Common Judgment: (A. Rajasheker Reddy, J.)
A.S.No.998 of 2010
1. This Appeal Suit is filed against judgment and decree dated 12.11.2010 in O.S.No.88 of 2002 wherein and whereby the trial Court dismissed the suit filed by the appellant/plaintiff against the respondents/defendants for specific performance in respect of agreement of sales dated 26.03.1997 and 27.03.1997.
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed in the suit.
It is the case of the plaintiff that the defendants 1 to 4 are the owners of the agricultural land admeasuring Acs.141.05 gts in Sy.Nos.300 to 309 in Budwel Village, Rajendernagar Mandal (for short ‘the suit schedule property’). The suit schedule property was purchased by Debbad Narayana, father of defendant Nos.1 and 2 through registered sale deed No.127 of 1969, dated 26.02.1969 from Mohd. Abdul Khader. The said D.Narayana and defendants 1 to 4 agreed to sell an extent of Acs.127.29 guntas out of the total extent to defendant Nos.5 to 10 and executed an agreement of sale dated 19.03.1994 and defendant Nos.5 to 10 were also put in possession of the property to an extent of Acs.65.23 gts. As per the terms of the said agreement, the defendant Nos.1 to 4 and said late D.Narayana executed two Powers of Attorney in favour of defendant Nos.5 and 6. Subsequently, on payment of remaining balance sale consideration, the remaining land was also delivered to the defendant Nos.5 to 10, as such, the defendant Nos.5 to 10 were put in possession of entire extent of Acs.127.29 gts. In pursuance of the agreement of sale in favour of defendants 5 to 10 dated 19.03.1994 and two power of Attorneys executed by defendant Nos.1 to 4 and D.Narayana in their favour, they agreed to sell an extent of Acs.38.15 gts of land covered by Sy.Nos.301 (part), 302, 303 and 304 (part) @Rs.1,00,000/- per acre, for a total sale consideration of Rs.38,37,500/- and for that purpose executed an agreement of sale dated 26.03.1997 (Ex.A5) in favour of the plaintiff. The defendant Nos.5 and 6 also agreed to sell an extent of Acs.1.33 gts of land in Sy.No.304 part to the plaintiff @ Rss.1,00,000/- per acre for a total sale consideration of Rs.1,82,500/- under an agreement of sale dated 27.03.1997(Ex.A4). Under an agreement of sale dated 26.03.1997, the defendant Nos.5 to 10 received advance sale consideration of Rs.34,70,000/- and also an advance amount of Rs.10,850/- in respect of agreement of sale dated 27.03.1997 was received by the defendant Nos.5 to 10. Thus, under the two sale agreements, out of total sale consideration of Rs.40, 20,000/-, the plaintiff paid a sum of Rs.34, 80,850/- and balance payable under the said two agreements is Rs.5, 39,150/-. It is asserted that in pursuance of the said two sale agreements, the plaintiff was put in possession of the suit schedule property and since then the plaintiff has been in possession and enjoyment of the same and invested huge amounts. As per the two sale agreements, the defendant Nos.5 to 10 have to obtain necessary permissions and certificate from the concerned authorities and to furnish the same to the plaintiff within three months from the dates of agreement of sales but the defendant Nos.5 to 10 failed to comply the same, even though the plaintiff is always ready and willing to perform his part of the contract. The plaintiff also demanded the defendants on many occasions to execute registered sale deeds in terms of the agreement of sales by performing their part of the agreement i.e., by obtaining necessary permissions and certificates from the concerned authorities by receiving balance sale consideration. But the defendants have postponed the same. Thereafter, the plaintiff got issued legal notice dated 08.02.2000 to the defendants 6 & 8, who are General Power of Attorneys, but there is no response from them. The plaintiff again issued legal notice dated 06.07.2002, which was received by the defendants 1, 2, 3, 5, 8 to 10, to which the defendant Nos.6 & 9 replied raising false and baseless contentions. Hence, the suit is filed for Specific Performance of the Agreements of sale dated 26.03.1997 and 27.03.1997 and in the alternative for recovery of advance sale consideration paid by the plaintiff of Rs.34,80,850/- with interest @ 36% per annum.
3. On the other hand, the defendant Nos.5 and 6 filed their written statements.
4. The 5th defendant filed written statement contending that the defendant Nos.5 to 10 had entered into agreement of sale with defendant Nos.1 to 4 under which the defendant Nos.5 to 10 agreed to purchase an extent of Acs.127.29 gts in Sy.No.301 part to 309 of Budwel Village and paid the entire sale consideration to defendant Nos.1 to 4 and defendant Nos.5 to 10 were allotted different extents of land as per their shares described in agreement of sale with defendant Nos.1 to 4. Subsequently, defendant Nos.5 to 10 could not obtain regular sale deeds from defendant Nos.1 to 4. Hence, the defendant Nos.1 to 4 ceased to have any interest in the property and they executed power of attorneys authorizing defendant Nos.5 and 6 to execute necessary sale deeds to third parties. Defendant Nos.6 & 8 identified the plaintiff as purchaser for the extent of land that is allotted to them in the settlement among defendants 5 to 10. The defendant Nos.6 and 8 received amounts as advance from time to time and plaintiff was put in possession of the property agreed to be sold. The 5th respondent has no claim in respect of the property agreed to be sold to the plaintiff and that the 5th respondent has no objection to grant relief to the plaintiff as prayed for in the suit.
5. The 6th defendant filed written statement admitting the execution of sale agreements, but disputed about the handing over of possession and asserted that the suit is barred by time. The plaintiff failed to pay balance sale consideration within the stipulated time of three months from the date of agreement and the time is the essence of the contract. The plaintiff got issued notice dated 08.02.2000 to the defendant Nos.6 and 8, but it was posted on 31.03.2000 under registered post and same was done deliberately to cover up the limitation and same was replied to by notice dated 14.04.2000. It is asserted that after receiving notice dated 14.04.2000 from the defendants, the plaintiff kept quite for about 2 years and issued notice on 06.07.2002, which was replied to by the 6th defendant on 22.07.2002. The plaintiff has not performed his part of the contract and only to cover up latches, anti-date notice was issued. Hence, sought for dismissal of the suit.
6. The defendant No.8 filed memos dated 25.10.2002, 30.03.2005 and 24.04.2006 adopting the Written Statement and additional written statements filed by the Defendant No.6 on 25.10.2002,30.03.2005 and 24.04.2006 respectively.
7. Basing on the above pleadings, the following issues were settled for trial:
i) Whether the plaintiff is entitled for Specific Performance of agreements dated 27.03.1997 and 26.3.1997 directing the defendant Nos.1 to 10 to execute a registered sale deed in favour of plaintiff in respect of suit land?
ii) Whether the time is essence of the contract as pleaded by the defendants, if so whether the plaintiff is not entitled for Specific Performance of agreement of sale as pleaded by him?
iii) Whether the suit filed by the plaintiff is barred by limitation?
iv) Whether the plaintiff is entitled for alternative reliefs of delivery of possession and for refund of Rs.34,80,850/- with interest @ 36% per annum as pleaded in the plaint?
v) To what relief?
8. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and got marked Exs.A1 to A32. On behalf of the contesting defendants, 6th defendant herself examined as D.W.1 and the husband of the 1st defendant himself is examined as D.W.2 and 8th defendant herself is examined as D.W.3 and got exhibited Exs.B1 to B11.
9. After considering both the oral and documentary evidence adduced on both sides, the trial Court dismissed the suit. Aggrieved by the same, present Appeal is filed.
10. Heard Sri Harin P.Raval, learned Senior Counsel appearing for Sri N.Vasudeva Reddy, learned counsel for the plaintiff, Sri Dadi Radhakrishna, learned counsel for 5th respondent and Sri E.Ajay Reddy, learned counsel appearing for Sri Sampath Prabhakar Reddy, learned counsel for the defendant Nos.6 and 8.
11. Though notices are served on the other respondents i.e., respondent Nos. 2,3,4,7,9,10,11,12 & 13, there is no representation on their behalf.
On the request of the learned counsel for the parties, Appeal Suit is taken up for final hearing along with W.P.No.13334 of 2020 when it came up for hearing, as learned counsels requested for hearing of Appeal Suit itself, as the issue between the parties will be resolved finally instead of in peace meal.
12. Sri Harin P.Raval, learned Senior Counsel made the following submissions; that the suit was filed basing on Exs.A4 and A5 agreements of sale, but no time is fixed for performance of the contract. The three months time stipulated under Clause 3 of the agreement was with regard to payment of sale consideration amount by the plaintiff and also for production of required permissions and certificate from the concerned authorities, by the defendants. The reason for not stipulating the time for performance of the contract under Exs.A4 and A5 and registration of sale deeds is transaction dependant on the production of required permissions/documents to be obtained by the defendant, as such, no time is fixed for performance of the contract. Plaintiff was always ready and willing to perform his part of the contract, but it is the defendants who failed to obtain necessary permissions from the concerned authorities, which is prerequisite for registering the suit schedule property in favour of the plaintiff. The plaintiff has deposited an amount of Rs.5,39,150/- into the Court which is balance amount of sale consideration under Exs.A4 and A5, as such, nothing remains to be performed by the plaintiff under those agreements. Time is not the essence of contract and the limitation period of three years would commence from the date of refusal for the performance of the contract by the defendants i.e., under Ex.B3-reply notice dt.14.04.2000 and 22.07.2002 under Ex.A9 (and Ex.B6). Instant suit is filed on 30.07.2002 i.e. within a period of three years from date of refusal of contract by the defendants which is in accordance with second limb of Article-54 of the Limitation Act. In support of his contention he relied on the Judgment of Hon’ble Supreme Court in Ahmed Saheb Abdul Mulla v. Bibijan [(2009) 5 SCC 462). Even though the plaintiff has fulfilled the obligations under Exs.A4 and A5, the trial Court erroneously dismissed the suit on the ground that no possession was delivered. The 5th defendant herself admitted in her pleadings that possession was delivered to the petitioner which is not challenged by the other defendants 6 and 8. The Specific Performance relief is no more an equity relief for the Courts to exercise discretion either to grant or refuse the relief by virtue of amendment to Section 10 of the Specific Relief Act, 1963 (Act 18 of 2018). In support of his contention he relied on the Judgment of Hon’ble Supreme Court in B.Santoshamma v. D.Sarla (Civil Appeal No.3574 of 2009, dt.18.09.2020). The agreements Exs.A4 and A5 are basically between the plaintiff and defendant Nos.1 to 4-the land owners and the defendant Nos.6 and 8 are the agents of the defendants 1 to 4 who are bound to transfer title of the suit schedule property on behalf of land owners to the plaintiff. The defendants 6 and 8 having received the amount of Rs.34,80,850/- towards sale consideration from the plaintiff in the year 1997, never exercised the right to forfeit the advance amount after expiry of 3 months period. When the purchaser paid substantial amount as advance towards sale consideration the same is not liable for forfeiture. In support of his contention he relied on the Judgment reported in Balasaheb Dayandeo Naik v. Appasaheb Dattatraya Pawar [2008 (4) SCC 464]. The defendants 6 and 8 having received 90% of sale consideration, failed to discharge their obligations under the contract no prejudice would be caused by decreeing the suit for specific performance. Registration of the property in favour of the plaintiff would be possible only if the defendants 6 and 8 performed their part of the obligations under clause-3 of the contract by producing relevant and necessary permissions from the concerned authorities within a period of 3 months. When the suit is filed within limitation, relief of specific performance cannot be refused on the ground that suit is not filed immediately, inasmuch as period of limitation is sanctioned by the statute of Limitation Act. In support of his contention he relied on the Judgment reported in R.Lakshmi Kantham v. Deviraji [2019 (8) SCC 62]. The name of the plaintiff is also reflected in ‘pahani patrikas’ in possessor column. The revision filed by 6th defendant under Section 9 of the A.P.Rights Land and Pattadar Pass Books Act, 1971, against the orders of Revenue Divisional Officer, Chevalla, dated 14.09.2007 before the Joint Collector, R.R.District in Case No.D1/1086/2008 was dismissed. He further submits that during the pendency of the Appeal the defendants 6 and 8 have entered into registered agreement of sale-cum-GPA in favour of third parties which is under challenge in W.P.No.13334 of 2020. The plaintiff has fulfilled his obligation under suit agreements and the suit is within limitation. The trial Court has rightly held that the time is not the essence of the contract, basing on the oral and documentary evidence as well as on the law laid down by the Hon’ble Apex Court and such finding cannot be interfered with, as the defendants have not filed any cross-objections under Order 41 Rule 22 of CPC. In support of his contention, he relied on the judgment reported in 2019 SCC online SC 1009 and also Banarsi v. Ram Phal [2003 (3) SCC 606] and State of A.P. v. B. Ranga Reddy, (2020) 15 SCC 681 : 2019 SCC OnLine SC 1009.
