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Monday, February 10, 2014

Sec.28 Specific relief Act - Specific performance suit decreed against all interested persons - Decree become final - E.P. filed for execution by depositing balance amount after long time - Petition filed under sec. 28 for rescission of agreement as E.P. is barred by limitation - High court on it's original side dismissed the petition -D.B. confirmed the same- Apex court set the aside the orders of high court and DB and held that due to efflux of time from the date of decree to date of E.P. - the circle rate under Delhi Stamp Act by notification increased four times than the balance amount deposited - with out clearing the same and with out obtaining the permission, no sale deed executable - in such circumstance basing of Equities - the apex court held that where the purchaser should be directed to pay the land value to the vendors as per the circle rate notified for the residential property in Category ‘A’ colonies prevailing during November 16, 2011 to January 5, 2012, at the rate of Rs.2,15,000/- per square meter. The purchaser shall also be liable to meet the liability arising by way of unearned increase to be paid to the Land and Development Office. He is free to withdraw the amounts deposited by him in the court as per order dated 06.01.2010. It is also ordered that in case the plaintiff does not deposit the amount to be paid to the vendors within three months from today, the vendors shall deposit in court within two months thereafter the amount calculated as per the circle rate referred to above by way of compensation to be paid to the purchaser, and in which event, they shall stand discharged of their obligations under the contract and the decree. In the event of the purchaser depositing the amount as above, the execution proceedings shall be finalized within another one month. The Court in seisin of the Suit OS No. 1428 of 1981 shall dispose of the same within three months from today.= RAJINDER KUMAR … APPELLANT (S) VERSUS SHRI KULDEEP SINGH & OTHERS … RESPONDENT (S) = 2014 ( Feb. part ) judis.nic.in/supremecourt/filename=41209

Sec.28 Specific relief Act - Specific performance suit decreed against all interested persons - Decree become final - E.P. filed for execution by depositing balance amount after long time - Petition filed under sec. 28 for rescission of agreement  as E.P. is barred by limitation - High court on it's original side dismissed  the petition -D.B. confirmed the same- Apex court  set the aside the orders of high court  and DB and held that due to efflux of time from the date of decree to date of E.P. - the circle rate under Delhi Stamp Act by notification increased four times than the balance amount deposited - with out clearing the same and with out obtaining the permission, no sale deed executable - in such circumstance basing of Equities - the apex court held that where the purchaser should be directed  to  pay  the land value to the vendors as per the  circle  rate  notified  for  the residential  property  in  Category  ‘A’  colonies  prevailing  during November 16, 2011 to January 5, 2012, at the rate of Rs.2,15,000/- per square meter. 
The purchaser shall also be liable to meet the liability arising by way of unearned  increase  to  be  paid  to  the  Land  and Development Office. He is free to withdraw the  amounts  deposited  by
  him in the court as per order dated 06.01.2010.  
It  is  also  ordered that in case the plaintiff does not deposit the amount to be  paid  to the vendors within three months from today, the vendors shall  deposit in court within two months thereafter the amount calculated as per the circle rate referred to above by way of compensation to be paid to the purchaser, and in which event, they shall stand  discharged  of  their obligations under the contract and the decree. In  the  event  of  the purchaser depositing the amount as above,  the  execution  proceedings shall be finalized within another one month. 
The Court  in  seisin  of the Suit OS No. 1428 of 1981 shall dispose of the  same  within  three months from today.=

Kuldeep Singh filed Execution Petition (No. 164/1990)  on  07.11.1990.
      Mohinder Kumar Gupta (petitioner in SLP No. 28302 of 2010), one of the
      judgment debtors, filed Application  No.  110/1991  objecting  to  the
      execution of the decree.
on 24.04.1999, some of the appellants filed an  application
      under Section 28 of Specific Relief Act,1963 (IA No. 4274/1999 in Suit
      No. 280/1982) for rescission of the agreement. =

The eight legal heirs of Nand Lal entered into an agreement  to  sell
      the aforesaid immovable property on 29/30.07.1980 with Kuldeep  Singh-
      (respondent) for a total sum of Rs.14,00,000/- out  of  which  Kuldeep
      Singh paid Rs.1,40,000/- as earnest money and possession of one garage
      in the suit property was handed over to him.  
The  balance  amount  of
      Rs.12,60,000/- was to be paid by the respondent on the  execution  and
      registration of the sale deed and delivery of possession. =

   5. One Rajinder Kumar (Petitioner in SLP (C) No. 19215/2011) claims  that
      he is son of the late Din Dayal and at the time of agreement to  sell,
      he was a minor. He filed a suit through his maternal grandfather (Suit
      No. 1428 of 1981) and sought a declaration that the agreement for sale
      was illegal as he was not a party to it. 
The suit  was  dismissed  for
      default on 22.05.1984. 
After more than 17  years,  it  was  eventually
      restored on 17.01.2002.

  The respondent-Kuldeep Singh filed  a  suit  (Suit  No.  280/1982)  on
      10.01.1982 for specific performance of the agreement against the eight
      legal heirs, impleading also  Rajinder  Kumar  in  the  said  suit  as
      defendant no. 9, on the original side of High Court of Delhi.
The suit
      was decreed ex parte on 30.04.1984.=


44. The circle rate  of  the  residential  property  based  on  which  the
      unearned increase is calculated  by  the  L&DO,  would  show  a  sharp
      increase during the period. Sunder  Nagar  comes  under  Category  ‘A’
      colonies. 
Under the  Delhi  Stamp  (Prevention  of  Undervaluation  of
      Instruments) Rules, 2007, the notified circle rate  for  Category  ‘A’
      colonies from July 2007 was Rs.43,000/-  per  square  meter  and  from
      February 8, 2011, it was Rs.86,000/- per square meter.  From  November
      16, 2011, it was Rs.2,15,000/- per square meter and  from  January  5,
      2012, it is Rs.6,45,000/- per square meter.

  45. In the peculiar facts and circumstances of the case,  we  are  of  the
      view that the trial court should have passed an equitable order  while
      considering the application for rescission.  
Having regard to the fact
      that the decree was passed in 1984, we feel that it  would  be  unjust
      and unfair to relegate the parties to the trial court at this distance
      of time. 
For doing complete justice to the parties, we are of the view
      that it is a case 
where the purchaser should be directed  to  pay  the
      land value to the vendors as per the  circle  rate  notified  for  the
      residential  property  in  Category  ‘A’  colonies  prevailing  during
      November 16, 2011 to January 5, 2012, at the rate of Rs.2,15,000/- per
      square meter. 
The purchaser shall also be liable to meet the liability
      arising by way of unearned  increase  to  be  paid  to  the  Land  and
      Development Office. 
He is free to withdraw the  amounts  deposited  by
      him in the court as per order dated 06.01.2010.  
It  is  also  ordered
      that in case the plaintiff does not deposit the amount to be  paid  to
      the vendors within three months from today, the vendors shall  deposit
      in court within two months thereafter the amount calculated as per the
      circle rate referred to above by way of compensation to be paid to the
      purchaser, and in which event, they shall stand  discharged  of  their
      obligations under the contract and the decree. 
In  the  event  of  the
      purchaser depositing the amount as above,  the  execution  proceedings
      shall be finalized within another one month. 
The Court  in  seisin  of
      the Suit OS No. 1428 of 1981 shall dispose of the  same  within  three
      months from today.

  46. The Appeal filed by  Rajinder  Kumar  [arising  out  of  SLP  (C)  No.
      19215/2011] is dismissed and the other Appeals are partly  allowed  as
      above. There is no order as to costs.

