D.E.S. Shri.

Navalmal Firodia Law College

Moot Court Presentation
2023-2024

Before
THE HON’BLE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No. 150 of 2022

IN THE MATTER OF:

SHENBAGAM & Ors. …APPELLANT

Versus

K. K RATHINAVEL …RESPONDANT

MEMORIAL ON BEHALF OF THE APPELLANT

NAME - SIDDHESH DNYANESHWAR PISAL

CLASS - 3rd Year L.L.B

DIV - B

ROLL NO -121

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 TABLE OF CONTENTS

SR.NO CONTENT Page. No

1. TABLE OF CONTENTS 2
2. LIST OF ABBREVIATIONS 3
3. INDEX OF AUTHORITIES 4
4. STATEMENT OF JURISDICTION 5
5. STATEMENT OF FACTS 6-7
6. ISSUES RAISED 8
7. SUMMARY OF ARGUMENTS 9-10
8. ARGUMENTS ADVANCED 11-16
9. PRAYER 17

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 LIST OF ABBREVIATIONS

SCC Supreme court cases

SC Supreme Court
v. / vs. Versus
& And
Ors. Others
Hon’ble Honourable
SLP Special Leave Petition
CONSTITUTION CONSTITUTION OF INDIA 1950

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 INDEX OF AUTHORITIES

Statutes
➢ Specific Relief Act 1963
➢ Constitution of India

Case Law

➢ JP Builders v. A Ramadas Rao (2011) 1 SCC 429

➢ KS Vidyanadam and others v. Vairavan (1997) 3 SCC 1
➢ Zarina Siddiqui v. A. Ramalingam (2015) 1 SCC 705

Website
1. https://www.manupatrafast.com/
2. https://www.scconline.com/
3. https://indiankanoon.org/

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 STATEMENT OF JURISDICTION

The Appellant has approached this Hon’ble Court under Article

1361 of the Constitution of India 1950.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court
may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of
India
(2) Nothing in clause ( 1 ) shall apply to any judgment,
determination, sentence or order passed or made by any court or
tribunal constituted by or under any law relating to the Armed
Forces

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 STATEMENT OF FACTS

The appellants are owners of a property located at Patta Nos. 147,

240, 217, Madukkarai Village, Coimbatore Taluk, Coimbatore
measuring about 12.60 acres1. In the present case, the respondent and
the appellants entered into an agreement to sell the suit property on 7
February 1990 for a consideration of Rs. 1,25,000.
The respondent paid a sum of Rs. 25,000 as an advance and
agreed to pay the balance within six months after which the
appellants were required to execute a sale deed conveying the
property, free from all encumbrances.The terms of the agreement
also stipulated that the advance amount would be forfeited in case
the respondent failed to complete the sale.
Further, in the event the respondent was ready and willing to
complete the sale but the appellants delayed or refused, the
respondent could proceed before the court to get the sale
completed under the Specific Relief Act 1963. The suit property
was also subject to a mortgage of Rs. 6,000 in favour of one
Janaki Amma. The respondent alleged that the appellants had
received the advance sum to discharge the mortgage over the suit
property. On the contrary, the appellants alleged that the
respondent had agreed to discharge the mortgage from the sale
consideration.
On 8 March 1990, the appellants received a further sum of Rs.
10,000 from the respondent as an advance under the sale
agreement. On 19 December 1990, the appellants sent a legal
notice to the respondent calling upon him to pay the balance
consideration and perform his obligations under the agreement
to sell. The appellants rescinded the contract on the ground that

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the respondent was not ready and willing to perform
obligations

In response, the respondent sent a reply dated 26 December 1990

calling upon the appellants to execute the sale free from
encumbrance. In 1991, the respondent filed a permanent injunction
restraining the appellants from alienating or creating any further
encumbrance on the suit property. The respondent obtained an ad
interim injunction. In the meantime, on 17 June 1992, the appellants
discharged the mortgage debt. A year after that the respondent
instituted a suit for specific performance. The trial court decreed the
suit in favour of the respondent and directed the respondent to
deposit the balance consideration of Rs. 90,000 within a month. The
appellants were directed to receive this amount and execute the sale
deed in favour of the respondent within a period of three months.
The appellants preferred an appeal against the order of the trial
court before the Principal District Judge, Coimbatore, which was
dismissed by a judgement dated 24 February 1998. Following
this, the appellant filed a second appeal before the Madras High
Court. While the appeal was pending, the respondent moved an
application to withdraw the balance consideration of Rs. 90,000
which was deposited before the trial court and this application
was allowed by the court.
The Single Judge Bench of the High Court dismissed the second
appeal of the appellants and upheld the judgement of the trial
court and the first appellate court. Against the judgement and
order of the High Court, the appellants have filed an SLP before
this Court under Article 136 of the Constitution.

