MANU/KA/0092/1971

Equivalent/Neutral Citation: AIR1971Kant217, (1971)1MysLJ245

IN THE HIGH COURT OF MYSORE

Second Appeal No. 336 of 1969
Decided On: 27.11.1970
Devendra Basappa Doddannavar Vs. Sonubai Tuljansa Kosandal and Ors.
Hon'ble Judges/Coram:
K.R. Gopivallabha Iyengar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.C. Javali and K.I. Bhatta, Advs.
For Respondents/Defendant: S.K. Venkataranga Iyengar, Adv.
Case Note:
Contract - Specific Performance of agreement - Section 22 of the Specific
Relief Act - Plaintiff had sought relief seeking specific performance of
agreement against the Defendant which was dismissed- Appellant Plaintiff
has filed second appeal challenging the dismissal of his plea - Petitioner
contended that the view taken by the lower appellate court with regard to
Section 22 of the Act or the equities involved in the case was erroneous in
any event- Held -Sections 19 and 22 were independent of each other- Section
19, contemplate a suit for specific performance- In such a suit it was open to
the Plaintiff to ask for compensation for the breach of the contract either in
addition to or in substitution for such purpose - The fact that the Plaintiff had
asked for the alternative relief which was permissible under Section 19 did
not prejudice his right to get a decree for specific performance- Further
reiterating on provision of Sec 19 it was said that specific performance
couldn't be granted and the breach of the contract was by the defendant, the
Plaintiff was entitled to compensation for that breach - Specific performance
could not be granted for the reasons mentioned under Section 22 and not for
the reason that the Plaintiff had sought alternative relief - Judgment and
decree passed by lower court was quashed - Appeal allowed
JUDGMENT
K.R. Gopivallabha Iyengar, J.
1. The plaintiff in Original Suit No. 403 of 1962 on the file of the II Additional Munsiff,
Belgaum, is the appellant. He filed his suit for specific performance of an agreement for
sale. This agreement is dated 20-8-1959 and marked Exhibit 49. His case is that
according to the agreement, the sale transaction had to be completed within two
months from the date of the agreement. The time was extended by 15 days more i.e.,
upto 26th October, 1959. On 26th October, 1959, the plaintiff alleges that he waited for
the defendants to complete the transaction. But, they did not do so. Therefore, he sent
a telegram on 26-10-1959 and followed it up with a letter informing the defendants on
the plaintiffs willingness to take the sale-deed and calling upon them to execute the
deed. The telegram and the letter did not fetch any reply. But, on 9-11-1959, a
telegram marked Exhibit 55 was sent by the defendants stating that the plaintiff did not
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complete the sale deed and they are not responsible. Thereafter, the plaintiff sent the
letter dated 11-11-1959 marked Exhibit 57 requiring the defendants to intimate to him
the time and date when the defendants would execute the sale deed. They also
complained that the defendants have failed to execute the sale deed though the plaintiff
is always willing to take it. The plaintiff called upon the defendants to pass the sale
deed and to fix the date and time when and where he should see the defendants to take
the sale deed. He also indicated that in the event of failure to comply with the demand,
he would file a suit.
The plaintiff got a reply Exhibit 58 stating that he should stop further unnecessary
correspondence with the defendant. In spite of waiting for a long time, the defendant
has failed to keep up the terms of the contract and execute the sale deed. The plaintiff
also says that he has kept the remaining sale price ready and that be is willing and
ready to perform his part of the agreement. He mentions that the cause of action for the
suit arose on 14-11-1959 when the defendants' letter Exhibit 58 was received asking
the plaintiff not to correspond with him any further. The plaintiff therefore, sought the
relief for specific performance. In the alternative, he made a prayer that in the event of
this Court not being inclined to grant a decree for specific performance, he may be
granted a decree for damages amounting to Rs. 4,700/-.
2. The second defendant who has been taking an active part in this agreement has filed
a written statement and the 3rd defendant has adopted the same. The other defendants
are ex parte. It may be mentioned that the 1st defendant is the widow of one Tuljansa
and the defendants 2 to 5 are his sons. Consequent on the death of Tuljansa, the
defendants 6, 7 and 8 have also been impleaded to this suit.