2014 ( Feb. part ) judis.nic.in/supremecourt/filename=41209
CHANDRAMAULI KR. PRASAD, KURIAN JOSEPH
                     

 IN THE SUPREME COURT OF INDIA

                       CIVIL   APPELLATE  JURISDICTION

                       CIVIL APPEAL NO. 1873   OF 2014
                [Arising out of S.L.P. (C) No. 19215 OF 2011]

RAJINDER KUMAR                          … APPELLANT (S)
                                   VERSUS

SHRI KULDEEP SINGH & OTHERS       … RESPONDENT (S)

                                    WITH

                      CIVIL APPEAL NO. 1874    OF 2014
                [Arising out of S.L.P. (C) No. 28302 OF 2010]

MOHINDER KUMAR GUPTA              … APPELLANT (S)

                                   VERSUS

SHRI KULDEEP SINGH & OTHERS       … RESPONDENT (S)

                                    WITH

                      CIVIL APPEAL NO.  1875   OF 2014
                [Arising out of S.L.P. (C) No. 26419 OF 2011]

MOHINDER KUMAR GUPTA              … APPELLANT (S)

                                   VERSUS

KULDEEP SINGH & OTHERS            … RESPONDENT (S)

                                    WITH

                    CIVIL APPEAL NOS. 1876-1877   OF 2014
            [Arising out of S.L.P. (C) Nos. 29361-29362 OF 2012]

S. K. GUPTA (DEAD) THROUGH LRS,
AND OTHERS                              … APPELLANT (S)

                                   VERSUS

SHRI KULDEEP SINGH & OTHERS             … RESPONDENT (S)



                               J U D G M E N T

KURIAN, J.:




      Leave granted.


   2. Specific performance is an equitable relief granted by the  courts  in
      specific  situations.  Plainly  speaking,   equity   means   fairness.
      According to Sir Edward  Fry,
the  Court  by  a  decree  of  specific
      performance  compels  the  defaulting  party  to  do  that  which   in
      conscience he is bound to  do,  viz.,  actually  and  specifically  to
      perform his contract[1].
Conscience means a person’s  moral  sense  of
      right or wrong[2].
Thus, what is morally  wrong  cannot  be  equitably
      right and necessarily what is morally right will be just  and  proper.
      This prelude is the keyhole for us to  see  through  the  factual  and
      legal position of  a  three  decade  long  litigation  on  a  specific
      performance.

FACTS

   3. One Nand Lal (deceased) was the  perpetual  lessee  of  the  Land  and
      Development Officer (hereinafter referred to as  ‘L&DO’)  of  property
      bearing Bungalow No. 9, Sunder Nagar, New Delhi measuring 0.179  acres
      equal to 865 sq. yards equal to 721 sq. metres.
His legal heirs are  -
      (1) Banarsi Das; (2) Dhanpat Rai; (3) Din Dayal; and (4)  Gaindo  Devi
      (widow of a pre-deceased son Paras Ram) as his legal heirs.  Each  had
      a 1/4th share in the suit property.
Din  Dayal  passed  away  leaving
      behind, as originally claimed - (5) his widow Sushila  Devi;  (6)  son
      Mohinder Kumar Gupta; (7) son Surinder Dayal; (8) son Narinder  Dayal;
      and (9) daughter Vijay Laksmi and each of them had 1/24th  share  each
      in the suit property.

   4.  The eight legal heirs of Nand Lal entered into an agreement  to  sell
      the aforesaid immovable property on 29/30.07.1980 with Kuldeep  Singh-
      (respondent) for a total sum of Rs.14,00,000/- out  of  which  Kuldeep
      Singh paid Rs.1,40,000/- as earnest money and possession of one garage
      in the suit property was handed over to him.  
The  balance  amount  of
      Rs.12,60,000/- was to be paid by the respondent on the  execution  and
      registration of the sale deed and delivery of possession.

   5. One Rajinder Kumar (Petitioner in SLP (C) No. 19215/2011) claims  that
      he is son of the late Din Dayal and at the time of agreement to  sell,
      he was a minor. He filed a suit through his maternal grandfather (Suit
      No. 1428 of 1981) and sought a declaration that the agreement for sale
      was illegal as he was not a party to it. 
The suit  was  dismissed  for
      default on 22.05.1984. 
After more than 17  years,  it  was  eventually
      restored on 17.01.2002.

   6. The respondent-Kuldeep Singh filed  a  suit  (Suit  No.  280/1982)  on
      10.01.1982 for specific performance of the agreement against the eight
      legal heirs, impleading also  Rajinder  Kumar  in  the  said  suit  as
      defendant no. 9, on the original side of High Court of Delhi.
The suit
      was decreed ex parte on 30.04.1984.
Appeal  (RFA  (OS)  NO.  14/1985)
      against the above Judgment dated 30.04.1984 was dismissed  vide  order
      dated 22.03.1985 as time barred.
An application under Order IX Rule 13
      of the Code of Civil Procedure,  1908  filed  thereafter  for  setting
      aside the decree was also dismissed on 15.07.1985.
Thus,  the  decree has attained finality.

   7. Kuldeep Singh filed Execution Petition (No. 164/1990)  on  07.11.1990.
      Mohinder Kumar Gupta (petitioner in SLP No. 28302 of 2010), one of the
      judgment debtors, filed Application  No.  110/1991  objecting  to  the
      execution of the decree.
Another application EA NO. 111/1991 was filed
      by minor Rajinder Kumar under Order XXI Rule 58 of the Code  of  Civil
      Procedure, 1908.
Single Judge of the Delhi High  Court  vide  Judgment
      dated 01.02.2002 dismissed both  petitions  holding  that  the  decree
      dated 30.04.1984 is executable. 
Aggrieved, Mohinder Kumar Gupta  filed
      FAO (OS) No. 66/2002 against the aforesaid judgment  dated  01.02.2002
      and Rajinder Kumar filed EFA (OS) No. 4/2002 before the Division Bench
      of the High Court.

   8. Meanwhile, on 24.04.1999, some of the appellants filed an  application
      under Section 28 of Specific Relief Act,1963 (IA No. 4274/1999 in Suit
      No. 280/1982) for rescission of the agreement. That was  dismissed  by
      the Single Judge, High Court of Delhi vide Order dated 23.02.2000. FAO
      (OS) 110/2000 before the Division  Bench  of  the  High  Court  arises
      against the order dated 23.02.2000.

   9. The Division Bench vide Judgment dated 19.02.2010 dismissed  FAO  (OS)
      No. 110 of 2000, FAO (OS) NO. 66 of 2002  but  allowed  EFA  (OS)  No.
      4/2002 filed by the  then  minor  Rajinder  Kumar,  holding  that  the
      execution against him cannot be pursued as there is no decree  against
      him.

  10. The appellants then filed review petitions  No.  210/2010  &  328/2010
      against Judgment dated 19.02.2010 in FAO (OS) No. 110/2000.  The  High
      Court dismissed the Review Petition  No.  210/2010  in  FAO  (OS)  No.
      110/2000 and Review Petition No. 328 of 2010 in FAO  (OS)  No.  66  of
      2002 on 25.04.2011. Thus, they are before this Court in these appeals.



  11. It is the main contention of the  appellants  that  the  decree  dated
      30.04.1984 is inexecutable since it is vague  and  contingent.  It  is
      also contended that  the  High  Court  of  Delhi  failed  to  properly
      exercise  its  jurisdiction  while  deciding   the   application   for
      rescinding the contract. There  are  other  ancillary  contentions  as
      well.

