEARS, THONDALILL,**| ||**MANGALAM DAM P.O., ALATHUR, PALAKKAD DISTRICT.**| |**2**|**GRACY (DIED), W/O.CHANDRASEKHARAN @ STEPHEN,**| ||**THONDALILL, MANGALAM DAM P.O., ALATHUR,**| ||**PALAKKAD DISTRICT.**| |**ADDL.3**|**STESIN ELIZABETH STEPHEN**| ||**AGED 43 YEARS, S/O.LATE CHANDRASEKHARA @ STEPHEN,**| ||**RESIDING AT THONDALIL, MANGALAM DAM P.O, ALATHUR,**| ||**PALAKKAD, PIN-678706.**| |**ADDL.4**|**STIMIN ELIZABETH STEPHEN,**| ||**AGED 38 YEARS, D/O.LATE CHANDRASEKHARA @ STEPHEN,**| ||**RESIDING AT THONDALIL, MANGALAM DAM P.O, ALATHUR,**| ||**PALAKKAD, PIN-678706.**| |**ADDL.5**|**STIVIN SAM STEPHEN, AGED 38 YEARS, S/O.LATE**| ||**CHANDRASEKHARA @ STEPHEN,**| ||**RESIDING AT THONDALIL, MANGALAM DAM P.O, ALATHUR,**| ||**PALAKKAD, PIN-678706.**| **(LEGAL HEIRS OF DECEASED APPELLANTS 1 ADN 2 ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 5 VIDE ORDER DATED 26/7/2023 IN IA 1/2023) BY ADV SRI.K.P.BALASUBRAMANYAN** ## **RESPONDENTS/PLAINTIFFS 2 TO 5 & DEFENDANTS 3 AND 4:** |**1**|**THRESSIA @ SALOMY**| |---|---| ||**W/O.LATE KURIAN EBRAHAM, PALLATHU HOUSE, VECHOOCHIRA,**| ||**POST ERUMELI, PATHANAMTHITTA.**| |**2**|**HEMA ELIZABATH KURIAN,**| ||**D/O. THRESSIA @ SALOMY, PALLATHU HOUSE, VECHOOCHIRA,**| ||**POST ERUMELI, PATHANAMTHITTA.**| 2 ## **R.F.A.No.322 of 2004** - **3 MARIA KURIAN** - **D/O. LATE KURIAN EBRAHAM, PALLATHU HOUSE, VECHOOCHIRA, POST ERUMELI, PATHANAMTHITTA.** - **4 JIMMY KURIAN S/O. LATE KURIAN EBRAHAM, PALLATHU HOUSE, VECHOOCHIRA, POST ERUMELI, PATHANAMTHITTA.** - **5 ALEXANDER, S/O.EBRAHAM MATHEW ELAVADAKKAPARAMBIL, KURICHI P.O., CHANGANASSERY.** - **6 ANNAMMA ALEXANDER, W/O.ALEXANDER, ELAVADAKKAPARAMBIL, KURICHI P.O., CHANGANASSERY.** **BY ADVS.M.NARENDRA KUMAR P.KURUVILLA JACOB SRI.A.K.ALEX SMT.LEENA KRISHNAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 27/11/2023, THE COURT ON 08.12.2023 DELIVERED THE FOLLOWING:** 3 **R.F.A.No.322 of 2004** ## **C.S.SUDHA, J.** **---------------------------------------------------R.F.A.No. 322 of 2004 ----------------------------------------------------** **Dated this the 8[th] day of December, 2023** ## **J U D G M E N T** This appeal under Section 96 read with Order XLI Rule 1 CPC has been filed by defendants 1 and 2 against the judgment and decree dated 28/07/2003 in O.S.No.579/1996 on the file of the Subordinate Judges' Court, Palakkad. The respondents herein are the plaintiff and defendants 3 and 4 respectively in the suit. The parties in this appeal will be referred to as described in the suit. 2. According to the plaintiff, the plaint schedule property belonging to the defendants was agreed to be sold as per Ext.A1 agreement dated 22/12/1993for a sale consideration of ₹41,000/- per acre. Pursuant to the execution of the agreement, the plaintiff paid an amount of ₹3,00,000/- to defendants 1 and 2 on the date of the agreement and a further sum of ₹2,00,000/- within the period stipulated in the agreement as advance. The payment has been endorsed on the reverse side of the agreement. Thus, a total amount of ₹5,00,000/- was paid as advance by the plaintiff to the defendants. 4 ## **R.F.A.No.322 of 2004** Though the plaintiff was always ready and willing to perform his part of the contract, the defendants were never ready to perform their part of the agreement. Though two lawyer notices were sent to the defendants, the latter never took any steps for execution of the sale deed. Hence the suit for specific performance or in the alternative, return of advance money of ₹5,00,000/with interest and costs from the defendants and their assets. 3. Defendants 3 and 4 are _ex parte._ 4. Defendants 1 and 2 filed written statement denying the plaint allegations of default on their part in the execution of the agreement. The defendants were always ready and willing to perform their part of the contract. But it was the plaintiff, who was never ready with the sale consideration. On the date of the agreement itself, possession of the plaint schedule property was handed over to the plaintiff. Due to this reason, the plaintiff lost interest in getting the document executed. The plaintiff derived considerable income from the plaint schedule property. He was only interested in taking the yield and income from the property and hence kept postponing the execution of the deed. Time was the essence of the contract. As the plaintiff was not ready to perform his part of the contract within the period stipulated in the contract, the sale deed could not be executed due to which the defendants sustained 5 ## **R.F.A.No.322 of 2004** considerable loss and therefore the plaintiff is not entitled to any of the reliefs prayed for. 5. On completion of pleadings, necessary issues were raised by the trial court, pursuant to which the parties went to trial. PW1 was examined and Exts.A1 to A11 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B11 were marked on the side of the defendants. The trial court on an appreciation of oral and documentary evidence and after hearing both sides, decreed the suit granting decree of specific performance in favour of the plaintiff. Aggrieved, defendants 1 and 2 have come up in appeal. 