NON­REPORTABLE                  

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NOS.    6449    OF 2019    (Arising out of SLP (Civil) Nos.31787 of 2018)

Abdullakoya Haji & Ors.                .…Appellant(s)

Versus

Rubis Tharayil & Anr.           ….  Respondent(s)

J U D G M E N T

A.S. Bopanna,J.          

      Leave granted.      

2.   The appellants herein were the defendants in the suit

bearing OS No.89 of 2008.  The suit in question was filed

by the respondents herein seeking  for a  judgment and

decree for specific performance of the agreement for sale

dated 26.03.2007.  The Trial Court on having considered

the matter has decreed the suit in part by its judgment

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dated 23.12.2010.   Through the said judgment, the

decree for specific performance was declined and the

alternate relief directing the appellant herein to pay the

sum of Rs. 75 Lakhs with interest at 9% per annum was

granted.   The plaintiffs claiming to be aggrieved by the

same had preferred the appeal under Section 96 of the

Civil Procedure Code before the High Court of Kerala at

Ernakulam in RFA No. 344 of 2011.  The Division Bench

of the High Court through its judgment dated

21.08.2018, set aside the judgment passed by the trial

court and has allowed the appeal.  

3. The appellants herein have accordingly been

directed to execute the sale deed in favour of the

Respondent No. 1 herein, conveying the properties

described in Item Nos.  1,  2,  & 5  on the  balance  sale

consideration being  deposited within the  period  of two

months.   In respect of the properties described in Item

Nos. 3 & 4, the same was not included in the judgment

since the  said  properties involved  the  minor’s interest.

The defendants in the suit, who are the respondents in

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the appeal before the High Court are therefore before this

Court  claiming  to  be  aggrieved by the judgment  dated

21.08.2018 passed by the High Court in RFA No.344 of

2011.  Thus, on the divergent conclusion reached by the

two Courts, consideration is required in this appeal.

4. For the sake of convenience and clarity the parties

would be referred  to in the  same rank as  assigned  to

them in the original suit wherein the respondents herein

were the  plaintiffs  and the  appellants  herein  were the

defendants.   

5. The brief facts necessary to be noted for the

consideration of this appeal is that the defendants are the

owners of the different item of properties which are

described in the schedule to the suit subject agreement

dated 26.03.2007.   The total extent of property was

indicated in the agreement as 12.775 acres. The plaintiffs

agreed to purchase the said land at the rate of Rs. 11,350

per  cent  of land.   In that regard  the  agreement  dated

26.03.2007 was entered into and an advance of Rs. 75

lakhs was paid by  the  first  plaintiff to  the defendants.

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The plaintiffs agreed to make a further payment of Rs. 75

lakhs on or before 15.10.2007 and before such time the

actual measurement of the property was required to be

made so as  to determine  the actual  sale  consideration

payable and to complete the sale transaction.   

6. According to the  plaintiffs, they  were ready  and

willing to pay the balance and secure completion of the

transaction. In that regard the plaintiffs claim that they

had also kept ready the sum of Rs. 75 lakhs which was

agreed to be paid on or before 15.10.2007.  The plaintiffs

contend that defendants did not make available all  the

documents necessary for executing the sale deed.   They

therefore contend that the said position was accepted by

the defendants and an appropriate endorsement was

made at  the  foot  of the agreement and the defendants

had conceded  that the amount payable  on 15.10.2007

can be paid on the date of the conveyance and that the

documents will be satisfied prior to this date.  The outer

limit for completion of the transaction was fixed as

22.01.2008.  The further contention of the plaintiff is that

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despite they being ready and willing, since the defendant

did not come forward to complete the transaction, they

were constrained to file this suit.

7. The defendant on being served with summons had

appeared and filed their written statement.   The

execution of the agreement, the receipt of the sum of Rs.

75 lakhs as also the manner in which the balance

amount was to be paid and the transaction was to be

completed was not disputed.  However, it was contended

that the plaintiffs did not possess the funds for paying

the balance of the sale consideration and in such event

the completion of the transaction did not arise.   It was

accordingly contended that the plaintiffs were not ready

and willing to complete the transaction.   It was alleged

therein  that  since the plaintiffs  did not  have  sufficient

funds, they had entered into an agreement with regard to

the same properties with one Shri Ali Khan without

involving the defendants but neither the plaintiffs nor the

said Shri Ali Khan had the funds to pay and complete the

transaction.