  12. Having heard the learned Senior Counsel appearing for the parties,  we
      feel that mainly two issues arise for consideration:
      A.    Is the decree executable?
      B.    Was the application for rescission properly decided?

  13. The agreement for sale was executed by the appellants (Defendants 1 to
      8) on 30.07.1980. They received part of the consideration,  viz.,  Rs.
      1,40,000/- as earnest money.  Possession  of  part  of  the  agreement
      schedule property, a garage was parted with. The balance Rs.12,60,000/-
       was to be paid at the time of execution of the sale deed.
That  deed
      could have been executed only  after  obtaining  permission  from  the
      L&DO, Delhi. 
As per the agreement, it was for the  vendors  to  obtain
      that permission from the L&DO on paying the unearned  increase.  
There
      were certain other obligations as  well.
That  the  vendors  actually
      intended to sell the property is clear from the  fact  that  they  had
      approached the L&DO  and  the  L&DO  gave  permission  on  12.11.1981,
      subject to  payment  of  an  amount  of  Rs.7,17,330/-.  
The  unearned
      increase came to be such a large amount  only  because  of  the  delay
      caused by the purchaser in  getting  his  power  of  attorney,  it  is
      alleged. 
The amount was not deposited by the vendors even  during  the
      time extended by the L&DO.

  14. It was in the meanwhile, Rajinder Kumar (petitioner in SLP (Civil) No.
      19215 of 2011) claiming to be the minor son of Din Dayal, filed a suit
      on 15.12.1981 attacking the agreement, claiming his 1/24th  share  and
      for other reliefs. Rajinder Kumar aged 7 years  at  the  time  of  the
      agreement, filed the suit through his maternal grandfather even though
      his mother and natural guardian who is signatory to the  agreement  to
      sale, was very much alive and available. Smelling a rat, the purchaser-
      Kuldeep Singh on 10.01.1982 filed OS No. 1428 of 1981 on the  original
      side of the High Court for specific performance.  At  that  time,  the
      suit filed by Rajinder Kumar was  pending  for  plaintiff’s  evidence.
      Rajinder Kumar was arrayed as Defendant No. 9 in the suit for specific
      performance. For some reason or other, the  defendants  did  not  file
      written statement despite several chances. Hence, the suit was decreed
      as prayed for on 30.04.1984.



  15. For the purposes of easy reference, we may extract the decree as such:
      “(DECREE IN A SUIT FOR SPECIFIC PERFORMANCE AND AWARD OF DAMAGES)


                   IN THE HIGH COURT OF DELHI AT NEW DELHI
                   (Ordinary Original Civil Jurisdiction)


                            Suit No. 280 of 1982


      S. Kuldip Singh son of S. Hara Singh
      Resident of 20, Rajindra Park, New
      Delhi, Through his General Attorney
      S. Harkirat Singh                                        … Plaintiff


                                   Versus
      1.    Sh. Banarsi Dass,
            son of Shri Nand Lal,
            R/o M-49, Greater Kailash-I,
            New Delhi.
      2.    Sh. Dhanpat Rai,
            son of Shri Nand Lal
            resident of E-4, N.D.S.E., Part-I,
            New Delhi.
      3.    Shrimati Gaindo Devi,
            widow of Shri Paras Ram,
            son of Shri Nand Lal,
            Resident of N-21, N.D.S.E., Part-I,
            New Delhi.
      4.    Smt. Sushila Devi,
            widow of late Shri Din Dayal,
            resident of C-3, House Cooperative Society,
            South Extension Part I, New Delhi.
      5.    Shri Mohinder Kumar Gupta,
            son of Shri Din Dayal,
            resident of C-3, House Cooperative Society,
            South Extension Part I, New Delhi.
      6.    Shri Surinder Dayal,
           son of Shri Din Dayal,
            resident of C-3, House Cooperative Society,
            South Extension Part I, New Delhi.


      7.    Shri Narinder Dayal
           son of Shri Din Dayal,
            resident of C-3, House Cooperative Society,
            South Extension Part I, New Delhi.
      8.    Miss. Vijay Lakshmi
            daughter of Shri Din Dayal,
            resident of C-3, House Cooperative Society,
            South Extension Part I, New Delhi.
      9.    Shri Rajinder Kumar (Minor),
            son of Late Shri Din Dayal,
            resident of C-3, House Cooperative Society,
            South Extension Part I, New Delhi-49
      through his legal guardian and Maternal Grand father Shri Nand Kishore
      Mittal,
           son of Shri Sagar Mal Mittal,
           746, Gali Bhagwan, Kotla Mubarakpur,
           New Delhi.                        …Defendants


      Value of the suit for        )
      purposes of jurisdiction     )    Rs. 15,40,000/-
      Court fee paid               …..  Rs. 17,374.40
      Suit filed on                …..  11.2.1982


      CLAIM:      In the event of Defendant  No.9  being  held  to  have  no
      right, title or interest in the property in suit, it is prayed:-


1(A)  A decree for specific performance  of  the  agreement  to  sale  dated
      29/30.7.80 in respect of entire property No.9, Sunder Nagar, New Delhi
      be granted in favour of the plaintiff against the Defendants  1  to  8
      against the total agreed consideration of Rupees Fourteen Lakhs.
(B)   The Defendants 1 to 8 be ordered  to  deliver  the  actual,  physical,
      vacant possession of the said entire property  Bungalow  No.9,  Sunder
      Nagar, New Delhi except one garage, the possession whereof has already
      been delivered to the plaintiff by Defendants 1 to 8 in terms  of  the
      agreement to sale referred to above.
(C)   That Defendants 1 to 8 be ordered  to  deposit  Rs.7,17,330/-  as  the
      unearned increase in the value of the plot  No.9,  Sunder  Nagar,  New
      Delhi, and failing such payment, the plaintiff be allowed  to  deposit
      the said amount in the account of the Defendants1  to  8  out  of  the
      unpaid balance of Rs.12,60,000/-.
(D)   That Defendants 1 to 8 be ordered to pay Rs.1,40,000/- as and  by  way
      of liquidated damages for the breach of contract and the  said  amount
      of Rs.1,40,000/- be allowed to  be  appropriated  out  of  the  unpaid
      balance consideration of Rs.12,60,000/- due and payable  to  the  said
      Defendants 1 to 8.
(E)   That it may also be ordered  that  all  public  dues  payable  by  the
      Defendants 1 to 8 in respect [sic] of the property in suit be paid  by
      the plaintiff in the account of the said Defendants and the amount  so
      paid be allowed to be appropriated out of the  last  mentioned  unpaid
      balance money payable to the Defendants 1 to 8 for conveying the  said
      property to the plaintiff.
(F)   That the Defendants 1 to 8 be required to apply  to  their  respective
      Income-Tax  Officers  and   to   obtain   the   respective   Clearance
      Certificates for the sale of the property in favour of the  plaintiff.
      It may further be ordered that if Defendants 1 to 8  or  any  of  them
      neglects to apply to  their  Income-Tax  Officers  for  obtaining  the
      necessary Clearance Certificates for the sale of  the  said  property,
      then an officer of this Hon’ble Court  do  make  such  application  on
      behalf of the concerned Defendants 1 to 8 and all costs  of  the  said
      applications as also any amounts demanded by the Taxation  authorities
      for issue of the requisite Clearance Certificates  be  ordered  to  be
      deducted out of the said amount of  Rs.12,60,000/-  and  incase  of  a
      short fall a decree for the additional amount involved  by  passed  in
      favour of the plaintiff against the Defendants  1  to  8  jointly  and
      severally.
(G)   That the Defendants 4 to 8 be required  to  produce  the  Estate  Duty
      Clearance Certificate in respect of  the  conveyance  of  one  quarter
      undivided right, title and interest in the  said  property  previously
      belonging to Shri Din Dayal, the deceased husband  of  Defendant  No.4
      and father of Defendants 5 to 8. It may also be ordered that  in  case
      Defendants 4  to  8  neglect  to  obtain  the  Requisite  Estate  Duty
      Clearance Certificate, then an Officer of this Hon’ble Court do  apply
      for the grant of the said Estate Duty Clearance Certificates on behalf
      of Defendants 4 to 8 and all costs of such applications  as  also  the
      payment of any dues demanded by the Estate Duty Officer be allowed  to
      be deducted out of the balance consideration money,  if  any,  in  the
      hands of the plaintiff  and  in  the  event  of  the  plaintiff  being
      required to pay any amount to the Taxation authorities, then a  decree
      for a like amount be  passed  in  favour  of  the  plaintiff  and  the
      Defendants 1 to 8.
(H)   That Defendants 1 to 8 be also required to pay all  the  public  dues,
      lease money, and misuse charges, if any pertaining to  Bungalow  No.9,
      Sunder Nagar, New Delhi, and if they fail to do so, then the plaintiff
      be required to pay all such dues, and a decree for a  like  amount  be
      passed in favour of the plaintiff against Defendants 1  to  8  jointly
      and severally.
(I)   That the Defendants 1 to 8 be ordered to hand over all the  antecedent
      original title deeds of the property No.9, Sunder Nagar, New Delhi  to
      the plaintiff.
(J)   That pending the completion of all  the  jobs  to  be  undertaken  and
      completed by the Defendants 1 to 8 as detailed above, the plaintiff be
      allowed to deposit final balance amount if any, payable  by  the  said
      Defendants 1 to 8 in this Hon’ble Court and the said  balance  may  be
      ordered to be released to the Defendants 1 to 8 only after  they  have
      fully complied with their part of the contract,  as  decreed  by  this
      Hon’ble Court.
II.   That in the event of this Hon’ble court deciding that for  any  reason
      whatsoever a decree for specific performance is not to be  allowed  to
      the plaintiff (which is not expected ):-

