 So, good evening friends, as I was sharing with you that we have amongst us Mr. K. Prabhakar and Advocate from Madurai High Court, a Madurai bench from Chennai and his sessions have always been doing extremely well because he shares his knowledge in a different perspective. And we have seen that whenever he has come that he has come with the critical analysis of the judgments and what could be the way for certain aspects to be looked. Today he has shared with us the PPT of the judgments which he would be during the course of the webinar, sharing his aspects on suit for specific performance of a contract, leadings, beliefs and discretion. He's always so much ready and willing to share his knowledge that we give him a different challenge and he's willing to latch on that. Since it's a weekend, we will not take much time. I would request Mr. Prabhakar to share his knowledge. Over to you. Thank you, my friend, because thank you, friends. There is a trusted deficit on the part of the legislature when they brought out the amendment in 2018. They took over the powers of the court, namely the discretion under section 20 of the Act. If at all any act has been abused, it is the specific act. The very same set of facts, one judge or a set of judges will say that the plaintiff is entitled to degree for specific performance and the other would say he is entitled to only refund because I am entitled to exercise my discretion. And three, in dismissing the suit in court. Therefore, when time is not the essence of the contract under section 55 of the contract act and those are the days when a period of three years limitation has been fixed for filing the suit. From the day when the cause of action arose. But we have moved on, moved on to a stage where we want to curtail the powers of the court because the discretion lying or rest of the court is too much to handle. Or there are too many inconsistent judgments. Just imagine more than 1000 high court judges and more than almost 32 honorable Supreme Court judges. And unfortunately, the Indian Supreme Court is not sitting in unison. Therefore, this specific relief act has been abused and in fact I would say it is not abused that it has been there is a judicial overreach to an extent that almost for certain from 1980 onwards still this amendment came or in 2015 when his large ship Iqbal came down heavily. The courts are mechanically granting a degree for refund granting a relief for refund after upholding that the contract is full and the money has been paid is putting premium on dishonesty. There's a one of the object in removing the discretion contemplated in the section 20 of the act by the amended act 18 of 2018. I would like to take this into two parts. In fact, the second part will be the probable defences which a defendant would like to have in a suit for specific performance. This one I'll deal with the proof discretion or the pleadings, etc. Originally section 10 of this specific relief act gave immense discretion to the courts. Even if the agreement is true, it is not necessary for the courts to enforce it. It can very well order in equity, a refund, etc. But that cover has been taken away when it was amended in 2018. Section 10 was amended and subsequently the other two clauses were ready and willingness, the agreement has been taken out. You have to only prove and then section 20, the hardship known hardships have all been taken out of the statute. What it would imply? In a suit for specific performance, what is expected of a plaintiff to come forward and plead before the court? Please do remember that in India till today, since the 49 C of the registration act is available in the statute book, even though many of the states have brought up with an amendment, that an agreement of sale is a compulsorily registerable document, there is a way out under section 49 C, namely an unregistered agreement of sale can be used in a super specific performance, evidencing a contract of sale. Therefore, an unregistered agreement of sale still circulates and with all force. One has to bear in mind at the time of making a pleading for filing the suit, namely the plaintiff. What are the ingredients which are required? First and foremost, to check before the filing of the suit, the encumbrance, whether the property had already been encumbered, whether it has been sold to a third party, whether there is a purchaser or not, before just before filing the suit, go and check the encumbrance and then find out this aspect. Once this aspect is sure, you have to make out a plea. What is the type of pleading which is required in a suit for specific performance? First is, you have to bring the contract. How to bring the contract normally? Many of the states use it at the proposed vendor. They propose the purchaser, the property to be conveyed or the subject matter of the contract or the suit, the conservation, the time limit, if at all there is any. If there is no time limit, why there is no time limit? And if you are coming to the court after a period of three years from the date of the contract or date stipulated in the contract, then you have to make a plea. Why the suit is filled within time? There is a normally under section 55 of the contract back, time is not the essence of a contract in respect of an immobile property. That has also been settled by the constitutional bench of the Honorable Supreme Court in 1993. And they say there is no presumption that time is the essence of the contract. But even if the time is not made the essence of the contract in the contract, there is a provision in the specific review fact which says that one of the parties can fix time to make the contract or make the time essence of the contract subsequent to the contract. That is also possible. Therefore, if these things are available in your case or if your party wants to fix that time before filing the suit, dash off the notice stating that the time shall be treated as the essence of the contract. And then come to the court, make a plea with regard to the details of the contract. And then what was required originally before 2018 was that you should make a plea that you are always ready and willing to perform your part of the obligations and other contract. This has now been taken out of the statute book, namely the pleading is not required. That was a plea hour and proof. Now that hour has been removed from that section. Therefore, what is required now is to prove that you are ready and willing to perform your part of the contract. But be on a safer side because this specifically fact has already been abused to such an extent that one may never know what will happen in future. Therefore, notwithstanding the fact