Point of Law: Contract and Specific Reliefs – Agreement to Sell - It is well settled that remedy of specific performance is an equitable one and Court while granting decree of specific performance exercises its discretionary jurisdiction.

JUDGMENT :

Unsuccessful plaintiff in a suit for specific performance of an agreement of sale is challenging the correctness of the judgment and decree dated 23.04.2011 passed in O.S.No.2089/1999 by the learned XI Additional City Civil Judge, Bangalore City (CCH-8) in this appeal.

2. The appellant was the plaintiff before the Court below. Respondent Nos. 1, 2 and 3 in this appeal were the defendant Nos. 1, 2 and 3 respectively before the Court below. The parties will be referred to as per their rank before the Court below during the course of this judgment.

3. The plaintiff instituted a suit for specific performance against the defendants on the allegation that he had been a tenant under one J.Anthony Swamy in respect of the suit schedule properties since the year 1988 and on 11.06.1997, said J.Anthony Swamy executed an agreement of sale in respect of the suit schedule properties in favour of the plaintiff under Ex.P.1. The amount of consideration agreed under Ex.P.1 was Rs.1,05,000/-and out of the same, a sum of Rs.75,000/-was paid on the date of execution of Ex.P.1. It is stated that plaintiff who was a tenant was put in possession of the suit schedule properties in part performance of the said agreement and ever since then, he was in possession of the property under Ex.P.1 in that capacity. It is further stated that the time fixed under Ex.P.1 for the execution of sale deed by J. Anthony Swamy was three months and balance consideration of Rs.30,000/-was required to be paid on demand made by the vendor and in two instalments. The plaintiff was ready with that money. It is alleged that during September, 1997, vendor – J.Anthony Swamy fell seriously ill and he was admitted to Lakeside Hospital, Bangalore, on 25.09.1997 and surgery was done on him and finally he passed away on 01.10.1997 while he was in the hospital. It is further alleged by the plaintiff that on 25.09.1997, defendant Nos. 2 and 3 had created a false sale deed under Ex.D.4 in respect of the suit schedule properties and J.Anthony Swamy had fallen ill and he could not have executed the said document and he could not have attended the Office of the sub-Registrar personally for registration.

4. Defendant No.1 has remained ex parte. Defendant Nos. 2 and 3 filed a joint written statement contending, inter alia, that plaintiff was not entitled to purchase the schedule property from the vendor – J.Anthony Swamy for the reason that Ex.P.1 is later than the agreement of sale in their favour which preceded the registered sale deed as per Ex.D.4 and pursuant to the same, ever since 25.09.1997, the said two defendants were the owners of the suit schedule property. It is also stated that J.Anthony Swamy had on 10.04.1996 received a sum of Rs.65,000/-by way of cheque and another sum of Rs.75,000/-at the time of registration of the sale deed and another sum of Rs.50,000/-was paid to him by cash and further registration amount was paid by cheque. It is further stated that plaintiff continued to be tenant under defendant Nos. 2 and 3 by paying rent to them. It is further stated that the contention of the plaintiff that J.Anthony Swamy had executed an agreement of sale dated 11.06.1997 was rejected by the Court of Small Causes in HRC No.1247/1998 and also in HRC No.157/2002. On the above pleadings, learned Court below framed the following issues :

“1. Whether the plaintiff proves that late J. Anthoniswamy agreed to sell the suit property for Rs.1,05,000/-and exceuted an agreement of sale dated 11.6.1997 by receiving an advance amount of Rs.75,000/-?

2. Whether the defendants prove that the agreement of sale dated 11.6.1997 is got up and fabricated document?

3. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract

4. Whether the suit is properly valued and the court fee paid is just and proper?

5. Whether the plaintiff is entitled to the relief of specific performance of the contract?

6. To what order or decree?”

5. During the trial, plaint