Holding

An ex parte decree for specific performance is a valid and executable decree, and the High Court erred in not exercising its equitable jurisdiction under Section 28 of the Specific Relief Act.

Summary

Eight legal heirs sold a Delhi property to Kuldeep Singh in 1980, with the balance consideration to be paid after obtaining permission from the Land & Development Officer. A minor heir, Rajinder Kumar, challenged the agreement, and Kuldeep Singh filed a suit for specific performance which was decreed ex parte in 1984 against the eight heirs. Execution of the decree was sought in 1990, and the defendants later filed applications contesting the execution and a Section 28 application for rescission in 1999. The Supreme Court held that an ex parte decree for specific performance remains a valid, enforceable decree and that any ambiguity must be construed by the executing court, while the High Court failed to exercise its equitable jurisdiction under Section 28. Accordingly, the Court directed the purchaser to pay the land value at the prevailing circle rate and the unearned increase, and partially allowed the appeals, dismissing the rest.

Issues considered

Whether an ex parte decree for specific performance is executable.
Whether the High Court correctly exercised its jurisdiction in deciding the application under Section 28 of the Specific Relief Act, 1963 for rescission.

Legislation cited

Code of Civil Procedure, 1908s. Order VIII Rule 10, s. Order VIII Rule 13, s. Order XXI Rule 58, s. Section 8 r.10
Constitution of Indias. Article 142
Specific Relief Act, 1963s. Section 28

Subjects

specific performanceex parte decreeexecution of decreeSpecific Relief ActSection 28equityreal estateunearned increasedecree executabilitylimitation periodrescission

Judgment

[2014] 2 S.C.R. 356

A RAJINDER KUMAR
v.
SHRI KULDEEP SINGH & OTHERS
(Civil Appeal No. 1873 of 2014 etc.)

FEBRUARY 07, 2014
B
[CHANDRAMAULI KR. PRASAD AND
KURIAN JOSEPH, JJ.)

DECREE:
c
Execution of ex-parte decree in a suit for specific
performance - Held: Merely because it is an ex parte decree,
the same does not cease to have the force of the decree - It
is a valid decree for all purposes - Once the decree for
0 specific performance attained finality, the defendants cannot
thereafter make weak and lame contentions regarding the
executability of the decree - Even if there is any ambiguity, it
is for the executing court to construe the decree if necessary
after referring to the judgment - If sufficient guidance is not
E available from the judgment, the court is even free to refer to
the pleadings so as to construe the true import of the decree
.- No doubt, the court cannot go behind the decree or beyond
the decree - But while executing a decree for specific
performance, the court, in case of any ambiguity, has
necessarily to construe the decree so as to give effect to the
F intention of the parties - Code of Civil Procedure, 1908 - 0. 8,
r. 10.

SPECIFIC RELIEF ACT, 1963:

G s.28 - Application for rescission - Suit for specific
performance decreed in 1984 - Execution petition filed in
1990 - Application uls 28 filed in 1999 - Held: Though
execution petition was filed within the time prescribed, the
efflux of time assumes importance and seriousness in the
H 356
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 357
OTHERS

background of escalation of price in real estate resulting in A
liability of vendors towards unearned increase - Court failed
to advert to this aspect -- It is pertinent also to note that the
said liability for the vendors arose only on account of delayed
execution of decree - Further. vendors did not get an
opportunity to make their response to oral submission made B
by purchaser with regard to deposit of the balance
consideration, after passage of around 26 years from the date
of decree - As in the case of a decree for specific performance
where equity weighs with the court, so is the situation in
considering an application uls 28 for rescinding the contract c
- On such an application, the court may, by order, rescind the
contract "as the justice of the case may require" - In the.
peculiar facts and circumstances of case, the trial court should
have passed an equitable order while considering the
application for rescission - For doing complete justice to 0
parties, it is a case where purchaser should be directed to pay
the land value to vendors as per the circle rate notified for the
residential property in Category 'A' colonies prevailing during
November 16, 2011 to January 5, 2012 -- Purchaser shall
also be liable to meet the liability arising by way of unearned
increase to be paid to L&DO - Further, directions given in case E
the plaintiff does not deposit the amount to be paid to the
vendors - Equity - Constitution of India, 1950 - Art. 142.

Eight legal heirs of the deceased original owner of
the suit property, entered into an agreement to sell the F
said property on 29130.07 .1980 with the respondent for a
total sum of Rs.14,00,0001- out of which the latter paid
Rs.1,40,0001- as earnest money and possession of one
garage in the suit property was handed over to him. The
balance amount was to be paid on the execution and G
registration of the sale deed and delivery of possession.
Another legal heir i.e. the son of the deceased son of the
original owner, claiming himself as a minor, filed a suit
through his maternal grandfather (Suit No. 1428 of 1981)
and sought a declaratfon that the agreement for sale was H
358 SUPREME COURT REPORTS [2014] 2 S.C.R.

A illegal as he was not a party to it. The respondent filed a
suit (Suit No. 280/1982) on 10.01.1982 for specific
performance of the agreement against all the nine legal
heirs, before the High Court of Delhi. The suit was
decreed ex parte on 30.04.1984 and the appeal was
B dismissed by order dated 22.03.1985 as time barred.
Execution petition was filed on 07 .11.1990. One of the
judgment debtors filed application No. 110/1991 objecting
to the execution of the decree. Another application EA
NO. 111/1991 was filed by defendant no. 9 under 0. 21, r.
c 58 of the Code. The single Judge of the High Court, by
judgment dated 01.02.2002 dismissed both petitions
holding that the decree dated 30.04.1984 was executable.
Aggrieved, both the applicants filed appeals before the
Division Bench of the High Court. Meanwhile, on
24.04.1999, some of the appellants-defendants filed an
0
application u/s 28 of Specific Relief Act, 1963 for
rescission of the agreement, which was dismissed by the
single Judge, by order dated 23.02.2000. The Division
Bench of the High Court allowed the appeal filed by the
E then minor-defendant no. 9 holding that the execution
against him could not be pursued as there was no decree
against him. The other appeals were dismissed. The
review petitions were also dismissed.

In the instant appeals, the main contention for the
F appellants was that the decree dated 30.04.1984 was
inexecutable since it was vague and contingent; and that
the High Court failed to properly exercise its jurisdiction
while deciding the application u/s 28.

Disposing of the appeals, the Court
G
HELD: 1.1 Specific performance is an equitabl_e relief
granted by the courts in specific situations. Plainly
speaking, equity means fairness. That the vendors
actually intended to sell the property is clear from the fact
H that they had approached the L&DO who gave
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 359
OTHERS
permission on 12.11.1981, subject to payment of an A
amount of Rs.7,17,330/-. The amount was not deposited
by the vendors even during the time extended by the
L&DO. [para 2 and 13] [363-H; 364-A; 367-B, C]
FRY A Treatise on the Specific Performance of Contracts
by The Rt. Hon. Sir Edward Fry, Sixth Edition page 29 -
8
referred to.
Concise Oxford English Dictionary, 1Oth edn. - referred
to.
1.2 The vendors would not be justified in setting up C
any defence on executability of the decree facts of the
case as they were extremely reluctant to part with the
property. Their attempts thereafter have always been~ one
way or the other, to delay, if not deny, their obligation for
conveyance of the property~ [para 17] [376-H; 377-C-D] D
1.3 No doubt, the decree passed under 0. 8, r. 10 of
the Code is an ex· pa rte decree. But merely because it is
an ex parte decree, the same does not cease to have the
force of the decree. It is a valid decree for all purposes. E
The suit that has been decreed is the suit for specific
performance of the agreement. Once the decree for
specific performance attained finality, the defendants
cannot thereafter turn round and make weak and lame
contentions regarding the executability of the decree.
F
[para 20-21] [378-D-E, H; 379-A-B]
1.4 Even if there is any ambiguity, it is for the
executing court to construe the decree if necessary after
referring to the judgment. No doubt, the court cannot go
behind the decree or beyond the decree. But while G
executing a decree for specific performance, the court,
in case of any ambiguity, has necessarily to construe the
decree so as to give effect to the intention of the parties.
If sufficient guidance is not available even from the
H
360 SUPREME COURT REPORTS [2014] 2 S.C.R.

