- 1 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 185 OF 2023 (SP) BETWEEN: 1. SMT. KAMALA W/O SRI. M S MOHAN AGED ABOUT 64 YEARS, R/AT NO.7, ANANTHANAYAR ROAD, MURPHY TOWN, HALASURU BENGALURU – 560 008. …APPELLANT (BY SRI. MOHAN M S, ADVOCATE) AND: 1. MR. P. ANWAR BASHA SINCE DEAD BY HIS LRS MRS. NAJMA ANWAR W/O LATE P ANWAR BASHA AGED ABOUT 61 YEARS 2. MRS. SADIYA SHAH JAHAN D/O LATE P ANWAR BASHA AGED ABOUT 43 YEARS 3. MR. MANSOOR PASHA S/O LATE P ANWAR BASHA AGED ABOUT 41 YEARS 4. MRS. SUMMIYA D/O LATE P ANWAR BASHA AGED ABOUT 40 YEARS Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 5. MR. MAKSOOD PASHA S/O LATE P ANWAR BASHA AGED ABOUT 38 YEARS 6. MR. MUDASSIR PASHA S/O LATE P ANWAR BASHA AGED ABOUT 37 YEARS 7. MRS. ASMA UL HASNA D/O LATE P ANWAR BASHA AGED ABOUT 35 YEARS 8. MR. MOHSIN PASHA S/O LATE P ANWAR BASHA AGED ABOUT 33 YEARS ALL ARE RESIDING AT NO.198 NAGAWARA MAIN ROAD, OPP BILAL MOSQUE, VENKATESHPURAM BENGALURU – 560 045. 9. MR. N. JAIRAJ AGED ABOUT 49 YEARS, S/O LATE V NARAYANASWAMY PRESENTLY RESIDING AT NO.241, 7TH MAIN ROAD, PILLANNA GARDEN, 3RD STAGE BENGALURU – 560 045. …RESPONDENTS (BY SRI. P C NARASIMHAIAH, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.12.2022 PASSED IN OS No.9603/2005 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY AND ETC., THIS APPEAL, COMING ON FOR ARGUMENTS IN PART, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT This Regular First Appeal is filed by the appellant/defendant questioning the judgment and decree dated 03.12.2022 passed in O.S No.9603/2005 by the XI Additional City Civil and Sessions Judge, Bengaluru City (CCH-8)1, whereby, the suit filed by the plaintiff for specific performance of contract was decreed in part. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. Brief facts of the case: 3. It is the case of the plaintiffs that the defendant is the owner of the suit schedule property. As the defendant was in need of money, she offered to sell the suit schedule property in favour of plaintiffs. Accordingly, an agreement of sale was executed on 15.03.2002 for 1 hereinafter referred to as ‘the Trial Court’ for short. - 4 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 total sale consideration amount of Rs.12,48,152.50 and an advance amount of Rs.1,00,000/- was paid on the same day. Further, it is the case of the plaintiffs that, ten days after the date of the agreement of sale, the defendant requested for additional amount. Accordingly, the plaintiffs have paid further advance amount of Rs.1,00,000/. It is further stated that the plaintiffs paid additional advance amount of Rs.1,50,000/- on 04.07.2003 which was endorsed on the agreement of sale. Thus, the plaintiffs have paid a total advance payment of Rs.3,50,000/-. But, upon repeated request by the plaintiffs, the defendant has failed to execute the sale deed. Consequently, the plaintiffs filed suit for specific performance of the contract. 4. The defendant has filed a written statement denying that she has executed the agreement of sale. It is contended that as the defendant was in need of money she approached plaintiff No.2 who introduced her to plaintiff No.1 and plaintiff No.1 has paid advance of Rs.1,00,000/- for which mortgage deed was executed but - 5 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 not agreement of sale. Therefore, it is the defence of the defendant that she received only Rs.2,00,000/- and not Rs.3,50,000/- as alleged in the agreement of sale. Consequently, the defendant denies the execution of the agreement of sale and hence, prays to dismiss the suit. 5. Based on the pleadings, the trial Court has framed the following issues: 1. “Whether the plaintiffs prove that the defendant has agreed to sell the schedule property for Rs.12,48,142.50 and executed an agreement of sale dt:15.03.2002 and received the advance amount of Rs.3,50,000/- on various dates? 2. Whether the defendant proves that the plaintiffs had played a fraud to knock off the property at the rate of 330/- only per square feet? 3. Whether the plaintiffs prove that they have been always ready and willing to perform their part of the contract? 4. Whether the defendant proves that the time was the essence of the contract? 5. Whether the suit is barred by the Law of Limitation? - 6 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 6. Whether the plaintiffs are entitled the relief of Specific Performance of Contract? 7. Whether the plaintiffs are entitled the relief of Permanent Injunction as sought for? 8. What Order or Decree?” 6. In support of the case of the plaintiffs, the plaintiff No.2 has got examined as P.W.1 and two witnesses as P.W.2 and P.W.3 and produced documentary evidence and got marked them as Exhibits P1 to P6. The defendant has got examined as D.W.1, her husband as D.W.3 and one witness as D.W.2 and produced documentary evidence and got marked them as Exhibits D1 to D8. 7. The trial Court has decreed the suit in part by giving a finding that the plaintiffs have proved that the defendant has agreed to sell the suit schedule property for Rs.12,48,152.50 and executed an agreement of sale dated 15.03.2002 by receiving advance amount of Rs.3,50,000/- on various dates. But rejected the contentions of the - 7 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 defendant that plaintiffs have played fraud to knock off the property. Further, the trial Court has given a finding that the plaintiffs were ready and willing to perform the contract and that time was not essence of the contract. Further, it is observed that the suit was not barred by limitation and accordingly, granted relief of specific performance of contract. 