Y. N. GOPALA RAO v. D. R. LAXMINARAYANA — 1998 DIGILAW 140 (KAR)

( 1 ) THIS is plaintiff's first appeal from the judgment and decree dated 1-4-1993, delivered by Sri r,h. Raddi, Principal Civil Judge and CJM. , Shimoga, in Original Suit No. 109 of 1986, refusing to grant the decree for specific performance of contract, sought in the suit, and in alternative granting the decree in part with full costs, for an amount of Rs. 2,002/- with interest at the rate of 18 per cent per annum from 27-10-1983, till realisation of the entire amount against the defendants. ( 2 ) THE facts of the case in the nutshell according to the plaintiff's case, are that Smt. Sakamma entered into an agreement with the plaintiff on July, 2, 1983 and agreed to sell the suit schedule property in favour of the plaintiff-appellant for a sum of Rs. 1,06,001/- and took an advance of rs. 1,001/- on the date of the agreement. Under that agreement, it was agreed that she will execute the sale deed within 4 months from the date of agreement, after having agreed to receive the balance of sale price of Rs. 1,05,000/- before the Sub-Registrar. It was agreed that expenses necessary for the registration and stamp papers would be taken by the plaintiff-appellant. Before expiry of the period of 4 months, Smt. Sakamma died on 1-9-1983, that is she died after two months after having entered into the agreement. Plaintiffs case is that defendants are the legal representatives of deceased Sakamma and the plaintiff's case has been that he has always been ready to make payment of the sale price and take the sale deed in his favour. Plaintiffs case is that Sakamma earlier to the agreement, executed a Will and by virtue of the same, all her right, title and interest in the property were bequeathed in favour of defendants 3 to 5 in the case. Plaintiff's case is that in spite of demand, defendant did not execute the sale deed by taking the balance of sale price, so plaintiff got the notice issued, calling upon the defendants to execute the sale deed and the defendants replied the same denying the agreement. So, the need for the suit did arise and suit had been filed for specific performance of contract to execute the sale deed. So, the need for the suit did arise and suit had been filed for specific performance of contract to execute the sale deed. Plaintiff asserted that plaintiff is and has always been ready and willing to perform his part of the contract, by making payment of balance of sale price and incurring expenditure for registration of the same and for delivery of possession of the property. In the alternative, plaintiff has also prayed that if plaintiff is not found to be entitled to the decree for specific performance of contract, it is prayed for refund of the advance sum with damages to the tune of Rs. 4,000/- in all for Rs. 5,001/- may be passed with costs. The suit schedule property has been most specifically described in the plaint. ( 3 ) THE defendants filed the written statement, denied the execution of any agreement, namely the agreement dated 2-7-1983 by Sakamma in favour of the plaintiff. He also denied the receipt of the advance money by the deceased and they stated that it was not within his knowledge. Defendant 1 has in his pleadings stated that Sakamma had lost her health due to old age and she was not in a position to execute any document during her period. Defendant 1 pleaded there had been a collusion between the plaintiff and defendants and therefore agreement was got executed or forged as signatures thereof do not tally with the signatures of Sakamma and the other defendants got the Will executed. Defendant 1 further alleged that plaintiff has not deposited the alleged balance of sale consideration in the Court and as such the plaintiff is not entitled to the relief, and suit is not maintainable. Defendants 3 to 5, filed their written statement and they alleged that they are not aware of any such agreement as pleaded by the plaintiff and they deny the execution of alleged agreement dated 2-7-1983, by Sakamma in favour of the plaintiff, They took the plea of fraud. They also alleged that Sakamma did not know reading and writing. They further alleged Sakamma had a right to forfeit the alleged advance amount of Rs. 1001/- in the event of failure by the representative to perform his part of the agreement. Defendants denied that the plaintiff was ready and willing to perform his part of the contract and to pay the balance amount. They further alleged Sakamma had a right to forfeit the alleged advance amount of Rs. 1001/- in the event of failure by the representative to perform his part of the agreement. Defendants denied that the plaintiff was ready and willing to perform his part of the contract and to pay the balance amount. They alleged that at no time the plaintiff was ready or willing to perform his part of contract, nor did plaintiff approach the Defendants with the balance of sale consideration. The defendants further alleged that the value of the suit has gone up, in order to deprive the defendants of their rights, plaintiff has put forth a false claim. Defendant 1 and also defendants 3 to 5 alleged that the plaintiff has not deposited the balance of sale consideration and as such it cannot be taken that he has been ready and willing to perform his part of the contract and the suit brought by the plaintiff is not maintainable. They alleged the suit be dismissed. ( 4 ) THE Trial Court on the basis of the pleadings of the parties, framed 10 issues, as well as one additional issue. The issues read as under. 