A judgment, the court is even free to refer to the pleadings
so as to construe the true import of the decree. (para 22)
[379-C-D]
Topanmal Chhotamal v. Kundomal Gangaram and
Others AIR 1960 SC 388 - referred to.
B
1.5 In the instant case, the decree is executable for
all intents and purposes but limited to the shares of the
vendors. The claim of defendant no. 9 would depend on
the outcome of the pending suit. [para 23) [379-F]
c 2.1 The purchaser was also not quite serious in
pursuing the cause. Though the decree is dated
30.04.1984, the execution petition was filed only after six
and a half years, on 07.11.1990. No doubt, it was within
the time prescribed by the law of limitation. But the efflux
D of time assumes importance and seriousness in the
background of the escalation of price in real estate. [para
24] (379-G; 380-A-B]
2.2 It is extremely important and crucially relevant to
E note that the court did not advert to one of the main
contentions regarding the escalation in land value by
which the vendors had to incur the liability of around four
times the balance consideration by way of payment of
unearned increase to the L&DO so as to complete their
obligation. It is pertinent also to note that the said
F unconscionable liability for the vendors arose only on
account of the delayed execution of the decree. (para 27]
(381-C-D]
2.3 It is significant to note that during the pendency
G of the appeals, the purchaser sought permission of the
court to deposit the balance consideration and, on
06.01.2010, the same was granted. He, accordingly,
deposited some amounts towards the liability of
unearned income also. It appears from the order dated
H 06.01.2010 in FAO (OS) No. 66 of 2002 that only oral
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 361
OTHERS
submissions were made for the deposit of balance A
consideration, by the respondent.It is significant to note
that the vendors did not get an opportunity to make their
response to the oral submission made by the purchaser
with regard to deposit of the balance consideration, after
passage of around 26 years from the date of decree. B
[para 28-30] [381-D-E; 382-C]

3.1 Having regard to the facts and circumstances, the
High Court has not made an attempt to balance equity.
As in the case of a decree for specific performance where _ C
equity weighs with the court, so is the situation in
considering an application u/s 28 of the Specific Relief
Act, 1963 for rescinding the contract. Under s. 28, a
vendor is free to apply to the court which made decree
to have the contract rescinded in case the purchaser has
not paid the purchase money or other sum which the D
court has ordered him to pay within the period allowed
by the decree or such other period as the court may
allow. On such an application, the court may, by order,
rescind the contract "as the justice of the case may
require". [para 31] [382-D.-F] E

3.2 A suit for specific performance does not come to
an end on passing of a decree and the court which
passed the decree retains control over the decree even
after the decree has been passed and the decree is F
sometimes described as the preliminary decree. The
discretionary power vested in court by s.28 of the Act is
intended to apply in such circumstances. [para 31 and 33]
[382-F-G; 383-D]

Pollock & Mui/a, The Indian Contract and Specific Relief G
Acts, 14th Edition, Page 2064 - referred to.

3.3 The decree for specific performance is a decree
in favour of both the plaintiff and the defendant in the
suit. Therefore, the decree can be executed either by the H
362 SUPREME COURT REPORTS [2014] 2 S.C.R.

A plaintiff or the defendant. The plaintiff or the defendant
is also free to approach the court for appropriate
clarification/directions in the event of any ambiguity or
supervening factors making the execution of the de.cree
inexecutable. [para 34-35] [383-F-G; 384-A]
B
Hungerford Investment Trust Limited (In Voluntary
Liquidation) v. Haridas Mundhra and Others 1972 (3) SCR
690 = (1972) 3 sec 684 - referred to.

3.4 In the instant case, converse is the position. If the
C purchaser is entitled to claim compensation for
deterioration, a fortiori it must be held that vendor should
also be entitled to compensation for accretion in value of
the subject matter of the agreement for specific
performance, in case the execution thereof is unduly
D delayed by the purchaser. Though the suit was decreed
in the year 1984 and execution petition filed in 1990, the
application for rescission was filed only in the year 1999.
[para 37and 41] [386-F-G; 388-F]

E 4.1 In the peculiar facts and circumstances of the_
case, the trial court should have passed an equitable
order while considering the application for rescission.
Having regard to the fact that the decree was passed in
1984, it would be unjust and unfair to relegate the parties
to the trial court at this distance of time. For doing
F complete justice to the parties, it is a case where the
purchaser should be directed to pay the land value to the
vendors as per the circle rate notified for the residential
prop.erty in Category 'A' colonies prevailing during
r\ovember 16, 2011 to January 5, 2012, at the rate of
G Rs.2,15,000/- per square meter. The purchaser shall also
be liable to meet the liability arising by way of unearned
increase to be paid to L&DO. He is free to withdraw the
amounts deposited by him in the court as per order
dated 06.01.2010. It is also ordered that in case the plaintiff
H does not deposit the amount to be paid to th<' vendors
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 363
OTHERS
within three months, the vendors shall deposit in court A
within two months thereafter the amount calculated as
per the circle rate referred to above by way of
compensation to be paid to the purchaser, and in which
event, they shall stand discharged of their obligations
under the contract and the decree. [para 45) [391-F-H; B
392-A-C]

Nirmala Anand v. Advent Corporation (P) Ltd. and Others
2002 (2) Suppl. SCR 706 = (2002) 8 SCC 146; Satya Jain
(Dead) Through Lrs. and Others v. Anis Ahmed Rushdie C
(Dead) Through Lrs. and Others 2013 (3) SCR 319 2013 =
(8) sec 131- referred to.
Case Law Reference:
AIR 1960 SC 388 referred to para 22
D
1972 (3) SCR 690 referred to para 32
2002 (2) Suppl. SCR 706 referred to para 42
2013 (3) SCR 319 referred to para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E
1873 of 2014.

From the Judgment and order dated 19.02.2010 of the
High Court of Delhi at New Delhi in EFA No. 4 of 2002.
WITH
F
Civil Appeal Nos. 1874, 1875 and 1876-1877 of 2014.
Geeta Luthra, Ashwini K. Matta, Pramod Dayal, Nikunj
Dayal, Paya! Dayal, Rohit Bhardwaj for the appellant.
P.S. Patwalia, Jayant Bhushan, Ashok K. Mahajan, Naresh
Kaushik, Lalita Kaushik, D.N. Goburdhan for the respondents. G
The Judgment of the Court was delivered by
KURIAN, J. 1. Leave granted.

2. Specific performance is an equitable relief granted by H
364 SUPREME COURT REPORTS [2014] 2 S.C.R.

A the courts in specific situations. Plainly speaking, equity means
fairness. According to Sir Edward Fry, the Court by a decree
of specific performance compels the defaulting party to do that
which in conscience he is bound to do, viz., actually and
specifically to perform his contract\ Conscience means a
B person's moral sense of right or wrong 2 • Thus, what is morally
wrong cannot be equitably right and necessarily what is morally
right will be just and proper. This prelude is the keyhole for us
to see through the factual and legal position of a three decade
long litigation on a specific performance.

