REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO .3049 OF 2017

[Arising out of SLP (C) No. 32285 of 2015]

JAYAKANTHAM & OTHERS

.....APPELLANTS

Versus

ABAYKUMAR

.....RESPONDENT

J U D G M E N T

Dr D Y CHANDRACHUD, J

Leave granted

2

This appeal arises from a judgment rendered by a learned Single Judge

of the Madras High Court on 11 June 2015 in a second appeal under Section

100 of the Code of Civil Procedure, 1908. Dismissing the second appeal, the

learned Single Judge confirmed the judgment of the Principal District Judge,

Villupuram by which an appeal against the judgment of the sub-Judge,

Kallakurichi was dismissed. The trial court decreed the suit for specific

performance instituted by the respondent against the appellants.

Digitally signed by

PARVEEN KUMAR

Date: 2017.02.21

17:15:31 IST

Reason:

Signature Not Verified

2

3

The subject matter of the suit for specific performance is a property

bearing survey No. 314/1A at Kallakurichi village admeasuring 735 square feet

upon which a residential house is situated. An agreement to sell was entered

into between the appellants and the father of the respondent on

2 June 1999. The consideration agreed upon was rupees one lakh sixty

thousand of which an amount of rupees sixty thousand was received as

advance. The balance was to be paid when the sale deed was executed. Time

for completion of the sale transaction was reserved until 2 June 2002. A legal

notice seeking performance of the agreement was issued on 7 May 2002. In

response, the defence that was set up was inter alia that the agreement to sell

was executed only as a security for a loan transaction.

4

In support of the plea for specific performance, the father of the

respondent was examined as PW1. Evidence on behalf of the appellants was

adduced by DW1 and DW2. The trial court by a judgment and order dated

5 January 2007 decreed the suit for specific performance and directed the

appellants to execute a sale agreement in favour of the respondent against

receipt of the balance consideration of rupees one lakh. The trial court noted

that the agreement to sell had been registered and rejected the defence that it

is merely a document executed by way of security for a loan transaction. In

the view of the trial court, there was nothing in the agreement to indicate that it

was executed merely by way of a security. A finding of fact was arrived at to

the effect that the respondent was ready and willing to perform the agreement.

3

The suit was decreed. The judgment of the trial court was confirmed in appeal

on 26 August 2008 by the Principal District Judge, Villupuram.

5

A second appeal was initially admitted on a substantial question of law

but was eventually dismissed by a learned Single Judge of the Madras High

Court on 11 June 2015.

6

When the Special Leave Petition came up on 29 January 2016, this

Court observed that there was no error in the finding of facts recorded by

three courts concurrently and hence those findings could not be reversed on

merits. However, the alternative submission which was urged on behalf of the

appellants was that the suit property is the only property held by them and has

an extremely high value. The appellants stated that they are ready to pay a

sum of rupees ten lakhs or even more to retain it. Notice was issued to the

respondent limited to the above contention.

7

On behalf of the appellants, it has been submitted that this is a fit and

proper case where specific performance ought not to be ordered and a decree

for compensation in lieu thereof would meet the ends of justice. It was urged

that specific performance of an agreement need not necessarily be ordered

merely because it is lawful to do so and the matter lies in the judicious

exercise of discretion of the court. In support of this plea, reliance was placed

on several circumstances; primary among them being the fact that it is not in