                                                                                                                     Page 5 of 29

8. The Trial Court, in the light of the rival pleadings

had framed five issues for its consideration which read as

hereunder:

“(i)  Whether the suit is bad for misjoinder of causes of action and parties?

(ii) Whether the first plaintiff was ready and willing to perform their part of the contract?

(iii)  Whether the first plaintiff is entitled to get a decree  for  specific  performance of the contract?

(iv) Whether the first plaintiff is entitled to get a decree for realization of Rs. 75,00,000/­ (Seventy­five lakhs) together with 18% interest per annum as an alternative relief?

(v) Reliefs and costs?”

In order to discharge the burden cast by the said issues,

the second plaintiff examined himself as PW­1 and relied

upon the documents at  Exhibits  A1 to A13.   The  first

defendant  examined  himself  as  DW­1  and  examined  a

witness i.e., the said Shri Ali Khan as DW­2 and relied

upon the documents at Exhibit B1 to B25.  The report of

the Court Commissioner was marked as Exhibit C1 and

C1(a).   The subsequent agreement between the plaintiffs

and Shri Ali Khan was marked as Exhibit X1.

                                                                                                                     Page 6 of 29

9. The evidence as tendered by the parties was taken

note by the Trial Court and concluded that the plaintiffs

were not ready and willing to perform their part of  the

obligation under the agreement and therefore has

dismissed the suit.   The High Court on the other hand

has arrived at the conclusion that the plaintiffs  were

ready and willing to perform their part of the agreement

and that they had also possessed sufficient funds to pay

the remaining sale consideration and therefore decreed

the suit.  In that background, though on the other issues

framed by the Trial Court there is no serious dispute for

consideration, the issue which arises for consideration is

as framed at Issue No. 2 relating to the readiness and

willingness of the plaintiffs.

10. That being the position, we have heard Shri

Jayanth Muth Raj, learned Senior Advocate for the

appellants­defendants, Shri R.N. Ravindran, learned

Senior Advocate for the respondent­plaintiff and perused

the appeal papers.

                                                                                                                     Page 7 of 29

11. In that background, in so far as the execution of

the agreement dated 26.03.2007 and the payment of the

advance amounting to Rs. 75 lakhs, there is no serious

dispute.   The requirement under the agreement was for

the plaintiffs to pay a further sum of Rs. 75 lakhs on or

before 15.10.2007.  Apart from the endorsement dated

14.10.2007  sought to  be relied  on  by the  plaintiffs to

contend that they had arranged the funds for payment of

Rs. 75 lakhs but had not paid the same since the

defendants had not furnished the proper title deeds, the

plaintiffs have also sought to rely on the documents at

Exhibit  A5 to  A13.   In that regard the  documents at

Exhibit A5 and A10 is the same.  The second plaintiff has

examined himself as PW­1, who by referring to the said

documents has secured the  marking of the same as

exhibits.   The marking of the document at Exhibit A9

was objected to by the defendants.   

12. In that background, in so far as the payment of the

advance amount of Rs. 75 lakhs though appears to be a

substantial sum, the readiness and  willingness of the

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plaintiffs  with the balance sale consideration is to be

taken note keeping in view that the balance sale

consideration payable was also substantial.   The second

plaintiff examined himself as PW­1 by filing his affidavit

through which he has reiterated the plaint averments.  In

respect of the payment of the balance sale consideration;

the contention on  behalf of the plaintiff  was that the

further  amount  of  Rs.  75 lakhs  was to  be  paid  on or

before 15.10.2007 subject to the defendants furnishing

all documents relating to title and in that regard the

contention  was also that in respect of the properties

owned by Late Beena,   her legal heirs being  minors

appropriate  conveyance was required  to  be  made  after

completing the formalities.   It is no doubt true in the sale

agreement dated 26.03.2007 an endorsement was made

that the amount payable on 15.10.2017 can be paid on

the date of conveyance and the documents shall be

satisfied prior to the same.   In view of the said

endorsement the plaintiff has sought to contend that

though the  amount of  Rs. 75 lakhs  was ready  as on

15.10.2017, the same was not paid since all the                                                                                                                       Page 9 of 29

documents were not made available.  In so far as the said

endorsement, the defendants had contended that the

same was secured by misrepresentation.  