6. The points that arise for consideration in this appeal are - (i) was time the essence of Ext.A1 agreement as contended by the defendants, (ii) is there any infirmity in the findings of the trial court calling for an interference by this Court. 7. Heard both sides. 8. Going by the allegations in the plaint, it was 27.80 acres of land with house, well, rubber trees, coconut trees and other improvements standing therein within four boundaries, that was agreed to be sold as per Ext.A1. Out of this, plaint item no.1 comprising 4.70 acres of land covered by document no.930/1985, SRO Alathur, belongs to defendants 1 and 2. The first 6 ## **R.F.A.No.322 of 2004** defendant has possessory title over plaint item no.5 having an extent of 10 acres. Plaint items no.2 and 4 having an extent of 9.30 acres of land belong to defendants 3 and 4 as per document no.929/1985 SRO, Alathur and plaint item no.3 having an extent of 3.80 acres is owned by the second defendant as per document no.932/1985 of SRO Alathur. When Ext.A1 agreement was executed, the plaintiff was made to believe that defendants 3 and 4 had authorized the 1[st] defendant to sell their property, i.e., plaint items no.2 and 4 and that it was the 1[st] defendant who was managing the property of defendants 3 and 4 on their behalf. Pursuant to the agreement, possession of the plaint schedule property was handed over to the plaintiff by defendants 1 and 2 and thus the plaintiff is in possession of the entire plaint schedule property. Though in Ext.A1 agreement it is stated that the 1[st] defendant is in possession of 10 acres, on measurement by the plaintiff it was found that the extent was only 4.20 acres. Therefore, the total extent available is only 22 acres. 8.1. Thereafter as per an amendment carried out in the plaint, pleadings were brought in to the effect that though the plaintiff was made to believe that defendants 3 and 4 had authorized defendants 1 and 2 to sell the former’s property also, it has now come to his knowledge that no such authority had been given by defendants 3 and 4. Moreover after the institution of the suit, 7 ## **R.F.A.No.322 of 2004** defendants 3 and 4 have sold their property, i.e. plaint items 2 and 4 in favour of third parties and hence the said properties are to be excluded from the plaint. The plaintiff by way of the amendment limited his claim to the property of defendants 1 and 2 only, that is, 12.70 acres of property, which is item no.1 having an extent of 4.70 acres; item no.3 having an extent of 3.80 acres and item no.5 having an extent of 4.20 acres (4.70 + 3.80 + 4.20 = 12.70 acres). The allegation of the plaintiff that on measurement, the extent of 10 acres of property over which the first defendant has only possessory title was found to have an extent of only 4.20 acres, is disputed by the defendants in paragraph 6 of their written statement. According to them, the said property does in fact have an extent of 10 acres and that the attempt of the plaintiff in alleging a lesser extent is only to wriggle out of his liability to pay consideration of ₹41,000/- per acre. 9. It was argued by the learned counsel for the defendants that the property has not been properly described in the plaint. The trial court erred in allowing the amendment of the plaint by which the extent of the property described in the schedule has been reduced considerably even without ascertaining the actual extent of the property covered by Ext.A1 agreement by issuing a commission. The decree given without identifying the property is 8 ## **R.F.A.No.322 of 2004** unsustainable. The trial court was not justified in granting a decree of specific performance without ascertaining the actual extent of the property, especially when there is a dispute regarding the extent of the property. My attention was drawn to paragraph 10 of the impugned judgment wherein the trial court referred to different items of the plaint schedule property, their extent and the documents corresponding to the same. Though the court found discrepancies in some of them, it finally concluded that the property covered by Ext.A1 is in fact the property scheduled in