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2013 DIGILAW 700 (KAR)

C. ANAND v. THIMMA REDDY

2013-06-18

K.N.KESHAVANARAYANA

body2013
JUDGMENT K.N. KESHAVANARAYANA, J.-This appeal by the unsuccessful plaintiffs in O.S. No. 8510/1995 on the file of the XI Additional City Civil and Sessions Judge, Bangalore, is directed against the judgment and Order dated 12.03.2010 passed therein dismissing the suit filed by them for the relief of specific performance of agreement of sale. 2. The plaintiffs filed suit against Respondents-Defendant Nos. 1 to 9 seeking specific performance of the agreement of sale dated 18.01.1993 executed by defendant Nos. 1 & 2 and their Aunt Smt. Lakshmamma and to direct the defendants to execute the sale deed. The plaintiffs inter alia contended that, defendants - 1 & 2 alongwith their Aunt Smt. Lakshmamma were the owners of the lands bearing Survey No. 9/1-A measuring 1 acre 34 guntas, Survey No. 9/1-C measuring 1 acre 37 guntas and Survey No. 9/2-A measuring 25 guntas, in all measuring 4 acres 16 guntas of Devarachikkahalli Village, Begur Hobli, Bangalore South Taluk; that all the three persons agreed to sell the aforesaid land to the plaintiffs for a total sale consideration of Rs. 14,30,000/-and in that regard, they executed an agreement of sale in favour of the plaintiffs on 18.01.1993 and under the agreement received a sum of Rs. 1,25,000/- as advance and agreed to receive the balance sale consideration at the time of registration of the sale deed; that as per the terms of the agreement, the owners of the property agreed to get the land measured from the qualified surveyor to arrive at exact extent of the land in their possession and they also agreed to satisfy the plaintiffs regarding their sound and marketable title and possession over the said land, and that they are competent to convey the said lands to the purchasers free from all encumbrances; that in part performance of the agreement, the plaintiffs were also placed in possession of entire land agreed to be sold and also delivered the title deeds pertaining to the property agreed to be sold; that though the plaintiffs were always ready and willing to perform their part of contract and get the sale deed registered by paying balance consideration, Defendant Nos. 1 & 2 and their aunt Smt. Lakshmamma failed to perform their part of the contract by measuring the land by a qualified surveyor and on the other hand, they went on taking time on one pretext or other to complete the transaction by putting forth blame excuse that the litigation in respect of the property is pending in the High Court and Supreme Court with regard to the acquisition of the property by a Housing Society; that though the litigation was concluded in favour of Defendant Nos. 1 & 2, Defendant Nos. 1 & 2 and their Aunt Smt. Lakshmamma did not complete the transaction in spite of the plaintiffs' repeated requests and demands expressing their readiness and willingness to pay the balance sale consideration and to obtain the sale deed in their favour; that though the time stipulated in the agreement for completion of the transaction was coming to an end, the defendants did not perform their part of the contract. Therefore the plaintiffs got issued a notice dated 11.10.1995 to Defendant Nos. 1 & 2 and their Aunt Smt. Lakshmamma calling upon them to receive the balance sale consideration and to execute the sale deed in accordance with the terms and conditions of the agreement; that on receipt of the said notice, they sent a false and untenable reply, which indicates that they are not willing to perform their part of the contract. Therefore, it became necessary for the plaintiffs to seek the relief of specific performance. 3. Before filing of the suit, it appears Smt. Lakshmamma had died. Therefore, the suit came to be filed against her heirs arraigned as Defendant Nos. 3 to 9. 4. The defendants upon service of suit summons, appeared before the trial Court and filed their joint written statement denying all the averments made in the plaint. They denied that Defendant Nos. 1 & 2 alongwith their Aunt Smt. Lakshmanna entered into an agreement agreeing to sell the suit schedule property in favour of the plaintiffs for a total consideration of Rs. 14,30,000/-. They denied the allegation that in part performance of the agreement of sale, the plaintiffs are put in possession of the property. They denied that Defendant Nos. 1 & 2 alongwith their Aunt Smt. Lakshmanna entered into an agreement agreeing to sell the suit schedule property in favour of the plaintiffs for a total consideration of Rs. 14,30,000/-. They denied the allegation that in part performance of the agreement of sale, the plaintiffs are put in possession of the property. They further contended that the 2nd plaintiff being the brother-in-law of the 1st defendant and taking undue advantage of access to the family affairs of the defendants, has created a false document by forging the signatures of Defendant Nos. 1 & 2 and their Aunt Smt. Lakshmamma and thereby, they have created the alleged agreement. They denied the defendants having received any amount from the plaintiffs as advance; They further contended that since they have not executed any agreement in favour of the plaintiffs, question of they executing the sale deed in favour of