P.B.Suresh Kumar, J.
1. The defeated plaintiff in a suit for specific performance of an agreement for sale, is the appellant in the appeal.
2. The plaint schedule property measuring approximately 60.750 cents belongs to the defendant. On 09.06.2008, in terms of an agreement for sale
executed by the plaintiff and defendant, the defendant agreed to sell the plaint schedule property to the plaintiff for Rs.1,39,750/- per cent, after
receiving a sum of Rs.50,000/- from the plaintiff by way of advance sale consideration. As per the terms of the agreement, the plaintiff had agreed to
pay a sum of Rs.9,50,000/- before 20.06.2008 and a sum of Rs.15,00,000/- before 20.08.2008 also by way of advance sale consideration. The balance
sale consideration in terms of the agreement was agreed to be paid on or before 20.11.2008. Pursuant to the agreement, the plaintiff paid to the
defendant Rs.9,50,000/- on two occasions before 20.06.2008 as agreed. Later, the plaint schedule property was measured and on measurement, it was
found that the extent of the same is only 59 cents. It is stated by the plaintiff that while so, on 06.07.2008, the plaintiff received summons in O.S.No.98
of 2008 instituted by the defendant before the Sub Court, Kattappana against the plaintiff, seeking a decree of permanent prohibitory injunction
restraining the plaintiff from trespassing into the plaint schedule property. The case set out by the defendant in the said suit was that the plaint
schedule property is one purchased by him utilising the share obtained by his wife from her family; that he is therefore holding the plaint schedule
property as a constructive trustee of his wife; that his wife requested him to call off the deal as she had promised to give the plaint schedule property
to their children; that since the defendant had to oblige his wife, he repudiated the agreement for sale and the matter was communicated to the plaintiff
on 30.06.2008 and that infuriated by the said decision of the defendant, the plaintiff is attempting to trespass into the plaint schedule property.
According to the plaintiff, the allegations made by the defendant in the suit aforesaid are all incorrect and insofar as the plaintiff has complied with the
terms of the agreement for sale and insofar as he was ready and willing to perform the remaining part of his obligations under the agreement for sale,
he is entitled to specific performance of the agreement and hence the suit.
3. The defendant filed a written statement reiterating the stand taken by him in O.S.No.98 of 2008.
4. The suit was tried along with O.S.No.98 of 2008, permitting the parties to let in evidence in the suit from which this appeal arises. The plaintiff gave
evidence as PW1 and proved five documents as Exts.A1 to A5. Among the said documents, Ext.A1 is the agreement for sale executed by the parties
on 09.06.2008. The defendant gave evidence as DW1.
The son of the defendant Geeson also gave evidence on the side of the defendant as DW2. Exts.B1 to B4 were the documents proved on the side of
the defendant.
5. The court below found that the hardship to which the defendant would be subjected to in the event of performance of the agreement would
outweigh the hardship to which the plaintiff would be subjected to, in the event of non performance of the agreement and therefore, it is not expedient
to exercise the discretionary jurisdiction to order specific performance of the agreement for sale in favour of the plaintiff. Despite the said finding, the
court below granted the plaintiff a decree for realisation of the advance amount with interest at the rate of 12% per annum from 30.06.2008 till the
date of decree and thereafter with interest at the rate of 6% per annum till realisation together with the costs of the suit, charged on the plaint
schedule property. The plaintiff is aggrieved by the said decision of the court below.
6. Pending appeal, the defendant died and his legal representatives came on record as additional respondents in the appeal.
7. Heard the learned counsel for the plaintiff as also the learned counsel for the legal representatives of the defendant.
8. The learned counsel for the plaintiff contended that the ground on which the court below refused the grant of the decree for specific performance
of the agreement for sale sought by the plaintiff is unsustainable in law. It was also contended by the learned counsel that the justification put forward
by the defendant for not honouring the agreement for sale namely that the wife of the defendant has some interest in the plaint schedule property,
cannot be accepted as a ground to decline a decree for specific performance when the interest of the wife in the property has not been established.
