 whenever Mr. Soma Shekhar takes the sessions. His sessions are holistic. Not only it gives a better view, I'd rather say, but it takes you to the closer look and at the same time, like a hawk, you can take the right things in the right way. Without taking much time, I would ask Mr. Soma Shekhar to take things forward. And we are enamored by the fact that those who had some health issues but his commitment to the, his commitments takes things forward. And that makes us, that makes it more inspirational that despite all challenges, one takes the things. And that is the difference between a ordinary resource person and an extraordinary resource person. Over to you, sir. Thank you. Good evening, Mr. Vikas Chakrat and good evening, friends. And the subject for discussion this evening is trial of suits for specific performance. As usual, let me start with greetings. Greetings or greetings requires that only facts, material facts should be pleaded. Evidence need not be pleaded. Arguments should never be pleaded. This is the basic rule. Experience has shown that client, even in a suit for specific performance, runs to 15 to 20 pages, while maximum it should stop with four pages, including the schedule. Experience has also shown that more details of the title of the vendor are given in the client. It is not a suit for declaration of title. Plaintive takes the risk of purchasing a property from a person who has no title. Therefore, why should in a suit for specific performance, there should be so much elaboration on the title of the defendant in respect of the suit schedule property. Suffice if you say that the defendant being the owner of the suit schedule property has instituted this agreement of sale in your favor. Experience has also shown that the entire recitals in the agreement of sale are incorporated in the plate. There is absolutely no need. In a suit for specific performance, the agreement of sale is the suit document and certainly the court will look into it and it will be marked during the course of trial. Do not be under the impression that the court reads only the plate and not the documents mark any evidence. Therefore, there is absolutely no need to extract the terms of the agreement in the plate. Now, in some suits, an alternative relief is spread saying that even the court does not grant a degree for specific performance or for any reason the court is not inclined to grant a degree. The earnest money which has been paid to the defendant be repunded. I suggest that invariably such an alternative prayer is made in all the suits. Be it refund of earnest money or compensation or possession. Straight away, I'm taking you to section 21 of the specific effect. Power to award compensation in certain cases. In a suit for specific performance of a contract, the plaintiff may also climb compensation for its breach in addition to such performance. The word addition has been added by the new amendment of 2018. I mean, only something is deleted from the original act substituted for the words either in addition to or in substitution of prior to the amendment, the court would award compensation in addition to the relief for specific performance or in substitution, that is in the alternative. Now, in addition to the relief for specific performance, the court may grant it, therefore, the plaintiff may climb it. If in any such suit, the court decides that specific performance ought not to be granted, but that there's a contract between, I will leave subsection two for the present. I will have attrition to come to subsection two, subsection three, again. But I am now on the proviso to subsection five. Provided that where the plaintiff has not climbed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint and such terms as may be just for including a claim for such compensation. The main part of subsection five reads, no compensation shall be awarded under the section unless the plaintiff has climbed such compensation in his plaint. Therefore, we cannot afford to take the risk of not making a prayer for compensation, thinking that the court would give it alternatively. The statute law requires that you should make a prayer. If for some reason you have not made a prayer, the court can allow you to amend that plaint at any stage of the proceeding. The proviso to order six rules, 17 CPC, inserted by the 2000 to amendment, which requires that hall amendment should be done before the commencement of trial. If after commencement of trial, any application is moved for amendment, a special case will have to be made out. The court is bound to allow the amendment. Almost in the same lines, we have section 22. In addition to the relief of specific performance, possession, partition and separate possession may also be prayed. Any other relief to which he may be entitled, including the refund of any earnest money or deposit by subsection two. No relief under clause E or clause B shall be granted by the court unless it has been specifically linked. There is a proviso to subsection two. Similar, same, it is similar to the proviso to subsection five. Therefore, without there being a prayer for refund of earnest money or for possession the court cannot grant it. Well, there might have been some cases where the honorable High Court or the Supreme Court might have granted compensation or refund of earnest money, even though there was no specific prayer. But we should know that High Court and Supreme Court have got some extraordinary powers. In a given case, instead of driving the parties to a second round of litigation and amendment and all that, they would have an exercise of their extraordinary powers would have allowed such a reliefs. But as far as trial courts are concerned, there is a clear statutory bar and we are also battered by a decision of the Supreme Court which will kindly make a note of. 2004, volume eight SCC 569, 2004, volume eight SCC 569. The Supreme Court in this decision has said the exercising powers of equity, the court cannot grant reliefs beyond the statutory provisions. It has been specifically excelled. In our view, the High Court has clearly erred in granting the compensation under section 21 in addition to the relief of specific performance in the absence of prayer made to that effect either in the plaint or amend in the same but any later stage of the proceeding to include the relief of compensation in addition to the relief of specific performance. The rant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable considerations, court cannot ignore or overlook the provisions of the statute, equity must yield to law. Therefore, probably this decision of the Supreme Court has got unnoticed and it is high time that lawyers and judicial officers keep in view this decision and without there being a prayer that cannot be given. Following this decision, the Supreme Court in 2007, eight SCC 600, 2007, eight SCC 600 has said when can equity jurisdiction can be exercised? In India, equity jurisdiction can be exercised only within the four continents of law. In England, the court of equity exercises jurisdiction in equity. The courts of India do not possess any such exclusive jurisdiction. The courts in India exercise jurisdiction both in equity as well as law but the exercise of equity jurisdiction is always subject to the provisions of law. If exercise of equity jurisdiction would violate the express provisions contained in law, the same cannot be done. Equity jurisdiction can be exercised only when law operates in the field. The court of law cannot exercise its discretionary jurisdiction dehearse the statutory law. Its discretion must be exercised in terms of the existing statute. In the succeeding para, the Supreme Court has made a reference to this 2004, eight SCC 569. Therefore, in view of the statutory bar under section 21 and 22, the court cannot grant relief of refund of earnest money or compensation without there being a prayer. Advocates cannot take the risk of not making a prayer. At any time that could be done, even when the case is posted for arguments, we can make an application for amendment. As I said already, R6 rule 17, the reasons attached to it by the proviso do not apply there or not applicable. We can certainly make an application in the trigger. With trigger to possession also, better a prayer is made because I have something to say about possession and I take up the issue of executing a decree for specific performance. For the time being, please note that there be a specific prayer for possession. Unless possession is already delivered under the agreement of state. Next. Well, all of you know that in a suit for specific performance, usually there is a government that the plaintiff has always been ready and willing to perform this part of the contract. I jokingly tell, the plaintiff must establish his readiness and willingness to conduct the case also. Lawyers should establish their readiness and willingness to conduct the case and argue the matter. Readiness and willingness is not just for the plaintiff. It is for the lawyer also to see that from the day the suit is filed till the arguments are concluded at every stage or she's ready and willing to perform this part of the duty. And here again a bit of English. Readiness and willingness. They say plaintiff has established his readiness and willingness. Don't say plaintiff has established his readiness and willingness. You got to nes, you can't take it as a common factor and say for readiness plaintiff is ready and willing to perform this part of the contract. Plaintiff has established his readiness and willingness. don't say that the plaintiff has established his ready and willingness. Now, as all of you know, the specificity fact has undergone an amendment by Act number 18 of 2018, Section 16 of the World Act required the plaintiff to make a specific government that he had always been ready and willing to perform this part of the contract. Now that requirement of making that government isn't the right, even if you plead it, there is no harm, but even if you do not say that the plaintiff was always ready and willing to perform this part of the contract, there is no difficulty, no, because to that extent Section 16C is amended, but requirement to prove readiness and willingness is still there. I indeed remember that. Now, when it comes to the written statement, the denial should be very specific. What happens is, in Para II of the plaintiff, there is a reference to the sentiment of sale, the total sale consideration agreed to be paid, advance amount paid, time fixed for performance, everything is stated in Para II of the plaintiff. The defendant in one of his Paras, in one of the Paras of the written statement says that the governments in Para II of the plaintiff, entire Paras II is extracted and itemized leases are false, plaintiff is put to strict proof. Somewhere in the 7th or 8th Para, the defendant says, the facts of the case are this, defendant wanted loan from the plaintiff, plaintiff insisted that the defendant should execute a document in the nature of an agreement of sale as a security for the loan advance. Therefore, in these circumstances, the defendant was forced to execute the agreement of sale. This is a situation