13. On the other hand Sri E.Ajay Reddy, learned counsel for the defendants 6 and 8 submits that the Trial Court erred in holding that the time is not the essence of the contract. Payment of balance sale consideration within three months is mandatory and failure thereof will automatically result in forfeiture of the amounts paid and cancellation of suit agreements, as such, time is the essence of contract. In support of his contention he relied on the Judgment reported in Syed Quadri v. Syed Mujeebuddin [2009 (5) ALD 682 (DB)]. If the defendants failed to produce necessary certificates the agreements would automatically get cancelled, as such, the defendants did not issue any notice in that regard. Plaintiff was not ready and willing to perform its part of the obligation under Exs.A4 and A5, as such, he is not entitled for the relief of specific performance. Grant of relief of specific performance is the discretion of court and an equitable relief and that continuous readiness and willingness on the part of the plaintiff is a condition precedent for grant of the relief of specific performance. The trial Court has rightly not exercised the discretion for grant of specific performance and same cannot be faulted. In support of his contention he relied on the Judgment of the Apex Court in N.P.Thirugnanam (dead) by LRs v. Dr.R.Jagan Mohan Rao and others [(1995) 5 SCC 115]. The trial Court basing on the conduct of plaintiff refused to grant relief of specific performance. In support of his contention he relied on the Judgment of the High Court of Delhi in Smt. Raj Rani Bhasin & Others v. S.Kartar Singh Mehta [1975 SCC Online Del 4]. Plaintiff has not come to the Court with clean hands, as such, he is not entitled to the relief sought for. Plaintiff was never in possession of the suit schedule property, but he managed the Mandal Revenue Inspector and has incorporated it’s name in possession column of the revenue records, however, the plaintiff failed to prove its continuous possession over the suit schedule property, as such, he is not entitled for the relief claimed. In support of his contention he relied on the Judgment in Maria Margarida Sequeira Fernandes & others v. Erasmo Jack De Sequeira (dead) through L.Rs. [(2012) 5 SCC 370]. Plaintiff issued notice dated 08.02.2000 and sent on 31.03.2000 with antedate to cover up the latches to bring suit within limitation. The suit filed by the plaintiff is barred by limitation, as such, the same is liable to be dismissed on that ground alone. An amended Section 10 of the Specific Relief Act is prospective in nature and does apply to present suit. In support of his contention he relied on the Judgment rendered by the Division bench of the High Court at Bangalore in M.Suresh v. Mahadevamma & others [MANU/KA/3963/2020] and Shon Randhwa v. Ramesh Vanal [MANU/DE/1977/2020]. Clause 3 of both the agreements used the words ‘from this date’ which means from the date of the agreement, as such, no exception can be taken.
14. Sri Dadi Radhakrishna, learned counsel for the 5th respondent supported the case of the plaintiff stating that she has no claim in respect of the property agreed to be sold to the plaintiff; that the plaintiff was put in possession of the suit schedule property and that she has no objection if the relief is granted in favour of the plaintiff.
15. Basing on rival contentions of both the parties, the following points that emerge for consideration by this Court are:
1) Whether the suit is barred by limitation?
2) Whether the plaintiff proved it’s possession over the suit schedule property?
3) Whether the plaintiff was ready and willing to perform his part of the contract and paid balance sale consideration within the stipulated time in the suit agreements?
4) Whether the trial court is right in holding that the time is not the essence of the contract and whether the same can be attacked by the defendants without filing cross-objections?
5) Whether the trial court is right in not exercising its discretion for granting relief of specific performance?
6) Whether Section 10 of the Act as substituted by Act 18 of 2018 is prospective or retrospective in nature?
7) To what relief?
16. ADMITTED FACTS:
The plaintiff is a private limited company, having its registered office at Hyderabad. The defendant Nos.5 to 10 purchased an extent of Acs.127.27 gts out of Acs.148-05 gts from the defendant Nos.1 to 4 and late Debbad Narayana by way of agreement of sale dated 19.03.1994. The defendant Nos.5 to 10 obtained two registered GPAs dated 28.03.1994 in favour of defendant Nos.5 & 6 for an extent of Acs.127.27 gts from defendant Nos.1 to 4 and Debbad Narayana. In pursuance of agreement of sale dated 19.03.1994 along with registered G.P.As, the defendants executed two agreement of sales dated 26.03.997 (Ex.A5) for an extent of Acs.38.15 gts for total consideration of Rs.38,37,500/- and 27.03.1997 (Ex.A4) for an extent of Ac.1.33 gts for total consideration of Rs.1,82,500/- totaling Acs.40.08 gts. There is no dispute about the location and identity of the property. The defendant Nos.5 & 6 signed Ex.A5 agreement of sale dated 26.03.1997 as GPA holders of original owners and also as agreement holders i.e., defendant Nos.7 to 10.
17. POINT No.1: Whether the suit is barred by limitation?
Though the trial Court decided the issue of limitation as the last issue, since it goes to the root of the matter, the same is taken up at the first instance.
Filing of suits for specific performance is provided under Article 54 of the Limitation Act. For the sake of convenience, the same is extracted for ready reference:
"For specific performance of a contract -- three years -- The date fixed for the performance, or if no such dated is fixed, when the plaintiff has notice that performance is refused."
As per the above Article, the period of limitation for specific performance of a contract is three years and under the said Article, there are two alternative points of time which would be starting point for limitation -One from the date fixed for the performance of the contract; and another, if date is not fixed, when the plaintiff had noticed that the performance was refused by the other party.
18. The next question that arises is whether the first part or the second part of Article 54 of the Limitation Act would apply to the transaction in question. A careful reading of the various decisions reveals that if the date for the performance of agreement is fixed then the first part of Article 54 of the Limitation Act would apply and if no date has been fixed, then the second part of Article 54 of the Limitation Act would apply.
19. Now, in the present case, we have to examine the suit agreements of sale i.e., Exs.A4 and A5, whether any date is fixed for performance of the agreements. Clause 3 of the suit agreements are extracted for ready reference as under:
“3. The purchaser shall pay a sum of Rs.27,07,500/- (Rupees Twenty Seven lakhs seven thousand five hundred only) towards the balance sale consideration within three months from this date to the parties of the second part herein and if the purchaser does not honour to pay the balance sale consideration of Rs.27,07,500/-(Rupees twenty seven lakhs seven thousand five hundred only) within a period of three months from the date of this date, the advance amount paid will be forfeited and this agreement of sale will be cancelled if the vendors fail to furnish the non-encumbrance certificate, income tax exemption certificate, agricultural certificates to the purchaser within three months.”
It is to be seen that Clause 3 of the suit agreements has two limbs. The first limb of clause 3 speaks about plaintiff’s obligation to pay the balance sale consideration within a period of three months of the agreement and consequence of failure to pay the sale consideration within time is that the advanced amount paid by the plaintiff will be forfeited. Admittedly, no calendar date is fixed for its performance, but the payment of total sale consideration to be made within three months from the date of agreements. Obviously the performance of the suit agreement can be done only after obtaining necessary certificates/permissions by the defendants 6 & 8. Thus, it is to be presumed that unless and until the defendants produce the certificates/permissions from the competent authorities, the registration of the property could not be completed. Though it is vehemently contended by the learned counsel for the defendants 6 & 8 that the plaintiff had not paid the total sale consideration within the stipulated time, but the defendants have not exercised the option of forfeiting the advance amount paid as per clause 3 of the suit agreement.
20. The second limb of the same clause speaks about the defendants’ obligation to obtain and produce the required permissions/certificates from the concerned authorities for completing the registration process in favour of the plaintiff and consequences of failure to produce the required permissions/certificates contemplates that the agreement will be cancelled. But neither the plaintiff nor defendants have exercised the option of cancelling the suit agreements. The trial Court has not understood the distinction between the time fixed for payment of sale consideration and time for performance of the contract and on wrong premise, came to the conclusion that the time fixed for payment of balance sale consideration is time for performance of the agreement and applied first limb of Article 54 of Limitation Act, which is erroneous.
21. The performance of the contract is dependent upon the factum of furnishing the documents mentioned under Exs.A4 and A5 by the defendants 6 & 8 and that is the reason, as rightly contended by the learned Senior Counsel appearing for the plaintiff that the date for specific performance of the agreement is not fixed. The distinction made thereon by the learned Senior Counsel that there is difference between the date for specific performance of the contract and date for payment of the amount is also not noticed by the trial court in coming to the conclusion that first part of the article 54 of the Limitation Act applies, as such, the basic assumption of the trial Court about application of part I of Article 54, is erroneous. When no date is fixed for performance, obviously, the second limb of the Article 54 of the Limitation Act applies i.e., the limitation starts from the date of refusal of the performance.
22. Insofar as notice is concerned, the plaintiff issued notice on 08.02.2000 (Ex.A6) and sent it on 31.03.2000 to the defendants 6 & 8 and the defendants 6 & 8 replied on 14.04.2000 (Ex.B3) refusing the performance of the contract. Thereafter, the plaintiff again issued notice on 06.07.2002 (Ex.A7) and same was replied to by the defendants 6 & 8 on 22.07.2002 (Ex.B6) refusing to perform the contract. The suit is filed on 30.07.2002 vide SR No.7353/2002 i.e., from the date of first refusal on 14.04.2000 vide Ex.B3 i.e., within a period of three years from the date of refusal of the performance by the defendants, as such, same is within limitation as per second limb of Article 54 of the Limitation Act. The trial Court found fault with the plaintiff for sending notice dated 08.02.2000 on 31.03.2000 on the premise that the plaintiff deliberately ante dated the same to bring the suit within limitation, which is erroneous. When no date is fixed in the suit agreement for permanence of the contract, three years period of limitation commences from the date of refusal for performance of the contract by the defendants, as per Article 54 of the Limitation Act, 1963. The trial Court without considering the said aspect dismissed the suit on the ground that the suit is barred by limitation, which is erroneous and without application of mind, contrary to the facts and statutory provision.