the plaintiffs does not arise. They contended that they are in peaceful possession and enjoyment of the suit schedule property and they are living in the residential houses constructed therein and they have also constructed a temple in the suit schedule property. They denied the contention of the plaintiffs that they are always ready and willing to perform their part of the contract. They contended that the notices issued by the plaintiffs have been suitably replied. They contended that there was no cause of action for the plaintiffs to file the suit. Therefore, they sought for dismissal of the suit. 5. In the light of the pleadings of the parties, the trial Court framed the following issues:- (i) Whether the plaintiffs prove that the defendant Nos. 1 & 2 and one Lakshmamma were agreed to sell the suit schedule property for Rs. 14,13,000/- and executed an agreement of sale dated 18.01.1993 by receiving an advance amount of Rs. 1,25,000/-? (ii) Whether the plaintiffs prove that they have been always ready and willing to perform their part of the contract? (iii) Whether the suit is bad for non-joinder of necessary parties? (iv) Whether the suit is properly valued and the Court fee paid is just and proper? (v) Is there any cause of action to file the suit? (vi) Is plaintiffs entitled for the relief of specific performance ? (vii) To what order or decree? 6. During the trial, the 2nd plaintiff examined himself as PW. (iv) Whether the suit is properly valued and the Court fee paid is just and proper? (v) Is there any cause of action to file the suit? (vi) Is plaintiffs entitled for the relief of specific performance ? (vii) To what order or decree? 6. During the trial, the 2nd plaintiff examined himself as PW. 1 by filing his examination-in-chief by way of affidavit and marked Exs. P1 to P6. However, defendants did not choose to cross-examine PW. 1. Later the plaintiffs amended the plaint by contending that Smt. Lakshmamma who was one of the executants of the agreement, died on 07.11.1995 leaving behind a registered Will dated 25.03.1995, whereunder she bequeathed her right, title and interest in the suit schedule property in favour of Defendant Nos. 1 & 2 and thus, the Defendant Nos. 1 & 2 became the owners of the entire suit schedule property. They further contended that after filing of the suit, on 23.03.2005 the Defendant Nos. 1 & 2 got divided the suit schedule property equally between them under registered partition deed dated 23.03.2005 and thereafter the 1st defendant came forward to perform his part of the contract insofar as it relates to his share and accordingly, the 1st defendant executed the sale deed in favour of the plaintiffs in respect of the properties which fell to his share under the partition deed and therefore, the plaintiffs restricted their claim for specific performance to the extent of the property which fell to the share of the 2nd defendant under the partition deed. They also amended the suit schedule and on account of this amendment, the prayer for specific performance was restricted to land measuring 2 acres 07 guntas in all Survey Numbers. To this amendment, additional written statement was not filed. Once again the 2nd plaintiff examined himself further after the amendment of the plaint by filing additional affidavit and marked Exs. P7 to P19. The defendants did not cross-examine the 2nd plaintiff. Defendant No. 2, against whom the plaintiffs continued the suit, did not lead any evidence. 7. After hearing the learned counsel appearing for the plaintiffs and on appreciation of oral as well as documentary evidence, by the judgment under appeal, the trial Court answered Issue Nos. 1, 2, 4 & 5 in the affirmative and Issue Nos. Defendant No. 2, against whom the plaintiffs continued the suit, did not lead any evidence. 7. After hearing the learned counsel appearing for the plaintiffs and on appreciation of oral as well as documentary evidence, by the judgment under appeal, the trial Court answered Issue Nos. 1, 2, 4 & 5 in the affirmative and Issue Nos. 3 & 6 in the negative holding that the plaintiffs have proved execution of the agreement dated 18.01.1993 and that they have further proved that they are always ready and willing to perform their part of the contract. However, the trial Court on Issue No. 6, held that greater hardship would be caused to Defendant No. 2 if specific performance is granted and therefore, declined to exercise discretion vested in it to grant the relief of specific performance and consequently, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and order, the plaintiffs are in appeal before this Court. 8. Defendant Nos. 1 & 3 to 9 to the suit though initially were impleaded as Respondent Nos. 1 & 3 to 9, later, they were deleted from the array of parties. Though the notice of appeal was served on Respondent No. 2/Defendant No. 2 personally, he remained absent and unrepresented. Therefore, I have heard Sri. S. Sreevatsa, learned Senior Counsel appearing for the counsel on behalf of the appellants/plaintiffs and perused the records secured from the trial Court. 