where the execution is admitted, certain facts are pleaded by the defendant as to in what circumstances the agreement came in to be. Therefore, if you want to deny the agreement, please be very specific, ascertain from your client whether he has actually executed the agreement. If he says that he has executed the agreement, but in these circumstances, be honest, make a straight case saying these are the circumstances in which the agreement came in to be. There is no funding denying in Para II of the written statement that the government's mailed in Para II of the plaintiff are false, untarted, etc., and plaintiff is put to strict proof. In fact, you will be put to strict proof of establishing that the document came in to be in the circumstances pleaded by you in Para VIII of the written statement or Para IX as the case may be. The denier will have to be very specific when it comes to written statement or the VIII rule 3, 4, 5, about which I spoke on the last occasion perhaps, would tell you that the denier will have to be very, very specific in that regard. The next question is who should be the parties to the suit? Obviously, the vendor is one of the parties to the suit. There is absolutely more difficulty about it. Should a subsequent purchase be implemented? Please go to section 19 of the specific relief act. 19. Except as otherwise provided by this chapter, specific performance of a contract to be enforced edict, A, C, D, E are not relevant, B, I am reading, 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 noticing the original contract. Therefore, if prior to the filing of the suit, the vendor has already executed a sale deed in favor of a third person, that third person should be necessarily implanted because if after trial the court comes to the conclusion that the subsequent purchaser is not a bona fide purchaser in the sense he knew about the agreement of sale executed by the defendant, by the vendor in favor of the plaintiff, a decree has to be passed against him also and therefore he will be a necessary party to the suit. This is then here itself I want to tell you what is the position if there is a transfer during the pendency of the suit, less pendent transfer, pendent-alike transfer, is it necessary to implement it? Here I need to draw your attention to three decisions. The first decision that is frequently cited is in the famous Tasturi's case, Tasturi versus Ayya Perumal 2005, Volume 6 SCC 733, 2005, Volume 6 SCC 733, Tasturi's case. This is a decision of three judges. The precise question whether a purchaser-pendent-alike should be implanted in a suit for specific performance has not been examined in this case. What was examined was whether a third party claiming an independent title to the suit property should be implanted. The Supreme Court said a third party pleading an independent title cannot be implanted if the law laid down in this Tasturi's case. But specifically the question whether a less pendent-alike transfer can be implanted has been examined by the Supreme Court in 2013, 5 SCC 397, Thomsen Press India Limited versus Non-Ed Builders and Investors. I repeat Thomsen Press India Limited versus Non-Ed Builders and Investors, 2013, 5 SCC 397. The Honorable Supreme Court has said such an impedement is done under Order 22 Rule 10 CPC. Kindly go to Order 22 Rule 10. Proceed here in the case of assignment before the final order in the suit. In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may by leave of the court be continued by originally person to or upon whom such interest has come or devoid. Therefore, a less pendent-alike transfer rate and himself come on record supposing he has purchased, forget about a suit for specific performance, any other suit, if it is the plaintiff who has sold the property, the less pendent-alike purchaser can come on record as the plaintiff will continue the suit. If the defendant has purchased, has sold, the plaintiff can impede the less pendent-alike purchaser or the less pendent-alike purchaser himself can come on record. In a suit for specific performance also, the suit may by leave of the court be continued by or against the person to whom or upon such interest has come or devoid. Therefore, in Thomsen Press case, the Honorable Supreme Court has said that under order 22 rule 10 CPC, this less pendent-alike purchaser can be impede. The next decision is AER 2019 Supreme Court 3577, AER 2019 Supreme Court 3577, Gurmeet Singh Bhatia, Gurmeet Singh Bhatia versus Kiran Khanth Robinson, Gurmeet Singh Bhatia versus Kiran Khanth Robinson. Well, this decision needs to be very carefully read and understood. I told you that Tasturi's case is a decision of three judges. The precise question whether a less pendent-alike purchaser should be impede in a suit for specific performance had not arisen for consideration in that case. Whereas Thomsen Press case, though it's a decision of two judges, that precise question arose and in fact both the Honorable judges constituted in the division bench, wrote separate but conjuring judgments. This cannot be lost sight of. In this Gurmeet Singh Bhatia's case, Thomsen Press India Limited has not been referred to. Tasturi has been referred to. Ultimately, it boils down to this. The principle is plaintiff is the dominant leaders. And against his wishes, a third party cannot be implanted. Plaintiff cannot be expected to fight litigation against a person who he does not want. But on the other hand, if the plaintiff himself chooses to implement the third party, there can absolutely need to know about it. So if we carefully read this Gurmeet Singh Bhatia's case, in my opinion, there is nothing in it which is taking a view contrary to what has been held in Thomsen Press case. So if the plaintiff himself makes an application to implement the lispententate transfer, there could be absolutely no difficulty. But if the lispententate transfer wants to come on retard, and if the plaintiff opposes the application, the court cannot allow it. But if the plaintiff has no objection to fight litigation against the lispententate transfer, then there should be no difficulty at all. Then, in a suit for special performance, some person claiming to be a tenant in the schedule property, a co-owner, co-tenant, all those persons cannot be implanted. This has been held in 2010. Volume 7 SCC 417, 2010. Volume 7 SCC 417, a judgment by Honorable Justice R.V. Ravindran. In detail, it has been held for all the persons who can be implanted in a suit for specific performance has been considered at great length. And participants may well go through the judgment at their leisure. Now, the next question is, what are the defenses open to a defendant in a suit for specific performance? Please go to section 9 of the Act. Defenses respecting suits for relief based on contract, except as otherwise provided hearing, where any relief is climbed under this chapter in respect of a contract, the person at this chapter is chapter 2 with the title specific performance of contracts. Agents whom the relief is climbed may plead by way of defense any throne which is available to him under any law relating to contracts. If a suit is filed in respect of a contract, either for damages or for compensation or for any other relief, whatever defense is available to the defendant in a suit based on a contract, all those defenses are available to him if the suit is one for specific performance. This in brief is the purpose of section 9, which are those defenses which are available to a defendant in a suit based on a contract. Number one, the contract never came into force. He is not a party to the contract. It is a forward instrument. Such a plea is always available. Second, contract is a void contract. It is opposed to public policy, section 23 of the contract act. It is a voidable contract. It was obtained by coercion, undue influence, fraud, misrepresentation, mutual mistake, other things. I have avoided that contract. I have already performed that contract. Nothing remains to be performed on my part. I have already executed a sale deed. There is nothing to be done. Time was the essence of the contract. Plaintiff did not come forward to get the document executed within this time, stipulated in the agreement. Therefore, I am not liable to execute the sale deed. Contract has become frustrated. The property in respect of which the contract was executed, no longer exists. It is a house property. It has fallen down. The government has acquired the property. It is no longer available. There is a bar for transfer of such properties created by some block. Therefore, the contract has become frustrated, section 56 of the contract act. Therefore, whatever defense would have been available to the defendant, if the suit was one for a contract, if based on a contract, such defense is available to the defendant in a suit for specific performance also. Apart from these differences under section 9, there will be several other things. There is some legislation which prohibits transfer of the particular land or the site. Supposing it is a granted land. In the grant itself, there is a clause saying that for a period of 10 years or 15 years, the land or the site shall not be sold by the grantee. What is its effect? In Karnataka, we have what is known as the Karnataka Schedule Caste and Schedule Tribes, prohibition of certain lands act, popularly called as the PTCL Act. There, an agreement of sale is also included in the definition of the term transfer. And therefore, the Karnataka High Court in two cases has taken the view that an agreement of sale in respect of the land granted to a person belonging to a Schedule Caste or Schedule Tribes is void. Therefore, a suit for specific performance would not lie. In the context of Land Reforms Act, we have certain decisions. Under the Karnataka Land Reforms Act, of course, some provisions are also now repeated. Before that, there was a provision saying that a non-agricultureist would not have purchased an agricultural property, an agricultural land without the permission of the authorities. Court said suit for specific performance would lie after a degree after a specific performance is passed, the plaintiff with three-folder can approach the competent authority and the seek permission. Suit itself is not work. But in the context of Section 61 of the Land Reforms Act, the court has taken a view that it would be an agreement which is void. Of course, we have a recent decision of the Karnataka High Court, but as the audience here is from all over the country, I propose to cite the decision of the Supreme Court. And that very decision of the Supreme Court has been followed by our High Court also recently. I will cite a way referred to the decision of the Supreme Court AER 2019 Supreme Court 4654. AER 2019 Supreme Court 4654. And whenever a plea is taken that a particular statute bars this suit, you will have to see whether the statute bars an agreement of sale or it bars only the alienation. Is there a ban for entering into an agreement of sale or the ban is only for sale? In this regard, you may refer to 2018, Volume 2 SCC 82. 