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 ISSUES RAISED

ISSUE 1:-
Whether it is appropriate to direct specific performance of a
contract relating to the transfer of immovable property??

ISSUE 2:-
Whether to claim relief under the Specific Performance Suit,
readiness and willingness has to be proved?

ISSUE 3:-
Whether Whether time is of essence in a contract involving the
sale of immovable property?

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 SUMMARY OF ARGUMENTS

1. Whether it is appropriate to direct specific performance of a

contract relating tothe transfer of immovable property?
The answer to the former is negative. In Zarina Siddiqui v. A.
Ramalingam (2015) 1 SCC 705, the Apex Court in a suit for
specific performance of a contract regarding the sale of immovable
property, observed that “the remedy for specific performance is an
equitable remedy and Section 20 of the Specific Relief Act confers
a discretion on the Court which must be exercised in accordance
with sound and reasonable judicial principles.” This discretionary
jurisdiction should not be exercised in the present case as the
appellants would be dispossessed of the suit property for a meagre
sum that was arrived at thirty years ago. In directing specific
performance of the agreement, the sale deed should be executed
for the current market price of the suit property.
2. Whether to claim relief under the Specific Relief Act,
readiness and willingnesshas to be proved?
Section 16(c) of the Specific Relief Act 1963 makes it mandatory
for the plaintiff to prove that he has already performed or was
always ready and willing to perform the essential terms of the
contract which were to be performed by him. In JP Builders v. A
Ramadas Rao (2011) 1 SCC 429, the Supreme Court observed
“that Section 16(c) mandates “readiness and willingness‟ of the
plaintiff and is a condition precedent to obtain the relief 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.”

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3. Whether time is of essence in an agreement for sale of
immovable property?It is humbly submitted that the agreement
between the parties clearly notes that the balance consideration is to
be paid within a period of six months. Thus, time was of essence is
the contract. In KS Vidyanadam and others v. Vairavan (1997) 3 SCC
1, the Apex Court held that it cannot be said that time limits
prescribed by the parties in the agreement neither have significance
nor have any value and that they mean nothing. The Court said that
Courts should look at all the relevant circumstances including time
limit stipulated in the agreement and determine whether its discretion
to grant specific should be exercised

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 ARGUMENTS ADVANCED

1. Whether it is appropriate to direct specific performance of a contract

relating to the transfer of immovable property?

The Appellant most humbly submits,

That the jurisdiction of courts under Section 20 The Specific Relief Act is
discretionary and should not be exercised in the present case as the appellants
would be dispossessed of the suit property for a meagre sum that was arrived at
thirty years ago. In Zarina Siddiqui v. A. Ramalingam the Apex Court while
dealing with a suit for specific performance of a contract regarding the sale of
immovable property, observed that “the remedy for specific performance is an
equitable remedy and Section 20 of the Specific Relief Act confers a discretion
on the Court which must be exercised in accordance with sound and reasonable
judicial principles.”

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 orthe 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 notforesee, whereas its non-performance would
involve no such hardship on the plaintiff; or

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(c) where the defendant entered into the contract under circumstances which
though not rendering thecontract voidable, makes it inequitable to enforce
specific performance.

(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.

Following this principle, in the present case the steep increases in property
prices would make it inequitable to grant specific performance as the
Respondent did not take the necessary steps to complete the contract within the
agreed timeframe. The principle of balancing equities is to be applied by the
courts in such cases and before granting or refusing the relief of specific
performance the court is required to assess the other crucial aspects as well.

In deciding whether to grant the remedy of specific performance, specifically in

suits relating to sale of immovable property, the courts must be cognizant of the
conduct of the parties, the escalation of the price of the suit property, and
whether one party will unfairly benefit from the decree. The remedy provided
must not cause injustice to a party, specifically when they are not at fault. In the
present case, three decades have passed since the agreement to sell was entered
into between the parties. The price of the suit property has escalated and given
the blemished conduct of the respondent in indicating his willingness to perform
the contract, the remedy of specific performance of the contract should not be
granted.

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2.Whether to claim relief under the specific performance suit, readiness
and willingness has to be proved?

The Appellant most humbly submits,

(a) Section 165 The Specific Relief Act provides certain bars to the relief of
specific performance. Section 16(c) of the Act makes it mandatory for the
plaintiff to prove that he has already performed or was always ready and
willing to perform the essential terms of the contract which were to be
performed by him. In JP Builders v. A Ramadas Rao6 the Apex Court held
that it is the mandate of the statute that the 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 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.