23. That apart, the trial court while deciding the issue of limitation in Issue No.3 also gone into the conduct of the plaintiff stating that the plaintiff has not approached the Court with clean hands and that the plaintiff deliberately sent the first notice mentioning the date of 08.02.2000, though it is sent on 31.03.2000 to bring the suit within limitation, as the suit agreements are dated 26.03.1997 and 27.03.1997. As no date is fixed for performance in the contract as held supra, the limitation would start only from the date of refusal, it does not make any difference, even if the notice is dated 08.02.2000 or 31.03.2000, since from the date of refusal i.e, 14.04.2000, the suit is filed much before three years, as such, the finding of the trial court on this aspect is erroneous and without application of mind. The trial Court while dealing with the limitation aspect found fault with the plaintiff in not filing the suit immediately after issuing Ex.A7 dated 06.07.2002 and on immediately receiving Ex.B6. However, the trial Court mistakenly found that the suit is filed on 09.08.2002 by holding that the suit is filed after issuing Ex.A7, whereas the decree specifically mentions that the suit is filed on 30.07.2002 and numbered on 09.08.2002, which also goes to show that the finding of the trial Court that the suit is filed on 09.08.2002 is erroneous and without application of mind.
24. As rightly contended by the learned Senior Counsel for the plaintiff that the expression i.e., the date fixed under Article 54 of the Schedule II of the Limitation Act is suggestive of a specified date in the calendar, but no specific calendar date is mentioned for performance of the contract in the present suit agreements except fixing date of payment. When no definite date for specific performance is fixed in contract first part of Article 54 would not apply and limitation period of 3 years would commence from date when refusal of performance comes to notice of plaintiff as per second limb of Article 54 of the Limitation Act (See. Ahmed Saheb Abdul Mulla v. Bibijan [2009 (5) SCC 462, Madina Begum & another vs. Shiva Murti Prasad Pandey (2016 (15) SCC 322)] and Rathnavati v. Kavita Ganshamdas [2015 (5) SCC 223. Therefore, the contention of learned counsel for defendants 6 & 8 that the trial Court was right in holding that the first limb of Article 54 of Limitation Act applies to the case on hand, as such, the suit is filed after a period of three years from the date of performance of the contract, cannot be accepted. In view of above facts and circumstances, the suit is filed within limitation and the issue is decided in favour of the plaintiff and against defendants.
25.Point No.2. Whether the plaintiff proved it’s possession over the suit schedule property?
As far as plea of plaintiff that he is in possession of the suit schedule property is concerned, the trial Court found that he has taken a false plea, as such, his conduct disentitles him for grant of equitable discretionary relief of specific performance. The trial Court also expressed doubt about plaintiff’s possession as he asserted in the plaint that he is in possession of the property, but again sought for relief of delivery of possession.
26. Let us examine the evidence of P.W.1. P.W.1 is the Managing Director of plaintiff company. In his chief examination he deposed that the possession of suit schedule property was delivered by the defendants 6 & 8 since 90% of the amount under suit agreements was paid. But the said version of the plaintiff was disbelieved by the trial Court.
27. The trial Court while analyzing the evidence of P.W.1- Managing Director of the plaintiff observed that though he deposed about delivery of possession by the defendants, but it is not specifically pleaded in the plaint or deposed when the plaintiff was put in possession of the property i.e., whether on the date of first agreement of sale or on the second agreement of sale i.e., 26.03.1997 or 27.03.1997 or on subsequent dates of agreements. The trial court also found that the so called development of the suit schedule property was also not proved by the plaintiff. The evidence of P.W.2 was also not believed with regard to handing over of possession of the suit schedule property to the plaintiff by the defendants 6 & 8, which is erroneous. The evidence of P.W.1 cannot be disbelieved on the aspect of possession, since already 90% of the amount under suit agreements was received by the defendants within the stipulated period of three months as per Exs.A4 and A5 in view of following circumstances.
One factor which was not noticed by the trial Court in Exs.A4 and A5 agreements of sales while considering the evidence of P.Ws.1 & 2 on the aspect of possession. Clauses 12, 18 & 23 of Ex.A4 dated 27.03.1997 which reads as follows:
“12. The parties of the first part herein shall handover all the copies of link documents relating to the agreement schedule property to the purchaser immediately.
18. The purchaser is at liberty to obtain permission from the concerned authorities for raising structures, and the parties of the first part herein shall not have any objection for it.”
“23. The purchaser is also at liberty to create mortgage lien, charge in and over the schedule property.”
Similarly, in Ex.A5 suit agreement dated 26.03.1997 clauses 13, 19 & 25 reads as follows:
“13. The parties of the first part and the parties of the second part herein shall handover all the copies of link documents relating to the agreement schedule property to the purchaser immediately.
19. Purchaser is at liberty to obtain permission from the concerned authorities for raising structures, and the parties of the first part and the parties of the second part herein shall not have any objection for it.”
25. The purchaser is also at liberty to create mortgage, lien, charge in and over the schedule property.”
28. A perusal of aforesaid clauses in Exs.A4 and A5 goes to show that the defendants being the vendors have surrendered almost all their rights over the suit schedule property to the plaintiff and also allowed the plaintiff to exercise his rights over the suit schedule property, since substantial amount has been paid by the plaintiff to the defendants. The plaintiff was also permitted to raise structures by obtaining necessary permissions and also allowed the plaintiff to create mortgage, lien, charge in and over the schedule property, which was not at all possible without plaintiff being put in possession of the suit schedule property. It is also pleaded that the name of the plaintiff was also entered into revenue records by virtue of Exs.A31 and 32 i.e., pahanies for the years 2004-2005 and 2005-2006. Even though the trial Court disbelieved Exs.A31 and 32 on the ground that they are not certified copies, but by placing reliance on Exs.B10 and B11 observed that the plaintiff’s name was deleted. It is erroneously observed by the trial Court that since the name of the plaintiff was deleted in Exs.B10 and B11, the plaintiff was not in possession of the property, as such, the trial Court non suited the plaintiff on the ground that he has taken false plea and not approached the court with clean hands. It is pertinent to note herein that in the present Appeal, I.A.No.1 of 2021 is filed under Order 41 Rule 27 of CPC for receiving order dated 11.05.2010 passed by the Joint Collector-II, Ranga Reddy District in proceedings No.D1/1086/08 for receiving additional evidence and for marking the same as Ex.A33 stating that the plaintiff’s company was put in possession of the suit schedule property and same was recorded in the pahanies for the year 2004-05 and 2005-06. However, the respondents 6 and 8, i.e., contesting defendants 6 and 8 made application to the Deputy Collector and Tahsildar, Rajendranagar Mandal, for correcting the entries in possession column. The then Deputy Collector and Tahsildar deleted the name of the plaintiff in possession column vide proceedings No.B/99/07, dated 15.02.2007. Aggrieved thereby, the plaintiff preferred appeal before the Special Deputy Collector and Revenue Divisional Officer, and same was allowed vide proceedings No.C/2251/07, dated 14.09.2007 setting aside the order of the Deputy Collector and Tahsildar, Rajendranagar Mandal, and directed to enter the name of the plaintiff to be restored in the occupation column. Against the same, the defendants 6 & 8 filed statutory revision under Section 9 of ROR Act before the Joint Collector, R.R.District, which was also dismissed, as such, the order of the Special Deputy Collectorcum- RDO, Zonal division, ordering for restoring the entries in the name of the plaintiff company was confirmed. The said aspect has been confronted to defendant No.8 (D.W.3) during the crossexamination in the present suit, which was admitted by her. It is also asserted that the defendants 6 and 8 also relied on those documents which were filed in WP No.13334 of 2020 vide order dated 19.01.2021, goes to show the deletion of the names of the plaintiff in Ex.B10 and B11, but the deletion of name of the plaintiff in Ex.B10 and B11 are based on proceedings No.D/99/07, dated 15.02.2007, but the said proceedings were set aside in appeal by the Special Deputy Collector, RDO, vide proceedings No.C/2251/07, dated 14.09.2007 and same was also confirmed in the revision filed by the defendants 6 & 8 in case No.1086/08, dated 11.05.2010, which fact was admitted by defendant No.8 as D.W.3, which goes to show that finding of the trial Court that the plaintiff is not in possession of the property by virtue of Exs.B10 and B.11, is erroneous. That apart, the defendants have not filed any counter to I.A.No.1 of 21 filed in the Appeal, when such assertions in the affidavit filed in support of I.A.No.1 of 2021 are made, which is allowed without objection, and an order of Joint Collector is marked as Ex.A33 which goes to show that the averments in the affidavit filed in support of I.A.No.1 of 21 are not disputed by the defendants 6 & 8. The entries in revenue records in possession column establish possession of person, if not title.
29. It is pertinent to note here that one more factor which needs to be weighed in favour of the plaintiff is the written statement filed by the 5th defendant, who is one of the parties to the suit agreement. In her written statement, it is categorically admitted that the plaintiff was put in possession of the suit schedule property. That apart, the averment made by the defendant No.5 was never contested/disputed by the contesting defendants 6 and 8 either before the trial court by filing any pleading nor before this Court. The admission made by the defendant no.5 cannot be simply ignored and even in the evidence of defendants as D.Ws.1 to 3, there is no whisper and contest about admission made by the defendant No.5, who is one of the parties to the agreement and also the suit, though the 6th defendant filed written statement and also two additional written statements. These factors also support the version of P.W.1 that the plaintiff was put in possession by the defendants 6 & 8, after substantial amount has been paid by the plaintiff.
30. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. (See Nagindas Ramdas v. Dalpatram Ichharam alias Brijram [(1974) 1 Supreme Court Cases 242].
31. These factors go to show that just because the possession aspect is not mentioned in Exs.A2, A3, A4, A5, A29 and A30 or in the first notice and as no specific dates are not mentioned in evidence of P.W.1, it cannot be said that the plaintiff was not in possession of the suit schedule property. In view of above facts and circumstances, the finding of the trial court on the aspect of possession is erroneous so also the finding of the trial Court that the plaintiff has taken false plea. Even otherwise, in a suit for specific performance, the Courts will always be in seisin of the matter till sale deed is executed and possession is delivered and even after suit for specific performance is decreed, the court is bound to deliver possession to the plaintiff and that aspect will not have any affect for decreeing the suit for specific performance, as the execution of sale deed and registration of same could be followed by delivery of possession, but the trial court dwelled much on that aspect and came to erroneous conclusion without considering the evidence in proper perspective.
32. The delivery of possession is inherent and ancillary to the relief of specific performance of agreement under Section 55 of Transfer of Property Act. Whether the possession of the suit schedule property was delivered or not would be inconsequential issue for the court retains control over the decree till the decree is fully satisfied till the possession of the property is delivered.