      Then in the alternative:

      A decree for the refund of Rs.1,40,000/-  alongwith  interest  thereon
      at Rs.1.25 paise percent per month or part of a month from the date of
      payment viz. 30.7.80 to the date of receipt by the plaintiff be passed
      in favour of the plaintiff against the Defendants 1 to 8  jointly  and
      severally and the said  Defendants  may  further  be  ordered  to  pay
      Rs.11,00,000/- for breach of contract to the plaintiff as and  by  way
      of damages, and the same be decreed accordingly.
III.(A)That in the event that this Hon’ble Court holds that  Defendant  No.9
      is the owner of an undivided 1/24th right, title and interest  in  the
      said property, then a decree for specific performance of the agreement
      to sale dated 29/30.7.80 in respect of  an  undivided  23/24th  right,
      title and interest in the said property No.9, Sunder Nagar, New  Delhi
      belonging to Defendants 1 to 8 be granted in favour of  the  plaintiff
      against the  Defendants  against  the  payment  of  the  agreed  total
      consideration of Rs.14,00,000/-.
(B)   That the  Defendants  1  to  8  be  ordered  to  deliver  the  actual,
      physical,  joint  possession  of  the  said  entire  property  to  the
      plaintiff and Defendant No.9 jointly except one garage, the possession
      whereof has already been delivered to the plaintiff by Defendants 1 to
      8 in terms of the agreement to sale referred to above.
(C)   That Defendants 1 to 8 be ordered to pay  Rs.7,17,330/-  to  the  Land
      and Development Officer as the unearned increase in the value  of  the
      plot No.9, Sunder Nagar, New Delhi, as also the other dues demanded by
      the said Officer, and in case the Defendants neglect to pay  the  said
      amounts then the plaintiff be permitted to pay the  above  amounts  in
      the account of Defendants 1 to 8 and to deduct the  same  out  of  the
      unpaid balance of Rs.12,60,000/-.
(D)   That Defendants 1 to 8 be ordered to pay Rs.1,40,000/- as and  by  way
      of liquidated damages for the breach of contract and the  said  amount
      of Rs.1,40,000/- be allowed to  be  appropriated  out  of  the  unpaid
      balance consideration of Rs.12,60,000/- due and payable  to  the  said
      Defendants 1 to 8.
(E)   That it may also be ordered  that  all  public  dues  payable  by  the
      Defendants 1 to 8 in respect of the property in suit be  paid  by  the
      plaintiff in the account of the said Defendants 1 to 8 and the  amount
      so paid be allowed to be appropriated out of the last mentioned unpaid
      balance money payable to the Defendants 1 to 8 for conveying the  said
      property to the plaintiff.
(F)   that the Defendants 1 to 8 be required to apply  to  their  respective
      Income Tax Officers and to obtain Clearance Certificate for  the  sale
      of the property in favour of the plaintiff. It may further be  ordered
      that if Defendants 1 to 8 or any of them neglect  to  apply  to  their
      Income Tax Officers for obtaining the necessary Clearance  Certificate
      for sale of the said property, then an officer of this  Hon’ble  Court
      do make such applications on behalf of the concerned Defendants 1 to 8
      and all costs for the making of the  said  applications  as  also  any
      amounts  demanded  by  the  Taxation  authorities  for  issue  of  the
      requisite Clearance Certificates be ordered to be deducted out of  the
      said amount of Rs.12,60,000/- and in case of a short fall a decree for
      the additional amount involved be passed in favour  of  the  plaintiff
      against the Defendants 1 to 8 jointly and severally.
(G)   That the Defendants 4 to 8 be required  to  produce  the  Estate  Duty
      Clearance Certificate in respect  of  the  Conveyance  of  one-quarter
      undivided right, title and interest in the  said  property  previously
      belonging to Shri Din Dayal, the deceased husband of  Defendant  No.4,
      and father of Defendants 5 to 8. It may also be ordered that  in  case
      Defendants 4 to 8 or any of them,  neglect  to  obtain  the  requisite
      Estate Duty Clearance Certificate, then an  officer  of  this  Hon’ble
      Court do apply for  the  grant  of  the  said  Estate  Duty  Clearance
      Certificate on behalf of the Defendants 4 to 8 and all costs  of  such
      applications as also the payment of any dues demanded  by  the  Estate
      Duty  Officer  be  allowed  to  be  deducted  out   of   the   balance
      consideration money, if any, in the hands of the plaintiff and in  the
      event of there being a short fall, the plaintiff be  required  to  pay
      the requisite amount to the Taxation authorities and a  decree  for  a
      like  amount  be  passed  in  favour  of  the  plaintiff  against  the
      Defendants 1 to 8, jointly and severally.
(H)   That the Defendants 1 to 8 be ordered to hand over  all  the  original
      title deeds of the property No.9,  Sunder  Nagar,  New  Delhi  to  the
      plaintiff.
(I)   That pending the completion of all  the  jobs  to  be  undertaken  and
      completed by Defendants 1 to 8, the plaintiff be  allowed  to  deposit
      the final balance amount, if any, payable to the  Defendants  in  this
      Hon’ble court and the said balance may be ordered to  be  released  to
      the Defendants 1 to 8 only after they have fully complied  with  their
      part of the contract as decreed by this Hon’ble Court.
(J)   The costs of the suit may also be awarded, to  the  plaintiff  against
      the Defendants 1 to 8.

