 Good evening friends. And while they were vacations in Madras in Madurai, we thought why not bring a speaker who can hammer his points, not only in the court, but also nail them in the right perspective so that you can understand things in the issue. Though the sessions name today is probably defense and it pitfalls the suits for specific performance of contract. But, once we have Mr. K. Prabhakar and advocate from Madurai Bench Madras High Court, we know that all those pitfalls, if you have heard it, they won't be while you are drafting them and while you are arguing them. Because he ensures that if they are bulldozed properly, the road is smooth and you can win it properly. And without taking much time, since we all know that it's a weekend and that too on a Sunday and when vacations are about to end in down south though our vacation will start in the month of June. I request straight away Mr. Prabhakar, we are waiting for your session and show the defences which can be all taken across. And we will share the notes given by Mr. Prabhakar on the website subsequently. We will convert it into a VPD of the previous webinar as well as this webinar. So do stay connected with us on the website and do subscribe to the channel of Beyond Law CLC so that you can see how knowledgefully Mr. Prabhakar shares his knowledge amongst with the host of other resource persons we try to bring not only from India but from the pan world. Or do you Mr. Prabhakar? Thank you because bringing my friends, the amendment to the specific relief act 2018 makes it all the more difficult for a person to defend a suit for specific performance. Originally there was section 20 where all kinds of hardship can be taken into consideration. And in many cases where it has been pleaded or not, the court at the room or the leverage to dismiss the suit if he finds that there will be a hardship if a suit for specific performance is degraded in favor of the plaintiff. Once this section 20 has been substituted by a new section and hardship has been almost taken away. The discretion which was with the court is gone. Discretion which it could have exercised in favor of the defendant is no longer available. Then what is the scope available for a defendant to defend a suit for specific performance of an agreement of sale? The age-old defences are manifold. We can say that once the agreement is not to be non-aspective or there was no intention to execute the contract. Three, there was a loan transaction. Four, the plaintiff is not ready and willing. Five, the contract as put out by the plaintiff in the plaintiff is a variance with what has been agreed upon by the parties. These are some of the defences which are still available. If you take what were the defences available, one is under section 16, 2 and 3. Second, section 17, section 13 and section 19, 21 and 22 with regard to the compensation and damages. As well as in case of an undivided interest in respect of a property. Now, well, first we'll take the radiant willingness is always read in conjunction with the time stipulated in the contract. If the contract stipulates some time, one is expected to perform within the time contemplated in the agreement. Are soon thereafter he has to approach the court. But under section 55 of the contract act, time is not the essence of the contract in case of an immobile property. If time is not the essence of the contract, can a defendant come forward and say that not bestending the fact that he has come to the court within a period of three years. As contemplated in the article 54 of the limitation act, the plaintiff should be non-suited because he is not ready and willing. Not bestending the fact that the time is not the essence of the contract. As I have suggested the last Sunday about a year 1993 Supreme Court, a constitutional bench wherein it has been filled that there is a presumption that time is not the essence of the contract. There is also a no presumption that time is not the essence of the contract. Therefore, once the constitutional bench some 30 years ago reiterated the principle as found in section 55, one would have expected that the time as contemplated in the contract is not the essence. A person can come to the court least early but giving some explanation or justification for not coming to the court. Still he can say that he is ready and willing to perform a smarter contract. But phone here is down the lane. If I remember one of the judges who was in the Constitution bench, author another judgment. Reported in AIR 1997 Supreme Court page 1751, equivalent to 1993 SCC page 1, KS Vaidyanandam versus Vaidyanandam. And in the court said that even though section 55 says that the time is not the essence of the contract. The law says the time can be made as an essence of the contract with the parties. Therefore, what has to be done is to look into the terms of the contract, whether the parties really intended that the time should be the essence of the contract. Terms of the contract has always got a role to play in interpretation of this type of contract. The intention in respect of urban property or a commercial property may be different from an intention to purchase and agriculture properties. But what prompted the court, one of the judges was a member of the Constitution bench in 1993 to have a different look in 1997. Maybe the opening up of the economy in 1991-1992, rise in GDP, rise in income of the people. And then the sanctity of time contemplated in the agreement because they squirted the prices of the real estate market. The court had probably the judges in 1997 to have a real look even though the wording is not there in the judgment. They would say that the intention has to be gathered from the document and the conduct of the parties. And subsequently, there was another judgment in 2011, namely of his Latship Ravindran in Saradamani Kandappan v. Rajalakshmi, AAR 2011 Supreme Court, page 3, 2, 3, 4. Equal in 2011, page 12, SCC, page 18. Varanasi's Latship Ravindran would say that we should have a real look at the law of the section 25 itself. What you would say that the law once settled by the court may not be good when the society changes after some years. That's what the Latship Ravindran said that after 1993, there was enormous change in the attitude of the people, change in the society, perception with regard to the property, the commercial attitude of the people. This all has to be taken into consideration. In fact, he would quote some judgments of the Supreme Court as well as the other Privy Council also stating that in such a case, it's not necessary that we should be bind to the precedents. Rather, we should be aware of the reality what is happening and to temper the law according to this present day society. Varanasi would say time can be construed in certain circumstances as the essence of the contract. That is the real turning point. And then after 2011, we can say that the courts have construed this ready and willingness in a much stricter way in a sense. Even if you come to the court within one month, two months after the time period lapse, the court requires the party to prove its ready and willingness. Therefore, the first difference available in a suit for specific performance in so far as the ready and willingness is concerned, time, expose the time. If the plaintiff has not come to the court immediately and if you think that the agreement is true, of