2004 Supreme(SC) 749

2004(6) Supreme 28
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha & S.H. Kapadia, JJ.
P. D Souza -Appellant
versus
Shondrilo Naidu -Respondent
Civil Appeal No. 5333 of 1999
Decided on 28-7-2004
Counsel for the Parties :
For the Appellant : S.N. Bhat, Advocate.
For the Respondent : M.N. Krishnamani, Sr. Advocate, B. Sridhar, K. Ram Kumar, Advocates.

IMPORTANT POINT
Merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant would not constitute an unfair advantage.

Headnote:Specific Relief Act, 1963-Sections 20(3) and 23-Suit for specific performance of an agreement for sale-Parties were required to perform their respective parts of contract within a period of 18 months expiring on 5.12.1978-Total consideration for the said transfer was fixed at Rs. 1,55,000/- -Plaintiff was a tenant in the premises-Defendant, appellant was a landlord of the plaintiff respondent-He had accepted part payments from plaintiff from time to time-Suit property was mortgaged by defendant appellant in favour of Life Insurance Corporation of India-Plaintiff called upon the defendant to execute the deed of sale-Finding recorded that plaintiff has all along been ready and willing to perform her part of the contract-Defendant did not produce original documents nor redeemed the mortgage-He redeemed the mortgage only upon receipt of requisite payment from the plaintiff-Whether High Court was justified in passing decree in favour of plaintiff respondent-(Yes).

       Held : It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the fact and circumstance of each case. No. strait-jacket formula can be laid down in this behalf. The High Court upon consideration of the materials on records had arrived at a finding of fact that the plaintiffs had all along been ready and willing to perform their part of contract. The said findings are binding upon this Court as it had not been shown that while arriving at the said finding the High Court had taken into consideration any irrelevant fact or failed to take into consideration any relevant fact. It is not a case where the plaintiff had not made the requisite averments in the plaint. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The plaintiff was a tenant of the defendant. It is not disputed that the defendant by a letter dated 29th November, 1980 requested the plaintiff to enhance the rent from Rs. 440/- to Rs. 500/-. Therein she further assumed that the sale deed would be executed and registered by 31st December, 1981 which earlier could not be done for unavoidable reasons. The fact that the plaintiff had paid different amounts to the defendant from time to time which were accepted by him stands admitted. It appears from the records that the defendant herself did not produce the original documents nor redeemed the mortgage. If the mortgage was not redeemed and the original documents were not produced, the sale deed could not have been executed and in that view of the matter the question of plaintiff s readiness and willingness to perform his part of contract would not arise. (Paras 19 to 23)

       Time, having regard to the fact situation obtaining herein, cannot, thus, be said to be of the essence of the contract. In any event, the defendant consciously waived his right. He, therefore, now cannot turn round and contend that the time was of the essence of the contract and the plaintiff was not ready and willing to perform her part of contract in December, 1978. (Para 25)

       It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that non-performance of the agreement would not cause any hardship to the plaintiff. The defendant was a landlord of the plaintiff. He had accepted part payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August, 1981, i.e., just two months prior to the institution of suit, he had accepted Rs. 20,000/- from the Plaintiff. It is, therefore, too late for the Appellant now to suggest that having regard to the escalation in price, the Respondent should be denied the benefit of the decree passed in his favour. Explanation 1 appended to Section 20 clearly stipulates that merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of Section 20. (Para 38)