Rakesh Kainthla, J
1. The plaintiff has filed the present suit for specific performance of an agreement to sell dated 20.06.2006 as modified by a supplementary agreement dated 02.08.2006 entered between the parties. It was asserted that plaintiff Satish Chand Jain appointed his son Vipul Jain as his general Power of Attorney. The defendants claimed themselves to be the co-owners in possession of Khewat Nos. 16, 18 and 23, Khasra Nos. 505, 507, 501 and 500 measuring 3-09-32 Hectares as per the Khatauni Istemal for the year 2002-03 (Hadbast No. 472), Nangal Kalan, Sub Tehsil Haroli, District Una, H.P. (hereinafter referred to as the suit land) along with the land described above comprised in Khasra Nos. 495, 496, 497, 498, 499, 503, 504 and 506. They assured the plaintiff that they would purchase the land mentioned above and transfer it to the plaintiff by way of sale. They also agreed to deliver the possession of the land to the plaintiff. The sale price was agreed as ₹75,000/- per kanal (384 square meters). The defendants also agreed to provide eight meter wide passage to the suit land from Santokhgarh Thaliwal Main Road. A sum of ₹ 4,00,000/- was paid at the time of the signing of the agreement. 35% amount was to be paid on 27.06.2006. 15% of the amount was to be paid at the time of demarcation of the suit property and the remaining amount was to be paid at the time of registration of the sale deed. It was agreed that the defendants would purchase the land comprised in Khasra Nos. 495, 496, 497, 498, 499, 503, 504 and 506 adjoining to the suit land, which would also be transferred to the plaintiff to make it one compact block. The defendants were to get the title of the land to be purchased by them cleared within 45 days of the execution of the agreement and get the demarcation of the entire land conducted. The sale deed was to be executed and registered as per the agreement dated 20.06.2006. This agreement was extended by 30 days vide a supplementary agreement dated 02.08.2006. Each of the defendants received a sum of ₹8,00,000/- (₹ 32,00,000/- in total) on 24.06.2006. They executed separate receipts. A sum of ₹ 36,00,000/- was paid to the defendants as sale consideration. The plaintiff requested the defendants to complete the formalities as per the agreement but the defendants delayed the execution and registration of the sale deed in favour of the plaintiff on one pretext or another. Some litigation was pending regarding the suit land and the defendants found it difficult to transfer the possession of the land to the plaintiff. The defendants assured to execute the sale deed on or before 31.08.2007 vide undertaking dated 28.06.2007. They also assured to get the demarcation conducted on or before 31.12.2006. However, the defendants failed to comply with the terms and conditions of the agreement. The plaintiff was ready and willing to perform his part of the agreement. However, the defendants failed to perform their part of the agreement. The plaintiff sent notices to the defendants on 12.12.2008 and 24.05.2009 asking them to execute the sale deed as per the agreement. The defendants refused to accept the notices. Hence the suit was filed to seek specific performance of the agreement.
2. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, the suit being barred by limitation, the suit having been improperly valued for court fee and jurisdiction, the suit being bad for non-joinder of necessary parties, the plaint not being properly verified, the plaintiff having failed to perform his part of the contract and the plaintiff having failed to obtain the necessary permission as required under law. The contents of the plant were denied on merits except that the defendants had agreed to sell the land. It was specifically denied that the defendants agreed to purchase the adjacent land and transfer it to the plaintiff. The receipt of sale consideration was also denied. Therefore, it was prayed that the suit be dismissed.
3. A replication denying the contents of the written statement and affirming those of the plaint was filed.
4. The following issues were framed by this Court on 11.05.2010:
1. Whether the plaintiff is entitled to specific performance of contract on the basis of agreement dated 20.06.2006 read with agreement dated 02.08.2006, as alleged? …OPP
2. In case issue No.1 is proved in affirmative, whether plaintiff in addition to specific performance of the contract is also entitled for damages, as alleged? ...OPP
3. Whether suit is not maintainable? OPD
4. Whether the suit is barred by limitation? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD
7. Relief.
5. The parties were called upon to produce the evidence and the plaintiff examined Vipul Jain (PW-1), Pawan Thakur (PW-2), Raman Kant (PW-3), Arun Kumar (PW-4), S.K. Rana (PW-5), himself (PW-6), and Ashwani Kumar (PW-7). The defendant No.1 examined himself (DW-1).