C FACTS

3. One Nand Lal (deceased) was the perpetual lessee of
the Land and Development Officer (hereinafter referred to as
'L&DO') of property bearing Bungalow No. 9, Sunder Nagar,
D New Delhi measuring 0.179 acres equal to 865 sq. yards equal
to 721 sq. metres. His legal heirs are - (1) Banarsi Das; (2)
Dhanpat Rai; (3) Din Dayal; and (4) Gaindo Devi (widow of a
pre-deceased son Paras Ram) as his legal heirs. Each had a
1/4th share in the suit property. Din Dayal passed away leaving
E behind, as originally claimed - (5) his widow Sushila Devi; (6)
son Mohinder Kumar Gupta; (7) son Surinder Dayal; (8) son
Narinder Dayal; and (9) daughter Vijay Laksmi and each of
them had 1/24th share each in the suit property.

4. The eight legal heirs of Nand Lal entered into an
F agreement to sell the aforesaid immovable property on 29/
30.07 .1980 with Kuldeep Singh-( respondent) for a total sum of
Rs.14,00,000/- out of which Kuldeep Singh paid Rs.
1,40,000/- as earnest money and possession of one garage
in the suit property was handed over to him. The balance
G amount of Rs.12,60,000/-was to be paid by the respondent on
the execution and registration of the sale deed and delivery of
possession.
1. FRY A Treatise on the Specific Performance of Contracts by The Rt. Hon.
Sir Edward Fry, Sixth Edition. see Paragraph 62, at page: 29.
H 2. Concise Oxford English Dictionary, 10th Edition.
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 365
OTHERS [KURIAN, J.]
5. One Rajinder Kumar (Petitioner in SLP (C) No. 1921.5/ A
2011) claims that he is son of the late Din Dayal and at the time
of agreement to sell, he was a minor. He filed a suit through
his maternal grandfather (Suit No. 1428of1981) and sought a
declaration that the agreement for sale was illegal as he was
not a party to it. The suit was dismissed for default on B
22.05.1984. After more than 17 years, it was eventually
restored on 17.01.2002.

6. The respondent-Kuldeep Singh filed a suit (Suit No.
280/1982) on 10.01.1982 for specific performance of the C
agreement against the eight legal heirs, impleading also
Rajinder Kumar in the said suit as defendant no. 9, on the
original side of High Court of Delhi. The suit was decreed ex
parte on 30.04.1984. Appeal (RFA (OS) NO. 14/1985) against
the above Judgment dated 30.04.1984 was dismissed vide
order dated 22.03.1985 as time barred. An application under . D
Order IX Rule 13 of the Code of Civil Procedure, 1908 filed
thereafter for setting aside the decree was also dismissed on
15.07.1985. Thus, the decree has attained finality.

7. Kuldeep Singh filed Execution Petition (No. 164/1990) E
. on 07.11.1990. Mohinder Kumar Gupta (petitioner in SLP No.
28302 of 2010), one of the judgment debtors, filed Application
No. 110/1991 objecting to the execution of the decree. Another
· application EA NO. 11111991 was filed by minor Rajinder
Kumar under Order XXI Rule 58 of the Code of Civil Procedure, F
1908. Single Judge of the Delhi High Court vide Judgment
dated 01.02.2002 dismissed both petitions holding that the
decree dated 30.04.1984 is executable. Aggrieved, Mohinder
Kumar Gupta filed FAO (OS) No. 66/2002 against the aforesaid
judgment dated 01.02.2002 and Rajinder Kumar filed EFA (OS) G
No. 4/2002 before the Division Bench of the High Court.

8. Meanwhile, on 24.04.1999, some of the appellants filed
an application under Section 28 of Specific Relief Act, 1963 (IA
No. 4274/1999 in Suit No. 280/1982) for rescission of the
H
366 SUPREME COURT REPORTS [2014] 2 S.C.R.

A agreement. That was dismissed by the Single Judge, High
Court of Delhi vide Order dated 23.02.2000. FAO (OS) 110/
2000 before the Division Bench of the High Court arises
against the order dated 23.02.2000.

B 9. The Division Bench vide Judgment dated 19.02.201 O
dismissed FAO (OS) No. 110 of 2000, FAO (OS) NO. 66 of
2002 but allowed EFA (OS) No. 4/2002 filed by the then minor
Rajinder Kumar, holding that the execution against him cannot
be pursued as there is no decree against him.

C 10. The appellants then filed review petitions No. 210/2010
& 328/2010 against Judgment dated 19.02.2010 in FAO (OS)
No. 110/2000. The High Court dismissed the Review Petition
No. 210/2010 in FAO (OS) No. 110/2000 and Review Petition
No. 328 of 2010 in FAO (OS) No. 66 of 2002 on 25.04.2011.
D Thus, they are before this Court in these appeals.

11. It is the main contention of the appellants that the
decree dated 30.04.1984 is inexecutable since it is vague and
contingent. It is also contended that the High Court of Delhi
E failed to properly exercise its jurisdiction while deciding the
application for rescinding the contract. There are other ancillary
contentions as well.

12. Having heard the learned Senior Counsel appearing
for the parties, we feel that mainly two issues arise for
F consideration:

A. Is the decree executable?

B. Was the application for rescission properly
decided?
G
13. The agreement for sale was executed by the
appellants (Defendants 1 to 8) on 30.07.1980. They received
part of the consideration, viz., Rs. 1,40,000/- as earnest money.
Possession of part of the agreement schedule property, a
H garage was parted with. The balance Rs.12,60,000/- was to
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 367
OTHERS [KURIAN, J.]
.be paid at the time of execution of the sale deed. That deed A
could have been executed only after obtaining permission from
the L&DO, Delhi. As per the agreement, it was for the vendors
to obtain that permission from the L&DO on paying the
unearned increase. There were certain other obligations as well.
That the vendors actually intended to sell the property_ is clear B
from the fact that they had approached the L&DO and the L&DO
gave permission on 12.11.1981, subject to payment of an
amount of Rs. 7, 17,330/-. The unearned increase came to be
such a large amount only because of the delay caused by the C
purchaser in getting his power of attorney, it is alleged. The
amount was not deposited by the vendors even during the time
extended by the L&DO.

14. It was in the meanwhile, Rajinder Kumar (petitioner in
SLP (Civil) No. 19215 of 2011) claiming to be the minor son D
of Din Dayal, filed a suit on 15.12.1981 attacking the
agreement, claiming his 1/24th share and for ot~er reliefs.
Rajinder Kumar aged 7 years at the time of the agreement, filed
the suit through his maternal grandfather even though his mother E
and natural guardian who is signatory to the agreement to sale,
was very much alive and available. Smelling a rat, the purchaser-
Kuldeep Singh on 10.01.1982 filed OS No. 1428 of 1981 on
the original side of the High Court for specific performance. At
that time, the suit filed by Rajinder Kumar was pending for F
plaintiffs evidence. Rajinder Kumar was arrayed as Defendant
No. 9 in the suit for specific performance. For some reason or
other, the defendants did not file written statement despite
several chances. Hence, the suit was decreed as prayed for
on 30.04.1984. G

15. For the purposes of easy reference, we may extract
the decree as such:

H
368 SUPREME· COURT REPORTS [2014] 2 S.C.R.