1. Whether deceased Smt. Sakamma entered into an agreement with plaintiff on 2-7-1983, to sell the suit schedule property for Rs. 1,06,001/- and received Rs. 1001/- as advance on that day? 2. Whether Sakamma agreed to execute the sale deed by receiving the balance within four months from that day? 3. Whether the plaintiff was always ready and willing to perform his part of agreement with sakamma and after her death, with defendants? 4. Whether the agreement if any, has been determined once for all for reasons said in para-6 of the written statement of defendants 3 to 5? 5. Whether the registered sale deed in respect of suit property was made nominally in the name of Smt. Sakamma and as such, she had no right and title over the same? 6. Whether the alleged agreement for sale is a fabricated and concocted one? 7. Whether the suit is not maintainable for want of deposit of Rs. 1,05,000/- by the plaintiff. 8. Whether in the alternative, the plaintiff is entitled to receive Rs. 5001/- from the defendants? 9. Whether the plaintiff is entitled to a decree for specific performance of agreement of sale? 10. What decree or order? 7. Whether the suit is not maintainable for want of deposit of Rs. 1,05,000/- by the plaintiff. 8. Whether in the alternative, the plaintiff is entitled to receive Rs. 5001/- from the defendants? 9. Whether the plaintiff is entitled to a decree for specific performance of agreement of sale? 10. What decree or order? additional Issue: whether the agreement dated 2-7-1983 is forged and fraudulently obtained as alleged by the 1st defendant in the written statement? ( 5 ) THE Trial Court after having examined the evidence of the parties held that plaintiffs case that deceased Sakamma had executed Exh. P. 5, the agreement to sell dated 2-7-1983 holds good, having been substantiated by evidence on record. The Trial Court further held that defendants failed to prove that agreement Exb. P. 5 dated 2-7-1983 in favour of the plaintiff was either fabricated or forged one. It answered Issue No. 6 in the negative. It further held that there is no material on record to hold that sale agreement dated 2-7-1983 has been determined once for all for the reasons stated in para 6 of the written statement. The Trial Court further found that plaintiff has been ready and willing to perform his part of the contract and actual depositing of the balance of the sale consideration amount of Rs. 1,05,000/- is not necessary and even in the absence of deposit of balance sale consideration amount, the suit cannot be held to be not maintainable, because the amount has to be deposited at the time of registration of the sale deed. It held that plaintiff has also been ready and willing to perform his part of the agreement. In short, the Trial Court answered Issue Nos. 1, 2, 3 in the affirmative that is in favour of the plaintiff-appellant. It answered Issue Nos. 4, and 5 in the negative and in favour of the plaintiff that is against the defendant. Issue No. 6 is also been held that defendants failed to prove any fabrication or concoction of the agreement. It held that it cannot be said that the suit is not maintainable for want of deposit of Rs. 1,05,000/ -. The Trial Court answered additional issue in the negative and against the defendant, holding that the defendants failed to prove the agreement dated 2-7-1983 as forged or fraudulently obtained by the plaintiff. Dealing with Issue Nos. It held that it cannot be said that the suit is not maintainable for want of deposit of Rs. 1,05,000/ -. The Trial Court answered additional issue in the negative and against the defendant, holding that the defendants failed to prove the agreement dated 2-7-1983 as forged or fraudulently obtained by the plaintiff. Dealing with Issue Nos. 8, 9 and 10, the Trial Court held that it is not always bound to grant decree for specific performance of contract and it held that the facts of the case do not warrant the exercise of discretion of this court for grant of decree for specific performance. He directed that as in pursuance of Exh. P. 5 the plaintiff had deposited advance amount, so he is entitled to refund of that amount with something more that is payable of advance amount, fixed the figure to Rs. 2,002/-, with interest at the rate of 18 per cent and thus dismissed the claim for specific performance of contract, instead decreed for this amount of Rs. 2,002/- with interest at 18 per cent. ( 6 ) FEELING aggrieved from the judgment and decree of the lower Appellate Court, the plaintiff has come up in appeal. ( 7 ) ON behalf of the appellant it has been contended by Sri S. P. Shankar, that granting of decree for specific performance is the rule. It is only in very special circumstances as narrated in law, the Court may refuse to exercise the discretion to grant decree claimed and grant alternative decree for refund of the amount or for damages. Learned Counsel for the appellant contended that, in the present case no hardship has been indicated which may be said likely to be caused, if the decree for specific performance would have been granted in favour of the plaintiff-appellant, nor any hardship has been pleaded or shown in the plaint, that would have been caused to the defendant by decree for specific performance being granted to the appellant. Learned Counsel, in support of his