2018, Volume 2 SCC 82. Of course, this decision apart from dealing with this aspect also deals with the concept of readiness and willingness and about the limitation for a suit for specific performance that also you can read as and when the occasion arises. So, we have seen how the pleading should be, how the plaint should be, how the denial should be specific in the written statement, who should all be parties to the suit, what should be the prayer and what are the defenses so put to a defendant. Now, after the issues are framed, kindly go through the issues framed and see whether the burden is properly cast. I have already read out section 19 of the specifically fact. It says that a degree for specific performance can be passed against a person who is not a bona fide transferee. Who has to establish that he is a bona fide transferee? It is the subsequent purchaser who has to establish it merely because the plaintiff says in the plaint that the second defendant is not a bona fide transferee, burden cannot be cast on the plaintiff to say to prove whether the plaintiff proves that the second defendant is not a bona fide purchaser. It is for the second defendant who has purchased the property affirmatively established that he is a bona fide purchaser. This is one important. Here again in a bit of English, I have seen many lawyers using the word issue to be recast it. No, recast, cast, cast, cast, present tense, past tense, past participle, cast, cast, there is nothing like casted, recast it. And when does the question of casting or recasting arises? When the burden is randomly cast, in every case where an issue is amended or refraved, it is not recasting the issue. Recasting means burden is thrown on the plaintiff. Actually the proving that issue is on the defendant or the burden is thrown on the defendant, the plaintiff should have taken the burden. That is not recasting. The burden is cast at one party. It is now recast on the other. So these two things you will kindly remember. Therefore, if the court has wrongly framed the issues, the right time is to go through the issues and request the court to suitably amend the issues. Now, how do you know when the issues are correctly framed? Only when you know the substantive law, to know whether issues are correctly framed, the reading of order 14 and sections 101 to 104 of the evidence that would not be sufficient. You should know the substantive law also. Then you will be knowing who has to take the burden. Then having said about the issues, now let us see what here is required to be taken during the course of trial, how these various issues need to be proved. Supposing the very execution of the document is denied, what is the kind of evidence that can be given? Under section 68 of the evidence that if a document requires attestation, one of the attestors should be examined if the execution is specifically denied. An agreement of sale is not a document which requires compulsory attestation. Therefore, there is no need to examine theoretically speaking, there is no need to examine the attestor to prove an agreement of sale if the execution of the agreement of sale is specifically denied. But evidence discloses, it is brought out in the cross-examination of the plaintiff that both the attestors are alive, or at least one of them is alive, that his relationship with the attestor who is alive is quite good, quite fragile, he has no animosity in the plaintiff. In such a situation, would it not be a foolhardy risk not to examine the attestor and examine someone? The evidence of the attesting witness would be that half a witness who has seen the transaction, who has seen the defendant citing the document, he gives direct evidence of it. Therefore, theoretically speaking, you may be justified in saying that the document does not require attestation and therefore you are not chosen to examine the attestor. But why that best evidence is kept away needs to be explained. Therefore, it may not be proper to keep the attestor away from the court if he is otherwise available to give evidence. Then with regard to passing of consideration, usually the attestor himself will speak about it, and the document also would disclose it. Sometimes apart from the reciters, the document receipt also would have been given. Sometimes if the advance amount is paid by way of cash, by way of check, check would have been encached. An entry in the bank account, all those things would clearly show the passing of consideration. Then, in a serious case where the execution is specifically denied, the attestors are not available, well, it may be a case where you need to seek the services of a handwriting expert or a fingerprint expert to crew the execution of the document. Well, if everything is fine, the court may also be requested to compare the signature as provided by section 73 of the dividend set. All this I said depending on the question whether the denial of the execution is specific or not. In a case, as I said, the defense is that the defendant wanted to apply if insisted on a document in the nature of an agreement of sale, and therefore the dependent was compelled to execute the sale of sale, I don't think that it is necessary for the document. Then the next thing that you are required to prove even after this amendment is readiness and willingness to perform, your plaintiff is part of the contract. Readiness it has been set is financial readiness, plaintiff's capacity to pay the balance sale consideration. Here again one thing needs to be kept in view. Let us say the total consideration is 25 lakhs. Plaintiff has paid on the date of the agreement of sale 10 lakhs. On two subsequent occasions, file acts each. What remains is file acts. Therefore, in a major portion of the consideration is paid, well, readily the court can infer that the plaintiff had the financial readiness to pay the balance amount. The usual documents that are produced to show this financial readiness are banned for both account extract and these are the documents that are generally produced to show that the plaintiff has the financial wear withal to prove to pay the balance sale consideration. In this context, the explanation to section 16c specifically that bears a reference. Section 16c says well, plaintiff has to establish that he was always ready and willing to perform. Let us read the explanation. For the purposes of class C, 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. Arguments are advanced by the defendant's counsel saying that at the time of filing this suit, the plaintiff has not deposited the balance sale consideration that itself shows that the plaintiff is not ready and willing to perform this part of the contract. No, the statute itself says that he is not required to do it. And there is no need. The Supreme Court has said there is no need for the plaintiff to carry money every day to the court and show that she has that means to pay the critical amount in this to pay the balance sale consideration. In this regard, in my record to a very old decision of the Supreme Court in nineteen sixty nine three SCC one two zero nineteen sixty nine three SCC one two zero not all versus not all versus not all versus with regard to the factors that the court needs to take into consideration while appreciating the aspect of readiness and willingness you may refer to two thousand eighteen volume fifteen SCC paid eighty eight zero two thousand eighteen volume fifteen SCC paid eight zero. There are good number of decisions I am only giving you a fairly two or three fairly recent decisions two thousand eighteen volume three SCC six five eight two thousand eighteen volume three SCC six five eight. There are any decisions I am only referring to one or two now in the second of the decisions which I cited the distinction between readiness and willingness is also explained the next question is whether the subsequent purchaser who is usually shown as the second defendant can also plead that the plaintiff was not ready and willing to perform this part of the contract earlier a view was taken that the such a plea is not available to the subsequent purchaser it is only the vendor who can take such a plea but the recent decisions of the supreme court point out to the contrary one of them is not all that recent but fairly recent two thousand volume two SCC four twenty eight two thousand volume two SCC four twenty eight a decision of three judges a subsequent purchaser also can plead that the plaintiff was not ready and willing to perform this part of the contract then we have two thousand eighteen volume eleven SCC seven six one two thousand eighteen volume eleven SCC seven six one these are subsequent decisions which explain to you that how to infer readiness and willingness and also that such a plea is available to the subsequent purchaser also now I told you if the subsequent purchaser is implanted and it turns out that he is not a bona fide a purchaser the suit has to be declared both against the vendor and the subsequent purchaser on the other hand if the subsequent purchaser establishes that he is a bona fide a purchaser the suit has to be dismissed then what are the factors that the court will have to keep in view while appreciating or whether the plaintiff has to place on record or the defendant has to place on record about these bona fides or otherwise of the subsequent purchaser please go to the transfer of property had section three of the transfer of property had it is titled as interpretation clause here it is stated a person is said to have notice of a fact when he actually knows that fact so therefore the plaintiff has to establish I mean not to establish plaintiff has to bring out from trust examination that the second defendant actually knew the fact of the first defendant having instituted an agreement of sale in favor of the plaintiff cross examination should be on those slimes to give an indication that the second defendant knew that there was an agreement a prior agreement of sale in favor of the plaintiff executed by the first defendant or when but for willful abstention from an inquiry or search which he ought to have made or grass negligence would have known it supposing the parties are closely related it is quite unlikely second defendant did not make inquiry second defendant did not know that there was an agreement of sale prior agreement of sale in favor of the plaintiff then explanation who to this clause with the title a person is said to have notice is important any person acquiring any immobile property or any share or interest in any such property shall be deemed to have notice of the title if any of any person who is for the time being in actual position thereof therefore if there is evidence to say that the second defendant was in actual position of the suit property then the plaintiff is deemed to have notice of it the explanation one says if it is a registered instrument then it is also notice registration is public notice therefore it is second defendant has obtained title and a registered instrument obviously he must obtain title and a registered instrument and he is also shown to be in position well he can successfully plead that he is a borough by the purchaser the next thing about which you need to give evidences about the time being or not being of the essence of a contract you know the