Jayalakshmi v. Anil Kumar — 1996 DIGILAW 63 (KER)

Judgment :- Mohammed, J. This is an appeal arising from a suit for specific performance of an agreement of sale. The plaintiffs in the suit O.S.No. 327 of 1991 on the file of the Principal Sub Court, N. Parur, is the appellant. The defendants in the suit are the respondents. This appeal is against the judgment and decree dismissing the above suit. 2. The basic facts involved in the appeal can be capsulated thus: The agreement sought to be enforced in the suit is Ext. Al dated 30-9-1990 executed between the appellant and respondents. By Ext. Al the respondents had agreed to sell the plaint schedule properties in favour of the appellant at the rate of Rs. 1,500/-- per cent, within a period of six months from the date of agreement after satisfying the conditions stipulated therein. The respondents had received a sum of Rs. 3,000/- as advance towards the sale consideration. The balance consideration was agreed to be paid at the time of execution of the sale deed as above. The sale deed was to be executed on or before 30-3-1991. Since the respondents had failed to tender the encumbrance certificate, title deeds etc. to the appellant and to measure out the property within the time specified, the appellant issued Ext. A2 notice on 2-4-1991 to which respondents sent Ext. A4 reply. The suit was filed on 28-5-1991. 3. In order to adjudicate the real controversy between the parties, it would be appropriate to find out the essential terms of Ext. Al agreement of sale. Those terms are the following: i) The respondents had agreed to sell thirty cents of land with trees thereon and the right of pathway as provided in schedule of Ext. B1 registered partition deed of the year 1965, more specifically described in plaint B schedule, to the appellant. ii) The appellant had agreed to pay the balance sale consideration at the rate of Rs. 1,500/- per cent in respect of the area which is to be measured, after deducting the advance amount of Rs. 3,000/- paid at the lime of execution of the agreement. iii) The respondents had agreed to tender documents of title, encumbrance certificate etc. and satisfy the appellant as to the non-liability of any prior debt, or encumbrance, irrespective the property agreed to be sold before the execution of the sale deed within the time specified. 3,000/- paid at the lime of execution of the agreement. iii) The respondents had agreed to tender documents of title, encumbrance certificate etc. and satisfy the appellant as to the non-liability of any prior debt, or encumbrance, irrespective the property agreed to be sold before the execution of the sale deed within the time specified. iv) The respondents shall measure out the land at their expense and satisfy the appellant as to the extent of the property within the aforesaid period. v) The appellant had agreed that in case she fails to pay the ha lance consideration and execute the sale deed within the lime stipulated, the advance amount of Rs. 3,000/ - paid towards sale consideration could he adjusted towards the loss and damages sustained by the respondents and she had no right to claim the said amount thereafter. vi) The respondents had agreed that in case they fail to execute the sale deed as per the terms of agreement, the appellant shall be entitled to realise the advance amount and also equal amount thereof, total being Rs. 6,000/- from the respondents. 4. The property sought to be sold as per the terms of Ext. Al agreement is described in plaint schedule. The extent of property mentioned in the plaint schedule is 30 cents including all the tress standing thereon in survey No. 218/9 of Kottuvally village, which is part of a larger extent of 97 cents of land. It also includes a pathway. The description of pathway is contained in B schedule of the partition deed of the year 1965 as specifically referred to in Ext. Al agreement. This pathway having a width of 8 links in located between the B schedule on the western side and C schedule on the eastern side, 5. The contentions of the appellant in the suit is that, she was always ready and willing to perform her part of the agreement but the respondents had not performed their part of the contract. The respondents had not measured the property and not tendered the title deeds and encumbrance certificate within the period of six months. The appellant's husband, Rajasekharan Nair (P.W.1) had met the respondents on 1-4-1991 and demanded of execution of the sale deed, but they failed to do so. The Ext. The respondents had not measured the property and not tendered the title deeds and encumbrance certificate within the period of six months. The appellant's husband, Rajasekharan Nair (P.W.1) had met the respondents on 1-4-1991 and demanded of execution of the sale deed, but they failed to do so. The Ext. P2 registered notice was therefore sent by the appellant on 2-4-1991 slating that the respondents had not obtained the encumbrance certificate and documents of title and thus failed to comply with the terms of the agreement. As against this, the respondents contended that they were ready and willing to perform their part of the agreement and that the appellant was not ready and willing to execute the sale deed as per the terms of the agreement at the time of the suit or even thereafter. They further pleaded that the respondents had issued reply notice dated 5-4-1991 (Ext. A4 ) agreeing to be present in the office of the document writer, Mukundan, on 17-4-1991, but the appellant had not turned up and not executed the sale deed, that the respondents were not liable to sell the property on the eastern side of the pathway, that there was no encumbrance with respect to the plaint schedule property and that the respondents were entitled to get not less than Rs. 5,(I)0/- towards compensation. 