contentions made reference to the decision of their Lordships of the Supreme court in the case of Mrs. Chandnee Widya Vati Madden v Dr. Learned Counsel, in support of his contentions made reference to the decision of their Lordships of the Supreme court in the case of Mrs. Chandnee Widya Vati Madden v Dr. C. L. Katial and Others , as well as to the decision of their Lordships of the Supreme Court in the case of Prakash Chandra v angadlal and Others, Learned Counsel also made reference to the decisions of various High courts, including this Court. Learned Counsel referred to the decision of the Allahabad High court in the case of Lalji and Others v Ramji Seth. Learned Counsel for the appellant also made reference to the decision of Division Bench of this Court in the case of Lt. Cdr. M. C. Kendall v s. Chandrasekhar He further referred to another Division Bench decision of this Court in the case of Yogambika v Narsingh. Learned Counsel for the appellant in this connection further made reference to the decision of the Kerala High Court in the case of Yohannan and Other v harikrishnan Nair and Others and the decision of the Madras High Court in the case of Y. A. Kader v Muthulakshmi Ammal (deceased) by L. Rs, to substantiate his contention that once all the findings have been in favour of the plaintiff-appellant, the Trial Court in the absence of any specific case being made out under Section 20, clause (b) or other in the pleadings or in evidence, by the defendants, erred in law in refusing the decree for specific performance of the contract. Learned Counsel contended that the plaintiff is entitled to the decree for specific performance of contract to execute the sale deed and he submitted that in view of all the findings, except Issue Nos. 8 and 9, being in favour of the plaintiff-appellant, this Court may be pleased to pass decree for specific performance of contract, directing the defendants to execute the sale deed in favour of the plaintiff-appellant and to receive payment of the balance of sale consideration. Learned Counsel for the appellant also submitted with all fairness on his part, that as much time has passed during this litigation, his client is prepared to pay additional sum as interest at the rate of 9 per cent on the balance of sale consideration, from the date of filing of the suit, to the date of decree. Learned Counsel for the appellant also submitted with all fairness on his part, that as much time has passed during this litigation, his client is prepared to pay additional sum as interest at the rate of 9 per cent on the balance of sale consideration, from the date of filing of the suit, to the date of decree. So he prayed that defendants may be directed to execute the sale deed within the time specified and the appellant is ready to deposit the entire amount of balance of sale consideration, with interest at the rate of 9 per cent from the date of the suit till this date, within the time which may be specified by this Court, within which the defendants may be directed to execute the registered sale deed. ( 8 ) THE contentions of the appellant's Counsel have been hotly contested by Sri K. Chandrasekhar, appearing for respondents 3 and 4. On behalf of respondents 2 and 5 notice has been served, but none has put in appearance to contest the appeal. Sri Chandrasekhar contended that the Trial Court was not bound to exercise its jurisdiction to decree the suit for specific performance of contract. Learned Counsel for the respondents invited my attention to Section 20, sub-section (2), clause (b) of the Specific Relief Act, and contended that it provides that the court may properly exercise discretion not to decree the suit for specific performance in cases where the performance of contract would involve some hardship on the defendants which he did not foresee, whereas its nonperformance would not cause hardship on the plaintiff. In this connection, Sri Chandrasekhar made reference to the Single Judge's decision of this Court in the case of C. N. Ranganath v M. R. Thyagaraja. Learned Counsel for the respondents in this connection made reference to the decision of their lordships of the Supreme Court in the case of m/s. P. R. Deb and Associates v Sunanda Roy, as well as to the decision of the Supreme Court in the case of N. P. Thirugnanam (deceased) By L. Rs v Dr. R. Jagan Mohan Rao and Others. R. Jagan Mohan Rao and Others. Learned Counsel for the respondents Sri Chandrasekhar further contended that the compensation is adequate remedy and in view of Section 10 of the Act, which provides that the specific performance can be enforced where there exists no standard for ascertaining the actual damages caused by the non-performance of the act agreed to be done. In this connection, learned Counsel made reference to Section 10 of the Specific Relief Act. He submitted that the plaintiff has asserted in the plaint and has claimed that in the alternative, a sum of Rs. 1,001/- which has been paid as advance may be directed to be refunded, along with damages to the tune of Rs. 4,000/-and claimed the decree for Rs. 5,001/ -. So, learned Counsel for the respondents contend, this can be said to be compensation ascertainable as actual damage, because plaintiff himself has actually ascertained and claimed it. ( 9 ) LEARNED Counsel for the appellant in the rejoinder submitted that the damage could not be ascertained. He submitted that in case it is found that the