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Karnataka High Court · body

2010 DIGILAW 690 (KAR)

T. Krishna Murthy v. Gangadharaiah

2010-06-07

A.S.PACHHAPURE

body2010
Judgment The appellant has challenged the decree for specific performance granted against him on the suit instituted by the respondent. 2. The facts relevant for the purpose of this appeal are as under: The parties will be referred as per their rank before the Trial Court for the purpose of convenience. The respondent herein is the plaintiff whereas the appellant is the defendant in the Court below. The defendant entered into an agreement of sale of his property at No.134, Rajainagar, III Stage (Slum) Extension, Bangalore City Corporation, Old Division No.3 Bangalore City, measuring 17 feet East West and 24 feet North West. The agreement of sale was executed by the defendant on 9.2.1987 for a sale consideration of Rs.40,000/-. The defendant received the advance amount of Rs.5,000/- on the date of the agreement and agreed to execute the sale deed in favour of the plaintiff by accepting the balance consideration of Rs.35,000/- at the time of the registration. Though the defendant agreed to execute the sale deed within four months, he failed to do so and on demand by the plaintiff, he pleaded for some more time to secure the documents like sale deed, encumbrance certificate, tax paid receipts, possession certificate an to vacate the tenant in possession to give vacant possession of the suit property. As the defendant did not execute the sale deed as assured requested for time and as per the endorsement dated 7.6.1987 one more month was granted to him. 3. The defendant failed to comply the terms of the agreement despite the readiness on the part of the plaintiff to pay the remaining sale consideration of Rs.35,000/- and as such, the plaintiff issued a legal notice dated 29.7.1987 calling upon him to perform his part of the contract. After the receipt of the notice, the defendant gave reply denying the execution of the agreement of sale and plaintiff waited for sufficient time and also made a personal approach to the defendant to execute the sale deed, who went on postponing the same and did not execute the document as agreed upon. After the receipt of the notice, the defendant gave reply denying the execution of the agreement of sale and plaintiff waited for sufficient time and also made a personal approach to the defendant to execute the sale deed, who went on postponing the same and did not execute the document as agreed upon. The defendant also furnished the Xerox copies of the possession certificate, khatha certificate, allotment letter, tax paid receipts etc., obtained from the Bangalore Development Authority and as defendant was to obtain the sale deed and Encumbrance Certificate in his favour and to keep the property vacant for the execution of the sale deed, the plaintiff was waiting for the same. 4. The defendant also executed the agreement of sale of the property bearing No.97 situated in the same extension belonging to his mother by accepting a sum of Rs.5,000/- agreeing to execute the sale deed through his mother. The plaintiff having learnt the fraudulent acts of the defendant and having no other way, approached the Court for a decree of specific performance of the contract of sale. 5. The plaintiff submits that he has been ready and willing to pay the remaining sale consideration of Rs.35,000/- at the time of registration of the sale deed and to perform his part of the contract under the agreement dated 9.2.1987. He submits that the defendant has failed to perform his part of the contract and hence, was constrained to institute the suit seeking a decree for specific performance of the contract of sale dated 9.2.1987. 6. The defendant filed his written statement denying the allegations made and also the contents of the notice issued and disputed the execution of the sale agreement in favour of the plaintiff. He also denied the endorsement on the sale deed with regard to the extension of time of one month. It is his contention that he was in need of Rs.5,000/- and approached one Sri.Venkatagiriyappa for financial assistance who introduced the plaintiff and said that he would lend the money. The plaintiff demanded the signature on a blank stamp paper and hoping the plaintiff, being the Police Constable, will not misuse the signature signed the said blank paper as a security for the amount of Rs.5,000/- borrowed. The plaintiff demanded the signature on a blank stamp paper and hoping the plaintiff, being the Police Constable, will not misuse the signature signed the said blank paper as a security for the amount of Rs.5,000/- borrowed. He was taken to Rajajinagar Police Station on 21.7.1987 and after his detention in the prison for one day and at the instance of the plaintiff and the Circle Inspector, demanded for signature of the defendant on some other papers stating that it would be taken for prompt return of the amount. The defendant having been scared simply signed the documents but never had agreed to sell the suit property. He submits that the plaintiff has played fraud, misrepresentation and coercion and therefore, he is not liable to perform any part of the contract. He submits that the suit is not maintainable and that the value of the suit property in the year 1987 was more than Rs.1,50,000/- and there was no question of selling the property for a meager amount of Rs.40,000/-. So also, it is his contention that in case if the sale deed is not executed, as mentioned in the agreement, at the most, the defendant has to pay the damage of Rs.5,000/- and get the sale deed cancelled. On these grounds he submits that the plaintiff is not entitled to enforce the alleged sale agreement. Hence, he sought for dismissal of the suit. On the basis of these pleadings, the Trial Court has framed the following issues. 1. Does the plaintiff prove execution of Agreement of sale on 1. 9.2.87 by the defendant in respect of suit property endorsement 7.6.87? 2. Does the defendant prove playing fraud misrepresentation and coersion by the plaintiff himself or otherwise? 3. Does the plaintiff prove that he has been ever ready to perform his part of the contract? 4. Whether the plaintiff is entitled for a decree for specific performance? 5. To what relief the plaintiff are entitled?” 7. The plaintiff was examined as PW.1 and two witnesses as PWs.2 and 3 and the documents Exs.P.1 to P.8 were marked. The defendant is examined as DW.1. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record granted the decree for specific performance of contract by directing to execute the registered sale deed on receipt of the remaining sale consideration of Rs.35,000/-. The defendant is examined as DW.1. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record granted the decree for specific performance of contract by directing to execute the registered sale deed on receipt of the remaining sale consideration of Rs.35,000/-. Aggrieved by the judgment and decree, the defendant has approached this Court in appeal. 8. I have heard the learned counsel for the appellant and also the respondent. The points that arise for my consideration are: 1. Whether the decree passed by the Trail Court directing the defendant to execute the sale deed after receiving the remaining sale consideration is erroneous and illegal? 2. What order? 9. It is the contention of the learned counsel for the appellant that the agreement dated 9.2.1987 has not been proved and that the suit property was allotted to the defendant who had no subsisting title as on the date of the transaction and therefore he cannot sell the property. It is also his contention that there is a clause for cancellation of the agreement at the instance of the defaulting party and the suit for specific performance is not maintainable. Furthermore, he submits that there is no material placed on record by the plaintiff to prove that he was ever ready and wiling to perform his part of the contract and in the circumstances, the plaintiff cannot claim a decree for specific performance. It is also his contention that there is an inordinate delay of 2½ years and the plaintiff was keeping quite without taking any steps for payment of balance sale consideration and this itself is a sufficient ground to reject the claim. The counsel has also relied upon the decisions in support of his claim and they will be referred to hereafter. 10. Per contra, the learned counsel for the respondent submits that the Trial Court on appreciation of the material on record has arrived at a just decision in granting a decree for specific performance and as the time was not the essence of the contract and the plaintiff had sufficient time to institute the suit as provided in law and was making hectic efforts by approaching the defendant to execute the sale deed, the delay if any has been properly explained and the Trial Court after accepting the same, has rightly granted a decree. He submits that the clause for cancellation of the agreement at the instance of both the parties is not a ground to reject the relief of specific performance of the contract and that the defendant has not taken any such contention in the written statement that he had no title to the property and that for the first time in this appeal, a contention has been raised without amending the pleadings. So also, he submits that there is ample material on record to prove the execution of the agreement at Ex.P.1 and that the defendant has received part of the sale consideration whereas the plaintiff was ready and willing to pay the remaining sale consideration and therefore he submits that the Court below was right in granting the decree and that the appellant has not made out any grounds to call for interference. 11. So far as the facts are concerned, the plaintiff pleads the execution of Ex.P.1, the agreement of sale on 9.2.1987 for a consideration of Rs.40,000/- and at the time of the execution of the document, an amount of Rs.5,000/- was paid in advance. So also, he states that he was ready and willing to perform his part of the contract by paying the remaining sale consideration of Rs.35,000/- and as the defendant did not take any steps, the plaintiff was constrained to issue the legal notice dated 29.7.1987 calling upon the defendant to execute the sale deed by receiving the remaining sale consideration. It is also pleaded that after the denial of the agreement by way of a reply notice, the plaintiff approached the defendant on many occasions and as the defendant ultimately failed to execute the sale deed, he was constrained to institute the suit. The agreement of sale has been produced at Ex.P.1. There is no dispute as regards the signature of the defendant on this document. Exs.P.2, P.3, P.4 and P.5 are the xerox copies of the possession certificate, allotment letter and tax paid receipts. Ex.P.1 (a) is the endorsement on Ex.P.1 extending the time for a month to execute the sale deed. Ex.P.6 is the notice issued by the plaintiff whereas Ex.P.7 is the reply of the defendant. The pleadings reveal that the defendant had also executed another agreement of sale of the property of his mother in respect of which O.S.No.901/1990 was instituted. Ex.P.1 (a) is the endorsement on Ex.P.1 extending the time for a month to execute the sale deed. Ex.P.6 is the notice issued by the plaintiff whereas Ex.P.7 is the reply of the defendant. The pleadings reveal that the defendant had also executed another agreement of sale of the property of his mother in respect of which O.S.No.901/1990 was instituted. In the suit, the defendant was examined and his deposition has been produced at Ex.P.8. The defendant admits having deposed before the Court in O.S.No.901/1990 and in the last para of his deposition in the said suit, he states: “On that day, I agreed to sell my property to the plaintiff’s husband for Rs.40,000/-. I received an advance of Rs.5,000/- on that day. I did not give any documents to anybody on that day.” This portion of his deposition has been marked as Ex.P.8 (a). The plaintiff in this suit is the husband of plaintiff in O.S.No.901/90. Though the defendant denied in his written statement about the execution of the sale agreement and stated in para 6 of his written statement that he was in need of Rs.5,000/- and approached one Venkatagiriyappa for financial assistance, who introduced the plaintiff and the plaintiff lent the money to him and when he demanded the signature on a blank stamp paper, he signed the same as a security for repayment of Rs.5,000/-. So the defendant has given a go-bye to his dedence raised by him in his written statement at para 6 and in the suit filed by the wife of the plaintiff with regard to the execution of agreement of sale of the property of the mother of the defendant in O.S. No.901/1990, he admits the execution of the sale agreement in favour of the plaintiff for a consideration of Rs.40,000/- and also admits that he received an advance amount of Rs.5,000/-. So this version of the defendant as could be seen in the written statement and the deposition would clearly lead to the only inference that in the written statement, he took a false contention before the Court that the document Ex.P.1 was in the nature of a document of security for the loan amount of Rs.5,000/- whereas he made a statement on oath before the Court in O.S.No.901/1990 stating that it was an agreement of sale for Rs.40,000/- and that he received an advance amount of Rs.5,000/-. So this conduct of the defendant is an act of misrepresenting the Court and making a false statement denying the execution of Ex.P.1. So, when on oath before the Court the defendant admits the sale agreement Ex.P.1, he cannot now say that there is no sale agreement in respect of the property in dispute. 