presumption in this regard in the case of an immobile property time is not of the essence of the contract here again preposition of is often time is not of the essence of the contract at two places you will have to use the word of time is not the essence of the contract time is not of the essence of the contract that is how section 55 reads without taking much time I will just make a cursory reference to section 55 when a party to a contract promises to do a certain thing at or before a specified time or certain things at or before specified time and fails to do any such thing at or before the specified time the contract or so much of it as has not been performed becomes voidable at the option of the promissive if the intention of the parties was that time should be of the essence of the contract therefore merely because it is stated in the document that the balance sale consideration should be paid within six months one year that itself will not make the time of the essence of the contract there must be evidence to say well the parties had agreed that in the event the defendant failed to the plaintiff failed to pay the balance sale consideration in that type the contract should come to an end the defendant the plaintiff would have absolutely no right in the no right to get the document today because the presumption in the case of contract of immobile property is that time is not of the essence of the contract of course there is a loud thinking that this presumption should no longer be made available on the other hand having to cut the escalation of the escalation in the prices time should be made the essence of the contract even in a case of immobile property is a loud thinking well the statute does not provide it no does not provide for it now I would give a few important decisions with regard to section 20 of the description we have in the section 55 of the contract act some standard decisions on section 55 of the contract act that is time being of or not of the essence of the contract one decision which is frequently cited is AER 1967 super import 868 AER 1967 super import 868 the next decision is 1979 2 SCC 70 1979 2 SCC 70 these are two important decisions which are generally cited when the issue is whether time was of or was not of the essence of the contract supposing the attestors are also aware of the transaction if any talks took place at the time the agreement of sale was executed as to whether time should be made of the essence of the contract or not maybe the evidence of the attestors also would be useful then about the performance of obligation of the part of each party well plenty would have stated that these are the things that the defendant should have done well he should have obtained clearance from income tax authorities from some competent authorities or the defendant could have stated well I had executed a power of attorney for the plaintiff it was for him to do it therefore the terms of the contract will have to be carefully read to know who actually had an obligation to perform a particular who was required to do a particular thing on whom the obligation was it is on those slides the evidence will have to be let it here for those advocates who are dealing with arbitration matters I must tell you that we have a provision under the arbitration and conciliation act section 28 of the arbitration and conciliation act says in all cases in all arbitration matters the arbitrator has to take into consideration the contract between the parties so arbitrators as arbitrators we give primacy to the contract between the parties therefore even if it is not a case for arbitration you should essentially go by the written document see on whom the obligation rests otherwise any amount of evidence would not do there will be many times it turns out that nothing more is required to be done by the plaintiff let us take a case where the entire sale consideration is paid what remains to be done on the part of the plaintiff law does not require that the plaintiff should even give a legal notice nothing remains to be done on his part it will be for the defendant to do it therefore you must carefully go through the contract that is the agreement of sale between the parties and find out what are the obligations cast on the plaintiff and what are the obligations cast on the defendant and whether they have done it or not then about equities of course section 20 of the specifically fact has been amended I will come to it a little later assuming that the act is only prospective hardship can still be pleaded well equities will have to be worked out whether by sale of the suit schedule property the defendant would be put to greater hardship then what the plaintiff would be put to if specific performance is refused I am quite conscious of the fact that section 20 of the specifically fact is totally taken out and a new section has come I will elaborate on it later but assuming that the act is only prospective and it is still open to the court to consider the question of hardship well you will have to place evidence what was the intention of the parties the plaintiff also intended to buy the property because he had no other house he was about to retire he thought of settling down and therefore he intended to purchase the property if a decree for specific performance is not granted he would also be put to hardship on the other hand the defendant was compelled to execute an argument in the circumstances immediately he had to discharge some loan or arrange money for treatment of a member of the family or perform a marriage or to send his children for higher education these are the equities which weigh in favor of the plaintiff and in favor of the defendant there should be enough evidence in this regard ultimately for the court to grant or refuse the relief of specific performance then about limitation let us go to article 54 of the limitation act for specific performance of a contract 3 years 3 years from which date 3 years from the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused if anyone has an impression that 3 years has to be calculated from the date of the agreement it is time that he comes out of that impression it is not 3 years from the date of the agreement it is 3 years from the date fixed for performance that is the first part of article 54 if time is not fixed date is not fixed for performance then plaintiff has noticed that performance is refused now what is this date fixed I am not aware as to how the documents of documents regarding agreement of sale are drafted elsewhere in the country the decisions from other parts of the country also indicate that normally a time is fixed date is not fixed within 3 months from the date of this agreement the plaintiff should pay the balance sale consideration and get the sale deed executed and registered within 6 months within 1 year normally in Karnataka no date is fixed time is fixed viewer of the view that when time is fixed time within 3 months or 6 months from the date of the agreement and then limitation starts after the expiry of 3 months or 6 months one of my good friends has brought to my notice 2 decisions of the supreme court on the aspect of limitation which given indication that the date referred to in article 53 is it calendar date not time like 3 months or 6 months supposing it says by 15 since 2021 the entire sale consideration has to be paid the balance sale consideration has to be paid 3 years from 15 since 2021 if that is not the date fixed then the limitation starts as for the second part of article 54 well please make a note of these important decisions of the supreme court on the point 2008 volume 5 SCC 361 2008 volume 5 SCC 361 this was the this was the decision of the division bench in the division bench took to the view that some earlier decisions of article 54 were conflicting and therefore the division bench was the view that the matters were referred to a larger bench so a larger bench was constituted the assistant of 3 honorable judges the decision of the larger bench is reported in 2009 volume 5 SCC 462 2009 volume 5 SCC 462 after referring to all conflicting decisions ultimately it has what has been held fixed in essence means having final or crystallized form or character not subject to change or fluctuation then in paragraph 12 it is stated the expression date used in article 54 of the schedule to the act definitely is suggestive of a specified date in the calendar this is the view taken this decision in 2009 SCC 462 which I said is a decision of 3 judges has been subsequently following 2016 volume 15 SCC 322 2016 volume 15 SCC 322 in this 2016 it has been said well the legal position has already been settled by the decision of 3 judges in 2015 in between before this 2015 we had one other decision also that is 2015 volume 5 SCC 223 2015 volume 5 SCC 223 in this 2016 it has been said in 2015 5 SCC 223 similar view as the one taken by the larger bench in 2009 5 SCC 462 is laid out for the benefit of those who have not made a note of these decisions I am repeating 2008 5 SCC 361 this is the decision in which the reference was made then 2009 5 SCC 462 is the decision after reference 2015 5 SCC 223 is the decision in between thereafter in 2016 volume 15 SCC 322 this legal position is reiterated so this is with regard to the aspect of limitation well I have by now exhausted myself in telling that an agreement of sale does not require writing even if it is written it does not require registration if registration is necessary if possession is delivered for the purposes of section 53A of the Transfer of Property Act I told you about this on the day I spoke about partition suits then again I did when I spoke about registration act today as a last occasion LISD not LOSD let this occasion be not last LOSD take it as a last occasion let us not again commit the mistake of telling that possession has been delivered under the agreement of sale and therefore it requires registration when does it require registration only for the purpose of section 53A I am reading section 17 1A of the registration act the documents containing contracts to transfer for consideration any immobile property for the purpose of section 53A of the Transfer of Property Act shall be registered if they had been instituted on or after the commencement of registration and other related laws and if such documents are not registered all are after such government then they shall have no effect for the purposes of section 53A so therefore if the suit is for specific performance there is absolutely no need for the document of sale to be registered even if possession is delivered on the other hand the suit is for two release specific performance then permanent intention to not to interfere the plaintiff's position relief of specific performance can certainly be granted even though the document is not registered whereas the relief of intention cannot be granted there is no problem in marking the document the document can certainly be marked to grant relief for specific performance I have on earlier two occasions drawn your attention to that decision and I have also given the citation this as I said could be the last occasion last occasion not that I am not speaking on