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Tuesday, May 8, 2012

"Since the case of the defendant is that of one of denial, therefore, the statement of the plaintiff that he was ready and willing to perform his part of the contract is sufficient to infer that plaintiffs were ready and willing to perform their part of contract. It was a meager amount of Rs.2000/- alone which was required to be paid at the time of registration of the sale deed. The substantial amount was paid at the time of execution of the agreement. More than Rs.12000/- was kept for payment to the mortgagee. Therefore, the argument raised by the learned counsel for the appellant that the plaintiffs have led evidence to prove his ready and willingness to perform the contract is not tenable." Since the appellants are denied the execution of sale deed, they Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the 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. If the plaintiff fails to either aver or prove the same, he must fail. 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. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” “Section 20 of the Specific Relief Act, 1963 provides that 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; 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. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving 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 hardship has been thus statutorily recognized 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.” (emphasis supplied) 21. In the present case, the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the Courts have found this plea to be wholly untenable. 22. In the result, the appeals are dismissed and the following directions are given: i) Within three months from today the respondent shall pay Rs.5 crores to the appellant. This direction is being given keeping in view the statement made by Shri Dushyant Dave, learned senior counsel for the respondent on 03.05.2012 that his client would be willing to pay Rs.5 crores in all to the appellant as the price of the land. ii) Within next three months the appellant shall execute and get the sale deed registered in favour of the respondent and hand over possession of the suit property.


                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 4307  OF 2012
                  (arising out of SLP (C) No.15051 of 2011)


Narinderjit Singh
… Appellant
                                   versus
North Star Estate Promoters Limited                           …
Respondent
                                    WITH
                       CIVIL APPEAL NO. 4306  OF 2012
                  (arising out of SLP (C) No.15730 of 2011)


                               J U D G M E N T
G.S. SINGHVI, J.

1.    Leave granted.
2.    Having failed to convince the learned Single Judge of the  Punjab  and
Haryana High Court to reverse the judgment and decree passed  by  the  lower
appellate Court  for  specific  performance  of  Agreement  for  Sale  dated
22.10.1996  executed  by  his  father-cum-General  Power  of  Attorney  Col.
Gurcharan Singh in favour of the  respondent  and  to  review  the  judgment
passed in the second appeal, the appellant has  filed  these  appeals.   For
the sake of convenience, the parties shall hereinafter  be  referred  to  as
the appellant and the respondent.
3.     The  respondent  filed  suit  for  possession  by  way  of   specific
performance of the agreement for  sale  impleading  the  appellant  and  his
father as the defendants.  The case set up by the  respondent  was  that  at
the time of execution of agreement, its authorised representative  had  paid
Rs.1,00,000;  that  on  22.11.1996,  Rs.9,00,000   were   offered   to   the
appellant’s father but he avoided to accept the  amount  despite  telephonic
message and phonogram sent on 23.11.1996 and personal visit  to  his  office
and residence.  It was further pleaded that even though the  respondent  was
always ready and willing and is still ready and willing to perform its  part
of the agreement, the appellant intentionally committed breach of the  terms
and  conditions  thereof  and  failed  to  perform  his  obligation  by  not
extending cooperation in obtaining colonization licence  from  Punjab  Urban
Development Authority and ITC Certificate under Section 34-A of  the  Income
Tax Act.

4.    In the joint written statement filed by the appellant and his  father,
the locus standi of the respondent to file the suit was  questioned  on  the
premise that it had been incorporated on 1.11.1996, i.e. after execution  of
the agreement.  On merits, it was pleaded that the appellant’s  father,  who
was about 88 years old and was sick had not executed the agreement  and  the
same was a fictitious document prepared by the respondent in collusion  with
Col. Gurcharan Singh and Vijay  Bhardwaj.   The  appellant  and  his  father
denied the receipt of the earnest money and the offer allegedly made by  the
respondent’s representative to pay Rs.9 lacs.

On the pleadings of the  parties,  the  trial  Court  framed  the  following
issues:
      “1.   Whether plaintiff is  entitled  for  decree  for  possession  by
      way of specific performance of agreement to sell  dated    22.10.1996?
      OPP.