that the pleading has been removed from the statute book, it is to play on the safer side. Always make a plea in the pleadies that you are ready and willing to perform your part of the contract. But always the circumstances in which you have come to the court or the time in which you have come to the court has to be tested on the basis of the recital in the contract and the surrounding circumstances. If the contract speaks something else, namely suppose you go and make an agreement to purchase a large track of land which has to be measured or the agriculture land has to be converted into a site which requires some time, then these are the things which are to be, if the property has to be surveyed, then these are things which should be incorporated in the contract itself. Unfortunately in this country, at the time of entering an agreement, except in case of a corporate, party doesn't even come to the lawyer. Therefore, what is available with you has to be placed before the court. If a client comes to you at the time of entering an agreement or a contract, just make a checklist whether what is the property nature, the property to be alienated, whether it requires any approval from the appropriate authority for the conversion or if it is to be converted into a real estate proposition, the way of a commercial transaction, whether it has come under the RERA or it requires some measurement of the property to demarcate the property, then include all those clauses in the contract if the party is fortunate enough to come to you before the entering into the contract. If the contract has something like these types of conditions, then even if the time is fixed in the contract for performance, this has to be seen in the light of some of the conditions whether these conditions have been fulfilled or not. If these conditions have not been fulfilled, say for example, for conversion it takes some time or you have to go and get an approval for which it requires some time, then it is possible to plead before the court that even though the time has been fixed, that time is not really the essence of the contract because there are conditions in the contract which has to be fulfilled before ever the time will start kicking in. These are requirements. These requirements once you place it in the plate, the ready and willingness, how the ready and willingness, the law says that you need not juggle the coin before the court. It also says that if there is any balance conservation to be paid, assuming for a moment of property worth 1 crore, you have entered into a contract and paid a sum of rupees 10 lakhs and 90 lakhs has to be paid, then you have to make a plea that you are ready and willing to perform your part of the contract. But the law doesn't say that you have to pay or deposit the balance conservation into court unless you are directed by the court to do so. But to prove ready and willingness, at least on the day to the plate, the one strategy is to deposit the money into court. That way you can say that I am ready to perform. But there is an itch also. The itch is this. Suppose there is a pre-litigation notice and the vendor comes up with a case that you are not ready and willing. He accepts that there was an agreement of sale, but you are not ready and willing to perform. Then the only issue is not about the execution or the genious of the contract, but only your ready and willingness therefore from the day one, when you file the complaint you can deposit the money into court. That way you can offset any of the subsequent pleading taken by the defendant that you are not ready and willing. Take another case. Suppose you after issuing a pre-litigation notice, the vendor comes up with a case that the contract is a forgery. He has not entered into any contract. He has not received any part conservation or ad wards or even as many whatsoever name you call it. Then is it necessary for you to deposit the money and wait forever? Who will pay the interest at the commercial rate? The bank and the money will be deposited into court. The court will deposit in a schedule bank will get some nominal interest. Therefore, to make a distinction in cases where the vendor comes up with a case that the agreement is genuine, but says that you are not ready and willing to perform your part of the contract, go ahead deposit the money into court. If the defendant comes forward of the case of a rank forgery or questions the execution of the contract itself or the passing of the consideration, then wait for the court to give any direction to deposit. This strategy will work out because at the time of final hearing, you can always find out that this vendor has not come out of the ad genuine case. The courts have also in some cases held that if the execution of the contract has been denied by the party, then the readiness and willingness fails into insignificance. Even though some of the high court doesn't even apply this principle, and this has been reiterated in a couple of judgments of the Honorable Supreme Court, where they say that ready and willingness is a mixed question of fact and law. And it's a fact, ready and willingness has to be seen in the light. How far the plaintiff case has fitted against the case of the defendant. Therefore, if the person defendant comes up with a case of that it is genuine and saying that the contract could not be performed because of the fault of the purchase, then go ahead and deposit, otherwise you will not be in a position to show your ready and willingness. Second point is how to show ready and willingness. The second point is by showing your bar with all, namely that I have enough money in my deposit, which can be used at the time. How long will you keep it in your deposit? Whether it is a savings or a fixed deposit, that's an issue because once a suit has been filed, it drags on up to the Supreme Court, then you have to pay the price double it, double the money. Indeed, already paid some money to the vendor, you have deposited the money, fix fee, keep your fingers crossed till the judgment comes and the execution takes place. But the point is it is always better to have a registered agreement of sale. The issue is that the execution itself will be taken care of because under section 60th Registration Act, there is a presumption with regard to the some sanctity is attached with the registration. That will take care. But please do remember that a mere filing of the agreement of sale and the party gets into the parks namely the purchase and say that this is an agreement of sale may not be enough in a case where the defendant challenges the execution or the genuineness or the validity of the contract. In all cases where I