6. I have heard Mr. Kapil Dev Sood, learned Senior Counsel assisted by Mr. Het Ram Thakur, learned counsel for the plaintiff and Mr. Tara Singh Chauhan, learned counsel for the defendants.
7. Mr. Kapil Dev Sood, learned Senior Counsel for the plaintiff submitted that the execution of the agreement and payment of advance money to the defendants is duly proved on record. The plaintiff is ready and willing to perform his part of the contract, whereas the defendants failed to obtain the demarcation as per the terms and conditions of the agreement and to execute the sale deed. The original agreement was extended as per the wishes of the defendants to grant them time to perform their part of the contract but they failed to do so. Hence the plaintiff was compelled to file the present suit. He prayed that the present suit be decreed.
8. Mr. Tara Singh Chauhan, learned counsel for the defendants submitted that the plaintiff is a non-agriculturist and is required to obtain permission from the State Government for the purchase of land. The plaintiff admitted in his cross-examination that he had not applied for permission; therefore, he had not performed his part of the agreement. The sale deed could not be executed in the absence of the requisite permission under Section 118 of the H.P. Tenancy and Land Reforms Act. Therefore, he prayed that the suit be dismissed.
9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
Issue No.1:
10. Defendant No.1 Rakesh Kaushal (DW-1) stated that the plaintiff entered into an agreement to purchase the suit land in the year 2006. He also tendered a sum of ₹ 36,00,000/-through bank drafts in the name of Rakesh Kaushal, his wife and his parents. The agreement to sell was executed between the plaintiff, Rakesh Kaushal, Radha Kaushal, late Sh. Balram and Smt. Lajja Devi. The agreement to sell also disclosed the property of other co-owners but they did not put their signatures on the agreement (Ext. PW-1/A). The plaintiff told him that he was in negotiation with other co-owners. The plaintiff was required to obtain requisite permission under Section 118 of the HP Tenancy and Land Reforms Act. He supplied the necessary documents to the plaintiff but he was not aware whether the plaintiff had obtained the necessary permission from the Government or not. He was ready and willing to execute the registered sale deed with respect to his share, the share of his wife and his parents. The plaintiff failed to act as per the agreement (Ext. PW-1/A) within the requisite time and he failed to obtain the necessary permission for executing the sale deed. No supplementary agreement was drawn between the plaintiff, his wife and his parents.
11. A perusal of the testimony of the defendant shows that he has not disputed the execution of the original agreement between the parties and the payment of ₹36,00,000/- to the defendants. Hence the version of the plaintiff that he had entered into an agreement (Ext. PW-1/A) with the defendants and paid ₹36,00,000/- to them under the agreement has to be accepted as correct.
12. The plaintiff claimed that as per the agreement, the defendants were required to get the land demarcated, cover it with a fence from all sides and get the passage developed. The defendants failed to do so. Hence, the defendants were in breach. The defendants, on the other hand, claimed that the plaintiff failed to obtain permission under Section 118 of the H.P. Tenancy and Land Reforms Act and the plaintiff failed to abide by the terms and conditions of the agreement.
13. Clause 11 of the agreement (Ext. PW-1/A) reads that the defendants undertook to execute the sale deed after the receipt of the balance consideration amount in favour of the plaintiff or any person nominated by him within 30 days from the approval granted by the State Government to the plaintiff for the change of land use. Thus, the execution of the sale deed was dependent upon the permission obtained from the State Government.
14. Vipul Jain (PW-1) admitted in his cross-examination that he was not an agriculturist and that only an agriculturist could purchase land in the State of Himachal Pradesh. Other persons are required to take permission and he had not obtained any permission to purchase the land in the State of Himachal Pradesh. The sale deed could not be executed because the plaintiff did not have permission to purchase the land. Similarly, plaintiff Satish Chand Jain (PW-6) admitted in his cross-examination that he is not a bona fide Himachali and permission is required under Section 118 of H.P. Tenancy and Land Reforms Act to purchase the land in Himachal by a non-agriculturist. He also admitted that he had not applied for permission under Section 118 of the H.P. Tenancy and Land Reforms Act. He volunteered to say that he had applied for an industrial license under the single window clearance and the clearance was granted to him to purchase the land under Section 118 of H.P Tenancy and Land Reforms Act. He had identified the land in dispute for setting up the industry and entered into an agreement to purchase the land with the defendants but they failed to perform the terms and conditions of the agreement. Therefore, he had not applied for permission under Section 118 of the H.P. Tenancy and Land Reforms Act for the land in dispute.