Placing reliance on the evidence tendered by the defendant and his son as DW1 and DW2, the learned counsel has also submitted that the family of
the defendant is having several acres of landed property and the stand of the defendant that his wife had promised to give the plaint schedule property
to their children is only a lame excuse for not honouring the agreement for sale, for reasons best known to the defendant. It was also argued by the
learned counsel that if a decree for specific performance which a party is entitled to is declined on grounds of instant nature, there would be no
sanctity for agreements for sale. It was also pointed out by the learned counsel that Section 20 of the Specific Relief Act, 1963 (the Act) which
confers discretion on the court to refuse a decree for specific performance even in cases where it is lawful for the court to do so, has now been
substituted and the courts have no longer any discretion to refuse a decree for specific performance. It was conceded by the learned counsel that
amended provisions do not have retrospective effect. Nevertheless, it was argued by the learned counsel, placing reliance on the decision of the Apex
Court in Sughar Singh v. Hari Singh (Dead) Through LRs, 2021 SCC OnLine SC 975 that the amended provisions in the Act shall be a guide for the
court in the matter of exercising the discretion under Section 20. On a query from the Court, it was conceded by the learned counsel for the plaintiff
that the price of the property in the locality has gone up after the agreement for sale and the plaintiff is therefore prepared to get the sale deed in
respect of the plaint schedule property even at double the rate agreed upon between the parties. It was alternatively argued by the learned counsel
that if the above suggestion is not acceptable to the court, the plaintiff may be given a decree for specific performance in respect of half of the
property. It was pointed out by the learned counsel for the said purpose that the plaint schedule property has road frontage on two sides and it is
therefore possible to divide the property conveniently into two pieces. The learned counsel has also relied on the decision of the Division Bench of this
Court in Wellingdon B. and others v. D.Shyama Prasad and others, 2014 (3) KHC 560, in support of the aforesaid plea.
9. Per contra, the learned counsel for the legal representatives of the defendant submitted that the plaintiff had admitted in his evidence that at the
relevant time similar properties were available in the locality for similar price, and insofar as the defendant repudiated the contract within 11 days after
receipt of advance sale consideration, it cannot be said that the plaintiff has suffered any loss on account of the repudiation of the agreement by the
defendant and the court below, in the circumstances cannot be found fault with for having refused the decree for specific performance sought by the
plaintiff. It was also argued by the learned counsel that the case on hand falls within the scope of clause (b) of sub-section (2) of Section 20 of the
Act and it is invoking the said provision that the court below declined the decree for specific performance. It was also argued by the learned counsel
that even though the appeal was filed as early as on 13.01.2011, the plaintiff did not take any steps to bring up the appeal for hearing and the long
lapse of time in between would dis-entitle the plaintiff for the decree for specific performance. It was pointed out by the learned counsel that the price
of the land in the locality has gone up substantially and insofar as the plaintiff has given only a nominal advance of Rs.10,00,000/- at the time of
execution of the agreement for sale, it may not be equitable at this stage to grant the decree for specific performance. It was also submitted by the
learned counsel that immediately after the decree, on 17.02.2011, the defendant has deposited the advance amount received by him together with
interest amounting to Rs.12,95,000/- with the court below. According to the learned counsel, at any rate, insofar as the defendant has deposited the
advance sale consideration together with the interest as early as on 17.02.2011, it will be inequitable for this Court at this stage to pass a decree for
specific performance in a matter like this. It was also pointed out by the learned counsel that after the death of the defendant, the property was shared
among the three children of the defendant, each getting 20 cents. It was also submitted by the learned counsel that if the plaintiff is very particular
about the plaint schedule property, one among them is prepared to sell his share of the plaint schedule property at the present market price. On a
query from the Court, the learned counsel submitted, after getting instruction from the legal representatives of the deceased defendant, that the plaint
schedule property would now fetch a price between Rs.8,00,000/- to Rs.10,00,000/- per cent.