A "(DECREE IN A SUIT FOR SPECIFIC PERFORMANCE
AND AWARD OF DAMAGES)

IN THE HIGH COURT OF DELHI AT NEW DELHI
(Ordinary Original Civil Jurisdiction)
B Suit No. 280 of 1982

S. Kuldip Singh son of S. Hara Singh
Resident of 20, Rajindra Park, New
Delhi, Through his General Attorney
c S. Harkirat Singh ... Plaintiff

Versus

1. Sh. Banarsi Dass,
D son of Shri Nand Lal,
R/o M-49, Greater Kailash-1,
New Delhi.
2. Sh. Dhanpat Rai,
son of Shri Nand Lal
E resident of E-4, N.D.S.E., Part-I,
New Delhi.
3. Shrimati Gaindo Devi,
widow of Shri Paras Ram,
F son of Shri Nand Lal,
Resident of N-21, N.D.S.E., Part-I,
New Delhi.
4. Smt. Sushila Devi,
widow of late Shri Din Dayal,
G resident of C-3, House Cooperative Society,
South Extension Part I, New Delhi.
5. Shri Mohinder Kumar Gupta,
son of Shri Din Dayal,
H
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 369
OTHERS [KURIAN, J.]
resident of C-3, House Cooperative Society, A
South Extension Part I, New Delhi.
6. Shri Surinder Dayal,
son of Shri Din Dayal,
resident of C-3, House Cooperative Society,
B
South Extension Part I, New Delhi.
7. Shri Narinder Dayal
son of Shri Din Dayal,
resident of C-3, House Cooperative Society,
South Extension Part I, New Delhi. c
8. Miss. Vijay Lakshmi
daughter of Shri Din Dayal,
resident of C-3, House Cooperative Society,
South Extension Part I, New Delhi.
D
9. Shri Rajinder Kumar (Minor),
son of Late Shri Din Dayal,
resident of C-3, House Cooperative Society,
South Extension Part I, New Delhi-49
through his legal guardian and Maternal Grand father Shri E
Nand Kishore Mittal,

son of Shri Sagar Mal Mittal,
746, Gali Bhagwan, Katia Mubarakpur,
New Delhi. ... Defendants F

Value of the suit for )
purposes of jurisdiction ) Rs. 15,40,000/-
Court fee paid .... . Rs. 17,374.40
Suit filed on .... . 11.2.1982 G

CLAIM: In the event of Defendant No.9 being held to have
no right, title or interest in the property in suit, it is prayed:-

H
370 SUPREME COURT REPORTS [2014] 2 S.C.R.

A 1(A) A decree for specific performance of the agreement
to sale dated 29/30.7.80 in respect of entire
property No.9, Sunder Nagar, New Delhi be granted
in favour of the plaintiff against the Defendants 1 to
8 against the total agreed consideration of Rupees
B Fourteen Lakhs.

(B) The Defendants 1 to 8 be ordered to deliver the
actual, physical, vacant possession of the said
entire property Bungalow No.9, Sunder Nagar, New
C Delhi except one garage, the possession whereof
has already been delivered to the plaintiff by
Defendants 1 to 8 in terms of the agreement to sale
referred to above.

D (C) That Defendants 1 to 8 be ordered to deposit
Rs. 7, 17,330/- as the unearned increase in the value
of the plot No.9, Sunder Nagar, New Delhi, and
failing such payment, the plaintiff be allowed to
deposit the said amount in the account of the
-E Defendants1 to 8 out of the unpaid balance of
Rs.12,60,000/-.

(D) That Defendants 1 to 8 be ordered to pay
Rs.1,40,000/- as and by way of liquidated damages
F for the breach of contract and the said amount of
Rs.1,40,000/- be allowed to be appropriated out of
the unpaid balance consideration of Rs.
12,60,000/- due and payable to the said
Defendants 1 to 8.
G
(E) That it may also be ordered that all public dues
payable by the Defendants 1 to 8 in respect [sic]
of the property in suit be paid by the plaintiff in the
account of the said Defendants and the amount so
H
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 371
OTHERS [KURIAN, J.]
paid be allowed to be appropriated out of the last A
mentioned unpaid balance money payable to the
Defendants 1 to 8 for conveying the said property
to the plaintiff.

(F) That the Defendants 1 to 8 be required to apply to B
their respective Income-Tax Officers and to obtain
the respective Clearance Certificates for the sale
of the property in favour of the plaintiff. It may further
be ordered that if Defendants 1 to 8 or any of them
neglects to apply to their Income-Tax Officers for
obtaining the necessary Clearance Certificates for C
the sale of the said property, then an officer of this
Hon'ble Court do make such application on behalf
of the concerned Defendants 1 to 8 and all costs
of the said applications as also any amounts
demanded by the Taxation authorities for issue of D
the requisite Clearance Certificates be ordered to
be deducted out of the said amount of
Rs.12,60,000/- and incase of a short fall a decree
for the additional amount involved by passed in
favour of the plaintiff against the Defendants 1 to 8 E
jointly and severally.

(G) That the Defendants 4 to 8 be required to produce
the Estate Duty Clearance Certificate in respect of
the conveyance of one quarter undivided right, title F
and interest in the said property previously
belonging to Shri Din Dayal, the deceased
husband of Defendant No.4 and father of
Defendants 5 to 8. It may also be ordered that in
case Defendants 4 to 8 neglect to obtain the G
Requisite Estate Duty Clearance Certificate, then
an Officer of this Hon'ble Court do apply for the
grant of the said Estate Duty Clearance Certificates
on behalf of Defendants 4 to 8 and all costs of such
applications as also the payment of any dues
H
372 SUPREME COURT REPORTS [2014] 2 S.C.R.

A demanded by the Estate Duty Officer be allowed
to be deducted out of the balance consideration
money, if any, in the hands of the plaintiff and in the
event of the plaintiff being required to pay any
amount to the Taxation authorities, then a decree
B for a like amount be passed in favour of the plaintiff
and the Defendants 1 to 8.

(H) That Defendants 1 to 8 be also required to pay all
the public dues, lease money, and misuse charges,
if any pertaining to Bungalow No.9, Sunder Nagar,
c New Delhi, and if they fail to do so, then the plaintiff
be required to pay all such dues, and a decree for
a like amount be passed in favour of the plaintiff
against Defendants 1 to 8 jointly and severally.

D (I) That the Defendants 1 to 8 be ordered to hand over
all the antecedent original title deeds of the property
No.9, Sunder Nagar, New Delhi to the plaintiff.

(J) That pending the completion of all the jobs to be
undertaken and completed by the Defendants 1 to
E
8 as detailed above, the plaintiff be allowed to
deposit final balance amount if any, payable by the
said Defendants 1 to 8 in this Hon'ble Court and
the said balance may be ordered to be released
to the Defendants 1 to 8 only after they have fully
F complied with their part of the contract, as decreed
by this Hon'ble Court.

II. That in the event of this Hon'ble court deciding that
for any reason whatsoever a decree for specific
G performance is not to be allowed to the plaintiff (which is
not expected ):-

Then in the alternative:
A decree for the refund of Rs.1,40,000/- alongwith interest
H
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 373
OTHERS [KURIAN, J.]
thereon at Rs.1.25 paise percent per month or part of a A
month from the date of payment viz. 30.7.80 to the date of
receipt by the plaintiff be passed in favour of the plaintiff
against the Defendants 1 to 8 jointly and severally and the
said Defendants may further be ordered to pay
Rs.11,00,000/- for breach of contract to the plaintiff as and B
by way of damages, and the same be decreed
accordingly.

111.(A)That in the event that this Hon'ble Court holds that
Defendant No.9 is the owner of an undivided 1/24th C
right, title and interest in the said property, then a
decree for specific performance of the agreement
to sale dated 29/30.7.80 in respect of an undivided
23/24th right, title and interest in the said property
No.9, Sunder Nagar, New Delhi belonging to
Defendants 1 to 8 be granted in favour of the D
plaintiff against the Defendants against the
payment of the agreed total consideration of
Rs.14,00,000/-.

