Holding

Specific performance was refused as the contract was frustrated and its enforcement would cause undue hardship to the seller; the seller must refund the consideration with interest and pay compensation.

Summary

The appellant, K. Narendra, entered into a 1972 agreement to sell a 4,000 sq m plot to Riviera Apartments (P) Ltd for Rs 8,97,740, contingent on the buyer obtaining various governmental sanctions for a multi‑storey project. The buyer failed to secure the required approvals, part of the land was later declared excess under the Urban Land Ceiling Regulation Act (ULCRA) and some was acquired by the State, rendering performance impossible. The buyer sought specific performance; the High Court ordered it, but the Supreme Court held that under Section 20 of the Specific Relief Act the court’s discretion to grant specific performance must consider comparative hardship and the contract’s frustration. The Court declined to order specific performance, directing the seller to refund the consideration with interest and to pay Rs 3,25,000 as compensation, and to receive back a small portion of the land. The appeal was allowed, setting aside the lower court’s decree.

Issues considered

The applicability of Section 20 of the Specific Relief Act, 1963 to grant specific performance in a contract where performance would cause hardship to the seller.
Whether the contract was frustrated/void due to ULCRA restrictions, land acquisition and failure to obtain statutory clearances.
Whether the repeal of ULCRA in 1999 revives the parties' rights under the 1972 agreement.
Whether compensation can be awarded in lieu of specific performance under Section 21 of the Specific Relief Act.
Whether the buyer’s delay and default constitute a failure to perform within a reasonable time.

Legislation cited

Indian Contract Act, 1872s. 56
Specific Relief Act, 1963s. 16, s. 18, s. 20, s. 21
Urban Land (Ceiling and Regulation) Repeal Act, 1999
Urban Land (Ceiling & Regulation) Act, 1976

Subjects

specific performancecomparative hardshipcontract frustrationurban land ceilingcompensationdiscretionary jurisdictionreal estate contractstatutory clearances

Judgment

-- ~· NARENDRA
v.
RIVIERA APARTMENTS (P) LTD.
A

MAY 24, 1999

[SUJATA V. MANOHAR AND R.C. LAHOTI, JJ.] B

Specific Relief Act, 1963-Sections 16, 18, 20-Specific performance-
Jurisdiction to decree is discretionary-Scope of-Default on part of
purchasers in performing their obligations under the contract-Rise in value
of /and-Possession over a meagre part of property was delivered to C
purchasers-Performance of contract would involve hardship to seller-
Held, discretionary jurisdiction to decree specific performance not to be
exercised in favour of purchasers-Award of compensation.
The appellant entered into an agreement to sell suit property in the
year 1972, for a sum of Rs. 8,97,740. The total are~ of the_ land was D
approximately 4000 sq. mtrs. wherein lease hold rights were vested in favour
of the appellant in terms of a perpetual lease. An amount of Rs. 5000 with
a cheque for Rs. 2,72,000 which was post dated was given by the purchasers
respondents with a stipulation that the same was to be encashed by the seller
after the plans for multi-storeyed buildings as submitted by the purchasers E
were passed and cleared for construction by the NDMC and L&DO or
earlier by a mutual agreement. However, the agreement to sell dated 25-7-
1972 did not specifically provides for a time limit within which the agreement
was to be performed or its performance secured. Subsequently, part of the
land forming subject matter of the agreement was declared as an excess land
within the meaning of the Urban Land Ceiling Regulation Act and hence F
could not have been sold. Part of the land had been acquired by the State and
to that extent the agreement had been rendered incapable of performance.
The Land Acquisition Officer estimated the value of the acquiring property
at Rs. 33,400 per sq. mtr. Possession over a meagre part of the property was
delivered by the appellant to the respondents. On a major part of the property, G
the appellant continued to remain in possession. Considering the failure on
the part of the respondents in securing sanctions/clearance and the difficulties
created in the way of transfer by Urban Land Ceiling Act, the appellant filed
a suit in 1979, seeking a decree for a declaration that the agreement to sell
dated 25-7-1972 had become null and void and impossible of performance and
a decree for delivery of possession of a portion of the land. In 1980, the H
777
778 SUPREME COURT REPORTS [1999) 3 S.C.R.

A respondents filed a suit against the appellant seeking performance of the
r-
contract for sale and in the alternative to grant a decree for the refund of
Rs. 3,25,000 with interest and a decree for compensation. The trial Judge
dismissed that suit. However, the High Court in appeal held that as the
appellant had got encashed the cheque for Rs. 2,75,000 the appellant was
B obliged to hand over physical possession of the portion of the suit premises
which was in his occupation to the respondents. This appeal had been filed
against the judgment of the High Court. The respondents submitted that
inspite of a part of area of the property agreed to be transferred having been
rendered inalienable by the owner on account of its having been acquired by
the State and part of the property having been found to be inalienable on
C account of being in excess of the ceiling limit provided by ULCRA, the
respondents were prepared to have a sale deed executed of such remaining
part of the property as is available to be transferred and that the ULCRA
having been repealed, the hurdle of the land being in excess of the ceiling
had been removed.
D Allowing the appeal, this Court
HELD: 1.1. 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
E by judicial principles and capable of correction by a court of 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 statutorily recognized in India. However, mere inadequacy
F 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.
[792-A-C]
Lourdu Mari David & Ors. v. Louis Chinnava Arogiaswamy & Ors.,
G AIR (1996) SC 2814 and K.S. Vidyanadam & Ors. v. Vairvan, [1997) 3 SCC
1, relied on.

