Full Judgment Text
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PETITIONER:
K. KALPANA SARASWATHI
Vs.
RESPONDENT:
P.S.S. SOMASUNDRAM CHETTIAR
DATE OF JUDGMENT29/11/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION:
1980 AIR 512 1980 SCR (2) 293
1980 SCC (1) 630
ACT:
Specific performance-Its nature.
HEADNOTE:
In 1967 the respondent agreed to sell his house to the
appellant for a sum of Rs. 4 lakhs which then was subject to
an equitable mortgage in favour of a bank. The trial court
decreed the suit for specific performance directing the
plaintiff to deposit the mortgage amount within a specified
time with interest at 11 per cent till the date of payment
and that failure to pay the amount would result in the suit
being dismissed. At the time of the agreement the plaintiff
paid the whole consideration except the mortgage amount and
obtained possession of the house. The plaintiff did not
deposit the mortgage amount within the prescribed time. She
paid the mortgage money to the bank some months afterwards
and took an assignment of its rights. In the suit filed by
the bank against the defendant she got herself impleaded as
second plaintiff. Eventually the mortgage suit resulted in a
decree in favour of the appellant. By this time the amount
had swollen to Rs. 11 lakhs.
On appeal a division bench of the High Court vacated
the default clause. The plaintiff’s application for giving
credit to the amount paid by her to the mortgage bank and to
pass a final decree in her favour was not granted by the
High Court. The High Court ultimately passed a decree for
recession of the contract for sale and for delivery of the
possession with mesne profits.
^
HELD: The High Court should pass a decree that the
plaintiff appellant should deposit within six months the
entire consideration together with interest due upto date at
the rate of 11 per cent together with an undertaking that
she would give up all her rights under the mortgage decree
passed by the High Court, except to the extent of the amount
actually paid to the bank for taking the assignment. [297 E]
It is open to the court in control of a suit for
specific performance to extend the time for deposit and this
Court may do so even now to enable the plaintiff to get the
advantage of the agreement to sell in her favour. The
disentitling circumstances relied upon by the defendant are
offset by the false pleas raised in the course of the suit
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by him and rightly negatived. Specific performance is an
equitable relief and he who seeks equity can be put on terms
to ensure that equity is done to the opposite party even
while granting the relief.
[295 H]
In the instant case the assignment of the mortgage is
not a guileless discharge of the vendor’s debt as implied in
the agreement to sell but a disingenuous disguise to arm
herself with a mortgage decree to swallow up the property in
case the specific performance litigation fails. The
appellant acted contrary to the agreement because instead of
paying the mortgage money and extinguishing the mortgage she
took an assignment of the equitable mortgage with a view
294
to use it against the respondent. This was not consistent
with the understanding assumed under the contract. [296 C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1993-
1994 or 1977.
Appeals by Special Leave from the Judgment and Order
dated 22-3-77 of the Madras High Court in C.M.P. Nos. 3449
and 3563 of 1976.
M.R.M. Abdul Karim and S. Shaukat Hussain for the
Appellant.
A. K. Sen (In C.A. 1993), Mrs. Shyamala Pappu (C.A.
1994), and A. V. Rangam for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J -Writes A. G. Gardiner, if we may start
off with a strange flourish, that "the supreme art is to
achieve the maximum result with the minimum ....effort. It
is the art of the great either who with a line reveals
infinity. It is the art of the great dramatist who with a
significant word shakes the soul. Schiller, said Coleridge,
burns a city to create his effect of terror: Shakespeare
drops a handkerchief and freezes our blood. For this
exquisite reason, brevity is the soul of art and justicing
including judgment-writing, must practise the art of
brevity, especially where no great issue of legal moment
compels long exposition. Therefore, we mean to be brief to
the bare bones, with a few facts here and a brief expression
of law there, by adopting the technique which "is simply the
perfect economy of means to an end". For another reason also
the need for parsimony exists. The court is in crisis,
docket-logged and fatigued. A judgment can be brief but not
a blank and there is no reason to repeat the details of a
case where there is an exhaustive statement in the judgment
under appeal, as in this case. We adopt these long pages of
judicial manuscript and abbreviate our conclusion in a few
pages.
The appellant-plaintiff, a woman was on terms of
intimacy with the respondent-defendant, a wealthy man who
had enjoyed a long and intimate relationship with her. The
respondent owned a lovely mansion on the Marina in Madras
which he agreed to sell to the appellant for a consideration
of around Rs. 4 lakhs way back in April 1967. This was
subject to an equitable mortgage over the property in favour
of the South Indian Bank, Coimbatore. When the two separated
litigation erupted. A suit for specific performance of the
agreement to sell was brought where both sides took up
unrighteous positions, and
295
the trial court (the original side of the High Court of
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Madras) decreed the suit directing the plaintiff to deposit
the mortgage amount plus Rs. 5,000 with interest at 11 per
cent till the date of payment. The whole consideration,
except the mortgage amount and a sum of Rs. 5,000 had
already been paid at the time of the agreement and
possession had been made over to the plaintiff by the
defendant. The decree also provided that the amount should
be deposited into court by the time specified therein,
failure to do which would result in the suit itself being
dismissed. The amount was not deposited within the time
limited but some months later the plaintiff paid the
mortgage money to the mortgagee bank and took an assignment
of its rights and got herself impleaded as second plaintiff
in the suit which, by then, had been instituted by the bank
against the present defendant (O.S.. No. 154 of 1968).