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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 hispart 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.

6. (2011) 1 SCC 429

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In lieu of above judgement the trial Court grossly erred in adjudicating this suit
for specific performance as it failed to frame an issue on whether the
respondent-plaintiff was ready and willing to perform his obligations under the
contract and instead assessed whether he is entitled to the relief of specific
performance. The Court failed to analyse the terms of the agreement, the
obligations of the parties and the conduct of the respondent or the appellant.

The respondent has not led any evidence that he was ready or willing to perform
his obligations under the agreement. The respondent has alleged that he did not
pay the balance consideration as the appellants failed to remove the
encumbrance on the suit property. However, clearing the mortgage over the
property was not a condition precedent to the agreement. Thus, the agreement
did not specify when the appellants should discharge their mortgage it only
obligated them to ensure that after the balance consideration is received, the sale
deed executed should be free from encumbrances. Only on payment of the
remaining consideration he could have sought specific performance of the
contract.

The respondent has further failed to provide any documents or communication

which would indicate that he called upon the appellants to perform their
obligations or discharge the mortgage within the time period given in the
contract. Even after the expiry of the six months, the respondent did not reach
out to the appellants. It is only in response to the appellants legal notice that the
respondent demanded performance of their obligations.The finding that the
respondent was ready to perform the contract as he had sufficient means to
purchase the property is erroneous as the payment of income tax by itself does
not show that the respondent had sufficient resources to pay for the suit
property. The passbooks produced by the respondent were for the accounts
opened on 11 March 1992 and 22 July 1994.Thus, the accounts were not
contemporary to the period of the contract. Further after the legal notice was
served on the respondent by the appellant, the respondent filed a suit for
permanent injunction and not a suit for specific performance. This indicates that
he was not ready to perform the contract.

The respondent filed the suit for specific performance on 17 June 1993 and the
remaining consideration of Rs. 90,000 was deposited on 15 November 1996.
This amount was then withdrawn in 2001. Thus, the conduct of the respondent
does not indicate that he was ready and willing to perform the contract. Merely
filing a suit three years after the agreement does not prove the readiness and
willingness of the respondent.
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3.Whether time is of essence in a contract involving the sale of immovable
property?

The Appellant humbly submits that,

The terms of the agreement between the parties stipulated that the respondent
was to pay the balance consideration within a period of six months and on
receipt of the balance consideration, the appellants were to execute the sale
deed. Thus, time was of essence in the agreement as it obligated the Respondent
to ensure that the balance consideration is paid within 6 months.

In KS Vidyanadam and others v. Vairavan (1997) 3 SCC 1, the Apex Court held
that it cannot be said that time limits prescribed by the parties in the agreement
neither have significance nor have any value and that they mean nothing. The
Court said that Courts should look at all the relevant circumstances including
time limit stipulated in the agreement and determine whether its discretion to
grant specific should be exercised.

The Court further observed that there was a total lapse and negligence for a
period of more than 2½ years from the side of the plaintiff in taking any step to
perform his part of contract under the agreement and there was gross violation
of the terms of the agreement which required him to pay the balance, purchase
the stamp paper and then seek for execution of the sale deed. Further the delay
was coupled with substantial rise in price, which brought about a situation
where it would not be equitable to give the relief of specific performance to the
plaintiff.

Similarly in the present case the inconsistency in the respondent's conduct, the
lack of communication with the appellants urging them to discharge the
mortgage and showing his willingness to pay the balance consideration, and the
delay of about three years from the date fixed for performance of the contract in
filing a suit, are all indicative of the respondent‟s lack of will to perform the
contract.

Hence it is not a case of mere delay but a case of total inaction on the part of the
Respondent for in clear violation of the terms of agreement which required him

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to pay the balance, purchase the stamp papers and then ask for execution of sale
deed within six months. Further, the delay is coupled with substantial rise in
prices and has brought about a situation where it would be inequitable to give
the relief of specific performance to the Respondent.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and reasons
given, it is most humbly and respectfully prayed:
1.That, the present appeal may please be allowed, entertained, and decided
by this Hon’ble Court.
2.That, the specific performance of a contract relating to the transfer of
immovable property may not be directed, given the efflux of time and the
escalation of prices of property.
3.That, the Respondent may please be barred from getting specific relief on
account of not proving his willingness and readiness to perform his part of
the agreement.
4.That, it may be declared that time is of essence in a contract involving the
sale of immovable property.
5. And/or pass any other order as it may deem fit, in the interest of Justice,
Equity and Good Conscience.
All of which is respectfully submitted.

COUNSEL FOR THE APPEALLANT

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