3. The defendants do not dispute the execution of the agreement dated 20-8-1959 and
also the extension of time as evidenced by the endorsement dated 19-10-1959 of
Exhibit 49. The defendants plead that the time was the essence of the contract under
the agreement for sale by mutual consent, the time for completion of the contract was
extended upto 26-10-1959, all other terms of the agreement continuing as before. It is
pleaded that it was agreed amongst the parties that they have to meet at the office of
the writer on 27-10-1959 and get the sale deed written by him and that the plaintiff was
to pay and purchase general stamp paper and also meet the registration expenses in
accordance with the agreement. He was also to pay the balance of the agreed price
before the Sub-Registrar and get the document registered. It is further alleged that the
defendants waited in the office of the writer and the plaintiff turned up and wanted the
document to be executed in favour of the plaintiff's wife and the defendants readily
agreed to do the same. After this, the plaintiff left the place and did not turn up on that
day. When the defendants returned home, they found a telegram issued by the plaintiff
which is marked Exhibit 53. The defendants also state that they have made an
application to the Chairman Gram Panchayat Committee as desired by the plaintiff
relating to an open space for the purpose of road.
The defendants allege that they were ever ready and willing and earnest to complete the
agreed sale transaction before and on 28-10-1959. They stated that as a matter of
grace, they extended time for completing the transaction upto 9-11-1959. The
defendants also admit having received the letter Exhibit 57 and having replied to the
same as per Exhibit 59 on 13-11-1959. The defendants state that the plaintiff never
seriously intended to complete the transaction, but merely went on carrying
correspondence without any intention to carry out the agreement. They say that the
correspondence emanating from the plaintiff was merely a pretence to keep alive the
plaintiff's claim and hide his unwillingness to fulfil his part of contract. The defendants
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plead that the plaintiff is now induced to file the suit as the prices of building sites in
the locality have been rising to a considerable extent. He is trying to get a wrongful
gain and dishonest advantage by the present false claim. They deny the right of the
plaintiff to get specific performance or to damages or to any other relief in this suit.
On the basis of these pleadings, the trial court framed several issues. It is stated by
both the parties that the first issue framed by the trial Court is unnecessary. The second
issue relates to whether the deceased Tuljansa and defendants 2 to 4 committed breach
of contract to execute the sale deed and the fourth issue is whether the plaintiff
committed breach of contract as averred by defendants 2 and 3. The third issue is
whether the plaintiff is entitled to Specific performance of the sale agreement dated 20-
8-1959. The trial Court found in favour of the plaintiff on these issues referred to
above. No question of considering the alternative relief arose. As a result of the
findings, the trial court decreed the suit. Against this, the contesting defendants 2 to 4
preferred Regular Appeal No. 47 of 1968 on the file of the Civil Judge, Belgaum. The
learned Civil Judge set aside the decree of the trial court and allowed the appeal with
costs thus dismissing the plaintiffs suit. Against this judgment and decree of the lower
appellate court, the plaintiff has preferred this second appeal.
4 . Shri S. C. Javali, learned counsel appearing for the appellant, contends that the
lower appellate Court has misunderstood the scope of the pleadings and has made out a
new case for the defendants. He submits that the lower appellate court has drawn
inferences which are not warranted by the proved facts of the case. The learned Judge,
6 is submitted, has not merely made out a new case in regard to breach of contract but
also in respect of waiver and abandonment which has not been pleaded. It is further
contended that the view taken by the lower appellate court with regard to Section 22 of
the Specific Relief Act or the equities involved in the case is erroneous in any event. It
was not open to the lower appellate court to take a view different from that taken by the
trial court on the discretion exercised by the trial court under Section 22 of the Specific
Relief Act. He also complains that the Inferences drawn by the lower Appellate Court for
the delay in filing the suit as leading to an abandonment is unwarranted in law.
In support of his contentions, he invites my attention to what the lower appellate court
has stated in the earlier part of the judgment setting out the facts of the case and also
the points arising for decision. The learned Judge states that:
"It has come in evidence of the parties that in the morning of 26-10-1959 the
parties to the agreement met and agreed that on the same day, the plaintiff
would get the sale deed executed and Tuljansa and defendants Nos. 2 to 5
would execute the sale deed. So, if it is proved that the plaintiff had been to
any fixed place with the required amount and with readiness to get the sale
deed executed and Tuljansa and defendants Nos. 2 and 5 did not turn up at that
place to execute the sale deed and subsequently also the plaintiff was ever
willing to get the sale deed executed, but the said Tuljansa and defendants Nos.
2 to 5 avoided to execute the same, the plaintiff is entitled to a specific
performance of the contract.
But if it is established that the plaintiff, did not turn up on 26-10-1959 at the
appointed place and did not get the sale deed executed by paying the remaining
sale price and purchasing the stamp etc., and thereafter Tuljansa and
defendants Nos. 2 to 5 due to the breach committed by the plaintiff, put the
contract to an end and the plaintiff by his conduct accepted it, or as alleged by
the defendants, made only correspondence to hide fault on his part and throw

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 the blame on the defendants, without any intention to get the sale deed
executed, even if it is proved that this is not a fit case, in view of the conduct of
the plaintiff, where a decree of specific performance of the contract should be
awarded, tie plaintiff cannot succeed."