plaintiff is not entitled to decree for specific performance, then plaintiff may be awarded refund of the advance, with damages at least to the tune of Rs. 4,000/ -. But this is not actual assessment and there is no standard by which it could be said that actual damages can be ascertained. Learned Counsel for the appellant again emphasised on behalf of the plaintiff that no hardship has been indicated. No doubt it is contended that respondent had attachment, because the house belongs to the mother. But learned counsel contended that admission of D. W. 1 clearly shows what attachment the defendants for the mother had. Poor lady it has been admitted by D. W. 2; that the mother of the respondents was ill, suffering from Blood Pressure, Diabetes and the like. She wanted money for her treatment and she offered the property for sale, for the sum agreed at that time and obtained advance of Rs. 1001/ -. He submitted that D. W. 2 is the own husband of respondent D. W. 4, So really, it cannot be said that transaction was such as was going to cause any hardship or injury if the lady would have been alive, on decree being passed. 1001/ -. He submitted that D. W. 2 is the own husband of respondent D. W. 4, So really, it cannot be said that transaction was such as was going to cause any hardship or injury if the lady would have been alive, on decree being passed. The money so advanced appears was used to meet the necessary medical expenditure and it appears that these defendants who are heirs did not care for her. Learned Counsel contended that these defendants cannot be said to be suffering from any hardship, on the decree for specific performance being granted in favour of the appellant. He further submitted that defendants-respondents have failed to show that the decree if any granted, the plaintiff-appellant will not suffer any such hardship. ( 10 ) I have applied my mind to the contentions made by the learned Counsel for the parties. ( 11 ) IT will be proper and appropriate to make reference to following Sections of the Specific relief Act. Section 10 of the Specific Relief Act provides that except as otherwise provided in Chapter II of the Act, the Court, in its discretion, may grant the decree for specific performance of contract, in cases where there exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done or when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation to it provides that unless and until contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, vide, Explanation (i) to Section 10 of the Act. While in case of agreement of transfer of movable property, it provides that breach of agreement to transfer property under a contract to transfer movable property, the Court shall presume that the breach of contract can be so relieved, that is by grant of compensation, except in cases mentioned in sub-clauses (a) and (b) to explanation (ii ). ( 12 ) HERE in the present case, I am not concerned with the question of specific performance of contract, relating to transfer of movable property. So, there is no need to go in further with respect to Explanation (ii ). ( 12 ) HERE in the present case, I am not concerned with the question of specific performance of contract, relating to transfer of movable property. So, there is no need to go in further with respect to Explanation (ii ). No doubt explanation furnishes and makes it obligatory on the Court to assume that in case of breach of contract to transfer immovable property, and the Court has to presume such a breach cannot adequately be relieved by award of compensation in money. But this presumption is rebuttable. ( 13 ) AS the expression used in explanation is, 'unless and until contrary is proved'. This indicates that burden of rebutting of presumption which explanation to Section 10 raises lies on the person or on the party who alleges or who takes the plea that the compensation in money for the non-performance of contract would afford the adequate relief. It means in the present case, when defendant-respondent wanted to rely on Section 10 of the Act the defendant had to allege in written statement that the compensation is the adequate relief. The burden is always on him to plead and to prove the compensation and the extent of compensation which would be adequate compensation and which according to defendant would have provided adequate relief. This requires a perusal of the defendant's pleadings. From the perusual of the written statement filed by defendant 1, as well as of defendants 3, 4 and 5, it does not appear that defendants had taken any such stand or defence in the case, they might have denied the execution of agreement by smt. Sakamma, but the defendants have nowhere pleaded that compensation or any amount of compensation would be the adequate relief, instead it appears from the perusal of para 7 of the written statement of defendant 1, his stand is, plaintiff is not entitled to any amount including Rs. 5,001/ -. Even in Paragraph 8 of the written statement filed by defendants 3 to 5, it has been stated that neither plaintiff is entitled to specific performance of the contract nor is he entitled to rs. 5001/-, claimed as damages. Thus, defendants' case does not appear to be as per pleadings that breach of contract if any, committed, it could be compensated in terms of money or that the compensation would be adequate relief for non-performance. 