the plaint. The trial court also concluded that though there is a dispute regarding the total extent of the property, there is no ambiguity regarding the identity of the property. Holding so, the trial court concluded that the description of the property in the plaint schedule is in fact correct. Referring to the discussion in paragraph 10 of the impugned judgment, the learned counsel for the defendants quite persuasively argued that despite the trial court expressing its opinion regarding discrepancies seen in the description in the schedule, without any basis concluded that the property has been correctly described and proceeded to grant a decree. This itself is sufficient to decline the discretionary relief of specific performance without proper identification of the plaint schedule property, goes the argument. 9 ## **R.F.A.No.322 of 2004** 10. On going through the written statement and the additional written statement, I find no pleading challenging the description of the plaint schedule property or challenging its identity. The dispute is with respect to the extent of item no.5, which according to the plaintiff is 4.20 acres whereas according to the defendants it is 10 acres. Apart from this contention, I find no contention to the effect that the property has not been properly identified or that it has been described incorrectly in the plaint. I will shortly come to the contention relating to the dispute regarding the extent of item no.5. In these circumstances, the argument that the trial court without identifying the property has wrongly decreed the suit is only liable to be rejected. 11. As noticed earlier, after the amendment of the plaint, the property of the third and the fourth defendants was excluded, and the plaint claim restricted to 12.70 acres of land belonging to defendants 1 and 2 for a sale consideration of ₹41,000/- per acre. It was argued by the learned counsel for the defendants that there are specific pleadings in paragraphs 12 and 17 of the written statement to the effect that time was the essence of the contract. This fact has been admitted by PW1 also. However, the plaintiff failed to perform his part of the agreement within the period of six months stated in Ext.A1 agreement. The plaintiff was never ready with the sale consideration and kept 10 ## **R.F.A.No.322 of 2004** seeking time. As the time stipulated in the agreement expired long before the plaintiff sent the second lawyer notice, he is not entitled to a decree of specific performance. In support of this argument, reference was made to the decisions in **Chand Rani v. Kamal Rani** , **(1993)1 SCC 519** and **K.S.Vidyanadam v. Vairavan** , **(1997) 3 SCC 1** . _Per contra_ it was submitted by the learned counsel for the plaintiff that time was never the essence of the contract. Neither does the agreement say so nor was it the intention of the parties. It was only because defendants 1 and 2 did not perform their part of the contract, the transaction failed. 12. In a contract for the sale of immovable property, normally it is presumed that time is not the essence of the contract. The Apex Court in **Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868** held that fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. The intention to treat time as the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not the essence in contract for sale of land. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from 11 ## **R.F.A.No.322 of 2004** the express terms or the circumstances necessitating the sale, set out in the agreement. To find out whether time was the essence of the contract, reference has to made to the terms and conditions of the contract itself. The legal position is clear from the Constitution Bench decision in **Chand Rani v. Kamal Rani, 1993 KHC 877: AIR 1993 SC 1742** , wherein the Apex Court held that it is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language. 13. In the case on hand, time is not stated to be essence of the contract in Ext.A1. Therefore, we need to look into the intention of the parties and the surrounding circumstances to find out whether time was actually the essence of the contract and whether the parties had intended it to be so. 12 ## **R.F.A.No.322 of 2004** Before I go into the said aspect, it would be apposite to refer to a few decisions of the Apex court regarding the relief of specific performance. In **Kamal Kumar v. Premlata Joshi, 2019 KHC 6012,** it has been held that 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 gone into for grant of the relief of specific performance are - (i) whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; (ii) 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; (iii) 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; (iv) 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. 