       2.     Whether plaintiffs are not entitled  to  relief  claimed  for?
      OPD.


      3.          Relief”

6.    After considering the evidence produced  by  the  parties,  the  trial
Court          recorded          the           following           findings:
(i)   the respondent has succeeded in proving  execution  of  the  Agreement
for Sale.
(ii)  the appellant and his father could not prove that the Agreement was  a
forged                and                fabricated                document.
  (iii)     the respondent succeeded in proving that its representative  had
paid a sum of Rs.1,00,000 as earnest money and offered  to  pay  Rs.9,00,000
which         defendant         No.2         did         not         accept.
        (iv)     that the plaintiff was ready and  willing  to  perform  its
part of the agreement.

      However, the trial Court declined the relief of  specific  performance
by observing that the price of the land had considerably  increased  and  it
would be unfair to compel the appellant to execute  the  sale  deed  at  the
rate agreed to by the parties.  For arriving at this conclusion,  the  trial
Court relied upon the judgments of this Court in Sargunam (Dead) by L.R.  v.
Chidambaram (2005) 1 SCC 162 and Janardhanam Prasad v. Ramdas (2007) 15  SCC
174 and of the Division Bench of the Punjab and Haryana High Court in  Mohan
Singh v. Kulwinder Singh 2006 (2) P.L.J.  748  and  of  the  Allahabad  High
Court in Ramawati Devi v. Idris Ahmad 2008 (2) Civil Court Cases  332.   The
trial Court finally held that the respondent is entitled to  refund  of  the
earnest money with interest at the rate of 12% per annum.

7.    The respondent challenged the judgment and decree of the  trial  Court
by filing an appeal.  The appellant and his father did not  file  appeal  or
cross   objection to challenge the findings recorded by the trial  Court  on
the issues of execution of the agreement and readiness  and  willingness  on
the respondent’s part to perform its part of the agreement.

8.    The lower appellate Court independently  analysed  the  pleadings  and
evidence of the parties and agreed with the trial Court that the  respondent
had succeeded in proving execution of the agreement and  its  readiness  and
willingness  to  pay  the  balance  amount  and  perform  its  part  of  the
obligation.  The lower appellate Court further held  that  even  though  the
respondent’s representative had offered to pay Rs.9,00,000,  defendant  No.2
avoided to accept the same and deliver possession of the  suit  property  as
per clause (5) of  the  agreement  for  sale.   The  lower  appellate  Court
disagreed with the trial Court  that  the  respondent  is  not  entitled  to
decree of specific  performance  because  cost  of  the  suit  property  had
increased and observed that  there  was  no  justification  to  relieve  the
appellant of his obligation to  execute  the  sale  deed  in  terms  of  the
agreement.
9.    The second appeal filed by the appellant was dismissed by the  learned
Single Judge of the Punjab and Haryana High Court  who  concurred  with  the
lower appellate Court that the trial Court was  not  justified  in  invoking
the provisions of Section 20 (2) (c) of the Specific Relief Act,  1963  (for
short, ‘the Act’) for the purpose of declining  substantive  relief  to  the
respondent.  The learned Single Judge relied  upon  the  judgments  of  this
Court in K. Narendra v.  Riviera  Apartments  (P)  Ltd.  (1999)  5  SCC  77,
Sargunam (Dead) by LRs. v. Chidambaram (supra) 1 SCC 162 and Gobind  Ram  v.
Gian Chand 2000 (7) SCC 548, and held that inadequacy  of  consideration  or
the fact that the contract is onerous to the defendant is not sufficient  to
deny the relief of specific performance.