this platform anymore definitely speaking but to say about this registration aspect I will take it as the last occasion 2018 volume 7 SCC 639 Ameer Minhaj respondents name is difficult to pronounce we can take it as Elisabeth Diretri Elisabeth DIERDR Ameer Minhaj you can remember like this 2018 7 SCC 639 now I am on the aspect now that I am on the aspect of registration trying to go to section 49 of the registration act trying to go to section 49 of the registration act effect of non-registration of documents required to be registered no document required by section 17 or by any provision of the transfer of property acts to be registered shall affect any immobile property which is comprised of varying therefore the immobile property remains immobile it does not move no title close on that send for any power to adopt we received as evidence of any transaction affecting such property or conferring such power unless it has been registered this is the main part of it let us read the proviso provided that an unregistered document of property and required by this act or the transfer of property act to be registered may be received as evidence of a contract in a suit for specific performance under chapter 2 of the specific real fact this is important now A executes a sale deed in favor of B in respect of an immobile property A executes a sale deed in respect of an immobile property in favor of B A does not come forward for registration even after the expiry of 4 months what then is the remedy of it what then is the remedy of B if A had executed a sale deed and had also if A had come forward for registration and got the document registered if we had denied his title certainly B would have filed a suit for declaration of title title has not yet passed on because there is no registration of the sale deed what this B has he has only an unregistered sale deed now his remedy is to file a suit for specific performance he does not have an agreement of sale with him to evidence the sale to act to evidence the contract of sale what he has with him is only unregistered sale deed proviso provided that an unregistered document affecting immobile property and required by the set of the transfer of property had to be registered may be received as evidence of a contract in a suit for specific performance therefore in the suit to be filed by B agency A certainly this unregistered sale deed can be marked in evidence to show that there is a contract of sale there should be no difficulty at all it cannot be contended by the defendant well he is producing the sale deed it is not registered read only the main part and say that it cannot be marked in evidence proviso says that in a suit for specific performance an unregistered deal of sale can be admitted in evidence for what purpose to evidence a contract of sale in this regard we have two decisions to be supreme both which I will tell you 1999 volume 7 SCC 114 1999 volume 7 SCC 114 Kalavapurthy Venkata Subbaya Kalavapurthy Venkata Subbaya versus Bala Gurupagari Guravi Reddy 1999 7 SCC 114 this decision has been subsequently followed in 2010 volume 5 SCC 401 2010 volume 5 SCC 401 Kaladevi versus Soma Sundaram therefore if the suit is for specific performance and if the plaintiff has no agreement of sale and what he has is an unregistered sale deed only certainly that unregistered sale deed can be marked in evidence it is clear from the proviso section 49 of the registration act now the most important thing is whether this amendment brought in the year 2018 he is prospective or introspective the honorable supreme board is yet to make a pronouncement directly on this question to my knowledge but there is some indirect reference in the sense in one judgment of the supreme board it is said he knew the amendment brought to this act by referring to section 10 it is no longer discretionary that is the but in that case whether the act is prospective or introspective did not really arise for consideration we can take it as an orbiter data and an observation is made in terms of specifically fact as amended it is no longer discretionary let me just give that decision this is in civil appeal 3574 of 2009 civil appeal 3574 of 2009 connected with 3575 to 3577 of 2009 B Santoshamma versus Sarala B Santoshamma versus Sarala this is also reported I will give the citation a little later for the time being we can make a note of the party's name and the as I said I am speaking to an audience beyond Karnataka a division bench of the Karnataka High Court has taken a view that it is prospective only the decision of the Karnataka High Court is also directed to be reported but it is rendered in RFA 1560 of 2011 1560 of 2011 Suresh versus Mahadevamma date of the judgment is 2310 2020 Suresh versus Mahadevamma RFA 1560 of 2011 date of the judgment is 2310 2020 I will leave it there because till such time the Honourable Supreme Court directly decides the question whether the amendment is prospective or introspective let me not make a guess in that hazard a guess and leave everyone there I have no occasion to write a judgment except in some arbitration matters of course in arbitration matters I have relied upon this Karnataka High Court decision saying that well as lawyers you argue the matter and before the Supreme Court and see what the Honourable Supreme Court does but I have some indication from the scheme of the act itself which gives an indication that discretion still restricts the court in a matter of grant or refusal of specific performance without referring to section 20 I am telling please understand this section 20 has been taken off the statute and we have totally a new section I am coming to that new section a little later assuming for a moment that section 20 ornamented still remains on the ground that it is prospective only I said well patterns of hardship will have to be considered and I have also told you that the open to have a hardship has to be pleaded by the defendant and all that now leave it there from the act as it exists taking it to consideration the amendment also I have been I am of the opinion that there is still discretion in the matter please go to section 21 of the act I will first read section 21 subsection 1 which stood prior to the amendment in a suit for specific performance of a contract the plaintiff may also collect compensation for its breach either in addition to or in substitution of such performance so prior to the amendment this was the relief prayer yet specific performance prayer be in addition to the release of specific performance so much money by way of compensation or prayer yet specific performance prayer be in the alternative compensation that was prior to the amendment after the amendment it says may also climb compensation for its breach in addition to such performance so not by way of alternative relief in addition to the relief of specific performance compensation can also be awarded let us read subsection 2 if in any such suit that is in such a suit for specific performance the court decides that specific performance ought not to be granted what does that mean even after the amendment the court can come to a conclusion that this is a case where specific performance ought not to be granted what happens but then there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach it shall award him such compensation accordingly subsection 2 has not been amended by the recent amendment it has continued on the statute book I am only giving your thought as I said I thought later on the law you can just examine this legal position and I am not forcing my opinion on you I am only giving you a way as to how the argument can be developed and put forward if in any such suit the court decides that specific performance ought not to be granted but then there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach it shall award him such compensation accordingly examine the evidence on record the court comes to the conclusion no doubt there is a contract but this is not a case for award of specific performance defendant has certainly committed breach of the contract I am satisfied that this is a case for award of compensation and therefore the court can award it of course subsection 5 proviso says that there must be a prayer for it subsection 3 if in any such suit the court decides that specific performance ought to be granted but that is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff it shall award him such compensation in addition to the leave of specific performance compensation in determining the amount of any compensation awarded under this section the court shall be guided by the principal specified in section 73 of the contract no compensation shall be awarded under this section unless the plaintiff has climbed such compensation in the plaint provided that when the plaintiff has not climbed any such compensation in the plaint the court shall at any stage of the proceeding allow him to amend the plaint on such terms you see 16 though has been amended to the effect that there is no longer the requirement of pleading readiness and willingness the latter part of section 16 is not amended plaintiff is even now required to establish readiness and willingness if that is not established a degree for specific performance cannot be granted so lawyers appearing for the plaintiff cannot simply contend well I have proved the agreement I have said no more description lies in your the amendment granted degree for specific performance see whether you have your client has established readiness and willingness see whether it is a case where the court will not take it will take into consideration section 21 also this is what you are required to keep in view about this now the amendment that gives an indication that certain provisions are inserted certain provisions are deleted certain provisions are substituted the view taken by the supreme court is when a provision is substituted the substituted provision takes effect from the date of the parent enactment itself as though the substituted provision was written in ink and pen on the date the statute was originally the statute was enacted and it is no longer necessary to read the original statute and it is sufficient if you read the amended statute that is the language used by the supreme court in a year 1954 supreme court a year 1954 supreme court page a 1952 supreme court a year 1952 supreme court a year 1952 supreme court a year 1954 you may also read 1985 volume 1 sec page 1 1985 volume 1 sec page 1 then 1996 volume 5 sec 60 60 1996 volume 5 sec page 60 then 2001 8 sec 24 2001 8 sec 24 a year 2018 4197 well we have got a good number of decisions regarding interpretation of statutes supreme court further proceeded to say but this is not an invariable rule though normally if a provision is substituted it takes effect from the date of the parent enactment this is not an invariable rule the court has to take into consideration the object of the enactment the object of the amendment also is doing so if you read the statement of objects and reasons for this amendment you will get an indication the law ministry to give you that India was a growing economy foreigners were making investment in India in such a scenario the