12. The executor of a document and the person in whose favour the document is executed stands in the position of a Promisor and Promisee. When a document is executed and signed by the parties, it is their solemn statement in the presence of the attesting witnesses and it is necessary that both the parties must act according to the statement made by them. It is the culture of this Country that whenever any statement is made, it is said that it should be implemented, to mean that a thing preached has to be practiced by an individual. It is in these circumstances that the contents of the document executed by the parties would be binding upon them and hence generally whenever such a document is sought to be enforced, the rule is that the Courts should enforce the promise made in the document except in exceptional circumstances, if made out by the defendant in not acting according to his statement by him under the document Ex.P.1. 13. So far as the second contention with regard to the invalid title of the defendant, it is relevant to note that the plaint contains the statement that there was an agreement of sale of the property in dispute and the defendant executed an agreement of sale on 9.2.1987 and in answer to this contention, in the written statement filed by the defendant, there is no denial at all, so far as the title is concerned. The main contention that he has taken in the written statement is that this property was given as a security for a loan of Rs.5,000/- advanced by the plaintiff. Apart from this, there is no contention in the written statement that he does not have any title to this property. Likewise, if the evidence led by the parties is looked into, the defendant who has been examined as DW.1 does not dispute in his evidence that he is not the owner of the suit property or that he does not have a title to the same. Likewise, if the evidence led by the parties is looked into, the defendant who has been examined as DW.1 does not dispute in his evidence that he is not the owner of the suit property or that he does not have a title to the same. In the absence of any pleading or contention by the defendant, any amount of evidence cannot be considered to fill up the lacunae in the pleadings. On this aspect of the matter, the learned counsel for the appellant has placed reliance on the decision of the High Court of Madras reported in AIR 1975 Madras 379 (Rajendrakumar Bhandar v. Poosammal and others) in the following circumstances it is held: “A, the lesse of B, obtained a declaration entitling him under Section 9 of City Tenants Protection Act (Madras) to purchase the land over which he had put up a structure. He was allowed to pay the price in installments. Before his title was perfected he entered into an agreement with C to sell the land. Later on, A Committed defaults in payment of installments and when B sued for his eviction, A surrendered the land to B. Thereafter, when C brought a suit for specific performance of contract. Held that A had no transferable right when he entered into the agreement of sale with C. Even if C was ready and willing to perform his part of contract he lost his right to ask A for specific performance when A surrendered the land to B. Thus A having no marketable title or a title free from reasonable doubt. C was not entitled to specific performance as a matter of right or even in equity. Title cannot be understood as something equivalent to a process involving making of title. In order to convey property the vender should have a present right or interest in immovable property which he contracts to convey. A title which has not been perfected and which cannot rationally be said to be free from doubt is no title at all.” 14. At the first instance, the above principle could have been considered if the defendant had disputed title in his written statement. In the absence of any such defence and any evidence on record disputing the title, the above principle cannot be made applicable. At the first instance, the above principle could have been considered if the defendant had disputed title in his written statement. In the absence of any such defence and any evidence on record disputing the title, the above principle cannot be made applicable. Even otherwise, as could be seen from the facts of the case referred to supra, the lessee was allowed to pay the price in installments to get the title. The installments were not paid, there was default on his part and the lessor sued for his eviction and the lessor surrendered the land to the lessor. It is in such circumstances that the vendee had filed a suit for specific performance of the contract against ‘A’ and it was held that ‘A’ had no transferable right to the property. Considering the facts on hand, though there is no defence in the written statement disputing the title, the evidence reveals that the site in question was allotted by the Bangalore Development Authority to the defendant. He is in possession of the same and this possession continues since from the date of allotment until now. There is no interference by a third party as regards the allotment made. The plaintiff has produced the Xerox copies of the documents which are the allotment letters, possession certificate etc., and there is no dispute as regards the defendant being an allottee or a person in possession of the property and there is nothing on record to show that there was any default by the defendant in paying the installment or any consideration for allotment of the site in his favour. It is in such circumstances, I am of the opinion that this decision cannot be applied to the facts on hand, firstly, on the ground that the defendant has not disputed his title; secondly, that the evidence cannot be looked into as there is no such pleading disputing the title and thirdly, the facts in the case referred are all together different from the facts on hand. 15. As the defendant has admitted in his evidence in O.S. No.901/1990 regarding the execution of the sale agreement in faovur of the plaintiff as per Ex.P.1 and as there is no dispute with regard to the signature on this document, Ex.P.1 will have to be taken as proved. 