- - JUDGMENT : C. PRATHEEP KUMAR, J. The defendants in OS 341/1995 on the file of the Sub Court, Pathanamthitta are the appellants. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.) 2. The plaintiff filed the above suit for specific performance and consequential reliefs. According to the plaintiff, the plaint schedule property consisting of 10 cents of property belonging to the defendants was agreed to be purchased by him for a consideration of Rs.45,000/- and an agreement was entered into in that respect on 17.11.1992. On the date of the agreement, a sum of Rs.5000/- was paid as advance. The period fixed for execution of sale deed was nine months, after measuring out the property fixing the boundaries and clearing the encumbrances if any. According to the plaintiff, though he approached the defendants even before the expiry of the period of the agreement for getting the sale deed executed, the defendants evaded the same. The plaintiff also came to know that a civil case was pending before the Munsiff's court, Adoor and another case before the RDO, Adoor, in respect of the scheduled property. Whenever the plaintiff demanded the defendants to execute the sale deed, they replied that the sale deed could be executed after the disposal of the above cases. On 16.8.1993, the plaintiff caused to issue a lawyer's notice to the defendants calling upon them to execute the sale deed. Though the defendants received the notice on 17.8.1993, they failed to execute the sale deed. On 9.11.1995, the plaintiff issued another lawyer's notice expressing his readiness and willingness to perform his part of the contract by paying the balance sale consideration of Rs.40,000/-. Though the defendants received the said notice on 10.5.1995 and 11.5.1995 respectively, they did not comply the request and hence the suit. - 3. The defendants filed a written statement admitting the execution of the sale agreement and contended that the sale deed could not be executed due to the default of the plaintiff. According to them, earlier an agreement was entered into between the parties in respect of sale of 30 cents of property. - 3. The defendants filed a written statement admitting the execution of the sale agreement and contended that the sale deed could not be executed due to the default of the plaintiff. According to them, earlier an agreement was entered into between the parties in respect of sale of 30 cents of property. Since the plaintiff was able to purchase only 20 cents, execution of sale deed in respect of the remaining 10 cents was adjourned at the request of the plaintiff, for which a new agreement was executed with a stipulation of three months period. Again, due to the default of the plaintiffs, the sale deed could not be executed as he was not having sufficient money to purchase the property. Therefore, a 3 rd agreement was executed fixing a period of nine months for the execution of the sale deed. Though the defendants were ready and willing to execute the sale deed, the plaintiff was not ready and willing to perform his part of the contract. The allegation that the plaintiff came to know about the two cases in respect of the plaint schedule property is false. Those cases were pending even when he purchased 20 cents of property from the defendants. The allegation that the defendants told the plaintiff that the sale deed will be executed after the disposal of the cases, is false. In fact, the defendants were present in the Sub Registrar's office, Pathanamthitta, for executing the sale deed on 16.8.1993. However, the plaintiff did not turn up with the balance sale consideration. Though the defendants were ready and willing to perform the contract within the period stipulated in the agreement, the plaintiff was not ready and willing and therefore, they prayed for dismissing the suit. - 4. The trial court framed five issues. The evidence in the case consists of the oral testimonies of PW1, DWs1 and 2, Exts.A1 to A10 and B1 to B7. After evaluating the evidence on record, the trial court decreed the suit and directed the defendants to execute a sale deed in favour of the plaintiff. Being aggrieved by the above judgment and decree of the trial court, the defendants preferred this appeal. 5. Now the points that arise for consideration are the following : 1.Whether the plaintiff was ready and willing to perform the part of the plaintiff as claimed ? Being aggrieved by the above judgment and decree of the trial court, the defendants preferred this appeal. 5. Now the points that arise for consideration are the following : 1.Whether the plaintiff was ready and willing to perform the part of the plaintiff as claimed ? 2.Whether the trial court has exercised the discretion under Section 20 of the Specific Relief Act correctly ? 6. Heard Sri.T.Krishnanunni, the learned Senior counsel for the appellants and Sri.R.Rajasekharan Pillai, the learned counsel for the respondent. 