10. In reply to the submissions made by the learned counsel for the legal representatives of the defendant, the learned counsel for the plaintiff
submitted that his client has absolutely no knowledge about the deposit of the advance sale consideration allegedly made by the defendant pursuant to
the decree. It was pointed out that if at all any deposit has been made, the same was done without notice to the plaintiff. It was also pointed out by the
learned counsel that at any rate, the said deposit cannot be accepted as a deposit made in compliance of the decree insofar as the same represents
only the advance sale consideration with interest excluding the cost of the suit. It was pointed out that the plaintiff has paid court fees alone in the suit
to the tune of Rs.6,97,600/-. It was also pointed out by the learned counsel that the said deposit will not in any manner affect the right of the plaintiff to
pursue this appeal for a decree for specific performance. On a query from the court, the learned counsel submitted that the value of the plaint
schedule property at present would be approximately between Rs.5,00,000/- to Rs.6,00,000/- per cent.
11. Before proceeding further in the matter, it is necessary to mention that the records of the case show that a challan evidencing deposit of
Rs.12,95,000/- by the defendant towards the decree debt in the instant case has been produced before the court below along with a memo dated
17.02.2011. The memo filed in this regard does not indicate that notice has been given to the plaintiff or to the counsel for the plaintiff regarding the
deposit. Since the learned counsel for the legal representatives of the defendant asserted that the amount deposited by the defendant has been
withdrawn by the plaintiff, the matter was enquired with the office of the Subordinate Judges Court, Kattappana and it was informed from the said
office that the amount in deposit has not so far been withdrawn. The learned counsel for the legal representatives of the defendant however did not
dispute the fact that the amount in deposit does not cover the entire decree debt.
12. As noted, there is no dispute between the parties as regards the execution of the agreement for sale, the payment and receipt of advance sale
consideration and the readiness and willingness on the part of the plaintiff to perform his part of obligations under the agreement for sale. The points
arising for consideration in the appeal, therefore, are whether the court below was justified in refusing the plaintiff the decree for specific performance
sought by him in exercise of the discretion under Section 20 of the Act and if not, the relief to be granted to the plaintiff.
13. Points - Section 20 of the Act prior to Act 18 of 2018, in terms of which the provisions in the said statute have been substantially amended, was as
follows:
“20. Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant
such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of
correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance-
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the
contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no
such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific
performance.
Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to
constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.-The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases
where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the
contract.
 (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in
consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.â€
As evident from the extracted provision, the jurisdiction to grant a decree for specific performance is discretionary and the court is not bound to grant
such a decree merely because it is lawful to do so. Clauses (a) to (c) to sub-section (2) of Section 20 give a few illustrations of cases in which the
court could refuse decree for specific performance in exercise of the discretion conferred on it. Among the said clauses, clause (b) refers to cases
where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would
involve no such hardship on the plaintiff. It is seen from the impugned judgment that the court below declined the decree for specific performance
sought by the plaintiff having regard to the said provision.
14. As pointed out by the learned counsel for the appellant, in the light of the provisions contained in Act 18 of 2018, the discretion vested in the courts
to refuse specific performance is no longer available and in terms of the amended provisions, it is the bounden duty of the court to enforce specific
performance of a contract, subject of course to sub-section (2) of Section 11, Section 14 and Section 16 of the Act, which do not apply to a case of
the instant nature. In Sughar Singh, the Apex Court has clarified that though the provisions in Act 18 of 2018 may not apply to suits instituted prior to
the amendment, the provisions therein shall be a guide for the court in the matter of exercising the discretion under Section 20. The relevant
observation in the said case reads thus:
“47. For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but
can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary
relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings
including appeals is kept open. However, at the same time, as observed hereinabove, the same can be a guide.â€
Insofar as the suit from which the appeal arises was one instituted prior to Act 18 of 2018, the correctness of the finding rendered by the court below
that it is not expedient to grant the decree for specific performance sought by the plaintiff needs to be examined in the light of the above observation
of the Apex Court.
15. As rightly pointed out by the learned counsel for the plaintiff, the deposit of a portion of the decree debt by the defendant, that too without notice to
the plaintiff, does not in any manner affect the right of the plaintiff to pursue a decree for specific performance in a case of this nature.
