Y.K.SABHARWAL, J. -
(1.)THE appellant, who was plaintiff No. 4 in the suit, entered into an agreement dated 6/09/1966 with respondent Nos. 1 and 2 for the purchase of Flat No. 71 on the 7th Floor of the building known as 'Divya Prabha' situated at 12-A, Foreshore Road, Bombay. THE sale consideration payable under the agreement is Rs. 60,000.00. THE agreement stipulated that the building was to be completed and possession of the flat delivered to the appellant by 30/06/1969 up to which time, the appellant had already paid Rs. 35,000.00 out of the sale consideration leaving a balance of Rs. 25,000.00. Just a few days before the date fixed for completion and delivery of possession, the lease of the plot of land on which the flats were being constructed was cancelled by the Bombay Municipal Corporation. At that stage, the building was incomplete, Admittedly, it is incomplete till date.
(2.)SIMILAR agreements in respect of different flats were also entered into by the sellers with other flat purchasers. On 30/07/1969, a suit, out of which the present appeal has arisen, was filed seeking specific performance of the flat purchase agreements. The plaintiffs other than plaintiff Nos. 4 and 7 settled their case with sellers during the pendency of the suit and plaintiff No. 7 also settled during pendency of the appeal before the Division Bench of the High Court. There was, however, no settlement between the plaintiff-appellant and respondents 1 and 2. In the decision of the suit, learned single Judge of the High Court held that the appellant was always ready and willing to perform her part of the contract and it was the sellers who committed breach in not carrying out the terms of the agreement. Learned single Judge was, however, of the view that the grant of specific performance being discretionary remedy in equity, taking into account several and serious imponderabilities and further considering that huge sums may be required to complete the building, which amount cannot be properly assessed, the appellant was not entitled to the relief of specific performance and instead it was directed that the seller shall pay to the appellant damages as assessed by the Commissioner for taking accounts with interest at 6% per annum from the date of the decree till the date of payment/realization, in addition to the repayment of Rs. 35,000.00 with interest thereon at 9% per annum from 4/10/1967 till the date of decree and for the subsequent period, at 6% per annum till the date of payment/realization. The judgment and decree of the learned single Judge was affirmed by a Division Bench of the High Court in appeal. Aggrieved therefrom, the present appeal was filed on grant of leave.
The appeal was heard by a two Judge Bench. The learned Judges have concurred that the appellant is entitled to the specific performance of the agreement dated 8/09/1966. There has, however, been difference of opinion between learned Judges on the condition in respect of additional amount that may be paid by the appellant to respondent Nos. 1 and 2 and, therefore, the matter has been placed before this three Judge Bench. The opinions of the learned Judges are reported in Nirmala Anand v. Advent Corporation (P) Ltd. and others ((2002) 5 SCC 481). In the opinion expressed by brother Justice Doraiswamy Raju, the appellant has been directed to pay a sum of Rs. 40,00,000.00. In addition to the sum already paid to respondents 1 and 2 and in the view of brother Justice Ashok Bhan, it would be unfair to impose the condition of payment of Rs. 40,00,000.00 and the appellant is entitled to specific performance of agreement to sell on the price mentioned in the agreement.
We have heard learned counsel for the parties. The only question to determine is as to whether the appellant shall be directed to pay to respondents 1 and 2 any additional sum and if so what amount.
(3.)THE appellant is prepared and willing to take possession of the incomplete flat without claiming any reduction in the purchase price and would not hold respondent Nos. 1 and 2 responsible for anything incomplete in the building. It has been concurrently held that she did not commit breach of the agreement to sell. She has always been ready and willing to perform her part of the agreement. THE appellant is ready and willing to pay to respondents 1 and 2 interest on sum of Rs. 25,000.00. THE breach was committed by respondents 1 and 2 as noticed hereinbefore, it is evident that the appellant is ready to take incomplete flat and pay further sum as noticed, most likely on account of phenomenal increase in the market price of the flat during the pendency of this litigation for over three decades. We see no reason why the appellant cannot be allowed to have, for her alone, the entire benefit of manifold mega increase of the value of real estate property in the locality. In our view, it would not be unreasonable and inequitable to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question. THEre is no reason why the appellant, who is not a defaulting party, should not be allowed to reap to herself the fruits of increase in value.
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, one of the consideration 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 the 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.