(B) That the Defendants 1 to 8 be ordered to deliver E
the actual, physical, joint possession of the said
entire property to the plaintiff and Defendant No.9
jointly except one garage, the possession whereof
has already been delivered to the plaintiff by
Defendants 1 to 8 in terms of the agreement to sale F
referred to above.

(C) That Defendants 1 to 8 be ordered to pay
Rs. 7, 17,330/- to the Land and Development Officer
as the unearned increase in the value of the plot
No.9, Sunder ·Nagar, New Delhi, as also the other G
dues demanded by the said Officer, and in case the
Defendants neglect to pay the said amounts then
the plaintiff be permitted to pay the above amounts
in the account of Defendants 1 to 8 and to deduct
the same out of the unpaid balance of H
374 SUPREME COURT REPORTS [2014] 2 S.C.R.

A Rs.12,60,000/-.

(D) That Defendants 1 to 8 be ordered to pay
Rs.1,40,000/- as and by way of liquidated damages
for the breach of contract and the said amount of
Rs.1,40,000/- be allowed to be appropriated out of
B
the unpaid balance consideration of Rs.12,60,000/
- due and payable to the said Defendants 1 to 8.

(E) That it may also be ordered that all public dues
payable by the Defendants 1 to 8 in respect of the
c property in suit be paid by the plaintiff in the account
of the said Defendants 1 to 8 and the amount so
paid be allowed to be appropriated out of the last
mentioned unpaid balance money payable to the
Defendants 1 to 8 for conveying the said property
D to the plaintiff.

(F) that the Defendants 1 to 8 be required to apply to
their respective Income Tax Officers and to obtain
Clearance Certificate for the sale of the property in
favour of the plaintiff. It may further be ordered that
E
if Defendants 1 to 8 or any of them neglect to apply
to their Income Tax Officers for obtaining the
necessary Clear.ance Certificate for sale of the said
property, then an officer of this Hon'ble Court do
make such applications on behalf of the concerned
F Defendants 1 to 8 and all costs for the making of
the said applications as also any amounts
demanded by the Taxation authorities for issue of
the requisite Clearance Certificates be ordered to
be deducted out of the said amount of
G Rs.12,60,000/- and in case of a short fall a decree
for the additional amount involved be passed in
favour of the plaintiff against the Defendants 1 to 8
jointly and severally.

H (G) That the Defendants 4 to 8 be required to produce
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 375
OTHERS [KURIAN, J.]
the Estate Duty Clearance Certificate in respect of A
the Conveyance of one-quarter undivided right, title
and interest in the said property previously
belonging to Shri Din Dayal, the deceased
husband of Defendant No.4, and father of
Defendants 5 to 8. It may also be ordered that in B
case Defendants 4 to 8 or any of them, neglect to
obtain the requisite Estate Duty Clearance
Certificate, then an officer of this Hon'ble Court do
apply for the grant of the said Estate Duty Clearance
Certificate on behalf of the Defendants 4 to 8 and c
all costs of such applications as also the payment
of any dues demanded by the Estate Duty Officer
be allowed to be deducted out of the balance
consideration money, if any, in the hands of the
plaintiff and in the event of there being a short fall,
D
the plaintiff be required to pay the requisite amount
to the Taxation authorities and a decree for a like
amount be passed in favour of the plaintiff against
the Defendants 1 to 8, jointly and severally.

(H) That the Defendants 1 to 8 be ordered to hand over E
all the original title deeds of the property No.9,
Sunder Nagar, New Delhi to the plaintiff.

(I) That pending the completion of all the jobs to be
undertaken and completed by Defendants 1 to 8, F
the plaintiff be allowed to deposit the final balance
amount, if any, payable to the Defendants in this
Hon'ble court and the said balance may be ordered
to be released to the Defendants 1 to 8 only after
they have fully complied with their part of the
G
contract as decreed by this Hon'ble Court.

(J) The costs of the suit may also be awarded, to the
plaintiff against the Defendants 1 to 8. "

30th day of April 1984 H
376 SUPREME COURT REPORTS [2014] 2 S.C.R.

A CORAM:

Hon'ble Mr. Justice Yogeshwar Dayal

For the Plaintiff : Mr. S. R. Bhagat, Advocate.

B For the Defendants : Mr. G.L. Rawal, Advocate
for Deft. No.9.

The suit coming on this day for final disposal before
this Court in the presence of counsel for the parties as
aforesaid; it is ordered that a decree as prayed by the
c plaintiff and the same is hereby passed in favour of the
plaintiff and against the Defendants 1 to 8 only.

It is lastly ordered that Defendants 1 to 8 herein do
pay to the plaintiff herein the cost of the suit incurred by
D the latter as Rs.18,028. 75p (Rs. Eighteen Thousand
Twenty Eight and Paise Seventy Five only) as taxed by the
Taxing Officer of this court and noted in the margin of this
decree.

E Given under my hand and the seal of the court this
the 30th day of April, 1984.

Sd/
Dy. Registrar"

F 16. Appeal was dismissed as time barred. A few months
thereafter an Application under Order IX Rule 13 of Code of
Civil Procedure, 1908 was filed for setting aside the ex parte
decree. That too was dismissed. It appears the vendors lost
all hope and left things as they were at that stage. It is seen
G from the pleadings that attempts were also made for an out of
court settlement, but in vain.

17. We do not think that the vendors would be justified in
setting up any defence on executability of the decree both on
law and facts of the case. At the risk of redundancy, on referring
H
RAJfNDER KUMAR v. SHRI KULDEEP SINGH & 377
OTHERS [KURIAN, J.]
to the facts, it can be seen that the vendors had in fact wanted A
to fructify the agreement for sale. Having received the advance
amount of Rs.1,40,000/-, they had parted possession of a part
of the property, viz., garage. They had jointly made an
application to the L&DO in terms of the agreement, for
permission to transfer the property. The L&DO did grant the B
permission but on condition of deposit of an amount of
Rs.7, 17,330/- towards the unearned increase, which is more
than 50% of the sale consideration. The value of the property
had shot up by that time. It is pertinent to note that as per the
original agreement, the unearned increase was to be paid by C
the vendors. On account of the escalation, it appears, their
hearts started burning and they were extremely reluctant to part
with the property. Their attempts thereafter have always been,
one way or the other, to delay, if not deny, their obligation for
conveyance of the property. ·
D
18. The main contention of the vendors is that that there
is no decree in terms· of Section 2 (2) of the Code of Civil
Procedure, 1908 because there is no formal expression of
adjudication and the court has not conclusively determined the
rights of the parties. But it has to be seen that the vendors did E-
not contest the suit. They had not even filed a written statement.
In that context only, the suit was decreed as prayed for. In the
Judgment dated 30.04.1984, the Court has referred to the
averments in the plaint. The opening and concluding sentences
of the Judgment read as follows: F

"Plaintiff, S. Kuldeep Singh has filed the present suit
against Shri Banarsi Dass and 8 others for specific
performance of an agreement to sell dated 29/30th July
1980. The agreement relates to plot No.9, Block No.171
in the layout plan of the New Capital of Delhi, now known G
as Bungalow No.9, Sunder Nagar, New Delhi. ...

xxx xxxxxx xxx xxx
However, since the Defendants have failed to file H
378 SUPREME COURT REPORTS [2014] 2 S.C.R.

A _written statement, as directed in my order dated 15th
February, 1984, I proceed to pronounce the judgment
under the provisions of order 8 rule 10 of the Code of Civil
Procedure and decree the suit of the plaintiff as prayed
for with costs against Defendants 1 to 8 only as there is
8 no relief prayed against Defendant No.9."