15. The statements of these witnesses clearly show that the plaintiff had not applied for permission under Section 118 of the H.P Tenancy and Land Reforms Act which was necessary for executing the sale deed. The explanation furnished by the plaintiff that he had applied for an industrial license and clearance was granted to him to purchase the land is not supported by any material on record. No copy of such clearance granted by the State Government was filed on record. Hence, in these circumstances, the version of the defendants that the plaintiff failed to perform his part of the contract has to be accepted as correct.
16. It was submitted that permission can be obtained even after the passing of the decree. This submission will not assist the plaintiff. The decree can only be passed if the plaintiff shows his readiness and willingness to perform his part of the agreement. It was laid down by the Hon’ble Supreme Court in Ram Awadh versus Achhaibar Dubey, (2000) 2 SCC 428 that the obligation is upon the Court not to grant specific performance to the plaintiff who has failed to prove the readiness and willingness to perform his part of the agreement. It was observed:
6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in the Jugraj Singh case [(1995) 2 SCC 31] is erroneous.
17. This position was reiterated in Azhar Sultana versus V. Rajamani, (2009) 17 SCC 27 wherein it was observed:
28. Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining relief of grant of specific performance of contract. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard-and-fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.
29. In Veerayee Ammal v. Seeni Ammal [(2002) 1 SCC 134] it was observed: (SCC p. 140, para 11)
“11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] held that in the case of the sale of immovable property, there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.”
It was furthermore observed: (Veerayee Ammal case [(2002) 1 SCC 134], SCC pp. 140-41, para 13)
“13. The word ‘reasonable’ has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word ‘reasonable’. The reason varies in its conclusion according to the idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of ‘reasonable time’ is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words, it means, as soon as circumstances permit. In P. Ramanatha Aiyar's Law Lexicon it is defined to mean:
‘A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than “directly”; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and the attending circumstances; all these convey more or less the same idea.’ ”
30. It is also a well-settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of the contract.
18. It was laid down by the Hon’ble Supreme Court in C.S.Venkatesh v. A.S.C. Murthy (2020) 3 SCC 280: (2020) 2 SCC (Civ) 90: 2020 SCC OnLine SC 143, that the plaintiff has to show that he was prepared to carry out those parts of the contract to their logical end as depended upon his performance. The plaintiff has to prove that he had the requisite amount and he had taken all the steps for the execution of the sale deed. It was observed:
“16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior, to and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of the decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan, (1995) 5 SCC 115, it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582], this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5)
“5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about the willingness or readiness of the plaintiff? This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.”
19. A similar view has been taken by this Court in Manjunath Anandappa v. Tammanasa, (2003) 10 SCC 390 and Pukhraj D. Jain v. G. Gopalakrishnan, (2004) 7 SCC 251].
20. The judgment of this Court in Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243 is almost similar to the case at hand where the plaintiff had filed a suit for specific performance of the agreement to re-convey property. The plea of the plaintiff was that the transaction was one of mortgage and the sale stood redeemed the plaintiff was discharged from the debt and he was ready to pay the defendant the amount for the property only in the alternative that the plea of mortgage was not accepted by the Court, would show that his readiness was conditional. The plaintiff did not have any income and could not raise the amount required for the repurchase of the property. In the totality of the circumstances, it was held that the plaintiff was not ready and willing to perform the contract. The conditions laid for the specific performance of the contract are in para 30, which is as under: (SCC p. 256)
“30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the respondent-plaintiffs were all along and still are ready and willing to perform their part of the contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the respondent-plaintiffs must be judged having regard to the entirety of the pleadings as also the evidence brought on record.”
