Kumaraswamy v. Appachi Gounder — 1999 DIGILAW 253 (MAD)

Judgment :- The plaintiffs are the appellants. The suit was filed by the plaintiffs for specific performance of the agreement dated 24.2.1981. 2. Briefly stated, the plaintiffs case is as follows: The property which is the subject matter of the suit belongs to the 2nd defendant having been settled upon him by the 1st defendant. They are in possession of the property. An agreement of sale was entered into between the plaintiffs and the defendants, whereby the defendant agreed to convey the suit property for a consideration of Rs. 2,25,000/-. A sum of Rs. 25,000/- was paid and received as advance. It was agreed that the sale should be completed within three months. The plaintiffs were ready and willing to complete the sale within the stipulated period. The defendants postponed the same and by mutual agreement, further two months period was fixed for completion of the transaction, which is evidenced by an endorsement dated 17.5.1981. Though the plaintiffs were ready and willing to complete the transaction within the extended period, the defendants evaded to perform their obligations and sought further extension of time. Accordingly, they agreed to execute the sale deed on or before 24.8.1981 and an endorsement to that effect was made on 20.7.1981. In spite of the extension, the defendants had failed to comply with the conditions of the agreement, whereupon the plaintiffs issued a notice telegraphically on 21.8.1981, to which there was no reply. A notice through the lawyer of the plaintiffs was sent on 22.8.1981. The defendants did not execute the sale, but set up a false plea that as a suit was filed by one Rangathal and Ramaswamy, they did not execute the sale. The plaintiffs have set up Rangathal and Ramaswamy as lessees to avoid the performance of the contract. The so-called lessees are none but the brother in-law and sister of the 2nd defendant. It is only the defendants, who are in possession of the property. With a view to wriggle out of the obligations, the defendants sent a notice on 16.10.1981, offering to return the advance of Rs. 25,000/-. The plaintiffs immediately rejected it by a reply on 19.10.1981. The plaintiffs have been always ready and willing to perform the part of their agreement. They have sufficient funds to complete the transactions. Hence, the suit. 3. 25,000/-. The plaintiffs immediately rejected it by a reply on 19.10.1981. The plaintiffs have been always ready and willing to perform the part of their agreement. They have sufficient funds to complete the transactions. Hence, the suit. 3. The defendants contended as follows: — The defendants entered into an agreement with the plaintiffs to sell the properties for a sum of Rs. 2,50,000/- and received a sum of Rs. 25,000/- as advance. The defendants were willing and ready to perform their part of the agreement. But, one Rangathal and Ramaswamy filed a suit in O.S. No. 1972 of 1981, against the 1st defendant and the 2nd defendant for injunction and obtained interim injunction, restraining the 2nd defendant from alienating or encumbering with the suit property. The 1st plaintiff was also a party to the proceedings. The injunction order was served upon the 2nd defendant, who filed an application in I.A. No. 1323/81 to vacate the order of injunction. Steps were taken by the 2nd defendant to have expeditious disposal of the injunction petition. But, somehow or other, the petition came to be adjourned. Hence, the defendants thought that it is not to their interest to keep the agreement alive, and therefore, a cheque of Rs. 25,000/- was sent to the counsel for the plaintiff with a covering letter, informing mat the agreement has been cancelled and the advance paid has been returned. Because of the change in the situation, the defendants could not perform the obligations under the agreement and were not in a position to execute the sale deed. The agreement cannot be kept alive for indefinite period. The suit is not maintainable. The plaintiffs were aware of the impossibility of performance of the contract by the defendants by reason of the injunction order passed in I.A. No. 956/81 in O.S. No. 1972/81, whereby the defendants were prevented from performing their part of the contract. Subsequently, several changes have taken place and the value of the property has also gone up several times. Hence the defendants stand discharged from the performance. Even by reason of application of the Doctrine of Frustration, the agreement becomes unenforceable. The defendants therefore prey that the suit may be dismissed with costs. 4. A reply statement was also filed by the plaintiffs alleging as follows: — The litigation O.S. No. 1971/81 was only a camouflage. Hence the defendants stand discharged from the performance. Even by reason of application of the Doctrine of Frustration, the agreement becomes unenforceable. The defendants therefore prey that the suit may be dismissed with costs. 