6. The respective pleadings of the appellant and respondents referred to herein before would sufficiently reveal that with regard to the performance of the terms of agreement, serious disputes were existing between the parties and that those disputes could only be solved by the intervention of the court. That would necessarily justify the institution of the suit by the appellant. 7. After the trial the court below came to the following conclusions. (1) The pathway referred to in Ext. Al agreement is found to have been included in the B schedule of Ext. B1 partition deed allotted to the share of respondents' predecessor and existed for last twenty five years on the eastern side of the fence separating the B schedule property. (2) The appellant was convinced that the extent of the property was only 281/2 cents on the eastern side of the fence after the measurement made on 24-3-1991 and 26-3-1991 in the presence of the appellant's husband (P.W.I). (2) The appellant was convinced that the extent of the property was only 281/2 cents on the eastern side of the fence after the measurement made on 24-3-1991 and 26-3-1991 in the presence of the appellant's husband (P.W.I). (3) Since the property on measurement was found to be Jess than thirty cents including the pathway, appellant was not ready and willing to get the sale deed executed. (4) Since the appellant was not having the entire balance sale consideration on 17-4-1991, she was not ready and willing to get the sale deed executed on that date. (5) The Ext. B5 certificate would establish that the property was not encumbered. (6) The appellant was not entitled to get specific performance of Ext. Al agreement, in view of the non-availability of (lie balance consideration with her. (7) The appellant is not entitled to get Rs. 6,000/- in view of the fact that the agreement has fallen through due to the default on her part. 8) The respondents are not bound to return the advance amount paid to them by the appellant on the date of execution of Ext. Al and the said amount is liable to be adjusted towards the damage sustained by them. is on the basis of the aforesaid conclusions the court below found that the appellant is not entitled to a decree for specific performance. Accordingly the suit was dismissed by the court below on 27th November, 1992. 8. During the course of examination, a definite question was put to P.W.I, the husband of the appellant, to lest the bonafides of the appellant as to whether she is prepared to deposit the balance consideration in court and lie answered in the affirmative. Accordingly the balance sale consideration was deposited in (lie court below by the appellant on 28-10-1992. This fact is not disputed by the respondents. However, while considering the question whether (lie appellant was ready and willing to pay the balance sale consideration as per (he terms of agreement, the court below did not at all advert to (his material in evaluating the merits and demerits of the contentions of the rival parties. 9. Before considering the main question whether the appellant is entitled to a decree for specific performance, it would be essential to examine whether the terms contained in Ext. Al agreement would constitute time as the essence of the contract. 9. Before considering the main question whether the appellant is entitled to a decree for specific performance, it would be essential to examine whether the terms contained in Ext. Al agreement would constitute time as the essence of the contract. The Supreme Court in Govind Prasad Chaturvedi v. Hari Dutt Shastri and another (AIR 1977 SC 1005) observed: "It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract." The determination of the question whether time is the essence of contract is dependent on the terms of the agreement and also on the attendant circumstances. The intention to treat the time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land, stipulation of time is not the essence of the contract. In Slickney v. Keeble (1915 A.C. 386) it was observed that where in a contract for the sale of land the time fixed for completion is not made of the essence of the contract, but the vendor has been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end. Placing reliance on the above decision the Supreme Court in Gomathinayagam Filial v. Palaniswami Nadar (AIR 1967 S.C.868) held: "Fixation of the period within which the contract is to be performed does not make the stipulation as to time of the essence of the contract Intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not of the essence. In the present case there is no express stipulation, and the circumstances are not such as to indicate that it was the intention of the parties that time was intended to be of the essence of the contract. In the present case there is no express stipulation, and the circumstances are not such as to indicate that it was the intention of the parties that time was intended to be of the essence of the contract. It is true that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled." Applying the aforestated principles, will it be possible to say in the facts of the present case, that the time is the essence of contract? By Ext. Al agreement the parties were agreed to perform the contract within a period of six months from the date of the agreement. But this performance is dependent on the fulfillment of the conditions prescribed in Ext. Al. Ext. Al creates certain obligations on the part of the respondents before the execution of the sale deed. The actual extent of the property will have to be ascertained after measurement. The encumbrance certificate and title deeds of the property will have to be made available to the appellant so as to satisfy herself that the property is free all liabilities. Only when these conditions are satisfied, execution of the sale deed within the time stipulated would take place. That apart, this is a case where the agreement relates to sale of immovable property. Therefore, it would be certain that the parties had never intended time to be the essence of the contract. 