Anand Vs. Advent Corporation Pvt. Ltd. & Ors  Insc 269 (10 May 2002)
Bhan Bhan, J.
carefully gone through the judgment proposed by my learned brother. I agree
with him that the 4th plaintiff appellant is entitled to the specific
performance of the agreement dated 8.9.1966 entered into by her with defendant
Nos.1 and 2 for sale of Flat No. 71 on the 7th floor of the building known as
"Divya Prabha" situated at No. 12 A, Foreshore Road, Bombay. I am
also in agreement with term Nos. (iii), (iv), (v) and (vi) imposed and set out
by my brother in the last paragraph of his judgment.
after giving considerable thought and with due deference and respect I am
unable to pursued myself to agree to the proposed term (ii) wherein the 4th plaintiff
has been fastened with the liability to pay an additional sum of Rs. 40 lakhs
over and above the payment already made as condition precedent to the execution
of the sale deed in her favour in pursuance to the agreement to sell.
view she is entitled to get the sale deed executed in her favour on payment of
the sum mentioned in the agreement to sell (already paid and balance, if any)
plus the amount she becomes liable to pay under term (iv) and first portion of
term (v) for completion of building in case the appellant agrees to get the
building completed from 7th respondent on payment of the prevailing market
rates as per mutual agreement.
as to why term No. (ii) requiring the 4th plaintiff-appellant to pay the sum of
Rs. 40 lacs and consequent term (vii) should not imposed are:
20 of the Specific Relief Act, 1963 provides that relief of the specific
performance lies in the discretion of the Court and the Court is not bound to
grant such relief merely because it is lawful to do so. The discretion cannot
be exercised arbitrarily. It has to be exercised in a sound and reasonable
manner guided by judicial principles. Sub-Section (2) enumerates the
circumstances in which the Court may exercise its discretion in not granting
the decree of specific performance; sub-section (3) gives guidelines for proper
exercise of the discretion in decreeing the relief of specific performance; and
sub-section (4) does away with the requirement of mutuality as a condition for
grant of relief of specific performance. The circumstances enumerated in
sub-sections (2) and (3) are not exhaustive.
of relief of specific performance being discretionary, it cannot be claimed as
a matter of right. It is governed by sound judicial principles and one of the
foremost principle is that the Court should be satisfied that circumstances are
such that it is equitable to grant the relief of specific performance of the
contract. Under this principle one of the questions which has been considered
at times by the Courts is: as to whether due to delay in the grant of decree
and the escalation of prices of the real estate during the period is a ground
to deny the relief of specific performance. 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 this is not a principle of universal application. It would depend
upon the facts and circumstances of each case.
facts have been succinctly brought about by my learned brother but it would be
necessary for me to recapitulate a few facts.
No. 1 sometime in February, 1962 advertised in newspapers thereby calling upon
the public to apply for flats in the building sought to be constructed and
named as "Divya Prabha". Various agreements with bonafide flat
purchasers were entered into during that time. The appellant similarly entered
into an agreement for the purchase of Flat No. 71 (7th Floor). The
consideration amount to be paid by the appellant was Rs.60,000/-. The building
was to be completed and possession of flats was to be handed over on 30.6.1969.
On 27.6.1969 Bombay Municipal Corporation (for short "the BMC")
served notices on the lessees thereby terminating the lease of the plot of land
on which "Divya Prabha" was constructed. The notices, inter alia,
claimed that the termination was done as the lessees have committed defaults in
payment of the lease rent and have also violated other terms of the lease. The
stage of the construction of 'Divya Prabha' at that time was incomplete. At
this point, it is germane to point out that subsequent to 1969 the construction
of the building was again resumed on or around 1998 which continued till 1999.
The building is still incomplete.
On 30th July, 1969, the appellant along with 7 other
similar purchasers instituted a suit for specific performance of their flat
when the suit was finally adjudicated upon by the learned single Judge of the
Bombay High Court (as trial Court on original side), all the plaintiffs except
plaintiff No. 4 (appellant herein) and plaintiff No. 7 had settled their
disputes with defendants-respondent Nos. 1 and 2. The Trial court in its order
dated 23.3.1981 came to factual conclusion that the appellant had always been
and is ready and willing to carry out her part of the agreement. The agreement
was still valid and subsisting and Defendant No. 1 had committed breach of the
agreement. Trial Court did not grant the specific performance of the agreement
for the reasons that a Court ought not to grant a decree of specific
performance in circumstances when the lease of the land on which the building
stood terminated and the building was incomplete.