course, and you want to regale out of the contract, the one sure shot is to go before the court with all fairness, honesty and integrity. That it is, I have entered in an agreement on certain circumstances. This man did not fulfill his obligation within the time contemplated. I was very serious about the time for the period from the time fixed in the contract or stipulated in the contract and the time when the plaintiff comes to the court. Makes a big case out of it. Took a magnifying glass and elaborate this as much as possible in the pleading and let in oral evidence and tried to cross exam the plaintiff why he has not come to the court immediately. Thereby tried to expose the plaintiff that he could not have been ready and willing to perform his part of the contract. Therefore, my first submission is in a defense. Always possible because in many a case as a lawyer practice in the trial court. Nobody has come to the court the next day after the time stipulated the contract expired. It took some time. Therefore, you try to take advantage of this time. Magnify it manifold. Try to tell the court that this time is very vital and he should have followed it. He has not followed it. Therefore, he is not entitled to a degree for specific performance. I tell you that once this hardship is removed from section 20, it is always possible for the court or to convince the court rather that this ready and willingness, even though the government is not required but truth is still required. This ready and willingness will play a major role. There will be a shift from the perception of the court what has been done all these years and what will be done after the amendment in 2018. Therefore, once the court has been pushed to the wall, but they don't have the discretion which was available before 2018 and the court finds that the plaintiff is not genuine in coming to the court a bit late or late. Then it will try to exercise a discretion which was not available under section 20. By fitting in the case under section 16-3 in a much wider manner, two months, three months time delay which was glossed over all these years probably will assume great significance after 2018. Therefore, try to take inspiration from Sarada Manikandarpan's case of Slashiv Praveendran, try to project if there is a delay. That is one of the sure way of defending a suit for specific performance. The second day, we all take into consideration, once an agreement has been filed into court by way of a suit for specific performance, we take the plea that it has not been executed by the defendant or there was an honest fact and that there was no intention or the character of the document is different from what has been intended to be executed or the consideration has not been passed or the plaintiff has filled up the blank papers available with him. These are the some of the differences which you usually take but when you try to take these types of differences be aware don't take some inconsistent pleas even though as a defendant you are supposed to take inconsistent pleas as many inconsistent pleas as possible. It is very difficult to convince a court to try to shoot from all angles rather pin down the plaintiff to a certain defence when you are not sure of one or two defences which are not inconsistent and which will gel well with your overall defence. It is always better to take one or two pleas and try to focus on such things. I have come across in a trial court, they are personally denying the execution and they will say that I have been forced or requested to execute the document. Don't take this type of inconsistent pleas, the court will not believe thinking that the defendant after all after executing the document is trying to reveal out of the contract by taking all types of pleas and sendries. If you are caught sure that you have not executed the contract stick on to that. If you want to feel that he has entered in the contract and this contract for some other reason ought not to be enforced in a court of law then for certain reason don't try to focus on the execution. Only when the execution can be non-execution can be pleaded in cases where that the defendant or the vendor did not execute the contract. Two, he has been acquiesced to execute the document. Three, the blank papers have been filled up. In the first case or the first in case of an execution or the non-execution the burden is always on the plaintiff to prove the contract. But in many cases we find that the contract is true in accordance with the law because one of the witness always will be a witness or the ally of the plaintiff. He will come forward and depose. The difficulty after 2001 amendment of the civil procedure is this. Before 2001, the pushing of filing a chief affidavit by way of proof of chief examination was not possible. Therefore, when a witness is brought, when the counsel for the party cannot lead the witness it is very impossible for him to bring out the entire terms of the contract by asking him questions. The witness in many of the cases would labor even in the chief examination. But unfortunately that has now been watered down after the introduction of the chief affidavit where the chief affidavits are drawn by the lawyer and therefore there is no question of execution not being properly pleaded or deposed before the court. I have come across some of the cases where the courts have taken into consideration the chief he has spoken about the execution that ends the matter. At the other end of the spectrum, there are some judges who say that the please don't touch the chief. The chief is all that are the lawyers, the engineers, the ingenuity. Therefore they go into the cross examination what has been stated by the witness. Even though the second part or the later part is more correct to assess the witness, the point for consideration is once that the affidavit has come into play the burden of proving the execution of the document has almost vanished because the proof you would have covered everything unless if the witness is good enough unless you are in a position to expose the cross examination which in all cases may not be possible. If the execution of the document is denied, then the challenge can be made by punching a hole in the evidence of the witnesses or by taking the evidence of an expert as a secondary evidence which is also possible to compare the signature found in the document. At least in case of an unregistered document, a comparison with an expert will tilt the scale. Even though in some of the cases including that of Punjab and Aryana, I call I have said that even in case of an unregistered will somewhere on judgment 1992 or 1993 of the Punjab and Aryana I call where there are two witnesses have been examined in case of a will and an expert evidence came out of the different finding that the signature differs. The court said that the evidence of the witnesses are trustworthy and creditworthy. It is a primary evidence that has to be taken into account and the evidence of the expert fails insignificant because it is a secondary evidence. It cannot replace the primary evidence. Therefore, once you want to challenge the execution, the execution you focus on execution. You focus on that you have signed the document blank paper. In two cases then the second case if you say that I have signed the document in blank even though the execution has to be proved by the plaintiff in one