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2012 DIGILAW 1612 (MAD)

V. Radhakrishnan v. K . Mani

2012-03-29

R.BANUMATHI, S.VIMALA

body2012
Judgment :- S. VIMALA, J. 1. The Defendant is the Appellant. 1.1. The Plaintiff filed the suit for Specific Performance of the sale agreement dated 03.10.1995. The suit was contested by the Defendant on the ground that the Plaintiff was never ready and willing to perform his part of the contract and that the suit is also barred by limitation. The trial court after consideration of oral and documentary evidence directed the Defendant to receive the balance of sale consideration of Rs.11,50,000/-, which has been deposited by the Plaintiff and to execute the sale deed in accordance with the terms and conditions of the agreement within a period of two months. As against the judgment and decree, the present appeal has been filed. 2. Plaintiff's case in brief :- The Defendant is the owner of the property. The Defendant purchased the property by virtue of the sale deed dated 17.08.1974. The Plaintiff and Defendant entered into a sale agreement and the Defendant agreed to sell the property for a sum of Rs.16,00,000/-. On the date of agreement, the Plaintiff paid a sum of Rs.2,00,000/-as advance and out of the balance, a sum of Rs.1,00,000/-is payable within three months from the date of agreement and Rs.13,00,000/-is payable at the time of Registration of sale deed. Six months is the period fixed in the sale agreement. 2.1. The Plaintiff is in occupation of the first floor of the suit property. The entire ground portion of the property was in the occupation of the tenants. The Defendant had promised the Plaintiff that he will hand over the actual possession of the entire property to the Plaintiff within six months from the date of agreement. 2.2. The Defendant was not able to evict his tenant in the ground floor of the property and he was not able to handover the vacant possession of the property as promised by him. The Plaintiff paid Rs.1,00,000/- on 12.12.1995 and again Rs.1,00,000/- was paid on 11.03.1996 as part of sale consideration. The period of sale agreement was extended on 2.4.1996 by two more months as per the request made by the Defendant. On 02.06.1996, the Plaintiff paid a sum of Rs.50,000/-and on that date, the period of sale agreement was extended by two more months. Thus, time is not the essence of the contract. 2.3. It is only the Defendant, who wanted time to get the tenants evicted. On 02.06.1996, the Plaintiff paid a sum of Rs.50,000/-and on that date, the period of sale agreement was extended by two more months. Thus, time is not the essence of the contract. 2.3. It is only the Defendant, who wanted time to get the tenants evicted. On 04.04.1998, the Defendant issued a notice contending that the Plaintiff has committed a breach of contract. The Plaintiff sent a reply on 26.04.1998. 2.4. One of the tenant in the ground floor by name T.Baskaran, had filed the suit for permanent injunction restraining the owner of the property, i.e., the Defendant from evicting him except under due process of law. The Plaintiff again issued a notice on 25.11.1999 informing his readiness to purchase the property and to get the sale deed executed. The notice is acknowledged by the Defendant. Even after the period fixed in the sale agreement, the Defendant has received money from the Plaintiff. Therefore, the suit filed is within time. 3. Defendant's case in brief : - The sale agreement is true. The sale consideration as well as the advance paid by the Plaintiff were all admitted. The payment made subsequent to the sale agreement dated 3.10.1995, on the following three dates, as alleged by the Plaintiff is also admitted. The total sale consideration is Rs.16,00,000/-. The payment made by the Defendant on the date of agreement as well as on the three dates described above is Rs.4,50,000/-. The balance payable is Rs.11,50,000/-. The Plaintiff was in occupation of the first floor of the building and the ground floor was in occupation of Adayar Medicals. The Defendant never gave assurance to vacate the building in the ground floor and to hand over the vacant possession to the Plaintiff. The Plaintiff was colluding with the tenant in the ground floor even prior to the agreement and this fact had been suppressed. 3.1. Time was agreed to be the essence of contract. The Plaintiff was not able to arrange for balance of sale consideration and that there was a deliberate delay on the part of the Plaintiff. The Defendant is not guilty of breach of contract. The suit is barred by limitation. Hence, the suit must be dismissed. 4. The trial court has framed the following issues:- a. Whether the Plaintiff is entitled to the relief of Specific Performance? b. Whether the suit is barred by limitation? The Defendant is not guilty of breach of contract. The suit is barred by limitation. Hence, the suit must be dismissed. 