IMPORTANT POINTS
When buyer was ready and willing to perform the contract and the seller was stalling the same, buyer would be entitled to relief of specific performance.
Concurrent findings of fact returned by courts below with cogent reasoning ought not be interfered by High Court in second appeal.
Escalation of prices cannot be a ground for denying the relief of specific performance.

JUDGMENT :

N.V. Ramana, J.

Leave granted.

2. This appeal by special leave is directed against the judgment and decree, dated 14.03.2014, passed by the High Court of Judicature at Madras in Second Appeal No. 1819 of 2001, wherein the High Court has allowed the second appeal by setting aside the concurrent findings of the courts' below.

3. At the outset it is to be noted that during the pendency of this appeal, respondent no. 1 and respondent no. 3 Reportable have settled the disputes by compromise deed dated 04.08.2014. In light of the aforesaid compromise, this appeal is pursued only against respondent no.2.

4. A brief reference to facts which are necessary for disposal of the appeal before us are, Appellant herein who is the plaintiff in the suit [hereinafter ‘Buyer' for brevity] and respondent no. 2 who is the defendant [hereinafter ‘Seller' for brevity unless context otherwise requires] entered into an agreement of sale in respect of suit schedule property on 10.12.1986. The sale consideration was fixed at Rs. 1,01,000/- per acre. An amount of Rs. 40,000/- was paid as earnest money. As per the terms of the agreement one year was stipulated for completion of the sale by executing an absolute sale deed. Additionally the agreement stipulated that the seller has to conduct a survey for the identification of the boundaries of the suit schedule property. As the said condition was not complied with by the seller, the buyer issued a notice dated 26.09.1987 calling upon the seller to comply with the stipulated obligation without any further delay. Confronted by continuous denials by the seller, buyer having left with no option has filed the instant suit seeking specific performance of the agreement of sale dated 10.12.1986.

5. Trial court after a full fledged trial has decreed the suit for specific performance. On an appeal by the unsuccessful seller/defendant appellate court dismissed the appeal by confirming the judgment of the trial court. Both the courts concurrently found that the survey was not conducted by the seller as no material was placed in support of the same. Moreover, the statements of DW1 and DW2 were held to be unbelievable. Courts' below relied upon the fact that in CRP No. 2195 of 1989, the High Court has given a categorical finding that the property was not surveyed and the price was also not ascertained. As the aforesaid factual finding had become final, the trial court as well as the appellate court came to the conclusion that plaintiff/buyer seller/defendant failed to fulfill his part of the contract.

6. High Court in second appeal, while overturning the concurrent findings, set aside the judgment and decree of the court below. A perusal of the impugned judgment reveals that the High Court was persuaded by the fact that buyer was unable to prove by reliable oral and documentary evidence that the suit property was not measured and demarcated by the seller. Aggrieved by the aforesaid judgment of the High Court in second appeal, buyer is in appeal before this Court.

7. The Ld. Counsel, Mr. T. Harish Kumar, for the buyer submits that:

i. The High Court in second appeal could not have reversed the findings of fact, as the same was beyond the scope of the second appeal under section 100 of the Code of Civil Procedure, 1908 [hereinafter ‘CPC' for brevity].

ii. The Agreement mandated seller to conduct survey and affix boundaries. Conducting the survey being a condition precedent for payment of the agreed consideration, non-fulfillment of such condition was a breach of the contract committed by the seller herself.

iii. The seller has not adduced any documentary evidence to prove that the survey was conducted.

iv. The perusal of plaint and the supporting affidavit by the buyer establishes that there was sufficient pleading and evidence on record to show that they were ready and willing to perform their part of the contract.

8. Per contra Ld. Senior Counsel Ms. Indu Malhotra, appearing for the seller submits that-.

The equitable remed