or two cases it has also been stated in the Kerala High Court that if you affix your signature in a document but stating that you have affixed the signature in a blank paper then you have to explain your role or a conduct. How come you have put your signature in a blank paper? It becomes a well-nigh impossible as a difference to prove. Therefore, be careful unless and until you have got materials to suggest namely the facts and circumstances like in many cases where checks have been taken in a blank. The point is once you admit the signature there are two things you have to prove as a defendant. One is that you have signed it in a blank paper. The second is how the custody of the document went to the plaintiff. It's very difficult to insert and circumcise unless there is an exceptional case is made up and therefore be careful about taking such a plea unless you are caught short. The third is fraud, undue influence, coercion, equivalent to dearest misrepresentation. These are some of the pleas available under section 16 where you can bring in some material to prove that you have never intended to execute the contract you have been forced to do it or the plaintiff has exercised an influence dominating your bill called as an undue influence etc. Taking the problem is once you take the stand that the document has been executed by fraud because the provision is there in the specific relief act also. Where if it is a variance or if there is a fraud then section 16B where the fraud is also stated you have the burden is upon the person who makes an allegation that it has been obtained by fraud or coercion. Once you take such a stand the plaintiff will be relieved of the proving the execution of the document. The burden shifts to the defendant to show that it has been under certain circumstances it has been obtained in the fraud or coercion unless you have got a material don't take such a plea. If you have got material plead under order 6 rule 4 of the civil procedure court if you want to take a stand that the document has been obtained by fraud you must plead the details of the fraud what is the fraud committed. Nearly a single sentence in the written statement that there is a fraud in executing the document may not be enough the circumstances under which the fraud was committed what is the fraud in any case. A fact which was known to the plaintiff or not known to you and which has been suppressed thinking that it is a fact that you have executed a document but it was not a fact after all these are the various arms of the definition of a fraud. Again choirs here you are with the full conscious you are signing the document but under a threat or pressure from the other party what is the pressure what is the threat whether a police complaint was given immediately what is your reaction after executing this document these are things which you have to plead in the written statement before ever you can take the stand forward before the court of law. The point is this the point is this it is a plea which has to be taken in the written statement the next point is nonest factum what is a nonest factum? Nonest factum always is an exception to section 92 of the evidence act fraud is an exception nonest factum or the character of the document where I never intend to execute this type of a document so long as these types of unregistered documents are obtained and so long as the section 49c gives a leverage for a party to follow suit for specific performance on the basis of an unregistered agreement of sale or even an unregistered sale to be consumed as a contract of sale as held in Kalar Devi's case in 2010 by the Supreme Court in fact from so called judgment reiterated being in force for more than a century the point for consideration is that if you take such a stand you should be in a position to come forward with the detail of the nature of the document you intend to execute if it is a registered document then the problem will be insurmountable if it is an unregistered document probably you can say because you have not been to the register probably at your home or in a village or under a tree you would have executed a document and you went for a loan and the fellow has obtained an agreement of sale and this part of the country now moving so fast we have come across so many cases where for a loan a party is not getting an agreement of sale any longer it takes up a sale deed itself and then it will cancel the sale deed once you pay the money with the interest there was a period they took an agreement of sale for a loan and now with all kinds of impediments put in the spokes of the wheel of these people to realize the loan with the exorbitant interest they thought it would be now to take a sale deed itself once the financial institutions have taken over the lending in all parts of the country including remote parts and which requires some security there are always people to lend money to take advantage of the innocence of the parties and then to take the property itself there the role of a lawyer comes into play to lift the wheel to find out what is the real nature of the transaction whether it was a loan transaction normally an agreement of sale a major portion of the conservation is received and a small portion is left as a balance and a larger period is stipulated as a time in the contract I will give you an example suppose an agreement of sale is for 1 crore 90 lakhs is alleged to have been paid on the date of the agreement and for paying 10 lakhs they take a time of 3 years under the contract for enforcement then obviously when 90% of the sale conservation has been paid the party if he really wants to take the property on sale would have shelled out these 10 lakhs and got it therefore this period of 3 years for paying the balance of 10% will weigh heavily against the truthfulness of the agreement of sale the court will always in such cases will lean that it is more of a loan transaction that is one part of the story the second part of the story is the courts have also insisted upon even though very rarely I find it as a supreme court judgment if you say that it is a loan transaction what the defendant has done all these years suppose that the contract in assuming for a moment a period of 1 year or 2 years is fixed in the contract and you want to take advantage of this as stating that it is a loan transaction if I were to be a judge I would judge it from two angles one, what is the period fixed and what is the balance consideration is to be paid if the balance consideration to be paid is small and the period is large it points towards a loan transaction two, from the angle of the defendant if it is a loan transaction otherwise whether he has made any attempt to repay the money I have rarely come across a case where a person after executing the agreement of sale taking a plea of loan transaction attempting to repay the money they are like the roof hole in the law the courts have always if you find that it is a loan transaction it allows a refund and dismisses the suit of the very performance the point for consideration is that in terms of a loan transaction the loan which has been obtained by the defendant he should repay it similarly if the court finds that the agreement is not true and the plaintiff says that he has paid money or the defendant says that he has paid the money that money has to be returned for which we don't make any leverage in