have stated the first instance namely genuineness is considered, then you can put the agreement and set the ball in motion. But if the agreement is challenged, it is always better to prove the document. How to prove the document? In many cases where a document doesn't require an attestation and even if I remember section 71 of the evidence, if a document doesn't require an attestation and still it has been attested, it can be proved as though it is unattested. It can be proved by ignoring the attestation. How can you prove the document? If you need not examine the attesting witness or somebody else can also be examined comparing the signature or thirdly, if the original documents have been delivered these are the circumstances under which you have to make a plea in the plate that at the time of entering into the contract this man gave the original title deed or he gave a photocopy of the title deed stating that it is in the bank etc. These are the things which are required to be filed into court at the time of filing the plate making an appropriate plea. Why this type of specific performance suits where the court started granting refund indiscriminately without enforcing the specific contract? Malai is set in somewhere in 75s and 80s until 2018 when the law changed till 2015 when his large ship Igbol came down heavily. Apart from the 1995 Supreme Court judgment, people were under the impression to satisfy both the N's order refund. At the end of the day what happened was instead of honoring a commitment the court has unwittingly promoted dishonesty. You can't put a premium on dishonesty. If a person has entered into a contract and if the court finds that the contract is true and if the plaintiff is ready and willing to perform as part of the contract then automatically the suit has to be agreed for specific performance rather than refund. Refund will come under section 20 coupled with the section 10 but that is an exception that is not for a dishonest litigate. That's why the problem cropped up and 10 and 20 has been removed, 10 has been amended. One interesting case which I have not cited, Madam Satya Narayana versus L.O.G. Rao, A.I.R. 1965 Supreme Court page 1405. Madam Satya Narayana versus L.O.G. Rao, A.I.R. 1965 Supreme Court page 1405. There was an interesting case where after the entering into the contract the market price of the property came down. He has purchased up, went ahead and purchased the property. His suit was filed for enforcement after almost two years, after two years, a lapse of two years from the date stipulated in the contract. The court said that there is a period fixed under the law, namely three years period. Therefore, unless there is a waiver or an abandonment of the claim, the plaintiff is entitled to a degree for specific performance, more so when no prejudice will be caused to the defendant because what he has sold is for a far lesser price. Normally what we will do, once an agreement is entered into for a particular consideration, we will say that this plaintiff has dragged on the matter, the market value of the property has gone up like anything, therefore I may be relieved of the obligation to sell the property. But this 65 Supreme Court, Madam Satya Narayana was a converse, namely, where the price came down and the purchaser purchased the property for a far lesser price than what has been agreed between the plaintiff and the defendant under the contract. Therefore, the court said three years period is there, there is no waiver or abandonment unless it has been approved in the court of law. Three, no prejudice will be caused because he is going to pay a larger, higher price to purchase the property. Think where we are now. The law, sometimes the march of law will end up in amending the statute itself. That has happened because of this type of indiscriminate dismissal of this for specific performance. Now I will come to the first judgment where slightly the law was slightly changed of the court found that we have gone too far in promoting dishonesty. Zareen Siddik versus Ramalinga, Zareen Siddik versus Ramalinga, 2015-1 SEC page 705. Interesting case where the party was ready and willing to perform his part of the contract. The courts below found the agreement of sale is true. The plaintiff is ready and willing to perform the contract, but still went ahead and granted a refund. By citing section 10 that I have got discretion. The court said that the discretion available under the statute is a judicial discrimination and not an arbitrariness. If you find that the agreement of sale is true and the plaintiff is ready and willing to perform his part of the contract, then the primary duty of the court is to grant a degree for specific performance and not refund. Section 20, original section 20, unamended and read with the section 10, unamended are all cases of exceptions. It is not the rule that what Zareen Siddik's case is. It is only an exceptional case where you can deny the plaintiff. Super specific performance and ordering refund. The second case is Nirmala Anand versus Adwin. AIR 2003, Supreme Court page 3396. Nirmala Anand versus Adwin. AIR 2003, Supreme Court page 3396. Equality is 2002-8 SEC, page 146. Even in this case, the court said that it is a rule to grant a specific performance is a rule and refusal is an exception. But the court went on to say, if you want to exercise a discretion, the discretion has to be found by the conduct of the parties. If there is a delay, who is responsible for the delay? If the vendor is responsible for the delay, then grant a degree for specific performance. If the purchaser is the reason for the delay, grant him a reason. That was the slight movement from the earlier judgments. What we find is repeatedly the Supreme Court after 2000, 1995 itself started saying that the grant of specific performance is the rule. But it has not percolated well enough. Tell me how many people can go to the Supreme Court? The point is therefore, even though there was empty number of judgments by the Supreme Court, that in the case of specific performance, the rule is to grant a degree for specific performance if all other parameters are correct and it is only in exceptional cases refund can be ordered. In the other case was K. Prakash versus Sampath Kumar. That was also, if I remember correctly, it is R. S. Iqbal. K. Prakash versus Sampath Kumar, 2015, 1 SCC, page 597, 2015, 1 SCC, page 597, where the Lordship would say again that the discretion should be reasonable and it cannot be arbitrary. Therefore, the law as such we can take before the amended act itself. The courts have started rejecting the case of a person who comes to a court with a dishonest feeling. Assuming for a moment, a person comes to a court and says that the agreement itself is of origin. Whatever difference you can take, fraud, coercion, undue influence, mistake, etc., misrepresentation. And ultimately, if the court finds that the agreement is after all true, the plaintiff is ready and willing, then if the court orders refund, it will be putting dishonesty on the previous. A person who comes to a court with a false case will hit a jackpot. It's not for the court to do that. Therefore, this judgment of Prakash versus Sampath Kumar said that the discretion should be reasonable and not arbitrary. Now coming to 2018 amendment, is there any case? Now the law has been thrashed out before the Supreme Court. Therefore, one of the cases which are interestingly was the Suga Singh versus Hari Singh's case in 2021. 