4. A reply statement was also filed by the plaintiffs alleging as follows: — The litigation O.S. No. 1971/81 was only a camouflage. The defendants have categorically stated that they are in actual possession and enjoyment of the suit property. There was no subsistent lease and hence they cannot turn down and give a different version. The defendants finding that the value of the property has been fluctuating, only wants to wriggle out of the contract. There is lack of bona fides. The intention of the defendants to resile from the contract is obvious. They have been never ready and willing to sell the properties. The plaintiffs have been expressing their willingness again and again. There is no frustration at all, as alleged by the defendants. 5. Before the Subordinate Judge, Coimbatore, on behalf of the plaintiffs, the 1st plaintiff was examined as P.W.1., while on behalf of the defendants the 2nd defendant was examined as D.W.1 Exs.A1 to A30, and B1 and B2 were marked. By his Judgment dated 29.6.1984, the III Additional Subordinate Judge, Coimbatore, dismissed the suit, but without cost. Aggrieved by this Judgment and Decree of the court below, the plaintiffs have come up with this Appeal. 6. The points that arise for determination are: (i) Whether there is frustration of the contract? (ii) Whether the plaintiffs are entitled to specific performance of the agreement. 7. The Points: — The agreement is dated 24.2.1981. It stipulates out that the sale will be completed within a period of three months of the date of agreement. It was extended by two months by a mutual agreement between the parties as evidence by the endorsement, dated 17.5.1981. The agreement which had to be performed on or before 24.5.1981, thus happened to be extended till 24.7.1981. On 20.7.1981, a further extension, by mutual agreement, was made, whereby, the defendants agreed to execute the sale deed on or before 24.8.1981. In other words, the agreement was extended by a month. Thus, the defendants had agreed to execute the sale deed on or before 24.8.1981. The plaint was signed by the plaintiffs on 4.11.1981 and was filed into court on the same day viz., on 4.11.81. 8. In other words, the agreement was extended by a month. Thus, the defendants had agreed to execute the sale deed on or before 24.8.1981. The plaint was signed by the plaintiffs on 4.11.1981 and was filed into court on the same day viz., on 4.11.81. 8. In the plaint the plaintiffs have come up with the case that the suit in O.S. No. 1972/81 was nothing but a collusive suit and that those persons were set up by the defendants to thwart the plaintiffs rights and avoid the performance of the agreement. According to the plaintiffs, the persons arrayed as plaintiffs in O.S. No. 1972/81 are none else than the sister and brother-in-law of the 2nd defendant and there was no such lease at all, and that the defendants continue to be in possession of the property and it was never leased out by them in favour of any person. On 21.8.1981, the plaintiffs sent a telegraphic notice. It was followed by a lawyers notice on 22.8.1981. On 16.10.1981, the defendant sent a notice, returning the sum of Rs. 25,000/- and stating as there is an injunction against the defendants from selling the property, the performance of the contract had become impossible and therefore, the agreement should be treated as cancelled. The amount sent by the defendants was not accepted by the plaintiffs, who returned the same. 9. P.W.1 admits that an order of injunction was obtained by Rangathal and Ramaswamy by filing a suit. He further admits that because the injunction was in force, the time for performance of the agreement was extended by mutual agreement of the parties. It is also admitted by him that on the day, when he gave the notice, the injunction was in force. It is admitted that both the parties took steps to have the injunction application disposed of early. But, it was not taken up early. Ultimately, the suit filed by Ramaswamy and Ranagthal came to be dismissed for default on 31.10.1983. The suit filed by Rangathal and Ramaswamy within two months of the date of agreement was admittedly, the reason for extension of time for the performance of the agreement by both the parties. 10. First of all, it has to be seen whether the plaintiffs had come to the court with clean hands. The suit filed by Rangathal and Ramaswamy within two months of the date of agreement was admittedly, the reason for extension of time for the performance of the agreement by both the parties. 10. First of all, it has to be seen whether the plaintiffs had come to the court with clean hands. For, the brunt of attack of the defendants is that the plaintiffs are guilty of suppression of truth and therefore, the remedy being equitable remedy, person coming to Court must come with clean hands. Since the plaintiffs are guilty of suppressio veri they are bound to fail. In support of this contention, learned Senior Counsel for the Respondents-defendants would refer to the ruling reported in 1996 (1) L.W. 785 ( Lakshmiammal and another v. S. Sangamalai ). 