19. Thus, the plaintiff is required to prove that he remained ready and willing to perform his part of the agreement and the Court can only grant the specific performance on the satisfaction of this condition. Since, in the present case the plaintiff was required to obtain the permission under Section 118 of H.P. Tenancy and Land Reforms Act which he had not obtained. Therefore, the essential condition that the plaintiff remained ready and willing to perform his part of the agreement cannot be accepted.
20. The original agreement provided that the defendants were to get the title of the land cleared within 45 days. The supplementary agreement (Ext. PW-1/B) reads that the defendants would get the title of land cleared within 75 days. This agreement was executed on 2nd August 2006. Thus, the defendants were required to perform their part of the agreement on or before 16.10.2006. The plaintiff filed the present suit on 16.06.2009 after the lapse of more than 2½ years. It was laid down by the Hon’ble Supreme Court of India in K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1= AIR 1997 SC 1751 that in cases of agreement of sale relating to immovable property, time is not the essence of the contract, however, the sale deed has to be executed within a reasonable time. It was observed:
“10. It has been consistently held by the Courts in India, following certain early English decisions, that in the case of an agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the Court by both Sections 10 and 20. As held by the Constitution Bench of this Court in Chand Rani v. Kamal Rani. (1993) 1 SCC 519: (1993 AIR SCW 1371), "it is clear that in the case of sale of immovable properly there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract". In other words, the Court should look at all the relevant circumstances including the time limit specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six-month period specified therein for completing the sale expired on 15th of June, 1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The Trial Court has accepted the defendants' story whereas the High Court has accepted the plaintiff’s story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of six months, the plaintiff should purchase the stamp papers and pay, the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months, he purchased the stamp papers and offered to pay the balance consideration. The defendants' case is that the tenant is their own relation, that he is ready to vacate at any point of time and that the very fact that the plaintiff has in his suit notice offered to purchase the house with the tenant itself shows that the story put forward by him is false. The tenant has been examined by the defendant as DW-2. He stated that soon after the agreement, he was searching for a house but could not secure one. Meanwhile (i.e., on the expiry of six months from the date of agreement), he stated, that the defendants told him that since the plaintiff has abandoned the agreement, he need not vacate. It is equally an admitted fact that between December 15, 1978, and July 11, 1981, the plaintiff has purchased two other properties. The defendants' consistent refrain has been the prices of house properties in Madurai have been rising fast, that within the said interval of 2½ years, the prices went up by three times and that only because of the said circumstance has the plaintiff (who had earlier abandoned any idea of going forward with the purchase of the suit property) turned round and demanded specific performance. Having regard to the above circumstances and the oral evidence of the parties, we are inclined to accept the case put forward by Defendants 1 to 3. We reject the story put forward by the plaintiff that during the said period of 2½ years, he has been repeatedly asking the defendants to get the tenant vacated and execute the sale deed and that they were asking for time on the ground that the tenant was not vacating. The above binding means that from 15-12-1978 till 11-7-1981, i.e., for a period of more than 2½ years the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendant's, case that the value of the house property in Madurai town was rising fast and this must have induced the plaintiff to wake up after 2½ years and demand specific performance.
21. It was further held that the inaction of two and a half years was a clear violation of the agreement. It was observed:
“13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of the agreement, which required him to pay the balance, purchase the stamp papers and then ask for the execution of the sale deed within six months. Further, the delay is coupled with a substantial rise in prices - according to the defendants, three times - between the date of the agreement and the date of the suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.
14. Sri Sivasubramanium then relied upon the decision in Dr. Jiwan Lal v. Brij Mohan Mehra, (1973) 2 SCR 230 : (AIR 1973 SC 559) to show that the delay of two years is not a ground to deny specific performance. But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in Chand Rani, (1993 AIR SCW 1371). Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.”
22. This judgment was followed in Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134, wherein, it was observed:
“11. When, concededly, the time was not the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani. (Smt). (Dead) By LRs v. Kamal Rani (Smt.) (Dead) By LRs 1993(1) SCC 519 held that in the case of the sale of immovable property, there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, a reasonable time has to be ascertained from all the facts and circumstances of the case.
12. In K.S. Vidyanadam & Ors. v. Vairavan 1997(3) SCC 1 this Court held:
"Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."