16. As noted, the case put forward by the defendant in the written statement to justify the repudiation of the agreement for sale is that the plaint
schedule property was one purchased by him utilising the share obtained by his wife from her family; that his wife requested him to withdraw from the
agreement for sale as she had promised to give the plaint schedule property to their children and that since the defendant had to oblige his wife, he
repudiated the agreement for sale. Ext.A2 is the title deed of the defendant. Ext.A2 which is a sale deed executed on 3.10.1979 does not indicate that
the consideration for the same has been paid by the defendant making use of the family share of his wife as was usual in those days in such
documents. Except the oral evidence tendered by the DW2, the son of the defendant, that the wife of the defendant has received a sum of
Rs.50,000/- towards share from her family, there is no convincing evidence to show that the plaint schedule property was one acquired by the
defendant utilising the share of his wife. The said oral evidence, according to us, is not sufficient to establish that the wife of the defendant has some
beneficial interest in the plaint schedule property. Similarly, no evidence whatsoever was let in by the defendant to establish his case that his wife had
promised to give the plaint schedule property to their children. In other words, the materials on record would only show that having agreed to sell the
plaint schedule property to the plaintiff, after receiving a sum of Rs.10,00,000/- by way of advance sale consideration, the defendant repudiated the
agreement for sale for reasons best known to him. As pointed out by the learned counsel for the legal representatives of the defendant, the view taken
by the court below is that insofar as the agreement for sale was repudiated by the defendant within few days and insofar as similar properties were
available in the locality for similar price at the relevant time, the plaintiff was not put to any hardship on account of the repudiation of the agreement
for sale by the defendant and therefore, the case would fall within the scope of clause (b) of sub-section (2) of Section 20 of the Act. We are unable
to agree. In order to apply clause (b) of sub-section (2) of Section 20, there should be materials to indicate that the performance of the contract would
involve hardship on the defendant which he did not foresee. The defendant has no case in the written statement that had the agreement for sale been
performed by him, he would have been subjected to hardship which he did not foresee. The materials on record do not also establish such a case. In
the aforesaid circumstances, according to us, the case on hand would not fall under clause (b) of sub-section (2) of Section 20. On an appraisal of the
materials on record, we are also convinced that in the absence of any case for the defendant which would fall under clauses (a), (b) or (c) of sub-
section (2) of Section 20 and in the absence of any other circumstances which would make specific performance of the agreement for sale of the
plaint schedule property inequitable, it is a case where the court below ought to have ordered specific performance.
17. The next question to be considered is whether the plaintiff is entitled to a decree for specific performance of the agreement for sale of the plaint
schedule property in the light of the findings rendered above. As noted, the jurisdiction to decree specific performance is discretionary, and the Court
is not bound to grant such relief merely because it is lawful to do so. Of course, the discretion aforesaid is one to be exercised on sound and
reasonable grounds, guided by judicial principles capable of correction by a Court of Appeal. In essence, specific performance is an equitable relief.
When the court gets into the equity jurisdiction, it has to ensure fairness to both sides. Even though the general rule is that the delay as a result of the
court process and the phenomenal increase of price of landed properties involved during the pendency of the litigation cannot be put against the
plaintiff, it is by now settled that severe hardship to which a particular party would be put to, is a ground for refusing specific performance, even when
it results from circumstances, which arise after the conclusion of the contract [See K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77].
Similarly, it is also by now settled that the courts would be justified in directing vendee in an agreement for sale of an immovable property to pay
additional amounts by way of sale consideration, having regard to the delay in the judicial process and the consequential escalation of the price of the
property, while ordering specific performance [See Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 5 SCC 481 and Zarina Siddiqui v. A.
Ramalingam, (2015) 1 SCC 705]. Again, there are instances where the courts having regard to the delay and escalation of price, ordered specific
performance of a portion of the subject matter of the agreement for sale. Wellingdon B. cited by the learned counsel for the appellant is one such
case, where the court directed the vendee to pay a higher amount than what was agreed upon, having regard to the delay and escalation of price of
the property while ordering specific performance of an agreement for sale. Alternatively, the court has also directed the specific performance of the
agreement for sale in respect of a portion of the property involved, corresponding to the amount already parted with by the vendee to the vendor. Of
course, these are all not principles of universal application and the relief to be granted in a specific case is one to be moulded by the court having
regard to the facts and circumstances.