11. To appreciate this contention, it becomes somewhat necessary to refer to certain dates. This present plaint was presented into court on 4.11.1981. The plaint in O.S. No. 1972/82 was filed into court on 21.4.1981, whereas the plaint in this case was filed on 4.11.1981 viz., seven months after the filing of the suit in O.S. No. 1972/1981. The 1st plaintiff herein is the 2nd defendant in that suit. The 2nd defendant in this suit is the 1st defendant in that suit in O.S. No. 1972/1981. The 2nd defendant has filed his written statement on 4.7.1982. The order of interim injunction was passed on 31.4.1981. The agreement in this case had come into existence on 24.2.1981. Originally, it provided that the sale deed shall be executed within three months viz., on or before 24.5.1981. This period was subsequently extended by two months originally and again extended by one month. Therefore, before the original period fixed for the purpose of the contract, a suit had been laid and injunction has been obtained. When the matter was thus pending in Court, the subsequent extension of time was arrived at between the parties. It is the definite case of the defendants that because of the pendency of the suit relating to the property and the order of injunction, the extension came to be effected. On 22.8.1981, the plaintiffs gave a notice through his counsel. On the date when they issued the notice, the plaintiffs were aware of the pendency of the suit with reference to the property and that an injunction has been obtained. On 22.8.1981, the plaintiffs gave a notice through his counsel. On the date when they issued the notice, the plaintiffs were aware of the pendency of the suit with reference to the property and that an injunction has been obtained. The plaintiffs were party not only to the suit, but also were aware that an order of injunction was there against them as well. But, in the notice issued by them, they did not choose to make any mention of that litigation. It is not stated by them that the said suit is a collusive suit and that it has been laid at the instance of the defendants. Further, they have not chosen to call upon the defendants to take steps to have the injunction order vacated. On that day, the plaintiffs were aware that the agreement cannot be performed in view of the subsistence of the injunction order. But yet, they would call upon the defendants to complete the transaction. As pointed out already, they even have not even suggests that the litigation is a collusive one, nor they have chosen to require the other party to the contract to take immediate steps to have the injunction vacated. 12. It is also to be pointed out that the plaintiffs have not even stated in the notice that despite the order of injunction, they are willing to obtain the sale deed executed by the defendants. On receipt of this notice, which has been marked as Ex.A5., the defendants sent a reply on 31.8.1981 under Ex.A6. In this reply notice, the defendants have clearly stated that the plaintiffs were aware that a suit had been filed by Rangathal and Ramaswamy relating to the suit property and that they had obtained an order of injunction, and that in spite of the efforts taken by Kandasamy and Kumarasamy, the injunction petition has not been disposed of and therefore, the defendants are not in a position to execute the sale and as the agreement was entered into in February, 1981, it is not possible to keep alive the agreement, and therefore, the advance amount is sent back to the plaintiffs. The defendants followed it with another letter under Ex.A7, where after reiterating the circumstances, the defendants sent a cheque for Rs. 25.000/- representing advance amount and informing that the agreement will stand cancelled as from the date of reply. The defendants followed it with another letter under Ex.A7, where after reiterating the circumstances, the defendants sent a cheque for Rs. 25.000/- representing advance amount and informing that the agreement will stand cancelled as from the date of reply. To this, the plaintiffs sent a reply under Ex.A8 on 19.10.1981. In this reply or rejoinder, as the case may be, the plaintiffs only chosen to allege that the defendants finding the prices are fluctuating, has been attempting to wriggle out of the contract and that the agreement cannot be unilaterally revoked. Even in this reply, it is not stated that the said suit in O.S. 1972/81 is a collusive suit or that the plaintiffs in that suit were set up by the defendants to nullify the agreement of sale. It is only after the month of November, the present suit came to be filed. 13. Now in the above context, it will be fruitful to consider the submissions urged by the counsel on either side. It is no doubt true that the agreement being one for sale of immovable property, the time is not the essence of contract. But, it is to be pointed out that the Apex Court has observed in the Ruling reported in 1997 (1) CTC 628 ( Vidyanandam v. K.S.V. Vairavan ) that Court should bear in mind that when parties prescribe certain time limit for taking steps the said time limit cannot be ignored altogether on ground that time is not the essence of contract relating to immovable property. Their Lordships of the Supreme Court have further held that even if time is not the essence of contract, person approaching the court should perform his part of contract within reasonable time and reasonable time should be determined by looking at all surrounding circumstances including express terms of contract and nature of property. 