33. In Babulal v. Hajarilal Kishorilal [1982(1) SCC 525, the Hon’le Supreme Court held as follows:
“8. In Balmukand v. Veer Chand (AIR 1954 AII 643) the decree for specific performance of a contract of sale was silent as to the relief of delivery of possession even though such relief was claimed in the suit. It was held by the Allahabad High Court that the executing court was still competent to deliver the possession. It was further held that it was not necessary in a suit for specific performance either to separately claim possession nor was it necessary for the court to pass a decree for possession. A decree for specific performance of a contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being governed by section SS of the Transfer of property Act. In Janardan Kishore v. Girdhari Lal(AIR 1957 Pat 701) the Patna High Court took the view that the relief of procession is inherent in a relief for specific performance of contract for lease, and the court executing a decree for specific performance of such a contract can grant possession of the property to the decree-holder even though the decree did not provide for delivery of possession. In Subodh Kumar v. Hiramoni Dasi (AIR1955 Cal 267) the Calcutta High Court took a similar view that the right to recover possession springs out of the contract which was being specifically enforced and not as a result of the execution and completion of the conveyance, and as such the judgment-debtor was bound to deliver possession to the decreeholder.
9. In Mohammed Ali Abdul Chanimomin v. Bishemi Kom Abdulla Saheb Momin(AIR 1973 Mys 131), the Mysore High Court observed that the liability to deliver possession for specific performance was necessarily implied in a decree for specific performance directing the defendant to execute a sale deed on the principle of clause (f) of sub-section of section 55 of the Transfer of property Act, according to which the liability to deliver possession arises immediately upon execution of sale deed unless by agreement the date for delivery of possession is postponed.
10. In this state of the law Legislature intervened and on the basis of the report of the Law Commission enacted section 22 in 1963 as it stands.
11. Section 22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.”
34. Though the learned counsel for the defendants relied on Judgment reported in Maria Margarida Sequeira Fernandes (supra), (2012) 5 Supreme Court Cases 370), the same is not applicable to the facts of the present case on hand, since the plaintiff had averred in the plaint and also lead oral and documentary evidence to show that it was put in possession of the suit schedule property by the defendants. In view of above facts and circumstances, this point is decided in favour of the plaintiff.
35. Point No.3: Whether the plaintiff was ready and willing to perform his part of the contract and paid balance sale consideration within the stipulated time in the suit agreements?
It is categorically pleaded by the plaintiff in the plaint that he is ready and willing to perform his part of the contract, but it is the defendants 6 & 8 who have not come forward for completing the sale transaction by receiving the balance sale consideration. It is an admitted fact that the Exs.A5 and A4 are dated 26.03.1997 and 27.03.1997 respectively and the time fixed for payment of entire sale consideration under clause 3 of agreements, is three months from the date of suit agreements i.e., till 27.06.1997, but the plaintiff paid substantial amount i.e., Rs.34,80,85/- by the end of 15.05.1997, much prior to three months and the said fact is borne out by record. It is also an admitted and proved fact that 90% of the consideration is paid within the stipulated time, which will be elaborately discussed under payment of sale consideration caption. The said clause creates an obligation on the part of the defendants to obtain necessary permissions/certificates from the competent authority within a period of three months. Both the oral and documentary evidence adduced on behalf of plaintiff goes to show that the defendants 6 & 8 have received substantial sale consideration of Rs.38,80,850/- out of total sale consideration of Rs.40,20,000/- under Exs.A4 and A5 within the stipulated period of three months and balance amount of Rs.5,39,150/-, which is a meagre amount, which has also been paid by the plaintiff by way of deposit in the Court to the credit of the suit as per orders dated 09.07.2005 in I.A.No.925/2005 on 11.07.2005. It is also an admitted fact that the plaintiff in his legal notice dated 08.02.2000 has expressed his readiness and willingness to pay the balance consideration of Rs.5,39,150/-.
36. It is pertinent to note that the defendants 6 & 8 not only failed to fulfill their part of the obligation in obtaining the required permissions/certificates from the competent authorities as per Clause 3 of the suit agreements, but also denied the payment of sale consideration of Rs.34, 80, 850/- in reply notice dated 14.04.2000 (Ex.B3), with dishonest intention to defeat the rights of the plaintiff and also avoid performance of the contract.
37. P.W.1 in his evidence categorically stated that from 26.03.1997 up to January, 2000, he has approached the defendant No.6, 4 or 5 times and requested her to execute the sale deed in his favour after receiving balance of sale consideration, but the defendants failed to receive the same. Even a perusal of evidence of P.W.1 goes to show that he approached the defendants for payment of balance sale consideration, but the defendants 6 & 8 refused to receive the same on one pretext or the other and they have also failed to obtain required documents for completion of sale. The sale transaction could not be completed due to fault on the part of the defendants, which was not properly appreciated by the trial Court. After paying 90% of the total sale consideration within the stipulated period of three months (which is admitted by 6th defendant as D.W.1), no person will keep quite and drag on the issue since he will be loser, as such, it cannot be said that plaintiff has not approached the defendants for payment of balance sale consideration. Merely because the plaintiff could not furnish the dates when he approached the defendants while deposing, it cannot be said that he did not approach the defendants for payment of balance consideration.
38. Though the defendant Nos.6 and 8 dispute the payment of sale consideration of Rs.34,80,550/- in the additional written statement and also in the chief examination, but the defendant No.6 as D.W.1 admitted in the cross-examination as follows:
“It is true that o the date of Ex.A5 we received Rs.5,30,000/- in cash and Rs.6,00,000/- by way of cheque as advance money. It is true that myself Defendant No.8 passed Exhibit A3 receipts for the said amount of Rs.5,30,000/- and Rs.6,00,000/-. It is true that cheque of Rs.6,00,000/- for which exhibit A3 receipt was issued was cleared. ……..It is true that the cheque No.659066 dated 15.05.1997 mentioned in exhibit B9 was for a sum of Rs.13,00,000/- for which we issued exhibit A28 receipt on 26-3-1997. It is true that the plaintiff issued cheque bearing No.659058 dated 2-4-1997 for Rs.5,40,000/- on 26-3-1997 for which we issued exhibit A2 receipt. It is true that the plaintiff paid a sum of Rs.5,00,000/- through D.D.No.402548 dated 9-4-1997. It is true that exhibit A2, A3, A28, A29 receipts were issued towards exhibit A5 agreement of sale.
It is true that we received Rs.10,850/- towards advance money for exhibit A4 agreement of sale and for the said sum we issued exhibit A30 receipt ………..It is true that we encashed Rs.5,00,000/- paid through DD No.402548 dated 9-4-1997 covered by exhibit A29 receipt.”
39. The trial Court only on the ground that the plaintiff has not given specific dates when he approached the defendants for payment of balance sale consideration, disbelieved the version of P.W.1, which is erroneous. By dragging on the issue, plaintiff will not be benefited as he parted with 90% of the amount and it is the defendants who have received 90% of the sale consideration in the year 1997, have benefitted. The finding of the trial Court that the defendants have falsely pleaded that they are ready with the certificates, goes to show that the defendants were never ready to perform their part of the contract is also a factor which needs to be considered against defendants 6 & 8.
40. It is also pertinent to note about categorical admission by the defendants 6 & 8 that they have not obtained certificates and documents for completing the sale transaction. But the defendants 6 & 8 pleaded that they have obtained necessary documents both in the written statements and also in the evidence. In the cross-examination that version of D.W.1 is dismantled and trial Court also comes to the conclusion that the defendants without obtaining documents and certificates simply pleaded that they are ready with the certificates. However, that finding is not attacked in this appeal, which goes to show that the defendants are at fault in not obtaining certificates for fulfilling their part of the contract, though the plaintiff paid 90% of the sale consideration requesting the defendants 6 & 8 to receive the balance sale consideration.
41. While evaluating the plaintiff’s readiness and willingness it is also necessary to test the conduct of the defendants 6 & 8 in performing their obligations, since they have not obtained any documents for completing the sale transaction. That apart, to show his bonafides, the plaintiff has filed I.A.No.925 of 2005 for permission to deposit balance sale consideration of Rs.5,39,150/- and same was ordered and became final, which also goes to show that the plaintiff not only ready and willing to perform the contract, but also has shown bonafides by depositing the balance sale consideration in to the court. The said facts are not disputed by the defendants 6 & 8 either in the suit or in the appeal. In view of all these circumstances, the oral evidence of P.W.1 that he approached the defendants for performance of the contract, cannot be disbelieved. That apart, no sane person will keep quite and drag on the issue for payment of balance of 10% of total sale consideration. All these factors go to show that the plaintiff was ready and willing to perform his part of the contract in depositing the balance sale consideration.
42. The expression “readiness and willingness” has been the subject matter of interpretation in many cases even prior to its insertion in Section 16(c) of the Specific Relief Act, 1963. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness. [See Kanthamani v. Nasreen Ahmed [(2017) 4 Supreme Court Cases 654 and Bank of India Ltd., v. Jamsetji A.H.Chinoy [1949 SCC online PC 81:AIR 1950 PC 90].
43. In Syed Dastagir v. T.R.Gopalakrishna Setty [(1999) 6 Supreme Court Cases 337], the Hon’ble Apex Court held as follows:
“11. Section 16(c) of the Specific Relief Act, 1963 is quoted hereunder:-
16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person –
(a) xxx xxx xxx
(b) xxx xxx xxx]
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation. - For the purposes of clause (c), -
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
“It is significant that this explanation carves out contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. This speaks in negative term what is not essential for plaintiff to do. This is more in support of plaintiff that he need not tender to the defendant or deposit in Court any money but the plaintiff must (as per explanation ii) at least aver his performance or readiness and willingness to perform his part of the contract. This does not mean that unless the court directs the plaintiff cannot tender the amount to the defendant or deposit in the Court. Plaintiff can always tender the amount to the defendant or deposit it in court, towards performance of his obligation under the contract. Such tender rather exhibits willingness of the plaintiff to perform his part of the obligation. What is not essential only means need not do but does not mean he cannot do so. Hence, when the plaintiff has tendered the balance amount of Rs.120/- in court even without courts order it cannot be construed adversely against the plaintiff under explanation (i). Hence, we do not find any merit in the submission of the learned counsel for the respondents.
In interpreting a pleading wherever there be two possible interpretations, then the one which defeats justice should be rejected and the one which sub-serve to justice should be accepted.
It was held in the case of Ramesh Chandra v. Chuni Lal, AIR 1971 SC 1238, that readiness and willingness cannot be treated as a strait-jacket formula. This have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. Finally, we have no hesitation to hold that the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of obligation under the contract but by tendering total amount shows he has performed his part of the obligation. We also construe such a plea to be a plea of readiness and willingness as required under Section 16 (c).”
44. Following the aforesaid judgment, the Hon’ble Supreme Court in Motilal Jain v. Ramdasi Devi [(2000) 6 SCC 420], held as follows:
“It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.”
45. Learned counsel for the defendants 6 & 8 relied on the judgment of Hon’ble Supreme Court in Smt. Raj Rani Bhasin v. S.Kartar Singh Mehta [AIR 1975 Delhi 137] stating that though the plaintiff was having the capacity to pay entire sale consideration under suit agreements, but failed pay the same within the stipulated period of three months. He submits that there is a distinction between readiness to perform the contract and willingness to perform the contract and the plaintiff’s conduct has to be taken into consideration in this regard. There is no dispute with regard to the principle laid down in the aforesaid judgment, but the same is not applicable to the facts and circumstances of the case on hand, as in the instant case, as already supra, the plaintiff was always ready and willing to perform his part of the contract, but it is the defendants, who avoided to perform their part of the contract.