1.2. In the instant case, there has been a default on the part of the
purchasers, respondents in performing their obligations under the contract.
The period lost between 1972 (the date of the agreement) and the years 1979
H and 1980 when the litigation commenced, cannot be termed a reasonable
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. 779
period for which the appellant could have waited awaiting performance by the A
respondents though there was not a defined time limit for performance laid
down by the agreement. The agreement contemplated several sanctions and
clearances which were certainly not within the power of the parties and both
parties knew it well that they were the respondents who were being depended
on for securing such sanctions\clearances. Part of the land forming subject B
matter of the agreement was an excess land within the meaning of the Urban
Land Ceiling Act and hence could not have been sold. Part of the land had
been acquired by the State and to that extent the agreement has been rendered
incapable of performance. The feasibility of a multi storeyed complex as was
proposed and planned by the respondents appears to be an impracticality. The
factum of astronomical rise in the value of the land, none of the parties would C
have fore contemplated at the time of entering into the agreement. Possession
over a meagre part of the property was delivered by the appellant to the
respondents, not simultaneously with the agreement but subsequently at
some point of time. On a major part of the property, the appellant has
continued to remain in possession. As opposed to this, the respondents have D
neither pleaded nor brought material on record to hold that they have acted
in such a way as to render inequitable the denial of specific performance and
to hold that theirs would be a case of greater hardship over the hardship of
appellant. On facts and in the circumstances of the case, the performance
of the contract would involve such hardship on the appellant as he did not
foresee while the non-performance would not involve such hardship on the E
respondents. The contract though valid at the time when it was entered, is
engrossed into such circumstances that the performance there of cannot be
secured with precision. The present one is a case where discretionary
jurisdiction to decree the specific performance ought not to be exercised in
favour of the respondents. [794-D-E-H; 795-A-C] F

1.3. In the facts and circumstances of the case it would not be appropriate
to extend the benefit of the subsequent event of repeal of ULCRA in favour
of the respondents-plaintiffs after a lapse of 16 years from the date of the
contract. fermission for constructing a multi-storeyed complex on the
premises was refused time and again by the NDMC until the suit for specific G
performance came to be decreed by the trial court. On none of the two events
either of the parties had any control. At one point of time the contract had
stood frustrated by reference to Section 56 of the Contract Act. The ·
subsequent events cannot be pressed into service for so reviving the contract
as to decree its specific performance. [795-G-H) H
780 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 1.4 The present one is a fit case where the respondents should be
awarded some compensation inspite of its specific performance being refused.
An amount of Rs. 3,25,000, equivalent to the amount which was paid by the
respondents to the appellant would be a reasonable amount of compensation
in the facts and circumstances of the case which deserves to be paid by the
appellant to the respondents in substitution of the decree for specific
B performance. The respondents have also in their plaint claimed the relief ~f
compensation in addition to other reliefs. The appellant shall return the
amount of consideration paid by the respondents with interest calculated
@12% p.a. from the date of payment to the appellant till the date of return
by the appellant to the respondents. Possession over the part of the property
C admeasuring 45 sq. yards (approx.) shall be delivered by the respondents to
the appellant by removing structures, if any, raised by the respondents.
[796-G; 797-C-D]

Smt. Chand Rani (dead) by Lrs. v. Smt. Kamal Rani (dead) by Lrs., AIR
(1993) SC 1742, relied on.
D
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1928-29 of.
1993.

From the Judgment and Order dated 18.12.92 of the Delhi High Court
in RF.A. Nos. 9-10of1991.
E Yashank Adhyaru, Ms. Sushma Chawla, Manoj Wad, (Ashish Wad) and
Mrs. J.S. Wad for the Appellant.

Shanti Bhushan and Jayant Bhushan for the Respondent.

The Judgment of the Court was delivered by
F
R.C. LAHOTI, J. This common judgment shall govern the disposal of
Civil Appeals Nos. 1928 and 1929 of 1993 between the same parties and
touching the same property. ·

The property in suit consists of a plot of Nazul Land known as 6,
G Tolstoy Marg, New Delhi wherein lease hold rights were vested by the
President of India in favour of Mis. Shiv Ram, Mahashaya Krishna and K.
Narendra ( the appellant herein) in terms of a perpetual lease commencing
from 29th May, 1956. The relevant and material terms of the lease are extracted
and re-produced hereunder:-

H "II (5) The Lessee will not without the previous consent in writing of
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 781

the Lessor or of such officer or body as the Lessor may' authorise in A
this behalf make any alterations in or additions to the buildings
erected on the said demised premises so as to effect any of the
architectural or structural features thereof or erect or suffer to be
erected on any part of the said demised premises any buildings other
than and except the buildings erected thereon at the date of these B
presents.