                                                      30th day of April 1984
      CORAM:
                  Hon’ble Mr. Justice Yogeshwar Dayal


      For the Plaintiff             : Mr. S. R. Bhagat, Advocate.
      For the Defendants   : Mr. G.L. Rawal, Advocate
                                for Deft. No.9.
            The suit coming on this day for final disposal before this Court
      in the presence of counsel for the parties as aforesaid; it is ordered
      that a decree as prayed by the plaintiff and the same is hereby passed
      in favour of the plaintiff and against the Defendants 1 to 8 only.
            It is lastly ordered that Defendants 1 to 8 herein do pay to the
      plaintiff herein the cost of  the  suit  incurred  by  the  latter  as
      Rs.18,028.75p (Rs. Eighteen Thousand Twenty Eight  and  Paise  Seventy
      Five only) as taxed by the Taxing Officer of this court and  noted  in
      the margin of this decree.
            Given under my hand and the seal of the court this the 30th  day
      of April, 1984.
                                                                         Sd/
                                                              Dy. Registrar”



  16. Appeal was dismissed as  time  barred.  A  few  months  thereafter  an
      Application under Order IX Rule 13 of Code of  Civil  Procedure,  1908
      was filed for  setting  aside  the  ex  parte  decree.  That  too  was
      dismissed. It appears the vendors lost all hope  and  left  things  as
      they were at that stage. It is seen from the pleadings  that  attempts
      were also made for an out of court settlement, but in vain.

  17.  We do not think that the vendors would be justified in setting up any
      defence on executability of the decree both on law and  facts  of  the
      case. At the risk of redundancy, on referring to the facts, it can  be
      seen that the vendors had in fact wanted to fructify the agreement for
      sale. Having received the advance amount of  Rs.1,40,000/-,  they  had
      parted possession of a part of the property, viz.,  garage.  They  had
      jointly made an application to the L&DO in terms of the agreement, for
      permission to transfer the property. The L&DO did grant the permission
      but on condition of deposit of an amount of Rs.7,17,330/- towards  the
      unearned increase, which is more than 50% of the  sale  consideration.
      The value of the property had shot up by that time. It is pertinent to
      note that as per the original agreement, the unearned increase was  to
      be paid by the vendors. On account  of  the  escalation,  it  appears,
      their hearts started burning and they were extremely reluctant to part
      with the property. Their attempts thereafter have always been, one way
      or the other, to delay, if not deny, their obligation  for  conveyance
      of the property.

  18. The main contention of the vendors is that that there is no decree  in
      terms of Section 2 (2) of the Code of Civil  Procedure,  1908  because
      there is no formal expression of adjudication and the  court  has  not
      conclusively determined the rights of the parties. But it  has  to  be
      seen that the vendors did not contest the  suit.  They  had  not  even
      filed a written statement. In that context only, the suit was  decreed
      as prayed for.  In  the  Judgment  dated  30.04.1984,  the  Court  has
      referred to the averments in the plaint. The  opening  and  concluding
      sentences of the Judgment read as follows:
      “Plaintiff, S. Kuldeep Singh has filed the present suit  against  Shri
      Banarsi Dass and 8 others for specific performance of an agreement  to
      sell dated 29/30th July 1980. The  agreement  relates  to  plot  No.9,
      Block No.171 in the layout plan of the New Capital of Delhi, now known
      as Bungalow No.9, Sunder Nagar, New Delhi. …

                         xxx   xxx   xxx  xxx   xxx

           However, since  the  Defendants  have  failed  to  file  written
      statement, as directed in  my  order  dated  15th  February,  1984,  I
      proceed to pronounce the judgment under the provisions of order 8 rule
      10 of the Code of Civil Procedure and decree the suit of the plaintiff
      as prayed for with costs against Defendants 1 to 8 only as there is no
      relief prayed against Defendant No.9.”




  19. Having referred to  the  entire  contentions  of  the  plaintiff,  the
      Judgment was pronounced under Order VIII Rule 10 of the Code of  Civil
      Procedure, 1908 since there was no written statement.  The  Court  has
      taken the position that the defendants  had  failed  to  file  written
      statement. Therefore, the Court, in the facts of the  case,  opted  to
      pronounce the Judgment, under Order VIII Rule 10 of the Code of  Civil
      Procedure, 1908 and draw the decree accordingly.

  20. No doubt, the decree passed under Order VIII Rule 10 of  the  Code  of
      Civil Procedure, 1908 is an ex parte decree. But merely because it  is
      an ex parte decree, the same does not cease to have the force  of  the
      decree. It is a valid decree for all purposes.

  21. It is also worthwhile to note that the Judgment was  pronounced  under
      the pre-amended Rule  10  under  Order  VIII  of  the  Code  of  Civil
      Procedure, 1908 and there was more discretion with the Court regarding
      pronouncement of the Judgment in the  absence  of  written  statement.
      Still further, it is to  be  noted  that  Rule  10  speaks  about  the
      requirement of written statement indicating  thereby  that  there  are
      cases where written  statement  was  required  to  be  filed.  Written
      statement is the defense of the defendants. They chose not to file it.
      Despite the absence of such defense, the court still applied its  mind
      and after referring to the pleadings, pronounced a  Judgment  allowing
      the suit for specific performance. Though the Judgment says  that  the
      suit is decreed as prayed for and though all  the  prayers  have  been
      incorporated in the decree, it is to be noted that the suit is one for
      specific performance of the agreement. The suit that has been  decreed
      is the suit for specific performance of the agreement. Once the decree
      for specific performance attained  finality,  they  cannot  thereafter
      turn  round  and  make  weak  and  lame  contentions   regarding   the
      executability of the decree.

  22. If the suit for specific performance is not  decreed  as  prayed  for,
      then alone the question of any reference  to  the  alternative  relief
      would arise. Therefore, there is no question of any ambiguity. As held
      by this Court in
Topanmal Chhotamal v. Kundomal Gangaram and Others[3]
      and consistently followed thereafter, even if there is any  ambiguity,
      it is for the executing court to  construe  the  decree  if  necessary
      after referring  to  the  Judgment.  If  sufficient  guidance  is  not
      available even from the Judgment, the Court is even free to  refer  to
      the pleadings so as to construe the true  import  of  the  decree.  No
      doubt, the court cannot go behind the decree or beyond the decree. But
      while executing a decree for specific performance, the Court, in  case
      of any ambiguity, has necessarily to construe the decree so as to give
      effect to the intention of the parties. 
Thus, there is no question  of
      any alternate relief regarding the damages etc. in  the  present  case
      since the suit for the specific performance for the conveyance of  the
      property has been decreed.

  23. There is no case that the court does not have jurisdiction to pass the
      decree. Nor is there any case that the decree is a nullity on  account
      of any jurisdictional error. Hence, the decree is executable  for  all
      intents and purposes but limited to the shares  of  the  vendors.  The
      claim of Rajinder Kumar would depend on the  outcome  of  the  pending
      suit.

  24. Now we shall deal with the issue regarding the approach  of  the  High
      Court in dealing with the application for rescission. Apparently,  the
      purchaser-Kuldeep Singh was also not quite  serious  in  pursuing  the
      cause.
Though the decree is dated 30.04.1984, the  execution  petition
      was filed only after six and a half years, on 07.11.1990. No doubt, it
      was within the time prescribed by  the  law  of  limitation.  But  the
      efflux of time assumes importance and seriousness in the background of
      the escalation of price in real estate.