46. The judgment relied on by the learned counsel for the defendants 6 & 8 in Bal Krishna v. Bhagwandas (dead) by LRs [(2008) 12 Supreme Court Cases 145) stating that specific performance of contract cannot be enforced in favour of a person who fails to aver and prove his readiness and willingness to perform he essential terms of the contract. The said decision is not applicable to the facts and circumstances of the case on hand since as already stated supra, the plaintiff pleaded and proved about his readiness and willingness to perform his part of the contract.
47. PAYMENT OF SALE CONSIDERATION:
It is the specific contention of the plaintiff that he had paid Rs.34,80,850/- within the stipulated period of three months under Exs.A4 and A5. It is also categorically stated in the evidence of P.W.1 that the plaintiff paid the said amount and also deposited an amount of Rs.5,39,150/- vide orders dated 09.07.2005 in I.A.No.925 of 2005 on 11.07.2005.
48. Ex.A2 is the receipt dated 26.03.1997 for Rs.5,40,000/- paid by way of cheque bearing No.659058 dated 02.04.1997 (post dated cheque handed over to the defendants on 26.03.1997). Ex.A3 is the receipt for Rs.11,30,000/- (i.e.,for Rs.5,30,000/- by way of cash) and cheque bearing No.659056 for Rs.6,00,000/- dated 26.03.1997. Ex.A28 is the receipt for Rs.13,00,000/- by way of cheque bearing No.659066 dated 15.05.1997, which was delivered on 26.03.1997. Ex.A29 is the receipt for demand draft for Rs.5,00,000/- bearing No.402548 dated 09.04.1997 in the place of cheque bearing No.659057. Thus, in all the plaintiff paid Rs.34,70,000/- to the defendants 6 & 8.
49. It is to be seen that in the place of bounced cheque No. 659057, dated 02.04.1997, the plaintiff issued D.D.No.402548, dated 09.04.1997 is drawn on Canara Bank, Gandhinagar Branch. Ex.A29 is the receipt dated 09.04.1997 issued by the 6th defendant, which was also admitted by her in her deposition. The 6th defendant in her deposition as D.W.1 admitted regarding payments in the cross-examination and in further cross-examination also admitted that balance amount of Rs.5,39,150/- was deposited in the Court to the suit credit. The 6th and 8th defendants clearly admitted above aspect in their written arguments. But the trial court, without considering the cross-examination of D.W.1 and written arguments filed by the defendants 6 and 8, came to erroneous conclusion that the plaintiff has taken false plea that it has paid Rs.34,70,000/-and erroneously came to the conclusion that the plaintiff paid only Rs.29,30,000/-. The trial Court non suited the plaintiff for grant of specific performance on the ground that the plaintiff has taken false plea with regard to payment of amount, which is erroneous and without application of mind. The trial Court in para 53, though referred to evidence of D.W.1 and her admission of receipt of Rs.5,00,000/- in her cross examination, but still held that the plaintiff has not paid amount, as pleaded, as such, said finding of the trial Court is perverse. The trial Court failed to look into the cross-examination and written arguments while coming to the conclusion, which is totally erroneous. When important property rights are involved, the trial court in casual manner, without looking into the admission of the parties either in the evidence or in the written arguments, rendered finding. In view of above facts and circumstances, it is clear that the plaintiff paid an amount of Rs.34,80,850/- within three months from the date of suit agreement Ex.A5 i.e., 26.03.1997 and offered to pay balance sale consideration, but defendants failed to receive the same, as such, deposited into Court.
50. Though learned counsel for defendants relied in cases of K.S.Vidyanandam v. Vairavan (1997) 3 Supreme Court Cases 1, N.P.Thirugnanam (dead) by LRs. Dr.R.Jagan Mohan Rao[(1995) 5 Supreme Court Cases 115 and Saradamani Kandappan v. S.Rajalakshmi (2011) 12 Supreme Court Cases 18) and contended that time limit prescribed by the parties in the agreement have to be considered while exercising discretion to grant specific performance, but absolutely there is no dispute regarding said proposition, but in the present case, after going through the oral and documentary evidence, and after seeing the conduct of the defendants, this Court is of the opinion that the plaintiff is ready and willing to perform his part of the contract and in fact, as he paid 90% of the sale consideration within the stipulated period and deposited balance sale consideration into Court, unlike in the judgments referred to supra, as such, said judgments cannot come to the rescue of the defendants. It is well settled law that the judgments cannot be construed as statutes. In Amar Nath Om Prakash v. State of Punjab, (1985) 1 SCC 345), the Hon’ble Supreme Court held as follows:
“10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P [(1983) 4 SCC 353 : AIR 1983 SC 1246] with which we must express our agreement, It was said: (SCC p. 377, para 27)
“With utmost respect, these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of a statute. These observations must be read in the context in which they appear.”
We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737, 761 : (1951)-2 All ER 1, 14 (HL)] Lord MacDermott observed:
“The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....
In Home Office v. Dorset Yacht Co. Ltd. [(1970) 2 All ER 294 : (1970) 2 WLR 1140 : 1970 AC 1004 (HL)] Lord Reid said:
“Lord Atkin's speech [Donoghue v. Stevension, 1932 All ER Rep 1, 11 : 1932 AC 562, 580 : 101 LJPC 119 : 147 LT 281 (HL)] ... is not to be treated as if it was a statutory definition. It will require qualification in new circumstances.”
Megarry, J. in (1971) 1 WLR 1062 observed:
“One must not, of course, construe even a reserved judgment of even
Russell, L.J. as if it were an Act of Parliament.”
And, in Herrington v. British Railways Board [(1972) 2 WLR 537 : (1972) 1 All Er 749 : 1972 AC 877 (HL)] Lord Morris said:
“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.”
51. The other aspect on which the trial court non suited the plaintiff is that the plaintiff has not filed the suit immediately after reply notice dated 14.04.2000, but the suit filed is within limitation. Mere delay in filing of suit after occurrence of cause of action, cannot be inferred against plaintiff when he was ready and willing to perform his part, if suit was filed within period of limitation. (See R.Lakshmi Kantham v. Devaraji (2019) 8 SCC 62), which is followed by the judgment of Hon’ble Supreme Court in the case of Mademsetty Satyanarayana v. G.Yelloji Rao [AIR 1965 SC 1405). In view of above facts and circumstances, this point is held in favour of plaintiff.
52.Point Nos.4: Whether the trial court is right in holding that the time is not the essence of the contract and whether the same can be attacked by the defendants without filing cross-objections?
Since the learned Senior Counsel for the plaintiff has raised an objection that the defendants cannot attack findings that the time is not the essence of the contract by the trial Court, without filing any cross-objections under Order 41 Rule 22 CPC, that issue needs to be dealt with.
53. The issue is no longer res integra as the Hon’ble Apex Court considered the same in Banarsi v. Ram Phal reported in [(2003) 9 Supreme Court Cases 606], and held as follows:
8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal,  3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd.,  3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and Ors.,  2 SCC 393. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.
9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file cross objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Deputy Collector. Ahmednagar and Anr.,  1 SCR 146 that the right given to a respondent in an appeal to file cross objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross objection though certain finding may be against him. Appeal and cross-objection - both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was well-settled position of law under the unamended CPC.
10. CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:-
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent;
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent;
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to & finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In preamendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”
54. In State of A.P. v. B. Ranga Reddy, (2020) 15 SCC 681 : 2019 SCC OnLine SC 1009, the Hon’ble Supreme Court held as follows:
“36. Another judgment referred to by Mr Dave is Nirmala Bala Ghose [Nirmala Bala Ghose v. Balai Chand Ghose, (1965) 3 SCR 550 : AIR 1965 SC 1874] . In the said case, the decree against deity had attained finality in two suits. It was held that it is not open to another defendant to challenge the decree insofar as it is against deities. The Court has held as under: (AIR pp. 1883-84, para 22) “22. In this appeal, the two deities are also impleaded as party respondents. But the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed, Ext. 11 upon Nirmala are not affected by the decree of the trial court. She is not seeking in this appeal to claim a mere exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the trial court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under Order 41 Rule 33 of the Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Order 41 Rule 33, insofar as it is material, provides:
‘33. Power of court of appeal.—The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:’
The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the Court appealed from.”
37. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendant State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order 41 Rule 22 of the Code but such filing of crossobjections is not necessary to dispute the findings recorded on Issue 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order 41 Rule 33 of the Code, the appellate court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.”
A reading of the aforesaid judgments would go to show that the party to the appeal can attack the findings which are against it without filing cross-objections under Order 41 Rule 22 CPC. The only additional benefit that is accrued on filing the crossobjections is that even if appellant withdraws the appeal, still the other party can maintain the cross-objections and if the other party does not file cross-objections, then it loses that benefit when the appellant withdraws the appeal.
55. Now let us examine the finding of the trial Court. It is the evidence of D.W.1 that as per clause 3 of the suit agreements, three months time is stipulated for payment of the entire sale consideration and in default, the advance amount would be forfeited. A perusal of evidence of D.W.1 during cross-examination goes to show that the time was not the essence of the contract in Exs.A4 and A5 but it is admitted by her that they have agreed to the effect that within three months entire amount should be paid. D.W.2 is the husband of D.W.1 who deposed that they have agreed that the time should be the essence of the contract, as such, clause 3 was incorporated that the balance of sale consideration should be paid positively within three months, failing which the agreement stands cancelled and the advance amount forfeited. D.W.3 who is the defendant No.8 also deposed on the same lines as that of D.Ws.1 & 2. Except assertions of the defendants that the time is the essence of the contract, but suit agreements does not contain the clause that the time is the essence of the contract. Even if it is mentioned that time is the essence of the contract, but it will not be a determining factor for coming to the conclusion that time is the essence of the contract. The Hon’ble Apex Court by referring to several judgments in Smt.Chand Rani (Dead) by LRs v. Smt.Kamal Rani [AIR 1993 Supreme Court 1742} held that in the case of immovable property, normally time will not be the essence of the contract unless specifically intended and the conduct of the parties has to be considered whether they have treated or considered the time is essence of the contract so also in Dr.T.M.Jayarama Reddy v. Bingi Sreeramaiah Chetty [2000(4) ALT 81(DB)].
56. The trial Court recorded the contentions of the counsel for defendants 6 & 8 and accepted that the time is not the essence of the contract, unless it is specifically provided. The trial court by relying on Clause 3 of the suit agreement held that the liability is also fixed on the defendants to submit non encumbrance certificate, income tax exemption certificate, agricultural ceiling exemption certificate to the purchaser within three months and the said clause has two paras i.e., the purchaser has to pay respective balance sale consideration amount within three months and if he fails to pay the same, the agreement stands cancelled and advance amount will be forfeited. The consequence of non payment of the amount within three months by the plaintiff is also mentioned, but the consequence of non furnishing necessary certificates/documents by the defendants within the stipulated time is not mentioned. By relying on such averments, the trial court came to the conclusion that the time is not the essence of the contract. It is observed by the trial Court from the evidence of D.Ws.1 to 3, that no notices were issued by them to the plaintiff appraising clause 3 of the suit agreement nor they have issued any notice stating that they are ready with the necessary documents fulfilling their obligations. Even in the reply notice issued by the defendants also it is not mentioned anything expressing that the time is the essence of the contract, as rightly found by the trial court. Therefore, the burden is on the defendants 6 & 8 to prove that the time is the essence of the contract. The defendants failed to prove that the time is the essence of the contract.