13. Be that as it may, as rightly pointed out by the

learned  Senior  Advocate appearing for the  defendants,

the depiction in the said endorsement about the

production  of the title deeds  does  not reflect the true

state of affairs in as much as PW­1 in his cross­

examination has admitted that prior to the execution of

the agreement, the copies of the title deeds produced

before the  Court  were  shown  to  him and  that  he  had

entered  into the  agreement  on being  satisfied that the

defendants have ownership and title to the suit property.

Though the issue relating to the transfer of the rights of

the minor had also arisen, the defendants were prepared

to execute the sale  deed through the natural  guardian

representing the interest of the minors.  Though the said

aspect was also one of the issues, considering the fact

that the Trial Court and the High Court have arrived at

divergent conclusion relating to the availability of the

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remaining sale consideration, examination of that issue

would be appropriate as other issues would depend on

that aspect.   In that background, it is necessary to

examine  as to  whether the  plaintiffs  had the financial

resource as was required to be paid prior to 15.10.2007

and even if as on such  date the same  was  available,

whether the plaintiffs had continued to possess the said

funds  as  on  the  date  when  the  demand was  made to

execute the sale deed by issuing the legal notice and also

when they filed the suit seeking specific performance of

the agreement.

14. To arrive at a conclusion in that regard,   at the

outset  what is  necessary  to  be taken note is the total

value of the transaction; the amount that was required to

be paid as the balance   sale consideration if the

transaction  was to be concluded and, in that regard,

whether the readiness and willingness was exhibited by

the plaintiff.  As on 15.10.2007, even if the availability of

further amount of  Rs.  75  lakhs  is  accepted as proved,

would it be sufficient to hold that the plaintiff had

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possessed the balance sale consideration so as to issue a

direction to complete the transaction.   In that regard if

the extent of land  as indicated in the sale agreement

dated 26.03.2007 is taken into consideration and if the

value is worked out at the agreed rate of Rs. 11,350 per

cent of land, the total sale consideration for 1822 cents of

land would work out to Rs. 2,06,79,700 (Two Crores Six

Lakhs Seventy­Nine Thousand Seven Hundred only).

From  the  said  amount if the  advance  of  Rs.  75 lakhs

admittedly received by the defendants  is  deducted, the

balance sale consideration  would be in a sum  of  Rs.

1,31,79,700  (One Crore Thirty­One Lakhs Seventy­Nine

Thousand and Seven Hundred only).   If a similar

calculation is adopted to the extent as indicated in the

report of the Court Commissioner, the total sale

consideration for the 1771 cents of  land would be in a

sum of Rs. 2,10,00850 (Two  Crores Ten Lakhs  Eight

Hundred and Fifty only).  If the advance amount of Rs. 75

lakhs is deducted therefrom, the remaining sale

consideration would be in a sum of Rs. 1,26,00,850 (One

Crore Twenty­Six Lakhs Eight Hundred and Fifty only).                                                                                                                        Page 12 of 29

15.  It is in that back drop even if the lower sum of Rs.

1,02,60,850 (One Crore Two Lakhs Sixty Thousand Eight

Hundred and Fifty only), is taken into consideration the

availability of funds  in that regard to pay balance sale

consideration is to be examined. In that regard even

though the document at Exhibit A5, the account extract

of Axis Bank for the periods 09.10.2007 to 08.11.2007 is

taken note, the same will at least indicate that the sum of

Rs. 75 lakhs was available in the account as on

15.10.2007.  Though the sum of Rs. 75 lakhs was shown

in the account and even if the endorsement dated

14.10.2007 at the foot of the agreement is taken note, the

said amount should be shown to have been available with

the plaintiffs even subsequent to 08.11.2007, as also on

the date when the demand was made by issue of legal

notice and further when the suit was filed and specific

performance was sought.   In the absence of the same, a

temporary arrangement  made  to  have  certain  funds  in

the account on a relevant date alone cannot be

considered  as the financial resource  being  available to

complete the transaction  when  in  addition to the  said                                                                                                                       Page 13 of 29