10.   Shri J. L. Gupta, learned senior  counsel  for  the  appellant  argued
that even though the finding recorded by  the  trial  Court  and  the  lower
appellate Court on the issue of readiness and willingness of the  respondent
was concurrent, the  learned  Single  Judge  of  the  High  Court  committed
serious error by  approving  the  same  ignoring  that  the  respondent  had
neither pleaded  nor  any  evidence  was  produced  to  prove  that  it  had
sufficient financial resources to pay  the  balance  price.  Learned  senior
counsel  emphasised  that  the  respondent  was   not   only   required   to
specifically plead but also prove its readiness and willingness to  pay  the
balance price and the lower appellate Court was not  justified  in  granting
the decree  of  specific  performance  merely  because  the  respondent  had
produced evidence to show that its representative had offered Rs.9  lacs  to
the appellant’s father.  Shri  Gupta  further  argued  that  the  so  called
refusal of the appellant’s father to receive the amount of  Rs.9,00,000  and
hand over possession of the suit property was  inconsequential  because  the
application  made  by  the  respondent  for  grant  of  licence  to  develop
residential colony  had  been  rejected  by  the  Punjab  Urban  Development
Authority.   Learned senior counsel submitted that the delay of three  years
in filing of the suit was an important  factor  which  ought  to  have  been
considered by the High Court for restoring the judgment  and  decree  passed
by the trial Court.   In  support  of  his  arguments,  the  learned  senior
counsel relied upon the judgments of this  Court  in  K.  S.  Vidyanadam  v.
Vairavan (1997) 3 SCC 1 and J. P. Builders v. A. Ramadas Rao  (2011)  1  SCC
429.  In the end, Shri Gupta  referred  to  the  provisions  of  the  Punjab
Apartment  and  Property  Regulation  Act,  1995  and  submitted  that   the
appellant did  not  hand  over  possession  of  the  suit  property  to  the
respondent for the purpose of development of residential colony because  the
latter failed to  get  the  requisite  licence  and  any  violation  of  the
provisions of the Act would have amounted to an offence.

11.    Shri  Dushyant  Dave,  learned  senior  counsel  for  the  respondent
supported the impugned judgment and argued  that  the  High  Court  did  not
commit any error by dismissing the second appeal and approving the  judgment
of the lower appellate Court which had set aside the trial  Court’s  verdict
on the issue of the applicability of Section 20(2)(c)  of  the  Act  because
the respondent was always ready and willing  to  perform  its  part  of  the
agreement and the escalation, if any, in the price of the  land  could  not,
by itself, be made a ground for denying the relief of specific  performance.
 Learned senior counsel submitted that the finding  recorded  by  the  trial
Court on the issue of the respondent’s readiness  and  willingness  will  be
deemed to have become final because  the appellant  did  not  challenge  the
same by filing an appeal against the judgment of the trial Court  or  cross-
objection in the appeal preferred by the respondent.
12.   We have considered the  respective  submissions.   A  reading  of  the
agreement executed by the appellant’s father in  favour  of  the  respondent
shows that he had agreed to  sell  51  Bighas  9  Biswas  land  situated  in
village  Dhakauli,  Tehsil  Rajpura,  District  Patiala  at  the   rate   of
Rs.14,00,000 per Killa, i.e. 4 Bighas. Clauses 1, 2, 3, 4, 5 and  7  of  the
Agreement read as under:
      “1.   That the total sale price of the above said land has been  fixed
      at Rs.14,00,000/- (Fourteen Lac Only) per Killa i.e.  (4-0)  (Bighas).




      2.    That the said purchaser Company has paid to the  said  Seller  a
      sum of Rs.1,00,000/- (Rupees One Lac Only) in cash  in  the  shape  of
      currency Notes as earnest money  for  which  amount  the  said  Seller
      hereby acknowledges the receipt in the presence of marginal witnesses.


      3.    That the purchaser company will develop the land for residential
      colony and the said purchaser company  will  pay  further  advance  of
      Rs.9,00,000/- (Rupees Nine Lac Only) as part payment on or before 23rd
      Nov., of 1996, further part payment of Rs. 10,00,000/- (Rupees Ten Lac
      Only) on or before 24.12.1996, further part payment of  Rs.28,00,000/-
      (Rupees Twenty Eight Lac Only) on or before 23.4.1997 i.e.  equivalent
      to the registration value of two acres of land and the balance payment
      of Rs.42,00,000/- (Rupees Forty Two Lac  Only)  will  be  made  on  or
      before 23.7.1997 equivalent to the value of three acres and the  final
      payment will be made to the Seller on or before 23.10.1997.