9. The learned Senior Counsel contended that the Court below has committed serious error of law in dismissing the suit on the sole ground of comparative hardship, even after recording affirmative finding on the material issues regarding the execution of the agreement as also readiness and willingness on the part of the plaintiffs to perform their part of the contract. He further contended that having regard to the conduct of Defendant No. 2 in denying the execution of the agreement and in the absence of any pleadings on his behalf with regard to the hardship and in the absence of any evidence in that behalf, the trial Court has committed error of law in considering the question of hardship. He contended that the trial Court having recorded the affirmative findings on Issue Nos. He contended that the trial Court having recorded the affirmative findings on Issue Nos. 1 & 2, in the absence of any pleading and proof by Defendant No. 2, regarding hardship, ought to have decreed the suit and directed Defendant No. 2 to execute the sale deed in respect of the property which fell to his share under the partition deed. He also contended that the Court below has failed to take into consideration the circumstance of Defendant No. 1, the other executant of the agreement, who also had joined Defendant No. 2 in filing written statement, later executing the sale deed admitting the agreement therefore, the trial Court ought to have granted decree as sought for in the suit. He further contended that, if for any reason the Court was of the opinion that and on account of escalation in the price of immovable property subsequent to the date of the agreement, the Court was competent to mould the relief by directing the plaintiff to pay higher amount to the 2nd defendant which would have met the interest of justice and equity. Therefore, the learned Senior Counsel submitted that the judgment under appeal suffers from perversity and illegality, as such, it is liable to be set aside and the suit deserves to be decreed, as sought for. 10. Perusal of the judgment under appeal indicates that the trial Court after referring to the pleadings of the parties and evidence available on record, has recorded a finding on Issue Nos. 1 & 2 that the plaintiffs have proved the execution of agreement marked as Ex.P1 by Defendant Nos. 1, 2 and their Aunt Smt. Lakshmamma, and also the receipt of Rs. 1,25,000/-thereunder; and that the plaintiffs have proved that they were ready and willing to perform their part of contract. However, the Court below has declined to grant specific performance to the contract on the ground of hardship in the light of the provisions of Section 20(2) (b) of the Specific Relief Act. Therefore, the point that arises for consideration in this appeal is,- "Whether the Court below is not justified in declining to exercise discretion to grant specific performance of the contract on the ground of hardship even in the absence of pleadings and proof on the part of Defendant No. 2 in this regard?" 11. Therefore, the point that arises for consideration in this appeal is,- "Whether the Court below is not justified in declining to exercise discretion to grant specific performance of the contract on the ground of hardship even in the absence of pleadings and proof on the part of Defendant No. 2 in this regard?" 11. As noticed supra, Defendant No. 2 arraigned as Respondent No. 2 herein has remained absent and unrepresented in spite of service of notice of this appeal. Perusal of the records indicates that after filing the written statement before the trial Court, he remained absent and did not participate in the trial, nor he placed any evidence before the Court. The averments made in the amended plaint that Smt. Lakshmamma, stated to be one of the executants of the agreement, who was the Aunt of Defendant Nos. 1 & 2, died leaving behind a registered Will, whereunder she bequeathed all her rights, title and interest in the suit schedule property in favour of Defendant Nos. 1 & 2 are not denied nor disputed by the defendants, since additional written statement to the amended plaint was not filed. Thus, the defendants by their silence have admitted the said facts. It is not in serious dispute that subsequent to filing of the suit in the year 1995, Defendant Nos. 1 & 2 effected partition of all the properties under the registered partition deed, a certified copy of which is marked as Ex.P7, whereunder half extent in each of the lands fell to the share of the 1st defendant and the remaining half fell to the share of the 2nd defendant. It is also not in serious dispute that subsequent to the partition, the 1st defendant came forward to execute the sale deed in favour of the plaintiffs in respect of the portion of the properties which fell to his share and accordingly, the 1st defendant executed the sale deed dated 18.05.2006. A certified copy of said sale deed is available on record. 12. As noticed supra, in the joint written statement filed by Defendant Nos. 1 to 9, they denied the execution of the agreement and they contended that the agreement is forged and created one. Nevertheless, subsequently defendant No. 1 admitting the agreement executed the sale deed in respect of the properties which fell to his share. 