the act therefore, when you take up a plea of non-aspective is it required a challenge by way of a suit or can you take it as a defense in a suit for specific performance once a non-aspective is pleaded of course subject to prove there is no need for you to file a suit to set aside the document because once you say that there is a non-aspective there was no intention to execute the document then the document is personally void your void document needs to be set aside it can be taken up as a defense in a suit or even in a collateral proceedings the character of the document has always been dealt with by this Honourable Supreme Court in Ninhava v. Bhairappa Siddha Pa Ninhava v. Bhairappa Siddha Pa year 1968 Supreme Court date is 9.56 year 1968 Supreme Court 9.56 there are the landmark judgements rather the Lordship would say that if the character of the document intended to be executed is different from the document obtained then there is a non-aspective the document is void your party need not challenge the document by filing the suit or to file a suit to set aside the document the next case on the mass page an inoperative document a very old case is also there Bethapuramal v. Munia and Iserway 35 Indian appeals 98 there are the judgements of the Pravee council Bethapuramal v. Munia and Iserway 35 Indian appeal report page 98 there are also two other judgements Grama Panchayat of village Nauka v. Ujarsing Grama Panchayat of village Nauka v. Ujarsing AIR 2000 Supreme Court 3272 AIR 2000 Supreme Court 3272 and another judgement of his lordship Simna and if I remember just is Radha Krishnan Prem Singh v. Bill Parr reported in 2006 Supreme Court I am not having it but I recollect it from memory Prem Singh v. Bill Parr 2006 Supreme Court where this very same principle has been reiterated in fact in one of the judgements reported in last month of the AIR also the judgements stating that the document which is a sale deed if you say that the document is void it need not be set aside therefore if you want to take a plea of honest factor or a plea of fraud undue influence coerce there is no need for you to file a suit separately you can challenge it the document by taking up a defence but the problem is under the contract tax one of the provisions says that the document which has been obtained by fraud undue influence misrepresentation mistake misrepresentation not mistake misrepresentation these are all voidable documents it is valid till it is decided to be void that declaration enough by way of a separate soul the court can always say when a defence is taken the court can always come to a conclusion that the document was obtained or undue influence or coerce therefore it is it cannot be enforced therefore be sure you can take a plea as a defendant but once you take a plea come out of the detail detail about the nature of fraud coerce and undue influence etc to convince the court then the other important factors is normally the contract is a contract of bona fide or a uber in a fight in good faith where a person knows a particular fact and if he suppresses the same and enters the contract to make huge money then the courts will tell that the purchaser or a purchaser is not entitled to a specific performance because the old judgments are available one of them is Ramakrishnan Naidu v. Spaniyappa Chettiar Ramakrishnan Naidu v. Spaniyappa Chettiar A.R. 1963, Madras page 17 A.R. 1963, Madras page 17 where the lordship would say that at the time of entering into a contract the plaintiff knew that some irrigation projects is coming up in that particular area once that irrigation project comes up there will be tremendous or humongous water resource that will raise the price of the property this factor was known to the purchaser but not to the seller the seller admittedly entered into a contract he did not force the contract to happen the plaintiff or the purchaser who saw that what is going to happen subsequent to the agreement but at the time of entering the judgment the court found that this is a special knowledge available to the purchaser he did not disclose to the plaintiff and therefore he tried to make a windfall which is not possible under law this type of agreement cannot be enforced now we have got so many issues across the country that you are falling asleep a bus stand is coming up an airport is coming up then the property price will shoot up like anything then these are the factors which has to be taken into and you can very well take a difference if you are not sure that you are not aware of this there was a raise in the price but I am not sure after 2018 whether such a plea can be taken as a difference because these types of difference a factor which was known to the purchaser or known to the unknown to the vendor can all be fit into section 20 where it is inevitable or unfair but once this section 20 has been taken out of the statute thinking that this is too much of a discretion given to the court that leverage is more longer available for the court to deny or refuse specific also quite an unfortunate situation even in the very wording of section 20 may not be required as output is utility there should have been some discussions available to the court instead of tying the hands of the court that once there is an agreement and the plaintiff has proved is ready and willingness no other option granted an unwilling party or unwittingly a person who has entered into without knowing all these factors will be trapped whether there is any escape route for this type of contract section 16 B I will read that section 16 B personal bars could leave specific performance of a contract cannot be enforced in favor of a person who has become incapable of performing violates any essential term of the contract that on his part reminds to be performed or acts in fraud of the contract or willfully acts in variance with or in subversion of the relation intend to be established by the contract there are four parts I will discuss one is who has become incapable of performance a civil death or a person who has become insane are incapable of executing your window is open or how is it the window opens lot of crackers oh my god pair with me for two minutes section 16 B who has become incapable of performance or violates any essential term of the contract that on his part reminds to be performed or acts in fraud of the contract or willfully acts in variance with or in subversion of the relation intend to be established by the contract the opening available to a different date is this acts in fraud of the contract you see that if you are not aware of a particular thing which is available to the client then you can very well explore this and say that it was in violation or it is a fraud of the term of the contract or willfully acts in variance or in subversion of the relation intend to be established subversion of the relation how it will happen these are things of which I am pretty sure after the 2018 amendment the court will look into in case where the court can or should not grant a degree for specific performance then the court has to explore the possibility of doing it or finding the ways and means to deny the specific performance under section 16-3 which is still available which has not been explored because of section 20 available to the different date therefore my view is if you want to take a difference to defeat the right of the do it by invoking