      4.    That the Seller and purchaser parties will be bound  to  execute
      one or more sale deeds in favour  of  the  purchaser  company  or  its
      nominees as per schedule mentioned in para no.3 without any delay  and
      hesitation and registration will be made from one end of the  land  in
      continuous  manner  and  the  earnest  money  and  part   payment   of
      Rs.20,00,000/-(Rupees Twenty Lac Only) will be adjusted  in  the  last
      and final sale deeds. The Seller party  will  present  personally  for
      execution of sale deed in favour of the  nominees  in  the  office  of
      Joint Sub Registrar, Dera Bassi as per time  and  date  fixed  between
      both the parties.


      5.     That  the  said  Seller  will  handover  the  vacant   physical
      possession of the said land for the purpose of development  activities
      to the purchaser company at the  time  of  after  receiving  the  part
      payment of Rs.9,00,000/-(Rupees Nine Lac Only).


      6.    xx         xx          xx         xx


      7.    That the Seller party will fully cooperate  with  the  purchaser
      company to apply and obtain the colonization licence  from  the  PUDA,
      Chandigarh. The Seller party will give a Special Power of Attorney for
      this purpose to the nominee of the company.”


13.   The question whether the respondent was ready and willing  to  perform
its part of the agreement is required to be decided  in  the  light  of  the
pleadings of the parties, evidence produced by them and  their  conduct.  In
paragraph 5 of the plaint, the respondent categorically pleaded that it  was
always ready and willing and is still ready and willing to perform its  part
of the contract and on 22.11.1996 Rs. 9,00,000/- had  been  offered  to  the
appellant’s father but the latter refused to accept the amount.  The  thrust
of the case set up  by  the  appellant  was  that  his  father  had  neither
executed the agreement nor received the earnest money.   According  to  him,
the agreement was an end product  of  criminal  conspiracy  hatched  by  the
respondent with the help  of  Col.  Harjit  Singh  and  Vijay  Bhardwaj  for
defrauding him.  The appellant also pleaded that the agreement  relied  upon
by the respondent was a fake and  fabricated  document.   In  reply  to  the
averments contained in para 5 of the plaint that the respondent  was  always
ready and willing and is still ready and willing to perform its part of  the
contract, the following statement was made in the written statement:
      “5.   Para no.5 of the plaint is  wrong  and  therefore  denied.   The
      question of readiness and willingness on the part  of  the  defendants
      does not arise at all.  Question of receiving of  Rs.  nine  lac  also
      does not arise at all.”

14.   The trial Court comprehensively analysed the  pleadings  and  evidence
of the parties and  held  that  the  respondent  has  succeeded  in  proving
execution of  the  agreement  by  the  appellant’s  father  and  receipt  of
Rs.1,00,000/- by him. The trial Court then considered the  question  whether
the respondent was ready and willing to pay the balance price and observed:


      “……………Perusal of the terms and conditions of the agreement to sell  in
      question reveals that the plaintiff had to pay an amount of Rs.9  lacs
      as part payment amount on or before 23.11.1996 and the defendant  No.2
      in turn was schedule to deliver the vacant physical possession of  the
      property in dispute to the plaintiff i.e. on 23.11.1996. The  specific
      stand taken by the plaintiff is that he remained ready with  the  said
      amount of Rs.9 lacs to be paid to the defendants on  23.11.1996,  but,
      the defendants refused to accept the said amount  on  pretext  or  the
      other. The plaintiff sent a telephonic  message  through  STD  to  the
      defendant No.2 besides sending the  other  phonogram  message  to  the
      defendant No.2 on the same day at 11.00 a.m. More  significantly,  the
      plaintiff had prepared a draft  of  Rs.9  lacs  bearing  No.BC/F322341
      dated 23.11.1996 in this regard. Had the  plaintiff  not  been  having
      ready cash amount of Rs.9 lacs and not ready and willing  to  pay  the
      amount of Rs.9 lacs to the defendants, then, he  would  have  prepared
      the said draft. Rather, defendants have denied the  execution  of  any
      such agreement dated 22.10.1996 and therefore, defendants cannot  take
      the plea that plaintiff never offered an  amount  of  Rs.9  lacs.  The
      defendants are also estopped from taking the plea that  plaintiff  was
      not ready and willing to perform his part of the contract and that the
      plaintiff did not have the capacity  to  make  the  payment  when  the
      defendants  have  denied  the  very  execution  of  the  agreement  in
      question. It may be pertinent to mention here that plaintiff had  also
      served  a  legal  notice  upon  the  defendants  through  his  counsel
      Sh.G.K.Verma, Advocate on 24.11.1996, but, the defendants  refused  to
      accept the said notice. The plaintiff was scheduled  to  make  further
      payment on different dates to the defendants  after  23.10.1996,  but,
      since the defendants have  denied  the  execution  of  the  agreement,
      therefore, the question  where,  the  plaintiff  was  ready  with  the
      subsequent payment of Rs.10 lacs, Rs.18 lacs and Rs.42 lacs to be paid
      on subsequent dates becomes meaningless and  loses  its  significance.
      DW1 Narinderjit Singh has himself stated that document was forged  and
      fabricated, but, he has failed  to  prove  this  averment  on  record.
      Although, the defendants have examined an expert  witness  namely  DW3
      Navdeep Gupta, who has stated that agreement to sell dated  22.10.1996
      did not contain the signatures of defendant No.2 Gurcharan Singh, but,
      his testimony cannot be given  much  weightage  in  the  wake  of  the
      positive oral as well as documentary evidence led  by  the  plaintiff.
      Rather, the plaintiff has also examined PW6 Jassy Anand, Finger Prints
      and Handwriting Expert, who has specifically stated on oath before the
      Court that  in  the  present  case,  she  has  examined  the  disputed
      signatures of defendant No.2 on the agreement  in  question  with  the
      standard signatures and he was of the opinion that signatures of  Col.
      Gurcharan Singh, defendant No.2 tallied with the  disputed  signatures
      of Col. Gurcharan Singh, defendant No.2 on the agreement  in  question
      which  means  that  signatures  on  the  disputed  agreement  and  the
      signatures on the authentic documents were done by one  and  the  same
      person. ………………………………. So, the agreement in question  dated  22.10.1996
      EX.PW3/A duly stands proved in accordance with provisions of  law.  It
      stands sufficiently proved on record that defendants on 22.10.1996 had
      executed an agreement  to  sell  in  favour  of  the  plaintiff  after
      receiving earnest amount of Rs.one lacs  from  the  plaintiff  in  the
      presence of marginal witnesses.”
                                                         (emphasis supplied)




15.   The appellant did not question the aforesaid  findings  of  the  trial
Court by filing an appeal. Not only this, he did  not  file  cross-objection
in the appeal filed by the respondent. Therefore, the lower appellate  Court
was not required to consider whether execution of  the  agreement  for  sale
has been proved and whether respondent was ready and willing to perform  its
part of the agreement, but it considered both the questions and observed:
      “The learned trial Court has specifically held that due  execution  of
      the agreement in question has been proved and there is  no  defect  in
      the findings recorded by the learned trial Court in this  regard.  The
      version of the appellant/plaintiff in this regard has been  proved  by
      PW3 Vijay Bhardwaj  who  is  marginal  witness  of  the  agreement  in
      question. So far as readiness and  willingness  on  the  part  of  the
      appellant/plaintiff to perform its contract is concerned, the  learned
      trial Court has recorded findings in favour of the appellant/plaintiff
      and the said findings are based on proper  appreciation  of  evidence.
      The evidence produced by  the  appellant/plaintiff    shows  that  the
      appellant/ plaintiff had got issued a demand draft of Rs.9,00,000/- on
      23.11.1996   for   payment    of    the    said    amount    to    the
      defendants/respondents but they did not receive the said  amount.  The
      appellant/ plaintiff had sent message and also phonogram  Ex.PW3/1  to
      the defendants/respondents on 23.11.1996 vide receipt ex.PW3/H. Even a
      notice Ex.PW3/D was sent to the defendants/respondents through courier
      vide receipt Ex.PW3/C and even a legal notice had  been  sent  to  the
      defendants/respondents by the appellant/plaintiff through its counsel.
      Further the statement of M.K.Jain Director of the  appellant/plaintiff
      in this  regard  finds  corroboration  from  the  testimony  of  Vijay
      Bhardwaj. On the other hand, the  defendants/respondents  have  denied
      the  agreement  in  question  and  it   is   not   their   plea   that
      appellant/plaintiff was not ready and willing to perform its contract.
      Under   these   circumstances,   the   evidence   produced   by    the
      appellant/plaintiff  to  prove  their  readiness  and  willingness  to
      perform their part of contract can be accepted without any  hesitation
      and in this regard I find support from the judgment of Hon'ble  Punjab
      and Haryana High Court in Santa Singh Vs. Binder Singh and Ors 2006(4)
      Civil Court Cases-608 wherein it was held as under:-