(6) The Lessee shall not without the written consent of the Lessor or
such officer or body as he may authorise in this behalf construct any
well of any description, or instal any private system of supplying
water whether for irrigation or for drinking.
c
(7) The Lessee will not without such consent as aforesaid carry on
or permit to be carried on the said premises any trade or business
whatsoever or use the same or permit the same to be used for any
purpose other than that of a single storey residential building for a
private dwelling house for one or two families in all or do or suffer D
to be done thereon any act or thing whatsoever which in the opinion
of the Lessor or such officer as he may authorise in this behalf may
be an annoyance or disturbance to the President of India or his
tenants in the New Capital of Delhi".

xxx xxx xxx E
(13) The Lessee shall before any assignment or transfer of the said
premises hereby demised or any part thereof obtain from the Lessor
or such Officer or body as the Lessor may authorise in this behalf
approval in writing of the said assignment or transfer and all such
assignees and transferees and the heirs of the Lessee shall be bound p
by all covenants and conditions herein contained and be answerable
in all respects therefor.

xxx xxx xxx
(IV) If there shall at any time have been in the option of the Lessor G
or such officer as may be authorised by him in this behalf whose
decision shall be. final, any breach by the Lessee or by any person
claiming through or under him of any of the covenants or .conditions
contained in sub-clauses (5), (9) and ( IO) of Clause III and if the said
Lessee shall neglect or fail to remedy any such breach to the
satisfaction of the Lessor or ..such officer as may be authorised by him H
_...I_

782 SUPREME COURT REPORTS [1999] 3 S.C.R.

A in this behalf within seven days from the receipt of a notice signed
by the Lessor or such officer as may be authorised by him in this
behalf requiring him to remedy such breach it shall be lawful for the
officers and workmen acting under the authority and direction of the
Lessor to enter upon the premises hereby demised, and (a) to remove
or demolish any alterations in or additions to the buildings erected on
B the said premises, (b) to remove or demolish any buildings erected on
the said premises without the previous consent in writing of the
Lessor or duly authorised officer(c) to fill any excavation or carry out
any repairs that may be necessary and all such moneys and expenses·
as may be laid out and incurred by the Lessor or by his order shall.
c be paid by the said Lessee; and it is hereby expressly declared that
the liberty herein before given is not to prejudice in any way the
power given to the President of India by Clauses V and VI hereof."

xxx xxx xxx

D On 25th July, 1972 , the appellant entered into an agreement to sell,
transfer and assign all his rights, title and interest in the said property along
with all structures out houses plants etc. in favour of the respondents in
consideration of a sum of Rs. 8,97, 740 for the purpose of constructing a multi-
storeyed building by the respondents on the said properly. In terms of the
E agreement a sum of Rs. 50,000 was to be paid at the execution of the agreement
vi de demand draft dated 25th July, 1972 which was done. Another sum of Rs.
2,75,000 was to be paid by a post-dated cheque dated 25th January, 1973
which was to be encashed by the appellant after the plans of multi-storeyed
building as submitted by the respondents were passed and cleared for
construction by N.D.M.C. and L.& D.O. or earlier by mutual agreement and
F the balance amount of Rs. 5,72,740 was to be paid after the completion of the
said multi-storeyed building. There are a few relevant clauses of the agreement,
· material for the purpose of these appeals which are extracted and re-produced
hereunder:-

" (3) That the purchaser shall get the permission for such a conveyance
G
from the Land Development Officer and shall pay all the charges and
expenses whatsoever, for execution and registration of the sale-deed,
its stamping and the charges to the Land & Development Office on
account of unearned increase payable by the Seller for getting the·
necessary permission as provided in the perpetual lease dated 11th
H September, 1961.
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 783

(4) That the purchaser shall have the building planned in their absolute A
discretion and after having the plans duly sanctioned construct and
sell flats in the said building as per their terms and conditions without
any let or hindrances from the seller any sort whatsoever.

xxx xxx xxx
B
(6) That only after the payment of the consideration in full to the seller
the purchasers shall be entitled to convey, sell or transfer the flats and
the plot of land bearing No. 6, Tolstoy Marg, New Delhi.

(7) That the vacant physical possession of the premises is hereby
given to the purchaser who will now fourth be in actual possession C
of the premises.

(8) That the purchaser shall be at liberty to store their construction
materials, make storage, sheds, keep chowkidars and make room for
them in the rear of the Bungalow No: 6, Tolstoy Marg, New Delhi at
their own cost without any let or hindrance from the seller or anyone D
claiming through or under him provided as specifically agreed that in
case the post dated cheque for Rs. 2,75,000 stated above, is not
honoured by the bankers, the possession shall immediately be returned
to the seller.

(9) That the seller shall execute an irrevocable Power of Attorney in E
favour of the purchasers authorising them to do all the every act for
constructing the said building on this land.

xxx xxx xxx

r (13) That in the event the Government of India acquires or requisitions F
whole or part of the property or prohibits the transfer of the said
property under any Urban Property Ceiling Law enforced the said
property before the date of the sanction of the plans for the
construction of the proposed multi-storeyed building, then in such
event the, sellers shall refund the amount paid by the purchasers and G
the purchasers shall simultaneously hand over vacant and peaceful
possession of the premises to the sellers.

xxx xxx xxx
(16) The purchaser undertakes to complete the construction of the
said building within a period of two to three years from the date the H
784 SUPREME COURT REPORTS [1999] 3 S.C.R.