section 16-B and section 16-C which is already in a willingness the next part which I will Dhamma Charla Anjane Lu was a Dhamma Charla Venkateshya Shaiya AIR 1987 Supreme Court page 1641 1641 there is an interesting case where after the agreement was entered into the defendant invested money in the property and as came out of the superstructure involving huge outgo the court said that once this type of superstructure has been made by investing huge money then the plaintiff is not entitled to the degree for specific performance but is only for compensation I doubt whether this judgment will be followed in future because we have moved once hardship is taken away whether this type of intelligence is available to the court after 2018 team but anyway this 2018 amendment is subject to whether it has got a retrospective effect or a prospective effect is still open therefore all pending cases the question of invoking section 20 will be available if you have taken a plea in the written statement and kindly remember that once you say that the document is sham and nominal or a rank forgery then the question of taking a plea of hardship doesn't arise one is a Leeladhar v. Vijay Kumar AIR 2019 Supreme Court page 4652 Leeladhar v. Vijay Kumar AIR 2019 Supreme Court page 4652 where the lordship would say that sham and nominal and section 22 farmers will not go and demand the next point is the inadequacy of conservation is also whether it will be available after removing section 20 I am doubtful but the court said that even under the old act or the under minted act mere inadequacy of conservation is not a bore what is a bore is if it is grossly inadequate then the party cannot ask for enforcement what is grossly inadequate that was the discretion available to the court suppose you want to purchase the property by entering into a contract which is only one fifth of the value on the property it can be called as a grossly inadequate even though the law says that merely because an inadequacy of conservation is no ground for denying specific performance the courts have held under the under minted act if it is grossly inadequate then it can be denied but whether this is open for any discussion after 2018 I am doubtful but for the law as it existed before 2018 there is one judgment which I would like to refer Madhusudanan versus Kerala Kumudi Private Limited Madhusudanan versus Kerala Kumudi Private Limited AAR 2004 Supreme Court page 909 AAR 2004 Supreme Court page 909 there was a case where there was a inadequacy of conservation the court said by reversing the judgment of the high court the mere inadequacy of conservation is no ground for denying specific performance similarly in the very clear the court has observed that specific performance for enforcing an agreement for partition is maintainable in respect of immobile property an agreement for partition this is also possible have a look at section 22 specific performance with the refund partition possession in fact in the last Sunday when I took it for the plaintiff I suggested a person can follow super specific performance against X and also for partition along with that against Y and Z who are the court shares along with the X therefore that is possible there are two provisions one is section 13 and another is section 17 of the act section 13 speaks about the role of the purchaser section 17 speaks about the role of a vendor where there is no title in respect of the property for the purchaser for the vendor to enter into a contract and still enters into a contract whether that contract is enforceable section 13 would say that it gives some instances one of them is if the vendor has subsequently acquired title to the property or where a concurrence of other owners of the property is required and whether and if he can be compelled to bring them on board three that the vendor agreed to sell an unencumbered property subsequently find that was an incumbrance he can be directed to clear that incumbrance and four where he choose for specific performance and it suit his dismiss on the ground of his want of title or imperfect title to return to his deposit if any with the interest there on this four are 13D speaks about a case where the defendant has no title he enters into a contract and when the court cannot give him a degree for specific performance the court can direct the plaintiff to return the money to the defendant as it require any plea the point is therefore under section 13 the defect in title or imperfection in title by itself may not disentitle the plaintiff of the purchaser to sue for specific performance it is always possible for him to get a degree I'll straight away give you a very interesting judgment which is under the old law before 1963 Baluswamy Aiyar versus Laxman Aiyar Aiyar 1927 Madras page 172 a full bench judgment Baluswamy Aiyar versus Laxman Aiyar Aiyar 1921 sorry 1921 Madras page 721 full bench that it was a case of an agreement entered into by a person who is only a co-sharer of the property whether this contract can be enforced or not was a question which has been posed whether he can be compelled to bring anybody else who are other co-sharers of the property the court ultimately held that this is not a contract to be executed in full if you want to execute the document or compelled the court to compelled the party to execute the sale deed in respect of a portion of the property then you should come to the court under the old law because in 1963 the part performance has changed because of these types of judgments under the old law what you have to do is pay the conserving in entirety and take the share which a purchaser will do suppose he has got one of the the front-end of the vendor has got only one fourth share in the property under the old law he is not entitled to sell the entire interest but if you want to purchase pay the entire money as agreed and take the one fourth interest and work out the remedy by way of a partition a judgment which according to me is one of the reasons for amending the act in 1963 now whether an undivided interest still can be a deciding factor in denying the specific performance I will take into account some of the judgment in the earlier class namely Kartar Singh case in year 1990 Supreme Court page 854 and then when a matter was placed before a larger bench where the three judges in 2005 Surinder Singh was as Kapoor Singh discussed the issue but did not laid out the law went on facts and he can be directed to executed contract in respect of ish share but subsequently a very interesting case came up Pemada Pramakar versus Youngman's Association 2015 three SCC pages 56 pages 556 subject to correction Pemada Pramakar versus Youngman's Association there were three vendors in the case but only two of the vendors have signed the document the court said there is a defect in title but invoked section 17 not 13 in Balasamy ISK the court considered that the imperfection or the defective title and said that if the purchaser is willing to take the property with the imperfect title or defective title then the defendant or the vendor cannot deny the execution therefore if the purchaser is willing to take up the property with all the problems he can do so and he can also mold his relief by the four classes under section 13 as we have cited whether the property or if he can be compelled to bring the other kosher and the agreement etc but if it is not possible