5001/-, claimed as damages. Thus, defendants' case does not appear to be as per pleadings that breach of contract if any, committed, it could be compensated in terms of money or that the compensation would be adequate relief for non-performance. It is at the stage of arguments, the learned Counsel for the respondent contended that in view of Section 10 (b), this Court is required not to enforce the agreement, even if it is proved as plaintiff in the plaint has pleaded and asserted and has claimed an alternative decree for a sum of Rs. 5,001/-, namely, the return of rs. 1,001/-, as return of advance and damages as Rs. 4,000/ -. ( 14 ) LEARNED Counsel contended that in view of all the relief clause (b) the decree for specific performance should not be passed. No doubt, in the plaint vide relief (b) in alternative, it has been stated that if for some reason, the Court holds that plaintiff is not entitled to specific performnce, then he had in alternative prayed for decree for return of advance money and a sum of Rs. 4,000/-, as damages, claiming of alternative relief cannot be said to be a proof or evidence that damages or amount claimed is adequate for non-performance. It cannot be said to be a proof of compensation being adequate relief, or of presumption having been rebutted which presumption lies in favour of the plaintiff under Explanation (i) to Section 10. The learned Counsel for the respondent in support of his contention made a reference to the decision of their Lordships of the Privy Council in the case of Ramji Patel v Rao Kishore Singh. This decision itself is distinguishable. The defendant in that case had specifically pleaded that plaintiff was not entitled to a decree for specific performance. The material portion of the judgment where the facts narrated reads as under: "the defendant pleaded that plaintiff is not entitled to a decree for specific performance of contract for the following reasons: (1) That the Village Khodi yields a profit of nearly 1,100/- a year and is now and was at the time of agreement worth not less than Rs. 90,000/ -. (2) The distracted state of mind in which the defendant was in at the time of the agreement gave the plaintiff an unfair advantage to secure the village for one fourth of its value. 90,000/ -. (2) The distracted state of mind in which the defendant was in at the time of the agreement gave the plaintiff an unfair advantage to secure the village for one fourth of its value. The discretion to decree specific performance should not be exercised in plaintiffs favour under Section 22, Specific Relief Act. (3) That there has been delay in bringing the suit. (4) That the plaintiff himself, after the decision of the Privy Council appeal, agreed to take the money with interest instead of the village and thereby induced the defendant to deposit part of the money with Gopal Rao and his son, for payment to plaintiff, and to agree to the plaintiffs retaining Rs. 1,161, as stated above. The plaintiff is estopped from claiming specific performance". In that case, the matter was agitated before the learned District Judge also, who considered the question and had recorded the finding that damages would have been the adequate relief to the plaintiff and such damages should be Rs. 20,000/ -. Thus, on the basis of the pleadings made by the defendant before the Privy Council, the learned District Judge considered the matter and recorded the findings. No doubt, instead of recording the finding, the Trial Court granted grossly inadequate compensation and taking certain other factors into view, the learned District Judge, though took the view that compensation of Rs. 20,000/-, would have been adequate, but yet granted the relief of decree for specific performance of the contract and their Lordships opined in view of the clear finding that the compensation in that case was adequate relief to the plaintiff. It was difficult for them to understand how the learned Judge came to make the decree for specific performance of the contract. It is on the basis of the findings, the Privy Council observed that it was not open to the Judicial Commissioner, Central Province, to have disagreed with the findings of the 1st Appellate Court, while deciding the matter in Second Appeal. The Privy council observed that it is clear that the defendant committed breach of agreement or failure to carry out the terms thereof, when his appeal to the Judicial Committee of the Privy Council referred to in the agreement was successful. The Privy council observed that it is clear that the defendant committed breach of agreement or failure to carry out the terms thereof, when his appeal to the Judicial Committee of the Privy Council referred to in the agreement was successful. The only question to be considered was if the plaintiff got the relief to which he was entitled and observed that it is clear that on the date of breach of contract the value of the village was about Rs. 20,000/- and so, the District Judge held that Rs. 20,0007- was adequate relief and therefore, the Privy Council ordered that the proper order would be to decree the plaintiffs suit for Rs. 20,000/- with interest. ( 15 ) AS mentioned earlier, this Privy Council's decision itself is distinguishable, as relevant facts had been pleaded and matter was agitated before the Trial Court and the First Appellate Court. Privy Council held that in view of the finding of the Court, that is, the District Judge that Rs. 20,000/- was the market value of the village. The