A plans for the said buildings are sanctioned and released by the
appropriate authorities subject to strike, war, natural calamity and
force major and Civil Commotion.

(17) That on possession of the said plot and the building thereon
being given to the purchaser by the seller, the former shall be entitled
B to dismantle the buildings now standing on the said plot of land and.
utilise the debris thereof for such purpose as the purchaser may
decide and the seller shall not claim any compensation for the same.

xxx xxx xxx

C On 26th July 1972, the.parties entered into an agreement supplementary
to the agreement dated 25.7.72 and to some extent modified the terms and
conditions of the original agreement. According to the supplementary
agreement, the parties agreed that instead of the balance consideration of Rs.
5,72,740 being paid in cash, the respondent would give to the appellant flats
D on 2nd, 3rd and 4th floors measuring 8,182 sq. ft. at the rate of Rs. 70 per sq.ft.
valued at Rs.5,72,740. The area of 8,182 sq. ft. could be reduced or increased
by 5 to 6 percent at the discretion of the respondents.

An amount of Rs. ?0,000 was paid by the respondents to the appellant
on 25.7.72 simultaneously with the execution of the agreement. A post-dated
E cheque for a sum of Rs. 2,75,000 was also delivered by the respondents to
the appellant. Though this cheque was to be encashed by the appellant in
terms of the agreement only after sanction of the building plans of the
proposed multi-storeyed building by the local authority i.e. N:D.M.C. and the
Land and Devefopment Office, however, the cheque for the said amount of
Rs. 2,75,000 was encashed by the appellant though the building plans had not
F been sanctioned by the NDMC and L & DO.

As agreed, the appellant also executed an irrevocable Power of Attorney
which was duly registered with the Sub-Registrar Delhi on 26th July, 1972 in
favour of Shri Inder P. Choudhary, Managing Director and Ms. ·Minakshi
G Choudhary, Director of the respondent company authorising them to represent
the appellant before the NDMC and L & D.O, the office of the local Government
and any other Government Department or authority in connection with the
affairs connected with and pertaining to the constru~tion of multi- storeyed
building to be constructed on the said property.

H On 7/11-9-72 the respondent submitted to the N.D.M.C. building plans
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 785
for bringing up a Group Housing Project by the name of "Gimar" on the said A
property. The plans were for the construction of a Housing Project consisting
of an 8 storeyed building and 2 blocks of 5-storeyed building comprising of
18 flats of three bed rooms and 23 flats of two bed rooms each apart from
incidental/ancillary constructions such as power sub-station, pump house,
lifts etc. On 6. l l. l 972 the plans were rejected mainly on the ground that plot
in question formed a part of the zone marked as re-development area as per B
the zonal plan D-3. This was in exercise of the power conferred by section
193 (2) of the Punjab Municipalities Act.

On 9 .11. 72 the respondent requested the NDMC to keep the building
plans pending and put them up for sanction after certain clarification awaited C
from Delhi Development Authority was received.

On 31.l 0. 72 the Government of India served a notice on the appellant
calling upon him to show cause as to why the lease be not,cancelled followed
by re-entry upon the premises by the lessor in view of the appellant having
sold the property to the respondents without obtaining prior approval of the D
lessor and thereby having committed a breach of clause II (13) of the lease
deed.

On 9.I l.72 the respondents gave a reply to the L & D.O. to the letter
dated 31.10.72 sent to the appellant which apparently was passed on by the E
appellant to the respondents for the needful further action. The respondents
submitted that there was no breach of clause II (13) of the lease deed
inasmuch as there was only an agreement to sell entered into by the appellant
authorising the respondents to build on that property but there was no sale
as such. It appears, that the respondents had raised certain structures on the
property which were objectionable. The respondents stated that the F
objectionable structures as pointed out by the L & D.O. had been removed.
On 22.11.73 the N.D.M.C. once again informed the respondents that the case
. for sanction ofthe building plans was considered by the NDMC on 21.9.1973
and the plans were rejected for the reasons annexed with the letter. The
principal of the reasons was that the area was earmarked as re-development G
area in the master/zonal plan and further because the size of the plot was less
than one acre whereas minimum size of the plot of group housing was
required to be one acre. The master/zonal plan referred to by the NDMC was
one approved by the Central Government under Section 9 (2) of the Delhi
Development Act and hence having a statutory effect. Efforts were repeated
for the sanction of the building plans but as is borne out from the H
786 SUPREME COURT REPORTS (1999] 3 S.C.R.

A communications dated 12.8.85 and 19.11.90 by the NDMC, building plans were
not sanctioned and were only rejected.

Sanction has however been granted on 4.6.1991 valid upto 29 .4.1993
which is subject to about 13 conditions and provides that the sanction will
be void ab initio if any of the auxiliary conditions mentioned therein were not
B complied with. The correspondence with the NDMC indicates that the NDMC
was persuaded to grant such permission on account of the suit having been
decreed on 15.12.1990 by the Trial Court and the decree containing a direction
to the appellant to obtain all necessary permission from all authorities including
Revenue, local or central authorities so as to effectuate the agreement.
c Before we may proceed to notice the facts relevant to initiation of
litigation between parties, we may also notice certain facts relevant to the
Urban Land Ceiling & Regulation Act, 1976 (hereinafter ULCRA, for short).