15. As the defendant has admitted in his evidence in O.S. No.901/1990 regarding the execution of the sale agreement in faovur of the plaintiff as per Ex.P.1 and as there is no dispute with regard to the signature on this document, Ex.P.1 will have to be taken as proved. Furthermore, the plaintiff apart from examining himself as PW.1 has also examined PW.2 who speaks about the execution of the document, his presence at that time and signing the document as per Ex.P.1 (b) in the presence of the parties. Though PW.2 is the Police Constable and as the plaintiff is also a person working in the Police Department, it cannot be said that there was compulsion so far as the execution of Ex.P.1 is concerned. Even otherwise, in Ex.P.8, there is an admission by the defendant himself that he has executed the sale agreement Ex.P.1. So taking into consideration the evidence of PWs.1 and 2, the contents of Ex.P.1 and the document Ex.P.8, I am of the opinion that this material is sufficient to hold that the plaintiff is successful in proving the document Ex.P.1. 16. As could be seen from this document, the defendant agreed to sell the property for a consideration of Rs.40,000/-and on the date of agreement, he received an amount of Rs.5,000/-. The document was executed on 9.2.1987. There is also a condition that the defendant would vacate the tenant who is in possession of the property and then execute the sale deed in favour of the vendee. He had also to obtain certain documents from the Bangalore Development Authority. He agreed that on payment of Rs.35,000/-, he would execute the sale deed. There is a default clause that in case if the defendant is not able to execute the document, apart from advance amount of Rs.5,000/-, he would pay the compensation of Rs.5,000/-to the plaintiff and cancel this deed. So also, there is a clause that in case if the plaintiff does not pay the amount of Rs.35,000/- within the period agreed, the amount of Rs.5,000/- paid in advance would be forfeited and the document would be cancelled. So also, there is a clause that in case if the plaintiff does not pay the amount of Rs.35,000/- within the period agreed, the amount of Rs.5,000/- paid in advance would be forfeited and the document would be cancelled. Now so far as this default clause is concerned, a specific contention has been raised by both the parties and the appellant contends that whenever there is a default clause in the document and the default is committed, in such circumstances, it is not proper to direct the specific performance of the contract. On this aspect of the matter, the learned counsel for the appellant has placed reliance on the decision of the Apex Court reported in 1999 (9) Supreme 103 (Dadarao and another Vs. Ramrao and others). The perusal of the facts reveal that the agreement contemplated that on or before 15th April 1972, the sale deed would be executed and that the agreement itself provides as to what is to happen if either the seller refuses the sale or the purchaser refuses to buy and in that event, the agreement provides that in addition to the earnest money of Rs.1,000/-, a sum of Rs.500/- was to be given back to the vendee and that no sale deed will be executed. Considering this aspect of the matter, the Apex Court held as under: “6. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the court for a decree of specific performance but here the parties to the agreement had agreed that even if the sellor did not want to execute the sale deed he would only be required to refund the amount of Rs.1,000/- plus pay Rs.500/- in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction.” 17. In the decision reported in 2007 AIR SCW 1383 (P.S. Ranakrishna Reddy Vs. M.K.Bhagyalakshmi & Anr.), it was held by the Apex Court in para 15 of the judgment which reads as under: “15. The decision of this Court in Dadarao (supra), whereupon reliance has been placed by Mr.Chandrashekhar is wholly misplaced. The term of the agreement therein was absolutely different. M.K.Bhagyalakshmi & Anr.), it was held by the Apex Court in para 15 of the judgment which reads as under: “15. The decision of this Court in Dadarao (supra), whereupon reliance has been placed by Mr.Chandrashekhar is wholly misplaced. The term of the agreement therein was absolutely different. We need not dilate on the said decision in view of the fact that in a subsequent decision of this Court in P.D’Souza v. Shondrilo Naidu (2004) 6 SCC 649 ), it has been held to have been rendered per incuriam, stating: “34. In Dadarao whereupon Mr. Bhat placed strong reliance, the binding decision of M.L. Devender Singh was not noticed. This Court furthermore failed to notice and consider the provisions of Section 23 of the Specific Relief Act, 1963. The said decision, thus, was rendered per incuriam.” 18. So taking into consideration these facts the decision reported in 1999 (9) Supreme 103 (Dadarao and another Vs. Ramrao and others) as per incurium, I do not think that the appellant can take advantage of the said decision. 19. So far as the third contention regarding the default clause in the document at Ex.P.1, the learned counsel for the appellant has relied upon the decision reported in ILR 2003 Kar 4206 (Lt.Col.K.C.Bheemaiah vs. Kakamada A.Kuttappa and others) wherein it is held as under: “11. Let us then examine whether the agreement set up by the plaintiff in the instant case is one that can be specifically enforced against the defendants. The Trial Court has held and in our opinion rightly so that Clause-6 of the agreement was a part of the transaction not because of any compassion that was being shown to the defendants, but because the parties had agreed to incorporate such a clause in the agreement. A careful reading of Clause-6 would however show that there is no unconditional and unequivocal offer by the defendants-vendors to sell the suit schedule property to the plaintiff-vendee. The Clause on the contrary recognizes in no uncertain terms the right of the defendants-vendors to decline a sale in favour of the plaintiff at their option. The exercise of the option is not regulated by any considerations capable of being ascertained or examined by a Court of law. The discretion to retain the property or the option not to sell the same to the plaintiff-vendee is absolute and unequivocal. The exercise of the option is not regulated by any considerations capable of being ascertained or examined by a Court of law. The discretion to retain the property or the option not