6 Andhra law times. I think it has been reported in the year also. 2021, 6 ALT Supreme Court page 98. Page 98, Suga Singh versus Hari Singh. 2021, 6 ALT Supreme Court page 98. Where the Lordship took a view that specific performance is no longer discretionary. That was a case of an unamended act before the case was filed before 2018. Therefore, section 20 and section 10, the discretion was available to the court. Still, the court went on to say that specific performance is no longer discretionary. The principles of the amended act, namely subsequent to 2018 can be taken note of by the court. Even if it is not retrospective, whether the 2018 act is retrospective or not is still under deliberation. In fact, if I remember in one case the Lordship Indra Banerjee went ahead and had a view that it has to be considered in detail. And being only an amendment to the original act, it will have a retrospective effect. Whether it is a substantive law or a procedural law, these are the issues that have been taken. But in this case, if I remember Suga Singh's case was the Lordship Yamash Shah, if I remember correctly, subject to correction. Vint Akhadan stated that even if it is not retrospective, the amended act, the legislature made an amendment taking out the discretion available. And therefore, this has to be taken note of in granting a degree. Then whether a person who comes to the court asks for specific performance, what are the reliefs he would ask for? Under the act itself, you can ask for possession, partition, compensation, refund. The sections relevant to the part are section 22 and 19. The compensation and refund are two different things. What is a refund and what is a compensation? If a party enters into a contract and subsequently fail to perform his part of the contract, then there will be a delay in anticipation of this contract. One other party might have entered into other obligations. These are the things if it has been anticipated, then we have to apply the principle of Adley v. Baxendale. In a contract or the famous case, which was subsequently followed in Victoria Laundry case before the British courts, namely, test the foreseeable tests. If a person can foresee what is the problem and still enter into a contract and doesn't want to perform his contract, and because of this non-performance of his obligation, the other man is at a loss, then if it can be foreseen by the party, he will be also entitled or liable to pay the damages under the foreseeable tests. If it is not a foreseeable test, then the nominal damages alone will be applicable. But the laws say whether it is a compensation or a refund, it has to be pleaded. A relief has to be sought for. Quite unfortunate, many of the high courts not be standing timely reminder by the Supreme Court. That a relief in respect of a refund, a relief in respect of a compensation, can be granted by the court only when a relief is asked so far to the text. If no relief has been asked far to the text, then the court cannot grant a degree for that. Section 23 and section 22 speaks about this same. Section 22, this is what the proviso would say. Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall at any stage of the proceeding allow him to amend the plaint on such a term as maybe just for including a claim for such a relief. What two would say, proviso says that at any stage an amendment can be made. Two would say no relief under class A or class B of subsection 1 shall be granted by the court unless it has been specifically cleaned. Time and again 10 days before this closing of the holidays, I was a witness to a judgment being declared by the one of the honorable high court judges, where the court found that the agreement is true, but there was no refund as far. Still the court bent ahead and granted a degree for refund stating that in equity the court is entitled to do. Equity will come into play only in the absence of a statute. If there is a statute which specifically says that you cannot grant a degree for refund or compensation, that's compensation under section 23 we can say that the liquidated damages. The point for issue is therefore whether the damages or refund can be granted without any relief claim. Recently, Slashshib Nageswaran Justice Gawai came down heavily, reported in Universal Petrochemical Limited versus BPPLC. Universal Petrochemicals Limited versus BPPLC are very recent judgment. I think it should be available in live law. 2022 Supreme Court, online supreme today, page 150, Universal Petrochemicals Limited versus BPPLC is Slashshib Nageswaran Justice Gawai where they would say that damages or compensation cannot be cleared unless there is a prayer requesting the court to grant the same in view in the light of section 22 of the Act. Therefore, once there are several judgment, I am giving you only a sample. The point at issue is the courts are not supposed to grant refund, not supposed to grant damages or compensation unless it has been prayed for. The discretion which was available and this abuse, if you say that equity can override the statute, then the Parliament has asked to step in their necessary state of affairs where the power of the court has been taken away. I feel this is a trusted deficit. There is no confidence on the discretionary power being exercised by the judges of the courts. But it has happened. Now, the second point for consideration is whether this amendment 2018 amendment which speaks about all this before on the diamond medal touch one point, the relief which can be asked for in a suit for specific performance may be to execute a sale date or to give possession or you may think even refund. But the point is possession is whether you have to specifically seek relief of possession. Once a sale date is executed, it is the bound and duty of the vendor to deliver possession. If the vendor doesn't execute the sale