It is not disputed that the land forming subject matter of the agreement
D to sell between the parties includes an excess land to the extent of 368.23
sq.mtrs. as per the provisions of ULCRA. Time and again permission sought
for sale of the land was denied by the competent authority. The application
dated 14.9.1976 under Section 20 of the ULCRA filed by the respondents
projecting a plea that though a group housing scheme did not come within
the ambit of the Act, an application for exemption from the provisions of the
E Act was being filed by way of precaution, was turned down by Delhi
Administration on 2.5.1979. On 9.8.1976, the appellant had moved an application
for the requisite exemption whereon vide letter dated 1.1.1978 the appellant
was informed that as per the existing guidelines the application for exemption
proposing to construct a multi-storeyed building was likely to be rejected by
F the competent authority. On 16.8.1978 the appellant reiterated his prayer for
exemption banking upon a plea that as sanction of sale was not possible
under the Act, the agreement to sell could be deemed to have become
infructuous and therefore the requisite exemption may be granted for the
appellant's own scheme of group housing.

G On 26.4.1985 the competent authority passed an order under Section
20(1) (a) read with Section 22 of the ULCRA exempting the excess vacant land
to the extent of 368.23 sq.mtrs. from the provisions of Chapter III of the Act
to undertake group housing on the said plot subject to certain terms and
conditions inter alia :-

H "3. The building plan for group housing will be strictly in conformity
K. NARENDRA v. RIVIERA APARTMENTS(P.) LTD. [R.C. LAHOTI, J.) 787
with the development controls and restrictions/regulations A
recommended by the erstwhile N.D.R.A.C. for the Zone.

xxx

5. The construction should be completed within two years from the
date of the approval of the building plan or the date of issue of this B
order, whichever is later.

6. The plinth area of each dwelling unit in the building shall not
exceed 300 sq.mtrs.

7. A person shall be entitled to own only one dwelling unit in this
scheme. It is clarified that for the purpose of this clause a Company C
shall be deemed to be a person.

xxx

9. No transfer/substitution of a dwelling unit shall be effected without
obtaining prior approval of the Administrator of Delhi. For this purpose D
a list of intending buyers along with copies of the agreements executed
or intended to be executed with the intending buyers and affidavits
individually from them to the effect that he/she does not own any
dwelling unit in any group housing scheme or a residential property
or a house site or has a share in any joint ancestral property exceeding E
80 sq. yds., either in his/her name or in the name of unmarried minor
children in the Union Territory of Delhi shall be filed with the Secretary
(L & B) Delhi Administration, Delhi."

Here itself, we may state that the agreement to sell entered into between
the parties was incapable of being honoured in the light of the stringent terms F
and conditions subject to which the above said permission was granted. In
terms of the supplementary agreement entered into between the parties the
appellant was to be allotted flats measuring 8182 sq.ft. on several floors of
-;<>
the proposed building as a part of the consideration for the agreement, but
the order dated 26.4.1985 would not permit the appellant to have more than
one dwelling unit in the scheme. Secondly, the building plan for group housing G
unit must be in conformity with other restrictions/regulations applicable for
a zone. In this context, ~f\ propose to set out the controversy centering
around the question whether the suit land forms part of LUTYEN's bungalow
zone (LBZ, for short). If the property be the part of LBZ, the construction of
multi-storeyed building on the said plot is absolutely out of question. The H

t_

l
788 SUPREME COURT REPORTS [1999) 3 S.C.R.

A communication dated 8.2.1988 from the Joint Secretary (Urban Development)
made to various local authorities of Delhi describes one of the restrictions as
under:-

"The new construction of dwellings, on a plot must have the same
plinth area as the existing bungalow and must have a height not
B exceeding the height of the bungalow in place or, ifthe plot is vacant,
the height of the bungalow which is the lowest of those on the
adjoining plots."

It was vehemently disputed by the learned counsel for the respondents
if the suit land at all forms part of LBZ. On the material available on record
C of the case, it is not possible to record a categorical finding in that regard.
However, still we may refer to a document or two.

It appears that a piece of the land forming part of the suit property was
acquired by notification dated 5.9.1991 for the purpose of road widening.
D .Award no.6/92-93 made by the Land Acquisition Collector (DS) Delhi
specifically refers to plot no. 6, Tolstoy Marg apart from other properties
acquired. It states inter alia :-

"Besides this other properties 2,4,6 & 8 Tolstoy Marg, 13, Barakhamba
Road and 12 min Kasturba Gandhi Marg fall in residential zone and
E as per present record available only property No.6 Tolstoy Marg has
sanction for group housing construction, which was obtained from
DDA & NDMC before the extension ofLutyen's Bungalow zone over
Hailey Road and Tolstoy Marg, which means this plot bearing 6,
Tolstoy Marg has future potentiality to be used as commercial one."