to sell the same to the plaintiff-vendee is absolute and unequivocal. Such being the case, even when the Sale Deed had to be executed before 24.4.1991 and so had the option to retain the property to be exercised before that date, the Agreement to Sell was at the option of the vendors terminable. The vendors could at their sweet will and option put an end to the agreement by delivering to the plaintiff-vendee the amount received by hem with interest at the stipulated rate. Whether or not, the amount was really offered with or without interest is not material for purposes of determining the true nature of the arrangement between the parties. The question is not whether the amount was actually offered within the period stipulated, thereby putting the arrangement to an end. The question is whether the agreement could at the option of the defendants-vendors have been put to an end by paying to the vendors the amount received from him with interest. If the answer be in the affirmative, the case would squarely fall under Section 14(c) of the Specific Relief Act, 1963 making the contract unenforceable. We may at this stage mention that learned Counsel for the parties had fairly conceded that the time stipulated for execution of the Sale Deed was not the essence of the contract. If that be so, just as a sale deed could have been executed beyond the stipulated period so also the option to retain the property could have been exercised by the vendors beyond the said date. It follows that the right given to the vendors to retain the property at their will was exercisable y them at their discretion not only upto 24.4.1991, but even beyond, thereby meaning that the agreement executed between the parties did not in essence constitute an agreement to sell the suit property nor could such an agreement be a basis for a decree for specific performance”. 20. Now, as could be seen from Ex.P.1, so far as the inability of the defendant to execute the sale deed is concerned, a clause was provided in Ex.P.1 with a condition to refund the amount of advance and to pay compensation of Rs.5,000/-. 20. Now, as could be seen from Ex.P.1, so far as the inability of the defendant to execute the sale deed is concerned, a clause was provided in Ex.P.1 with a condition to refund the amount of advance and to pay compensation of Rs.5,000/-. But at any time during the period or till the date of the institution of the suit, the defendant neither repaid the amount of Rs.5,000/- or the compensation and cancelled the agreement. The defendant under this document has undertaken that after paying the advance amount and the compensation, he would cancel the deed. So atleast, the defendant ought to have issued a notice cancelling the document and paying the amount as agreed upon under the agreement of sale. Furthermore, when according to the defendant, the plaintiff did not pay the amount of Rs.35,000/-, the amount of Rs.5,000/- was to be forfeited. The defendant never forfeited the amount of Rs.5,000/- paid in advance. So in the absence of the enforcement of this clause in Ex.P.1, it cannot be said that the contract of sale is not enforceable. If the defendant had taken the steps to repay the amount of advance and the compensation and cancel the document, there could have been some justification to say that the contract at Ex.P.1 cannot be enforced in law. This inaction on the part of the defendant addition to the fact that he took the defence that there is no contract of sale and that it was a document by way of security for the amount of Rs.5,000/-and later having been admitted in the evidence about the execution of the agreement of sale, disentitles him to put forth any such plea to refuse the specific performance. As could be seen from the decision of this Court referred to supra, the clause on the contrary recognises in no uncertain terms of the right of the defendants vendors to decline a sale in favour of the plaintiff as their option and in such circumstances, this Court held that the specific performance cannot be granted. Thereby, the fats are altogether different and cannot be made applicable to the facts on hand. 21. Thereby, the fats are altogether different and cannot be made applicable to the facts on hand. 21. The counsel for the respondent has placed reliance on the decision of the Apex Court reported in AIR 1973 SC 2457 (M.L.Devender Singh v. Syed Khaja) wherein the Apex Court taking into consideration the explanation to Sections 20, 23 and 10 of the Specific Relief Act has held that the provision for damages or penalty for breach is not sufficient to rebut the presumption. The Apex Court also held that the jurisdiction of the Court cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. It further held that under the provisions of Section 20 of the old Act (corresponding to Section 23 of the Act of 1963), the Court has to determine on the facts and circumstances of each case before it, whether specific performance of a contract to convey a property ought to be granted. 22. Furthermore, in AIR 1991 Madras 163 (Ramani Ammal v. Susilammal) the Division Bench of the High Court held that the default clause providing for cancellation of contract on the default committed both by the plaintiff and defendant is not a bar to grant specific performance. The Apex Court in the decision reported in AIR 1971 SC 1238 (Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal (dead) by his legal representatives and others) held that the discretion to grant the relief of specific performance wherein the defendant agreeing to sell his lease hold right in plot to A wherein a condition of lease requiring R to obtain sanction of authority for transfer, the amount of earnest money and cancelling contract without applying for sanction, the suit was filed for specific performance and there was readiness and willingness to perform his part of the contract and it was held by the Apex Court that the plaintiff is entitled to a decree for specific performance. So also, in AIR 2000 SC 191 (Manzoor Ahmed Magray v. Gulam Hassan Aram) the Apex Court taking into consideration the fact that the suit property was a joint family property and the plaintiff and his son had 2/3rd share, who had also executed an agreement of sale for whole of the suit property, the Apex Court held that the suit to enforce the contract to the extent of the share of the plaintiff is not barred. 