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TMI Blog2001 (8) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... f advance rent made by the tenants of the property to enable the respondent to get vacant possession. On 4th May 1973, a separate agreement was entered into between the appellant and the respondent by which the appellant agreed to sell the property back to the appellant after the 5th year from the date of the execution of the agreement and before the expiry of the 6thyear for the sum of ₹ 19,900/-. (Rs.20,000 less an amount of ₹ 10/- paid by the appellant to the respondent by way of an advance.) This is the agreement which is the subject matter of the litigation before us and is referred to hereafter as the agreement. Both the sale deed and the agreement were registered on 13th June 1973. After the sale, the respondent took possession of the property and has been in possession of the property since then. It is the appellants case that after 5 years, the appellant made repeated demands in person and through mediators calling upon the respondent to execute the sale deed at the appellants expense after receiving the entire amount of ₹ 19,990. The respondent refused to do so. Ultimately, the appellant sent a notice through his lawyer on the 6th February 1979 ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sne profits in respect of the respondents continued possession of the suit property after 3rd May 1978 as also credit for the amount of ₹ 2,000/- alleged to have been paid by the appellant to the mortgagee and a sum of ₹ 3,000/-towards the expenses which would be incurred by the appellant for repairing the suit properties. The readiness and willingness of the appellant to perform the agreement dated 4th May 1973 was again reiterated in paragraph 11 of the plaint. The appellant has ultimately prayed for a decree:- directing the defendant to execute a sale deed in respect of the suit properties in favour of the plaintiff at the plaintiffs expense for a consideration of ₹ 20,000/- after receiving the balance of sale consideration (as determined by this Honble Court) from the plaintiff within a specified date and if the defendant fails to execute the sale deed as aforesaid directing the sale deed as aforesaid to be executed by the Court on behalf of the defendant. In her written statement, the respondent did not deny the execution of the agreement but did deny that the appellant was entitled to any credit for any sum at all. On the other hand according to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals against the decision of the Subordinate Judge. The appeals were heard analogously. Before the District Judge, it was contended by the appellant that he was liable to pay only ₹ 12,495/- after taking credit for the amounts not paid by the respondent under the sale deed or expenses incurred by him. The respondent on the other hand contended that the appellant was not entitled to a decree for specific performance and that the Subordinate Judge should have held that the appellant was liable to pay a further sum of ₹ 3,000/- allegedly spent by the respondent in making various improvements to the suit property. The District Judge formulated the points for consideration as follows: (i) Whether the plaintiff is entitled to the relief of specific performance? (ii) What is the sale consideration payable by the plaintiff for the execution of the re-conveyance deed? The District Judge held that the parties were bound by the terms of the agreement which was a registered document and which had not been varied or altered in any manner. He noted that in terms of the agreement, the appellant had served notice upon the respondent to specify the date and time on which the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge referred to the following decisions in support of his conclusions, (1) Shanmugam Pillai vs. Annalakshmi Ammal AIR 1950 FC 38, (2) K. Simrathmull v. Nanjalingaiah Gowder AIR 1963 SC 1182, (3) Hasam Nurani Malak V. Mohan Singh and Anr. AIR 1974 Bom. 136 (4) S. Sankaran (dead) and 4 others V. N.G. Radhakrishnan 1994 (2) L.W. 642 . The conclusion of the High Court is unsustainable in law and contrary to the facts. The learned Judge erred in holding that it is a general principle of law that every agreement of sale by which the original owner agrees to buy back the property is a privilege or concession granted to such owner. A privilege has been defined as a particular and peculiar benefit or advantage enjoyed by a person, and a concession as a form of privilege. An option to purchase or repurchase has been held to be such a privilege or concession. [See: Shanmugham Pillai v. Annalakshmi: AIR 1950 FC 38; K. Simarathmull v. Nanjalingaiah Gowder : AIR 1963 SC 1182.] This is because an option by its very nature is dependent entirely on the volition of the person granted the option. He may or may not exercise it. Its exercise cannot be compelled by the person granting the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon payment of the sale consideration within the specified time. It was not in dispute not only that the purchaser had failed to pay the instalments, under the lease but had also allowed the time limit to lapse. It was in this context that the Court said: It is well settled that, when a person stipulates for a right in the nature of a concession or privilege on fulfilment of certain conditions, with a proviso that in case of default the stipulation should be void, the right cannot be enforced if the conditions are not fulfilled according to the terms of the contract. Similarly, in K. Simrathmull V. Nanjalingiah Gowder AIR 1963 SC 1182 construed and followed Shanmugam Pillai, and the majority view that: where under an agreement an option to a vendor is reserved for repurchasing the property sold by him the option is in the nature of a concession or privilege and may be exercised on strict fulfilment of the conditions on the fulfilment of which it is made exercisable. (Emphasis supplied) In the case before us, the right of the appellant to reconveyance of the property has none of the characteristics of an option. The relevant extract of the agreement reads: (where the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me provisions of law. Coming to the facts of the case, there is no dispute that the appellant sent a legal notice to the respondent offering to pay the entire amount of ₹ 19,990/- to the respondent well within the period specified in the agreement. The suit was also filed before 3rd May 1979. Nothing further remained to be done by the appellant under the agreement. As far as the deposit of the balance consideration was concerned under Explanation (1) to Section 16 (c) of the Specific Relief Act, 1963 the appellant could wait for an order of the Court to do so. That is what he did. Both the Trial Court and the first appellate Court on a consideration of all the evidence therefore rightly came to the conclusion that the appellant was ready and willing to perform his obligations under the agreement and was entitled to specific performance of it. The second error committed by High Court was in disturbing the concurrent finding of fact merely on a construction of the plaint on a point not raised by the respondent at any stage of the proceedings. It was not the respondents case either in the written statement nor before the Trial Court or the first appellate Court that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration fixed not once but repeatedly in several paragraphs of the plaint. The High Court erred in overlooking the fact that the appellant had never said that the consideration for re-conveyance under the agreement was less than what was stated. Conceding that, the appellant had merely claimed credit for certain amounts. This could not mean that he was seeking a variation in the agreement itself. The second reason given by the High Court for denying the appellant the relief of specific performance was under Section 20 of the Specific Relief Act, 1963. Relying upon Kommisetti Venkata Subbarayya V. Karamsetti Venkateswarlu and Others AIR 1971 A.P. 279 and Buchiraju V. Sri Ranga Satyanarayana AIR 1967 AP 69 the High Court held that the appellant had not come to the Court with clean hands since he had falsely claimed that he had not received any amount under the first deed of sale from the respondent. The appellants suit was accordingly dismissed. This again was not an issue raised by the respondent at any stage nor does any argument appear to have been advanced in this regard by the respondent before the Trial Court or the first appellate Court at all. Furthermore, the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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