14. Therefore, in the context of the above ruling, if we analyse the case of the plaintiff, it will be obvious that the plaintiff has not been keen at all to have the agreement performed. It is to be pointed out that before the period fixed originally under the agreement could expire a suit was laid with reference to that property and an injunction order was obtained, restraining the alienation of the property. This injunction order was in subsistence till October, 1983. It is to be pointed out that before the period fixed originally under the agreement could expire a suit was laid with reference to that property and an injunction order was obtained, restraining the alienation of the property. This injunction order was in subsistence till October, 1983. It is admitted that steps were taken by the defendants to have the injunction application taken up early and somehow it could not be taken early and disposed of. It is obvious that because of the suit and the injunction, the parties thought it necessary to have the period extended. May be, they were of the view that hearing of the injunction petition would be expedited and disposed of within two months. Hence, it was originally extended by two months and lastly by one month and this period expired on 24.8.1981. But, the plaintiff did not choose to file the suit immediately. He waited for three months. Though the first notice was given by the plaintiff on 22.8.1981 to which a reply was sent by the defendants on 31.8.1981, the plaintiff did not choose to come to court immediately. The defendants sent the advance amount by way of cheque and expressed that the agreement should be taken as cancelled. This, the defendants did by means of a notice dated 16.10.1981. Even immediately after that, the plaintiffs did not choose to spring into action. They sent a reply on 19.10.1981, but took their own time to file a suit in November, 1981. 15. The other suit came to be dismissed for default in 1983. The present suit was disposed of in January 1984. The Supreme Court has held in the decision reported in AIR 1989 SC 17 ( In re. H.E.H Nizams Jewellery Trust ) as follows: - Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the certified copy of the judgment. The present suit was disposed of in January 1984. The Supreme Court has held in the decision reported in AIR 1989 SC 17 ( In re. H.E.H Nizams Jewellery Trust ) as follows: - Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the certified copy of the judgment. chi Gounder, (2001) 1 LW 314 , at page 321 : “Where the Clauses in a contract for sale of certain items of trust property made the passing of property dependent on tender of balance of the price by successful bidders and taking delivery of goods upon such payment and the Court, in the meanwhile, restrained the Trustees by ad interim injunction from finalising the sale and even after vacating of the injunction, the High Court ordered restoration of status quoante before any of bidders paid the balance of price as stipulated, the contract relating to sale of trust property must be deemed to be frustrated.” Now, considering the circumstances of the case, one has to hold that the agreement stands frustrated. Therefore, the defendants have to be relieved of the burden of contract. 16. There is yet another aspect to be taken note of at this stage. Section 56 of the Contract Act relates to frustration. It specifies that a contract to do an Act which, after the contract is made, becomes impossible, or by reason of some event which the promissor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. The Apex Court had an occasion to consider the doctrine embodied in Section 56 of the Contract Act, in a case known as Sathyabrata Ghose Case wherein it was laid down as follows: — “The first paragraph of the Section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The working of this paragraph is quite general, and though the illustrations attached to it are not all happy, they cannot derogate from the general words used in the enactment. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The working of this paragraph is quite general, and though the illustrations attached to it are not all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word ‘impossible’ has not been used herein the sense of physical or literal impossibility. The performance of an act may not be literally possible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change or circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do.” ( 1954 SCR 310 ) Thus frustration by breach arises where the failure of performance is due to the act or default of one of the parties. But, true frustration will occur only if the frustration event was not caused by the fault of either party to the contract. Therefore, where there is true frustration, the contract is determined automatically, and it cannot be continued by affirmation. 