14. In **N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115** it has been held that the continuous readiness and willingness on the 13 ## **R.F.A.No.322 of 2004** part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract. 15. In **P.D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649** , the Apex court held that it is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No strait - jacket formula can be laid down in this behalf. The readiness and willingness on the part of the plaintiff to perform his part of contract would 14 ## **R.F.A.No.322 of 2004** also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. 16. Coming back to the facts of the case on hand, the plaintiff as per the terms in Ext.A1, paid an amount of ₹3 lakhs as advance on the date of the agreement. Out of the balance sale consideration, the plaintiff was liable to pay ₹2 lakhs by 30/01/1994. Admittedly that amount was also paid by the plaintiff. Endorsement to the said effect is seen made on the reverse side of page 1 of Ext.A1. It is stated in Ext.A1 that the plaintiff was made to believe by defendants 1 and 2 that there was no encumbrance on the property ; that it does not form part of notified vested forest and that it does not exceed the land ceiling limits. It is further stated that within a period of six months from the date of the agreement, defendants 1 and 2 in the presence of the plaintiff must measure out the property at their expense and convince the latter of its total extent ; that when the property is measured, road, stream (ത��ട� ), rock and property unfit for cultivation would be excluded from measurements; that within the period of six months, defendants 1 and 2 at their own expense should obtain necessary permission from the District Collector for registering the property; that within the period of the agreement, the plaintiff will have to be convinced that property is free from encumbrances and defendants 1 and 2 15 ## **R.F.A.No.322 of 2004** after obtaining a power of attorney from defendants 3 and 4, should execute the sale deed in favour of the plaintiff at the latter’s expense and that after measurement of the property the plaintiff shall pay the balance sale consideration for the property found available on measurement. In paragraph 7 of Ext.A1 it is further stated that it is the responsibility of defendants 1 and 2 to bring defendants 3 and 4 personally or to get a power of attorney in their favour for execution of the deed. They also have the duty to clear the forest boundaries. 17. There is no dispute regarding the fact that the amounts liable to be paid by the plaintiff were paid within the period stipulated in Ext.A1 agreement. Once the said amounts were paid, it was the duty and responsibility of defendants 1 and 2 to do their part of the agreement, i.e., the acts stated hereinabove. Only if the defendants had measured out the property and convinced the plaintiff of its extent, the balance sale consideration could have been ascertained. However, it appears from the records that the defendants had not done their part of the contract. Ext.A2 notice dated 30/07/1994 is the first lawyer notice sent to the defendants, apparently sent after the period in Ext.A1 agreement expired on 21/06/1994. This is replied by Ext.A3 reply notice dated 06/08/1994. In the reply notice the defendants 16 ## **R.F.A.No.322 of 2004** contend that they were always ready and willing to perform their part of the agreement; that though the defendants had approached the plaintiffs several times and had in fact sent the second witness in Ext.A1 agreement twice to the plaintiff requesting execution of the deed, the latter avoided execution of deed as the balance sale consideration was not ready; that the defendants are ready to bring defendants 3 and 4 personally and to get them to execute the deed; that the permission of the District Collector is not required to execute the deed; that the defendants are ready to give the prior title deeds at any time; that they are ready to measure the property any day and that they are still ready to execute the deed. Therefore, from the reply itself it is clear that none of the acts required to be done by the defendants as per the stipulations contained in Ext.A1 agreement had been done by them. In Ext.A3 reply notice, the defendants have no case that time was the essence of the contract. 