8. Based on the original Agreement of Sale dated 15.03.2002 as per Ex.P1, the trial Court held that the signatures found on the Ex.P1 are that of the defendant. Therefore, upon the admission made by the defendant on the agreement of sale, the trial Court decreed the suit in part in favour of the plaintiffs by granting relief of specific performance of contract. 9. Further, the trial Court held that the plaintiffs had issued a notice calling upon the defendant to execute the sale deed, which proved their readiness and willingness to perform their part of the contract and that - 8 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 the reply notice issued by the defendant was an evasive one. Therefore, the trial Court held that the defendant had executed the agreement of sale and the plaintiffs were ready and willing to perform their part of the contract and hence, decreed the suit in part by granting relief of specific performance of contract. 10. Being aggrieved by the judgment and decree passed by the trial Court, defendant has preferred this appeal by raising various grounds and learned counsel for the appellant/defendant argued in consonance with the grounds urged in the memorandum of appeal and submitted that the defendant has never intended to sell away the suit property on the basis of alleged agreement of sale. Further, it is submitted that the defendant being in need of money for the expenses of her children's education, approached plaintiff No.2 for a loan of Rs.5,00,000/. The plaintiff No.2 has introduced the defendant to plaintiff No.1. The plaintiff No.1 has paid advance of Rs.1,00,000/- only and executed the document - 9 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 as mortgage deed but made execution of document as if it is an agreement of sale. It is further submitted that on the basis of the mortgage deed, the plaintiffs have paid an additional amount of Rs.1,00,000/-. Thus, the defendant has received only Rs.2,00,000/- that too by mortgaging the suit schedule property and not by executing the agreement of sale. Therefore, it is submitted that the relief granted by the trial Court is not justifiable. 11. It is further submitted that the hand written script at page 4 in the agreement of sale is created and concocted one just to show that plaintiffs have paid a sum of Rs.1,50,000/- to the defendant but virtually the plaintiffs have not paid the amount of Rs.1,50,000/-. Further, the defendant denied signature on the beneath of the hand written script as per Ex.P1(g). Therefore submitted that Ex.P1 agreement of sale is created and concocted one as it was executed by fraudulent means and the findings given by the trial Court are perverse and - 10 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 illegal. Therefore, prays to allow the appeal by setting aside the judgment and decree passed by the trial Court. 12. On the other hand, the learned counsel for the respondent/plaintiffs submitted that the defendant executed agreement of sale as per Ex.P1 - and she has admitted her signatures on the agreement of sale and also signature at Ex.P1(a). Therefore submitted that the document Ex.P1 stands proved as an agreement of sale and not a mortgage deed. Further, it is submitted that the defendant during her cross-examination has admitted the execution of agreement of sale, her signatures and also signature of her husband. Therefore, on these reasons the trial Court has rightly decreed the suit. Further, it is submitted that the plaintiffs have proved the agreement of sale and also pleaded that the plaintiffs were ready and willing to perform their part of the contract and rightly appreciated by the trial Court. Therefore, decreed the suit in favour of the plaintiffs and hence, prays to dismiss the - 11 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 appeal by confirming the judgment and decree of the trial Court. 13. Upon hearing the learned counsel appearing on behalf of both the parties, the following points arise for my consideration: (i) Whether, under facts and circumstances involved in the case the plaintiffs proves that defendant had executed agreement of sale dated 15.03.2002 for total sale consideration of Rs.12,48,152.50 as per Ex.P1 by receiving advance sale consideration of Rs.3,50,000/-? (ii) Whether, under the facts and circumstances involved in the case, the plaintiffs proves that they were ready and willing to perform their part of the contract as per Section 16(c) of the Specific Relief Act? (iii) Whether, under the facts and circumstances of the case, the trial court properly exercised its discretionary power under Section 20 of the Specific Relief Act in decreeing the suit for - 12 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 specific performance of the contract in favour of the plaintiffs? (iv) Whether the judgment and decree passed by the trial Court requires interference by this Court? 