12. As noticed supra, in the joint written statement filed by Defendant Nos. 1 to 9, they denied the execution of the agreement and they contended that the agreement is forged and created one. Nevertheless, subsequently defendant No. 1 admitting the agreement executed the sale deed in respect of the properties which fell to his share. However, it is pertinent to note that in the reply notice sent on behalf of Defendant Nos. 1 & 2, a copy of which is marked as Ex.P3, it was contended that their signatures were obtained on a blank paper by the 2nd plaintiff who is a relative of Defendant Nos. 1 & 2 and such signed blank paper has been converted into agreement of sale. Thus, the contention raised in the reply notice-Ex.P3, indicates that the defendants have admitted their signatures appearing on the agreement. In view of the above, the Court below, having regard to the evidence available on record, is justified in coming to the conclusion that the execution of agreement has been proved by the plaintiffs and that the plaintiffs were/are always ready and willing to perform their part of the contract. 13. According to Section-20 of the Specific Relief Act, the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so. However, such discretion of the Court should not be arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Clauses- (a) to (c) of sub-section (2) of Section 20 sets-out the cases in which the Court may exercise discretion not to decree specific performance. As per Clause (b), where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, the Court would exercise discretion not to decree specific performance. 14. The Court below during the course of the judgment under appeal has noticed that the plaintiffs have not pleaded that they would be put to hardship if the specific performance is not granted. 14. The Court below during the course of the judgment under appeal has noticed that the plaintiffs have not pleaded that they would be put to hardship if the specific performance is not granted. The Court below having taken serious note of the fact of high escalation in the prices of landed properties in and around Bangalore, has come to the conclusion that it would be highly unjust and improper to direct specific performance for the consideration mentioned in the agreement is grossly inadequate and too low regard being had to the market value as on the date of judgment. On the above grounds, the Court below proceeded to refuse to exercise the discretion. 15. In Prakash Chandra vs. Angadlal, (1979) 4 SCC 393 the Apex Court has held that, the ordinary rule is that specific performance should be granted and it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 16. In Prakash Chandra vs. Narayan, (2012) 5 SCC 403 , the Apex Court has held that, the question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate Court without framing such an issue ought not to have reversed the finding of the trial Court which concurring with it on all other issues with regard to the appellant's entitlement to relief for specific performance of contract. In other words, according to this decision, the discretion not to grant specific performance would be exercised only when defendant takes a defence of hardship and brings on record the evidence in support of such defence, and since the hardship is a question of fact, the Court should frame an issue in that regard. 17. In the case on hand, the trial Court having regard to the escalation in price of the immovable property has held that, the defendant would be put to great hardship if he is directed to execute a sale deed for the consideration shown in the agreement. 18. 17. In the case on hand, the trial Court having regard to the escalation in price of the immovable property has held that, the defendant would be put to great hardship if he is directed to execute a sale deed for the consideration shown in the agreement. 18. In P.D'souza vs. Shondrilo Naidu, AIR 2004 SC 4472 , the Apex Court referring to the decision in the case of Nirmala Anand vs. Advent Corporation (P) Ltd., AIR 2002 SC 2290 , has observed thus in Para 47, "47. The said decision cannot be said to constitute a binding precedent to the effect that in all cases where there had been an escalation of prices the Court should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum. No law in absolute terms to that effect has been laid down by this Court nor is discernible from the aforementioned decision." Further referring to explanation-I to Section 20, the apex Court has observed that merely inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of Section 20. In Nirmala Anand's case referred to supra, the Apex Court while considering the question as to whether due to delay in grant of decree and the escalation of prices of real estate during that period is a ground to deny the relief of specific performance, has observed that it has repeatedly been held that per se the delay or the escalation of price is no ground to deny the relief of specific performance. In certain cases the Courts in equity and to mitigate the hardship to the vendor have directed the vendee to pay further compensatory amount, but it is not a principle of universal application and it would depend upon the facts and circumstances of each case. 19. In P.S. Ranakrishna Reddy vs. M.K. Bhagyalakshmi and another, AIR 2007 SC 1256, the Apex Court rejected the argument of the counsel that regard being had to the rise in price of immovable property in Bangalore, the Court ought not to have exercised the discretionary jurisdiction under Section 20 of the Specific Relief Act. 20. 