18. Reverting to the facts of the present case, going by the pleadings of the plaintiff, the extent of property involved is 60.750 cents. The sale
consideration agreed was Rs.1,39,750/- per cent which would work out to be Rs.84,89,812.50/-. Out of the said amount, the plaintiff has paid to the
defendant only a sum of Rs.10,00,000/- which is approximately 12% of the total sale consideration. As conceded by both sides, the price of the
property has now escalated manifold. According to the plaintiff, the escalation is approximately four times and according to the defendant, the
escalation is approximately six times. As such, if specific performance is ordered in a case of this nature, the benefit of the price escalation which is a
very substantial amount running to a few crores would go to the plaintiff who has paid only a minimum amount namely, 12% approximately of the sale
consideration, by way of advance. Having regard to the facts and circumstances of the case, especially the phenomenal increase in the price of the
land, we are of the view that it will be grossly inequitable now to order specific performance of the agreement for sale.
19. What is the relief that could be granted to the plaintiff in a case of this nature at this stage, is the next question to be considered. Even though it is
permissible for the court to direct the defendant in a case of this nature to pay to the plaintiff an amount fixed having regard to the facts and
circumstances of the case by way of compensation, having regard to the spirit of the recent amendments brought to the Act, and the decision of the
Apex Court in Sughar Singh, we are of the view that the appropriate relief to be granted in a case of this nature is a decree for specific performance
of a portion of the plaint schedule property as done in Wellingdon B. Having regard to the amount of money parted with by the plaintiff in terms of the
agreement for sale as early as in the year 2008 and the substantial amount paid by the plaintiff by way of court fee before the court below as also
before this Court in between the years 2008 and 2011, we are of the opinion that specific performance could be ordered in respect of 20 cents out of
the plaint schedule property which could be conveniently enjoyed by the plaintiff on payment of the balance sale consideration at the rate originally
agreed upon, namely Rs.17,95,000/- (Rs.27,95,000/-, worked out at the rate of Rs.1,39,750/- per cent for 20 cents, less Rs.10,00,000/- paid by way of
advance sale consideration). We take this view since it has come out that the plaint schedule property is one that could be divided into plots of 20
cents. Such a view is taken also for the reason that the court cannot give a message that if there is delay in passing the decree for specific
performance on account of the process of the court and corresponding escalation of price, the court would not order specific performance, but would
only order compensation. Yet another reason for us to fix the extent of property in respect of which specific performance is to be ordered as 20 cents
is that in that case, the advance amount paid by the plaintiff together with the court fee remitted between the years 2008 and 2011 would work out to
be more than 85% of the sale consideration, though in principle, the court fee paid cannot be taken into account for the said purpose.
In the result, the appeal is allowed in part and the impugned decree and judgment are modified as follows:
1. The plaintiff is directed to deposit the balance sale consideration as per the terms originally agreed for 20 cents of land before the court below
within three months from the date of this judgment and prefer an application for identifying the 20 cents out of the plaint schedule property to be
transferred by the legal representatives of the defendant to the plaintiff in terms of this judgment. The court shall then depute an Advocate
Commissioner for the said purpose in exercise of the power under Section 28(3) of the Act to identify the portion of the plaint schedule property to be
transferred by the legal representatives of the defendant to the plaintiff as a single plot with road frontage enabling convenient enjoyment as in the
case of the remaining portion of the plaint schedule property.
2. The legal representatives of the defendant shall thereupon transfer to the plaintiff, by way of sale, the portion of the plaint schedule property
identified by the Advocate Commissioner after receiving the balance sale consideration deposited by the plaintiff. On the failure of the legal
representatives of the defendant in doing so, the plaintiff would be free to get the transfer deed executed through court.
3. The plaintiff will be entitled to realise the costs of the suit and the appeal.
4. The amount to be deposited by the plaintiff for claiming specific performance in respect of 20 cents out of the plaint schedule property would be
Rs.17,95,000/- less the certified costs of the suit and this appeal.
