P. D'SOUZA versus SHONDRILO NAIDU

Citation: [2004] SUPP. 3 S.C.R. 186 · Decided: 28-07-2004 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

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Judgment (excerpt)

A 
B 
P. D'SOUZA 
V. 
SHONDRILO NAIDU 
JULY 28, 2004 
[S.B. SINHA AND S.H. KAPADIA, JJ.] 
Specific Relief Act, 1963: 
Section JO-Suit for specific performance of contract-Grant of-
Readiness and. willingness of plaintiff to perform his part of contract-
C Onus to prove-Held: plaintiff must establish the same-Discharge of onus 
depends upon facts and circumstance of each case-Furthermore, readiness 
and willingness of plaintiff to perform his part of contract also depends 
on whether defendant did eve1ything required of him to be done in terms 
of agreement-On facts, finding of fact of High Court on basis of materials 
on records that plaintiffe were always ready and willing to perform their 
D part of contract-On arriving at the said finding High Court had not taken 
into consideration any irrelevant fact or failed to take into consideration 
any relevant fact-Also defendant having consciously waived his right 
cannot contend that time was the essence of the contract and plaintiff was 
not ready and willing to perform her part of the contract-Contract Act, 
E 1872--Code of Civil Procedure, 1908. 
F 
Section 10-Agreement of sale-Damage clause in terms thereof, in 
case seller breaches the terms-Suit for specific performance of contract-
Maintainability of-Held: Existence of damage clause does not make suit 
for specific performance not maintainable-Contract Act, 1872. 
Section 20(2), Explanation I-Agreement for sale-Suit for specific 
performance of contract by buyer-Escalation of prices-If ground to 
refuse the benefit of decree in view of hardship faced by seller-Held: It 
is not a case that seller did not foresee hardshiJr-Also not a case that non-
performance of agreement would not cause hardship to plaintiff-Thus 
G court should exercise its discretionary jurisdiction and decree the suit. 
Appellant-defendant entered into an agreement of sale of a 
building with the respondent-plaintiff, who was occupying the same as 
tenant. In terms of the agreement, parties were to perform their 
respective parts of the contract within a fixed period, expiring on 
H 5.12.1978 and also the total consideration for the transfer was fixed. 
186 
P.D'SOUZA v. SHONDRILO NAIDU 
187 
-
Appellant mortgaged the suit property in favour of LIC. Respondent A 
paid part payment of the consideration. Despite assurance appellant 
did not produce original documents nor redeemed the mortgage and 
as such sale deed could not be executed. Appellant demanded some 
more amount in 1980. It sought extension of time for registration of 
sale deed by 3I.12.1981 and also enhancement of rent, which was 
increased. Thereafter, respondent asked the appellant to execute sale B 
deed and also conveyed her readiness and willingness to perform her 
part of the co11tract. However, appellant cancelled the agreement and 
also forfeited the amount paid by the respondent. Respondent then 
filed suit for specific performance of agreement of sale against appellant. 
Trial court dismissed the suit holding that respondent was not ready C 
and willing to perform ~er part of the contract. However, High Court 
allowed the appeal holding that respondent was ready and willing to 
perform her part of the contract and rejecting the submission that the 
court should not exercise its discretionary jurisdiction under section 
20 of the Specific Relief Act on the ground of hardship of the appellant. D 
Hence the present appeal. 
Appellant-defendant contended that ttie onus to prove that she 
was all along ready and willing to perform her part of the contract was 
on the respondent and that she admittedly did not perform her part 
of the contract by 5.12.1978 shows that she had not been able to do E 
so; that as the agreement provided for a damage clause in terms 
whereof, appellant had an option to pay the liquidated damages and 
as such the decree for specific performance of contract could not have 
been passed; and that this Court having regard to the escalation in 
price, should refuse to exercise its discretionary jurisdiction in granting 
a decree for specific performance. 
Respondent-plaintiff contended that a finding of fact has been 
arrived at by High Court that the respondent had all along been ready 
and willing to perform her part of the contract; that the appellant did 
F 
not hand over the original documents and furthermore did not 
discharge the mortgage; that the mortgage was redeemed by the G 
defendant upon receipt of the requisite amount from the plaintiff; tha

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