19. In P.S. Ranakrishna Reddy vs. M.K. Bhagyalakshmi and another, AIR 2007 SC 1256, the Apex Court rejected the argument of the counsel that regard being had to the rise in price of immovable property in Bangalore, the Court ought not to have exercised the discretionary jurisdiction under Section 20 of the Specific Relief Act. 20. In K. Gajendran vs. Chikkathimma and others, ILR 2007 KAR 4440, a Division Bench of this Court taking note of the escalation of price in the real estate in and around Bangalore and in order to mitigate the hardship to the defendants, directed the plaintiff to pay defendants at higher rate and directed the defendants to execute the sale deed. 21. In the case on hand, as noticed supra, the 2nd defendant did not plead any hardship in the written statement. In the absence of any such plea, there was no occasion for the Court to frame any issue in that regard. Defendant No. 2 has not led any evidence. He has not cross-examined PW. 1 nor has led any oral evidence with regard to the hardship. Thus, there is neither pleading nor proof on the part of 2nd defendant regarding hardship. In the absence of any such plea and proof, as rightly contended by the learned Senior Counsel, the Court below could not have considered the question of hardship as a ground to decline to grant decree for specific performance. In a case of this nature it would not be necessary for the plaintiff to plead that he/she would be put to hardship if specific performance is not granted, since, the Court may refuse to exercise the discretion to grant specific performance if it is satisfied that grant of specific performance would result in hardship to defendant while no hardship would be caused to plaintiff. Therefore, it would be for the defendant to plead and prove the said factor. If the defendant takes-up a plea in that regard, the Court would be required to frame an issue, and thereafter, the defendant would be required to prove the same by adducing evidence. Therefore, it would be for the defendant to plead and prove the said factor. If the defendant takes-up a plea in that regard, the Court would be required to frame an issue, and thereafter, the defendant would be required to prove the same by adducing evidence. In the absence of any plea and proof in that regard, the Court below is not justified in holding that hardship would be caused to the defendant by granting specific performance in favour of plaintiffs on the ground that the plaintiffs have not pleaded that they would suffer hardship if specific performance is not ordered. Therefore, the finding recorded by the Court below in this regard is perverse being contrary to law. 22. No doubt, the prices of immovable property in and around Bangalore have gone-up by many folds. The agreement in question was entered into in the year 1993. The suit came to be filed in the year 1995 and ultimately, the suit was disposed of in the year 2010, nearly about 15 years later. For this delay, the plaintiffs alone cannot be blamed. For variety of reasons the suit has gone-on for 15 long years. In the meanwhile, the prices of the real estate have gone-up. The rise in price of real estate cannot be the only factor to decline relief of specific performance, though it could be one of the circumstances. However, taking note of the escalation in prices, the Court can always mould the relief in order to mitigate the hardship that could be caused to the opposite party. While exercising discretion in favour of the plaintiff, the Court can always direct the plaintiff to pay higher amount than the one mentioned in the agreement. However, on the mere ground of escalation in prices of the properties, the Court below could not have come to the conclusion that greater hardship would be caused to the defendant, if the specific performance is ordered. In a case of this nature, it is well-settled law that the conduct of the parties is very important. The conduct on the part of the 2nd defendant in denying the very execution of the agreement and contending that the agreement is forged and created one and thereafter, remaining silent without participating in the trial of the case would clearly indicate that he is not very much interested in pleading the question of hardship. The conduct on the part of the 2nd defendant in denying the very execution of the agreement and contending that the agreement is forged and created one and thereafter, remaining silent without participating in the trial of the case would clearly indicate that he is not very much interested in pleading the question of hardship. When the 2nd defendant himself was not inclined to plead hardship as a ground to refuse the specific performance, the Court below is not justified in declining to grant specific performance. However, as held by the Division Bench of this Court and several other decisions, it is just and necessary to take note of the escalation in price and suitably direct the plaintiffs to pay higher amount for getting the relief of specific performance in order to mitigate the hardship that may be caused to the 2nd defendant. 