13. The word "reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to the idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words, it means as soon as circumstances permit. In Law Lexicon it is defined to mean "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstance will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space that 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and the attending circumstances; all these convey more or less the same idea."
23. A similar view was taken in Rajesh Kumar v. Anand Kumar, 2024 SCC OnLine SC 981 wherein it was observed:
“14. The effect of filing a suit for specific performance af-ter a long delay, maybe at the fag end of the period of limitation fell for consideration before this Court in K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1 wherein this Court held thus in para 10:
“10. It has been consistently held by the courts in In-dia, following certain early English decisions, that in the case of an agreement of sale relating to immovable property, time is not of the essence of the contract un-less specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not pro-vide specifically that time is of the essence of the con-tract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time limit (s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519]: (SCC p. 528, para 25) ………………”
15. In Azhar Sultana v. B. Rajamani (2009) 17 SCC 27, this Court held thus in para 28:
“28. ……….The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be enti-tled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard-and-fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.”
16. In Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18, this Court held that every suit for specific perfor-mance need not be decreed merely because it is filed within the period of limitation by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that the limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance.
17. In Atma Ram v. Charanjit Singh (2020) 3 SCC 311, this Court has observed in para 9 thus:
“9. ……..No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13-10-1999) after issuing a legal notice on 12-11-1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11-1996 claiming readiness and willingness, but who institutes a suit only on 13-10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance.”
18. In the case in hand, the plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for execution of the sale deed but did not prefer any suit though he was aware of the sale deed dated 14.05.1997 executed in favour of defendant nos. 12 to 14 and sent a legal notice on 30.05.1997 and even ob-jected to the subsequent purchasers’ application for mutation of their names in the revenue records on 20.08.1997 and refers to a meeting of the Gram Panchayat dated 06.12.1997, yet the suit was preferred, on 09.05.2000 on the last date of limitation. Thus, on the strength of observations made by this Court in K.S. Vidyanadam (supra), Azhar Sultana (supra), Saradamani Kandappan (supra) & Atma Ram (supra), the suit having been preferred after a long delay, the plaintiff is not enti-tled to specific performance on this ground also.”
24. In the present case, the defendants were to perform their part of the agreement within 75 days and if the defendants failed to perform their part of the agreement, the plaintiff had a right to approach the Court to get the specific performance. However, he failed to do so within a reasonable time and waited for more than 2 ½ years before filing the suit. Therefore, the suit was not filed within a reasonable time, even though it was filed within the limitation. Hence the plaintiff will not be entitled to a specific performance in view of the judgments of the Hon’ble Supreme Court.
25. A copy of the jamabandi (Ext. PA) shows that Khasra Nos. 495, 496, 497, 498, 499, 503, 504 and 506 are not owned by the defendants but by other co-owners. This fact was also admitted in para 1 of the plaint wherein it was stated that these Khasra numbers were owned by some other persons. Satish Chand also admitted that the agreement covers certain Khasra numbers not owned by the defendants. The plaintiff claimed that the defendants had agreed to purchase the land from other persons and transfer it to the plaintiff by way of sale. Clause 2 of the agreement to sell (Ext. PW-1/A) mentions this condition. There is no evidence that the defendants had purchased the land from the co-owners to enable them to transfer it to the plaintiff. Hence, the plaintiff cannot seek the specific performance of the agreement without a sale deed in favour of the defendants or without entering into an agreement with the original co-owners. It was held in Rajesh Kumar (supra) that the specific performance of the contract cannot be granted where all the co-sharers had not entered into an agreement with the plaintiff. It was observed:
“6. Admittedly, the initial agreement dated 26.09.1995 was executed by Defendant No. 1-Gajay Bahadur Bakshi. It is the case of the appellant/plaintiff that Gajay Bahadur Bakshi was the Power of Attorney Holder of Defendant nos. 2 to 11, the other co-owners/coparceners of the suit property. However, the agreement itself nowhere states that Gajay Bahadur Bakshi has executed the agreement as Attorney Holder of Defendant nos. 2 to 11. On the con-trary, it is mentioned in the agreement that Gajay Ba-hadur Bakshi would be responsible for getting the sale deed executed and registered by all the co-owners or co-khatedars at the time of registration. Neither the names of all the co-owners/coparceners/co-khatedars are men-tioned in the agreement, thus, the High Court is right in finding that all the co-owners have not signed the agree-ment. The subsequent endorsement of receipt of an addi-tional amount of Rs. 40,000/- is also not signed by all the co-parceners. The same is the condition with the 3rd agreement dated 26.12.1996 and the extension en-dorsement dated 27.03.1997 and 23.04.1997. Signifi-cantly, the so-called power of attorney pleaded in the plaint through which the defendant nos. 2 to 11 autho-rised defendant no. 1 to execute the agreement, has not been produced and proved in the Trial Court. Thus, nei-ther in the agreement nor in the course of the trial the power of attorney is proved by tendering the same in evi-dence. Hence, in the absence of evidence, the High Court rightly held that the agreement was not signed by all the co-owners.