In view of this understanding of the pleading, the learned Judge sets out 3 points for
decision. It is necessary to quote this in full as elaborate arguments are advanced to
indicate that by framing the points for decision in the way in which the learned
appellate Court has done, it has actually made out a case which is not set up by the
parties nor dealt with by the trial court. The points for decision as set out are:--
(i) Whether Tuljansa and defendants 2 to 6 committed breach of the agreement
by avoiding to execute the sale deed on 26-10-1959;
(ii) Whether the plaintiff committed breach of the agreement by not turning up
on 26-10-1959 to get the sale deed executed as alleged by the defendants;
(iii) Whether on 13-11-1959 the defendants put the contract to an end due to
the alleged breach of agreement by the plaintiff and the plaintiff by his conduct
accepted or abandoned the contract and has come out with the suit only after
knowing that the price of the plots had gone high;
(iv) Whether the plaintiff is entitled for a decree of specific performance of the
agreement.
The contention of the appellant's counsel, as already mentioned, is that by framing
these points for decision, the learned Judge has gone beyond the scope of the issues
which merely concerned itself with the breach of contract either on the part of the
plaintiff or on the part of the defendants without reference to particular date connected
with the incident. It was submitted for the respondents that there is no difference
between the issues framed in the case and the points for decision as mentioned by the
appellate Court. But, it is submitted that the issues framed by the trial court are more
comprehensive and include the point for decision as set out by the lower appellate
court.
5. It was submitted by the respondent's counsel that it would be immaterial whether the
breach was on 26-10-59 or on 13-11-59. The question of breach on a particular date
would be irrelevant so long as there is a finding that there is a breach. This finding that
there is a breach of contract on the part of the plaintiff is a finding of fact which cannot
be interfered with in second appeal. Therefore, it remains to be seen whether the
approach made by the lower appellate court in this case is in conformity with law
keeping in mind the pleadings of the parties and the issues framed in the case. It
appears to me that the learned Judge has proceeded to deal with the whole matter as if
the breach of contract occurred on 26-10-59. It is, therefore, that he considers in detail
the incidents that took place on 26-10-59 and comes to the conclusion that the plaintiff
having failed to turn up on 26-10-1959 has committed a breach of contract, and,
therefore, the plaintiff is not entitled to any relief of specific performance. In view of the
fact that the plaintiff has committed a breach, the defendant put an end to this
transaction vide his letter dated 13-11-1959.
6 . The learned Judge observed that after this, the plaintiff neither wrote to him nor
made any attempt to get the sale deed executed by offering the remaining particulars,
but filed a suit on 20-10-1962, 6 days prior to the expiry of the date after which, the
suit will be barred. It appears to me that the pleadings do not support the points for
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determination as set out by the lower appellate Court. The lower appellate court shrinks
the issue framed by the trial Court and confines it to a particular date. This is on the
basis of the written statement that
"It had been agreed that the plaintiff and the defendants were to be met at the
office of the writer on 26-10-1959 and get the sale deed written by him and
that the plaintiff was to pay etc. ......"
This by itself does not mean that if the plaintiff or the defendants failed to turn up at
the fixed place and time, the contract would automatically come to an end. As submitted
by the appellant's counsel that meeting on the 26th October, 1959 was only a step in
the implementation of the agreement for sale. It was not a term or the contract. If it
were a term of the contract; the complexion and the inference to be drawn from the
conduct of the parties on 26th October, 1959, would be quite different. That the parties
did not think of a meeting fixed for 26-10-1959 as a term or the contract is clear from
the fact that subsequent to that date, the defendants kept quiet till 9-11-1959. It is said
that the defendants extended the time for fulfilment of the contract till 9-11-1959.
Further in the evidence of the second defendant, he states that "It is true that Exhibit 57
is by way of reply to the plaintiff's telegram". Exhibit 57 is dated 9-11-1959 and is said
to be a reply to Exhibit 53 dated 26-10-1959 issued by the plaintiff on the evening of
26-10-1959. The plaintiff sent reply as per Exhibit 57 on 11-11-1959. With reference to
this, he says
"I did not inform the plaintiff the date or place on which the sale deed was to
be executed. Thereafter, the plaintiff was informed by letter dated 13-11-1959.
My father did not know English. There was no objection for me to inform the
date and place where the sale deed was to be written".