  25. It is very strange that no  serious  steps  have  been  taken  by  the
      executing court for almost a decade. While  so,  only  on  24.04.1999,
      respondents 3 to 7 and 13 filed Application – IA No. 4274 of  1999  in
      the suit for rescinding the agreement for sale.
The main ground  taken
      in the Application for  rescission  of  the  agreement  was  that  the
      plaintiff/purchaser failed to deposit  the  balance  consideration  of
      Rs.12,60,000/-. It was also contended that between the date of  decree
      in 1984 and the date of filing the Application  for  rescission,  even
      the notified rates in land value shot up from  Rs.2,000/-  per  square
      yard to Rs.13,860/- per square meter and the unearned  increase  would
      be around  Rs.50,00,000/-  and,  thus,  it  would  be  highly  unjust,
      unconscionable and inequitable to  compel  the  vendors  to  make  the
      payment of the unearned increase.
It was also averred that the vendors
      were prepared to pay a reasonable compensation to the  purchaser.
The
      purchaser-Kuldeep Singh in response to the Application for rescission,
      stated that the court had not  fixed  any  time  for  deposit  of  the
      balance amount, the balance amount was payable only on  the  execution
      and registration of  the  conveyance  deed. 
 He  also  contended  that
      execution was possible only on permission from the L&DO on payment  of
      unearned increase by the vendors and for  which  the  vendors  are  at
      fault in not having  taken  any  serious  steps  in  completing  their
      obligations under the decree; and that the purchaser had  always  been
      ready and willing to perform his part of the agreement.

  26. By Order dated 23.02.2000, the  learned  Single  Judge  dismissed  the
      applications holding that the purchaser was not  at  fault  either  in
      having done something or in not having done something which  stood  in
      the way of the execution of the decree. On the contrary,  it  was  the
      vendors who did not perform their duties in  the  sequence  of  events
      prior to and leading to the registration of the sale deed.  In  short,
      it was held that the vendors having not  performed  their  obligations
      under the agreement, they could not approach the court for  rescinding
      the agreement on the ground that the purchaser had not  deposited  the
      balance amount.

  27. It is extremely important and crucially  relevant  to  note  that  the
      court did not advert to one of  the  main  contentions  regarding  the
      escalation in land value  by  which  the  vendors  had  to  incur  the
      liability of around four times the balance  consideration  by  way  of
      payment of unearned increase to the L&DO so as to complete  their
      obligation. It is pertinent also to note that the said  unconscionable
      liability for the  vendors  arose  only  on  account  of  the  delayed
      execution of the decree.

  28. It is significant to note that during the pendency of the appeals, the
      purchaser sought permission  of  the  court  to  deposit  the  balance
      consideration  and,  on  06.01.2010,  the  same   was   granted.   He,
      accordingly, deposited some amounts towards the liability of  unearned
      income also.

  29. It appears from the Order dated 06.01.2010 in FAO (OS) No. 66 of  2002
      that only oral submissions  were  made  for  the  deposit  of  balance
      consideration, by the respondent-Kuldeep Singh.  For  the  purpose  of
      ready reference, we may extract the Order as such:
      “Learned counsel for Respondent No.1 (Kuldeep  Singh)  says  that  the
      balance consideration in terms of the contract  entered  into  between
      the parties will be deposited by his client on or before 11th January,
      2010. Learned counsel for Respondent No.1 also says that the  unearned
      increase that is required to be calculated by the L and DO has not yet
      been so calculated but his client is prepared to deposit an amount  of
      Rs. 10 lakhs on account in this regard. This amount will be  deposited
      with the Registrar General of this Court on or  before  11th  January,
      2010.

            List for directions on 12th January, 2010.

      Arguments have been heard and concluded and judgment is reserved.  The
      matter is listed on 12th January, 2010 only for compliance with regard
      to the deposit.”




  30. We have referred to above development to keep in mind one  significant
      and important aspect of the matter that the vendors  did  not  get  an
      opportunity to make their response to the oral submission made by  the
      purchaser with regard to deposit of the balance  consideration,  after
      passage of around 26 years after the decree.

  31. Having regard to the facts and circumstances which we  have  discussed
      above, we are afraid the High Court has not made an attempt to balance
      equity. As in the case of a  decree  for  specific  performance  where
      equity weighs with the court so is the  situation  in  considering  an
      application under Section 28 of the  Specific  Relief  Act,  1963  for
      rescinding  the  contract.  Under                Section  28  of   the
      Specific Relief Act, 1963, a vendor is free  to  apply  to  the  Court
      which made decree to have the contract rescinded in case the purchaser
      has not paid the purchase money or  other  sum  which  the  Court  has
      ordered him to pay within the period allowed by  the  decree  or  such
      other period as the court may allow. On such an application, the Court
      may, by order, rescind the contract “as the justice of  the  case  may
      require”. It is now settled law that a suit for  specific  performance
      does not come to an end on passing of a decree  and  the  Court  which
      passed the decree retains control  over  the  decree  even  after  the
      decree has been passed and the decree is sometimes  described  as  the
      preliminary decree.

  32. In Hungerford Investment Trust Limited (In Voluntary  Liquidation)  v.
      Haridas Mundhra and Others[4], it has been held that:
      “22. It is settled by a long course of decisions of  the  Indian  High
      Courts that the Court which passes a decree for  specific  performance
      retains control over the decree even after the decree has been passed.
      In Mahommadalli Sahib  v.  Abdul  Khadir  Saheb (1930)  MLJ  Vol.  59,
      p.351 it was held that the Court which passes a  decree  for  specific
      performance has the power to extend the time fixed in the  decree  for
      the reason that Court  retains  control  over  the  decree,  that  the
      contract between the parties is not extinguished by the passing  of  a
      decree  for  specific  performance  and  that  the  contract  subsists
      notwithstanding the passing of the decree. …”
                                                         (Emphasis supplied)



  33. The discretionary power vested in court by
Section 28 of the  Specific Relief Act, 1963 is intended to apply in such circumstances:
      “The effect of this provision is to empower the court which passed the
      decree for specific performance to rescind the contract and set  aside
      the decree which it has passed earlier  if  the  successful  plaintiff
      failed to comply with the terms of the decree by making payment of the
      purchase money or other sums which the court ordered him to pay. …[5]”
                                                         (Emphasis supplied)




  34. The decree for specific performance is a decree in favour of both  the
      plaintiff and the defendant in the suit, as  held  by  this  Court  in
      Hungerford Investment Trust Limited case (supra).  Hence,  the  decree
      can be executed either by the plaintiff or the defendant.

  35. The plaintiff or the defendant is also free to approach the court  for
      appropriate clarification/directions in the event of any ambiguity  or
      supervening factors making the execution of the  decree  inexecutable.
      To quote Fry (ibid) (please see Pages-546-548):
     “1170. It may and not unfrequently does happen that after judgment has
     been given for the specific performance of a  contract,  some  further
     relief becomes necessary, in  consequence  of  one  or  other  of  the
     parties making default in the performance  of  something  which  ought
     under the judgment to be performed by him or on his  part  ;  as,  for
     instance, where a vendor refuses or in  unable  to  execute  a  proper
     conveyance of the property, or a purchaser to pay the  purchase-money.
     The  character  of  the  consequential  relief  appropriate   to   any
     particular case will of course vary according to  the  nature  of  the
     subject-matter of the contract and the position  which  the  applicant
     occupies in the transaction; but in every case the  application  must,
     under the present practice, be made only to the  Court  by  which  the
     judgment was pronounced, and the  multiplicity  of  legal  proceedings
     which sometimes occurred before the fusion of the jurisdictions of the
     Courts of Chancery and Common Law is now practically impossible.

     1171. There are two  kinds  of  relief  after  judgment  for  specific
     performance of which either party to the contract  may,  in  a  proper
     case, avail himself.