17.1. Thereafter the plaintiff is seen to have sent a second notice, i.e., Ext.A4 dated 02/07/1996, which is apparently two years after the expiry of the period of the agreement. This is replied to by Ext.A5 reply notice dated 16/07/1996. In this notice also, the defendants contend that they were always ready to perform their part of the agreement. But the plaintiff failed to perform his part as the balance sale consideration was not ready. Time was 17 ## **R.F.A.No.322 of 2004** the essence of the contract. The defendants are ready to bring defendants 3 and 4 personally for execution of the document. The defendants also took up a stand that though the agreement period was over, they are ready to proceed with the agreement provided the plaintiff was ready to pay the prevailing market rate for the property. Therefore, even when Ext.A5 was sent, it is clear that the properties had not been measured by the defendants nor had any further steps as stipulated in Ext.A1 been taken. As noticed earlier, within the period of the agreement, the defendants were responsible for getting a power of attorney executed by defendants 3 and 4 in their favour authorising them to deal with the property of the latter. The fact that defendants 1 and 2 would undertake the said responsibility has been repeated and recorded on the reverse side of the first page of Ext.A1 when the second instalment of the advance money was paid by the plaintiff. However, none of the conditions which the defendants were liable to comply as per the agreement are seen complied with even after filing the suit. Hence the plaintiff had to amend the plaint and exclude the property of defendants 3 and 4 and confine his claim to the property of defendants 1 and 2. Therefore, the trial court was certainly right in holding that the default was on the part of the defendants. If time was actually the essence of the contract and the parties had intended it to be so, it 18 ## **R.F.A.No.322 of 2004** was quite unlikely and improbable for the defendants to have offered to sell the property to the plaintiff even in Ext.A5 reply notice. The contention of the defendants that though they had approached the plaintiff several times, the latter was not ready with the balance sale consideration does not appear to be true because unless and until the property was measured and the extent ascertained, the amount of balance sale consideration to be paid could never be determined. 18. Here is a case where on the date of the agreement itself, the possession of the entire property was handed over to the plaintiff. It is also the case of the defendants that the plaintiff had made substantial profits by appropriating the income from the property causing loss to them. It is quite surprising to note that despite the same, the defendants never took any steps to redress their grievance. If their case that they were always ready and willing to perform their part of the contract was true and it was the plaintiff who was actually in default, then in all probability the defendants would have taken steps to get the document executed. I hasten to add that I am quite conscious of the fact that it is the burden of the plaintiff to establish readiness and willingness and the weakness in the case or loopholes in the case of the defendants cannot come to his rescue or help. The initial burden is certainly 19 ## **R.F.A.No.322 of 2004** on the plaintiff to establish that he was ready and willing to perform his part of the contract. But when both sides have adduced evidence, the question of burden of proof pales into insignificance ( **Rebti Devi v. Ram Dutt, AIR 1998 SC 310** ). The onus of proof keeps shifting. It appears from the evidence that it is the defendants who were not quite keen in executing the agreement because the claim as per the amended plaint is only for 12.70 acres of property. The sale consideration @₹41,000/- per acre comes to ₹5,20,700/- of which ₹5 lakhs was already paid by the plaintiff in the year 1993, that is, before the period of six months stipulated in the agreement and what remained was only ₹20,700/-. That probably must be the reason why the defendants never took any interest or bothered to initiate any proceedings although possession had been handed over to the plaintiff. No default is seen on the part of the plaintiff. 19. The learned counsel for the defendants submitted that the relief for specific performance is a discretionary remedy and therefore the same should not be granted if it would cause undue advantage to the plaintiff and undue disadvantage to the defendants. 