Decided on March 21,1967



- (1.) This second appeal has arisen in a suit for purappad for the year 1139 (1963-64). Under a panayakachit the counter mortgage deed dated April 21, 1938, executed by the defendant's late father in favour of the Vellakkat Mana the annual rental of the property has been fixed at 1068 parahs of paddy and 1068 sheaves of straw, out of which the mortgagee is allowed to appropriate 133 parahs of paddy for his interest on the mortgage amount of Rs. 800/- and 260 parahs of paddy in reimbursement of Rs. 100/- that he may pay towards revenue of the land. The Vellakkat Mana surrendered their interest in the property to the plaintiff, entitling him to the purappad under the panayakachit; and on June 2, 1961, the rights and liabilities under the panayakachit had been divided between the defendant and his sister in equal moieties, the suit property being the defendant's moiety therein. On October 3, 1964, the plaintiff issued a notice to the defendant instructing him not to pay the revenue any further and not to deduct from the rent 130 parahs of paddy in reimbursement of revenue. Averring that the defendant did not pay the revenue or the rent for the year, the plaintiff instituted this suit for recovery of the commuted value of 467 1/2 parahs of paddy and 534 sheaves of straw at Rs. 3.25 per parah of paddy and Rs. 4/- per 100 sheaves of straw. The defendant contended, inter alia, that the plaintiff is not entitled to revoke the agreement in the panayakachit allowing him to appropriate 130 paras of paddy for Rs. 50/- he had paid for the revenue of the year. The Munsiff, Manjeri, found the defendant to have paid Rs. 50/- for revenue of the year 1139 M. E. and allowed him to deduct 130 parahs of paddy in reimbursement thereof, and decreed the rest of the plaint claim with proportionate costs. On appeal by the plaintiff, the Additional District Judge. Kozhikode, held the defendant to be an agent of the plaintiff for paying the revenue out of the plaintiff's funds, and such agency, not being one coupled with interest, to be revocable unilaterally by the plaintiff, and therefore decreed the suit as prayed for with costs in both the courts. Hence this second appeal by the defendant.
(2.) That by the panayakachit the rent of the property the entire property of which the suit property is a moiety is fixed at 1068 parahs of paddy (the straw apart) and that out of such rent the mortgagee has been allowed to appropriate 260 parahs of paddy in reimbursement of Rs. 100/- paid for revenue, are conceded. The plaintiff does not desire that agreement in reimbursement to continue, but the defendant insists on its continuance obviously because paddy, which was selling at about half-a-rupee per parah on the date of the panayakachit has become unavailable nowadays even for Rs. 5/- per parah. In the plaint, filed in 1964, the paddy is priced at Rs. 3 1/4 per parah and the Munsiff has observed: "The defendant does not dispute the correctness of the claim for price of paddy at the rate of Rs. 3.25 per parah". Even at Rs. 3.25 per parah 130 parahs of paddy would be worth Rs. 422 1/2. Thus the effect of the covenant for reimbursement is that for Rs. 50/- the defendant can appropriate 130 parahs of paddy worth over Rs. 420/-. The question here is whether the defendant can insist on the continued performance of that covenant. He says that the plaintiff cannot resile from the express agreement made in the panayakachit. I am afraid this is the very plea that Shakespeare exposed to the resentment of the society in Shylock's assertion: "When it is paid according to the tenor. There is no power in the tongue of man To alter me: I stay here on ray bond." Since then the courts have assumed jurisdiction to relieve parties of unconscionable bargains on various grounds. Under S.22 of the Specific Relief Act, 1877, "the Court may properly exercise a discretion not to decree specific performance: I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part. II. 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".
(3.) When the panayakachit provided that the defendant might pay Rs. 50/-towards revenue and get it reimbursed from the rent due to the plaintiff, it constituted the defendant the plaintiff's agent to make the payment on behalf of the plaintiff out of the plaintiff's funds in his hands. Besides such constitution of agency, the panayakachit contains a provision for the defendant's reimbursement of the amount paid for Rs. 50/- he expends he is allowed to appropriate 130 parahs of paddy out of the plaintiff's rent. It is the effect and validity of the latter provision that arises for determination here. True, on the date of the panayakachit when paddy was selling at about half-a rupee per parah it was a fair agreement. But when the relevant state of things changed very much and the value of paddy has risen 7-8 fold, if not above, it is extortionate to insist on appropriation of 130 parahs of paddy in return for Rs. 50/-. In the language of S.22 of the Specific Relief Act, it is exactly a case where the performance of the agreement would involve considerable hardship on the plaintiff, which be did not foresee, and where its non performance would involve no hardship on the defendant. It is therefore an agreement which the defendant cannot specifically enforce, or, in other words, which the plaintiff may repudiate with immunity.;

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