10. The next question to be considered is whether the appellant was ready and willing to perform her part of the contract within the time stipulated in Ext. Al. The plaintiff, in order to succeed in a suit for specific performance has to aver and prove that he has always been ready and willing to perform the essential terms of the contract. This is a requirement provided under Section 16(c) of the Specific Relief Act, which runs thus: 16. Al. The plaintiff, in order to succeed in a suit for specific performance has to aver and prove that he has always been ready and willing to perform the essential terms of the contract. This is a requirement provided under Section 16(c) of the Specific Relief Act, which runs thus: 16. Personal bars to relief - Specific performance of a contract cannot be enforced in favour of a person,-(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other man terms the performs of which has been prevented or waived by the defendant. 11. The Privy Council in Ardeshir H. Mama v. Flora Sassoon (AIR 1928 P.C.208) held: "In a suit for specific performance the averment of readiness and willingness on plaintiff's part upto the date of the decree is necessary". This decision of the Privy Council was approved by the Supreme Court in Gomathinayagam Pillai' s case (AIR 1967 SC 868) and held that it is for the plaintiff to establish that he was, since the date of the contract, continuously ready and willing to perlprm his part of the contract. The above decision of the Privy Council is also relied on by the Supreme Court in Jugraj Singh and another v. Labh Singh and others (AIR 1995 S.C.945 ) while interpreting Section 16(c) of the Act. There it has been held thus: "Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The/ continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiffs part of the contract." This Court in Kesavan & others v. Kanmakaran (1987 K.L.J. 1085) held thus: "An averment in the plaint with regard to the willingness and readiness of the plaintiff to perform his part of the contract is essential to sustain an action for specific performance. In the absence of such an averment the suit for specific performance cannot be decreed. In the absence of such an averment the suit for specific performance cannot be decreed. (Prabhakaran v. Bhuvani AIR 1974 Kerala 153) That was the position even before this rule obtained statutory recognition in 1963 by the introduction of S.16(c) in the Specific Relief Act." 12. In a suit for specific performance, what is required to be established is the continuous readiness and willingness on the part of the plaintiff to perform the essential terrace of the contract for sale. That does not mean the plaintiff must establish that he had always in his possession the required funds from the date of agreement for sale till the execution of the sale deed or till the date of the decree, if the dispute is pending adjudication in a court of law. That may be a piece of material to establish the readiness on the part of the plaintiff in certain cases. Lord Macdermoll said: "In order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction." (See: The Bank of India Ltd v. Jamsetji A.H. Chinoy and Messrs. Chinoy & Co. (AIR 1950 P.C. 90)) 'Readiness and willingness 'is insisted on in respect of the essential terms of the contract. There may be cases where no funds are required to perform the terms of contract for sale. The readiness and willingness to perform the essential terms of the contract is basically a state of mind. This can only be established by averments in the suit and production of proof. 13 The Supreme Court in Ramesh Chandra Chandiok v. Chunilal Sahharwal (AIR 1971 SC 1238) held: "Readiness and willingness cannot he treated as a strait jacket formula. These have to he determined from the entirety of facts and circumstances relevant to Hie intention and conduct of the party concerned." In The. Bank of India Lid's case supra (AIR 1950 P.C.90) the Privy Council concurred with the following observation of Justice Chagla. "In my opinion, on the evidence already on record it was sufficient for the court to come to (he conclusion that plaintiff 1 was ready and willing to perform, his part of the contract. Bank of India Lid's case supra (AIR 1950 P.C.90) the Privy Council concurred with the following observation of Justice Chagla. "In my opinion, on the evidence already on record it was sufficient for the court to come to (he conclusion that plaintiff 1 was ready and willing to perform, his part of the contract. It was not necessary for him to work out actual figures and satisfy the court what specific-amount a hank would have advanced on the mortgage of his property and the pledge of these shares". The plaintiff need not establish that he had the comma/id of necessary finance throughout the life of the contract, as observed in S.P. Narayanaswami Pillai v. Dhdnakoli Animal (AIR 1967 Mad.220). 