30 years have elapsed since the date of Ext.A1 agreement. The price of the property has gone up manifold. If the relief of specific performance is not granted to the plaintiff, no hardship would 20 ## **R.F.A.No.322 of 2004** be caused to him. On the other hand, if the same is granted after lapse of all these years, it would be highly inequitable for the defendants, goes the argument. 20. Section 20 of the Specific Reliefs Act which confers the discretion on the court to refuse a decree for specific performance even in cases it is lawful to do so, has now been substituted and the courts have no longer a discretion to refuse a decree for specific performance. The Apex Court in **Sughar Singh v. Hari Singh, 2021 SCC OnLine SC 975** , held that though the amended provisions do not have retrospective effect, the same shall be a guide for the court in the matter of exercising the discretion under Section 20. S.20, as it stood before amendment, makes it clear that the jurisdiction to decree specific performance is discretionary; but S.20(1) says that this discretion is not arbitrary but has to be exercised soundly and reasonably, guided by judicial principles, and capable of correction by a court of appeal. S.20(2) speaks of cases in which the court may properly exercise discretion not to decree specific performance. Significantly, under clause (a) of sub-section (2), what is to be seen is the terms of the contract or the conduct of the parties at the time of entering into the contract. Even "other circumstances under which the contract was entered into" refers only to 21 ## **R.F.A.No.322 of 2004** circumstances that prevailed at the time of entering into the contract. It is only then that this exception comes in - and this is when the plaintiff gets an unfair advantage over the defendant. Equally, under clause (b) of sub-section (2), the hardship involved is again at the time of entering into the contract which is clear from the expression "which he did not foresee". This is made clear beyond doubt by Explanation 2 of S.20 which states that the only exception to the hardship principle contained in clause (b) of sub-section (2) is where hardship results from an act of the plaintiff subsequent to the contract. The act cannot be an act of a third party or of the court - the act must only be the act of the plaintiff. Clause (c) of sub-section (2) again refers to the defendant entering into the contract under circumstances which makes it inequitable to enforce specific performance. Here again, the point of time at which this is to be judged is the time of entering into the contract **(Ferrodous Estates (Pvt.) Ltd. v. P.Gopirathnam, 2020 KHC 6584 : AIR 2020 SC 5041).** Explanation 1 appended to S.20 clearly stipulates that mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of subsection (2) of S.20 [ **P.D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649]** . 22 ## **R.F.A.No.322 of 2004** 21. In the light of S.20, the courts have uniformly held that the mere escalation of land prices after the date of the filing of the suit cannot be the sole ground to deny specific performance. ( **Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146; P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi, (2007) 10 SCC 231; P.D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649** and **Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC 756** ) **.** 22. In **Madana Gopal A.R. v. M/s.Ramnath Publications Pvt. Ltd., 2021 KHC 6226 : AIR 2021 SC 1886** , relying on **Ferrodous Estates** ( _Supra_ ) it has been held that a suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount 23 ## **R.F.A.No.322 of 2004** ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage. 23. Specific performance being an equitable relief, balance of equities has also to be struck taking into account all the relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into consideration the totality of circumstances of each case. It is not necessary that in all cases where there has been an escalation of prices, the court should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum. 24. In **K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77,** the Apex court while interpreting S.20 of the Act laid down that, where performance of the contract involves some hardship on the defendant which he did not foresee, while non - performance involve no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative 24 ## **R.F.A.No.322 of 2004** hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. 