17. The Supreme Court has held in the decision reported in AIR 1980 SC 1149 ( Union of India v. C. Damani and Co. ) that mere is an implied condition in ordinary contracts that the parties shall be exonerated in case, before the breach, the performance becomes impossible on account of physical causes or legal prohibition. It is also to be pointed out that the Supreme Court has held on AIR 1954 S.C. 44 ( C. Satyabrata v. Mugneerran ) that the unqualified language of the Act, which lays down a positive rule of law does not leave the matter to be determined according to the intention of the parties. Thus, the position of law is that the doctrine of frustration takes note of not only physical or literal impossibility, but also of circumstances which make it impossible and illegal on the part of one of the parties to perform the contract. Thus, the position of law is that the doctrine of frustration takes note of not only physical or literal impossibility, but also of circumstances which make it impossible and illegal on the part of one of the parties to perform the contract. Therefore, if mere is basis in a given case indicating that the very root of it has been shaken b y supervening events, men it will be impracticable to expect the performance by a reasonable and prudent man, then the Court has to step in and excuse the performance. Therefore, the word ‘impossible’ has to be taken in a practical and literal sense. Thus, it is an aspect or part of law of discharge of contract by reason of the supervening act of impossibility or illegality. It is therefore, an event which comes into play subsequently by reason of the circumstances making it out beyond the control of the parties. It brings about a change in the circumstances, making it not possible for one of the parties to the contract to perform the same. Therefore, when the whole performance or basis of the contract has been frustrated by an unexpected event or by reason of change in the circumstances, which was not contemplated by the parties on the date of contract, and which was not in existence, then the doctrine or frustration has to be applied to relieve a person of the obligation under the Act. Thus, Section 56 of the Indian Contract Act lays down a positive rule relating to frustration and does not leave the matter of frustration to the Courts to be determined according to the intention of the parties. (Vide AIR 1968 522 Naihati Jute Mills v. Khyaliram ). The Courts therefore, cannot travel outside the terms of the contract. The court has to examine the contract, the intention of the parties, the circumstances under which it was made and whether the very basis of the adventure has been affected by the circumstances which came into existence subsequently. 18. In 1965 (2) SCR 630, 637 ( Mugneeran & Co. The Courts therefore, cannot travel outside the terms of the contract. The court has to examine the contract, the intention of the parties, the circumstances under which it was made and whether the very basis of the adventure has been affected by the circumstances which came into existence subsequently. 18. In 1965 (2) SCR 630, 637 ( Mugneeran & Co. v. Gurbachan Singh ), the Apex Court has held that if time is of the essence of the contract or if time for performance is set out in the contract, it may be that it would stand discharged even though its performance may have been rendered unlawful for an indeterminate period provided unlawfulness attached to the performance contract at the time it ought to have been performed. 19. Here, in this case, the parties had intended that the time should be the essence of the contract. It was so specifically adverted to and pleaded by the plaintiff. Originally 90 days period was fixed for completion of the agreement. It was subsequently extended by 60 days and again by another 30 days. Though the Rule is that time cannot be essence of the contract relating to immovable property, it has to be taken that it must be performed within a reasonable time, and what is reasonable time has to be determined by looking at of the surrounding circumstances in a given case. Before 30 days period could come to an end, a suit has been laid and an order of injunction has been obtained. Therefore, the parties agreed for extention of time and in that background, the time for performance was extended twice. The plaintiffs did not choose to issue notice before the expiry of 30 days or before the expiry of the first extended time viz., within 60 days of the 90 days or within 30 days of the extended 60 days. The plaintiffs were party to the suit filed by the said Rangathal and Ramasamy. An order of injunction has been obtained as against the plaintiffs as well. In spite of it, they give notice without referring to the injunction order and without stating that they are willing to obtain the sale deed executed or calling upon the other parties to the agreement to take steps to have the injunction vacated. In the plaint, nothing stated at all about the subsistence of the injunction order. In spite of it, they give notice without referring to the injunction order and without stating that they are willing to obtain the sale deed executed or calling upon the other parties to the agreement to take steps to have the injunction vacated. In the plaint, nothing stated at all about the subsistence of the