7. In the matter of Shanmughasundaram v. Diravia Nadar (dead) by Lrs. (2005) 10 SCC 728: AIR 2005 SC 1836, this Court has held that in the event all the co-sharers of the property have not executed the sale agreement, a suit for specific performance cannot be decreed. The following is held in paras 29,30 & 31:
“29. The facts in the present case are distinguishable. Admittedly, the property has been jointly inherited by two brothers and three sisters. As heirs under the Hindu Succession Act, they inherited the property as co-owners. In the absence of partition between them, the two brothers together had an undivided share in the property, and they could not have agreed for the sale of the entire property. They were competent to execute an agreement to the extent only of their undi-vided share in the property. In the event of the sale of such an undivided share, the vendee would be required to file a suit for partition to work out his right in the property. The left out three sisters as co-owners hav-ing an undivided share in the whole property, and the two brothers are incompetent to abide by the award.
30. Learned counsel makes a reference to Section 12 of the Specific Relief Act, 1963 and submits that the arbi-tration agreement and consequent award should be al-lowed to be enforced to the extent of share of two brothers leaving the vendee to work out his right, if necessary, in case the sisters object to the sale, by a suit in accordance with Section 12 of the Specific Relief Act.
31. Section 12 of the Specific Relief Act, in our consid-ered opinion, would be of no assistance in the situa-tion obtaining here. In the absence of sisters being parties to the agreement, the vendee can at best obtain the undivided interest of two brothers in the property. Section 12 of the Specific Relief Act cannot be invoked by the vendee to obtain the sale of the undivided share of the two brothers with a right to force partition on the sisters who were not parties to the agreement of sale. Such a relief under Section 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co-owners, against other co-owners who were not parties to the sale agreement.”
26. Therefore, the plaintiff cannot be held entitled to the specific performance of the agreement; hence this issue is answered in negative and is decided against the plaintiff.
Issue No.2:
27. Since the plaintiff has failed to prove that he is entitled to specific performance of the agreement. Therefore, this issue is answered in negative and is decided against the plaintiff.
Issue No.3:
28. It has not been shown as to how the suit is not maintainable. The suit has been filed for seeking specific performance of the agreement which is fully maintainable. Hence, this issue is answered in negative and is decided against the defendants.
Issue no.4:
29. The original agreement was executed on 20.06.2006. The present suit was filed on 16.06.2009 within three years from the date of the execution of the original agreement. Article 54 of the Limitation Act provides three years for filing a suit for specific performance of the agreement; hence, the suit is within the period of limitation. Accordingly, this issue is answered in negative and is decided against the defendants.
Issue No. 5:
30. It has been found out above that the other c0-owners were the necessary party, who have not been impleaded and no agreement was entered with them. Hence, the suit is bad for non-joinder of necessary parties and this issue is answered in the affirmative and is decided in favour of the defendants.
Issue No.6:
31. The suit has been filed for the relief of specific performance and damages of ₹ 1,03,00,000/-. The Court fee of ₹1,05,560/- has been affixed thereof. Hence, the suit is properly valued for court fee and jurisdiction and this issue is answered in negative and is decided against the defendants.
Relief:
32. In view of the above, the suit fails and the same is dismissed with costs. The decree sheet be prepared accordingly.