amount, further sum was required.  This is more so in a

circumstance where in the instant facts the first plaintiff

had entered into an agreement of sale dated 23.10.2007

(Exhibit X1) with one Shri Ali Khan during the

subsistence of the suit subject agreement and in the said

agreement the first  plaintiff  with reference to the very

properties  which  is the  subject  matter  of the  suit  has

stated as hereunder :

“the party No. 1 of us have decided to

purchase the immovable property which are

mentioned in the schedule herein below

AND whereas the party No. 1 of us have no

intention to get the same conveyed directly

in to their name AND hence the party No. 1

herein  agree  and decide that they  do  not

have any objections to get conveyed and

register the same in favour of the party No.

2.”

The reference to party no. 1 is to the first plaintiff and the

party no. 2 is Shri Ali Khan.  The plaintiff No. 1 has not

entered into the witness box to explain the purpose for

which the said agreement was executed.   On the other

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hand, the said Shri Ali Khan was examined as DW­2 who

has stated as follows in his cross­examination.   

“I  was part  of the  Exhibit  A1 agreement.   I

participated in the same as a well­wisher of

both the parties.   I  know that the plaintiffs

have paid an amount of Rs. 75 Lakhs at the

time of the agreement.   I know that the

agreement Exhibit A1 was not acted upon.”

“I came to know that the agreement did not

materialize as the plaintiffs did not have

necessary  money  with them.   The  plaintiffs

approached me and told that they are unable

to purchase and so I should purchase the

same.   That time I inquired with the

defendant.   I inquired with the defendant

within 3­4 days of the plaintiff intimating me.

The defendant  No. 3 has told  me that the

defendants have no objections in me

purchasing the property.   Accordingly, I

entered in to Exhibit X1 agreement.”  

16. In the back drop of the evidence available on

record more particularly with regard to the consideration

of the relief of specific performance sought in the suit, the

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learned   Senior  Advocate  for the  appellants­defendants

has relied on the decision of this Court  in the case of

Man Kaur (Dead) by L.Rs vs. Hartar Singh Sangha,

(2010) 10  SCC 512,  to contend that the person who has

entered into the suit subject agreement namely Shri

Devassy not  being examined will  be  fatal  and that the

evidence tendered by PW­1 Shri Rubis Tharayil would be

in  sufficient.   In that regard it is contended  that this

Court in the cited decision has held that the readiness

and willingness to perform is to be proved with the

evidence of the person having personal knowledge of the

details of transaction and the evidence tendered by the

Power of Attorney holder would be in sufficient.   Having

taken note of the decision we are of the opinion that the

said  decision  would  not be squarely applicable to the

present facts so as to discard the evidence of PW­1.  In so

far as the agreement dated 26.03.2007 regarding which

specific performance is sought,  we  notice that though

Shri  Devassy  has entered  into the  agreement  with  the

defendants it is done so,  for and on behalf of Shri Rubis

Tharayil and therefore Shri Rubis Tharayil is also arrayed                                                                                                                       Page 16 of 29

as the plaintiff No. 1 in the suit.  If that be the position,

in so far as the suit transaction and the evidence to prove

the sufficiency of funds, the evidence  tendered by him

would  be relevant.  Hence, in so far as the personal

knowledge relating to the other aspects i.e. entering into

agreement with Shri Ali Khan and the recitals therein, it

was required to be explained by examining Shri Devassy

who would have been the relevant and competent witness

to explain that  aspect of the  matter  more  particularly

when reference with regard to  the  financial  capacity  is

made therein.