date and you come to the court, the court on behalf of the vendor execute the sale date, the court steps into the shoes of the vendor and therefore it is bound to deliver possession of the property to the purchaser. No relief of possession is required. Quite unfortunately, one of the judges, if I remember correctly, a Slideship M.V. Moralidadan of the Madras High Court came to conclusion in a civil division petition that the execution itself is not maintainable because the plaintiff did not seek the relief of possession. Once the sale date is executed, it is all over by invoking section 22 of the Act. And he says that once the section 22 says that you have to ask for the relief of possession and if you don't ask possession, the court cannot grant it, you go and file a fresh suit. Quite fortunately, this has been reversed by the Slideship M.V. Moralidadan of the Madras High Court recently. It was reported only in live law. What happened was in that case, the court has taken note of the 1982 Supreme Court and came to the conclusion that possession need not be sought for separately. Yeah, yeah, 1982 Supreme Court, page 818, yeah, yeah, 1982 Supreme Court, page 818. Equal in 1982, 1 SCC, page 525. There is a case of Babu Lal versus Azar Ilaal Kishore Lal, Babu Lal versus Azar Ilaal Kishore Lal where the Slideship went into section 22 and found that there is no need for a person in a suit for specific performance to seek possession separately. The possession which has been spoken to in section 22 is a different aspect. I'll come now. This judgment was cited before his Slideship M.V. Moralidadan. Still in Vasanthas versus Manikamalai's data board, still he went ahead and said interpreted in such a way that if you don't ask for possession, go and file a fresh suit. That has been reversed by the Honorable Supreme Court in Manikamalai's Dandabani versus Vasanthas 2022 live law Supreme Court, page 395. I think it is said to be reported in other journals. Manikamalai's Dandabani versus Vasanthas 2022 live law Supreme Court, page 395. Where the Lordship took into account many of the judgments including that of the Halabadai Court, which reported in Dheeraj Balakariya versus JPR estate private limited, 1982 SEC online, Kolkata page 152. Dheeraj Balakariya versus JPR estate private limited. The court did not even took into account 1982 Supreme Court. The reason was, his Slideship M.V. Moralidadan before the Madras High Court, referred to the 1982 Supreme Court of Gautam, still went ahead and said that possession has to be separately sought for. This has been now set aside by the Honorable Supreme Court and rightly so. Coming to now this section 22. What are the reliefs which is spoken to? It speaks about possession. It speaks about partition. It speaks about reaping of the NS money apart from specific performance. Why it is so? I tell you why. In case of the vendor being in possession of the property, there is no need for you to seek possession. But if the vendor is not in possession of the property, he has got title but not possession and he enter into a contract. And subsequently the purchase are fine that he is not in possession, but he has got title, entitle to enter under an agreement. But you cannot deliver possession of the property. Some third party X, Y or Z is in possession or trespass into the property and some status he is in enjoying the property. Then what you have to do is follow suit for specific performance against the vendor to ask for recovery of possession against the X or Y U is in possession of the property. That can be clubbed in a suit for specific performance. That has not been considered by any of the courts. Why this possession? In fact 1982 Supreme Court and even this Monika Malay's Dandabani speaks about that possession is in some other aspect. What is that some other aspect? We are not expected to give a judgment or opinion on that. But the point is this, if the vendor is not in possession of the property, but still he is entitled to enter into an agreement of sale and he enters into an agreement of sale, file the suit against the vendor for specific performance, don't wait for granting a delivery and to file another suit for possession. Claim that relief in that suit itself for possession. It is why this has been enacted so that the purchaser should not be prejudice running on a pillar to force by filing one suit and then when the moment he got a degree, the limitation will go. 1973 there is a Supreme Court, there is a judgment which say once a suit has been filed that will not arrest the law of limitation. If any relief has to be sought for, that relief has to be sought for at the appropriate time. Merely because assuming for a moment you file a suit for injunction, I am fighting that suit stating that I am in possession of the property subsequently that suit ended or 10 years, 12 years, 20 years and subsequently thereafter you want to file a suit for possession. The pendency of the suit for a particular period will not endure to the plaintiff. We do remember 1973 Supreme Court is directly on that point. Therefore the law is very clear. Possession can be sought for if the vendor is not in possession or somebody else is in possession. That is point number one. Point number two partition. Suppose you enter into a contract with one of the joint owners or one of the co-owners or one of the co-passeners and if you want to file a suit in respect of his share in the property go and file a suit for specific performance, get a degree, get it executed get a sale deed and then go for partition. Not necessary at all. In such cases you can ask for a degree for specific performance against the vendor implement those parties who are otherwise entered into a share in the property and get a degree for partition in that suit itself. That is possible. But I am not sure anybody has filed such a type of suits anywhere. But the interpretation and the intention of the legislature is this there is no need for you to wait forever and then to your life probably your son's life will also be over if you fight like that. The third point is refund of ennest money. Power to grant a relief, refund of ennest money and specifically as I have said that the 22 there is a surplus. Two will say that in all such cases you must ask for a relief. Once there is a statute the discretion cannot be exercised on the basis of some equity. Equity will come into play only in the absence of a statute. The next issue, ready and willingness, when you have to prove suppose the contract says there is a period of six months time. In fact in one of the judgments which I have read from Mother High Court which used to be how in 10-15 days ago the time of four months was fixed in the contract. Three or four months I am not sure. Three months. The plaintiff came to the court after 40 days of the lapse of time. That is namely four months, 10 days you take it. That is 40 days after the stipulated time. The lawyer court dismissed the suit. The first appeal also refund was granted. The second appeal, the court granted a, I think this is the first appeal. The court granted a refund on the grown that this man was not ready and willing to perform the contract from the date of the contract. It took him to account three months and then this 40 days and refused. That's why I said this description is very dangerous. The court said rightly that this has to go. The legislature is right. 