court is given discretion in the matter of specific performance no person would make an investment in the country therefore the discretion has to be taken away specific performance should be made a rule and there is an amendment with regard to infrastructure project and all that having regard to this amendment my own view is only now my is underlined my own view is after all what are the kinds of suits for specific performance which are coming in the refusal courts sale of one ether of dry land 40 by 60 site and all that by refusing a degree for specific performance and granting compensation in what way the economy of this country or the development of economy would get hampered therefore I have a strong feeling that despite the amendment brought to this specifically bad discretion still best fit the court anyway we will have to avoid the decision of the honorable supreme court directly on this point a point should be urged and we should have a direct decision on that point I am only putting you giving you some good for thought as and when an occasion arises you argue the matter take a decision now assuming that the act is only prospective and it is not retrospective hardship can still be played out let us make a note of a few important decisions on section 20 1987 supplement SCC 340 1987 supplement SCC 340 1999 5 SCC 1977 1999 5 SCC 2007 2002 volume 9 SCC 597 in this decision it is held that hardship has to be played out then only the court can consider it 2002 volume 9 SCC 597 2012 the defendant has to plead hardship 2012 volume 5 SCC 403 2019 volume 6 SCC 233 here again it has been held that hardship has to be played out we can also read 2015 volume 1 SCC 705 on the aspect of hardship 20 2015 volume 1 SCC 705 2018 volume 16 SCC 725 2018 volume 16 SCC 725 so these are some important decisions with regard to section 20 of the specific report what is this section 20 which has been now deleted and now you find a new section if you have the world specific report also with you you will find before the commencement of section 20 you have a subtitle there saying discretion and powers of the court that was the title given before the commencement of section 20 the title given was discretion and powers of the court then the title is also taken away the title itself is substituted performance of contracts etc substituted performance of contracts etc there we have the section 20 rather as substituted what is the substitution about what is it that has been said in the substituted provision let us carefully read it we too prejudice to the generality of the provisions contained in the Indian contract act I have already read out section 9 specifically that every defence that is available in a suit for contract is available to the defendant if the suit is one for specific performance all defences available under the contract act are available and except as otherwise agreed upon by the parties see the writers there without prejudice to generality of the provisions contained in the Indian contract act and except as otherwise agreed upon where the contract is broken due to the non-performance of promise by any party the party who suffers by such breach shall have the option of substituted performance to a third party or by his own agency and recover the expenses and other costs actually if they are spent or suffer by him from the party committing such breach he wants his house to be renovated enters into a contract with the contractor within the time agreed B does not complete the work therefore instead of getting the work done by B the plaintiff can get the work done by a third party who see or by his own agency he can get it done by his own means and recover the expenses and other costs actually if they are spent or suffered by him from the party committing such breach having interested the matter to a third party see if the plaintiff has entered some additional expenses costs etc he can recover it from B so what is the relief that the plaintiff can climb under section 20 it is not specific performance it is one of money what he can recover is only money what is the precondition for that go to subsection 2 no substituted performance of contract under subsection 1 shall be undertaken unless the party who suffers such breach has given a notice in writing of not less than 30 days to the party in breach calling upon him to perform the contract within such time as specified in the notice and on his refusal or failure to do so he may get the same performed by a third party or by his own agency so therefore that A has to issue a notice to B saying well you have not completed your part of the contract within the time specified please do it within the 30 days you will have to do it otherwise I will get it done by somebody else he must hover that in that written notice provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under subsection 1 unless he has got the contract performed to a third party or by his own agency if A does not get it performed by through C or by someone else he cannot recover damages so he cannot recover the costs and other things from B therefore B what is given under section 20 is only a monetary relief provided a prior notice is given calling upon a defendant to say that you are not doing it I will get it done by someone else where the party suffering breach of contract has got the contract performed by the third party or by his own agency after giving notice under subsection 1 he shall not be entitled to claim the relief for specific performance against the party in breach obviously when he has suffered a breach and he is used for recovery of cost he is also not entitled to the relief for specific performance nothing in this section shall prevent the party who has suffered breach of the contract from claiming compensation for the party in breach therefore section 20 though he is titled substituted performance ultimately the relief that is given under section 20 is only monetary relief this is another aspect of the matter which you will have to bear in mind where do you get the foundation for the substituted performance please go to section 40 and 41 under the contract act persons by who promises to be performed I am reading section 40 of the contract act if it appears from the nature of the case that it was the intention of the party's training contract that any promise contained in it should be performed by the promissor himself such promise must be performed by the promissor in other cases the promissor or his representatives may employ a competent person to perform it I will just give a simple example if we can take it as a joke now I had promised Mr. Vikas Chitrat that today I would speak about trial of source for specific performance what was the intention of the parties that I should speak about it if it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promissor himself such promise must be performed by the promissor it is my duty to do it I can't ask somebody else to make a presentation of course if Vikas Chitrat had said if for some reason you are not able to do it you please suggest the name of Mr. Yates he will instead speak on the subject section 41 when a promissor accepts performance of the promissor of a fellow person he cannot afterwards enforce it against the promissor that is what you find in section 20 subsection 3 of the specifically fact as amended so foundation for this substituted performance of section 40 and 41 of the specifically fact now we have a chapter of the decision of contracts under the specifically fact I am not dealing with all the sections under the chapter only section 20 it is relevant in so far as a source for specific performance is concerned therefore I am reading only section 28 of the specifically fact chapter 4 of the specifically fact has 4 sections 27 to 30 it has the title of decision of contracts I am reading only 28 where in any suit a degree for specific performance for contract for the sale or lease of the immobile property has been made and the purchaser of the receipt does not within the period allowed by the degree or such further period as the court may allow pay the purchase money or other some which the court has ordered him to pay the vendor or lessor may apply in the same suit in which the degree is made to have the contract rescinded and on such application the court may by order rescind the contract either so far as regards the party in default or altogether as the justice of the case may require what does this mean a degree for specific performance is passed we have already seen that as per section 16 of the act it is not necessary for the plaintiff to deposit the balance sale consideration after the degree he can deposit that is why usually in every degree for specific performance the operative portion reads like the suit is decreed plaintiff shall deposit the balance sale consideration in 3 months from today, 6 months from today that is how the operative portion the degree reads so within the time stipulated in the degree the plaintiff does not deposit the balance sale consideration or pay to the defendant well he can make an application that a very suit seeking extension for this reason I could not make payment well I had some financial problem therefore I could not deposit the balance sale consideration in time or pay to the defendant please extend the time of course after hearing the defendant the court would invariably extend that time what happens thereafter even after the extension of time the plaintiff does not deposit the money what happens allowed by the degree the court may allow pay to purchase money or others so with the court has ordered him to pay the vendor or lessor may apply the same suit the defendant may apply the same suit in that very suit in which the degree is made to have the contract rescinded and on such application the court may by order rescind the contract either so far as regards the party in default are all together as the justice of the case may require therefore you can have appearing for the plaintiff you can make an application for extension of time appearing for the defendant you can make an application to 28 one sale that even after extension of time the plaintiff has not deposited the balance sale consideration therefore the contract may be rescinded now if that application is allowed what is the consequence where a contract is rescinded under subsection one the court shall direct the purchaser of the lessor that is the plaintiff if he has obtained possession of the property under the contract to restore that possession to the vendor or lessor so of course after that application of 28 one is allowed the court can also direct the plaintiff to deliver back possession of the property to the defendant then B may direct payment to the vendor or lessor of all the possession of the property which I have proved in respect to the property from the date on it possession was so obtained by the purchaser or lessie until restoration of possession to the vendor or lessor and if the justice of the case so request the refund a very some pay by the vendor or lessie supposing the plaintiff was given possession he had let out the property to someone else well the court can also direct the plaintiff to pay the