17. In that regard, the extract from  the  agreement

dated 23.10.2007 (Exhibit X1) between Shri Devassy and

Shri Ali Khan noticed above indicates that the intention

of seeking specific performance of the agreement dated

26.03.2007 is given up there under.  One of the parties to

the said agreement namely Shri Ali Khan was examined

by the defendants as DW­2, who apart from referring to

the agreement has also stated that the same was entered

into since the plaintiffs did not have the financial

                                                                                                                     Page 17 of 29

resources to continue the transaction.   In that

circumstance, it is  only  Shri  Devassy  who  could  have

explained the real reason  if  any  for  executing the said

agreement dated 23.10.2007 if it was not for the purpose

indicated therein and as spoken to by DW­2.  In such

situation the execution of the said agreement dated

23.10.2007 will have to be taken as a strong

circumstance wherein it indicates that the plaintiffs, prior

to filing the suit itself had intended to give up their right

to seek for specific performance for want of the financial

resources.

18.       In that circumstance what would also be relevant

to be taken note is that in the suit, an application had

been filed by the defendants to direct the plaintiff to

deposit the balance sale consideration.  Since the plaintiff

had contended that the sum of  Rs.  75 Lakhs had not

been paid on 15.10.2007 as the title documents were not

made available and the defendants on the other hand,

had contended that the amount had not been  made

available though the documents were ready, the

                                                                                                                     Page 18 of 29

applications in IA No. 611/2008 and IA No. 1759/2008

were filed.   In  view of the  directions issued in IA  No.

611/2008 the defendants produced the title deeds.

Though in IA No. 1759/2008 the directions were issued

to deposit the balance consideration in Court within the

period, the said amount was not deposited.  Due to non­

deposit the suit was dismissed.   However, the fact

remains that the said issue was considered by the High

Court in  WP No.  25719/2008 and CRP No.  680/2008

assailing the said order.  The High Court on considering

the said aspect and finding that the dismissal of the suit

for not depositing the entire balance sale consideration

would not be justified had restored the suit.  Though the

said  order  has  attained finality  and  to that  extent the

restoration of the suit was justified; but the fact remains

that except the statement at Exhibit A5 to indicate that

the sum of Rs. 75 lakhs was available during the period

11.10.2007 to 19.10.2007, no other documents, such as

fixed deposit receipt for the said amount or deposit of the

very same amount in the account subsequent 08.11.2007

was produced.  Even if the amount was not to be insisted                                                                                                                       Page 19 of 29

to be deposited in the  Court, the  proof of availability

should have been tendered.   In that circumstance, out of

the remaining documents, Exhibit A9, a communication

sent by the plaintiff No.1 not being supported by

authentic document is eschewed, from the amount

depicted in Exhibit A11 to A13, it would not constitute

the entire extent of balance sale consideration.  

19. In that background, the perusal of the  judgment

passed by the Trial Court would indicate that the Trial

Court on appreciating the evidence has at the outset

arrived  at the  conclusion that in view of endorsement

dated 14.10.2007 contained in the agreement the non­

payment of Rs. 75 Lakhs on or before 15.10.2007 would

constitute waiver and cannot be considered as a breach

committed by the plaintiff.  To that extent the Trial Court

was justified and even if that be so the availability of the

sum of Rs. 75 Lakhs sought to be established through

the document at Exhibit A5 is taken into consideration,

whether the said amount was still available subsequent

thereto and whether the readiness and willingness can be

                                                                                                                     Page 20 of 29

accepted as proved  was the appropriate consideration

required to be  made.  Hence the Trial Court in that

regard has rightly taken note of the entire evidence.

While taking note of this aspect, as has been referred to

by us herein above, the Trial Court has taken note that

the plaintiffs were required to arrange the total balance

sale consideration of Rs. 1,31,79,700/­ (One Crore

Thirty­One Lakhs Seventy­Nine Thousand Seven

Hundred only).  

20.  In that regard, the document at Exhibit A5 namely

the accounts statement of Axis Bank  was taken into

consideration and had rightly  observed  that the ledger

extract for the period subsequent to 19.10.2007 was not

produced and in that view the evidence of PW­1  was

referred as he could not say on which day he withdrew

Rs. 75 Lakhs from his bank account.   The Exhibits A6,

A7 and A8 were taken note though it was not

appropriately attested and the amount as indicated in the

said documents at Rs. 15,62,426.70/­ Rs. 5,00,488/­

and Rs. 7,97,205/­ which were in credit to the said

                                                                                                                     Page 21 of 29

account  was taken  note.  Having  discarded  Exhibit  A9

which was a fax message without the supporting bank

documents, the amount of Rs. 2,33,399/­ in Exhibit A11

and Rs.  37,187/­  in Exhibit  A12 was also  taken note.