19. Having referred to the entire contentions of the plaintiff,
the Judgment was pronounced under Order VI II Rule 10 of the
Code of Civil Procedure, 1908 since there was no written
statement. The Court has taken the position that the defendants
C had failed to file written statement. Therefore, the Court, in the
facts of the case, opted to pronounce the Judgment, under
Order VIII Rule 10 of the Code of Civil Procedure, 1908 and
draw the decree accordingly.

o 20. No doubt, the decree passed under Order VIII Rule 10
of the Code of Civil Procedure, 1908 is an ex parte decree.
But merely because it is an ex parte decree, the same does
not cease to have the force of the decree. It is a valid decree
for all purposes.
E 21. It is also worthwhile to note that the Judgment was
pronounced under the pre-amended Rule 10 under Order VIII
of the Code of Civil Procedure, 1908 and there was more
discretion with the Court regarding pronouncement of the
Judgment in the absence of written statement. Still further, it is
F to be noted that Rule 10 speaks about the requirement of
written statement indicating thereby that there are cases where
written statement was required to be filed. Written statement
is the defense of the defendants. They chose not to file it.
Despite t~e absence of such defense, the court still applied its
G mind and after referring to the pleadings, pronounced a
Judgment allowing the suit for specific performance. Though the
Judgment says that the suit is decreed as prayed for and though
all the prayers have been incorporated in the decree, it is to
be noted that the suit is one for specific performance of the
H agreement. The suit that has been decreed is the suit for
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 379
OTHERS [KURIAN, J.]
specific performance of the agreement. Once the decree for A
specific performance attained finality, they cannot thereafter turn
round and make weak and lame contentions regarding the
executability of the decree.

22. If the suit for specific performance is not decreed as 8
prayed for, then alone the question of any reference to the
alternative relief would arise. Therefore, there is no question of
any ambiguity. As held by this Court in Topanmal Chhotamal
v. Kundomal Gangaram and Others3 and consistently followed
thereafter, even if there is any ambiguity, it is for the executing C
court to construe the decree if necessary after referring to the
Judgment. If sufficient guidance is not available even from the
Judgment, the Court is even free to refer to the pleadings so
as to construe the true import of the decree. No doubt, the court
cannot go behind the decree or beyond the decree. But while
executing a decree for specific performance, the Court, in case D
of any ambiguity, has necessarily to construe the decree so as
to give effect to the intention of the parties. Thus, there is no
question of any alternate relief regarding the damages etc. in
the present case since the suit for the specific performance for
the conveyance of the property has been decreed. E

23. There is no case that the court does not have
jurisdiction to pass the decree. Nor is there any case that the
decree is a nullity on account of any jurisdictional error. Hence,
the decree is executable for all intents and purposes but limited F
to the shares of the vendors. The claim of Rajinder Kumar would
depend on the outcome of the pending suit.

24. Now we shall deal with the issue regarding the
approach of the High Court in dealing with the application for
rescission. Apparently, the purchaser-Kuldeep Singh was also G

3. AIR 1960 Supreme Court 388 - Paragraph 4- "At the worst the decree
can be said to be ambiguous. In such a case it is the duty of the
executing Court to construe the decree. For the purpose of interpreting
a decree, when its terms are ambiguous, the Court would certainly be
entitled to look into the pleadings and the Judgment.... " H
380 SUPREME COURT REPORTS [2014] 2 S.C.R.

A not quite serious in pursuing the cause. Though the decree is
dated 30.04.1984, the execution petition was filed only after six
and a half years, on 07 .11.1990. No doubt, it was within the
time prescribed by the law of limitation. But the efflux of time
assumes importance and seriousness in the background of the
B escalation of price in real estate.
25. It is very strange that no serious steps have been taken
by the executing court for almost a decade. While so, only on
24.04.1999, respondents 3 to 7 and 13 filed Application - IA
No. 4274 of 1999 in the suit for rescinding the agreement for
C sale. The main ground taken in the Application for rescission
of the agreement was that the plaintiff/purchaser failed to
deposit the balance consideration of Rs.12,60,000/~. It was also
contended that between the date of decree in 1984 and the
date of filing the Application for rescission, even the notified
D rates in land value shot up from Rs.2,000/- per square yard to
Rs.13,860/- per square meter and the unearned increase would
be around Rs.50,00,000/- and, thus, it would be highly unjust,
unconscionable and inequitable to compel the vendors to make
the payment of the unearned increase. It was also averred that
. E the vendors were prepared to pay a reasonable compensation
to the purchaser. The purchaser-Kuldeep Singh in response to
the Application for rescission, stated that the court had not fixed
any time for deposit of the balance amount, the balance amount
was payable only on the execution and registration of the
F conveyance deed. He also contended that execution was
possible only on permission from the L&DO on payment of
unearned increase by the vendors and for which the vendors
are at fault in not having taken any serious steps in completing
their obligations under the decree; and that the purchaser had
G always been ready and willing to perform his part of the
agreement.
26. By Order dated 23.02.2000, the learned Single Judge
dismissed the applications holding that the purchaser was not
at fault either in having done something or in not having done
H something which stood in the way of the execution of the
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 381
OTHERS [KURIAN, J:]
decree. On the contrary, it was the vendors who did not perform A
their duties in the sequence of events prior to and leading to
the registration of the sale deed. In short, it was held that the
vendors having not performed their obligations under the
agreement, they could not approach the court for rescinding the
agreement on the ground that the purchaser had not deposited B
the balance amount.

27. It is extremely important and crucially relevant to note
that the court did not advert to one of the main contentions
regarding the escalation in land value by which the vendors had C
to incur the liability of around four times· the balance
consideration by way of payment of unearned increase to the
L&DO so as to complete their obligation. It is pertinent also to
note that the said unconscionable liability for the vendors arose
only on account of the delay~d execution of the decree.
D
28. It is significant to note that during the pendency of the
appeals, the purchaser sought permission of the court to
deposit the balance consideration and, on 06.01.2010, the
same was granted. He, accordingly, deposited some amount\S
towards the liability of unearned income also. D
29. It appears from the Order dated 06.01.2010 in FAQ
(OS) No. 66 of 2002 that only oral submissions were made for
the deposit of b"alance consideration, by the respondent-
Kuldeep Singh. For the purpose of ready reference, we may
E
extract the Order as such:

"Learned counsel for Respondent No.1 (Kuldeep Singh)
says that the balance consideration in terms of the contract
entered into between the parties will be deposited by his
client on or before 11th January, 2010. Learned counsel F
for Respondent No.1 also says that the unearned increase
that is required to be calculated by the L and DO has not
yet been so calculated but his client is prepared to deposit
an amount of Rs. 10 lakhs on account in this regard. This
amount will be deposited with the Registrar General of this G
382 SUPREME COURT REPORTS [2014] 2 S.C.R.

A Court on or before 11th January, 2010.
"
List for directions on 12th January, 2010.

Arguments have been heard and concluded and judgment
is reserved. The matter is listed on 12th January, 2010 only
B for compliance with regard to the deposit."

30. We have referred to above development to keep in
mind one significant and important aspect of the matter that the
vendors did not get an opportunity to make their response to
c the oral submission made by the purchaser with regard to
deposit of the balance consideration, after passage of around
26 years after the decree.

31. Having regard tQ the facts and circumstances which
we have discussed above, we are afraid the High Court has
D not made an attempt to balance equity. As in the case of a
decree for specific performance where equity weighs with the
court so is the situation in considering an application under
Section 28 of the Specific Relief Act, 1963 for rescinding the
contract. Under Section 28 of the Specific Relief Act, 1963, a
E vendor is free to apply to the Court which made decree to have
the contract rescinded in case the purchaser has not paid the
purchase money or other sum which the Court has ordered him
to pay within the period allowed by the decree or such other
p~riod as the court may allow. On such an application, the Court
F m~y, by order, rescind the contract "as the justice of the case
may require". It is now settled law that a suit for specific
performance does not come to an end on passing of a decree
and the Court which passed the decree retains control over the
decree even after the decree has been passed and the decree
G is sometimes described as the preliminary decree.