along with plaintiff No. 7 preferred an appeal before the Division Bench of the
Bombay High Court. During the pendency of the appeal plaintiff No. 7 also
entered into a settlement with the defendant No. 1. Appeal filed by appellant
was dismissed on 15.7.1987. Appellate Court reasoned that the decree of
specific performance could not be granted as the lease was yet to be secured
from the Corporation; building plans were to be revived; and the entire
building was to be completed before possession of the completed flat could be
handed over to the appellant. It was held that in the circumstances the relief
of the specific performance could not be granted. Thereafter, the appellant
approached this Court in appeal by way of special leave petition which was
brought to the notice of this Court, which fact is noted in the order dated
28.7.1999, that the building known as "Divya Prabha" had been sold by
respondent Nos. 1 and 2 in favour of someone else. The Court directed the
respondents to place on record the documents showing the sales/assignments of
the said building or the respondents' rights therein.
purchaser of the building M/s Gaurva Overseas Pvt. Ltd. was thereafter added as
Respondent No. 7. State of Maharashtra
was added as Respondent No. 8.
fact which needs to be mentioned is that the Government of Maharashtra
promulgated an ordinance thereby amending Section 91B of the Mumbai Municipal
Corporation Act. The said ordinance makes it lawful for the State Government to
lease afresh to the Mumbai Municipal Corporation of any land specified in
Schedule W for a term not exceeding 30 years.
appearing for the BMC on 27.2.2002 made a statement before this Court that BMC
now has a right to grant lease and revise the building plans of "Divya Prabha".
The lease and the revised plan, on an application filed, can be granted
provided the conditions laid down are fulfilled.
fact which needs to be noticed is that the parties during the pendency of the
appeal tried to come to an amicable settlement of their dispute. Respondents
offered to pay a sum of Rs. 60 lakhs to compensate the appellant in lieu of the
specific performance of the agreement. The counsel for the respondents had
taken the stand that the market value of the flat as on today was Rs. 1.80 crores
and the appellant was prepared to accept a sum of Rs. 1.50 crores by way of
damages. He later on scaled down the demand to Rs. 1.20 or 1.25 crores which
was not acceptable to the respondents.
well-settled that in cases of contract for sale of immovable property the grant
of relief of specific performance is a rule and its refusal an exception based
on valid and cogent grounds. Further, the defendant cannot take advantage of his
own wrong and then plead that decree for specific performance would be an
unfair advantage to the plaintiff.
learned brother has already enumerated the reasons with which I agree that the
appellant in the circumstances of the case is entitled to the specific
performance of the agreement irrespective of the fact that certain permissions
are required to be taken from the Government authorities for completing the
building. I need not re-emphasis the same. The appellant had come to the Court
for seeking specific performance of an agreement promptly. The Trial Court as
well as the appellate Court have recorded a finding that the appellant was
ready and willing, at the time of filing of the suit as well as later, to
perform her part of the agreement and it was the defendants who were not
prepared to perform their part of the contract. The appeal has been pending in
this Court for the last 15 years. Delay by itself due to pendency of the
suit/appeal in the courts is no ground to refuse the relief of specific performance
unless certain compelling circumstances are brought on record to take a view to
of price during the period may be a relevant consideration under certain
circumstances for either refusing to grant the decree of specific performance
or for decreeing the specific performance with a direction to the plaintiff to
pay an additional amount to the defendant and compensate him. It would depend
on the facts and circumstances of each case.
an additional amount by way of compensation to be paid to the vendee.
said case the vendor who was appellant had agreed to sell the disputed property
situated at Lajpat Nagar IV, New Delhi, for
a consideration of Rs.16,000/- to the vendee, who was the respondent on
24.1.1973. A sum of Rs.1,000/- was paid as earnest money. As the appellant did
not execute the sale deed in spite of the time granted, the respondent filed
the suit for specific performance of the contract which was decreed.
Immediately, on the decree of the suit the respondent deposited a sum of Rs.
15,000/- in the trial Court.
vendee filed the appeal in the High Court which was dismissed.
to mitigate the hardship to the appellant and as the respondent agreed to pay
more sum, the High Court directed the respondent to deposit a further sum of Rs.
1,00,000/- which was to be released to the vendor on giving possession of the
suit property. The said sum was also deposited in the Registry of the High
Court. The vendor came up in an appeal before this Court by way of special
leave petition. Senior counsel who appeared for the vendor offered to pay a sum
of Rs. 1,16,000/- to the vendee to cancel the contract and get out of the
decree. The vendee after his appearance in this Court offered another sum of Rs.
50,000/- so as to make the total consideration of Rs. 1,50,000/-. This Court
came to the conclusion that the vendor was trying to wriggle out of the
contract due to escalation in prices of real estate properties and therefore
under circumstances the vendor is entitled to get a decree as he had not taken
any undue or unfair advantage over the appellant. On a concession made the
vendor was directed to deposit a further sum of Rs. 3 lakhs. The conclusion
recorded by this Court in para 9 is:
view of the above clear finding of the High Court that the appellant tried to
wriggle out of the contract between the parties because of escalation in prices
of real estate properties, we hold that the respondent is entitled to get a
decree as he has not taken any undue or unfair advantage over the appellant. It
will be inequitable and unjust at this point of time to deny the decree to the
respondent after two courts below have decided in favour of the respondent.