The  Trial  Court  had  also taken into  consideration the

agreement entered into between Shri Devassy and Shri

Ali Khan, dated 23.10.2007 marked as Exhibit X1 which

was also one of the reasons to arrive at the conclusion

that the plaintiff had not proved their readiness and

willingness.

21. As against the consideration  made by the Trial

Court, a  perusal of the judgment  passed  by the  High

Court would indicate that the main basis for its ultimate

conclusion is as contained in Para 20 of  the  judgment

which reads as here under:

In this case,  Court below finds that the documents produced by the plaintiffs were not sufficient to prove that they had sufficient money with them to pay the balance sale consideration within the period prescribed for performance of the contract.   Of course, if the plaintiffs seek specific performance of a contract their readiness and  willingness to comply with the terms of the contract is of paramount necessity.   Readiness  includes the capacity to raise funds for purchasing the property.   It is settled law that there is no necessity to make available the funds at the time of filing the suit.   However, it has to be

                                                                                                                     Page 22 of 29

shown that  he was  in a position to raise  funds for purchasing the property within the time specified.  In the case on hand, the total consideration of the property would come around Rs. 1.5 crores of which Rs. 75 Lakhs was paid as advance and there was an offer  to pay Rs. 75 Lakhs on or before 15.10.2007. Ext. A10 is the certified extract of an account maintained in the  name of the 1st  plaintiff,  which would show that  an  amount of  Rs.  75  Lakhs  was credited on 11.10.2007.   Therefore, it cannot be stated that plaintiffs were incapable of raising funds. Other documents namely, Exts. A11 to A13 produced by plaintiffs further proves their capacity to raise funds and in  fact  they had substantial  amounts at the relevant time to purchase the property. Therefore, the finding of court below to that extent is erroneous and is liable to be set aside.  

The learned Senior Counsel  for the respondent­plaintiff

sought to contend that the High Court also having taken

note of the documents that were tendered in evidence has

taken into consideration the fact  that towards the sale

consideration a sum of Rs. 75 Lakhs had been paid as

advance and the plaintiff had also shown that they were

ready with the further amount of Rs.75 lakhs which was

to be paid on or before 15.10.2007.   In that view, it is

contended  that the  High Court  had rightly taken  note

that the plaintiff had the capacity to arrange the financial

resource and as such had decreed the suit.  It is also his

contention that in the final conclusion when out of the

five properties the Item  No. 3 and 4 properties were

                                                                                                                     Page 23 of 29

excluded since the right to transfer the minors property

had not been established,   the balance amount payable

was much lesser being equivalent only to the value of the

properties in suit Item  Nos. 1, 2 and  5. The  balance

payable would amount to Rs. 52,34,700/­ and in view of

the judgment passed by the High Court the amount is

also deposited on 08.11.2018.

22. The learned senior counsel for the appellants­

defendants  on  the  other  hand would  contend  that the

defendants were willing to transfer all  the five Items of

the property provided the plaintiffs were ready and willing

and had paid the entire balance sale consideration for all

the items of property.  It is contended that there was no

bar to transfer the minors’ right by the natural guardian

and in any event when the plaintiffs have filed the suit

seeking specific performance of the agreement in its

entirety, in order to succeed they were required to

establish their readiness and willingness in entirety and

only thereafter any other consideration even to carve out

certain properties would have arisen.  The learned senior

                                                                                                                     Page 24 of 29

counsel for the appellant  has relied on the decision of

this Court in the case of  N.P. Thirugnanam (dead) by

L.Rs vs. Dr. R. Jagan Mohan Rao and Ors.  (1995) 5

SCC 1150  wherein it is held that in the absence of

showing continuous readiness and  willingness on the

part of the plaintiff, the relief of specific performance

would not arise.