money which he has so received then if the purchaser or lessie pays the purchase money or other sum which he has ordered to pay that is the plaintiff pays it the court may have an application where it is same suit award the purchaser or lessie such further relief has to be entitled to including in appropriate cases all are any of the following beliefs namely the execution of the proper conveyance or lease delivery of the possession no separate suit can lie and 28 is one other provision which you will keep in you and how to execute this decree for specific performance please go to 21 rule 32 CPC 21 rule 32 where the party agents to my decree for the specific performance of a contract or for restitution of fundamental rights or for an invention has been passed has had an opportunity of obeying the decree the precondition is here an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced in the case of a decree for restitution of fundamental rights by the attachment of his property or in the case of a decree for the specific performance of the contract or for an invention based detention in the civil prison or by the attachment of his property or by this is one mode of instituting a decree for specific performance normally nobody takes reports to them because no purpose should be served what is it that the plaintiff wants the plaintiff wants a salary to be executed by the defendant and get it registered so that remedy is available under section 21 34 or 21 rule 34 where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment that are neglects or abuses to obey the decree the decree holder may prepare a draft document or endorsement in accordance with the terms of the decree and deliver the same to the court therefore the usual procedure is an execution petition is filed a draft sale is given the court appoints either it is half a staff member as a commissioner an advocate as a commissioner he goes to the office of the separate staff and get the document registered of course here there are some issues in Tarnada what we have is what is known as a 11 year stage that 11 year stage has to be furnished at the time of registration of the document well one of my friends told me that there are some decisions which have taken the view that when a decree for specific performance is passed by the court and the court sends the decree for registration the sub-president cannot insist on this change I have to go through that decision I will take that decision from my learned friend and go through it for my own understanding well lawyers from Karnataka may be aware of that decision also we can do it now one other question arises a property was agreed to be sold a decree for specific performance is also passed when the matter is pending in the state court or the matter is pending in the execution proceedings the property is acquired by the government the land acquisition glass do not come in the way of acquiring the property nearly because the litigation is pending in the court therefore for no fault of the defendant he can execute a safety in respect of the property because the property is sold for no fault of the plaintiff the plaintiff is not in any way cannot be put to blame because he has obtained a decree in such an event what could be done the supreme court has taken the view that in such an event the compensation that is awarded to the original owner can be given to the plaintiff plaintiff can seek compensation and if the matter is pending in appeal the decree can be suitably modified decree for specific performance can be suitably modified and instead of a decree for specific performance the compensation money awarded by the land acquisition officer to the original owner can be directed to the plaintiff if the execution proceedings that happens well a similar direction can be given in this regard you may read 1992 volume 1 SCC 684 1992 volume 1 SCC 684 then 2018 volume 2 SCC 284 2018 volume 2 SCC 284 and a recent decision rendered on 34 2021 34 2021 by the supreme court in Sukhbeer v. Ajit Singh Sukhbeer SUKHBIR Sukhbeer v. Ajit Singh civil appeal number 1653 of 2021 1653 of 2021 1653 of 2021 this is the view taken by the supreme court recently this is the view taken by the supreme court recently so this is and for the benefit of the junior members of the bar before I part with I want to tell you something about this concept of the video you are being told that specific performance is an equitable relief he who comes to report with clean hands alone can be given that relief for specific performance or intention and he should not be guilty of latches he should come to report with clean hands everything that is stated unfortunately what I am seeing is even when an application is filed for advancement of a criminal case the session's court or the high court would have granted anticipatory bail or bail the accused moves an application for advancement of the case under section 309 CRPC 309 CRPC does not speak of advancement of the case it speaks of day to day trial it does not speak of any advancement or adjournment it speaks of day to day trial an application is filed under section 309 CRPC for advancement of the case saying interest of justice and equity the case may be preponed or advanced an application for adjournment is given in a civil case or in a criminal case a request is made to adjourn the case in the interest of equity decisions are given and there I say these decisions may be produced in the interest of equity what is that equity at all see equity is something which law cannot give law has certain contours it has certain restrictions you cannot go beyond the terms of a statute and grant relief when it comes to equity some relaxation is permissible in England we had these two jurisdictions the court cannot put not grant a degree for specific performance the only relief that was known was the only remedy that was known was damages if a contract of sale was not performed the plaintiff could not sue for specific performance he was entitled only to the relief of damages but the king who had the resident power of judicial administration was exercising his power of equity and was granting the relief of specific performance the court could not give it but the king could give it then ultimately two jurisdictions developed equity jurisdiction and law jurisdiction so courts of equity were giving the relief of specific performance whereas courts of law were only giving the relief of damages there is a fusion or merger of the two systems equity jurisdiction and in India as I told you those two decisions I have brought to your notice those two decisions would clearly sell in the face of in the teeth of specific provisions the court cannot exercise equity jurisdiction we had no doubt courts do exercise equity jurisdiction when the law provides for it we have section 43 of the transfer of property at fielding the grant by a stable section 53 of the TP add provisions of the specific relief act all these things are equitable reliefs which in the four corners of law only we can make this equity see because when it comes to equity there is no particular standard for it each has its own standard it has been very beautifully put by one John Selden in the early 80s in Indian Express there was a column think it over each day just as in Tanada we had the Subhasita in English we had this Indian Express think it over was the caption there John Selden said is about equity equity is a registered thing for law we have a measure know what to trust to equity is about the conscience of him that is chancellor and as that is larger or narrower so is equity it is all one as if they should make the standard for the measure we call a foot a chancellor's foot what an uncertain measure would this be one chancellor has a long foot another short foot a third an indifferent foot it is the same thing this heart's lost conscience of course he has written it quite equally in the sense when it is law we have a definite thing well this is the court fee to be paid this is the stamp duty to be paid this is the time in which a document has to be presented for registration this is the time in which a suit has to be filed this is the time in which the statement has to be filed this is the fine that is to be imposed if an offense is established this is the imprisonment the accused has to undergo if the offense is established there is a particular when it comes to equity there is no standard it depends on who exercises it that is why we he said one chancellor has a long foot another a short foot a third an indifferent foot well some lawyers in tarnada have already heard me about this judicial officers in the judicial academy have also heard me but some of you might not have heard me and therefore before I end to make you understand the concept of equity I will give this example well we engage a servant maid I usually say 3000 rupees is the salary no salaries are also increasing I would make it 4500 4500 is the salary fixed for the servant maid whom we have engaged the understanding that the contract between us is that if she does not turn up for duty for a day that days wages of salary would be directed in a month she does not turn up for three days 450 has to be directed from 4500 what is required to be paid to her is 4050 so some of you might think that since she did not turn up for duty for three days and the contract between us was that three days wages could be deducted you are perfectly justified in law in terms of your contract in paying only a sum of rupees 4050 but those who have a larger heart and a longer hand may think she is after all a poor woman why should I deprive her of three days wages let me pay the entire 4500 4500 rupees some might think all right she had some problem I would even pay 5000 some might think not 4050 all right let me pay 4500 this is equity some of you will think let me pay the entire 4500 some of you may pay 5000 some of you may pay 4500 those who act strictly in accordance with law will pay only 4500 I am only giving you a rough example for the juniors to understand the concept of equity so what I expected the juniors from tomorrow is let there be no application in a criminal case under section 300 of NCRPC either for advancement or adjournment in the interest of equity let there be no application in a civil case let there be no memo saying these decisions may be perused in the interest of equity equity has a concept of its own the provisions equity is in equity is found in some statutory provisions in the Indian law not for granting adjournment prepone in the cases perusing the decisions given by the court I think this is time for us to end if there are any questions I will be happy to answer yes sir a few of the participants they have written their mobile number we have shared the mobile number you can connect on that mobile number we will make you the part of beyond law CLC and meanwhile you can like share and subscribe to the channel and send your comments for just clarification is not advisable to write time of contract in the agreement or to be on the safer side to be on the safer side better write the date now otherwise if you mention the time only as 3-4 months the second part of article 54 would