Obviously the defendants were prepared to fix the time and date as required by the
plaintiff in their communication dated 11-11-1959. They did not choose to do so. They
sent a reply on 13-11-1959 as per Exhibit 58. He suddenly closed the transaction
without any reason. It appears to me that the learned Judge should have considered the
case from the point of view whether there was a breach of contract on the part of either
the plaintiff or the defendants without confining attention to only what happened on the
26th October 1959. This incidentally, raises the question whether the time fixed in
Exhibit 49 was the essence of the contract. Both on facts and in law in this case, time
cannot be considered to be the essence of the contract. It is undisputed that the time
fixed was 2 months from 20-8-1959 and later extended on the 19th October 1959 upto
26-10-1959. Subsequently, it was extended upto 9th November, 1959, though the
defendant says that it is a matter of grace. At any rate, the plaintiff was entitled to get
the sale deed executed in his favour within 9-11-1959. In this connection, the learned
counsel for the appellant invites my attention to the decision reported in Jamshed
Khodaram Irani v. Burjorji Dhonjibhai 43 Ind App 26 : AIR 1915 PC 83. This decision
lays down that an Intention to make time of the essence of the contract must be
expressed in unmistakable language. It may be inferred from what passed between the
parties before and also after the contract is made. The language of Exhibit 49 does not
indicate that time is essence of the contract. The subsequent conduct of the parties
which though not conclusive throws light on how the parties understood the agreement.
On page 32 (of Ind App) -- (on page 85 of AIR) of the above decision it is observed:--
"A court of Equity will indeed relieve against and enforce specific performance,
notwithstanding a failure to keep the dates assigned by the contract; either for

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 completion or for the steps towards completion, if it can do justice between the
parties, and if (as Lord Justice Turner said in Roberts v. Berry 1853 3 De G. M.
& G. 284 there is nothing in the 'express stipulations between the parties, the
nature of the property, or the surrounding circumstances, which would make it
inequitable to interfere with and modify the legal right."
7 . There is the view expressed in Narayana Swami Pillai v. Dhanakoti Ammal
MANU/TN/0313/1967 : AIR1967Mad220 . In that it is observed, that
"no special circumstance subsisting at the time of the contract has been made
out to warrant an inference against the usual presumption that time was not the
essence of the contract in an agreement for sale of immovable property."
No circumstances are made out in this case to indicate that time was the essence of the
contract. Though no issue was framed on this question the trial court has discussed this
matter and has come to the conclusion that time was not the essence of the contract to
perform the suit agreement. Reliance was placed on the observations in Shriram Cotton
Pressing Factory v. Narayanaswami MANU/TN/0270/1965 : AIR1965Mad352 in which it
is stated:
"The question whether time was the essence of the contract is surely a question
of law and not of fact, being a legal inference to be derived from the facts. In
the instant case having regard to the conduct of the parties in extending the
original time fixed for performance, from time to time, time was an essential
element, whether time is essential will have to be decided from the nature of
the subject-matter of the contract and the object of the contract. Here having
regard to the locality the property agreed to be sold is such that its value would
necessarily change from time to time when the object of the contract is
commercial enterprise, the court is strongly inclined to hold time to be
essential."
In this case there is nothing to indicate that the object of the purchaser was a
commercial enterprise. On the other hand it is mentioned that the plaintiff has
stipulated from the purchase or the open-site for the purpose or constructing a building.
The learned Appellate Judge does not consider this question specifically. But, it is
submitted by the respondents counsel that from the fact that the appellate Judge
accepts his contention as to what transpired on 26-10-1959 the learned Judge must be
understood to have taken the view that the time was the essence of the contract. Taking
the facts of the case into consideration, it appears to me that if the learned Judge has
taken the view that the time is the essence of the contract he has acted contrary to the
evidence on record. Therefore, this case must proceed on the footing that time was not
the essence of the contract.
8 . The next question that arises for consideration is, whether in this case it could be
held that the plaintiff was responsible for the breach of the contract or the defendants
were responsible for the same.
9. Though the appellate Court has held that the plaintiff was responsible for the breach
of the contract, it cannot be gainsaid that he has come to that conclusion by an
erroneous understanding of the case put forward by the parties. Looking at the
sequence of events it is clear, that the defendant has abruptly closed the transaction by
his letter dated 13-11-1959. Exhibit 58. As I have stated already the agreement fixed
20th of October, 1959 as the date within which the transaction must be completed. On
19th October, 1959, the date was extended by mutual agreement. What happened on
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26th of October, 1959, is very important.
10. There are varying versions as to where the parties had to meet to comply with the
transaction. D. W. 1 in his evidence states:--
"that it was settled there that the sale deed had to be written on the same day
in the office of Manjrekar at Shanivarkoot and all of us agreed to meet them.
Accordingly myself, my father and four of my brothers went to Manjrekar's
office by about 12 or 12-30 p. m. The plaintiff came there by about 2-00 p. m.
and enquired as to whether we are willing to pass a sale deed in his wife's
name. We consented. Plaintiff went away saying that he would return soon. But
the plaintiff did not turn up there nor his wife. We waited in Manjrekar's office
till about 6-30 p. m,; thereafter we returned home."