23. In the above background, we find that the

consideration as made by the High Court does not

indicate that the High Court has taken note of the

evidence in the manner as has been analysed by the Trial

Court.   From the reasoning as extracted above the High

Court has proceeded by indicating that the readiness

includes the capacity to raise funds for purchasing the

property.   To that extent though the  High  Court  was

justified, the assessment of the evidence made does not

indicate that there  were sufficient  documents to show

that they  had the capacity to raise the funds for the

entire balance sale consideration.   The error committed

by the High Court is that it proceeded on the basis that

                                                                                                                     Page 25 of 29

the total consideration of the transaction is Rs. 1.5 crores

of which Rs. 75 Lakhs was paid as advance and since

there was an offer to pay the balance of Rs. 75 Lakhs on

or  before 15.10.2007  which  was  available in credit to

their account as on 11.10.2007 the same was sufficient.

Hence it concluded that it cannot be stated that the

plaintiffs were incapable of raising the funds.   From the

discussion made by the Trial Court as also by us in the

course of this judgment, it would indicate that in so far

as the total sale consideration is concerned, even if the

extent indicated as per the Court Commissioner’s report

is taken, it would be the sum of Rs. 2,01,00,850/­.

Therefore, the balance payable would be Rs.

1,26,00,850/­.   Towards payment of such balance sale

consideration though as on 15.10.2007 the sum of Rs. 75

Lakhs was shown to the credit, the availability  of that

amount subsequent to 08.11.2007 is not shown as the

statement at Exhibit A5 is only for the periods

09.10.2007 to 08.11.2007.   Hence, the said amount will

have to be taken as being made available at one point in

time by juggling the figures and was not shown available                                                                                                                       Page 26 of 29

for payment at the relevant point when the suit was filed.

Hence on exclusion of the same the remaining amount

through  Exhibit A11 to A13  would be in­sufficient to

indicate that as on date of filing the suit they had the

entire remaining balance sale consideration and  were

ready and willing to complete the transaction.  In that

circumstance, the deposit presently made after the

judgment is rendered by the High Court to the reduced

extent  would not be of assistance as there  would be

change in the circumstances after more than a decade, as

against what the position was in the year 2007.

24. In that circumstance, when not only the

availability of fund was satisfactorily explained but in a

circumstance where the first plaintiff had entered into an

agreement dated 23.10.2007 in favour of Shri Ali Khan in

respect of the very same properties even before securing

the sale deed in their favour, the bonafides would also

become relevant  when the specific performance as an

equitable relief is taken into consideration.  In that view,

the Trial Court while declining the relief of specific

                                                                                                                     Page 27 of 29

performance has appropriately granted the decree for

realisation of the sum of Rs. 75 Lakhs with interest at 9%

per annum.   To that extent though the Trial Court was

justified, we find it necessary to protect the interest of the

plaintiffs to recover the said amount.   In that view, it is

necessary to direct the defendants to refund the amount

to the  plaintiffs  within a time  frame, failing  which the

amount is to  be  paid  with the  higher rate  of interest.

Further, charge is to be created over the suit schedule

properties to ensure repayment of the amount.   Subject

to the above the impugned judgment dated 21.08.2018 in

RFA No. 344/2011 is liable to be set aside.  

25. In the result we pass the following,

ORDER

a) The judgment dated 21.08.2018 passed in RFA No.

344/2011 is set aside and the judgment dated

30.07.2008 in OS No. 89/2008 is restored.

b) The appellant is directed to refund the amount of Rs.

75 Lakhs with  interest at 9% per annum from the

date of receipt till the date of repayment and the

                                                                                                                     Page 28 of 29

repayment shall be made within 3 months from this

date.

c) If the refund is not made within 3 months, the said

sum of Rs. 75 Lakhs shall attract interest at 12% per

annum from the date  of receipt till the  date  of re­

payment.

d) There shall be a charge over the suit schedule

properties until realisation of the amount by the

plaintiff  and such charge shall  stand automatically

raised if the amount is deposited in compliance of the

directions contained above.  

e) The appeal is allowed in the above terms, however, in

the facts and circumstance the cost incurred in this

appeal shall be borne by the appellant.  

……………………….J. (R. BANUMATHI)

……………………….J.                                               (A.S. BOPANNA)

New Delhi, August 20, 2019

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