present is the case on its own facts, as here, the defendant did not take such a plea nor proved that compensation was an adequate relief and such compensation should be taken as adequate relief, the Court had to examine if it had to grant adequate compensation. The Privy Council's decision in Ramji Patel's case, supra, so is of no help to the respondent. That plaintiff-appellant had merely claimed alternative relief as damage. That in case he is held not to be entitled to the decree for specific performance. This cannot be said to have rebutted the presumption available to the appellant under Explanation (i) to Section 10. It was claimed only as an alternative relief, if the decree for specific performance of contract to sell could not be granted. But defendant in this case did not admit or insist upon that relief if the contrary is established, instead, he alleged that plaintiff is not entitled for any, relief. That in my opinion, the mentioning of Rs. 4,000/- in the relief clause as the alternative relief cannot be of any help to the respondent, that it cannot be said that as plaintiff had claimed as alternative relief and demanded rs. 4,000/- only in total for that amount the compensation is adequate relief. The defendant cannot be allowed to blow hot and cold. 4,000/- in the relief clause as the alternative relief cannot be of any help to the respondent, that it cannot be said that as plaintiff had claimed as alternative relief and demanded rs. 4,000/- only in total for that amount the compensation is adequate relief. The defendant cannot be allowed to blow hot and cold. I find support from the decision of the Andhra Pradesh high Court as well in the case of Pasumarti Ramulu u Nuthi Anantha Ramulu. It will be profitable to quote the following observations as well: "8. Sri V. Madhava Rao finally contended that the present case was one where pecuniary compensation would be an adequate relief to the plaintiff and therefore specific performance ought to be refused under Section 12 (c) and Section 21 (a) of the Specific Relief Act. In this connection, he sought to call in aid the case of Ramji Patel, supra. The question whether compensation in money is an adequate relief naturally depends on the facts and circumstances of each case. The sole basis for such a contention here is the fact that the plaintiff asked in the plaint for the alternative relief, the plaintiff impliedly took the position that the alternative relief is an adequate remedy. But Section 19 of the Specific Relief Act in explicit terms provides for the asking of such relief either in addition to or in substitution for specific relief. It cannot, therefore, be said that the two reliefs are mutually destructive. The contention is clearly untenable. I may also notice that there was not even a plea by the defendant to that effect and such a ground for refusing specific performance does not really arise for consideration". ( 16 ) IT appears from the law laid down by the Andhra Pradesh High Court is very aptly applicable to the facts of the present case. Specific Relief Act, 1963, as per Section 21 provides that plaintiff may also claim compensation for the breach either in addition or in substitution of such performance. Sub-section (1) of Section 21, is almost pari materia to Section 19 of the Act, [1877]. As mentioned earlier, no defence has been raised by the defendant on this ground that compensation is adequate relief in the present case. Sub-section (1) of Section 21, is almost pari materia to Section 19 of the Act, [1877]. As mentioned earlier, no defence has been raised by the defendant on this ground that compensation is adequate relief in the present case. On such, when this plea has not been taken in the Court below, it firstly not bound to the defendant to raise it at this stage and then, if it is raised, it is without substance. The contention of the respondent is as such rejected keeping in view the presumption under Explanation (i) to Section 10. ( 17 ) ANOTHER contention has been raised by the learned Counsel is that regarding undue hardship. No doubt, the jurisdiction of the Court is discretionary in the matter of granting of specific performance of contract, it has also to be taken note of as laid down by their Lordships of the supreme Court in the case of Prakash Chandra, supra, that ordinary rule is that specific performance should be granted, it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute adequate relief. ( 18 ) AS I have already held that rebuttable presumption is that damages would not be adequate relief or adequate compensation in the matter of breach of specific performance of contract for transfer of immoveable property. This presumption has not been rebutted in any manner by the defendant-respondent. ( 19 ) RELIANCE has been placed on Section 20, sub-section (2) of the Specific Relief Act, 1963, by the learned Counsel for the respondent. Sub-section (2), no doubt provides that in the cases mentioned therein, the Court may properly exercise the discretion not to decree specific performance of contract. ( 19 ) RELIANCE has been placed on Section 20, sub-section (2) of the Specific Relief Act, 1963, by the learned Counsel for the respondent. Sub-section (2), no doubt provides that in the cases mentioned therein, the Court may properly exercise the discretion not to decree specific performance of contract. Those cases are (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract if enforced would give unfair advantage to the plaintiff over the defendant (b) where the performance of contract would involve some hardship on the defendant which he did not forsee, whereas its non-performance would involve no such hardship on the plaintiff: The third in the category in the section is: where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. ( 20 ) BEFORE I proceed further, I think it proper to refer to the observations of the Trial Court in this connection. The material paragraphs read as under: "24. Keeping in mind of the above position, under law, the facts and circumstances that are necessary to be noted, to find out as to whether this Court could exercise its discretion to grant the decree for specific performance or otherwise are that Sakamma, the mother of the defendants in the year 1983 has executed Ex. P. 5, the sale agreement in favour of the plaintiff, agreeing to sell the suit schedule property for the sum of Rs. 1,06,001/ -. It is culled out from the evidence on record that the reason for the deceased Sakamma to sell the suit property was for the purpose of meeting the expenses of her medical treatment at the end of her life. But she died within a period of two months from the date of execution of Ex. P. 5 only on receiving the advance amount of rs. 1,001/-from plaintiff. The fact that deceased Sakamma had executed a 'will' in favour of defendants 2 to 5 prior to the execution of Ex. P. 5 is not disputed by the plaintiff. But she died within a period of two months from the date of execution of Ex. P. 5 only on receiving the advance amount of rs. 1,001/-from plaintiff. The fact that deceased Sakamma had executed a 'will' in favour of defendants 2 to 5 prior to the execution of Ex. P. 5 is not disputed by the plaintiff. It is also not in dispute that in respect of such a 'will' in favour of the said defendants, there are proceedings going on before the District Court, Shimoga, for grant of probate. The plaintiff who had paid only Rs. 1,001/- to deceased Sakamma in the year 1983 has not incurred any liability towards said agreement of sale. Sakamma who for the purpose of her medical treatment had agreed to sell the property was also not benefitted by the sale consideration amount due to her death within a period of two months only on receiving Rs. 1,001/ -. Having regard to these facts and circumstances and also to the fact that the 1st defendant is the son of deceased Sakamma, whereas defendants 2 to 5 are her daughters and there has been dispute amongst them with regard to the 'will' that has been executed by said Sakamma, quite prior to the execution of sale agreement at Ex. P. 5 in favour of the plaintiff in respect of suit schedule property, I find that greater hardship would be caused to the defendants than the plaintiff in the event, if the decree for specific performance is granted in favour of the plaintiff. In this regard, it is also to be noted that the evidence discloses that the value of the property has been considerably increased. Though it by itself is not a ground for refusal of decree for specific performance, the facts and circumstances that have been stated above, are important for this Court to take into consideration to find out as to whether the facts and circumstances of the case warrant the exercise of the discretion of this Court for grant of decree for specific performance or otherwise". The observations made by the learned Civil Judge, per se reveal that evidence on record reveal that Sakamma had to sell the property to meet the expenses of her medical treatment. The observations made by the learned Civil Judge, per se reveal that evidence on record reveal that Sakamma had to sell the property to meet the expenses of her medical treatment. No doubt, it would have been natural, if the children do not take care of the mother, she has got some property to meet the expenses and not to put the burden on the children, she would definitely sell the property. It has come in the evidence of D. W. 1 that Sakamma was suffering from blood pressure etc. , so, she thought it better to dispose of the property and made an offer to the plaintiff and thereafter, entered into agreement to sell it for a sum of Rs. 1,06,001/- and received the advance. There was no other circumstances to motivate her to make the sale of it. The Trial court observed that deceased-Sakamma had also executed a Will in favour of defendants 2 to 5, prior to execution of agreement to sell Ex. P. 5. This is an undisputed fact. The Trial Court further observed that with reference to the Will made in favour of defendants 2 to 5, the litigation started between the heirs. The Trial Court further observed that the son of deceased-Sakamma as well as defendants 2 to 5, who were the daughters had some disputes among themselves. After making a reference to these circumstances it observes, "i find that great hardship would be caused to the defendants than plaintiff, in the event if the decree for specific performance is granted". It is surprising how the great hardship would be caused to the defendants. This is nothing but a conjectural finding. If the will is proved, the property would have gone to defendants 2 to 5, and if it is not proved, whatever property whether in terms of sale consideration or in terms of the contract, it had to go to the heirs. The learned Judge further observes, and the evidence discloses that the value of the property