14. The essential term of the contract in dispute is that the appellant will pay the balance sale consideration and execute the sale deed on her being satisfied as to the correct measurement and non-encumbrance of the property sought to be sold as per Ext. Al agreement. From (lie decisions referred to here in above it is manifest that readiness and willingness of the appellant (o perform the terms of the contract shall be there throughout the life of the contract or till a decree is passed by the court if (here is a dispute between the patties on the essential terms of the contract. As far as the present case is concerned, the readiness and willingness of the appellant to perform her part of the contract is crystalline, in view of the deposit of the balance sale consideration made by her. The deposit of the balance sale consideration in court ipso facto establishes the readiness and willingness of the appellant from the dale of deposit till the passing of the decree in the suit. But the question whether the appellant has established her readiness and willingness to perform her part of the contract from the execution of the agreement till the date of court deposit will have to examined. Under Section 16(c) of the Specific Relief Act, what is required is to aver and prove by the plaintiff that she has always, been ready and willing to perform the essential terms of the contract. The Ext. A2 suit notice was issued on 2.4.1991, after the expiry of the period fixed for execution of the sale deed as per the terms of Ext. Al agreement dated 30.9.1990. Ext. The Ext. A2 suit notice was issued on 2.4.1991, after the expiry of the period fixed for execution of the sale deed as per the terms of Ext. Al agreement dated 30.9.1990. Ext. A2 reveals that even before the expiry of the period, appellant's husband, Rajasekharan Nair (P.W.1), met (he respondents on 1.4.1991 and asked about the title deeds of the properly. By the said notice appellant requested the respondents that they should satisfy her with (he earlier little deeds and encumbrance certificate of the property and they should come to the office of the document writer, Mukundan, on 17.4.1991 for preparing the sale deed for execution. That notice also shows that she was ready and willing to perform her part of the contract. It was also slated therein that she was prepared to pay the balance sale consideration at the time of execution of the sale deed. In paragraph 7 of the plaint the appellant has specifically stated that she is always ready and willing to perform her part of the contract by executing the sale deed as per the terms of the agreement. P.W.1, husband of the appellant, deposed that appellant was willing to execute the sale deed as per the terms of the agreement on payment of the balance sale consideration. He further deposed that his mother-in-law had agreed to give the amount required for executing the document at any time. It is made known that the amount required for payment of the balance consideration would also be arranged by the members of the family of the appellant. When P.W.1 went to the office of the document writer, Mukundan, for preparation of the sale deed after obtaining the title deeds and encumbrance certificate he was having a sum of Rs. 15,000/- which was paid by his mother-in-law. These materials would prove that there was adequate source for the appellant to raise funds for the payment of balance consideration at the time of actual execution of the sale deed. In this juncture it is apt to be recalled that the balance sale consideration is payable only at the time of executing the sale deed and not before. 15 In the final analysis what one could see is that the actual execution of the sale deed is dependent on the fulfillment of two conditions by the respondents. In this juncture it is apt to be recalled that the balance sale consideration is payable only at the time of executing the sale deed and not before. 15 In the final analysis what one could see is that the actual execution of the sale deed is dependent on the fulfillment of two conditions by the respondents. One is with regard to the exact area in relation to which the balance consideration is payable and the other is the availability of the prior title deeds and encumbrance certificate relating to the property. The obligation on the part of the appellant to pay the balance sale consideration would arise only when the above two conditions are fulfilled by the respondents. As far as the measurement of the property is concerned, the case of the appellant is that the property was not measured at any time and that the extent of the property as per Ext. Al agreement is 30 cents. The appellant is liable to pay the consideration only in respect of the exact extent after the measurement and the payment of balance consideration is therefore dependent on the exact area of the land involved in the agreement. Unless exact extent of area is determined, balance consideration payable cannot be determined, because what is provided in the agreement is that the appellant has agreed to pay the sale consideration at the rate of Rs. 1,500/- per cent. As long as the exact extent of the area is undetermined, the actual payment of balance sale consideration does not arise. 16. According to the respondents, Ext.A1 agreement could not be proceeded with due to the fault of the appellant. It cannot be said so because the obligation of the appellant to execute the sale deed comes only when the respondents fulfil the conditions on their part. The case of the respondents is that one Rajappan, Villager Office, Kottuvally on 24.3.1991 and 26.3.1991 measured the property and the appellant's husband, Rajasekaharan Nair was convinced about the extent of the property and he was present throughout the measurement. Their further case is that the eastern portion of the existing pathway was found to be having only an extent of 281/2 cents. This case was found in Ext. A4 reply notice dated 5.4.1991 sent by the respondents. This allegation was totally denied by the appellant in the plaint. Their further case is that the eastern portion of the existing pathway was found to be having only an extent of 281/2 cents. This case was found in Ext. A4 reply notice dated 5.4.1991 sent by the respondents. This allegation was totally denied by the appellant in the plaint. The parties could not solve the issue between themselves and thus the matter ultimately reached before the court below. A decision on this issue is absolutely essential for due performance of Ext. Al agreement. The court below after evaluating the evidence found that the extent of the land involved is only 281/2 cents and not 30 cents, as staled in the agreement. Of course, appellant has challenged this finding in this appeal. Her contention is that P.W.1 was not convinced about the actual extent of property although the measurement was made on 24.3.1991 and 26.3.1991 However, I do not propose to interfere with the said finding of the court below inasmuch as I am satisfied that the correct extent of the property is only 281/2 cents. 