It is in consonance with what was stated in the written statement. But, as I stated
above, this by itself will not amount to any breach of contract. The next document 6
Exhibit 50. It is dated 1-9-1959. It is a public notice under which the plaintiff informs
the public that he has entered into an agreement with the defendant for the purchase of
the suit properties. He calls upon those that have interest in the property to see him
with evidence of their interest in the same. The next document is Exhibit 51. It is dated
17-10-1959. In this Notice the plaintiff calls upon the defendants to complete the said
transaction within 15 days and he also mentions that if the sale deed Is not duly
executed, he will be compelled to have recourse to the legal action.
On 19-10-1959 the period for completing the transaction is extended upto 26th
October, 1959. This endorsement is made on Exhibit 49 on 19-10-1959. Thereafter the
incident of 26-10-1959 took place. On 26-10-1959 the plaintiff sends a telegram which
admittedly was received by the defendant in the evening and in that the plaintiff has
stated that he was willing to take the sale deed, but the defendants are avoiding and
that they would be held responsible for all damages and court costs. This was followed
up by a confirmatory letter on 27-10-59. Till 8-11-59 there is no correspondence
between the parties.
On 9-11-1959 the defendants' telegram purporting to be a reply to the telegram dated
26-10-1959 saying that they have waited till 9-11-1959, but the sale deed has not yet
been completed and they are not responsible. It is curious to note that there is no
reference In this telegram to what transpired on 26th instant. It is, however, clear that
till the 9th of November, it was open to the plaintiff to get the sale deed from the
defendants.
In answer to this under Exhibit 57, the plaintiff calls upon the defendants to pass the
sale deed and to inform him as to when, where he should meet to get the sale deed.
Ordinarily it will be expected that the defendants would reply to this staring that there
has been a breach of the contract on the 26th October, 1959 and therefore nothing
more could be done. On the other hand there is no mention of any reason. A cryptic
reply is sent on 13-11-1959, asking the plaintiff to stop further unnecessary
correspondence with them. This is how the matter ends. The learned Civil Judge has
held, that the defendants put the agreement to an end on 13-11-1959 after the plaintiff
did not turn up on 26-10-1959 to get the sale deed executed and they waited till 9-11-
1959. It appears to me that this conclusion is entirely unwarranted as it is against the
documentary evidence in the case.
After 11-11-59 the proper way in which the agreement could have been terminated is by
issuing of a notice to the plaintiff calling upon him to complete the transaction within a
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particular time, failing which the contract will be treated as cancelled. That this is the
proper way of terminating the contract is clear from what has been observed in
MANU/TN/0313/1967 : AIR1967Mad220 that when the contract is for the sale of
Immovable property the vendor must give reasonable notice requiring the performance
within a definite time.
11. In this case there is no notice exchanged between the parties before the plaintiff
filed his suit. So, it appears to me, that the breach of contract if any was on 14-11-1959
as set out in the plaint, after the plaintiff received the unqualified reply of the
defendants. Therefore this conclusion leads to the next question, as to whether there
was any abandonment or waiver on the part of the plaintiff by the delay in filing the suit
six days before the expiry of three years, the period prescribed in the Limitation Act.
Though there is no issue on this question, the lower appellate Court came to the
conclusion that there are laches on the part of the plaintiff and he has abandoned or
waived his claim regarding the sale of the suit lands. The appellate Judge, however,
holds that the plaintiff accepted the defendant putting an end to the contract by his
conduct in keeping quiet till 29-10-1962. It may however, be observed that there is no
plea of abandonment of a waiver.
The appellate court says:
"No doubt the defendants did not use the contract words that they put the
contract to an end and the plaintiff accepted it in their written statement, but
what they have stated in paragraphs 3 and 5 of the written statement amounts
to that."
This reference is not supported by what has been stated in paragraphs 3 and 5 of the
written statement. In paragraph 3, there is no reference to the acceptance by the
plaintiff of the repudiation by the defendants. Paragraph 5 of the written statement
refers to me rise in price of the building sites in Belgaum and suggested a motive for
the plaintiff preferring the present claim, which he characterizes as false. Thus, the
statement of the learned Judge that the conduct of the plaintiff supports the
abandonment on the part of the plaintiff, is clearly erroneous.
This question has been considered by the Supreme Court in Sathyanarayana v. Yelloji
R a o MANU/SC/0310/1964 : [1965]2SCR221 . In that case their Lordships have
observed thus:--
"If the learned Judges meant to lay down that mere delay would amount to
abandonment of a right, we find it difficult to agree with them. The decision of
the Calcutta High Court in Gostho Behari v. Omiyo Prasad MANU/WB/0094/1960
: AIR1960Cal361 , recognised that mere delay was not sufficient to deny the
relief of specific performance, but pointed out that though it was not necessary
to establish that the plaintiff had abandoned his right, the court may, in view of
the conduct of the plaintiff coupled with his delay that had prejudiced the
defendant, refuse to give the equitable relief."