32. In Hungerford Investment Trust Limited (In Voluntary
Liquidation) v. Haridas Mundhra and Others4, it has been held
that:
H 4. (1972) 3 sec 684.
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 383
OTHERS [KURIAN, J.]
"22. It is settled by a lontj course cif decisions of the Indian A
High Courts that the Court which passes a decree for
specific performance retains control over the decree even
after the decree has been passed. In Mahommadafli
... Sahib v.. Abdul Khadir Saheb (1930) MLJ Vol. 59, p.351
. it was held that the Court which' passes a.aecree for . B
· specific performance has the power to extend the time
·~'fixed in the decree for the reason that Court retains control
·· . over the decree, that the contract between the parties is
not extinguished by the passing of a decree for specific
. ' performance and that the contract subsists noilNithstanding c
-· ·.the passing of the decree .... " · · ·
• , ,, .• ' - _l, -

· (Emphasis supplied)
., ..
. 33. The discretionary power vested in court by Section 28
of, the Specific Relief Act, 1963 is intended to apply in such D
circumstances: ·

' ''The ·effect ()f this provision is to empower the court ~hich
passed the decree for specific performance to rescind the
contract and set aside the decree which it has passed ·E
earlie( if th~ successful plaintiff failed to comply with the
terms of the decree by making payment of the purchase
money or other sums which the court ordered him to pay.
511 .
'" ,~ l '

(Emphasis supplied) F

·• . 34. The decree for specific performance is a decree in
II ,
I .
favour of both the plaintiff and the defendant in the suit, as held i
by this cciurt in Hungerford Investment Trust Limited case II
I, I
1

. (supra). Hence, the decree can be executed.either by the G
plaintiff or the· defendant. · · · ! ,
. • , --- ,: ' I •

35; The
'
•

plaintiff or the
. ,-.l . ",',!
.Jf , '

defendant is also free to approach
•
II I;
5. Pollock & Mulla,i The l~dian Contract and Specific Relief Acts, 14th !
H i
Edition, Page 2064.
I,
I
I 1.J
384 SUPREME COURT REPORTS [2014] 2 S.C.R.

A the court for appropriate clarification/directions in the event of
any ambiguity or supervening factors making the execution of
the decree inexecutable. To quote Fry (ibid) (please see
Pages-546-548):

"1170. It may and not unfrequently does happen that after
B
judgment has been given for the specific performance of
a contract some further relief becomes necessary, in
consequence of one or other of the parties making default
in the performance of something which ought under the
judgment to be performed by him or on his part ; as, for
c instance, where a vendor refuses or in unable to execute
a proper conveyance of the property, or a purchaser to pay
the purchase-money. The character of the consequential
relief appropriate to any particular case will of course vary
according to the nature of the subject-matter of the contract
D and the position which the applicant occupies in the
transaction; but in every case the application must, under
the present practice, be made only to the Court by which
the judgment was pronounced, and the multiplicity of legal
proceedings which sometimes occurred before the fusion
E of the jurisdictions of the Courts of Chancery and Common
Law is now practically impossible.

1171. There are two kinds of relief after judgment for
specific performance of which either party to the contract
may. in a proper case. avail himself.
F
1172.(i.) He may obtain (on motion in the action) an order
appointing a definite time and place for completion of the
contract by payment of the unpaid purchase-money and
delivery over of the executed conveyance and title-deeds.
G or a period within which the judgment is to be obeyed. and,
if the other party fails to obey the order, may thereupon at
once issue a writ of sequestration against the defaulting
party's estate and effects. Furthermore, if the default was
in the payment of money, the plaintiff may issue his fi.fa.
H or elegit: if in some act other than or besides the payment
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 385
OTHERS [KURIAN, J.]
of money, he may move, on notice to the defaulter, for a A
writ of attachment against him. Indeed, in a case where a
person who had agreed to accept a lease would not,
though ordered by the Court to do so, execute the lease,
it was held that an attachment was the only means to which
the Court could resort for enforcing such execution. B

1173. (ii.) He may apply to the Court (by motion in the
action) for an order rescinding the contract. On an
application of this kind. if it appears that the party moved
against has positively refused to complete the contract. its C
immediate rescission may be ordered : otherwise. the
order will be for rescission in default of completion within
a limited time. And where a deposit has been paid, and
there is no condition of the contract determining, expressly
or impliedly, what is to be done with it in the event of such
a rescission, the Court will decline to order th~posit to D
be returned to a defaulting purchaser. An o~<:ler for the
defendant to pay the plaintiffs costs, and a stay of further
proceedings in the action, except such proceedings as may
be necessary for recovery of the costs of the action and
the costs of the motion, may also be obtained on this E
application. A vendor plaintiff is not debarred fro.m moving
for an order for rescission by the fact that the juagment at
the trial contained a declaration of his vendor's lien, and
gave him liberty to apply as to enforcing it.
F
In some cases the order has expressly excepted
from the stay of proceedings any application to the Court
to award and assess damages sustained by the plaintiffs
by reason or in consequence of the breach of contract. In
Henty v. Schroder (12 Ch.D.666), however, Jessel M.R. G
declined to make this exception, consider that the plaintiffs
could not at the same time obtain an order to have the
contract rescinded and claim damages for the breach of
it. If this be so, it would seem that in many cases the Court
must fail to give the plaintiff the full measure of relief
H
386 SUPREME COURT REPORTS [2014] 2 S.C.R.

A requisite for replacing him in the position in which he stood
before the contract,-the repayment, for instance, of
expenses incurred by him in showing his title."

(Emphasis supplied)
B 36. Dealing with a situation where deterioration takes place
by the conduct, according to Fry (ibid) (please see Page 654):

"1431. If, after the contract and before the purchaser takes.
or ought to take, possession. any deterioration take place
c by the conduct of the vendor or his tenants, he will be
accountable for it to the purchaser. "He is not entitled to
treat the estate as his own. If he willfully damages or injures
it. he is liable to the purchaser ; and more than that, he is
liable if he does not take reasonable care of it." And this
D liability may be enforced by action, even after a
conveyance made in ignorance of the facts.

1432. Where a purchaser had paid his money into Court
under an order, and was held entitled to compensation for
deterioration, which had taken place while the vendors
E retained possession, he was allowed the amount out of his
purchase-money, with interest at 4 per cent., and the costs
of an issue to ascertain the amount of damage."

(Emphasis supplied)
F
37. In the instant case, converse is the position. If the
purchaser is entitled to claim compensation for deterioration,
a fortiori it must be held that vendor should also be entitled to
compensation for accretion in value of the subject matter of the
agreement for specific performance, in case the execution
G thereof is unduly delayed by the purchaser. Section 28 of the
Specific Relief Act provides that the court has to pass an order
as the justice of the case may require. Justice is not an abstract
proposition. It is a concrete reality. The parties on approaching
the court must get the feeling that justice has been done in the
H facts and circumstances of the case, particularly in specific
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 387
OTHERS [KURIAN, J.]
performance related cases, in terms of equity, equality and A
fairness.

38. In the facts and circumstances of the case, it is very
difficult to balance the equity and balance the rights of both the
parties in the background of their conduct. No doubt there was
B
no time fixed in the agreement for payment of the purchase
money. That was also contingent on a series of obligations to
be performed by the vendor and the duty of the purchaser to
pay the purchase money was only thereafter. But if we closely
analyze the pleadings and submissions, we can see that the
purchaser had made an attempt, though belatedly, for getting C
. the obligations performed even at his expense.