Eventually, the mortgage suit resulted in a decree in favour
of the present plaintiff (second plaintiff therein); and the
amount now due has, by now, swollen to around Rs. 11 lakhs
or so.
An appeal had been carried by the plaintiff-appellant
to a Division Bench of the High Court which rejected most of
her contentions except one. The court, while affirming that
the direction to make a deposit into court within three
months was valid, vacated the default clause, namely, the
dismissal of the suit on non-payment within the time. Read
in the light of Section 28 of the Specific Relief Act and
the rulings on the point which were cited before us, the
proper course in this situation was to pass a decree for
specific performance, which would, for all practical
purposes, be a preliminary decree. The suit would continue
and be under the control of the court until appropriate
motion was made by either party for passing a final decree.
The plaintiff-appellant moved the court by interlocutory
applications for giving credit to the amount paid by her to
the mortgagee bank and to pass a final decree in her favour.
That was not granted. Various skirmishes, essentially of an
interlocutory nature, took place. Ultimately, on two
applications, one by the plaintiff-appellant and the other
by the defendant-respondent the court made a judgment which
is the subject matter of this appeal. The plaintiff’s
application was dismissed and extension of time by way of
adjustment of the mortgage amount paid was refused and a
decree for recession of the contract for sale was passed and
for delivery of possession with mesne profits.
It is perfectly open to the court in control of a suit
for specific performance to extend the time for deposit, and
this Court may do so even now to enable the plaintiff to get
the advantage of the agreement to sell in her favour. The
disentitling circumstances relied upon by the defendant-
respondent are off-set by the false pleas raised in the
course of the
296
suit by him and rightly negatived. Nor are we convinced that
the application for consideration and extension of time
cannot be read, as in substance it is, as a petition for
more time to deposit. Even so, specific performance is an
equitable relief and he who seeks equity can be put on terms
to ensure that equity is done to the opposite party even
while granting the relief. The final end of law is justice,
and so the means to it too should be informed by equity.
That is why he who seeks equity shall do equity. Here, the
assignment of the mortgage is not a guideless discharge of
the vendor’s debt as implied in the agreement to sell but a
disingenuous disguise to arm herself with a mortgage decree
to swallow up the property in case the specific performance
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litigation misfires. To sterilise this decree is necessary
equity to which the appellant must submit herself before she
can enjoy the fruits of specific performance.
In the present case, with all that has been said by
both sides-and we have heard at great length arguments by
Shri Abdul Karim for the appellant and Shri A. K. Sen and
Smt. Shyamala Pappu for the respondents-it is clear that an
opportunity for the appellant to deposit into court the
amount directed by the trial court, together with interest
down to date at 11 per cent., should be accorded. We are not
discussing the principles of law as they are well-settled
and do not require reiteration. The equitable terms we have
adverted to earlier must be remembered in this context. The
appellant who was bound to discharge the mortgage acted
contrary to the agreement because, instead of paying the
mortgage money and extinguishing the mortgage (which was,
perhaps, a pardonable exercise, in lieu of deposit into
court) she, under some ill-advice took an assignment of the
equitable mortgage with a view to using it against the
respondent. Surely, this was not consistent with the
understanding assumed under the contract. This justifies the
view of the High Court that as a price for the indulgence of
being allowed to deposit long after the due date was over
the unrighteous advantage gained by taking an assignment of
the mortgage should be nullified. In brief, while the
appellant may be allowed to deposit the amount due under the
agreement, viz., Rs. 3,45,000 together with interest at 11
per cent. from April 1967 upto date, the mortgage decree in
her favour must be extinguished, save to the extent of the
cash then paid. The High Court expressed a slightly drastic
though similar view, somewhat loosely, thus:
After we have expressed our opinion and dictated
this order, the learned counsel for the Plaintiff
orally requests us to permit the Plaintiff to deposit
the entire amount as directed by the learned trial
Judge in the Court. Having regard to the
297
fact that no such stand was taken at any earlier stage
and this request has been orally made only after we
have dictated this order, we do not see any
justification whatever for complying with this request.
We may also point out that there is no actual
undertaking given by the plaintiff herself that even if
we give such an opportunity to the Plaintiff to deposit
the sum of Rs. 3,45,000 into this Court now, she will
give up her right under the mortgage decree, which she
has obtained against the defendant in the present suit
in O.S.. No. 154 of 1968. (emphasis added)
We agree with the substance of this direction, but
without going that far pass a conditional decree. We should
have taken long pages and elaborate argument in
substantiation of the course we adopt, but for reasons
adduced at the very beginning, we decline to do so. We
gather that in many jurisdictions the highest Court, which
hears the arguments at enormous length and has the advantage
of a complete statement of facts and discussion of law in
the judgment under appeal, limits itself to a severe economy
of words in the statement of its reasoning. We regard this
as a wholesome step. Natural justice necessitates full
hearing, not a flood of words of forbidding length.
We direct that a decree be passed that the plaintiff-
appellant do deposit within six months from to-day the
entire sum of Rs. 3,45,000 together with interest due upto
date at the rate of 11 per cent., together with an
undertaking that she would give up all her rights under the
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mortgage decree passed in her favour in O.S.. No. 154 of
1968, except to the extent of the amount actually paid to
the South Indian Bank for taking the assignment. If these
two conditions are fulfilled, the appeal will stand allowed
and a final decree for specific performance passed. In the
event of non-compliance with either of these conditions the
appeal will stand dismissed with costs.
P.B.R.
298