23. Furthermore, the counsel has relied upon a decision reported in 2007 AIR SCW 1383 (P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi & Anr.). The facts reveal that there was a term in the agreement that if the vendor has committed breach of the agreement, he shall refund the amount received and shall in addition to it, pay Rs.10,000/- as damages. In case, if the purchaser commits the breach, the amount of Rs.10,000/- paid in advance was to be forfeited. The Apex Court held that the agreement holder is entitled for specific performance. 24. Further, in AIR 1979 SC 1241 (Prakash Chandra vs. Angadlal and others) wherein there was an amicable settlement between the parties and it was held by the Apex Court that it does not bar the enforcement of the contract of sale. 25. The learned counsel for the appellant relying upon the decision of the Apex Court in AIR 1996 SC 1504 (M/s.P.R.Deb and Associates, v. Sunanda Roy) contended that when the purchaser was to make the part payment within the stipulated time, the failure on the part of the respondent to comply with the terms of the agreement affected the appellants right to purchase suitable accommodation for himself out of the part payment and the respondent was unwilling to perform his part of the contract, it was held that the decree for specific performance cannot be granted. It is relevant to note that so far as the payment is concerned, the defendant had received an amount of Rs.5,000./- at the time of the execution of the document ad he himself requested for extension of time to execute the document by an endorsement as per Ex.P.8 (a) and despite the fact that the had to vacate the tenant in possession of the property and produce certain records, did not do so till the institution of the suit. Hence, he cannot blame the plaintiff for inaction on his part as it was a part of the contract of the defendant that was to be enforced by vacating the tenant and producing the relevant records. In such circumstances, the decision referred to supra is of no help to the appellant. Hence, he cannot blame the plaintiff for inaction on his part as it was a part of the contract of the defendant that was to be enforced by vacating the tenant and producing the relevant records. In such circumstances, the decision referred to supra is of no help to the appellant. Furthermore, he relied upon the decision reported in AIR 1996 SC 2095 (His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar) wherein the Apex Court taking into consideration the term “ready and willing to perform” held that it has to be inferred from the conduct of the party and attending circumstances. The vendor herein was in dire need of cash amount for celebrating his daughter’s marriage and the time was the essence of the contract. The purchaser was not having enough funds to pay the consideration. The draft sale deed was not returned by him after being duly approved with seven days as stipulated and in such circumstances, the relief of specific performance was rightly refused. There are no such circumstances established by the defendant about the unwillingness of the plaintiff being ready and willing to perform his part of the contract. Much the less, as stated above, there was a denial of the agreement of sale at the first instance by filing written statement and later in the evidence, it was admitted and furthermore, when the required documents were not produced, the reply notice did not contain any inaction on the part of the plaintiff to make a statement of denial of the execution of the agreement and in such circumstances, the principle laid down in the above decision cannot be applied. 26. Finally, the learned counsel for the appellant relied upon AIR 1985 Allahabad 223 (Bijai Bahadur and others v. Shri Shiv Kumar and another) wherein the Hon’ble High Court held that the compliance of the requirements for Section 16 (c) of the Specific relief Act is mandatory and mere proof of readiness and willingness is not enough and averment to that effect is in the pleadings must be made. On this aspect of he matter, if the plaint is looked into, in para 5, it is specifically stated that the plaintiff was ready and willing to pay the balance sale consideration of Rs.35,000/- to the defendant through out on the execution of the sale deed in his favour and though he is ready to perform his part of the contract, the defendant has failed to perform his part of the contract by executing the sale deed. So apart from this pleading, the plaintiff in his evidence as PW.1 has stated that he was ready and willing to perform his part of the contract and was ready with the cash amount of Rs.35,000/- and as the defendant did not execute his part of the contract, he issued the notice, wherein the defendant replied denying the execution of the agreement itself and he state that even after the notice, he approached the defendant personally on many occasions ad as his efforts were in vain, he had to institute the suit. 27. It is no doubt true that after the reply notice Ex.P.7 is dated 17.8.1987, and the suit came to be instituted in the month of February 1990. But the plaintiff in his evidence states that even after the receipt of the notice from the defendant, he went personally to the defendant to persuade him to execute the sale deed by receiving the remaining sale consideration all along and as the defendant refused and as his efforts were in vain, he had to institute the suit. It is no doubt true that except the oral evidence of PW.1, there are no such documents in between this period but hat itself is not sufficient to discard the oral evidence of PW.1. Much the less, it is relevant to note that the conduct of the defendant was not appreciable as he at the first instance denied the execution of Ex.P.1, but under Ex.P.8, he admitted the contract of sale. His conduct also makes it very clear that he is not before the Court with the clean hands and such persons cannot be permitted to take disadvantage of their own conduct and put forth the blame on his adversary. So there is pleading as required under Section 16(c) of the Specific Relief Act. His conduct also makes it very clear that he is not before the Court with the clean hands and such persons cannot be permitted to take disadvantage of their own conduct and put forth the blame on his adversary. So there is pleading as required under Section 16(c) of the Specific Relief Act. There is also evidence in support of it and therefore, the principles laid down in the decision referred to supra do not apply to the facts. Furthermore, the counsel also relied upon AIR 1997 SC 1751 (K.S.Vidyanadam and others v. Vairavan) wherein there was an agreement of sale and certain time limit was prescribed for taking steps by one or other party, it was held that the time is not the essence of the contract. There was total inaction on the part of the purchaser for 2½ years in violation of terms of agreement and delay coupled with substantial rise of properties. The Apex Court held that it would be inequitable to give relief of specific performance to the purchaser. 