injunction order. Thus, mere has been suppression of the material fact. When the injunction was pending, the present suit for specific performance was laid. From the very admission of P.W.1, it is clear that the defendants did take steps to have the injunction vacated. It is also seen mat the plaintiffs herein, as one of the defendants, did not file the written statement within time and did not choose to file counter to the injunction application, but took their own time. It is only after filing of the suit for specific performance, the plaintiffs had chosen to file the written statement to the other suit and counter as well. Even before the plaintiffs could file the suit, the defendants not only returned the advance amount, but also stand specifically that because of the change in the circumstances, in view of the injunction obtained, they are not able to perform the contract and they are not willing to have the contract kept alive and hence have declared that the agreement will stand cancelled. Thereafter only, the plaintiffs have come forward with the suit. P.W.1 admits that they entered into the agreement with a view to put up a factory in the place. He further admits that had they known that immediate possession was not possible, they would not have entered into the agreement. 20. It is to be pointed out that the agreement contains some provisions, which runs as follows: — Tamil Thus, the agreement does not provide that if there is any default on the party of the 2nd party, they are only liable to return the advance along with an equal sum of rupees as damages to the party of the 1st party. There is no provision in the agreement, empowering the party of the 1st part mentioning or stating that the party of the 1st part, if default is committed by the party of the 2nd party are entitled to proceed before the competent court of law to obtain specific performance of the agreement. There is no provision in the agreement, empowering the party of the 1st part mentioning or stating that the party of the 1st part, if default is committed by the party of the 2nd party are entitled to proceed before the competent court of law to obtain specific performance of the agreement. The absence of such a recital in the agreement is a definite indication that the plaintiffs cannot ask for specific performance of the agreement in such circumstances. 21. It is to be pointed out that D.W.1 has stated clearly that they filed an application for expediting the disposal of the injunction application but as the plaintiffs had failed to file the counter in time, the said application was dismissed. He has further stated that the plaintiffs had filed the counter only 1-years after obtaining of the injunction order. He further asserts that it is only an account of the conduct and attitude of the plaintiffs, the order of injunction could not be vacated in time. It is further asserted by D.W.1 that they took all necessary steps to have the injunction order vacated. He would further say that when the agreement period was extended by 30 days, it was agreed between the parties that if the injunction is not vacated by then, the advance shall be refunded to the plaintiffs and the agreement shall stand cancelled. In the cross-examination, it has been further elicited that the value of the land is considerably increased since the date of agreement. In fact one of the reasons stated by the plaintiffs for failure of the defendants to perform the agreement is that the price of the land has increased. Again and again, D.W.1 has stated clearly that the failure to perform the obligations under the agreement was solely because of the interim injunction passed against them by the court. It is also spoken to by D.W.1 mat the suit was laid by Rangathal and Ramasamy two months after the date of agreement. But, in that two months there was no demand made by the plaintiffs for the performance of the contract. D.W.1 was examined in court about six months after dismissal of the suit filed by Rangathal and Ramaswamy. It is also spoken to by D.W.1 mat the suit was laid by Rangathal and Ramasamy two months after the date of agreement. But, in that two months there was no demand made by the plaintiffs for the performance of the contract. D.W.1 was examined in court about six months after dismissal of the suit filed by Rangathal and Ramaswamy. Definitely, it has been stated D.W.1 that as the prices of the property had increased two fold and as they are still cultivating the property and residing in a portion of the property, they are unable to perform contract. The suggestion was not made to D.W.1 that they delayed the hearing in the injunction petition. But, on the other hand, the circumstances and the evidence of D.W.1 would clearly show that all the necessary steps were taken by the defendants to have expeditious disposal of the injunction petition. On the other hand, it is only the plaintiffs who took their own time to file their counter to the injunction application. 