14. The suit filed by the plaintiffs is for specific performance of the contract dated 15.03.2002 for total consideration of Rs.12,48,152.50 in respect of suit schedule property. It is not disputed that the defendant is the owner of the suit property. It is the case of the plaintiffs that the plaintiffs have paid a sum of Rs.3,50,000/- as advance amount to the defendant and the defendant has received the said advance amount. The plaintiffs relied on Ex.P1-original agreement of sale dated 15.03.2002. 15. Upon considering Ex.P1, which is the original document nomenclated as an agreement of sale and the evidence of D.W.1 who is the defendant that, she has admitted her signatures on Ex.P1 and Ex.P1(a) and also - 13 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 admitted the signature of her husband in the said document but the defendant has denied the signature at Ex.P1(g). On a careful perusal of the agreement of sale as per Ex.P1, there is overwriting at the top of the agreement of sale at page No.4 and immediately below the alleged signature of the defendant is marked as Ex.P1(g). The defendant has denied the said signature at Ex.P1(g) but admitted the signature at Ex.P1(a). Further, upon perusing the agreement of sale – Ex.P1, the advance amount paid is shown as Rs.1,00,000/- at the time of execution of agreement of sale. 16. It is the case of defendant that subsequently also she has received an additional amount of Rs.1,00,000/-. Therefore, she has received totally Rs.2,00,000/- as a hand loan from the plaintiffs and never intended to execute the agreement of sale as per Ex.P1. Upon considering the agreement of sale and the defendant’s admission of her signature on Ex.P1, it is proved that except hand written content on the top of the - 14 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 page No.4, the other typed copy of the contents are proved. Therefore execution of agreement of sale is proved except the recitals of payment of Rs.1,50,000/-. Upon comparing the signatures on Ex.P1 as Ex.P1(a) and Ex.P1(g) as stipulated in Section 73 of the Indian Evidence Act, the signatures at Ex.P1(a) and Ex.P1(g) are found to be different. It is appearing that the signature at Ex.P1(g) is not made by the person who has put signature as Ex.P1(a). Therefore the signature at Ex.P1(g) and recitals at Ex.P1 – agreement of sale are not proved. At the most from Ex.P1, it is proved that the defendant has received a sum of Rs.2,00,000/- on the basis of agreement of sale. 17. Though the plaintiffs have pleaded that they were ready and willing to perform their part of the contract but they failed to lead any evidence to prove the same. Both plaintiffs have not lead evidence regarding their capacity to pay the balance sale consideration amount. The capacity to pay the balance sale consideration amount and readiness and willing to pay the balance amount are - 15 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 entirely different. But in the present case, after considering the evidence on record, it is clear that the plaintiffs have not proved that they were ready and willing to perform their part of contract nor they have established their capacity to pay the balance sale consideration amount. Therefore, the plaintiffs have failed to prove that they were ready and willing to perform their part of contract and thus, the requirements of Section 16 (c) of the Specific Relief Act have not been complied with. 18. The grant of decree for performance of a contract is a discretionary and equitable remedy as per Section 20 of the Specific Relief Act. If it is found that granting a decree for specific performance of contract is causing hardship to the defendant or amounting to arbitrariness or whether the decree of specific performance of contract is amounting to unfair advantage over the defendant by the plaintiffs, then the Court has discretion to refuse or to deny such relief. Even though granting a decree for specific performance of contract is - 16 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 lawful to do so but still the Court has discretion whether to grant decree or not to grant decree for specific performance of contract. 19. Section 20 of the Specific Relief Act (Before Amendment), 2018, is a discretionary relief, which reads as follows: “20. Discretion as to decreeing specific performance.— (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:— (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or - 17 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.— Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.” 20. The Hon’ble Supreme Court in various judgments by interpreting Section 20 of the Specific Relief Act (hereinafter referred to as ‘the SR Act’ for short), has - 18 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 laid down principle of law that granting relief of decree for specific performance is discretionary relief, subject to the principles laid down in Section 20 of the SR Act. Just because an agreement of sale is proved, that cannot be made a reason to grant decree for specific performance, though it is lawful to do so. 21. The grant of decree for specific performance is guided by the principle of law laid down and what are the criteria that the Court shall consider upon the facts and circumstances involved in the case. It is worthwhile to refer some of the judgments of the Hon’ble Supreme Court. 