28. The sale agreement in the case was for an amount of Rs.60,000/- and amount of Rs.5,000/- was paid in advance. In para 11 of the above judgment, the Apex court observed thus: “11. ………….. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs.5,000/- and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs.5,000/- (as against the total consideration of Rs.60,000/-) the plaintiff did nothing until he issued the suit notice 2½ years after the agreement (Emphasis supplied by me). Indeed, we are inclined to think that the regor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties – evolved in times when prices and values were stable and inflation was unknown-requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so.” 29. It is high time, we do so.” 29. It is true that the herein the case as well, the time is not the essence of the contract, but it is relevant to note that the conduct of the defendant is not bonafide, in the sense that he never agreed that there was an agreement of sale till his deposition in the other suit was produced at Ex.P.8. Furthermore, it is relevant to note that the suit property is a site in a slum area as mentioned in the plaint itself. There is no evidence with regard to the rise in prices inbetween the date of agreement and the institution of the suit. So far as the suit is concerned, though it has been instituted in the year 1990, the litigation is pending before the Courts for the last more than 20 years. This delay on the part of the Courts to dispose of the litigation cannot be to the detriment of the person who approaches the Court for the relief. So far as the prices of the properties inbetween the date of the transaction and the date of the institution of the suit, there is no material at all placed on record to prove that there was rise in the prices. Though the defendant has taken up a contention that the property was worth Rs.1,50,000/- on the date of the transaction, he denied in the written statement about the execution of Ex.P.8 and did not say anything with regard to its actual value when he admitted the sale agreement. The fact whether the valuation is less or more is not a criterion to consider the refusal of specific performance. Under Explanation I to Section 20 of the Specific Relief Act, it is stated: “Explanation I – Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b)”. That apart, in the decision cited supra, after the agreement the plaintiff kept quite for 2½ years and then issued the notice calling upon the defendant to execute the sale deed but in this case on had the agreement was dt: 09.02.1987 and the notice by the plaintiff was issued on 29.07.97 i.e., within five months of the sale agreement and not after 2½ years. Hence, the fault lie with the defendant as it is he who denied the execution and did not perform his part of contract. 30. So mere inadequacy of consideration is not a criterion to reject the specific performance. To support it, the counsel for the respondent has relied upon a decision reported in AIR 2000 SC 2408 (Motilal Jain Vs. Smt.Ramdasi Devi and others) wherein the Apex Court taking into consideration the aspects of delay held: “The following aspects of delay are relevant in a case of specific performance of contract for sale of immovable property: (i) Delay running beyond the period prescribed under the Limitation Act: (ii) Delay in cases where though the suits are within the period of limitation, yet (a) due to delay the third parties have acquired rights in the subject matter of suit: (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant discretionary relief”. 31. The Apex Court took into consideration the fact that there was a contract stipulated for execution of the sale deed within five months, the purchaser plaintiff issued the last notice to the seller about 14 months after expiry of five months period, the suit filed nine moths after the last notice and it was held that it cannot be said to be belated so as to deny the relief of specific performance. 32. As could be seen from the facts of the above case, there was an agreement for an amount of Rs.38,000/- and Rs.17,000/- was paid as advance amount and the Apex Court granted a decree for specific performance. It is no doubt true that in the case on hand, the advance money paid is only Rs.5,000/-, but it cannot be forgotten that the plaintiff was all the while ready and willing to perform his part of the contract and issued a notice Ex.P.6. It is no doubt true that in the case on hand, the advance money paid is only Rs.5,000/-, but it cannot be forgotten that the plaintiff was all the while ready and willing to perform his part of the contract and issued a notice Ex.P.6. There was denial of the execution of the agreement by the reply notice at Ex.P.7 and though the defendant had to produce many documents to the plaintiff, he did not do so. He also executed another agreement of sale in respect of his mother’s property in favour of the wife of the plaintiff, who filed the suit in O.S.No.901/1990 and it is in the said suit that the defendant admitted the execution of the agreement Ex.P.1 in this case. So this shows the malafides on the part of the defendant in executing the document and then to deny the same and therefore, if this conduct is taken into consideration in equity, the discretion cannot be exercised in favour of the defendant merely because that an amount of Rs.5,000/- was paid as advance money. 33. The counsel for the appellant as relied upon the decision reported in AIR1996 SC 116 (N.P.Thirugnanam (D) by LRs. V. Dr.R.Jagan Mohan Rao and others) wherein the Apex Court held that when the plaintiff was never ready with resources and money to fulfil his part of the contract, the dismissal of the suit for specific performance of the contract was justified. As held in the case referred to above and the facts stated, there is nothing on record to show when the plaintiff refused to perform his part of the contract in paying the remaining sale consideration. Hence, the said principle do not apply to the case on hand. 34. The counsel also relied upon the decision of the Apex Court reported in (2008)4 SCC 212 (Ramakrishna Pillai and another vs. Muhammed Kunju and others) wherein the High Court was of the view that there is no plea of readiness and willingness and the suit came to be dismissed as barred by time. But, the Apex Court held that the agreement was valid and there was no contention in the written statement denying the readiness and willingness on the part of the plaintiff. But, the Apex Court held that the agreement was valid and there was no contention in the written statement denying the readiness and willingness on the part of the plaintiff. So when the defendant in the case on hand went to the extent of denying the document itself cannot make a claim that there was no readiness or willingness on the part of the plaintiff in paying the remaining sale consideration and therefore, the plaintiff cannot be put at fault. 