LAW FOR ALL : 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

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.
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[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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