           "Since the case of the defendant  is  that  of  one  of  denial,
           therefore, the statement of the plaintiff that he was ready  and
           willing to perform his part of the  contract  is  sufficient  to
           infer that plaintiffs were ready and willing  to  perform  their
           part of contract. It was a  meager  amount  of  Rs.2000/-  alone
           which was required to be paid at the time of registration of the
           sale deed. The substantial  amount  was  paid  at  the  time  of
           execution of the agreement. More than Rs.12000/-  was  kept  for
           payment to the mortgagee. Therefore, the argument raised by  the
           learned counsel for the appellant that the plaintiffs  have  led
           evidence to prove his  ready  and  willingness  to  perform  the
           contract is not tenable.”

16.   The learned Single Judge also considered the issue  of  readiness  and
willingness of the respondent to perform  its  part  of  the  agreement  and
observed:

      “The factum of readiness and willingness to  perform  the  plaintiff’s
      part of the contract is to be adjudged with the conduct of the parties
      and the attending circumstances.  In  the  present  case,  it  may  be
      noticed that according to the terms and conditions of the agreement in
      question,  the  plaintiff-respondent  was  to  make   a   payment   of
      Rs.9,00,000/- to the appellant on 23.11.1996 and  on  receipt  of  the
      aforesaid payment, the appellant was to allow the plaintiff-respondent
      to carry  out  the  development  activities.   However,  it  has  been
      established on record  that  the  appellant  refused  to  receive  the
      aforesaid amount of Rs.9,00,000/- on 23.11.1996.  There is no evidence
      on record that the appellant ever allowed the plaintiff-respondent  to
      carry out development activities  in  the  land  in  question.   Thus,
      thereafter, there was no  occasion  for  the  plaintiff-respondent  to
      further perform its part  of  the  contract  on  subsequent  dates  as
      argued. Still there is no evidence on record placed by  the  appellant
      to prove the fact that the plaintiff-respondent was not ready  to  get
      the sale deed executed on  subsequent  dates  as  per  the  terms  and
      conditions of the  agreement  in  question.  There  is  a  distinction
      between readiness to perform the contract and willingness  to  perform
      the contract. By readiness, may be meant the capacity of the plaintiff
      to perform the contract which includes his financial position  to  pay
      the purchase price whereas determining the willingness to perform  his
      part  of  the  contract,  the  conduct  of  the  parties  has  to   be
      scrutinized.  In the present case, there  is  no  evidence  placed  on
      record to show  that  the  plaintiff-respondent  was  not  having  the
      capacity to pay the purchase price for  execution  of  the  subsequent
      sale deeds. The plaintiff-respondent had demonstrated his  willingness
      to pay Rs.9,00,000/- on 23.11.1996 by placing  on  record  the  demand
      draft of Rs.9,00,000/- in favour of the appellant. However, as noticed
      above, since the appellant refused to accept the same, the  plaintiff-
      respondent was prevented from performing its part of the agreement  by
      offering money for execution of the sale deeds on subsequent dates.”