1 2 . In this case the lower appellate court while observing that mere delay is not
sufficient to refuse the relief of the specific performance of the contract, states that if
the delay coupled with other circumstances indicates that the plaintiff has abandoned
the contract then no question of discretion arises. This proposition is correct. The
learned Judge mentions that the delay in filing the suit gives rise to the inference of
abandonment and secondly the grant of a decree for specific performance could
prejudice the defendant and would cause hardship to him. The two reasons that the
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learned Judge has given are not sustainable in law to deny the relief to the plaintiff.
Sri Javali, learned Advocate for the appellant invited my attention to the decision in
Suryaprakasarayudu v. Lakshmi Narasimhacharlu MANU/TN/0070/1914 : AIR 1914 Mad
462. In this, it is laid down:--
"that mere laches or delay short of the period of limitation is not always
evidence of waiver or abandonment of claim, even where it is up to the hilt of
the limitation period, that is the ground for refusing specific performance.
Then as regards the finding of the Subordinate Judge that the laches itself
amounts to a waiver or abandonment, I think it is an error of law to hold that
mere delay amounts to a waiver or abandonment apart from other facts or
circumstance or conduct of the plaintiff indicating that the delay was due to a
waiver or abandonment of the contract on the part of the plaintiff."
Therefore, abandonment of the contract cannot be inferred from the mere delay. The
second ground that the learned Judge has mentioned, viz., the hardship likely to be
caused to the defendants, which can be a reason for inferring that the plaintiff has
abandoned the contract, cannot arise in this case. If the defendant was allowed to put
up any structure on the property to be sold, the plaintiff keeping quiet, such conduct on
the part of the plaintiff would have led to an inference of abandonment or waiver of
conduct by him. But no such circumstance exists in this case. The only circumstance we
find is that the property value has increased twice or thrice the stipulated value. It may
be that if the plaintiff does not insist on the performance of this contract, the defendant
may stand to gain by the increase in value. The increase in price is a factor which may
induce one party to insist upon the performance of contract because it benefits him,
while it may act contrary so far as the other parties are concerned. The circumstance
that the plaintiff has delayed in seeking legal action, does not lead to the conclusion
that he acquiesced in the alleged termination of the contract. The fact that the plaintiff
has not furnished any satisfactory and acceptable reason for the delay in filing the suit
cannot disentitle him from seeking relief, provided he is within the limited period
prescribed in the Limitation Act
13. It was next contended, that the plaintiff was not ready and willing to perform his
part of the contract. This contention is also unfounded and against the evidence on
record. In paragraph 2 of the plaint, the plaintiff alleges that he kept the remaining sale
price ready at hand from the beginning in order to take the sale deed, but the
defendants are purposely evading the same. This allegation has not been specifically
denied in the written statement. It is contended, that it is covered by the pleadings. The
trial court holds that the plaintiff was ready and willing to perform his contract and it is
only the defendants who admittedly put an end to this contract on 13-11-1959. The
case of the defendant is that the correspondence of the plaintiff calling upon them to
fulfil the contract is only a pretence. This has not been the impression of the defendant
himself. The defendant in his cross-examination states that on 27-10-1959 he met the
plaintiff on his way to Tilakwadi but refers to no talk regarding sale. In another portion
of the cross-examination he states that after 11-11-1959 he had no objection to inform
the date and place where the sale deed was to be written. These indicate that the
allegation that the conduct of the plaintiff was only a pretence lacks any basis. On the
other hand, P. W. 1 in his deposition has stated that he is prepared even now to take
the sale deed as per agreement under Exhibit 49. He has not been cross-examined on
this point. Therefore, it is clear that there is no basis in the contention.

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14. Shi S. K. Venkataranga, Iyengar, learned counsel for the respondent contended,
that in view of Section 38 of the Indian Contract Act, the suit is not maintainable. In
respect of this argument he relied upon the terms of Exhibit 49. He invited any attention
to the default clause which reads as follows:--
"If I neglect to complete the sale transaction in your favour within the said
stipulated period, you should deposit in court the remaining amount due to me
from you and get the sale transaction completed in your favour through court."
He pointedly drew my attention to the stipulation that the money should be deposited in
court. There is no doubt that the amount is not deposited in court by the plaintiff in the
first instance. It appears to have been deposited after the decree was passed by the trial
Court. So far as the interpretation of this document is concerned Mr. Javali states that
the question of deposit does not arise in the first instance but only when the sale is
effected. In view of this, his submission is that he has complied with the conditions of
the agreement. It cannot be said that there is no force in the interpretation of Sri Javali.