While coming to the above conclusion we have also taken note of the fact that
the respondent deposited the balance of the consideration in the trial court
and also the amount in the High Court, as directed. On the other hand the
appellant, as held by the High Court, tried to wriggle out of the contract in
view of the tremendous escalation of prices of real estate properties. However,
to mitigate the hardship to the appellant we direct the respondent to deposit a
further sum of Rs. 3,00,000/- within 4 months from today with the Registry of
this Court and the amount shall be kept in short term deposit in a nationalised
bank. While giving the above direction we have taken note of the offer made to
us on behalf of the respondent. This amount is to be paid to the appellant on
his giving possession of the suit property to the respondent within 6 months
from the date of the deposit of the above amount.
appellant shall also be entitled to withdraw the amount already deposit in the
trial court and the amount of Rs. 1,00,000/- which has been kept in
interest-bearing fixed deposit in the Registry of the High Court. " [Empahsis
supplied] It would be seen from the perusal of the judgment and the findings
recorded by this Court that the amount by way of compensation was ordered to be
paid by the vendee to the vendor on a concession made by the vendee.
refused to grant the relief of specific performance of the contract due to
escalation of price because the agreement stipulated that the vendee was
required to purchase the stamp papers, tender the balance amount and call upon
the defendant to execute the sale deed and deliver possession of the property
within a period of six months. It was after a lapse of 2-1/2 years that the
proposed vendee issued a notice through his advocate to the proposed vendor
-defendant stating that he had always been ready and willing to perform his
part of the contract, requiring the defendants to execute the sale deed on
payment of the balance amount. The Court while taking note of delay in filing
the suit by the plaintiff came to the conclusion that the exercise of
discretion vested in the Court may not be exercised in granting the relief of
specific performance because of the escalation in price and the advantage
sought to be taken by the plaintiff by filing the suit at a belated stage
though within limitation. It was held:
the present case, the case of the defendants is acceptable. In the agreement of
sale there is no reference to the existence of any tenant in the building. No
letter or notice was issued by the plaintiff to the defendants calling upon
them to get the tenant vacated and get the sale deed executed until he issued
the suit notice on 11.7.1981. From 15.12.1978 till 11.7.1981, i.e., for a
period of more than 2-1/2 years, the plaintiff was sitting quiet without taking
any steps to perform his part of the contract under the agreement. It is thus
not a case of mere delay. It is a case of total inaction on the part of the
plaintiff for 2-1/2 years in clear violation of the terms of agreement which
required him to pay the balance, purchase the stamp papers and then ask for
execution of sale deed within six months. Further, the delay is coupled with
substantial rise in prices according to defendants, three times between the
date of agreement and the date of suit notice. They delay has brought about a situation
where it would be inequitable to give the relief of specific performance to the
plaintiff." rise in price of the land agreed to be conveyed may be a
relevant factor in denying relief of specific performance where the Court is
considering whether or not to grant a decree for specific performance for the
would be seen in none of the above noted cases this Court has laid an absolute
rule that the proposed vendee would be required to compensate the proposed
vendor for the escalation of price of the land and building during the pendency
of the proceeding in Court at different level.
appellant has always been ready and willing to perform her part of contract at
all stages. She has not taken any advantage of her own wrong.
appellant is in no way responsible for the delay at any stage of the
proceeding. It is the respondents who have always been and are trying to
wriggle out of the contract. The respondents cannot take advantage of their own
wrong and then plead that the grant of decree of specific performance would
amount to an unfair advantage to the appellant.
the appellant to pay further sum of Rs. 40 Lakhs would/may amount to
frustrating the agreement itself as the appellant may not be in a position to
pay the sum of Rs. 40 lakhs. Respective counsel for the parties had quoted the
figure of a particular sum which could be paid to the appellant in lieu of
avoiding the decree of specific performance. The appellant had not made an
offer to pay any additional sum over and above the quoted price to sell by way
of compensation. It does not indicate the financial position of the appellant
to pay the additional sum of Rs. 40 lakhs.
due respect, in my view, it would be unfair to grant the decree of specific
performance by one hand and take it back by the other.
the reasons stated above, I am of the view that the appellant is sentitled to
the specific performance of agreement to sell the flat No. 71 on 7th floor of Divya
Prabha Building on the price mentioned in the agreement to sell which would be
subject to the terms (iii), (iv), (v) and (vi) of the last paragraph of the
judgment of my learned brother. There would be no order as to costs.