4. The trial court has framed the following issues:- a. Whether the Plaintiff is entitled to the relief of Specific Performance? b. Whether the suit is barred by limitation? c. Whether the suit sale agreement made on 03.10.1995 is valid and enforceable? The Plaintiff has been examined as P.W.1 and Exs.A1 to A23 has been marked. Defendant has been examined as D.W.1. Exs.C1 and C2 has been marked as Court documents. 5. The trial court after consideration of oral and documentary evidence has given the following findings:-a) Time was not the essence of contract; b) The Plaintiff had always been ready and willing to perform his part of the contract; c) The suit is not barred by limitation; and d) The Plaintiff is entitled to decree for specific performance of the contract. 6. These findings are under challenge in this appeal. The Defendant/Appellant has raised the following contentions:- a) The trial court is not correct in giving a finding that time was not the essence of contract; b) The trial court should have given a finding that time is essence of the contract and there had been clear stipulation of two months time from 02.06.1996 as per Ex.A5 endorsement; and c) The lower court has misconstrued Clause 3 of the sale agreement which does not stipulate that the Appellant shall vacate the tenants and would deliver vacant possession of the property. Consequently, because of the misconception, the lower court has given a finding that the Defendant has not performed his part of the contract; d) The lower court has misconstrued and misinterpreted Section 53(A) of the Transfer of Property Act; and e) The lower court should have given a finding that the period of limitation commenced on 02.8.1996 and it expired on 01.08.1999. The suit filed on 07.03.2000 is clearly barred by limitation. 7. The suit filed on 07.03.2000 is clearly barred by limitation. 7. The points for determination:-Now, in view of the grounds raised in the appeal, the points for determination arising for consideration in this appeal are whether the judgment and decree of the lower court giving a finding (a) that time was not agreed to be the essence of contract; (b) that the Plaintiff has always been ready and willing to perform his part of the contract; (c) that the suit is not barred by limitation; and that (d) the Plaintiff is entitled to a decree for specific performance, are justifiable or not? 7.1. Termsand conditions of Ex.A1-Sale Agreement:-In order to appreciate the contentions raised in the grounds of appeal, it is necessary to consider the terms and conditions of Ex.A1-Sale Agreement and the endorsements made with regard to part payment and the nature of possession of the suit property which was available with the Plaintiff/Defendant at the time of sale agreement. 7.2. The essential terms and conditions of Ex.A1-Sale Agreement:- a) The agreed sale price is Rs.16 Lakhs; b) Rs.2 Lakhs paid as advance on 03.10.1995-the date of agreement itself; c) Period fixed for performance is six months from the date of agreement; d) If the sale is not materialized, the vendor shall repay the advance amount of Rs.2 Lakhs along with a sum of Rs.2 Lakhs as liquidated damages; e) If the failure is at the instance of the purchaser, vendor is entitled to forfeit a sum of Rs.2 Lakhs; f) Vendee/Plaintiff is in occupation of first floor of the suit property; g) The vendor hereby covenants with the vendee that he will hand over actual possession of the remaining properties .... within six months from the date of sale agreement; h) Rs.1 Lakh to be paid within three months from the date of sale agreement; and i) Balance of Rs.13 Lakhs to be paid at the time of registration of the sale deed. 8. As per the Clause in the sale agreement, the Plaintiff has paid a sum of Rs.1 Lakh on 12.12.1995 i.e., within three months from the date of sale agreement i.e., 03.10.1995. 8.1. Even though balance of Rs.13 Lakhs is payable at the time of registration of sale deed, the Plaintiff has paid the following payments, as per the details furnished in the table below:- 9. 8.1. Even though balance of Rs.13 Lakhs is payable at the time of registration of sale deed, the Plaintiff has paid the following payments, as per the details furnished in the table below:- 9. The original period fixed for performance i.e., six months period expired on 02.04.1996 i.e., from 03.10.1995. The Plaintiff is expected to pay the balance of Rs.13 Lakhs at the end of six months period and the Defendant is expected to hand over the actual possession on the very same time frame, i.e., both to take place simultaneously, it is crucial to note that the Plaintiff has chosen to get extension of time for two months. Again, on 02.06.1996, the Plaintiff has paid a sum of Rs.50,000/- and got another extension of two months. Having regard to this conduct of the Plaintiff and the Defendant, the issue regarding as to whether time is essence of the contract or not has to be considered. 