has considerably increased. It means, if he would not have granted decree for specific performance, the plaintiff would have been put to greater hardship to acquire such other property or the like by payment of higher sum. It is not the case that the present defendants have no accommodation to live or they had no other accommodation. It means, if he would not have granted decree for specific performance, the plaintiff would have been put to greater hardship to acquire such other property or the like by payment of higher sum. It is not the case that the present defendants have no accommodation to live or they had no other accommodation. It is not the case of the defendants that they have raised any construction or spent huge amounts. The learned District Judge himself observes 'that value is no ground to refuse the decree for specific performance'. Once the rise in price is no ground to refuse specific performance and the refusal may also have tendency to cause hardship in the plaintiff in acquiring such property or other property at such time. Learned District Judge, in my opinion, has acted illegally on the basis of his conjectural finding and in refusing the relief of granting of decree for specific performance of contract. ( 21 ) THE learned District Judge observes that there is no evidence on record to show that the plaintiff had incurred damages of Rs. 4,000/-, then at what basis he had assessed that. In my opinion, the learned District Judge completely acted illegally and he has exercised jurisdiction in not granting decree for specific performance in a manner devoid of legality. The discretionary power, is no doubt is there and is not to be exercised to grant decree of for specific performance in cases covered by either of the clauses of Section 20 of the Act. Where the transaction appears to be an unconscionable bargain by act of a fraud etc. , the Court may refuse to grant the decree for specific performance. No such case has been made out by the defendant-respondents. Where the transaction appears to be an unconscionable bargain by act of a fraud etc. , the Court may refuse to grant the decree for specific performance. No such case has been made out by the defendant-respondents. Merely because the Will had been executed prior to agreement in favour of the daughters and there has been a dispute between the son and daughters about the validity of the Will or the mere fact that the value of the property has increased during this period from 1983 to 1993, when the decision was given, would not be any ground to refuse the decree for specific performance of contract, particularly after the Trial Court's having found that there had been an agreement entered into between the plaintiff and Sakamma, that the agreement could not be performed during the time prescribed, the plaintiff has always been ready to perform his part of the contract. e. , the agreement and to pay charges for registration etc. In my opinion, the Trial Court should have decreed the plaintiffs suit for specific performance of the contract, particularly when defendant had not been able to prove that compensation would be adequate relief as well as failed to plead and establish any specific case of likelihood of genuine hardship to them if specific performance decree is granted and has not been able to prove that the plaintiff would not be subjected to such a hardship, if the decree is refused. ( 22 ) IT is one of the well-settled principles of law that the discretionary powers have to be exercised judiciously in such cases where the discretion in the matter of granting of decree for specific performance is exercised arbitrarily by refusing to grant the decree for specific relief without being applying mind to the legal and judicial principles, it is open to interference by this court in Appellate Jurisdiction. It appears to me as Appellate Court that the Court below arbitrarily refused the relief claimed in the suit, namely, decree for specific contract which should have been granted has been observed by the Supreme Court that ordinarily rule is to grant decree for specific performance of contract unless it is inequitable and the circumstances show that compensation would be adequate relief. Thus considered, I think it is a fit case in which the judgment and decree of the Trial Court should be set aside, so far as it refused to grant decree for specific performance of contract. Thus considered in my opinion, the plaintiff's suit should be decreed for specific performance of contract to execute the sale deed with reference to the property subject-matter of agreement dated 2-7-1983 Ex. P. 5. The appeal is as such allowed and the plaintiff-appellant's suit for decree for specific performance of contract to sell the suit property is hereby decreed against defendant-respondents. This appeal is hereby allowed with costs of both the Courts. The plaintiff shall deposit the balance sale consideration which comes to Rs. 1,05,000/- in the Trial Court within six months and the defendant-respondents will execute the sale deed in favour of the plaintiff within a period of four weeks from the date of deposit or service of notice of deposit of money. The Trial Court itself will send intimation calling them to execute the sale deed and if they defendant-respondents fail to execute the same, the Trial Court itself will get the sale deed executed in favour of the plaintiff at the defendant's costs on their behalf.