     1172.(i.) He may obtain (on motion in the action) an order  appointing
     a definite time and place for completion of the contract by payment of
     the unpaid purchase-money and delivery over of the executed conveyance
     and title-deeds, or a period  within  which  the  judgment  is  to  be
     obeyed, and, if the other party fails to obey the order, may thereupon
     at once issue a writ of sequestration against the  defaulting  party’s
     estate and effects. Furthermore, if the default was in the payment  of
     money, the plaintiff may issue his fi.fa. or elegit: if  in  some  act
     other than or besides the payment of money, he may move, on notice  to
     the defaulter, for a writ of attachment against him. Indeed, in a case
     where a person who had agreed to accept  a  lease  would  not,  though
     ordered by the Court to do so, execute the lease, it was held that  an
     attachment was the only means to which  the  Court  could  resort  for
     enforcing such execution.



     1173. (ii.) He may apply to the Court (by motion in the action) for an
     order rescinding the contract. On an application of this kind,  if  it
     appears that  the  party  moved  against  has  positively  refused  to
     complete the contract, its  immediate  rescission  may  be  ordered  :
     otherwise, the order will be for rescission in default  of  completion
     within a limited time. And where a deposit has been paid, and there is
     no condition of the contract determining, expressly or impliedly, what
     is to be done with it in the event of such  a  rescission,  the  Court
     will decline to order the deposit  to  be  returned  to  a  defaulting
     purchaser. An order for the defendant to pay  the  plaintiff’s  costs,
     and  a  stay  of  further  proceedings  in  the  action,  except  such
     proceedings as may be necessary for  recovery  of  the  costs  of  the
     action and the costs of the motion,  may  also  be  obtained  on  this
     application. A vendor plaintiff is not debarred  from  moving  for  an
     order for rescission by the  fact  that  the  judgment  at  the  trial
     contained a declaration of his vendor’s lien, and gave him liberty  to
     apply as to enforcing it.

      In some cases the order has  expressly  excepted  from  the  stay  of
     proceedings any application to the Court to award and  assess  damages
     sustained by the plaintiff’s by reason or in consequence of the breach
     of contract. In Henty v. Schroder (12 Ch.D.666), however, Jessel  M.R.
     declined to make this exception, consider that  the  plaintiffs  could
     not at the same time obtain an order to have  the  contract  rescinded
     and claim damages for the breach of it. If this be so, it  would  seem
     that in many cases the Court must fail to give the plaintiff the  full
     measure of relief requisite for replacing him in the position in which
     he stood before the contract,-the repayment, for instance, of expenses
     incurred by him in showing his title.”

                                                         (Emphasis supplied)

  36. Dealing with a  situation  where  deterioration  takes  place  by  the
      conduct, according to Fry (ibid) (please see Page 654):
      “1431. If, after the contract and before the purchaser takes, or ought
      to take, possession, any deterioration take place by  the  conduct  of
      the vendor or his tenants, he  will  be  accountable  for  it  to  the
      purchaser. “He is not entitled to treat the estate as his own.  If  he
      willfully damages or injures it, he is liable to the purchaser  ;  and
      more than that, he is liable if he does not take  reasonable  care  of
      it.” And this liability may  be  enforced  by  action,  even  after  a
      conveyance made in ignorance of the facts.


      1432. Where a purchaser had paid his money into Court under an  order,
      and was held entitled to compensation  for  deterioration,  which  had
      taken place while the vendors retained possession, he was allowed  the
      amount out of his purchase-money, with interest at 4  per  cent.,  and
      the costs of an issue to ascertain the amount of damage.”
                                                         (Emphasis supplied)




  37. In the instant case, converse is the position.  If  the  purchaser  is
      entitled to claim compensation for deterioration,           a fortiori
      it must be held that vendor should also be  entitled  to  compensation
      for accretion in value of the subject  matter  of  the  agreement  for
      specific performance, in case the execution thereof is unduly  delayed
      by the purchaser. Section 28 of the Specific Relief Act provides  that
      the court has to pass an order as the justice of the case may require.
      Justice is not an abstract proposition. It is a concrete reality.  The
      parties on approaching the court must get the feeling that justice has
      been done in the facts and circumstances of the case, particularly  in
      specific performance related cases, in terms of equity,  equality  and
      fairness.

  38. In the facts and circumstances of the case, it is  very  difficult  to
      balance the equity and balance the rights of both the parties  in  the
      background of their conduct. No doubt there was no time fixed  in  the
      agreement for payment of the purchase money. That was also  contingent
      on a series of obligations to be performed by the vendor and the  duty
      of the purchaser to pay the purchase money was only thereafter. But if
      we closely analyze the pleadings and submissions, we can see that  the
      purchaser had made an  attempt,  though  belatedly,  for  getting  the
      obligations performed even at his expense.

  39. The plaintiff purchaser very well knew  that  the  vendors  have  been
      delaying the performance of their obligation under the  agreement  and
      things were getting complicated. It was open to the plaintiff, in such
      circumstances, to file an application, rather he ought to  have  filed
      an application in court on the original side for appropriate direction
      with regard to the payment of purchase money and for other  procedural
      formalities.  Despite  the  application  filed  by  the   vendor   for
      rescission of the agreement in 1999,  for  the  first  time,  an  oral
      prayer was made by the purchaser before the court for the  deposit  of
      balance of purchase money only in the year 2010. That too  was  merely
      an  oral  submission.  Consequently,  the  defendants  never  had   an
      opportunity to  respond  to  the  same  or  contest  the  proposition.
      Therefore, it  is  abundantly  clear  that  in  the  peculiar  factual
      background of this case, the plaintiff purchaser was also at fault  in
      not taking prompt steps.

  40. In this context, one more reference  to  Hungerford  Investment  Trust
      Limited (supra) would be relevant:
      “25. It was contended on behalf of Mundhra that he  was  always  ready
      and willing to pay the purchase money, but since the  decree  did  not
      specify any time for payment of the money, there was no default on his
      part. In other words, the contention was that since the decree did not
      specify a time within which the purchase money  should  be  paid  and,
      since an application for fixing the time was made by the appellant and
      dismissed by the Court, Mundhra cannot be said to have been in default
      in not paying the purchase money so that the Appellant might apply for
      rescission of the decree. If a contract does not specify the time  for
      performance, the Law will imply that the  parties  intended  that  the
      obligation under the contract should be performed within a  reasonable
      time. Section 46 of  the  Contract  Act  provides  that  where,  by  a
      contract, a promiser is to perform his promise without application  by
      the promise, and no time for performance is specified, the  engagement
      must be performed within a reasonable time and the question  "what  is
      reasonable time" is, in each particular case, a question of fact. ...”
                                                         (Emphasis supplied)



  41. Analyzing the conduct of the vendors-defendants also, one can see that
      they are equally at fault. In the contract,  no  time  was  fixed  for
      payment and, therefore, the purchaser was obliged to pay the  purchase
      money within a reasonable time. Owing to the laches or lapses  on  the
      part of the parties in case there is  any  insurmountable  difficulty,
      hardship or, on account of  subsequent  development,  any  inequitable
      situation had arisen, either party was free to approach the court  for
      appropriate direction. Though the suit was decreed in  the  year  1984
      and execution petition filed in 1990, the application  for  rescission
      was filed only in the year 1999.