apply is the view taken by the supreme court better mention the date in which even commutation starts from that date of course appearing for the applied term the second part would be better for you this is by Sachi Pai without pleading of readiness and willingness is not required without pleading how can the issue be raised and proved very good question the statute itself has said that there is no no longer requirement of pleading of course the basic rule is without pleading there cannot be proved there cannot be issues but in a suit for specific performance the statute requirement is the plaintiff has to establish readiness and willingness therefore the court has to frame an issue of readiness and willingness plaintiff is relieved of the burden of pleading it in the amendment brought to section 16 there is no harm if you plead it the amendment has not said that you should not plead it even if you do not plead it there is no difficulty when there is an unregistered agreement of sale with delivery of position and suit for specific performance is filed is it necessary to pay the stamp duty and penalty there are two different aspects stamp duty is covered by the provisions of the stamp act if your local stamp act says that if possession is delivered this must be the stamp duty payable on an agreement of sale you are bound to pay it registration is a different aspect of the matter so now of course the document is registered the question of collecting duty and penalty would not arise because the subregister would have looked into it if it is an unregistered document if duty and penalty is required to be paid so could you explain this is by Advocate Chitain could you explain the concept of concluded contract I need to examine that I cannot give an example right now about it maybe on some other occasion concept concept requires some time for me to visualise it is oral agreement of sale valid definitely with all the force of my command I am telling that it is difficult to prove so could you explain with a specific relief act would be substantive procedure law I am taking this question there is a good question the supreme court in one of the decisions has said it to be a procedure a law but there are number of provisions which give substantive reliefs therefore there is no way new thinking that it is a substantive law also because it appears long back it was a part of the world civil procedure court and therefore the supreme court in one of the decisions has said that it is a procedural law but what I find is number of substantive reliefs are also given therefore it is high time that the view is changed it cannot be completely be a procedural law he says is a legal notice or presentation mandatory in the soup for specific performance is there any violation under the act no legal notice is not required but usually legal notice is issued only to know the defence of the defendant and also to establish readiness and willingness that is one factor which the court will take into consideration but legally there is no requirement of issue of a notice before a soup for specific performance is fine this is my Ganesh I am taking few questions from the YouTube agreement of sale with full consideration paid possession handed over can the agreement still be cancelled by the vendor the agreement of sale can still be cancelled full consideration has been paid possession handed over possession is also handed over for what reason he chooses to cancel it are there any valid reasons for him he hasn't posted that meanwhile I can take a question Rajan is it proper to courts to allow a party to raise the defence of having entered into a sham and an ominous liquid definitely it is open to it you can refer to AER 1982 supreme court page 20 AER 1982 supreme court page 20 it is also reported in 1982 volume 1 SCC page 4 1982 volume 1 SCC page 4 the context is this you see at the section 92 of the evidence that when there is a written instrument no oral evidence contrary to the terms of the written instrument can be given but there is an exception to it and the supreme court has said the nature of the transaction reflected in the the transaction that is reflected in the document is totally different we did not have such a transaction at all such a plea is still permissible despite the bar into section 92 that plea can definitely be taken this is what I am taking from the Facebook when registered agreement of sale is executed and mentioned to be 50 lakhs paid by check 50 lakhs paid by cash if defendant denies the cash payment what could be the remedy well if the attestor was present when cash was paid or if somebody else was present when cash when part of the sale consultation was paid by cash well you will have to give that oral evidence to establish that or if he has parted with the receipt having received money in cash that receipt could be produced and marked in the absence of that it could be difficult if nobody was present when cash was given or if no receipt was taken it may be difficult to prove it but legally it is permissible again some of again have written that it is also possible supposing when you pay the cash you had drawn money on that particular day at the previous day from the bank you can give an indication well cash was paid on this day there is an entry showing that on the previous day had withdrawn so much of money from the bank because of circumstances ultimately leading to show that cash was paid may be difficult to establish but it is not totally ruled out before we take the question again few have written that they should be allowed to be connected we have shared the number you can connect on the whatsapp this is by Selva Kumar is readiness and willingness applicable to money or removal of properties in the land also so mostly I have inquired my presentation only to suits for specific performance in respect of removal property and normally they are the suits in my 31 years of service on the bench or about 6 years as a lawyer I had no occasion to deal with a suit for specific performance in respect of anything else but the question is still not clear to me what does she mean by readiness and willingness with regard to money only or removal property what actually she wants to know from me can you repeat the question please repeat the question that question is what I have read to you I have read the entire question is readiness and willingness applicable to money or to removal properties like land also I will ask her ask him to reframe the question that question which we had asked for the cancellation he says for not developing as per the development agreement when there is a government please repeat it the question which I have read that the payment was made position was handed over but it was cancelled you had asked what is there now in the youtube they say that it is for not for not developing as per the development agreement vendor is the government you know what difference does it make whether the vendor is the government or not the entire money is paid position is also delivered for what reason the government wants to cancel the agreement there is a case for cancellation he who says that the agreement is cancelled for this reason has to establish it when the entire sale consideration was paid and position was also delivered why there was that cancellation is it any matter pending in any court or what is it that question is not to be silent we will take the last question this is by Arpita what is the remedy available on regular appeal which had been referred from specific performance book very suit and appeal both are dismissed on the other hand execution takes place suit and appeal are both dismissed suit for specific performance is dismissed appeal is also dismissed where is the question of execution if the suit is decreed if the suit is decreed and the execution proceedings are initiated and a sale date is executed that is also say a possession is also delivered and if the appeal is allowed then the defendant has a remedy by way of restitution under section 144 CPC if the suit is dismissed and appeal is also dismissed where is the question of execution petition being levied no the clarification is from the judgment holder suit is dismissed appeal is dismissed where is the question of I am also afraid to understand the decree holder would be the other side only so thank you sir before I conclude only one thing I forgot to mention you see after reading out section 22 I told the audience that unless there is a prayer for possession the court cannot grant it well there must be a prayer for possession no doubt but the question arises when the decree for specific performance is put into execution and sale date is also that executed and register should the plaintive decree holder file a separate suit for possession or in that very execution case we can seek execution we have decisions to the Karnataka High Court I don't trouble the audience with the decisions to the Karnataka High Court I will give a judgment of the Supreme Court in that regard in fact I wanted to give it for some of the process I forgot it is 1982 volume 1 SCC 525 1982 volume 1 SCC 525 Babu Lal versus Hazari Lal 1982 volume 1 SCC 525 what the honorable supreme court has said in this decision is as per section 22 of the specifically fact an amendment can be carried to the plaint at any stage of the proceeding the supreme court has interpreted the expression at any stage of the proceeding as including execution proceedings also in execution proceedings a formal application for formally amending the plaint can be filed to seek the relief of possession and there is no need for the plaintive degree order to file a separate suit for possession is the view taken that decision may be of help to the advocates that the appeal was preferred from the judgment editor and the execution was preferred from the judgment editor but the appeal was dismissed execution was preferred by the judgment editor for what relief so we can leave the question thank you as usual your session was quite insightful and the way you do the interplay between the DPA act specific performance act CPC evidence act that is one of the facet which one wants to learn and I think that can only be done as somebody asked someone that how can you answer on any question under the sky he said that it is only practice and more of reading so I believe that that is the hallmark of your success and same as with your son I have seen few of his youtube he does tremendously well and we are all thankful those who have been connected with us and we are always delighted to have Mr. Soma Shekhar on this platform and again those people who are writing that kindly connect us you can connect on the whatsapp mobile number what we have shared we will make you part of the legal journey which are being shared by speakers with immense knowledge like Mr. Soma Shekhar everyone stay safe, stay blessed and on venice day we would be having the procedure for registration of charitable trust and societies under the income tax that is by Rano Jan Advocate and a former member of the income tax applet Ravana do stay connected with us at 4.30 on venice day Namaskar Jai Hind and thank you sir we are all thankful good night