It would be purposeless to deposit the amount in court, when the defendant is flatly
refusing to have anything to do with the agreement for sale. The reasonable
interpretation that can be placed upon the document is that the balance of sale
consideration becomes payable after the right of the plaintiff to get the sale deed is
established. iN this contention, the learned counsel invited my attention to two
decisions viz., Bhagavantu Layya V. Venkandora MANU/TN/0033/1941 : AIR 1941 Mad
484 and Ismail Bhai v. Adam Osman MANU/WB/0187/1938 : AIR1939Cal131 . It was
tender by a mortgagor of the mortgage debt which fell short by a small amount. The
defendant refused to accept the amount not because it was short, but because the
appellant considered that he was entitled to wait for a longer time which meant more
interest to him. The refusal of the tender on this ground amounted to waiving any
objection that he may have to the amount being short. Therefore, the court held that by
refusal of the tender on the ground that it was premature he waived the objection with
regard to shortage of the deposit. Therefore, the principle is that if a party to the
contract refuses to discharge his obligation he cannot take any objection to the other
party failing to fulfil his obligation which is merely the result of the conduct of the First
party. The decision in MANU/WB/0187/1938 : AIR1939Cal131 , is distinguishable on
facts and therefore it is of no assistance to the respondent.
1 5 . The next decision that has been referred to by the learned counsel for the
respondent is one in AIR 1957 Trav. Co 216. Even this is distinguishable on facts. There
is no circumstance like a letter dated 13-11-1959 as in this case which should make it
purposeless to deposit the amount in court when the defendant refused to accept the
same. The next argument urged by Sri S. K. Venkataranga lyengar, is that the view
taken by the lower appellate court on the exercise of discretion under Section 22 of the
Specific Relief Act is one of fact and could not be interfered with in second appeal. The
trial Court has taken the view that there are no circumstances in the case to bring it
within the scope of Section 22 of the Specific Relief Act, so as to deny the plaintiff the
relief of specific performance. The learned Judge while dealing with this aspect of the
matter says; if there is delay with other circumstance it should be unfair for the
defendant to grant relief on the basis of the contract. The learned Judge has totally
misconceived the scope or Section 22 of the Act. Before dealing with this question
further, another argument advanced by the respondent's counsel may be adverted to. He
refers to Section 22, Clause (2) of tie Specific Relief Act and illustrations (h) and (j).
Section 22, clause (2) in particular can refer only to the state of affairs or the conditions
that prevailed at the time when the contract was entered into not at any rate later stage.
The case reported in MANU/TN/0313/1967 : AIR1967Mad220 , supports the proposition
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that the relevant date is the elate on which the agreement was entered into. They
considered the question of increase in price since the date of the agreement and
observed:
"But leaving aside these considerations what has to be considered is the
fairness of the contract at the time the agreement was entered into. That since
the contract prices of properties have gone up is not a matter for
consideration."
In this connection the decision of MANU/SC/0310/1964 : [1965]2SCR221 can be
referred to while dealing with the scope of Section 22 of the Specific Relief Act. They
observed as follows:--
"Under Section 22 of the Specific Relief Act, relief of specific performance is
discretionary but not arbitrary; discretion must be exercised in accordance with
sound and reasonable judicial principles. The cases providing for a guide to
courts to exercise discretion one way or other are only illustrative; they are not
intended to be exhaustive. As Article 113 of the Limitation Act prescribes a
period of 3 years from the date fixed thereunder for specific performance of a
contract, it follows that mere delay without more extending upto the said period
cannot possibly be a reason for a court to exercise its discretion against giving
a relief of specific performance. Nor can the scope of discretion, after excluding
the cases mentioned in Section 22 of the Specific Relief Act, be confined to
waiver, abandonment or estoppel. If one of these three circumstances is
established, no question of discretion arises, for either there will be no
subsisting right or there will be a bar against its assertion."
In this connection the respondent's counsel referred to the decision in Gomathinayagam
Pillal v. Palaniswami Nadar MANU/SC/0067/1966 : [1967]1SCR227 . It is quite clear
that the said case cannot be of any assistance as the plaintiff therein was not ready and
willing to perform his part of the contract. In paragraph 6 of this decision it is stated
thus:
"On this part of the case the trial court recorded a clear finding against the
respondent that he was at no time ready and willing to perform his part of the
contract. The High Court did not consider the effect of this finding upon the
claim of the respondent and without expressing dissent with that finding
granted a decree for specific performance to the respondent."