and the the court in Pemada Pramakar instead of invoking section 13 invoking section 17 and denied the relief of specific performance on the ground that only the two of the vendors out of the three who are entitled to the property and therefore this contract is not enforceable but quite unfortunate in a sense as section 17 has been invoked section 17 does not come in the way of a purchaser section 17 is against the vendor if a vendor say that I am the owner and comes to the court if he wants a specific performance then if he is not the owner the court will deny the specific performance one minute I will read section 17 contract to sell or let property by one who has no title or not specifically enforceable contract to sell or let any immobile property cannot be specifically enforced in favor of a vendor or a lesser it cannot be enforced in favor of a vendor if a vendor comes to the court by way of a suit for specific performance may ask me one question there any person a vendor comes to the court asking for specific performance I will tell you one reason why he can come to the court suppose in 2018 they have entered into a contract for purchase of one property for one crore because of covid pandemic 19 the value has come down and now the value is only 30 lakhs the purchaser doesn't want to purchase the property the vendor can file a suit for specific performance directing the plaintiff or directing the purchaser to take the property that is possible in such a cases when the vendor wants to enforce an agreement of sale or an agreement of contract and if he has got no title to the property or absolute title to the property the court can refuse specific performance because this is a man who has represented the owner and this man comes to the court and if ultimately file the suit barriers no title to the property that property cannot be burdened on the purchaser you can't burden a purchaser an unwilling purchaser to purchase a property who is not the owner whereas if the purchaser wants to take the property with all imperfections he is entitled to do so under section 13 therefore my point for consideration is in Piyamrata Prabhakar's case the court ought not have taken section 17 it is one thing to say that it is a case which can be fitted under section 13 but still section 13 doesn't deny a purchaser to purchase the property it is always look out if he is willing to take the property which over which the defender or the vendor has no absolute title it is look out that is what the judgment of this lawsuit in the full bench Balu Swami Ayer v. Rexmana Iyer then coming to some of the minor defences where if the agreement of sale is not on a stand paper the court will look into the jaundice this is not a contract obviously the court will see that the the parties would have filled up a document in a blank paper signed blank paper Nanjapa v. Swami Ayer 2015 Supreme Court page 3389 Nanjapa v. Swami Ayer 2015 Supreme Court 3389 if an agreement of sale is not on a stand paper the court can refuse to enforce a specific performance then the court can also refuse if the original has not been filed into court original of the agreement of sale in very interesting case the plaintiff comes forward with the case that the the agreement of sale was entered into by the defendant and the defendant has taken the vendor has taken the original I was given only a photocopy I am finding the photocopy yeah very recent judgment in Atimuthu Manoharan v. Stilagavadi Atimuthu Manoharan v. Stilagavadi 2021 2021 to MLJ page 51 the court or the Madras High Court has held that normally as a customary practice the purchaser should be holding the original agreement of sale if he makes an allegation that he is not having the original then it is not a grown for granting a specific performance now coming to article 54 of the Limitation Act article 54 will give you a difference there are two types if there is a time fixed under the contract then the three years period will kick in from that day when the time stipulated in the contract lapses if no time is fixed under the contract from the date of refusal the time will start that is the second part of the article in the third column therefore once there is a time stipulated as I have said focus on readiness and willingness if there is no time stipulated a person can come forward by issuing a notice demanding execution of the sale deed and then you will say that I have come to the court immediately God against that namely whether this type of agreement would have been executed by a party with the full consciousness whether you would have intended to execute such a type of contract or open contract there may be circumstances under which a person would have received the entire conservation and had executed an unregistered sale deed or an agreement of sale that whenever it is demanded I will come to the court and execute it off me unless this is there if the entire conservation is not paid or at least a major portion of the conservation has not been paid then it is a definite pointer that this agreement has to be seen with the suspicious circumstances take the route under section 16B to deny specific performance two judgment on the score Baburam versus Durga Prasad Baburam alleyes Durga Prasad versus Sri Indra Palsing Baburam alleyes Durga Prasad versus Sri Indra Palsing KIA 1998 Supreme Court page 3021 where the lawship had taken the second part of the third column namely if the contract does not speak about any time limit under the party refusers then the time will start from the day when the contract was when the enforcement was refused therefore God against it the second part will kick in in all cases where the major major portion of the conservation is paid or the entire conservation has been paid then see with the links or a magnifying glass whether this conservation has really been passed if it is not so attack the agreement that the conservation has not been paid as stated in the agreement then allow the plaintiff to prove that the conservation has passed as stated in the agreement last to the point is whether the contract which is vague can be enforceable in all not in all circumstances a vague contract cannot be enforced sometimes the contract will be vague with regard to price contract will be vague with regard to the property if the vagueness is or the indefinite's uncertainty is with regard to the property it is always possible for the party to bring in evidence or a collateral evidence to show that the parties are really intended to enter into a contract in respect of this property in many a case in a village the property will have a name a name would have been incorporated in the agreement rather than the survey number or extent that can be established thought against it or if the price has not been fixed then the question of enforcing such a contract does not arise straight away there are two judgments one is Paneer Selvam versus Bayleys AAR 2006 Madras page 242 ascertaining property can be made by other evidences AAR 2006 Madras page 242 but another judgment of the very same high court in AAR 1927 Madras page 513 1927 AAR Madras page 513 Secretary of State versus Wolcott brothers that was a case where rate could not be ascertained the price could not be ascertained the consideration could not be ascertained if the consideration cannot be ascertained then this type of agreement cannot be enforced the last of