7. The learned counsel for the appellants would argue that though they were ready and willing to perform the contract within the agreed period, the plaintiff was not at all ready and willing and as such, the breach of contract was committed by the plaintiff himself. According to the learned counsel, though the date of the agreement (Ext.A1) was dated 17.11.1992 and the period prescribed in the agreement expired on 16.8.1993, the suit was filed only on 17.11.1995 on the expiry of the period of three years and the same will show the lack of interest on the part of the plaintiff in getting the sale deed executed. On the other hand, the learned counsel for the respondent/plaintiff would argue that a civil suit was pending in respect of the plaint schedule property and a proceeding was pending before the RDO and it was in the above context that the execution of the sale deed was delayed. - 8. Ext.B1 is a notice dated 16.8.1993 issued by the plaintiff to the defendants calling upon the defendants to execute the sale deed after disposing of the pending suits. As argued by the learned counsel for the appellants, in Ext.B1 notice the plaintiff has not expressed unconditional readiness and willingness to get the sale deed executed. Instead in Ext.B1, the plaintiff demanded to execute the sale deed after settling the cases pending in respect of the said property. According to the learned counsel for the appellants, the earlier agreement was for an extent of 30 cents and out of which 20 cents was already purchased by the plaintiff even during the pendency of the cases referred to in Ext.B1. Therefore, according to the learned counsel, the conditions stipulated by the plaintiff in Ext.B1 notice is to delay the execution of the sale deed. 9. Therefore, according to the learned counsel, the conditions stipulated by the plaintiff in Ext.B1 notice is to delay the execution of the sale deed. 9. Immediately after issuing Exhibit B1 notice on 16.08.1993, the plaintiff has not filed the suit for specific performance. Thereafter, on 07.11.1995, another notice was given and only on 17.11.1995, the present suit was filed for specific performance. It means that the plaintiff filed the suit for specific performance only after 3 years from the date of Exhibit A1 agreement. For the aforesaid inordinate delay in filing the suit for specific performance, no satisfactory explanation is forthcoming from the side of plaintiff. As I have already noted above, though on 16.08.1993, the plaintiff issued a lawyer's notice, it was a conditional notice in which the plaintiff called upon the defendants to finish the cases in respect of the plaintiff's property first and thereafter to execute the sale deed. As contended by the defendants, the original agreement was for 30 cents of property and out of which the plaintiff purchased 20 cents of property when the civil suit and proceedings before the RDO were pending. In the above circumstance, the reason stated in Exhibit B1 notice for not executing the sale deed immediately, is not a convincing one. In the above circumstance, the contention of defendants that the plaintiff had no money in his possession so as to purchase the plaintiff's scheduled property assumes significance. - 10. The learned counsel for the plaintiff would argue that, usually, in the case of immovable properties, time is not an essence of the contract. Therefore, according to the learned counsel, though the suit was filed after 3 years, it is not a ground for denying special performance. Therefore, according to the learned counsel, the trial court was justified in decreeing specific performance. On the other hand, the learned counsel for the appellants would argue that, time is the essence of Exhibit A1 agreement and as such, the trial court was not justified in decreeing specific performance in the suit filed after 3 years from the date of the agreement. The learned counsel would further argue that out of the total sale consideration of Rs. The learned counsel would further argue that out of the total sale consideration of Rs. 45,000/-, the plaintiff has advanced only a sum of Rs.5,000/- and that the decree for specific performance granted by the trial court has caused much hardships and disadvantage to the defendants while the same has given undue advantage to the plaintiff. - 11. According to the learned counsel for the plaintiff, immediately after the decree, the plaintiff has deposited the balance sale consideration of Rs.40,000/- before the trial court. He has also handed over for perusal a copy of the chellan issued from the treasury, which shows that on 08.04.2005, the plaintiff has deposited the balance sale consideration of Rs. 40,000/-. However, it is to be noted that Exhibit A1 sale agreement was of 17.11.1992 and hence, the amount deposited by the plaintiff was more than 12 years after the date of the sale agreement. 12. Section 20 of the Specific Relief Act dealing with discretion as to decreeing specific performance states as follows: “20. Discretion as to decreeing specific performance.— (1)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; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. - (2)The following are cases in which the court may properly exercise discretion not to decree specific performance:— (a)where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (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; or (c)where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—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). Explanation 1.—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). Explanation 2.—The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3)The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4)The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party." 13. In the decision in U.N.Krishnamurthy (since deceased) Thr. LRs.v. A.M. Krishnamurthy, AIR 2022 SC 3361 , in paragraph 21 the Apex Court held: - “21. It is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money.” 14. In paragraph 24, the Apex Court further held as follows: “24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16 , it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. In view of Explanation (i) to clause (c) of Section 16 , it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.” 15. In the decision in Venkatesh C.S. v. A.S.C Murthy (D) byLRs. And Others , AIR 2020 SC 930 , in paragraph 15 the Apex Court held that: “15. The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.” - 16. In Ravindranath P. and Ors. v. Sasikala and Ors. , 2024 KHC 6379, the Apex Court reiterated the following observation from an earlier decision in U.N.Krishnamurthy (since deceased) Thr. LRs. v. A.M. Krishnamurthy, AIR 2022 SC 3361 : “46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform the part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform the part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.” 