10. It is relevant to point out that under Ex.A4/Ex.A5 endorsement there is no whisper about the condition regarding the liability on the part of the Defendant to hand over actual possession of the suit property to the Plaintiff. It is pertinent to note that under Ex.A1-Sale Agreement the Clause with regard to vacating the tenant do not find place explicitly, even though there is a Clause which enjoins the Defendant to hand over the vacant possession to the Plaintiff. It is perplexing to note that even the fact that the Plaintiff is in occupation of first floor as a tenant is also not mentioned. 10.1. Under normal circumstances, when the property is in occupation of the tenants, the word “actual possession” may mean the possession after vacating the tenants. But, in this case under Ex.A1, the word “tenant” do not find a place at all. When the Plaintiff himself is in possession of the first floor of the property as a tenant, the fact that the Plaintiff is in occupation in the capacity as a tenant is also not mentioned in the sale agreement. Considering the circumstances of the Plaintiff paying a sum of Rs.50,000/-without insisting and without waiting for the tenants to be vacated and when he himself had been residing as a tenant, the word “actual possession” would not mean possession after vacating the tenants. Considering the circumstances of the Plaintiff paying a sum of Rs.50,000/-without insisting and without waiting for the tenants to be vacated and when he himself had been residing as a tenant, the word “actual possession” would not mean possession after vacating the tenants. The phrase “actual possession” may also mean possession as is actually existing or possession actually available because of the simple reason that the agreement merely mentions actual possession not actual vacant possession. Even assuming that the word “actual possession” meant only possession after vacating the tenants, even then from Ex.A5-endorsement and in view of the subsequent conduct of the Plaintiff the inference is that the Clause with regard to actual possession has been waived by the Plaintiff. 11. It is the case of the Plaintiff that the Defendant agreed to vacate the tenants and to hand over actual possession to the Plaintiff within a period of six months. It is the case of the Defendant that he never agreed to vacate the tenants and to hand over vacant possession to the Plaintiff and that what was agreed was only possession as is permissible and as was available with him. The Plaintiff has made part payment of sale consideration under Ex.A2 as well as under Ex.A3. Those payments have been made as per the terms and conditions of Ex.A1. So far as Ex.A4 endorsement is concerned, it is the date on which the original period of six months expired. When the Plaintiff has chosen to make payment after the expiry of six months' period and to get the extension of time, it is for him to explain under what circumstances he has chosen to make payments without insisting upon actual possession being delivered to him. When the Plaintiff has chosen to get the period of sale agreement extended without any reference to possession being handed over to him, then the inference is that the Plaintiff has relinquished his right to demand the actual possession from the Defendant. 12. What is meant by “actual possession” as noted in Clause 3 of the sale agreement is the main issue between the parties. According to the Plaintiff, actual possession means vacant possession after evicting the tenants. According to the Defendant, it means possession to the Plaintiff by attornment of tenancy in favour of the Plaintiff, in respect of the tenants who were occupying the ground floor of the suit property. According to the Plaintiff, actual possession means vacant possession after evicting the tenants. According to the Defendant, it means possession to the Plaintiff by attornment of tenancy in favour of the Plaintiff, in respect of the tenants who were occupying the ground floor of the suit property. The Court has to look into the facts and surrounding circumstances to find out whether what was agreed to, is handing over actual possession after evicting the tenants or the possession as is possible/as is available to be handed over to the Plaintiff, even when the tenants were in possession of the suit property. 13. Readiness and willingness on the part of the Plaintiff:- The next issue to be considered is whether the Plaintiff was ready and willing to perform his part of the contract. It is the case of Plaintiff that he was always ready and willing to perform his part of the contract and it is only the Defendant who did not get the tenants vacated and it is only who was refusing to execute the sale deed and that made him to move the Court. It is the case of the Defendant that it is only the Plaintiff, who was adopting delaying tactics/practices and as he was also not ready and willing to perform his part of the contract for 3 1/2 years, now the Plaintiff is playing blame shift game in order to save him, and therefore, he is not entitled to ask for the Specific Performance. 