45 days the court has honored refund. What the court says, from the date of the contract you should be ready and willing. You have to prove that you are ready and willing. But what is the law? The law says, within the stipulated time as found in the contract say three months or six months, I need not prove ready and willingness. I have to prove my ready and willingness from the day when the time in the contract lapses. If three months time is granted, I have to prove my ready and willingness only after the three months. Suppose if it has come to the court within 40 days or 45 days. There are judgments to the effect would show. I don't want to multiply judgment. Judgment would show if a shorter period, then if the person hour in the plane that he is ready and willing and deposes in court that I am ready and willing, that is enough. Only when the period becomes larger in coming to the court, then you have to bring other materials to show that I was ready and willing. Show that bank account. I have got enough money. The defendant is running away. I went for several times to him. These are the witnesses who are witnessing all these things. These will come into play only when the time is large. If the time is small, say for example one month or two months, the evidence on both of the plaintiffs itself is enough. And with regard to that need not be proved. There is a judgment of Lakshmi Gandhan versus Devaraj. Lakshmi Gandhan versus Devaraj, 2019, 8 SCC page 62. Lakshmi Gandhan versus Devaraj, 2019, 8 SCC page 62. Then I would like to touch on two aspects where the court has gone wrong. In one is 2017 Supreme Court where the court says that if there is a sale deed before the suit has been filed, a third party comes into play, that sale deed has to be set aside. There is a judgment of Lakshmi Rohinton Nariman, if I remember correctly, reported in 2017 Supreme Court 3934, equivalent 2018 11 SCC page 761. 11 SCC page 761, Vijaya Bharathi versus Savitri. They are 2017 Supreme Court page 3934. There was a case where after the agreement of sale, they went or sold the property before the filing of the sale. The purchaser was included as a party. The court said in refusing to grant a relief, already a sale has taken place. Therefore, unless and until you ask for a seat for a declaration that the sale deed is a nullity, the suit for specific performance does not lie. Sometimes in a hurry, many of the judgments are pronounced. This judgment requires a revisit. It is totally unacceptable. The reason is who has to perform the contract? Insofar as the specific relief act is concerned. To take 19-1 and 2. 19-1 says either party, that too. Leave against a partisan person, either party, that too. 2 is important. Any other person climbing under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. Any other person climbing under him by a title arising subsequently. Therefore, if you take or interpret 19-1, one can say always the purchaser has to be included as a party and then you ask for a sale or directing the court to execute the sale. 1982 Supreme Court would say, in fact, after following a 1954 Supreme Court, that in all cases where the purchaser comes into play, a third party comes into play, you have to implement the party so that whatever the title which has been transferred jointly, they have to sell the property to the purchaser or to the plaintiff. But till 2017, there was absolutely no problem at all. Now the Supreme Court has changed, without giving any interpretation to 19-3. The court said that in cases where the purchaser comes into play before the filing of the suit, you must ask for a second. The second point is, another interesting point is, if an agreement of sale is cancelled or revoked before the filing of the suit, for specific performance, what is the type of relief to take and ask for? Whether it is enough to straight away ignore that stating that it is unilateral, arbitrary and follow suit for specific performance. It was all done till 2013. When is Latchip Govalakavada came out with the judgment in Sikandar Vasa Subramani, reported in 2013-15 SCC, page 27, Sikandar Vasa Subramani, 2013-15 SCC, page 27, where is Latchip said that once there is a termination of the contract before the filing of the suit, then you must ask for a declaration that the termination is a nullity, and then you have to ask for the relief of specific performance. This was also a strange proposition. The reason is this, a termination in all cases where the termination is unilateral, it can always be held to be illegal or avoid. If a termination is void, why a declaration has to be sought for? Why documents need not be set aside? It can be even set up as a defense or a series of judgments. Therefore, my view is this judgment also of Latchip Govalakavada, reported in 2013-15 SCC, requires reconsideration. Unfortunately, this was also followed subsequently by Latchip Navin Shinnan in 2019 SCC, page 4780. Mohindar Gaur Vasa's son Paul Singh, where this judgment of Latchip Govalakavada has been referred to related by the SCC subsequently and therefore as of today, if there is a say prior to the filing of the suit, seek a declaration that it is a nullity. If there is a termination of the contract before the filing of the suit, seek that the termination is nullity before you seek the relief for specific performance. Then this undivided interest, can a contract in respect of an undivided interest be enforced? There are two provisions. One is for a specific performance of a contract. Another is the part performance. That part performance is spoken to in the section 12 of the Act. It just says that if a major portion of the contract can be performed and a lesser portion cannot be performed, then you can ask for specific performance of the major portion and then for a compensation of the lesser portion. If the major portion of the contract cannot be performed and only a lesser portion can be performed, then you can ask for