  42. In Nirmala Anand v. Advent Corporation (P) Ltd. and Others[6], it  has
      been held by this Court:

      “6.   It is true that grant of decree of specific performance lies  in
      the discretion of the court and it is also well settled that it is not
      always necessary to grant specific performance simply for  the  reason
      that it is legal to do so. It is further well settled that  the  court
      in its  discretion  can  impose  any  reasonable  condition  including
      payment of an additional amount  by  one  party  to  the  other  while
      granting or refusing  decree  of  specific  performance.  Whether  the
      purchaser shall be directed to pay an additional amount to the  seller
      or converse would depend upon the facts and circumstances of  a  case.
      Ordinarily, the plaintiff is not to be denied the relief  of  specific
      performance only on account of the phenomenal increase of price during
      the pendency of litigation. That may be, in a given case, one  of  the
      considerations besides many others to be taken into consideration  for
      refusing the decree of specific performance. As  a  general  rule,  it
      cannot be held that ordinarily the  plaintiff  cannot  be  allowed  to
      have, for her alone, the entire benefit of phenomenal increase of  the
      value of the property during the pendency  of  the  litigation.  While
      balancing the equities, one of the consideration to be kept in view is
      as to who is the defaulting party. It is also  to  be  borne  in  mind
      whether a party is trying to take undue advantage over  the  other  as
      also the hardship that may be caused to the defendant by directing the
      specific performance.  There  may  be  other  circumstances  on  which
      parties may not have any control. The totality of the circumstances is
      required to be seen.”
                                                         (Emphasis supplied)



      In the above case, this Court balanced the equity by directing payment
of Rs.6,25,000/- in the place of Rs.25,000/-.

  43. In Satya Jain (Dead) Through Lrs. and Others  v.  Anis  Ahmed  Rushdie
      (Dead) Through Lrs. and Others[7], it has been held that:
      “38. The ultimate question that has now to be considered  is:  whether
      the plaintiff should be held to be entitled to a decree  for  specific
      performance of the agreement of 22-12-1970?


           39. The long efflux of time (over 40 years)  that  has  occurred
      and the galloping value of real estate in the meantime  are  the  twin
      inhibiting factors in this regard.  The  same,  however,  have  to  be
      balanced with the fact that the plaintiffs are in no  way  responsible
      for the delay that has occurred and their keen  participation  in  the
      proceedings till date show the  live  interest  on  the  part  of  the
      plaintiffs to have the agreement enforced in law.


           40.  The  discretion  to  direct  specific  performance  of   an
      agreement and that  too  after  elapse  of  a  long  period  of  time,
      undoubtedly, has to be exercised on sound,  reasonable,  rational  and
      acceptable principles. The parameters for the exercise  of  discretion
      vested by Section 20 of  the  Specific  Relief  Act,  1963  cannot  be
      entrapped within any precise expression of language and  the  contours
      thereof will always depend on the  facts  and  circumstances  of  each
      case. The ultimate guiding test would be the  principles  of  fairness
      and reasonableness as may be dictated by the  peculiar  facts  of  any
      given case, which features the experienced judicial mind can  perceive
      without any real difficulty. It must however be emphasized that efflux
      of time and escalation of price of property, by itself,  cannot  be  a
      valid ground to deny the relief of specific performance. Such  a  view
      has been consistently adopted by this Court. By  way  of  illustration
      opinions rendered in P.S. Ranakrishna Reddy v. M.K.  Bhagyalakshmi[8]:
      and more recently in Narinderjit Singh v. North Star Estate  Promoters
      Ltd.[9] may be usefully recapitulated.


           41. The twin inhibiting factors identified above if  are  to  be
      read as a bar to the grant of a decree of specific  performance  would
      amount to penalizing the plaintiffs for no fault  on  their  part;  to
      deny them the real fruits  of  a  protracted  litigation  wherein  the
      issues arising are  being  answered  in  their  favour.  
From  another
      perspective it may also indicate the inadequacies of the law  to  deal
      with the long delays that, at times, occur while rendering  the  final
      verdict in a given case. 
The aforesaid  two  features,  at  best,  may
      justify award of additional compensation to the vendor by grant  of  a
      price higher than what had been  stipulated  in  the  agreement  which
      price, in a given case, may even be the market price as on date of the
      order of the final Court.”
                                                         (Emphasis supplied)


  44. The circle rate  of  the  residential  property  based  on  which  the
      unearned increase is calculated  by  the  L&DO,  would  show  a  sharp
      increase during the period. Sunder  Nagar  comes  under  Category  ‘A’
      colonies. Under the  Delhi  Stamp  (Prevention  of  Undervaluation  of
      Instruments) Rules, 2007, the notified circle rate  for  Category  ‘A’
      colonies from July 2007 was Rs.43,000/-  per  square  meter  and  from
      February 8, 2011, it was Rs.86,000/- per square meter.  From  November
      16, 2011, it was Rs.2,15,000/- per square meter and  from  January  5,
      2012, it is Rs.6,45,000/- per square meter.

  45. In the peculiar facts and circumstances of the case,  we  are  of  the
      view that the trial court should have passed an equitable order  while
      considering the application for rescission.  Having regard to the fact
      that the decree was passed in 1984, we feel that it  would  be  unjust
      and unfair to relegate the parties to the trial court at this distance
      of time. For doing complete justice to the parties, we are of the view
      that it is a case where the purchaser should be directed  to  pay  the
      land value to the vendors as per the  circle  rate  notified  for  the
      residential  property  in  Category  ‘A’  colonies  prevailing  during
      November 16, 2011 to January 5, 2012, at the rate of Rs.2,15,000/- per
      square meter. The purchaser shall also be liable to meet the liability
      arising by way of unearned  increase  to  be  paid  to  the  Land  and
      Development Office. He is free to withdraw the  amounts  deposited  by
      him in the court as per order dated 06.01.2010.  It  is  also  ordered
      that in case the plaintiff does not deposit the amount to be  paid  to
      the vendors within three months from today, the vendors shall  deposit
      in court within two months thereafter the amount calculated as per the
      circle rate referred to above by way of compensation to be paid to the
      purchaser, and in which event, they shall stand  discharged  of  their
      obligations under the contract and the decree. In  the  event  of  the
      purchaser depositing the amount as above,  the  execution  proceedings
      shall be finalized within another one month. The Court  in  seisin  of
      the Suit OS No. 1428 of 1981 shall dispose of the  same  within  three
      months from today.

  46. The Appeal filed by  Rajinder  Kumar  [arising  out  of  SLP  (C)  No.
      19215/2011] is dismissed and the other Appeals are partly  allowed  as
      above. There is no order as to costs.


                                                        .……………………….…..…………J.
                                    (CHANDRAMAULI KR. PRASAD)



                                                       …………...……..……………………J.
                                     (KURIAN JOSEPH)
New Delhi;
February 07, 2014.
-----------------------
[1]    FRY A Treatise on the Specific Performance of Contracts  by  The  Rt.
Hon. Sir Edward Fry, Sixth Edition, see Paragraph 62, at page 29.
[2]    Concise Oxford English Dictionary, 10th Edition.
[3]    AIR 1960 Supreme Court 388 – Paragraph 4- “At the  worst  the  decree
can be said to be ambiguous. In such a case it is the duty of the  executing
Court to construe the decree. For the  purpose  of  interpreting  a  decree,
when its terms are ambiguous, the Court would certainly be entitled to  look
into the pleadings and the Judgment. …”
[4]    (1972) 3 SCC 684.
[5]    Pollock & Mulla, The Indian Contract and Specific Relief  Acts,  14th
Edition, Page 2064.
[6]    (2002) 8 SCC 146
[7]    (2013) 8 SCC 131
[8]    (2007) 10 SCC 231
[9]    (2012) 5 SCC 712

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                                                                  REPORTABLE



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