F Fair market value of the property was determined at Rs. 33,400 per sq.
mtr. The amount of compensation determined at the above said rate along
with the amount of solatium and interest was received by respondents.

During the course of hearing our attention was drawn to a communication
G dated 17.6.1993 from L & D.O. to the parties whereby the sanction for
construction of multi-storeyed group housing building on the suit premises
offered to the respondents on 18.9 .1992 has been withdrawn and cancelled
on the ground of non-compliance with the terms and conditions of the
sanction.

H Some controversy between the parties also centres around the fact
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 789
whether possession over the suit property was handed over by the appellant A
to the respondents or not. The agreement to sell recites delivery of possession
by the appellant to the respondents. The learned Trial Judge has recorded a
finding that the recital in the agreement as to delivery of possession was not
true and that the appellant had delivered possession of an area of 45 sq.yards
merely to the respondents for the purpose of storing the material, on which B
area the respondents did raise some temporary structures; the physical
possession was to be handed over after the necessary permissions/sanctions
were granted. The Division Bench in appeal has however referred to the
contents of the agreement and formed an opinion that the vacant possession
of the suit premises was handed over by the appellant to the respondents on
25.7.1972 which possession was a 'legal possession' of the respondents and C
as the appellant. had got encashed the cheque for Rs. 2,75,000, therefore, the
appellant was obliged now to handover physical possession of the portion
of the suit premises which was -in his occupation to the respondents. The
finding recorded by the Division Bench, to say the least, is laconic and
oscillating.
D
From the evidence and the contents of correspondence exchanged
between the parties it is also writ large that the parties were well known to
each other from much before. The appellant had confidence in the respondents
as a builder. The appellant was not in a position to develop the property. He
did not have the requisite finance. He also lacked confidence if he would be E
able to manage for the several sanctions and permissions pre-requisite to
materialising any building plan on the suit property such as the permission
of the lessor (L & D.O.), the exemption under the ULCRA, the sanction of the
building plan from the NDMC. That is why, he entered into an agreement to
sell the property to the respondents. The appellant executed an irrevocable
power of attorney_, in favour of the respondents giving wide and sweeping F
powers. The underlying object behind executi.on of such power of attorney
was manifestation of appellant's expectations from and confidence in the
respondents that they would be in a position to secure the several permissions
and sanctions. However, the expectations did not materialise. The intention
of the parties as evidenced by the terms and conditions of the agreement and G
subsequent correspondence between the parties was that the respondents
should have been in a position to secure performance of the terms and
conditions of the agreement within a reasonable time which has been belied.
In the meantime, the value of the land has sky-rocketed. In the year 1972, the
appellant had entered into an agreement to sell the property for a sum of Rs.
8,97, 740. The total area of the land is approximately 4000 sq.mtrs. meaning H
790 SUPREME COURT REPORTS [1999] 3 S.C.R.

A thereby the property was agreed to be sold roughly at the rate of Rs. 225 per
sq. mtr. In the year 1991, consequent upon a part of the property having been
acquired for the purpose of road widening, the Land Acquisition Officer has
estimated the value of the acquired property at Rs. 33,400 per sq. mtr. Going
by the standard adopted by the Land Acquisition Collector, which is always
B on the lower side, the value of the property had risen astronomically.

If such circumstances taken together should the Court exercise its
jurisdiction in favour of decreeing the specific performance?

It is true that the agreement to sell dated 25th July, 1972 does not
C specifically provide for a time limit within which the agreement was to be
performed or its performance secured. The Constitution Bench has held in the
case of Smt. Chand Rani (dead) by Lrs. v. Smt. Kamal Rani (dead) by Lrs.,
AIR (1993) SC 1742:-.

"In the case of sale of immovable property there is no presumption
D 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 : ( l) 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."
E
Intrinsic evidence is available in the agreement itself spelling out the
intention of the parties to perform the contract within a. reasonable time. Vide
clause 1 (b), a cheque for Rs. 2,72,000, which was post-dated 25.1.1973, was
given by the responden~s to the appellant with the stipulation that the same
F was to be encashed by the seller after the plans of multi-storeyed buildings
as submitted by the purchaser were passed and cleared 'for construction by
the NDMC and L&DO or earlier by a mutual agreement. The cheque was
neither a blank nor an undated cheque. It was dated 25.1.1973. The validity
of the cheque would have expired on 24. 7.1973 on expiry of six months.
Meaning thereby the sanction of the plans from NDMC and clearance from
G the L&DO, the obligation to secure which was on the purchaser, were expected
'by the parties to be secured withip. the period of six months. So also clause
16 provided for completion of the construction of the building within a period
of two to three years from the date of the plans being sanctioned and released
by the appropriate authority. Thus, the intention was to have the agreement
H performed within a period of about 2-1/2 to 3-112 years calculated from
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 791
25.l.1973. A
In the background of the abortive efforts made by the parties at securing
the sanction and the clearances, on 16.8.1975 the appellant wrote a letter to
the respondents. A reading of the letter shows it to have been written with
innocence and simplicity without any legal advise. The appellant made an
humble appeal to the respondents for fulfilling their obligations under the B
contract and to take the appellant in the right spirit while reading the letter.
The appellant indicated the high hopes which he had from the respondents
while entering into the agreement, which hopes were belied. The appellant
then states in no uncertain terms:-

"In view of all this, I would request you, therefore, to place yourself C
in a position to get the transaction completed by obtaining necessary
sanctions, permissions, completions and other formalities within three
months from the date ofreceipt of this letter. You would also appreciate
that in the absence of your efforts to get the transaction completed
within this period, it will not be taken amiss if I also desire to exercise D
my legal rights and enforce them."