57. Another factor which weighs against the defendants that the time is not the essence of the contract is that though there is a clause to the effect that if the consideration is not paid within three months, advance amount will be forfeited and agreements will be cancelled, they have neither issued any notice for cancellation of the agreement nor for forfeiting the advance amount of deposits. The trial Court found that the evidence is lacking on the side of the defendants 6 & 8 in proving their contention that the time is the essence of the contract. We find that trial court elaborately discussed the issue by relying on judgment, as such, we do not see any reason to differ from the same.
58. In Balasaheb Dayandeo Naik (Dead) through LRs v. Appasaheb Dttatraya Pawar (2008) 4 SCC 464), wherein the Hon’ble Supreme Court held as follows:
“9) In order to find an answer to the above questions, it would be useful to refer the relevant recitals from the agreement of sale. Para 3 of the agreement specifically mentions the details of the land sought to be sold such as extent and boundaries. It also refers the easement rights and the period in which the sale has to be completed. The recital reads as under:-
“From the total consideration I have received Rs.20,000/- as an earnest money of which no independent receipt is necessary. Rest of the amount is to be paid by you at the time of sale deed of the said lands. It is agreed between the parties that the sale deed is to be executed within 6 months from today. Possession of the land is to be handed over at the time of sale deed.”
It is also relevant to mention the default clause which reads as under:-
“For completion of the sale deed the permission is required to be obtained by me. If I fail to execute the said deed within stipulated period then you have to get it executed on the basis of this agreement. On the contrary if you fail to get execute the sale deed then this agreement is supposed to be cancelled and the earnest amount will be forfeited. The land is free from all sorts of encumbrances. This agreement is binding on myself and my legal heirs etc. dated 31/7/1985.”
The above-mentioned details in the agreement of sale clearly show a) that the subject-matter of the property is an agricultural land/immoveable properties b) the sale deed is to be executed within six months from the date of sale agreement i.e. 31.07.1985. c) possession of the land to be handed over at the time of execution of sale deed d) failure to get execute the sale deed, the earnest money will be forfeited. With these factual details, let us consider the legal principles enunciated by this Court.
10) In Chand Rani (Smt.) (dead) by LRs. Vs. Kamal Rani (Smt.) (dead) by LRs, (1993) 1 SCC 519, a Constitution Bench of this Court has held that in the sale of immoveable property, time is not the essence of the contract. It is worthwhile to refer the following conclusion:
“19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.”
“21. In Govind Prasad Chaturvedi v. Hari Dutt Shastri (1977) 2 SCC 539 following the above ruling it was held at pages 543-544: (SCC para 5)
“5… It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. [Vide Gomathinayagam Pillai v. Pallaniswami Nadar 1 (at p. 233).] It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.”
“23. In Indira Kaur (Smt) v. Sheo Lal Kapoor (1988) 2 SCC 488 in paragraph 6 it was held as under:
“6.... The law is well-settled that in transactions of sale of immovable properties, time is not the essence of the contract…”
11) It is clear that in the case of sale of immoveable property, there is no presumption as to time being the essence of the contract.
“8…even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract. For instance, if the contract was to include clauses providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week, the work undertaken remains unfinished on the expiry of the time provided in the contract, such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of contract.
In the case on hand, though the parties agreed that the sale deed is to be executed within six months, in the last paragraph they made it clear that in the event of failure to execute the sale deed, the earnest money will be forfeited. In such circumstances, the above-mentioned clauses in the last three paragraphs of the agreement of sale would render ineffective the specific provision relating to the time being the essence of contract.”
In view of above facts and circumstances and also law laid down by the Hon’ble Supreme Court, it can be safely concluded that the time is not the essence of the contract in the instant case.
59. Point No.5: Whether the trial court is right in not exercising its discretion for granting relief of specific performance?
Since the findings on the aspects of possession of plaintiff over the suit schedule property, payments made by the plaintiff within the period of three months as per suit agreements under Exs.A4 and A5 and legal notice dated 08.02.2000 being anti date, are rendered in favour of the plaintiff, the finding of the trial court that the plaintiff is not entitled for decree for specific performance on the ground that plaintiff has taken false plea is erroneous, as such, discretion for grant of specific performance should have been exercised in favour of the plaintiff.
60. The conduct of the defendants 6 & 8 in a suit for specific performance is also to be considered. In the present case, the defendants stated that they have obtained documents as per clause 3 of the suit agreements. Though it is averred in the written statements and also in the chief examination that they have obtained all the requisite permissions/certificates as per Clause 3 of the suit agreements, but in the cross examination, defendant No.6 as D.W.1 and D.W.2, who is husband of defendant No.6-D.W.1 admitted that no such certificates have been obtained. The finding of the trial court is also to the same affect, which finding is not attacked by the respondents 6 & 8 herein in the present appeal. The said aspect was not considered by the trial Court in proper perspective. The Hon’ble Apex Court in Silvey & others v. Arun Verghese [(2008) 11 SCC 45] held that the conduct of the defendants in taking false pleas is also to be taken into account while decreeing or denying the specific performance. Mere delay by itself, without more, cannot be the sole factor to deny specific performance filed within limitation and cannot be dismissed on the sole ground of delay and laches. Any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing the Specific Performance. Defendants 6 & 8 were held to have taken up dishonest pleas and also held to have been in breach of a solemn Agreement. He who asks for equity must do equity. Given the conduct of the plaintiff in this case who is ready and willing to perform its part of the contract, the discretion must be exercised in his favour. Though learned counsel for the defendants relied on the judgments reported in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [1996) 5 Supreme Court Cases 589] and Malamma v. Permanand [2003 SCC Online AP 919: (2004) 1 ALT 537], but the same are not applicable to the facts and circumstances of the case on hand. It is the defendants, who took false please in the written statements as well as in the chief examinations that they have not received sale consideration and also that they have obtained necessary permissions/certificates from the concerned departments. The point is answered accordingly in favour of plaintiff.
61. Point No.6: Whether Section 10 of the Act as substituted by Act 18 of 2018 is prospective or retrospective in nature?
The question that now arises is as to the applicability of section 10 of Specific Relief Act (for short ‘SRA’), 1963 which now stood amended by an Amendment Act of 2018, taking away the discretion of the Court. The 2018 amendment to SRA, 1963 has taken away the Court’s power of discretion as provided earlier. The earlier provision that provided equity relief has now been made relief of a statutory nature.
62. It would be apposite to extract both viz; pre and post amendment Section 10 of the Specific Relief Act, 1963.
Section 10 of the S.R.A. as it stood prior to its amendment with effect from 1.10.2018 provided:-
“10. Cases in which specific performance of contract enforceable.- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-
(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or 25
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Explanation.- Unless and until the contrary is proved, the court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.”
63. After amendment with affect from 1.10.2018, Section 10 of the S.R.A. provides:
10. Specific performance in respect of contracts.- The Specific performance of a contract shall be enforced by the court subject to the provisions contained in subsection (2) of section 11, section 14 and section 16.
The 2018 amendment has brought some major changes to the law. Apart from Section 10, Sections 14 and 20 were also substituted with new provisions. It has now become imperative to first deal with substitution before examining whether the amendment would be prospective or retrospective in its operation.
64. General meaning of the word ‘Substitute/substitution’ as per dictionary and decided judgments
The word “substitute” ordinarily would mean “to put (one) in place of another”; or “to replace”. In Black's Law Dictionary, 5th Edn., at p. 1281, the word “substitute” has been defined to mean “to put in the place of another person or thing”, or “to exchange”. In Collins English Dictionary, the word “substitute” has been defined to mean “to serve or cause to serve in place of another person or thing”; “to replace (an atom or group in a molecule) with (another atom or group)”; or “a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague”.(see Govt. of India v. Indian Tobacco Assn., (2005) 7 SCC 396). The process of substitution of a statutory provision consists of two steps- first, the old rule is made to cease to exist and next, the new rule is brought into existence in its place. In other words, the substitution of a provision results in repeal of the earlier provisions and its replacement by new provisions. In other words, the substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. As regards repeal of a statute the law is thus stated in Sutherland on Statutory Construction:
“The effect of the repeal of a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in future and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.” (Vol. I, para 2042, pp. 522- 523) (See, KOTESHWAR VITAL KAMATH v. K. RANGAPPA BALICA & CO., AIR 1969 SC 504, STATE OF RAJASTHAN v. MANGILAL PINDWAL, AIR 1996 SC 2181).
65. In the case of Udai Singh Dager v. Union of India, (2007) 10 SCC 306 Hon'ble Supreme Court explained the effect of repeal by substitution and held as under:—
“62. A distinction exists between a repeal simpliciter and a repeal by an Act which is substituted by another Act.
63. This legal position operating in the field is clear from the proposition laid down by a Constitution Bench of this Court in State of Punjab v. Mohar Singh [(1955) 1 SCR 893] wherein the law has been laid down in the following terms:
“… Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case.”
64. In Gammon India Ltd. v. Special Chief Secretary [(2006) 3 SCC 354], this Court held:
“73. On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re-enacted enactment manifests in intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the re-enacted enactment and the mere absence of the saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether.
68. Whether such a right is protected or not must be considered having regard to the statute in question. If a right has crystallized before the repealing Act comes into force, by reason of repeal of the earlier statute indisputably the right crystallized cannot be taken away.
71. The expression “unless a different intention appears” contained in Section 6 of the General Clauses Act, thus, in this case, would be clearly attracted. A right whether inchoate or accrued or acquired right can be held to be protected provided the right survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all. [See Bansidhar v. State of Rajasthan, (1989) 2 SCC 557 and Thyssen Stahlunion Gmbh v. Steel Authority of India Ltd., (1999) 9 SCC 334]”
66. In Zile Singh v. State of Haryana, [(2004) 8 SCC 1] the Honourable Supreme Court after placing reliance on several judgements on this issue held that;
“23. The text of Section 2 of the Second Amendment Act provides for the word “upto” being substituted for the word “after”. What is the meaning and effect of the expression employed therein — “shall be substituted”?
24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. “Substitution” has to be distinguished from “supersession” or a mere repeal of an existing provision.
25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC 645], State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case [(2002) 2 SCC 645] a three- Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case [(1996) 5 SCC 60] this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case [(1969) 1 SCC 255] a three-Judge Bench of this Court emphasised the distinction between “supersession” of a rule and “substitution” of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.
67. Again recently, the honourable Supreme Court in Gottumukkala Venkata Krishamraju v. Union of India, (2019) 17 SCC 590 discussed the role of substitution in an Act and observed;
“18. Ordinarily wherever the word “substitute” or “substitution” is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all…..”