Therefore, this decision cannot be of any assistance to the respondent. Illustrations (h)
and (j) deal with cases of hardship which the defendant could not foresee. In the
present case no such hardship arises. Hence those illustrations do not assist the
respondent.
16. The appellant's counsel further contended that the discretion exercised by the trial
court under Section 22 of the Specified Relief Act, should not be interfered with by the
appellate court unless it be that the discretion is exercised capriciously or it is
unreasonable. In support of this contention the decision in U. P. Co-op. Federation v.
Sunder Bros. Delhi MANU/SC/0002/1966 : AIR1967SC249 . Though this arose under the
Arbitration Act, the principle underlying the said conclusion applies to this case. It lays
down, thus:
"Where the discretion vested in the court under Section 84 has been exercised
by the lower court, the appellate Court would be slow to interfere with the
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 exercise of their discretion. In dealing with the matter raised before it at the
appellate stage, the appellate Court would normally not be justified in
interfering with the exercise of the discretion under appeal solely on the ground
that if it had considered the matter at the trial stage it may have come to a
contrary conclusion. If the discretion has been exercised by the trial court
reasonably and in a judicial manner the fact that the appellate court would have
taken a different view may not justify such interference with the trial court's
exercise of discretion."
1 7 . Sri Tavali, learned counsel for the defendant (sic--plaintiff?) also invited my
attention to the decision to the case in Skinner v. Skinner MANU/LA/0090/1930 : AIR
1930 Lah 1004 in which it is observed:
"As provided by Section 22, Specific Relief Act, the grant of specific
performance is discretionary with the courts. Where the trial court has exercised
this discretion, appellate court will interfere only if it is shown that this
discretion has been exercised perversely or against the judicial principles."
The same is the view taken in MANU/UP/0055/1936 : AIR1937All161 , Gain do Devi v.
Shanti Swamp. It states:
"The jurisdiction to decree specific performance is discretionary but it must be
understood that the discretion of the court is not to be arbitrarily exercised but
guided by judicial principles. Where the discretion to grant specific relief is
exercised by the Court below, the appellate court should come to the conclusion
that the discretion was arbitrarily exercised by the court below before it thinks
of interfering with it."
Taking the facts of this case into consideration it must be said that the lower court has
not exercised its discretion arbitrarily, the contention was that this was a finding of the
lower appellate court on a question, of fact viz., whether the facts warranted the refusal
of the specific relief to the plaintiff. In this connection the decision in Ramalinga v.
Jagadammal MANU/TN/0158/1951 : AIR1951Mad612 was cited. The learned Judge lays
down:
"Under Section 22, Specific Relief Act, "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". Where a decree for specific performance
granted by the trial court is reversed by the appellate court in disregard of the
relevant statutory provisions or legal principles recognised by judicial
precedents, the Judgment of the appellate court is liable to be reviewed in the
second appeal."
In the circumstances of the case I am satisfied that the conclusions of the lower
appellate court interfering with the discretion exercised by the trial court is unwarranted
by law and hence it is liable to be reviewed in second appeal. The lower appellate court
in, expressing the view that even in the event of the plaintiff being entitled to specific
performance the said relief cannot be granted to him has acted against the provisions of
Section 22. The contention of respondents' counsel that this is a finding of fact cannot
be accepted. This is a finding opposed to the provisions of law and not justifiable and
that this court can interfere as has been laid down in MANU/TN/0158/1951 :
AIR1951Mad612 .
18. The respondents' counsel further contended that in view of the fact that the plaintiff
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has asked for an alternative relief for compensation, it is evident that he was conscious
of the fact that he was not entitled to a decree for specific performance. My attention
was invited to the provisions of Section 19 of the Specific Relief Act. It was submitted
that this section should be read along with Section 22 of the Specific Relief Act. Reading
these two sections together, there is justification to refuse a decree for specific
performance in this case. I am unable to agree with this contention. Sections 19 and 22
are independent of each other. Section 19, contemplates a suit for specific performance.
In such a suit it is open to the plaintiff to ask for compensation for the breach of the
contract either in addition to or in substitution for such purpose. The fact that the
plaintiff has asked for the alternative relief which is permissible under Section 19 does
not prejudice his right to get a decree for specific performance. The second paragraph
of Section 19 makes the matter very clear. If specific performance cannot be granted
and the breach of the contract is by the defendant, the plaintiff would be entitled to
compensation for that breach. It is quite conceivable that specific performance may not
be granted for the reasons mentioned under Section 22 and not for the reason that the
plaintiff has sought alternative relief.
19. In the circumstances stated above, I am satisfied that the judgment and decree
passed by the lower appellate court cannot be sustained. The appeal is allowed and the
judgment and decree of the trial court are restored.
20. In the circumstances of the case, I direct the parties to bear their own costs.
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