This letter is then followed by a legal notice dated 25 .1.1979. Having
emphasized the failure on the part of the respondents in securing sanctions/
clearances and the insurmountable difficulty created in the way of the transfer
by ULCRA, the appellant declared that the agreement had become void and E
unenforceable and hence respondents may vacate about 405 sq.ft. of the
property in their possession within a period of two weeks failing which the
appellant would be constrained to initiate legal proceedings. On 3.5.1979, the
appellant filed a suit seeking a decree for a declaration that the agreement
dated 25. 7 .1972 had become null and void and impossible of performance and F
a decree for delivery of possession of a portion of the land measuring about
45 sq. yards shown in the plan attached with the plaint.

On 14.3.1980, the respondents filed a suit against the appellant seeking
specific performance of the contract for sale, a mandatory injunction directing G
the appellant to handover vacant possession of the premises/part of the old
building in possession of the appellant as described in the map and in the
alternative to grant a decree for the refund of Rs. 3,25,000 with interest
calculated @ 18% p.a. and a decree for compensation.

Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction H
792 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 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 appeal. Performance of the contract
involving some hardship on the defendant which he did not foresee while
B 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
C defendant or unforeseeable hardship on the defendant. The principle underlying
S~ction 20 has been summed UP.. ~y this Court in Lourdu Mari David and
others v. L_ouis Chinnaya Arogiaswamy and Ors., 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
D be exercised on sound principles of law capable of correction by an appellate
court.

Chitty on Contracts (27th Edn., 1994, Vol.I, at p. 1296) states:-

"Severe hardship may be a ground for refusing specific
performance even though it results from circumstances which arise
E
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."

Very recently in K.S. Vidyanadam & others v. Vairavan, [1997] 3 SCC
F l, this court has held :

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
G prescribed by the Limitation Act 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
H notwithstanding the time-limits stipulated in the agreement for doing
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 793
one or the other thing by one or the other party. That would amount A
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 l 0 and 20. As held B
by a Constitution Bench of this Court in Chand Rani v. Kamal Rani
(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 C
if it is not of the essence of the contract, the Court may infer that it
is to be 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 D
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, it
is well-known that their prices have been going up sharply over the
last few decades - particularly after 1973." (Para 10)
E
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:

Indeed, we are inclined to think that the rigor of the rule evolved by F
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." ( Para 11 )
G
The Court has further proceeded to hold:-

"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 H
794 SUPREME COURT REPORTS [1999] 3 S.C.R.

A on the ground that time has not been made the essence of the ..,
contract (relating to immovable properties )" (Para 11)

Having noticed the Constitution Bench decision in Chand Rani (supra),
the Court has further held:-

B "Even where time is not of the essence of the contract, the
plaintiffs 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 of the contract
and the nature of the property." (Para 14)

c In our opinion, there has been a defaul~ on the part of the respondents
in performing their obligations under the contract. The period lost between
25.7.1972 (the date of the agreement) and the years 1979 and 1980 when the
litigation commenced, cannot be termed a reasonable period for which the
appellant could have waited awaiting performance by the respondents though
D there was not a defined time limit for performance laid down by the agreement.
The agreement contemplated several sanctions and clearances which were
certainly not within the power of the parties and both the parties knew it well
that they were the respondents who were being depended on for securing
such sanctiens/clearances. Part of the land forming subject matter of the
agreement was an excess land within the meaning of ULCRA and hence could
E not havj been sold. Part of the land has been acquired by the State and to
that extent the agreement has been rendered incapable of performance. The
feasibility of a multi-storeyed complex as is proposed and planned by the _r

respondents appears to be an impracticality. If the respondents would not be
able to construct and deliver to the appellant some of the flats as contemplated
F by the novated agreement how and in what manner the remaining part of
consideration shall be offered/paid by the respondents to the appellant is a
question that defies answer on the material available on record. Added to all
this is the factum of astronomical rise in the value of the land which none
of the parties would have fore contemplated at the time of entering into the •.