68. We have perused the judgment in Mukesh Singh (supra) by a learned single Judge of Allahabad High Court and we find it apposite to discuss some of the observation made therein by the learned Judge. The learned single judge of Allahabad took into consideration the effect of substitution on Section 6 of General Clauses Act. After examining in detail, the learned judge held that the perusal of Section 6 of the General Clauses Act makes it evident that the consequences laid down in Section 6 will come into picture, unless, as the Section itself says, a different intention appears. In the case where there has been a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject then one has to look to the provisions of the new Act to determine whether the new Act manifests an intention to destroy rights under the repeal Act. Section 6 of the Act, 1897, would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section which has to be ascertained considering all the relevant provisions of the new Act and the mere absence of a semi clause, is by itself not material. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether. The learned judge observed that
“If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by superadding condition, or by restricting, intercepting or suspending its operation, such modification would not amount to repeal. A right whether inchoate or accrued or acquired right can be held to be protected provided the rights survive. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act will not arise at all inasmuch as the phrase “unless a different intention appears” used in Section 6 is attracted. Where, the amending Act substitute new provisions and thereto delete existing provision, it shall have the effect of repeal of the existing provision as has been done by the Specific Relief (Amendment Act 2018) (No. 18 of 2018). The amended provision provide for the introduction of several new provisions by Amendment Act 2018. The old provisions were withdrawn and replaced by the new one substituted by the Amendment Act 2018.
69. The observation by the Allahabad HC is relevant one as the cogent perusal of the Amendment Act of 2018 evinces the clear intention with which the parliament has given an effect to this amendment. The amendment to SRA by way of Amendment Act of 2018 can be grouped into two parts. There are provisions which have been simply amended such as Section 6, 11, 15, 16, 19, 21, 25 and 41, whereas Sections 10, 14 and 20 have been substituted thereby replacing the pre-amended provisions with the new ones. Had the parliament intended otherwise, these three provisions too would have been amended simply instead of by way of substitution. Replacing the provision by way of substitution, the legislature has made it clear that the law would operate as retrospectively and not prospectively. Therefore, we find ourselves in agreement with the opinion rendered by Allahabad High Court.
70. Specific Relief Act is a specie of law of procedure:
We, now feel it important to shed a light on the meaning of the word ‘procedure’ before delving into a discussion on this. Procedure' is a word of uncertain and definite import. Writers of text books on jurisprudence have hardly succeeded in defining exactly what procedure is, or where procedure ends and substantive law begins. Some jurists prefer to call "procedure" as 'adjectival law' because its object is to aid and protect the rights given by substantive law, and it exists only for the sake of substantive law. Holland in his book on jurisprudence, attempts the following definition
“It comprises the rules for (i) selecting the jurisdiction which has cognizance of the matter in question; (ii) ascertaining the Court which is appropriate for the decision of the matter; (ii) setting in motion the machinery of the Court so as to procure the decision; and (iv) setting in motion the physical force by which the judgment of the Court is, in the last resort, to be rendered effectual."
A perusal of the above quoted definition would reflect that the purpose of the procedure is to select a competent jurisdiction having the cognizance of the lis, an ascertainment of a proper forum for the decision, setting in motion the machinery for the procurement of the decision and then setting in motion the physical force for the execution of the procured decision.
The authors on this subject and Courts have consistently observed that the specific relief is a specie of law of procedure. The Calcutta High Court in Radheshyam Kamila v. Kiran Bala Dasi, AIR 1971 Cal 341 at page 343, referred to the Pollock and Mulla’s Indian Contract Act and Specific Relief Act’s fourth edition where it has been written that “Specific relief, as a form of judicial process, belongs to the law of Procedure, and, in a body of written law arranged according to the natural affinities of the subject-matter, would find its place as a distinct Part or other division of the Civil Procedure Code. It was held;
“10. As observed by Pollock and Mulla in “the Specific Relief Act”, the law of specific relief is in its essence part of the law of procedure, for specific relief is a form of judicial process. Such right is discretionary for a court to grant and interest in land to be recognised cannot be at the discretion of the court nor be taken away by it. Accordingly it was held that the Specific Relief Act embodies adjective law and the substantive law must be elsewhere as was also observed in Ali Hossain v. Raj Kumar, AIR 1943 Cal 417 (FB). It is also the settled law that enactments dealing with procedure are exception to the general rule that statutes which take away or affect vested rights or impose new liability or confer a new right must be presumed not to have a retrospective operation. Procedural laws are however always retrospective in the sense that these provisions will apply to proceedings already commenced at the time of their coming into force as no person can have any vested right in any form of procedure, unless otherwise provided.”
71. Supreme Court of India in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125 at page 134
“16. …. The Specific Relief Act, 1963 was intended to be “an Act to define and amend the law relating to certain kinds of specific reliefs”. Specific relief is relief in specie. It is a remedy which aims at the exact fulfilment of an obligation. According to Dr. Banerjee in his Tagore Law Lectures on Specific Relief, the remedy for the non-performance of a duty are (1) compensatory, (2) specific. In the former, the court awards damages for breach of the obligation. In the latter, it directs the party in default to do or forbear from doing the very thing, which he is bound to do or forbear from doing. The law of specific relief is said to be, in its essence, a part of the law of procedure, for, specific relief is a form of judicial redress.
72. No litigant has vested right in procedural law:
The Hon’ble Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 has held that;
“26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”
It is well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. A court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. (See SUDHIR G. ANGUR v. M. SANJEEV [AIR 2006 SC 351].
73. Retrospectivity of Procedural enactments:
As we have now seen that the SRA is a specie of law of procedure, it is now important to deal one more aspect that is appertained to the law id est; the retrospective operation of law related to procedure. An important point of distinction in between the Substantive law and procedural law is that the former is concerned with the rights, duties and liabilities and the latter deals with enforcement of those rights, duties and liabilities. Salmond on Jurisprudence has dealt with the difference and opined that;
‘the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions---all the residue is substantive law and relates not to the process of litigation, but to its purposes and subject matter.’
One peculiar difference between substantive enactments and procedural enactments lies in the fact that while generally, substantive statutes are not given retrospective effect, procedural statutes usually are given such effect. If the new Act affects only matters of procedure, prima facie, it applies to all actions-pending, as well as future. This principle applies to: no (a) the forms of procedure (b) the admissibility of evidence; (c) the effect which the Courts give to evidence of a particular category.
74. Maxwell in his Interpretation of Statutes has stated the rationale underlying the above approach in the following words: No person has a vested right in any course of procedure. He has only the right of prosecution or defence, in the manner prescribed for the time being, by or for the Court in which the case is pending, and if, by an Act of Parliament, the mode of procedure is altered, he has no other right than to proceed according to the altered mode. Change in the law of procedure operates retrospectively and, unlike the law relating to vested rights. (Bakshi, PM, Interpretation of Statutes, Second Edition, page 893).
75. The provision of a statute dealing with a matter of procedure will have retrospective effect unless construction is textually inadmissible. (See Delhi Cloth and General Mills Co. v. Income Tax Commissioner, Delhi 1927 AIR PC 242]. The provision which touches a right existent at the passing of the Act is not to be applied retrospectively in the absence of express enactment or necessary intendment. Therefore, if the necessary intendment of the statute is that it ought to be applied retrospectively, the Court is bound to give retrospective effect to it. However, a procedural statute should not, generally speaking, be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already completed. A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. (See. S. Girdharilal Son and Co. v. B. Kappini Gowdar, AIR 1938 Mad 688; Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623).
76.In CWT v. Sharvan Kumar Swarup & Sons, [(1994) 6 SCC 623] held that the procedural law shall be applicable to pending cases as well and no suitor has vested right in procedure.
77. Reliance was placed on the two judgments passed by the High Courts of Delhi and Karnataka in Shon Randhawa vs Ramesh Vangal & Ors FAO (OS) (COMM) 95/2020 & CM Nos.18959/2020 and M. Suresh v. Mahadevamma RFA No. 1560/2011 respectively, dealing with question as to the applicability of amended provisions of SRA, 1963. We have perused both these judgments but with due respect we are unable to agree with the finding in the judgment in M Suresh (supra) by Karnataka High Court. The learned division bench in this case did not take into consideration the fact that the SRA is a procedural law and that there is an established norm that an amendment to procedural law would always be retrospective unless specified otherwise and going to affect vested rights & obligations. Court had also considered courts power of discretion as vested right for the parties, a view that we are not able to accept. The Court discussed the judgment in Mukesh Singh and Others v. Saurabh Chaudhary and Another 2019 SCC OnLine ALL 5523, wherein a single bench of High Court has ruled that the section 20 of the SRA that has also been substituted by the Amendment of 2018, would be applicable to the pending proceedings. The division bench differed from the Allahabad High Court and observed that;
“Accordingly, we are of the view that Section 6 of the General Clauses Act, 1897 would apply to the case on hand. As discussed earlier, the right or privilege accrued to the defendant/s under the unamended Act is a substantive right. Indisputably, such rights/privileges vested with the defendants at the time of breach of contract alleged, while filing the suit. Appeal is continuation of original suit. Thus, in our considered opinion, amendment to Section 20 being prospective in nature enforceable with effect from 01.10.2018, the same is not applicable to the pending proceedings governed and continued under the unamended provisions. Hence, with great respect, we are unable to subscribe to the views expressed by the Allahabad High Court, supra.”
78. This issue appertained to discretion has been subjected to discussion in catena of cases both by the Apex Court and the High Courts and what has come out from this is the fact that Courts should not exercise this power of discretion arbitrarily and this should always be guided with reason and judicial principles. The finding of the Karnatka High Court in M Suresh (supra) that the section 6 of General Clauses Act will be attracted can not be accepted as the said provision will come into play only when a vested right has been taken away by an amendment.
79. Admittedly, the Amendment Act of 2018 does not confer any right on litigants neither it abrogates any right or privilege so vested in parties before the amendment. What the amendment did is it took away the discretion of the Court, making an equitable relief a statutory one. A perusal, in absence of specific saving clause, would reveal that amendment is in itself is procedural in nature. The Karnataka High Court by observing that since notification issued for bringing amended Section 10 of SRA says it will come into effect from 1-10-2018 and therefore the provision is prospective without considering the aspect that section 10 by way of amendment of 2018 has been substituted and the intention of the legislature has be kept in mind while interpreting this provision. The distinction between enforcing the provision of the ACT by way of bringing into force by way of notification on a particular date and retrospective nature of amendment is to be noticed.
80. The Karnataka High Court at para 33 has discussed about the notification and appointed date of the enactment of the Amended provisions of SRA. The court said that “the amendment Act contemplates that the said amendment by way of substitution would come into force on such day as the Central Government, may, by notification in the official gazette appoint, and different dates may be appointed for different provisions of the Act, 1st October 2018 is the date appointed for the amended provisions to come into effect. However this observation by the Karnataka High Court, in our humble view, is not correct. As a matter of fact any new or Amended Act gets notified after it has been assented by the Hon’ble the President of India. In some cases, the notification itself provides for the dates on which the notified law shall be given effect to such as the Validation Acts and other procedural laws. But the appointment of later date does not mean that the legislature intended this amendment to be prospective in nature. The recourse to the date of notification of amended law and date of appointment for the purpose of deciding retrospective of law is not correct, in our humble view. However, we may take the recourse to judgment by the Hon’ble Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 where the Hon’ble Supreme Court held that Hindu Succession (Amendment) 2005 is retrospective in nature. The notification of the Amended Act was published on 05-09-2005 where it was written that this Act shall come into force on such day as the Central Government, may, by notification in the official gazette appoint. Subsequently, the Act was given effect from 9-09-2005. The issue before the Supreme Court was that whether the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, has a retrospective effect?