25. It is true that specific performance is a discretionary remedy and not to be granted if any unfair advantage would be caused to the plaintiff. Here no unfair advantage would be caused to either side. Admittedly, almost the entire sale consideration has been paid in the year 1993 before the expiry of the period of agreement and therefore if a decree of specific performance is not granted in favour of plaintiff, hardship would certainly be caused to him. Hence the trial court was right in finding that the plaintiff is entitled to a decree of specific performance. I find no infirmity in the findings of the trial court calling for an interference by this Court. 26. The plaint claim is for 12.70 acres @ ₹41,000/- per acre. The total consideration would come to ₹5,20,700/- out of which ₹5 lakhs has been paid in the year 1993 itself. The balance sale consideration to be paid is only an amount of ₹20,700/-. The suit has been filed in the year 1996. 27 years have elapsed since the filing of the suit. For the delay, the parties cannot be held responsible or penalised. Hence the balance sale consideration of 25 ## **R.F.A.No.322 of 2004** ₹20,700/- shall be given along with interest @12% p.a. from the date of suit till payment. 26.1. There is a clause in the agreement that after the property is measured, the plaintiff shall pay balance sale consideration @₹41,000/- for the extent of land found on measurement. The decree granted by the trial court reads - “ _The defendants 1 and 2 shall execute the necessary conveyance with respect to their properties mentioned in Exhibit A-1 agreement after receiving the balance sale consideration for the extend of the property available at the rate of Rs.41,000/- per acre, within three months_ .” Further, according to the plaintiff, plaint item no.5 has only an extent of 4.20 acres and that the total extent in his possession is only 12.70 acres. However, according to the defendants, item no.5 does have an extent of 10 acres as stated in Ext.A1 and that plaintiff is in possession of 22 acres of defendants 1 and 2. Before the execution of the sale deed, if on measurement the plaintiff is found to be in possession of extent more than 12.70 acres, then he will be liable to pay for the said land also. The question then is what would be the sale consideration for the land found in excess of 12.70 acres in possession of the plaintiff which was handed over pursuant to Ext.A1. There is no material before me to ascertain or fix the consideration for the property. On a query by this Court, it 26 ## **R.F.A.No.322 of 2004** was submitted on behalf of the plaintiff that the property in the area now would fetch about ₹3 to ₹5 lakhs per acre, whereas according to the defendants, it is somewhere around ₹12 lakhs per acre. The difference in the price stated is quite wide and hence accepting any one of the same may not be right or proper. But directing the plaintiff to pay @ ₹41,000/- per acre, a rate fixed 30 years before, would be quite unjust to the defendants. A remand to the trial court for enabling both sides to adduce evidence on this aspect as suggested by the learned counsel for the defendants would be quite unjust after the lapse of all these years. It is now settled that a court dealing with a suit for specific performance of an agreement for sale can impose, having regard to the delay in the judicial process and the consequential escalation of price of the property, any reasonable condition including payment of additional amount by one party to the other while granting or refusing a decree for specific performance **[Nirmala Anand v. Advent Corporation Pvt. Ltd., (2002)5 SCC 481** and **Zarina Siddiqui v. A.Ramalingam @ R.Amarnathan, (2015)1 SCC 705** ]. 26.2. Bearing in mind the fact that 27 years have passed since the filing of the suit, I deem it appropriate to direct the plaintiff to pay consideration @₹2 lakhs per acre of land if any found on measurement in 27 ## **R.F.A.No.322 of 2004** excess of the total extent of 12.70 acres scheduled in the plaint. It is made clear that this enhanced amount need only be paid regarding any extent of land found in excess of 12.70 acres. If on measurement, the total extent is found to be only 12.70 acres, then the balance sale consideration as stated earlier is only ₹20,700/- which shall be paid together with interest as aforestated. I have arrived at the enhanced figure having regard to the benefit of interest which might have accrued to the plaintiff on the sale consideration which the plaintiff would have paid to the defendants, if the sale had infact taken place. The decree granting specific performance is confirmed with the aforesaid direction regarding the balance sale consideration. In the result, the appeal is disposed of in terms of the observations made in paragraph number 26 to 26.2. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ami/