22. The Hon’ble Supreme Court in the case of JAYAKANTHAM AND OTHERS v. ABAYKUMAR2, at paragraph Nos.7, 8 and 9 has held as follows: “7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance 2 (2017) 5 SCC 178 - 19 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles”. The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub- section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub- Section (2) of Section 20 is in the following terms: “20. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.” 8. However, Explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or - 20 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, Explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. 9. The precedent on the subject is elucidated below: 9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son3, this Court held that: (scc p. 345, para 14) “…14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff…” 9.2 A similar view was adopted by this Court in Sardar Singh v. Krishna Devi4: (SCC p.26, para 14) “14……. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; 3 1987 Supp SCC 340 :AIR 1987 SC 2328 4 (1994) 4 SCC 18 - 21 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.” 9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd5, this Court held thus: (SCC p.91, para 29) “29…… Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy6 by stating that the decree for specific performance is in the discretion of the Court but the 5 (1999) 5 SCC 77 6 (1996) 5 SCC 589 - 22 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.” 9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik7, with the following observations: (SCC pp.604 & 606, paras 7 & 15) “7…… The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff.” …….. “15…… Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific 7 (2001) 6 SCC 600 - 23 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court…..” 9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd8., and held thus : (SCC p.150, para 6) “6…... It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, 8 8 (2002) 8 SCC 146 - 24 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” 23. In the case of Parakunnan Veetill Joseph’s Son Mathew Vs. Nedumbara Kuruvila’s son9, at paragraph No.14, it is held as follows: ”14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Exhibit A-1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce 9 (1987) Supp SCC 340 - 25 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 that agreement. He is, therefore, not entitled to a decree for specific performance.” 24. In the case of SARDAR SINGH VS. KRISHNA DEVI10 at paragraph No.14, it is held as follows: “14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.” 25. In the case of K. Narendra Vs. Riviera Apartments (P) Ltd.,11 at paragraph Nos.29, 30, 31, 32, 33 and 34, it is held as follows: “29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of 10 (1994) 4 SCC 18 11 (1999) 5 SCC 77 - 26 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 2814] by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court. 30. Chitty on Contracts (27th Edn., 1994, Vol. 1., at p. 1296) states: “Severe hardship may be a ground for refusing specific performance even though it results from circumstances which arise after the conclusion of the contract, which affect the person of the defendant rather than the subject-matter of the contract, and for which the plaintiff is in no way responsible.” 31. Very recently in K.S.Vidyanadam v. Vairavan [(1997) 3 SCC 1] this Court has held: (SCC p. 7, para 10) “10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act - 27 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519 : AIR 1993 SC 1742] : (SCC p. 528, para 25) ‘… it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.’ In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, - 28 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 it is well-known that their prices have been going up sharply over the last few decades — particularly after 1973.” 32. Referring to the principle that mere rise in prices is no ground for denying the specific performance the Court has emphasized the need for being alive to the realities of life and inflationary tendencies judicially noticeable and observed: (SCC p. 9, para 11) “Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties — evolved in times when prices and values were stable and inflation was unknown — requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so.” 33. The Court has further proceeded to hold: (SCC pp. 9-10, para 11) “All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).” 34. Having noticed the Constitution Bench decision in Chand Rani [(1993) 1 SCC 519 : AIR 1993 SC 1742] the Court has further held: (SCC p. 11, para 14) “Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms - 29 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 of the contract and the nature of the property.” 26. In the case of A.C. Arulappan Vs. Ahalya Naik12 at paragraph No.7, 8, 9, 10 and 15, it is held as follows: “7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff. 8. In Damacherla Anjaneyulu v. Damcherla Venkata Seshaiah [1987 Supp SCC 75 : AIR 1987 SC 1641] the High Court declined to grant a decree for specific performance in favour of the plaintiff, even though the defendant was guilty of breach of agreement. That was a case where the defendant had constructed costly structures 12 (2001) 6 SCC 600 - 30 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 and if a decree for specific performance was granted, the defendant would have been put to special hardship. This Court directed the defendant to pay compensation to the plaintiff. 9. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son [1987 Supp SCC 340 : AIR 1987 SC 2328] this Court cautioned and observed as under: (SCC p. 345, para 14) “14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.” 10. In Lourdu Mari David v. Louis Chinnaya Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 2814] the plaintiff, who sought for specific performance of an agreement to purchase immoveable property, filed a suit with incorrect and false facts. In the plaint, it was alleged that the plaintiff was already given possession of Door No.2/53 as a lessee and he was given possession of Door No.1/53 on the date of the agreement itself. But he did not give any evidence that he had got possession of Door No.1/53 on the date of the agreement. It was found that his case as regards Door No.1/53 was false. He also alleged that he had paid Rs.400 in addition to the sum of Rs.4000 paid as advance, but this was proved to be an incorrect statement. He alleged that the third defendant had inspected the house during the course of negotiations, but this - 31 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 also was found to be false. This Court held that it is settled law that the party who seeks to avail of the jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. 15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. The trial court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses, considered the relevant facts and reached a conclusion. The appellate court should not have reversed that decision disregarding these facts and, in our view, the appellate court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract.” 27. In this regard, I place reliance on the judgment of Hon’ble Supreme Court in the case of U.N.KRISHNAMURTHY (SINCE DECEASED) AND OTHERS LRS. vs. A.M.KRISHNAMRTHY13, at paragraph Nos.32, 33 and 34, it is held as under: 13 (2023) 11 SCC 175 - 32 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 “32. In a suit for specific performance of a contract, the Court is required to pose unto itself the following questions, namely: 32.1. Whether there is a valid agreement of sale binding on both the vendor and the vendee. 32.2. Whether the plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. 33. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of specific performance. In Acharya Swami Ganesh Dassji v. Sita Ram Thapar [Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526] cited by Mr Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar [Kalawati v. Rakesh Kumar, (2018) 3 SCC 658: (2018) 2 SCC (Civ) 609] . 34. Even in a first appeal, the first appellate court is duty-bound to examine whether there was continuous readiness and willingness on the part of the plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] and H.P. Pyarejan v. Dasappa [H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496] where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon [Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .” - 33 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 28. In the case of P.DAIVASIGAMANI vs. S.SAMBANDAN14 at paragraph Nos.21, 22, 23, 24 and 25, it is held as under: “21.Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff purchaser, including attending circumstances15. Continuous readiness and willingness on the part of the plaintiff purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance16. 22. The expression “readiness and willingness” used in Section 16 (c) of the said Act, has been interpreted in a catena of decisions by this Court, in the light of facts and circumstances of the cases under consideration for the purpose of granting or refusing to grant the relief of Specific Performance of a contract. The said expression cannot be interpreted in a straitjacket formula. In a very apt decision of this Court in Syed Dastagir vs. T.R. Gopalakrishna Setty (1999) 6 SCC 337, a three-Judge Bench of this Court, construing a plea of “readiness and willingness to perform” in view of the requirement of Section 16(c) and its explanation, observed as under: (SCC p. 341, para 9) “9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what 14 (2022) 14 SC 793 15 See para 2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526 16 See para 5 in N.P.Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115. Also see Anleshir Manu v. Flora Sassoon, 1928 SCC Online PC 43: (1927-28) 55 IA 360 : AIR 1928 PC 208 - 34 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and - 35 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded”. 23. It was further observed therein that: (Syed Dastagir case17, SCC p.342, para11) “11........It is significant that this explanation carves out a contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words “it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court”. (emphasis supplied) This speaks in a negative term what is not essential for the plaintiff to do. This is more in support of the plaintiff that he need not tender to the defendant or deposit in court any money but the plaintiff must [as per Explanation (ii)] at least aver his performance or readiness and willingness to perform his part of the contract”. (emphasis in original) 24. In Sukhbir Singh v. Brij Pal Singh18 this Court had laid down that law is not in doubt and it is not a condition that the respondents (Plaintiffs) should have ready cash with them. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. The said principle was followed in A. Kanthamani v. Nasreen Ahmed19, in case of C.S. Venkatesh v. A.S.C. Murthy20 etc. 17 Syed Dastagir v. T.R. Gopalakrishna setty, (1999) 6 SCC 337 18 (1997) 2 SCC 200 19 (2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596 - 36 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 25. Section 20 of the Specific Relief Act (Pre- amendment), which confers discretion on the court to exercise jurisdiction to decree of specific performance, states that this exercise should not be arbitrary, but guided by sound and reasonable judicial principles. Interpreting and elucidating on Section 20 of the Specific Relief Act (pre-amendment) and factors to be considered, this Court in Kamal Kumar v. Premlata Joshi21 has also referred to Sections 16(c), 22, 23 and 24 of the Specific Relief Act and Forms 47/48 of Appendix A to C of the Code of Civil Procedure, 1908, to summarise: (SCC pp.705-706, paras 7-8) “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance are: 7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract. 7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what 20 (2020) 3 SCC 280 : (2020) 2 SCC (Civ) 90 21 (2019) 3 SCC 704 : (2019) 2 SCC (Civ) 405 - 37 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 manner and the extent if such relief is eventually granted to the plaintiff. 7.5 Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendix A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 29. The Hon’ble Supreme Court in the case of J.P.BUILDERS AND ANOTHER VS. A.RAMDAS RAO AND ANOTHER22, at paragraph Nos.20, 21, 23, 24, 25, 26 and 27, it is held as under: Readiness and willingness “20. Section 16(c) of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that: 22 (2011) 1 SCC 429 - 38 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 “16.Personal bars to relief:--- Specific performance of a contract cannot be enforced in favour of a person --- a) who would not be entitled to recover compensation for its breach; or b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 21. Among the three clauses, we are more concerned about clause (c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the - 39 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 essential terms of the contract which are to be performed by him. 23. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao23., at SCC para 5, this Court held: (SCC pp. 117-18) "5......Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 23 (1995) 5 SCC 115 - 40 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 24. In P.D'Souza vs. Shondrilo Naidu24, this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf.... 21......The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale." 25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. 26. It has been rightly considered by this Court in R.C. Chandiok. vs. Chuni Lal Sabharwal25., that "readiness and willingness" cannot be treated as a straightjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the Court is 24 (2004) 6 SCC 649 25 (1970) 3 SCC 140 - 41 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties.” 30. Further rely on the judgment of Hon’ble Supreme Court in the case of ZARINA SIDDIQUI vs. A. RAMALINGAM ALIAS R.AMARNATHAN26 at paragraph Nos.30, 33, it is held as under: “30. In a recent judgment dated 22.9.2014 in Civil Appeal No.9047 of 2014 entitled K. Prakash vs. B.R. Sampath Kumar27, this Court observed that: (SCC p.605 and paras 16 & 18-19) “16. The principles which can be enunciated are that where the plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or 26 (2015) 1 SCC 705 27 (2015) 1 SCC 597 - 42 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the Court has to exercise its discretion in favour of granting relief for specific performance. 18. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed. 19. However, the court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant owner of the property. This aspect of the matter is considered by a three-Judge Bench of this Court in Nirmala Anand vs. Advent Corporation (P) Ltd…28 33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.” 28 (2002) 8 SCC 146 - 43 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 31. Further I place reliance on the judgment of Hon’ble Supreme Court in the case of R.SHAMA NAIK vs. G.SRINIVASAIAH29 at paragraph Nos.8, 9, 10 and 11, it is held as under: “8. Section 16(C) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 1.10.2018) bars the relief of the specific performance of a contract in favour of a person who fails to aver readiness and willingness to perform his part of the contract. 9. There is a legion of precedents on the subject of readiness and willingness. 10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time. 11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.” 