compensation provided you give up your right to the remaining half, namely with regard to the damages. This is a part performance, what we say. But the point for consolation is, there was a judgment in 1990 Supreme Court. I will sign to one judgment. There is a very interesting judgment and I will take with regard to the latest March in law on the score. Not now, but in the part of the class where we will go for probable defense. This judgment, Karthar Singh versus Arjinder Singh. AAR 1990 Supreme Court page 854. Karthar Singh versus Arjinder Singh. AAR 1990 Supreme Court 854. That is a case where a person enters into a contract to sell the property and another portion or a share of his sister should join at the time of this sale. The sister refused. The court went on, all the courts, lawyer courts have up to the high court refused because they can't try the specific performance of a portion is amount of splitting of the contract. You all know that the splitting of the contract is not possible, it is not enforceable. But in 1990 Supreme Court, the Honorable Supreme Court said that it is possible because in this specific case, in so far as the person who is a contracting party is concerned his entire share has to be sold. Therefore, in so far as that party is concerned, it is an enforcement of the contract in full. But this judgment was doubted by the Honorable Supreme Court in 2001, 8 SCC page 173. Rajakonda Narayana versus Pandalasala Parvathamma, you call it famously as Parvathamma's case. Rajakonda Narayana versus Pandalasala Parvathamma, 2001, 8 SCC page 173. In that case, the Honorable Supreme Court doubted the decision of the 1990 Supreme Court and referred it to a larger bench, namely, whether it amounts to splitting of the contract or not. Quite interestingly, the larger bench, I think if I remember correctly, it is comprised of one day and another and Shinnah, I think Shinnah is the slasher of the author of the judgment, reported in Surinder Singh versus Kapoor Singh, 2005, 5 SCC page 142. What happened was in this case, the Honorable Supreme Court distinguished the 1990 Supreme Court on facts. It did not lay down any law, whether a person who has entered into the contract by suppressing the other court sharers and whether this contract can be enforced insofar as the contracting party is concerned, whether it is in full or it amounts to splitting of the contract, the court did not give any finding. On the other hand, it said that 1990 Supreme Court can be distinguished on facts, namely, the sister was not even cited as a party or something, she has not agreed, it was not revealed, etc. And in 2005, in Surinder Singh, the court said that it is all known, therefore it cannot be enforced. But the point is, whether it is possible to enforce a contract against a person, even though the entire property it is not, it does not belong to him in entirety, now take section 22. Section 22 says that the partition is possible. Therefore, if the contract can be enforced against a particular individual, insofar as other individuals are concerned or other co-owners are concerned, I can join them in a suit for partition along with this suit itself. Therefore, my submission is that the Kartas and Gays in the year 1990 Supreme Court is correct and the decision in Surinder Singh's case is not a good law. But three judgments have come. Well, if a contract is for an undivided interest, it cannot be enforced. I will take that as a second part of the class and it will be taken as a defence. Now, coming to order 22. Normally, when a contract is entered into, if there is any urgency to get a relief of injunction, immediately the party comes to the court and files a suit for injunction. And subsequently, he converts the suit into a specific performance or he files a fresh suit for specific performance. If the cause of action for filing the suit for specific performance is available on that day, when a suit for injunction was filed, then there is a bar under order to rule 2 unless you seek the leave of the court to file a suit for specific performance thereafter. Therefore, keep in mind that if you want to file a super injunction and to wait for the specific performance subsequently, don't think that this cause of action is different. You can convince the court, 90% of the courts will say that it is barred under order to rule 2. Therefore, by way of abundant caution, file an application, seek the leave of the court so that he can file a super specific performance or otherwise go ahead and file the super specific performance. This, sir, there will go industries, engineering, private limited versus venture tech solutions. That was a pointer which changed the law. Virgo Industries case, 2013, 1 SCC page 625. That was a case where a suit for injunction was filed and then a suit for specific performance was filed during the pendency of the suit for injunction. The suit for injunction is subsequently not prosecuted. The court said that order to rule 2 bar will come because of the cause of action if it is available on the date of the filing of the suit for injunction for filing the super specific performance, you should have filed a super specific performance. It will be barred unless you seek the leave of the court under order to rule 2. But I beg to differ on this judgment also. The reason is this, originally before this judgment of Virgo Industries case, a suit for specific performance can be filed during the pendency of the first suit. Then the bar under order to rule 2 will not kick in. But what the Supreme Court in Virgo Industries says that the bar will kick in whether the first suit is pending or not. Forgetting for a moment, when an application under order to rule 2 can be filed in the first suit. It is not as though I have to file the application seeking the leave on the date of the filing of the first suit. I can see the leave even before the pronouncement of the judgment of the first suit. Therefore, that's why before Virgo Industries case, the settle the position was if a suit for injunction or any other suit has been filed and during the currency or the substance of the first suit, the second suit has been filed, then the bar under order to rule 2 will not come. The reason is I can go and seek the leave before the judgment is pronounced in the first suit. But this judgment turned the tables otherwise. It says now that whether or not the suit is pending or not. You have to seek the leave of the court or otherwise it is fine. But there is some distinction has been made in subsequently two judgments. Urmiri Pula Rao v. Vyamari Meir, Vyakanta Radha Rani, AIR 2020, Supreme Court page 395 famously called as Urmiri Pula Rao. And then the