14. According to the contention of the learned counsel for the Plaintiff, readiness and willingness on the part of the Plaintiff, is interwoven, interlinked and inseparable and as the Defendant was not ready to hand over vacant possession, the question of Plaintiff being ready and willing to perform his part of the contract does not arise and that it would arise only when the Defendant makes himself ready to hand over vacant possession to the Plaintiff. In order to appreciate this contention, the conduct of the Plaintiff and Defendant has to be looked into. Admittedly, as discussed earlier, the part-payment has been made by the Plaintiff on three dates and on some occasion, endorsement with regard to extension of time has been made as per Exhibits A4 and A5. In order to appreciate this contention, the conduct of the Plaintiff and Defendant has to be looked into. Admittedly, as discussed earlier, the part-payment has been made by the Plaintiff on three dates and on some occasion, endorsement with regard to extension of time has been made as per Exhibits A4 and A5. It is the case of the Plaintiff that the Defendant was not able to vacate Baskaran the tenant and therefore, time would not begin to run, till the Defendant vacate the tenant-Baskaran and handover the vacant possession to the Plaintiff. 15. The learned counsel for the Respondent has relied upon the decision reported in 2011-4-TLNJ 393 (Civil) (T.R.K.Saraswathy Vs. R.Kandasamy and others), wherein it has been held as follows:- “5. ... The event of evicting the tenants in occupation and keeping vacant possession for delivery was an uncertain one. It was not one, which was certain to happen. Hence in the present case, time for specific performance must be deemed to have run from the date when Plaintiffs had notice that performance was refused by the Defendant.” The principle cannot be disputed, but, factually this decision will not help the case of the Plaintiff, even after having notice that the performance is refused was not vigilant in safeguarding his right. 16. The learned counsel for the appellant has contended that the Plaintiff did not show his readiness and willingness in performing his part of the contract and therefore, he must be non-suited. To appreciate the contention, it is necessary to look into the conduct of both parties. 17. There had been exchange of notices between the Plaintiff and Defendant starting from 26.04.1998 to 25.11.1999 (Notice issued by Plaintiff). 18. According to Section 16 (c) of the Specific Relief Act, the continuous readiness and willingness on the part of the Plaintiff is a condition precedent to the grant of relief of specific performance. Therefore, it has to be seen whether right from the date of execution of sale agreement and till the date of decree whether the Plaintiff was ready and willing to perform his part of the contract. 19. As already pointed out earlier, on/after the expiry of six months period prescribed in the agreement, the time of performance of agreement has been extended by two months on 02.04.1996 and 02.06.1996. 19. As already pointed out earlier, on/after the expiry of six months period prescribed in the agreement, the time of performance of agreement has been extended by two months on 02.04.1996 and 02.06.1996. Even though it is written that by mutual consent time has been extended, yet the payment of Rs.50,000/-on 02.06.1996 would go to show that time ought to have been extended at the instance of the Plaintiff. 20. Ex.A6 notice has been issued on 04.04.1998 at the instance of the Defendant making it clear that the Defendant has made arrangements to transfer the tenancy in favour of the Plaintiff. It is also stated that the Plaintiff has committed default of payment of rent of Rs.2,500/- per month and that the Plaintiff is evading to perform his part of the contract. This notice dated 04.04.1998 gives a clear indication to the Plaintiff that the Defendant is ready only to the extent of transferring the tenancy in favour of the Plaintiff and not in favour of evicting the tenants and to hand over vacant possession. The natural and immediate conduct of the Plaintiff would be to have filed a suit for specific performance may be with an additional prayer to hand over vacant possession. In this case, the Defendant has given a reply dated 26.04.1998, stating that within two weeks of the receipt of reply notice the Defendant has to hand over actual possession of the property after vacating the tenants. It is stated that the Defendant has suppressed the fact of one of the tenant obtaining order of injunction against the Defendant in O.S.No.1343 of 1994 dated 15.03.1995. The 15 days period as mentioned in the reply notice would expire on (giving maximum latitude, taking into account the time for receipt of reply notice by the Defendant) 10.05.1998. The suit ought to have been filed within three years from the time, the Plaintiff has notice of refusal of performance. The Plaintiff ought to have filed the suit, if really he had been ready and willing to perform his part of the contract on the expiry of three years period from the last payment made by him i.e., on 02.06.1996 i.e., the suit ought to have been filed on or before 02.06.1999. The Plaintiff ought to have filed the suit, if really he had been ready and willing to perform his part of the contract on the expiry of three years period from the last payment made by him i.e., on 02.06.1996 i.e., the suit ought to have been filed on or before 02.06.1999. Till the Defendant issued the notice under Ex.A6 on 04.04.1998, the Plaintiff has not taken any step whatsoever for one year and eight months i.e., from 02.06.1996 to 04.04.1998. In this case, the landlord/Defendant is the absentee landlord. The Plaintiff is in occupation of first floor of the suit property, as a tenant. The remaining tenants are in the ground floor. 