23. As noticed supra, during the pendency of the suit in respect of one half (11/2) of the total extent agreed to be sold under the agreement, sale deed came to be executed by the 1st defendant. As could be seen from the copy of the sale deed dated 18.05.2006 available in the records of the trial Court, the sale consideration shown in the said document is Rs. 80,00,000/- (Rupees Eighty Lakhs). This shows the nature of escalation in the price of the property. Nominees of plaintiffs have paid said sum of Rs. 80,00,000/- to Defendant No. 1 for the purpose of obtaining the sale deed. No doubt, the 2nd defendant did not come forward to execute the sale deed, as a result of which, the plaintiffs were made to pursue the litigation and also to file this appeal, on account of the dismissal of the suit by the trial Court. 24. Judicial notice of the fact that from the year 2006 onwards, once again the prices of real estate have gone-up further by many folds. To direct the 2nd defendant to execute the sale deed for the total consideration shown in the agreement referable to the full extent, would certainly result in great injustice to the 2nd defendant. 25. Learned Senior Counsel submitted that the plaintiffs are ready to pay the entire consideration shown in the agreement to the 2nd defendant for executing the sale deed in respect of the remaining half portion. 25. Learned Senior Counsel submitted that the plaintiffs are ready to pay the entire consideration shown in the agreement to the 2nd defendant for executing the sale deed in respect of the remaining half portion. However, having regard to the consideration shown in the sale deed executed by the 1st defendant in respect of half share, it is unfair and unjust to direct the 2nd defendant to execute the sale deed for the consideration amount mentioned in the agreement. If the decree as sought is granted on the consideration shown in the agreement, it would certainly result in unfair advantage to the plaintiffs over the 2nd defendant, and it further renders such enforcement inequitable. Even according to the contents of the agreement only a sum of Rs. 1,25,000/-against total consideration of Rs. 14,30,000/- had been paid as advance to three vendors. According to the plaintiffs, the vendors delivered possession of the properties agreed to be sold on the date of agreement itself. This fact is not seriously controverted by the defendants. Thus, by paying hardly about 9% of total agreed consideration, the plaintiffs have enjoyed the property from 1993. Defendant No. 2 did not had the benefit of the money for all these years. On the other had, plaintiffs had the benefit of money as well as possession of property. Therefore, it is highly unjust and unfair to direct specific performance for the consideration mentioned in the agreement. Even by the plaintiff's showing the value of half share of the properties agreed to be sold under the agreement, in the year 2006 was Rs. 80,00,000/- (Rupees Eighty Lakhs). Therefore, in the year 2006, if Defendant No. 2 had also joined execution of sale deed, he also would have been paid Rs. 80,00,000/-. Even if the said sum had been kept in a fixed deposit in any Nationalized Bank, the said amount by now would have grown to the tune of not less than 1,25,00,000/-(Rupees One Crore & Twenty five lakhs). Up-to-date encumbrance certificate produced by the appellants indicates that subsequent to dismissal of the suit, Defendant No. 2 has not created any third party interest in respect of schedule properties. Therefore, there are no reasons to refuse the relief of specific performance as sought by plaintiff, however, subject to plaintiffs paying consideration amount in tune with escalation in prices of real estate in and around Bangalore. Therefore, there are no reasons to refuse the relief of specific performance as sought by plaintiff, however, subject to plaintiffs paying consideration amount in tune with escalation in prices of real estate in and around Bangalore. Taking into consideration the amount paid by the plaintiffs to the 1st defendant for executing the sale deed in respect of half of the property agreed to be sold under the agreement and the time gap between the said sale deed to this date, and further escalation in prices subsequent thereto, I am of the considered opinion that the interest of justice would be met by directing the 2nd defendant to execute the sale deed in respect of suit schedule property, which fell to his share in the partition deed, on receiving consideration of Rs. 1,25,00,000/- (Rupees One Crore & Twenty Five Lakhs). 26. In view of the above discussion, the plaintiffs are entitled for the relief of specific performance subject to paying the aforesaid amount of Rs. 1,25,00,000/-. 27. Accordingly, the appeal is allowed. Judgment and Decree dated 12.03.2010 in O.S. No. 8510/1995 passed by XI Additional City Civil Judge, Bangalore (CCH-8), dismissing the suit is hereby set aside. The suit of the plaintiffs is decreed. It is declared that the plaintiffs are entitled for the specific performance of the agreement of sale against the 2nd defendant in respect of suit 'B' schedule properties on payment of a total sum of Rs. 1,25,00,000/- (Rupees One Crore and Twenty five lakhs only). The 2nd defendant/2nd respondent is directed to execute the sale deed within two months from the date of the communication of the deposit of Rs. 1,25,00,000/- by the plaintiffs before the trial Court. The deposit shall be made within two months from today. Office to draw-up the decree accordingly.