Santoshamma case reported in 2020 one scale 222. Santoshamma case was a large ship Indira Banaji. In all cases of order to rule 2, there should be a plea before the trial court. You can't take this plea of order 2 or rule 2 before the upload court. It is a mixed question of fact and law. Therefore, in Santoshamma case, the large ship Indira Banaji would say unless and until a plea has been taken under order 2 rule 2 before the trial court. It is not possible to agitate the matter before the upload court. Do remember that if the person did not take up just the objection before the trial court, at least you can be saved before the upload court. In this bona fide purchase theory we have to keep in mind. Who is a bona fide purchaser? How to prove it? Originally, we were under the impression a bona fide purchaser can get into the box. The burden is very light on him. Namely, he can feign ignorance. I went into the encumbrance office or register office and found that there was no entry was there. Orally, I have enquired. You get into the box and tell the court. I have enquired the neighbours. It is enough. In fact, the law has been changed again. The bona fide purchaser, originally Dr. Govindas was a shanti boy year 1972 Supreme Court, page 1520. Govindas was a shanti boy year 1972 Supreme Court, page 1520. Govindas court has held that a purchaser cannot be a bona fide purchaser if the property is in a rural area. Many people in a village, if an agreement is entered into, villagers will know that already there is a transaction. Therefore, you can't feign ignorance that you are not aware of the contract. This has been followed in two of the judgments, one by the Punjab and Haryana and another, Imachal Pradesh High Court, Bhagwat Rai's case and Mohinder Singh's case, 2015 and 2012 Supreme Court. But a very latest judgment in Sukhwinder Singh versus Jagrub Singh, reported in AIR 2020 Supreme Court, page 4865. AIR 2020 Supreme Court, page 4865. It says that there is no presumption just because the parties belong to the very same village. They have got knowledge of the transaction. A purchaser can still be a bona fide purchaser. It is quite inconsistent with the decision in 1972 Supreme Court. But the point is the village in 72 is no longer a village. That may be the reason the time change in the view taken by the Supreme Court. Therefore, the point for consideration in filing the suit for specific performance is this. Kindly remember if there is a sale before the filing of the suit, ask for a nullity. If there is a termination, ask for a nullity, pray even if the hour has been removed, let there be a pleading for ready and willingness. And even though you need not juggle the coin, if the defendant comes to the court and say that the agreement is true but the plaintiff is not ready, deposit the money. Only in cases where the defendant comes and says that the agreement itself is ranked 4th. They are obtained by fraud, coercion, no consideration passed. Then you can avoid the direction of the court to deposit the money. Thank you. So far, praises have come. Just check it on the YouTube as to whether we have any question. Whether deficient curves left on the national highway can be enforced by the awakened citizens with a specific performance of a contract or appeal? We cannot arise. It's a civil issue. It has to go through a suit. So there is no other question? No, yes, there is one. Sir, you said that if no relief has been prayed for, the court cannot give relief in the beam of equity. But merely because the party has failed, how can it be denied and the error in procedure cannot deny justice? Law can be an ask. The law says that it cannot be done. Once the law says that unless there is a plea, the court cannot grant a refund. When the law covers the appeal, equity has to give its way. Then what is the harm in asking for a relief of a refund even at the time of filing the suit? Or even at the time of pronouncing the judgment, the law says that at any time you can amend the prayer for a refund. Unless until even being a special provision, the restriction with regard to Order 6, Rule 17 will not come into play. It is always open for you to ask for a refund. B is to remember, if you ask for a refund at the time of filing the suit, the court will be focused on specific performance. If you ask for an amendment at the time of judgment, the court will not grant you the relief of specific performance because you yourself are not sure of your case. If the sale deed is made when the minor is there, what is the effect? Who has executed the sale deed? The minor, contract executed by a minor is void. If a minor is a share in respect of a co-pository is executed by the Kartha, then it is enforceable. If it is the absolute property of the minor, then unless there is a permission by the court and a section 8 of the court and Guardian and Wats Act, it is not enforceable. There is a provision under the specific relief act also which says unless and until the vendor has got a right to sell the property, the court can refuse to grant a specific performance. Mother has a right to sell the property when the children are minor under ancestral property. Can it be there? I am not sure because mother is not a Kartha, cannot be a Kartha or a family manager before 39 of 2005. After 39 of 2005, the mother also can become a co-personer if she is a daughter and the law is wide open. There is no judgment of that point after 39 of 2005, after daughter becoming a co-personer and what will happen to it, this daughter becomes a mother. If the refund amount is not deposited in time, what is the effect? Then the court will refuse to grant a specific performance even after the degree. There is a provision under section 27 of the contract act which says that there will be a recession. The court can refuse even at the time of execution application that you have not filed the deposit money in time unless you seek an extension, the court grants the extension. The court can also refuse to give you the permission to deposit the money stating that you are not ready and willing. The ready and willingness has to come till the sale deed is executed, it's not as though it will end with the degree. It will be up to the sale deed is executed. Last one, any book on a specific effect? Any book. Good book. I think that Subarao's specific effect is there and then Mullah's specific effect is also there. Subarao is the best. Thank you Mr. Prabhakar for sharing your knowledge. You always ignite the right spark in the mind, a thought provoking session. We have all enjoyed it and we will take the second session soon. Thank you friends. Stay connected. Stay blessed. Stay safe. Namaskar.