21. Therefore, the Plaintiff has noticed that they are not vacating the property. Therefore, from 02.06.1996 the date on which, the last extension of time had been given which expires on 02.08.1996, the Plaintiff has notice/noticed that the tenants are not vacating. The suit ought to have been filed within the year from 02.08.1996. But, suit was filed only on 07.03.2000 and therefore, the suit is barred by limitation. 22. The Plaintiff would have got confirmation of refusal of performance on 04.04.1998, when he received notice from the Defendant and at the most, after the expiry of 15 days time granted by him for the Defendant to respond to his reply and there was inertness on the part of the Defendant, the suit ought to have been filed within reasonable period from 02.08.1999. But, the suit has been filed only on 07.03.2000. The discussion on the point of limitation invariably point out that the Plaintiff did not prove his readiness and willingness to perform his part of the contract. (a) From 02.06.1998 the Plaintiff did not take any step not even to issue a notice till 04.04.1998 when Ex.A6 notice has been issued by the Defendant. (b) Even after the issuance of notice by the Defendant, after the rejoinder under Ex.A8 dated 09.05.1998, the Plaintiff has chosen to issue notice under Ex.A9 only after the expiry of one and half years i.e., on 25.11.1999. (b) Even after the issuance of notice by the Defendant, after the rejoinder under Ex.A8 dated 09.05.1998, the Plaintiff has chosen to issue notice under Ex.A9 only after the expiry of one and half years i.e., on 25.11.1999. (c) Earlier orders of the Court:- When the Defendant filed the appeal against the decree obtained by the Plaintiff in O.S.No.523 of 2004, dated 17.09.2005, it has been brought to the notice of the this Court that the Plaintiff did not pay rent from the date of sale agreement to the date of decree i.e., for a period of 55 months and the default in payment of rent was Rs.1,37,500/-. Subsequently, by virtue of the order dated 06.09.2006, the Plaintiff has deposited the balance of sale consideration of Rs.11.50 lakhs and the appellant herein has been given liberty to withdraw the interest accrued every month. 23. It is relevant to point out that the Plaintiff never made his intention clear as to whether he wanted to repudiate the contract, as the Defendant did not hand over vacant possession and did not show his readiness and willingness in taking early steps, through Court by compelling the Defendant to vacate the tenants and to get the sale deed executed . 24. It is the case of the Plaintiff that there was no delay at all on his part, as the Defendant, as promised, has not taken any steps to hand over actual possession of the suit property to the Plaintiff. In order to appreciate whether this reason is the justifiable reason and even if it be so, whether that was the only reason for the Plaintiff to make belated payment and for having filed the suit also belatedly. The details of dates and events as furnished here-under would through light on the readiness and willingness on part of the Plaintiff to perform his part of the contract. 25. The trial court has given a finding that the Defendant did not perform his part of the contract by not evicting the tenants and therefore, the Plaintiff is not guilty in not taking early steps. The trial court has also pointed out that the decree for injunction obtained by one of the tenants against the Defendant restraining him from evicting the tenant. The trial court has also pointed out that the decree for injunction obtained by one of the tenants against the Defendant restraining him from evicting the tenant. If really actual possession after evicting the tenant had been under the contemplation of the parties then immediately after the expiry of six months period, at least the Plaintiff would have issued a notice calling upon the Defendant giving a warning that unless the tenants are vacated his readiness and willingness to perform his part of the contract would not commence. Such is not the conduct of the Plaintiff in this case. It appears both of them have understood the difficulties involved in vacating the tenants and that is why the sale agreement did not stipulate that in case of failure by the Defendant to get the tenants vacated, the Plaintiff can enforce the sale agreement by seeking the relief of specific