agreement. We are not in the least holding that the consideration agreed upon
G between the parties was inadequate on the date of the agreement. We are only
noticing the subsequent event. Possession over a meagre part of the property
was delivered by the appellant to the respondents, not simultaneously with
the agreement but subsequently at some point of time. To that extent, the
recital in the agreement and the averments made in the plaint filed by the
H respondents are false. On a major part of the property, the appellant has
K. NARENDRA v. RIVIERA APARTMENTS (P.) LTD. [R.C. LAHOTI, J.] 795
continued to remain in possession. As opposed to this, the respondents have A
neither pleaded nor brought material on record to hold that they have acted
in such a way as to render inequitable the denial of specific performance and
to hold that theirs would be a case of greater hardship over the hardship of
the appellant. Upon an evaluation of the totality of the circumstances, we are
of the opinion that the performance of the contract would involve such B
hardship on the appellant as he did not foresee while the non performance
would not involve such hardship on the respondents. The contract though
valid at the time when it was entered, is engrossed into such circumstances
that the performance thereof cannot be secured with precision. The present
one is a case where the discretionary jurisdiction to decree the specific C
performance ought not to be exercised in favour of the respondents. During
the course of hearing the learned senior counsel for the respondents time and
again emphasized and appealed to the court that respondents were builders
of repute and in the event of the specific performance being denied, they run
a grave risk of losing their reputation as their proposed building plan "Gimar" D
would not materialise and they will not be able to show their face to their
prospective flat buyers. This is hardly a consideration which can weigh
against the several circumstances which we have set out herein above. If a
multi-storeyed complex cannot come up on the suit property, the respondents'
plans are going to fail in any case. E
We have already held that until the repeal of the ULCRA in the year
1999 the property agreed to be transferred was incapable of being transferred
for failure of the requisite permission under the ULCRA which situation
continued to prevail for a period of about 16 years from the date of agreement
until the repeal of ULCRA. In the facts and circumstances of the case we do F
not think it appropriate to extend the benefit of the subsequent event of
repeal of ULCRA in favour of the respondent-plaintiffs after a lapse of 16
years from the date of the contract. Permission for constructing a multi-
storeyed complex on the premises was refused time and again by the NDMC
until the suit for specific performance came to be decreed by the Trial Court. G
.. On none of the two events either of the parties had any control. We are
clearly of the opinion that at one point of time the contract had stood
frustrated by reference to Section 56 of the Contract Act. We do not think
that the subsequent events can be pressed into service for so reviving the
contract as to decree its specific performance. H
796 SUPREME COURT REPORTS (1999] 3 S.C.R.

A The learned counsel for the respondents submitted that in spite of a
part area of the property agreed to be transferred having been rendered
inalienable by the owner on account of its having been acquired by the State
and part of the property having been found to be inalienable on account of
being in excess of the ceiling limit provided by ULCRA, the respondents were
B prepared to have a sale deed executed of such remaining part of the property
as is available to be transferred without insisting on a corresponding reduction
in the price agreed to be paid . .The learned counsel for the respondents also
submitted that the ULCRA having been repealed by the Urban Land Ceiling
and Regulation (Repeal) Act, 1999, the hurdle of the land being in excess of
the ceiling has been removed and this aspect of the matter has lost its
C relevance. We are not impressed by the submission. Though the respondents
may on their part, in the changed circumstances, be agreeable to have even
lesser property being transferred to them, but in our opinion that is not
permissible. The case of non-enforcement except with variation is statutorily
covered by Section 18 of the Specific Relief Act, 1963. When the defendant
D sets up a variation then the plaintiff may have the contract specifically
performed subject to the variation so set up only in cases of fraud, mistake
of fact or misrepresentation or where the contract has failed to produce a
certain legal result which the contract was intended to do or where the parties
have subsequent to the ex~cution of the contract varied its terms. Obviously,
the case at hand is not covered by any of the situations contemplated by
E Section 18 abovesaid. '

However, in our opinion the present one is a fit case where the
respondents should be awar~ed some compensation in spite of its specific
performance being refused. Section 21 of the Specific Relief Act provides for
award of compensation either in addition to or in substitution of such--
F performance. The explanation appended to the Section expressly enacts that
the Court is not precluded from exercising jurisdiction to award compensation
even in a case where the contract has been rendered incapable of specific
performance. Compensation to some extent is a matter of guess work. An
amount of Rs.3,25,000, equivalent to the amount which was paid by the
G respondents to the appellant would be a reasonable amount of compensation
in the facts and circumstances of the case which in our opinion deserves to
be paid by the appellant to the respondents in substitution of the decree for
specific performance. The respondents have also in their plaint claimed the
relief of compensation in addition to other reliefs.

H For the foregoing reasons, the appeals are allowed. The judgment and
K. NARENDRA v. RIVIERA APARTMENTS {P.) LTD. [R.C. LAHOTI, J] 797

decrees passed by the trial court and confirmed in appeal are set aside. A
Instead the following consolidated decree is passed in both the suits:

(1) the suit for specific performance of agreement to sell dated 25. 7 .1972
filed by the respondents is directed to be dismissed;

(2) the appellant shall return the amount of consideration paid by the B
respondents to the appellant with interest calculated@ 12% p.a. from the date
of payment to the appellant till the date of return .by the appellant to the
respondents;

(3) the appellant shall also pay an amount of Rs. 3,25,000 by way of
compensation in lieu of specific performance to the respondents which amount C
shall carry interest at the rate of 12 per cent per annum from the date of decree
(that is, today) till realisation;

(4) possession over the part of the property admeasuring 45 sq.yards
(approximately) shown in red in the plan attached with the plaint filed by the
appellant shall be delivered by the respondents to the appellant by removing D
structures, if any, raised by the respondents;

(5) the c~sts shall be borne by the parties as incurred throughout.

R.A. Appeals allowed.
E