17. The second condition to be fulfilled by the respondents is to furnish prior title deeds and encumbrance certificate in respect of the property to the appellant so as to satisfy that the property is free from any liability or change. Whatever may be the position with regard to the prior title deeds, the encumbrance certificate was not furnished on 17.4.1991 the date fixed for execution of the sale deed. The case of the respondents is that they have fulfilled all the conditions on 17.4.1991 and it was the appellant who failed to arrange the funds required for balance consideration. In this connection it is pertinent to note that Ext, B5 non-encumbrance certificate was dated 19.4.1991 which means that the respondents had obtained it only after the date fixed for the execution of the sale deed. Therefore, it is difficult to believe the story put forth by the respondents. According to me, it is the respondents who have committed default in fulfilling the terms of Ext. Al agreement for sale. Therefore, it cannot be said that the, appellant was not ready and willing to execute the sale deed on 17.4.1991. 18. Therefore, it is difficult to believe the story put forth by the respondents. According to me, it is the respondents who have committed default in fulfilling the terms of Ext. Al agreement for sale. Therefore, it cannot be said that the, appellant was not ready and willing to execute the sale deed on 17.4.1991. 18. The Supreme Court in Nathulal v. Phoolchand (AIR 1970 S.C.546) held thus: "In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken into account. The argument raised by Mr. Shroff that Nathulal was bound to perform two conditions only after the amount of Rs. 21,000/- was paid is plainly country to the terms of the agreement. By virtue of Section 4 of the Transfer of Property Act the chapters mid sections of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of (lie parties to the contract cannot require compliance with the -obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier." When there is mutual complaint of non-performance of the obligations between the parties to a contract it is essential to examine the 'sequence of obligation' in performing the contract. One of the parties to a contract cannot require compliance with the obligations by the other party without performing his own part of the contract in its sequence to be performed by him at the first instance. If the terms of Ext. Al agreement is examined in the above legal background it would be abundantly clear that the respondents in the first instance should discharge their obligation of ascertaining the exact area in relation to which the balance consideration to be paid and of producing the title deeds and encumbrance certificate before insisting upon the appellant to execute the sale deed or to pay the balance consideration. 19. Another argument advanced by the counsel for the respondent is that in view of the terms providing penalty contained in Ext. 19. Another argument advanced by the counsel for the respondent is that in view of the terms providing penalty contained in Ext. Al the appellant cannot enforce the claim of the specific performance against the respondents. It is true that in Ext. Al damage is provided in case respondents fail to perform their part of the contract. An amount of Rs. 6,000/- has been fixed as damages payable to the appellant. in case the respondents make any default in fulfillment of the contract. In view of the above stipulation, counsel advances an argument that appellant can only sue for the recovery of damages specified in the document. This contention requires to be examined in view of the provision contained in Section 23 of the Specific Relief Act, 1963. The said provision is ectype hereunder: 23. Liquidation of damages not a bar to specific performance - (1) A contract, otherwise proper to be specifically enforced, may be so enforced though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. (2) When enforcing specific performance under this section the court shall not also decree payment of the sum named in the contract. In certain contracts like the present, there may be a stipulation to pay a fixed sum of money in the event of default in performance. "In such cases, the general rule is that if a thing be agreed upon to he done, though there is a penalty annexed to secure its performance yet the very flung itself must he done." S.C. Banerjee in Law of Specific Relief„ Ninth Edition). "In such cases, the general rule is that if a thing be agreed upon to he done, though there is a penalty annexed to secure its performance yet the very flung itself must he done." S.C. Banerjee in Law of Specific Relief„ Ninth Edition). Spry says in'The Principles of Equitable Remedies." "In such cases it is necessary to establish by the ordinary process of construction which of two positions the parties have intended should come about." Under sub-section (1) of Section 23, if a contract which is "otherwise proper to be specifically enforced" may be