35. The counsel also further relied upon (2008) (4) SCC 464 (Balasheb Dayandeo Naik (dead) through LRs and others) wherein the facts reveal that the agreement of sale was dated 31.7.1985 and the sale consideration was Rs.85,000/- and Rs.20,000/-was paid in advance and the sale deed was to be executed within six months. The notice was sent on 16.7.1988 after lapse of six months and a suit was filed for specific performance after three years alternatively to refund the money paid with interest at 15% p.a. The Trial Court decreed the suit whereas the High Court set aside the decree and the Apex Court held that the time is not the essence of the contract and allowed the appeal by setting aside the judgment and decree of the High Court directing the execution of the sale deed. 36. So looking to the facts and circumstances in the context of the decisions referred to above, there is ample material to show that the defendant entered into an agreement of sale at Ex.P.1 in favour of the plaintiff and disputed the fact that there were some clauses in the agreement for cancellation of the document on failure to fulfil some conditions. The document was not canalled by the defendant and he did to take any such steps to produce the relevant documents to the plaintiff and despite the fact that the plaintiff approached him on many occasions, did not execute the sale deed and it is thereafter the plaintiff approached the Court for the relief. In such circumstances, merely because that a small amount of Rs.5,000/- was paid in advance is not itself a ground to refuse the specific performance. In such circumstances, merely because that a small amount of Rs.5,000/- was paid in advance is not itself a ground to refuse the specific performance. The counsel for the appellant has relied upon the decision of High Court of Delhi reported in AIR 1990 Delhi 280 (C.L.Jain v. Gopi Chand) wherein in the suit for specific performance of agreement to sell, the defendant seller was ready to perform his part of the agreement and in such circumstances, the Court directed the plaintiff buyer under Section 16 to deposit the entire balance consideration in Court so that the money deposited would earn interest and the interest of both the parties is safeguarded. As could be seen from the provisions of Section 16 (c) of the Specific Relief Act, the explanation to the said provision reads: “16. ……………… Explanation – For the purposes of clause (c)- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of or readiness and willingness to perform, the contract according to its true construction”. 37. So as could be seen from these provisions, when the contract involves the payment of money, it is not necessary for the plaintiff to deposit the amount in Court or tender the same to the defendant except in a case when the Court so directs. 38. Furthermore, it is provided that the plaintiff must aver performance or willingness to perform the contract according to its true construction. In the facts on hand, there is a specific averment by the plaintiff of his readiness and willingness to perform his part of the contract to pay the remaining sale consideration and though the contract involves the payment of money, the Court below did not give a direction to deposit the money so that the defendant could have taken the benefit of the interest accrued on the said deposit as held in the decision referred to above. When the law given a discretion u/S. 16(c) of the Act to direct the plaintiff to deposit the balance sale consideration so that the defendant could get the accrued interest it is in the ends of justice that discretion should be exercised by the Courts to give such direction as no injustice would be caused to any of the parties and even if the plaintiff fails he would get the amount with interest. So taking into consideration this aspect, I am of the opinion that a specific direction could have been given to the plaintiff to deposit the money with interest and the failure on the part of the explanation stated above, should not result in failure of justice to the defendant and the equity has to prevail. So if the plaintiff had deposited the remaining sale consideration of Rs.35,000/- in the Trial Court and if such direction was given, the amount could have been paid to the defendant with interest during the specific performance of the contract. The wrong committed by the Court shall not result in loss to the defendant and at the same time, when the plaintiff had retained the amount of Rs.35,000/-, I think that the interest of justice would be met in case if he is directed to pay the accrued interest on the amount of Rs.35,000/- and considering the nature of the transaction, the rate of interest etc., it is just and proper to direct the plaintiff to pay interest at 8% p.a. on the remaining sale consideration. In the circumstances, this direction has to be incorporated in the decree granted in favour of the plaintiff by modifying it. Except for this direction the appellant has not made out any such grounds to call for any interference and the Trial Court has taken into consideration the material placed on record and has granted the decree. In the circumstances, I answer the point partly in affirmative and partly in negative and directing the payment of interest and proceed to pass the following: ORDER The appeal is allowed in part. In the circumstances, I answer the point partly in affirmative and partly in negative and directing the payment of interest and proceed to pass the following: ORDER The appeal is allowed in part. Affirming the judgment and decree for specific performance, the respondent (plaintiff) is directed to pay interest at 8% p.a. on the amount of Rs.35,000/-the balance sale consideration, from the date of institution of the suit till its payment to the appellant and this accrued interest shall not form part of the sale consideration and shall be paid to the appellant on or before the date of the execution of the registered sale deed. No costs.