Point of Law: Specific performance of Agreement - Doctrine of comparative hardship has been thus statutorily recognised in India.

JUDGMENT :

C.S. Sudha, J.

This appeal is against the judgment and decree dated 07/02/2012 in O.S.No.468/2006 on the file of the Subordinate Judge’s Court, Kottayam. The suit for specific performance or in the alternative return of advance money has been decreed partly by allowing the prayer for return of advance money. Aggrieved, the sole plaintiff has come up in appeal. The respondents herein are the defendants in the suit. The parties in this appeal will be referred to as described in the suit.

2. According to the plaintiff, she had entered into Ex. A2 sale agreement dated 07/08/2006 by which defendants 1 to 3 agreed to sell their plaint schedule property having an extent of 12.32 acres for a total sale consideration of Rs. 55,44,000/-. On the date of the agreement, an amount of Rs.10,00,000/-was paid as advance. The agreement was to execute the sale deed within a period of three months from the date of agreement. The plaintiff was always ready and willing to perform her part of the contract. However, the defendants were never ready to perform their part of the contract. So, the plaintiff issued Ext.A3 lawyer notice dated 31/10/2006 calling upon the defendants to execute the deed, to which they sent Ext.A5 reply notice dated 16/11/2006, raising false and untenable contentions. Hence the suit.

3. Defendants on the other hand, filed written statement contending that there was never any sale agreement as alleged in the plaint. According to the defendants, Ext.A2 was executed as security when the first defendant borrowed an amount of Rs. 10,00,000/-from the plaintiff. Though styled as a sale agreement, parties never intended to act upon the same. When the defendants received Ext.A3 lawyer notice, along with Ext.A5 reply notice, they had also sent a cheque for Rs. 10,00,000/-returning the amount borrowed by the first defendant from the plaintiff. Ext.A2 is not a sale agreement as alleged in the plaint. The agreement was prepared and brought by the plaintiff incorporating the conditions therein and the signature of the first defendant obtained. The 1st defendant was forced to sign in the agreement in order to obtain the loan amount, failing which the amount was refused to be advanced. None of the terms in the agreement had been agreed to by the defendants. The plaintiff got the agreement executed by playing fraud, exercising undue influence and coercion. Thus Ext.A2 agreement is void ab initio and is not binding on the defendants.

4. On completion of the pleadings, necessary issues were raised by the court below. Pws.1 and 2 were examined and Exts.A1 to A11 were marked on the side of the plaintiff. DW1 was examined on the side of the defendants. No documentary evidence was adduced by the defendants. The court below disbelieved the case of the plaintiff and so disallowed the prayer for specific performance. Aggrieved, the plaintiff has come up in appeal.

5. Heard Sri.Abraham P.George, the learned counsel for the appellant and Sri.P.K.Babu, the learned counsel for respondents 1 to 3.

6. The points that arise for consideration are:

i) Has the plaintiff succeeded in establishing that Ext.A2 document is an agreement for sale as alleged in the plaint?

ii) Has the plaintiff satisfied the requirements under Section 16(c) of the Specific Relief Act, 1963(the Act)?

iii) Is there any infirmity in the findings of the court below calling for an interference by this Court?

iv) Reliefs and costs?

7. Point No. (i) to (iii): The first and foremost reason given by the court below for rejecting the relief of specific performance is the failure of the plaintiff to enter the witness box and depose regarding her readiness and willingness. The court below relied on the dictum of the Hon’ble Supreme Court in Man Kaur v. Hartar Singh Sangha - (2010) 10 SCC 512: 2010 KHC 4741 to disbelieve and find that the evidence let in by PW1, the power of attorney holder of the plaintiff, is insufficient to prove the case pleaded in the plaint. Before we go into the said aspect,