performance through Court. Instead the agreement reads that in case of failure on the part of the Defendant, the Plaintiff would be entitled to the return of advance of Rs.2 Lakhs in addition to the payment of Rs.2 Lakhs by way of liquidated damages. The Plaintiff having realised the difficulties involved in vacating the tenants has chosen to waive his right to demand vacant possession and that is why he has chosen to make part payment even after the expiry of six months without insisting upon the tenants to get vacated. It is equally relevant to point out that he has not chosen to make full payment also. These circumstances, clearly go to show that the Plaintiff had been dillydallying and had not been ready and willing to perform his part of the contract. 26. Whether the time is essence of contract as agreed to between the parties is the next issue. The learned counsel for the Appellant submitted that time is essence of contract as the sale agreement contemplates penalty of forfeiture for not keeping up the time schedule. The further contention is that, even if time is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time and as the Plaintiff has not done so he is not entitled to any relief. In support of the contention the following two decisions are relied upon:- (a) Chand Rani (SMT) (Dead) by LRs. Vs. Kamal Rani (SMT) (Dead) by LRs. In support of the contention the following two decisions are relied upon:- (a) Chand Rani (SMT) (Dead) by LRs. Vs. Kamal Rani (SMT) (Dead) by LRs. reported in (1993) 1 SCC 519 reads as follows:- “As a general proposition of law, in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are evident: i. from the express terms of the contract; ii. from the nature of the property; and iii. from the surrounding circumstances, for example: the object of making the contract.” (emphasis supplied) (b) Coromandel Indag Products Private Limited Vs. Garuda Chit and Trading Company Private Limited and another reported in (2011) 8 SCC 601 , reads as follows:- “22. .... by mutual consent, the time was extended to 30.09.1981. On 06.10.1981, another sum of Rs.5 Lakhs was advanced by the appellant company and the time for completion of the sale agreement was extended up to 14.10.1981. Again for the third time, that is, on 19.12.1981, time was extended for the completion of the transaction up to 31.12.1981 on payment of Rs.1,10,000/-. ...........................the payment of money in short intervals and also the extension of time for completion of the transaction within the prescribed period clearly show that both the parties wanted to complete the transaction and .................time as the essence of the contract. 27. In this case, the efflux of time as fixed in the sale agreement cannot be construed as amounting to time is the essence of contract. But, the Plaintiff had not even been willing to complete the contract within a reasonable period of time, even after the expiry of period agreed in the sale agreement. 28. The next issue to be considered is whether the Plaintiff is entitled to the discretionary relief of specific performance? 28.1. The learned counsel for the appellant contended that the Plaintiff had never been ready and willing to perform his part of the contract and therefore, he is not entitled to the relief of specific performance. It is further contended that because of the rise in prices, which is leaping it would not be proper to grant a decree for specific performance. It is further contended that because of the rise in prices, which is leaping it would not be proper to grant a decree for specific performance. In support of the contention the following decisions are relied upon: (a) Vimaleshwar Nagappa Shet Vs. Noor Ahmed Sheriff & Ors. reported in2011 4 L.W.814, reads as follows:- “9. It is settled law that Section 20 of the Specific Relief Act, 1963 confers discretionary powers (vide: M.Meenakshi & Ors. Vs. Metadin Agarwal (2006) 7 SCC 470 =2007-2-L.W.481, Nirmala Anand Vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC 481 , Parakunnan Veetill Joseph's Son Mathrew Vs. Nedumbara Karuvila's Son & Ors. (1987) Supp. SCC 340). It is also well settled that the value of property escalates in urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time.” (emphasis supplied) (b) K.S.Vidyanadam and Others Vs. Vairavanreported in (1997) 3 SCC 1 , reads as follows:- “If property is a house located in an urban area, continuing steep rise in price thereof would be a relevant factor for the court to decide whether the delay or laches on the part of the Plaintiff to perform his part of the contract would disentitle him the relief of specific performance.” 28.2. The learned counsel for the Respondent has relied upon the decision reported in AIR 2004 SCC 4472 (P.D'Souza Vs. Shondrilo Naidu), wherein it has been held as follows:- “.... there is no binding precedent to effect that in all cases where there had been escalation of prices, Court should either refuse to pass a decree on specific performance of contract or direct Plaintiff to pay a higher sum.” 29. So far as this case is concerned, it is not merely the escalation in price which would be the deciding factor to deny the performance, but, the main factor is that the Plaintiff did not prove his readiness and willingness to perform his part of the contract. 