23. The agreement was executed on 24.2.1981. The suit for specific performance was filed in November, 1981. It was disposed of by the Subordinate Judge, Coimbatore on 29.4.1984. The present suit has been laid immediately. Now, we are in the year 1999. Definitely, the price of the property would have increased if not ten fold, at least four fold. Now, if such an agreement is ordered to be executed, definitely some hardship and injustice will be caused to the defendants. It will definitely place the plaintiffs in advantageous position and such an advantage will be only an unfair advantage, which the plaintiffs will have over the defendants. Further the plaintiffs have not come to court with clean hands. The obtaining of injunction and the fact that it was in force when the suit was filed are not at all to adverted to in the plaint. It is nowhere stated in the plaint that the defendants failed to take steps to have the interim injunction vacated or that the plaintiffs have been clamouring and insisting upon the defendants to do so and that despite the same, the defendants did not take any steps. Thus, while the injunction is pending the suit for specific performance is laid without making any mention of the subsistence of the injunction order. Thus, the plaintiffs have supressed the truth. 24. Thus, while the injunction is pending the suit for specific performance is laid without making any mention of the subsistence of the injunction order. Thus, the plaintiffs have supressed the truth. 24. Jurisdiction of the courts to decree specific performance is only discretionary. For, it is an equitable relief, such discretion has to be exercised by the Court on sound and reasonable principles, solely guided by judicial precedents. Courts grant the relief of specific performance, not because it is permissable under law, but because it is just and necessary to afford such relief. Section 56 of the Contract Act provides one of the grounds for discharge from the contract. 25. As pointed out by the already, it is not physical or literal impossibility. Here, in this case, on account of the injunction order, the time for performance was extended twice by the parties. Immediately, the defendants have written to say that on account of the injunction order pending and subsisting, they are unable to perform the contract and requested the plaintiffs to treat it as cancelled. Only after that, the plaintiffs choose to rush to court and in doing so, they have committed an act of suppression in not mentioning about the subsistence of the injunction order or about the steps taken by the defendants to have the injunction vacated. Therefore, all these circumstances would point out that this is not a fit case, where the plaintiffs can be held to be entitled to the discretionary relief of specific performance of the agreement. They have not come to court with clean hands, but have suppressed the truth. They have themselves contributed for the continuance of the injunction by not filing counter within reasonable time. It is clear from the intention of the parties that the plaintiffs wanted immediate possession, so that they could put up factory in mat property. But, it was known to them that even as on the date, when further extension of the period of agreement was made it was not to be. Even within reasonable time, the performance could not be achieved, for which the defendants can never be made responsible. The suggestion of the plaintiffs is that it is a collusive suit. If it was so, the defendants would not have allowed the suit to be dismissed for default. Even within reasonable time, the performance could not be achieved, for which the defendants can never be made responsible. The suggestion of the plaintiffs is that it is a collusive suit. If it was so, the defendants would not have allowed the suit to be dismissed for default. When the intention was to defeat the agreement, the defendants would see to it that the litigation does not end in such a manner, but is prolonged. Therefore, the suggestion that it is collusive suit, is a suggestion made for the purpose of this case. 26. Further part, the plaintiffs have not been keen in having the order of injunction vacated. In fact, the fact that this suit came to be filed after ten months would show that they also not keen about the suit being taken up and tried. Therefore, it is only a gambling litigation resorted to by the plaintiffs. Finding that the value of the property has gone up now they want to pin down the defendants to their agreement which has become due. 27. The lower court has approached this matter from a proper perspective. It has taken into account the necessary facts and particulars placed before the court. The decision of the trial Court that it is not a fit case, where the plaintiffs can be granted specific performance, is a decision arrived at justly and properly. Neither in law nor on facts, the plaintiffs can claim specific performance of the contract. Hence, in such circumstances, I have to hold that the plaintiffs are not entitled to the specific performance of the agreement dated 24.2.1981 and that the contract became frustrated and therefore, the defendants are entitled to be discharged from the obligations under the contract. Thus, there is no merit in this appeal. 28. In the result, the appeal is dismissed, with costs.