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Andhra Pradesh High Court
Judges : T.CH.SURYA RAO
M.A.Jabbar - Appellant
Versus
Life Insurance Corporation House Building Employees society, Hyderabad - Respondent
Decided On : 11-24-99
Held : The plaintiff society has done substantial acts towards the performance of the contract and also incurred loss at least to the extent of rs. 55,000 paid to the protected tenants, which is not covered by the terms of ex. A-1. The defendants cannot claim any disadvantage or hardship on account of the escalation of prices, more particularly the appreciation of value of the urban land. In the absence of any blame on the part of the plaintiff society, the delay cannot squarely be attributed to the plaintiff society. The initial version of the defendants at the time of the execution of agreement of sale was that the land was not in existence in the records of protected tenants, was proved to be false. Two sets of protected tenants claimed tenancy rights over the suit land and ultimately on account of the compromise with them they surrendered their rights in favour of the plaintiff society. The plaintiff had to incur an additional amount of Rs. 55,000/- in that regard, which it is not claiming by way of any deduction from out of the balance of sale consideration. The advent of Act 33/76 was quite unforeseen by either of the parties and the blame cannot be thrown upon the plaintiff for that. The anxiety of the plaintiff to get the sale deed executed can be seen the way in which it paid the money to the protected tenants under a compromise. The delay was occasioned also as some of the defendants had to come from abroad for the execution of the sale deed. Having due regard to the facts and circumstances of the case, no part of the delay could be attributed to the plaintiff. The transaction cannot be said to be unfair and disadvantageous to the defendants. The defendants who have been evincing interest initially for the clearance of the hurdles at a later stage, after the necessary permission was given by the Government under Act 33/76 stopped evincing interest in the transaction perhaps for the reason that as per the prevailing rates, the market price of the suit land has been increased many fold. On that ground it cannot be said that the transaction between the parties inter se under Ex. A-1 is unfair or it causes hardship. Causing hardship is a relative term and it has to be considered having due regard to the positions of both the parties. If the relief of specific performance is not granted the plaintiff society cannot acquire a suitable site for constructing houses for its members having already parted with the money.
Payment of an additional amount of Rs. 55,000/- to the tenants which was unexpected by both the parties itself is an indicia of the preparedness on the part of the plaintiff society to perform or willing to perform its part of the contract. The defendants themselves admitted in Exs. A-37 to A-44 that on account of the genuine hardships the sale deed could not be registered. I, therefore, see no merit in the contention of the defendants that the plaintiff society is guilty of falsity of the claim and approaching the Court with unclean hands. For the foregoing reasons it is obvious that the plaintiff society from the date of the suit agreement has always been ready and performed the essential terms of the contract and is willing to perform its part of the contract. It is only the subsequent events, which could not be foreseen, that prevented the plaintiff society from proceeding further and there are no laches on its part. None of the above indicia is attracted in this case so as to disentitle the plaintiff society the relief of specific performance.
1. Equitable relief of specific performance is discretionary and the Court is not bound to grant such a relief at the mere asking because it is lawful to do so. 2. A person who is seeking equitable relief must show the equity in himself and approach the Court with clean hands. 3. He must aver and prove that he has always been ready and willing to perform the essential terms of the contract, other than the terms the performance of which has been prevented or waived by the defendant. In other words he must show his readiness to perform the essential terms of the contract. The difference between the "readiness" and "willingness" cannot be lost sight of. The former refers to the financial capacity and the later on the conduct of the plaintiff wanting specific performance. Readiness and willingness cannot be treated as a straight-jacket formula. That has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 4. The plaintiff to prove his readiness should show that the amount of consideration is available. But that does not mean that he should demonstrate by showing the availability of the money from the beginning till the date of the decree. Suffice if it is proved that he is ready to go through with the contract. The following are the instances where the performance of the contract cannot be enforced. 1. Inordinate delay on the part of the plaintiff to perform his part of the contract. 2. The conduct of the plaintiff prior and subsequent to the filing of the suit and the other attending circumstances, which disentitle him to the relief. 3. If any unfair advantage plaintiff derives over the defendant at the time of entering into the contract. 4. Where the plaintiff has no equity in himself or approaches the Court with unclean hands. 5. Where the contract makes it inequitable to enforce the specific performance. 6. Where the performance of the contract results in disadvantageous position or hardship to the defendant and the non- performance thereof would not result any such hardship to the plaintiff. Again whether it would result in disadvantageous position or hardship to the defendant or give unfair advantage to the plaintiff or would not result in any such hardship to the plaintiff shall have to determine with reference to the facts and circumstances of each case since it is a pure question of fact.