32. Therefore, as per the principles of law laid down in catena of decisions (stated supra), the plaintiff has failed to prove that he was ready and willing to perform the contract. Hence, it is incumbent upon the plaintiff to prove that whether he was maintaining sufficient balance 29 2024 SCC ONLINE 3586 - 44 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 in the account and whatever his financial capacity to pay the balance amount, but that is not proved in this case by the plaintiff. Therefore, the plaintiff fails to prove that he was ready and willing to perform the contract. 33. Even assuming that if execution of the agreement of sale is proved, but still the Court has discretion either to grant decree for specific performance or not as per Section 20 of the Specific Relief Act. Just because, the agreement of sale is proved and passing decree is lawful to do so, but still the Court had discretion whether to grant decree or not upon the parameters involved under Section 20 of the Specific Relief Act. If the defendants are able to prove that there is an unfair advantage over the defendants by the plaintiff, the decree could not be passed for specific performance of contract. Therefore, to exercise the discretionary relief under Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’ for the sake of brevity) these factors are to be taken into consideration based on the - 45 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 evidence on record by taking a judicial note of the fact in the background of evidence on record. 34. Upon considering the evidence on record, though the plaintiffs have pleaded in the plaint that they were ready and willing to perform their part of the contract but the plaintiffs have not lead any evidence. The plaintiffs have also failed to establish their capacity to pay the balance sale consideration amount for getting registration of the sale deed. 35. Further, as discussed above, there is no material evidence on record to prove that the plaintiffs were ready and willing to perform their part of the contract. The defendant has replied to the legal notice issued by the plaintiffs as per Exs.D2 and D6. Therefore, considering the preponderance of probabilities involved in the case, it is the case of the defendant that she had only received a hand loan by executing mortgage deed but fraudulently it was treated as agreement of sale. Upon considering the document Ex.P1 – agreement of sale, it is - 46 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 proved that the document executed was an agreement of sale but not mortgage deed. The defendant herself admitted that she had received a sum of Rs.2,00,000/- and is liable for reimbursement of the said amount to the plaintiffs. But the plaintiffs have failed to prove that their capacity to pay the balance sale consideration amount and they have led no evidence to prove that they were ready and willing to perform their part of contract. Therefore, in this regard, the trial Court has committed a grave error in its findings and the same are found to be perverse and illegal in nature. 36. Further, insofar as the value of the property is concerned, due to the escalation of prices on the property and now if the plaintiffs is granted decree of performance certainly that would cause hardship to the defendant and also granting such a decree of performance in this regard is amounting to unfair advantage over the defendant by the plaintiffs. Therefore, decree of performance cannot be granted. Further, if a decree of performance is granted and - 47 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 the suit property is sold in favour of the plaintiffs, it would be arbitrary. Therefore, the trial Court without considering all the parameters, just straight away by proof of Ex.P1 - agreement of sale granted decree for performance is completely found to be illegal and non-exercise of justifiable discretionary power in the given set of facts and circumstances of the case. Accordingly, I answer point Nos.(i) to (iii) in the Negative and point No.(iv) in the Affirmative. Therefore, the decree passed by the trial Court in favour of plaintiffs is completely in violation of Section 20 as well as Section 16(c) of the Specific Relief Act. Therefore, plaintiffs are not entitled for decree of performance. Thus, the judgment and decree passed by the trial Court is liable to be set aside. 37. Since the plaintiff has not asked for refund of earnest amount alternatively therefore the relief of reimbursement of earnest amount also cannot be granted as per Section 22 of the Specific Relief Act. - 48 - HC-KAR NC: 2026:KHC:31931 RFA No. 185 of 2023 38. Before parting with the judgment, this Court places on record its deep appreciation for the well researched and valuable assistance rendered by Research Assistant, namely Smt. Pushpa R., and her valuable research helped the Court to take a correct conclusion. Accordingly, the Court places its appreciation on Research Assistant, namely Smt. Pushpa R., on record. 39. Hence, I proceed to pass the following: ORDER (i) Regular First Appeal is allowed. (ii) The judgment and decree dated 03.12.2022 passed in O.S No.9603/2005 by the XI Additional City Civil and Sessions Judge, Bengaluru City (CCH-8), is set aside. Consequently, the suit filed by the plaintiffs for specific performance of contract is dismissed. (iii) No order as to costs. (iv) Draw decree accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE UN, List No.: 1 Sl No.: 57