them the repudiation of the contract within a stipulated time what will be the consequences suppose the contract says within three months you have to enforce one of the parties within the period of three months says that the contract is bogus and as a defendant you take a stand in the at the time of giving a reply or something like that your party says that the contract is bogus fraudulent cannot purchase within that stipulated time come forward the suit for specific performance or art in such a case the remedy available for a purchase immediately is to follow suit for compensation or still if you want to come forward with a suit for special performance he has to wait for the period contemplator of the contract to lapse and then to follow suit but in such a case the readiness and willingness has to be proved by the plaintiffs straight away an interesting judgment Jawaharlal Vadwa versus Hari Prasad Chakra Matthi 1989 one SCC page is 76 1989 one SCC page is 76 there are three judges of the Honorable Supreme Court came to the conclusion that if you once there is a repudiation of the contract within the stipulated time the only remedy available to the purchaser is to follow suit for compensation but if you want a specific performance wait for the period of three months comes a specific performance wait for the period stipulated to lapse and then follow suit for specific performance if you offer the second course then he must prove his ready and willingness therefore in such a cases what is the option available for a defendant he can always come to the court and say I have repudiated the contract two months before he never exhibited any willingness how this willingness can be done after the repudiation immediately deposit the money or send the money balance consideration or say that I am ready money is available with my bank etc. these types of ready and willingness should be treated by the plaintiff and group this is the loop or which will be available to the defendant from the date of repudiation to the date of the filing of the suit the readiness can be challenged ultimately the refund of the compensation which has been sought under section 22 or 21 which has to be considered by the court read with the section 19 my point is in all cases where the party seeks a compensation he can seek a compensation under section 20 in two cases two instances where if the court designed the specific 22, the court designed the specific performance ought not to be granted but there is a contract within the parties which has been broken by the defendant then the plaintiff is entitled to compensation for the breach and award him such a compensation this will fit in in cases where the plaintiff is as a purchase not ready and willing to perform his part of the contract the contract is enforceable but the section 22 says where the defendant has broken the promise only in such a cases the compensation is contemplated in section 21-2 therefore take advantage namely I have already broken the contract or repudiated the contract and then therefore the plaintiff is entitled to only compensation under section 21-2 of the act any such a suit the court decides that the specific performance ought not to be granted I see that this 21 originally has to be read with the section 20 and section 16C readiness and willingness and hardship but once the hardship has gone this 2020 20 subclass 2 has to be read only with the section 16-3 23 says 21-3 says if any such a court decides a specific performance ought to be granted but that is not sufficient to satisfy mere specific performance in some cases it is not in respect of an immobile property in some other cases where in the case of a work contract the specific performance may not be enough the compensation can be granted but in 21 subclass 2 will give you a leverage that once there is a repudiation of the contract the defendant can take a plea or a shelter under section 20 subclass 2 as a defendant whether you are a plaintiff or a defendant it does not matter the point is come to the court with the fairness honesty and if you place a case fairly before the court instead of shooting multiple differences immediately the agreement is not true yes I have received money as a loan transaction these types of please always unsettle the court the court will not favor a party who comes to the court not with any toothfulness this entire specifically fact is based upon fairness and lack of arbitrariness if fairness is there then there is a possibility then moving forward whether this amendment 2018 is enough it is now loaded in favor of the plaintiff namely the purchaser once there is an agreement and if this agreement is true the court is ready and willing grant him a degree whatever the hardship the defendant will undergo the went on and undergo it has all vanished whether this amendment is correct my view is that it is in a over zealous enthusiasm that this discretion has to be curtailed the legislature of the parliament has come with this instead what it should have done is it should have balanced the went on as well as the purchaser how it could have been done this three year period for enforcing the specific performance should have been reduced namely even six months where they can say a party who has approved an agreement of sale comes to the court within six months he is entitled to a specific performance otherwise he is not entitled to reduce then there is no need for us to go into the question of readiness and willingness at all once the period is reduced this ready and willingness or unpredictableness in a court of law could have been reduced that could have been the direction in enacting this once this archivist is removed the court should have removed this long period of the second the essence of the contract in respect of an immobile property why when this amendment has been made a slatship Ravindran made a hue and cry in 2011 that this should have been the parliament should have a relook on this whole procedure they should have done it if the period is reduced and there is no need for a party to prove ready and willingness give you a sanctity the contract once you enter into a contract and third this is the registration in respect of an agreement of sale has been made compulsory but 49C gives them the room for filing a suit for specific performance and the basis that this can be used as an evidence of a contract in a suit for specific performance in 2001 48 of 2001 Arun Jaitley amendment cave 53A was removed for in the case of an unregistered document at that time it was thought that the agreement of sale if compulsorily registerable is made many of the innocent people living in the rural areas will be affected now 21 years of pass now time for us to remove that in Broglie under section 49C have an agreement of sale register it file it within 6 months get a degree always try not necessarily in a court of law thank you I am just saying as to whether we have any questions if the purchaser the plaintiff says the sale agreement entered is a fraud and file specific performance on the basis of oral agreement what is the standard there can't be two agreements one either you stick on to one as a plaintiff you can't take two please it cannot be an alternative plea because once there is an agreement you say that it is a fraud then the execution is admitted then the question of falling upon a oral contract doesn't arise once