( 1 ) CCCA No. 36 of 1998 has been preferred against the judgment and decree dated 11-3-1997 passed by the learned iii Additional Chief Judge, City Civil Court, hyderabad, in OS No. 311 of 1980 by the unsuccessful defendants 2 and 5 while arraying the other defendants in the suit as respondents 2 to 7.
( 2 ) CCCA No. 58 of 1998 has been preferred by the remaining defendants 1, 3, 4 and 6 to 8 against the same judgment and decree in OS No. 311 of 1980 while arraying the defendants, 1, 2 and 5 as respondents 2 to 4. The plaintiff in the suit is the first respondent in both the appeals.
( 3 ) INITIALLY an ex parte decree was passed on 24-12-1981 when all the defendants remained ex parte in the suit. Later the said decree was set aside pursuant to the orders passed in IA No. 392 and 393 of 1983 qua the defendants 2 and 5 alone on 20-3-1989. The petition filed by the 7th defendant in IA No. 436 of 1983 was dismissed. The petitions filed by the remaining defendants seeking to set aside the ex parte decree also resulted in dismissal. 8th defendant, however, carried the matter to the Apex Court eventually and he was permitted to submit written arguments in the suit without allowing him to participate in the trial. The ex parte decree that had been passed earlier became final against all other defendants except defendants 2 and 5. The unsuccessful defendants 2 and 5 filed the former appeal and the other defendants filed the later appeal against that ex parte decree. The defendant No. 8 although was permitted to submit written arguments in the suit and in fact filed the written submissions did not join the defendants 2 and 5 in the former appeal. But preferred to join the other defendants in the later appeal.
( 4 ) BOTH the appeals therefore can be disposed of together inasmuch as they arise out of the same judgment and decree in OS No. 311 of 1980. It is expedient to refer the parties as they are originally arrayed in the suit so as to avoid any confusion.
( 5 ) BRIEFLY stated the facts are thus: the Life Insurance Corporation employees Co-operative House Building society (for short the plaintiff society ) represented by its Vice-President laid the suit for specific performance of suit agreement of sale dated 28-3-1974. The vacant land measuring 16000 sq. yards more fully described in the schedule appended to the plaint (for short the suit land ) was originally belonged to the father of the 8th defendant, the grandfather of the defendants 1 to 7 and one M. A. Quadeer. The said Quadeer since died unmarried, the father of the 8th defendant and the grandfather of the defendants 1 to 7 became the absolute owners. After their death and the death of the father of the defendants 1 to 7, defendants 1 to 8 became the absolute owners thereof. The plaintiff society through its Joint Secretary negotiated with the defendants 1 to 7 and their late mother basheerunnisa Begum for purchasing the suit land. Defendants 1 and 2 under a registered general power of attorney represented the 8th defendant. The bargain was settled and the society agreed to purchase the suit land at the rate of Rs. 17/- per sq. yard and eventually the suit agreement of sale dated 28-3-1974 came to be executed by the defendants 1 to 7 and their late mother Smt. Basheerunnisa Begum who died subsequently on 27-11-1975. The terms agreed upon between the parties were set- forth in the agreement and the sale consideration was worked out at Rs. 2,43,525/ -. On the date of agreement an amount of rs. 20,000/- was paid by the plaintiff-society under a cheque drawn in favour of the first defendant. Later the plaintiff-society paid an amount of Rs. 20,000/- on 7-8-1975 and rs. 15,000/- on 11-11-1975 by means of cheques drawn in favour of the first defendant who endorsed the receipt duly on the agreement itself in token thereof. The balance amount of Rs. 1,58,555/- was agreed to be paid at the time of registration of the sale deed. The plaintiff-society took possession of
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