30. The next contention is that it is not merely the conduct of the Plaintiff that should be considered, but, also the conduct of the Defendant which also merits consideration. In support of the contention, the decision reported in (2008) 11 SCC 45 (Silvey and Ors. Vs. Arun Vargheese and Another), is relied upon wherein it has been held .... 30. The next contention is that it is not merely the conduct of the Plaintiff that should be considered, but, also the conduct of the Defendant which also merits consideration. In support of the contention, the decision reported in (2008) 11 SCC 45 (Silvey and Ors. Vs. Arun Vargheese and Another), is relied upon wherein it has been held .... “the conduct of the Defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. The High Court has after analysing the factual position, come to the conclusion that the Defendants were really not ready to perform their obligation in terms of the contract and had taken a false plea in the written statement.” 31. It is contended by the learned counsel for the Respondent that the Defendant has made a false plea by making contradictory statements in the chief examination and cross examination. It is pointed out that in the chief examination he has stated that Plaintiff is receiving the rent payable by Baskaran. In the cross examination he has stated that it is not correct to say that he has stated so in the chief examination. No doubt, it is true that there contradiction in the statement. But, the contradiction in the statement does not affect the merits of the case in either way. Therefore, this conduct of the Defendant cannot be a factor to grant or refuse specific performance. 31.1. The conduct of the Plaintiff in not being ready and willing to perform his part of the contract, he is not entitled to the relief of specific performance. 32. It has been already discussed as to how the Plaintiff is guilty of inordinate delay in every stage of the transaction. Apart from that as the agreement itself had been entered into in the year 1995 and 17 years having lapsed, the Plaintiff having not retained the right to seek specific performance and also by virtue of escalation in prices with regard to house property it may not be proper to order specific performance. 33. Next question then to be considered is as to what is the relief to which the parties are entitled to. Respondent/Plaintiff paid an advance amount of Rs.4,50,000/- and admittedly appellant has received the said sum of Rs.4,50,000/- as an advance towards the suit agreement dated 03.10.1995. 33. Next question then to be considered is as to what is the relief to which the parties are entitled to. Respondent/Plaintiff paid an advance amount of Rs.4,50,000/- and admittedly appellant has received the said sum of Rs.4,50,000/- as an advance towards the suit agreement dated 03.10.1995. Earlier the suit was decreed exparte on 24.02.2000. The respondent/agreement holder has to pay rental arrears of Rs.2,500/-per month from the date of agreement (03.10.1995) till the date of exparte decree (24.04.2000) i.e., approximately 55 months, which works out at Rs.1,37,500/-. 34. In the order dated 10.08.2006, Division Bench has directed the appellant to deposit balance amount of Rs.3,12,500/- (i.e., Rs.4,50,000/- less Rs.1,37,500/-) to the credit of O.S.No.523 of 2004 and the same was directed to be invested in a Nationalized Bank in a fixed deposit. The said amount of Rs.3,12,500/-was deposited by the appellant/defendant to the credit of O.S.No.523 of 2004. 35. In so far as the rent collected from other tenants in occupation of suit premises, in the order dated 06.09.2006, Division Bench has directed that the same shall be collected by appellant/defendant and deposited every half yearly to credit of the suit-O.S.No.523 of 2004. On behalf of appellant/defendant, it was stated that the appellant/defendant has collected the rent and faithfully deposited to the credit of O.S.No.523 of 2004. 36. In the result, the Judgment and decree dated 17.09.2005 made in O.S.No.523 of 2004 on the file of the Additional District and Sessions Court cum Fast Track Court-II, Coimbatore is set aside and this appeal is allowed. The suit-O.S.No.523 of 2004 filed by the respondent is dismissed. The respondent/plaintiff is permitted to withdraw the following amounts: i) Rs.11,50,000/- deposited by the respondent/plaintiff to the credit of O.S.No.523 of 2004 along with accrued interest. ii) Rs.3,12,500/- deposited to the credit of O.S.No.523 of 2004 along with accrued interest. In so far as the rental arrears collected and deposited to the credit of O.S.No.523 of 2004, the appellant/defendant is at liberty to work out his remedy in accordance with law. In this appeal both parties are directed to bear their respective costs.