17. From the above decisions, it is clear that in order to get the discretionary relief of specific performance, the plaintiff has not only to plead the readiness and willingness all along the period of contract, but also has to prove his readiness and willingness by adducing evidence. It is also evident that even if it is found that the breach was on the part of the defendant, the court is not bound to grant the relief of specific performance, if return of advance amount will do justice to the plaintiff. - 18. In the decision in Vimleshwar Nagappa Shet v. Noor Ahmed Sheriff and Ors , AIR 2011 SC 2057 , in paragraph 9, the Apex Court held that: "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 , 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." 19. As argued by the learned counsel for the appellants, Section 20 of the Specific Relief Act provides that granting decree for specific performance is purely a discretion to be exercised by the court. If grant of decree for specific performance gives unfair advantage to the plaintiff, or if specific performance appears inequitable and causes hardship to the defendants, the court can refuse the specific performance to the plaintiff. In the instant case, within the period prescribed in Exhibit A1 agreement, there was no positive attempt from the side of the plaintiff to get the sale deed executed. In the instant case, within the period prescribed in Exhibit A1 agreement, there was no positive attempt from the side of the plaintiff to get the sale deed executed. The plaintiff waited for a period of 3 years from the date of the agreement for filing a suit for special performance. Out of the total consideration of Rs. 45,000/-, only a meagre amount of Rs. 5,000/- was paid as advance. Finally, the balance sale consideration was deposited before the trial court, more than 12 years after the date of the agreement. It is common knowledge that, in the meantime, the money value has decreased considerably, and the value of the property has increased considerably. From the conduct of the plaintiff in not filing a suit for specific performance till the expiry of 3 years it can be presumed that he was not at all ready and willing to perform his part of the contract. In the above circumstance, if a decree for specific performance is granted in favour of the plaintiff, after such a long period, the same will lead to unfair advantage to the plaintiff, and it will also be inequitable to the defendants. - 20. The learned counsel for the appellants relied upon the decision of a learned single judge of this court in RFA 278 & 279 of 2003 dated 22.12.2011 in which the present appellants were the appellants and the property involved was one adjacent to the plaint schedule property herein. In RFA 278 of 1993, 25 cents of property was agreed to be sold for a sum of Rs. 90,000/-and an advance amount of Rs. 10,000/- was received. In RFA 279 of 2003, the property involved was 15 cents and the consideration was Rs. 67,500/-. Out of which, a sum of Rs. 5,000/- was paid as advance. In almost similar circumstances, the trial court decreed the suit for specific performance. In appeal, this court held that grant of decree for specific performance would be unjust and unfair and would be giving undue advantage to the plaintiffs. The learned single Judge further held that the loss suffered by the plaintiffs can be compensated by paying reasonable compensation in addition to return of the advance amount. Accordingly, the learned single Judge has directed the defendants to pay a sum of Rs. 1,50,000/- to the plaintiff in RFA 278 of 2003 and a sum of Rs. The learned single Judge further held that the loss suffered by the plaintiffs can be compensated by paying reasonable compensation in addition to return of the advance amount. Accordingly, the learned single Judge has directed the defendants to pay a sum of Rs. 1,50,000/- to the plaintiff in RFA 278 of 2003 and a sum of Rs. 80,000/- was awarded in RFA 279 of 2003. In the above decision, the learned single Judge, after relying upon various precedents, held that, it is settled by precedents that the court may well be within its jurisdiction to direct return of the money received by the defendant and also to award damages in lieu of specific performance. - 21. The learned single Judge has passed the above judgments in RFA Nos. 278 of 2003 and 279 of 2003 on 22.12.2011. Now we are in 2025. While considering the unfair advantage a decree for specific performance is likely to be given to the plaintiff, the hardships and inconvenience suffered by the defendants in defending the suit and the appeal, also is to be considered. At the time of arguments, both sides would fairly concede that now the value of the plaint schedule property has increased considerably. In the above circumstance, considering the entire facts, I hold that a direction to pay a sum of Rs. 1,50,000/- along with interest at the rate of 8 % per annum from the date of the suit till realisation will be a reasonable compensation to the plaintiff in lieu of the decree for specific performance. Points answered accordingly. 22. In the result, this appeal is disposed of, by setting aside the impugned judgment and decree passed by the trial court, and allowing the plaintiff to realise a sum of Rs.1,50,000/- along with interest at the rate of 8 percent per annum from the date of the suit till realisation. Further, I direct both parties to suffer their respective costs in this appeal.