there is an agreement and all the terms are reduced to writing and if you say that it is a fraud if it establishes fraud then it goes if the fraud is not there that agreement has to be enforced the question of disowning the contract and falling upon the original oral contract doesn't arise it is not possible what initiates everything and then you say that both cannot sink and swim together yeah so Harsha says what is the difference between advanced money and earnest money earnest money is for the performance that if you doesn't go through the contract then you will lose that money advance maybe is a part of the consideration itself advance is a part of the consideration whereas earnest money is a money which is paid for due performance of your obligation under the contract it need not be part of the consideration so one is a part of it the other part may not overlap Pradeep Kumar majority of the agreement of the sale at the time of giving advance not registered to register the true mountains to be shown and accordingly stamp duties to be paid and so to avoid the payment at the time of giving advance agreements would be an unregistered so for specific performance of sale what can be done all the details will be given an agreement but it will be normally on the page 200 stamp paper buyer does not insist it should be for registration under what circumstances and what is the remedy that's I have advocated that if your 49 c is removed all the things available under 49 c one is with regard to a document which requires registration not registered it can be used in a suit for specific performance and another collateral purpose once this is removed there is no point in having an agreement and not being presented in court this type of agreement are entered into by the parties to generate I would say the difference between the money which has been paid in the accounted form in cases where the circle rate is less than the market value the parties intend to go for an unregistered agreement by putting the market value and subsequently paying the money under the circle rate in respect of registration that can be reduced if you remove this clause for enforceability once it is done the question of having an unregistered document is of no use what is the difference between a registered and non-registered will in case of an immobile property sir can a person who can't go to the subregister office due to some problem is it a valid or not valid in case of will if the will can be challenged or not if it is not registered in case of a will there is no difference except for the fact that authenticity there is a presumption with regard to due execution but always in cases of a will near execution is not enough you have to prove that the testator was in a sound disposing state of mind and the attesting witnesses are attested these things cannot be presumed therefore except for this purpose of some authenticity the registration may not have any effect in case of will but your question with regard to the subregister office due to some problem is valid or not valid unregistered will is valid provided it has been attested by two witnesses always kindly remember that even though the will doesn't require attested registration the courts of law are very very reluctant to uphold a will which is unregistered and if it is draws some suspicious circumstances where the legal has been disinherited some third party has been given a property huge property not making any provision for the daughter son wife etc and if it is unregistered it will be very very difficult to prove in a court even the witness speaks therefore when vendor returns the check even in lieu of advance amount of agreement and denies to execute the CLT what is the best remedy for the purchaser for compensation or specific performance the reason at the background is the rise in the value it is always a choice available but the point is if you go for a compensation then you will go for a compensation compensation in respect of an immobile property is not in addition to if it is a work contract then it can be in addition to but always it is preferable to go for a specific performance and in the alternative for compensation there is normally people ask do we go for a specific prayer or we should always go for an alternative prayer alternative prayer is better because the law says that if the alternative prayer is not there then the court cannot grant compensation or even refund even though some of the courts have stretched the principle of equity very recently Slaship Nagasura came down heavily and he said that the compensation cannot be awarded because there is a special provision which says there should be a specific prayer with regard to compensation next is if plaintiff says fraud and never entered the sale agreement will the stand on oral agreement continue I don't think so I'm not sure which plaintiff will come to the court fraud and never entered the sale agreement and we would say there is a oral agreement I can visualize only one thing the parties having entered an agreement of sale subsequently wants to disown that and fall back upon a oral agreement if the oral agreement is more beneficial to him than the written contract when it will be beneficial to him it will be beneficial to him provided the value and the oral contract is far less is it possible for you to prove such a oral contract leave alone the question of falling a suit when there is a written contract can there be a oral contract inconsistent with the terms of the contract section 92 will be a bond then the last of the question there is a family settlement instead of will is it valid or not I'm not sure about the circumstances in which it has been asked for but family settlement is different from your bill family settlement is a settlement in which consensus is arrived by all the parties all the members of the family and it can be either registered or if it is a memorandum of according a past transaction it does not even require registration family settlement always be looked upon by the court favorably because it amicably settle all the issues between the members of the family here will come into effect on the demise of a test setup in respect of its absolute property family settlement is in respect of all the properties of the family whether it is of the test set or not therefore in both of them operates on a different field a family arrangement or a settlement or if you say that it is a settlement the settlement of what I can visualize from this question is a test set or instead of writing a bill can you execute a settlement deed a settlement deed will come into operation immediately whereas the bill will come into effect after the demise of the test set it all depends upon the wish of the person whether he wants to hold the property till his lifetime or he wants to give it now but both are valid provided the executant is entitled to execute the document namely it should be the absolute order thereof whether it is a bill or a family settlement both of them are valid yeah these were the all questions Mr. Drakar as usual everybody was glued to the seat to understand the nuances of law thank you everyone stay safe stay blessed and we will keep on sharing the webinar links to do stay connected with us and those who have missed the previous webinars they can share like and subscribe to the Beyond Law CLC YouTube channel thank you everyone