17.   In our view, the concurrent findings recorded by the trial  Court  and
the lower appellate Court on the issues of execution  of  the  agreement  by
the appellant’s father and the respondent’s  readiness  and  willingness  to
perform its part of the agreement were based on correct  evaluation  of  the
pleadings and evidence of the parties and the learned Single  Judge  of  the
High Court did not commit any error by refusing  to  upset  those  findings.
The argument of the learned senior counsel for the  appellant  that  in  the
absence of specific pleading about continued readiness  and  willingness  of
the respondent to perform its part of  the  agreement  and  availability  of
funds necessary for payment  of  the  sale  consideration,  the  High  Court
should have set aside the concurrent finding recorded by  the  Courts  below
sounds attractive but on a careful scrutiny of the record  we  do  not  find
any valid ground to entertain the same.   In  R.C.  Chandiok  v.  Chuni  Lal
Sabharwal (1970)  3  SCC  140,  this  Court  observed  that  “readiness  and
willingness cannot be treated as a straitjacket formula and  the  issue  has
to be decided keeping in view the facts and circumstances  relevant  to  the
intention and conduct of the party concerned”. The same view was  reiterated
in D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649.  In N.P. Thirugnanam v.  R.
Jagan Mohan Rao (Dr) (1995) 5 SCC 115, the Court found  that  the  appellant
was dabbling in real  estate  transaction  without  means  to  purchase  the
property and observed:
      “Section 16(c) of the Act envisages  that  plaintiff  must  plead  and
      prove that he had 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 those terms  the  performance  of  which  has  been
      prevented or waived by the defendant.  The  continuous  readiness  and
      willingness on the 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. If the plaintiff fails
      to either aver or prove the same, he must fail. 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.  As  stated,  the  factum  of  his  readiness   and
      willingness to perform his part of the contract is to be adjudged with
      reference to the conduct of the party and the attending circumstances.
      The court may infer from  the  facts  and  circumstances  whether  the
      plaintiff was ready and was always ready and willing  to  perform  his
      part of the contract.”



18.   In J. P. Builders v. A. Ramadas Rao  (supra),  the  Court  has  merely
reiterated the principles already laid down and no new proposition has  been
laid down which may help the cause of the appellant.

19.   It is significant to note that the appellant and his  father  had  set
up the case of total denial. They repeatedly pleaded that the agreement  for
sale was a fictitious document and the respondent had  fabricated  the  same
in connivance with  Col.  Harjit  Singh  and  Vijay  Bhardwaj.  However,  no
evidence was adduced by the appellant to substantiate  his  assertion.  That
apart, he did not challenge the finding recorded by the trial Court  on  the
issue of readiness and willingness of the respondent to perform its part  of
the agreement. Therefore,  we  do  not  find  any  valid  ground  much  less
justification for exercise of power by this Court under Article 136  of  the
Constitution of India to interfere with the judgment of the lower  appellate
Court which was approved by the High Court.

20.   We are also inclined to agree with  the  lower  appellate  Court  that
escalation in the price of the land cannot,  by  itself,  be  a  ground  for
denying  relief  of  specific  performance.   In  K.  Narendra  v.   Riviera
Apartments (P) Ltd. (supra), this Court interpreted Section 20  of  the  Act
and laid down the following propositions:
      “Section 20 of  the  Specific  Relief  Act,  1963  provides  that  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; 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. Performance of the contract involving some hardship
      on the defendant  which  he  did  not  foresee  while  non-performance
      involving  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  hardship
      has  been  thus  statutorily  recognized  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.”


                                                         (emphasis supplied)



21.    In the present case, the appellant had neither pleaded  hardship  nor
produced any evidence to show that it will be inequitable to order  specific
performance of the agreement.  Rather,  the  important  plea  taken  by  the
appellant was that the agreement  was  fictitious  and  fabricated  and  his
father had neither executed the same nor received the earnest money and,  as
mentioned  above,  all  the  Courts  have  found  this  plea  to  be  wholly
untenable.

22.   In the result, the appeals are dismissed and the following  directions
are given:

      i)    Within three months from today the  respondent  shall  pay  Rs.5
           crores to the appellant. This direction is being  given  keeping
           in view the statement made by Shri Dushyant Dave, learned senior
           counsel for the respondent on 03.05.2012 that his  client  would
           be willing to pay Rs.5 crores in all to  the  appellant  as  the
           price of the land.

      ii)   Within next three months the appellant  shall  execute  and  get
           the sale deed registered in favour of the  respondent  and  hand
           over possession of the suit property.

                                                …..……….....……..….………………….…J.
                                             [G.S. SINGHVI]

                                                  ..…………..………..….………………….…J.
                                  [SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
May 08, 2012.


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