39. The plaintiff purchaser very well knew that the vendors
have been delaying the performance of their obligation under
the agreement and things were getting complicated. It was' D
open to the plaintiff, in such circumstances, to file an
application, rather he ought to have filed an application in court
on the original side for appropriate direction with regard to the
payment of purchase money and for other procedural
formalities. Despite the application filed by the vendor for E
rescission of the agreement in 1999, for the first time, an oral
prayer was made by the purchaser before the court for the ·
deposit of balance of purchase money only in the year 2010.
That too was merely an oral submission. Consequently, the
defendants never had an opportunity to respond to the same F
or contest the proposition. Therefore, it is abundantly clear that
in the peculiar factual background of this case, the plaintiff
purchaser was also at fault in not taking prompt steps.

40. In this context, one more reference to Hungerford
Investment Trust Limited (supra) would be relevant: G

"25. It was contended on behalf of Mundhra that he was
always ready and willing to pay the purchase money, but
since the decree did not specify any time for payment of
the money, there was no default on his part. In other words, H
388 SUPREME COURT REPORTS [2014] 2 S.C:R.

A the contention was that since the decree did not specify a
time within which the purchase money should be paid and,
since an application for fixing the time was made by the
appellant and dismissed by the Court, Mundhra cannot be
said to have been in default in not paying the purchase
B money so that the Appellant might apply for rescission of
the decree. If a contract does not specify the time for
performance, the Law will imply that the parties intended
that the obligation under the contract should be performed
within a reasonable time. Section 46 of the Contract Act
c provides that where, by a contract, a promiser is to perform
his promise without application by the promise, and no
time for performance is specified, the engagement must
be performed within a reasonable time and the question
"what is reasonable time" is, in each particular case, a
question of fact ... "
D
(Emphasis supplied)

41. Analyzing the conduct of the vendors-defendants also,
one can see that they are equally at fault. In the contract, no time
E was fixed for payment and, therefore, the purchaser was obliged
to pay the purchase money within a reasonable time. Owing to
the !aches or lapses on the part of the parties in case there is
any insurmountable difficulty, hardship or, on account of
subsequent development, any inequitable situation had arisen,
F either party was free to approach the court for appropriate
direction. Though the suit was decreed in the year 1984 and
execution petition filed in 1990, the application for rescission
was filed only in the year 1999.

42. In Nirmala Anand v. Advent Corporation (P) Ltd. and
G Others6, it has been held by this Court:

"6. 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
H 6. c2000) a sec 146.
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 389
OTHERS [KURIAN, J.]

performance simply for the reason that it is legal to do so. A
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 8
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 c
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 0
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 partv. It is
also to be borne in mind whether a party is trving to take
undue advantage over the other as also the hardship that E
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."
(Emphasis supplied) F
In the above case, this Court balanced the equity by
directing payment of Rs.6,25,000/- in the place of Rs.25,000/-

43. In Satya Jain (Dead) Through Lrs. and Others v. Anis G
Ahmed Rushdie (Dead) Through Lrs. and Others7, it has been
held that:

"38. The ultimate question that has now to be considered
1. (2013) a sec 131. H
390 SUPREME COURT REPORTS [2014] 2 S.C.R.

A is: whether the plaintiff should be held to be entitled to a
decree for specific performance of the agreement of 22-
12-1970?

39. The long efflux of time (over 40 years) that has
occurred and the galloping value of real estate in the
B
meantime are the twin inhibiting factors in this regard. The
same, however, have to be balanced with the fact that the
plaintiffs are in no way responsible for the delay that has
occurred and their keen participation in the proceedings
till date show the live interest on the part of the plaintiffs to
c have the agreement enforced in law.

40. Th~ discretion to direct specific performance of
an agreement and that too after elapse of a long period
of time, undoubtedly, has to be exercised on sound,
D reasonable, rational and acceptable principles. The
parameters for the exercise of discretion vested by Section
20 of the Specific Relief Act, 1963 cannot be entrapped
within any precise expression of language and the contours
thereof will always depend on the facts and circumstances
E of each case. The ultimate guiding test would be the
principles of fairness and reasonabl6ness as may be
dictated by the peculiar facts of any given case, which
features the experienced judicial mind can perceive· without
any real difficulty. It must however be emphasized that efflux
F of time and escalation of price of property, by itself, cannot
be a valid ground to deny the relief of specific
performance. Such a view has been consistently adopted
by this Court. By way of illustration opinions rendered in
P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi8 : and
more recently in Narinderjit Singh v. Norlh Star Estate
G
Promoters Ltd. 9 may be usefully recapitulated.

41. The twin inhibiting factors identified above if are

a. c2007) 10 sec 231.
H 9. c2012) s sec 712.
RAJINDER KUMAR v. SHRI KULDEEP SINGH & 391
OTHERS [KURIAN, J.]
to be read as a bar to the grant of a decree of specific A
performance would amount to penalizing the plaintiffs for
no fault on their part; to deny them the real fruits of a
protracted litigation wherein the issues arising are being
answered in their favour. From another perspective it may
also indicate the inadequacies of the law to deal with the B
long delays that. at times. occur while rendering the final
verdict in a given case. The aforesaid two features. at best.
may justify award of additional compensation to the vendor
by grant of a price higher than what had been stipulated
in the agreement which price. in a given case. may even c
be the market price as on date of the order of the final
Court."

(Emphasis supplied)

44. The circle rate of the residential property based on D
which the unearned increase is calculated by the L&DO, would
show a sharp increase during the period. Sunder Nagar comes
under Category 'A' colonies. Under the Delhi Stamp (Prevention
of Undervaluation oflnstruments) Rules, 2007, the notified circle
rate for Category 'A' colonies from July 2007 was Rs.43,000/- E
per square meter and from February 8, 2011, it was Rs.
86,000/- per square meter. From November 16, 2011, it was
Rs.2, 15,000/- per square meter and from January 5, 2012, it
is Rs.6,45,000/- per square meter.

45. In the peculiar facts and circumstances of the case, we F
are of the view that the trial court should have passed an
equitable order while considering the application for rescission.
Having regard to the fact that the decree was passed in 1984,
we feel that it would be unjust and unfair to relegate the parties
to the trial court at this distance of time. For doing complete G
justice to the parties, we are of the view that it is a case where
the purchaser should be directed to pay the land value to the
vendors as per the circle rate notified for the residential property
in Category 'A' colonies prevailing during November 16, 2011
to January 5, 2012, at the rate of Rs.2, 15,000/- per square H
392 SUPREME COURT REPORTS [2014] 2 S.C.R.

A meter. The purchaser shall also be liable to meet the liability
arising by way of unearned increase to be paid to the Land and
Development Office. He is free to withdraw the amounts
deposited by him in the court as per order dated 06.01.2010.
It is also ordered that in case the plaintiff does not deposit the
B amount to be paid to the vendors within three months from
today, the vendors shall deposit in court within two months
thereafter the amount calculated as per the circle rate referred
to above by way of compensation to be paid to the purchaser,
and in which event, they shall stand discharged of their
c obligations under the contract and the decree. In the event of
the purchaser depositing the amount as above, the execution
proceedings shall be finalized within another one month. The
Court in seisin of the Suit OS No. 1428 of 1981 shall dispose
of the same within three months from today.

D 46. The Appeal filed by Rajinder Kumar [arising out of SLP
(C) No. 19215/2011] is dismissed and the other Appeals are
partly allowed as above. There is no order as to costs.

R.P. Appeals disposed of.