so enforced notwithstanding the provision as to the payment of mixed sum as penalty in case of its breach and the party in default is willing to pay the same. When penalty is annexed to secure the performance of a contract, the court must, having regard to the terms of the contract and other attending circumstance, satisfy that the penalty was fixed only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying penal by in lieu of specific performance, "20. In the present case, no option is provided in Ext. Al agreement. From the terms provided in Ext. P1 it would reveal that it is only for the strict performance of the contract the provision for penalty is provided. In M. Devender Singh and others v. Syed Khaja (AIR 1973 S.C.2457) the Supreme Court said that it is only when payment is an alternative to carrying out the other terms of the contract, it would exclude, by the terms of the contract itself, specific performance of the contract to convey a property. That was a case where there is no provision anywhere in the contract that the party to it will have the option to either fulfill the contract or to buy or to pay liquidated damages or penalty for breach. The court was considering section 20 of the old Act which reads thus: "20. A contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same." Similar provision is contained in the first part of section 23(1) of the present Act. A contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same." Similar provision is contained in the first part of section 23(1) of the present Act. While interpreting section 20 of the old Act, the Supreme Court said: "If the legislative intent was that the mere proof that a sum is specified as liquidated damages or penalty for a breach should be enough to prove that a contract for the transfer of immovable property could be adequately compensated by the specified damages or penalty, Section 20 of the old Act will certainly become meaningless. It is true that section 20 of the old Act docs not mention the case of an express contract giving an option to a promisor to either carry out the contract to convey, or in the alternative, to pay the sum specified in which case the enforcement of the undertaking to make the payment would be an enforcement of the contract itself and no occasion for rebutting the presumption in the explanation to Section 21 would arise. In such cases the contract itself is specifically enforced when payment is directed in lieu of the conveyance to be made." (Italics supplied) Finally it said: "The question would still remain whether the courts are relieved by the agreement between the parties of the duty to determine, on the facts of a particular case, whether damages specified or left unspecified, would really afford adequate compensation to the party which wants a conveyance of immovable property as agreed upon." Therefore what I could see from the terms contained in Ext. Al agreement is that liquidated damage is fixed for the purpose of strict enforcement of the terms of contract and in the absence of option being provided therein, respondents cannot plead that appellant is not entitled to see for specific performance. Therefore the contention raised by the respondents in this regard is negatived. 21. What is left to be discussed is the extent of the discretionary power of this court to decree specified performance under section 20 of the Act. What the Supreme Court said in Prakash Chandra v. Angadlal and others (1979) 4 S.C.C. 393 is this: "The ordinary rule is that specific performance should be granted. 21. What is left to be discussed is the extent of the discretionary power of this court to decree specified performance under section 20 of the Act. What the Supreme Court said in Prakash Chandra v. Angadlal and others (1979) 4 S.C.C. 393 is this: "The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable consideration point to its refusal and the circumstances show that damages would constitute an adequate relief." In view of this principle what is required to be examined is whether the court below is justified in denying the equitable relief to the appellant. Sub-section (2) of section 20 deals with as to how the discretion of the court to decree specific performance is to be exercised. The discretion conferred is 'not arbitrary but sound and reasonable' guided by judicial principles! The exercise of this discretion is specifically barred where the plaintiff gets an unfair advantage or involves some hardship on the defendants. In the facts of the present case, I do not see any kind of unfair advantage to the appellant or undue hard ship to the respondents in case a decree for specific performance is passed in this case. Therefore my conclusion is that the court: below has failed to exercise the discretion in a sound and reasonable manner, in the present case. 22. In view of my discussion herein above, the judgment and decree of the court below are set aside. The balance sale consideration in respect of 281/2 cents of land had already been deposited by the appellant in court below on 28.10.1992.1 therefore declare that the appellant is entitled to get a decree for specific performance. Accordingly a decree is passed in favour of the appellant as below: 1) Thai the respondents shall execute the sale deed in respect of 281/2 cents of land in performance of Ext. Al agreement executed between the appellant and respondents. 2) That the respondents shall so execute the sale deed in favour of the appellant within a period of two months from today. 3) That in ease the respondents fail to execute the sale deed as provided in clauses (1) and (2) above, the appellant shall apply to the court below to execute the sale deed. The appeal is allowed. But in the circumstances of the case no order as to costs.