81. The Hon’ble Apex Court held that the amendment was retroactive in nature and daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of the amendment.
82. The reliance on Shon Randhawa (supra) is a misplaced one. There, in that case, the division bench of Delhi High Court was dealing with an appeal filed under Arbitration law and distinguished the procedures in two different laws id est Arbitration and Conciliation Act and Specific Relief Act. It is to be seen that one of the learned judges of the same division bench, while sitting single had dealt with the applicability of amended provision of SRA in a pending suit in the matter of Jindal Saw Limited v. Aperam Stainless Services and Solutions Precision Sas and Others 2019 SCC OnLine Del 9163 wherein it is held as follows:
“60. The Specific Relief Act, 1963 has been amended with effect from 1st August, 2018 (notified from 1st October, 2018) to remove some impediments imposed thereby to specific performance of contracts and to facilitate specific performance. While Section 10 of the Act as it stood prior to amendment, made the grant of the relief of specific performance discretionary, post amendment, “specific performance of a contract shall be enforced by the Court subject to the provisions contained in sub Section 2 of Section 11, Section 14 and Section 16”. The senior counsel for the Aperam Stainless has not argued that Section 11(2) or Section 14 or Section 16 are attracted or bar specific performance in the present case, except as hereinabove mentioned. Jindal, on the contemporaneous documents discussed hereinabove, is found to have performed and/or to have been ready and willing to perform the essential terms of the contract, and immediately on receipt of RBI permission on 28th January, 2016, called upon Aperam Stainless to perform its part and on refusal of Aperam Stainless, filed the present suit on 20th September, 2016. Though the amendment to the Specific Relief Act is of after the institution of the suit, but it has been held in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125 that the law of specific relief in its essence is a part of the law of procedure, for, specific relief is a form of judicial redress. With respect to procedural laws, it has been consistently held that amendments thereto are retrospective. Reference if any required may be made to Purbanchal Cables and Conductors Pvt. Ltd. v. Assam State Electricity Board, (2012) 7 SCC 462, Thirumalai Chemicals Ltd. v. Union of India, (2011) 6 SCC 739 and Rajendra Kumar v. Kalyan, (2000) 8 SCC 99.”
83. We may also refer to the judgment delivered by Calcutta High Court in Church of North India v. Rt. Reverend Ashoke Biswas, 2019 SCC Online Cal 3842. The Court in this case discussed post amended section 14 of SRA and its applicability on the pending suits. The High Court held that the language of Section 14 indicated that the relevant date would be the date of the passing of the decree since the said provision dealt with enforcement of the contracts and the question of enforcement comes only on the date of the passing of the decree. It is necessary to extract relevant paras from the judgment for ready reference:
“98. Taking up for consideration the third question involved in the present case, the 2018 Amendment to the Specific Relief Act, 1963 came into force from October 1, 2018. The suit was undoubtedly filed prior to the commencement of operation of the Amendment Act. However, a question arises as to the relevant date for ascertaining the applicability of the amendment - the date of filing of the suit or the date of passing of the decree. In the event the date of filing of the suit was the relevant date, the 2018 Amendment would not be applicable to the present case.
99. However, the language of Section 14 of the 1963 Act indicates that the relevant date would be the date of passing of the decree, since Section 14(1) commences with the phrase, “The following contracts cannot be specifically enforced …..”
100. The question of enforcem
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ent comes only on the date of passing of the decree and not the institution of the suit. If the date of filing of the suit was the relevant date, the language of Section 14(1) would be something akin to: “no suit can be filed for specific performance of the following contracts ….” 101. Hence, the relevant date is the date of passing of the decree. As such, the 2018 Amendment becomes applicable to the present lis, since the amendment came into force during pendency of the suit. 102. Hence, the 2018 Amendment to the 1963 Act is applicable to the present case and the third issue is decided in the affirmative. 84. A perusal of the Section 10 post amendment would reveal that the language used in amended provision is similar to the language employed in section 14 post Amendment of 2018. It reads that, ‘The Specific performance of a contract shall be enforced by the court subject……….’. The issue of enforcement of order, award, decree will come after the passing of such decree, award or order. 85. The Hon’ble Supreme Court in B. SANTOSHAMMA vs. D. SARALA [CIVIL APPEAL NO.3574 OF 2009] held as follows; “70. After the amendment of Section 10 of the S.R.A., the words “specific performance of any contract may, in the discretion of the Court, be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to ...”. The Court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary, after the amendment.” Though it has been argued before us that the observation by the Hon’ble Supreme Court in Santoshamma (supra) is not a ratio decidendi rather it’s an obiter dictum and therefore not binding on the case on hand. But in Municipal Committee v. Hazara Singh, (1975) 1 SCC 794 the Hon’ble Supreme Court has held as follows: “Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurcharan Singh v. State of Punjab [1972 FAC 549] and Prakash Chandra Pathak v. State of Uttar Pradesh [AIR 1960 SC 195: 1960 Cri LJ 283] that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other cases.” 86. Appeal is a continuation of suit It is well settled proposition of law that appeal is a continuation of suit and any change in law, which has taken place between the date of decree and the decision of the appeal, has to be taken into consideration. A change in law will become applicable on the date of the appellate decree, provided that no vested right is taken away thereby. (Ferrodous Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead) and Others 2020 SCC OnLine SC 825:Jot Rameshwar v. Jot Ram, (1976) 1 SCR 847. The Honourable Supreme Court in the case of Lakshmi Narayan Guin v. Niranjan Modak, (1985) 1 SCC 270, held: “9. That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Swarup v. Munshi [AIR 1963 SC 553 : (1963) 3 SCR 858] which was followed by this Court in Mula v. Godhu [(1969) 2 SCC 653 : (1969) 2 SCC 653 : AIR 1971 SC 89 : (1970) 2 SCR 129]. We may point out that in Dayawati v. Inderjit [AIR 1966 SC 1423 : (1966) 3 SCR 275 : (1966) 2 SCJ 784] this Court observed: “If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance.” Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh [(1974) 2 SCC 363 : (1974) 2 SCC 363 : AIR 1974 SC 2068 : (1975) 1 SCR 605] where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal [ILR (1902) 26 Mad 91 (FB)] by Bhashyam Ayyangar, J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur [(1974) 2 SCC 363 : (1974) 2 SCC 363 : AIR 1974 SC 2068 : (1975) 1 SCR 605] this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [AIR 1941 FC 5 : 1940 FCR 84 : 191 1C 659] in which the Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub-judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the court below retained jurisdiction.” On the above analysis we are of the view that substituted Section 3 of act of 2018 (which Section 10 in principal Act) is retrospective in nature and applies to pending proceedings and this point is accordingly answered. 87.Point No.7: To what relief? Since plaintiff succeeded on all points, it is to be seen what relief he is entitled to. It is admitted by both the parties that Section 230 of Income Tax Act is deleted with effect from 01.06.2001 and there is no requirement for obtaining NOC from Income Tax Department and there is no legal bar for decreeing the suit. Section 12 of the SRA is to be construed and interpreted in a purposive and meaningful manner to empower the Court to direct specific performance by the defaulting party, of so much of the contract, as can be performed. To hold otherwise would permit a party to a contract for sale of land, to deliberately frustrate the entire contract by transferring a part of the suit property and creating third party interests over the same. Section 12 of the Specific Relief Act reads as follows: Section 12 in The Specific Relief Act, 1963 12. Specific performance of part of contract.— (1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either— (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party— (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b), 1[pays or had paid] the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. Explanation.—For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance. 88. Section 12 has to be construed in a liberal, purposive manner that is fair and promotes justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free. (See B.Santoshamma v. D.Sarala (supra). Admittedly, plaintiff has paid substantial (90%) of the sale consideration within the period of three months as per the suit agreements under Exs.A4 and A5 and, as already observed supra, the plaintiff was always ready and willing to perform the contract by paying the balance 10% sale consideration and in fact, paid the same in the Court by virtue of Court order in the year 2005 itself. 89. Though the plaintiff paid the balance 10% amount of sale consideration by way of deposit into the Court in the year 2005 by filing application, the same was not challenged by defendants but however, the amount was lying in the Court, defendants could not utilize the same because of pending litigation. In view of the same, this court is of the considered opinion that by exercising power under Section 12, in order to meet the ends of justice, suit can be decreed for specific performance only to the extent of 90% of the amount paid by the plaintiff to the defendants 6 & 8 towards sale consideration. 90. In the result, Appeal Suit is allowed in part directing the defendants 6 & 8 to register the suit schedule property in favour of the plaintiff proportionate to the extent of amount paid by the plaintiff i.e., 90% of the total sale consideration, within a period three months, as per the suit agreements under Exs.A4 and A5. As far as amount of Rs.5,39,150/- deposited by the plaintiff, by virtue of the order of the trial Court dated 11.07.2005 in I.A.No.925 of 2005, is concerned, the same shall be refunded to the plaintiff, with interest, if any accrued. It is needless to state that the Suit Schedule Land is required to be divided by metes and bounds in the execution proceeding by the Execution Court, as indicated above i.e., 90% and 10%, with the assistance of an advocate commissioner and the 90% of the part of the Suit Schedule land, so determined, shall be registered in favour of the Appellant in accordance with the law. The appellant shall bear the advocate commission fee, besides total registration expenses. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any pending in this Appeal Suit shall stand closed. 91. W.P.No.13334 of 2020 This Writ Petition is filed aggrieved by the action of the respondent No.5 in refusing to receive and register the document presented by the petitioners in respect of subject property in the writ petition which is also subject property in AS No.998 of 2010. 92. The petitioners 1 to 3 are being represented by the 4th petitioner as GPA Holder, who is none other than the 6th defendant/6th respondent in the Appeal Suit No.998 of 2010. 93. It is the case of the petitioners that though there is favourable order by this Court in I.A.Nos.2 & 3 of 2019 in AS MP No.2669 of 2010 in A.S.No.998 of 2010 permitting them to sell the suit schedule property in A.S.No.998 of 2010, which is the subject matter of the writ petition, but the respondents refused to receive the documents and register the same. This Court passed interim orders on 28.08.2020 directing the respondents to receive and register the documents, which will be subject to final orders in A.S.No.998 of 2010 and also directed the respondent 2 to 4 to consider the representations dated 01.02.2020 and 10.02.2020 for mutation of their names in both pattadar and possessor columns and also remove the remarks made in the Dharani Website that ‘civil cases are pending’, but the respondents have rejected their application on the ground that ‘civil matter is pending’ and issued notice. The respondents have rejected the representation in case No.D1/1086/2008, dated 11.05.2010. The respondents have also issued notice dated 03.11.2020 stating that objection petition dated 25.01.2020 is filed while refusing to register and directed the petitioners to submit necessary information in respect of objections raised. 94. The writ petition was filed on the premise that they were permitted to sell the property by virtue of orders in I.A.Nos.2 & 3 of 2019 in ASMP No.2669 of 2010 in A.S.No.998 of 2010. Since the appeal itself is allowed in part decreeing in favour of the appellant/plaintiff against the 4th petitioner, who is 6th defendant/6th respondent in A.S.No.998 of 2010, no relief can be granted in the writ petition and accordingly, the Writ Petition is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any pending in this writ petition shall stand dismissed.