Holding

The plaintiff must deposit the entire consideration with interest within six months and relinquish her rights under the mortgage decree, save for the amount actually paid to the bank, and the appeal is allowed conditionally.

Summary

In 1967 the defendant agreed to sell his house to the plaintiff for Rs. 4 lakhs, subject to an equitable mortgage in favour of South Indian Bank. The trial court ordered specific performance, directing the plaintiff to deposit the mortgage amount with interest, but she failed to do so within the stipulated time and later paid the mortgage money to the bank, taking an assignment of its rights and obtaining a mortgage decree for Rs. 11 lakhs. The Madras High Court vacated the default clause, refused to credit the mortgage payment, and ultimately decreed rescission of the sale contract with mesne profits. On appeal, the Supreme Court held that a court controlling a specific performance suit may extend the time for deposit and that the plaintiff must deposit the entire consideration with interest within six months and surrender her rights under the mortgage decree, except for the amount actually paid to the bank. The Court directed that, upon compliance with these conditions, a final decree for specific performance be passed. The appeal was therefore allowed conditionally.

Issues considered

Whether a court exercising jurisdiction over a specific performance suit can extend the time for deposit of the mortgage amount.
Whether the plaintiff’s assignment of the equitable mortgage discharges the vendor’s debt under the sale agreement.
Whether the plaintiff is entitled to credit for the amount paid to the bank and to a final decree of specific performance.
Whether the High Court’s decree of rescission and delivery of possession with mesne profits was appropriate.

Legislation cited

Specific Relief Acts. 28

Subjects

specific performanceequitable mortgageassignment of mortgageextension of timeSpecific Relief Actrescissionconditional decreeequity

Judgment

293

K. KALPANA SARASWATIIl
v.
P. S. S. SOMASUNDRAM CHETIIAR
November 29, 1979
[V. R. KRISHNA IYER and R. s. PATHAK, JJ] It

Specific per/oTJna11ce-lts nature.

In 1967 the respondent agreed to sell his house to the. appellant for a sum
: Rs. 4 lakhs which then was subject to an equitable mortgage in favour of a
ank. Tue trial court decreed the suit for specific performance directing the
aintiff to deposit the mort!l"ge amount within a specified time with interest c
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 posses-
sion of the house. The plaintiff did not deposit the mortgage amount within
the prescribed time. She paid the mortgage money to tho 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 D
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 recission of E
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
e upto date at the rate of 11 per cent together with an undertaking that she
ould give up all her rights llllder the mortgage decree passed by the High
Court, except to the extent of the amount actually paid to the bank for taking p
tho assigamont. (297 El
S I 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 plaintifi'
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 rai4ed
in the course of the suit by him and rightly negatived. Specific performance
is an equitable relief and he who seeks equity can be put on terms to ensure G
~ that equity is done to. the opposite party even while granting the relief.
, \ !" (295 HJ
Ia the instant case the assignment of the mortgage is not a guileless dis·
charge of the vendor's debt as implied in the agreement to sell but a disinge-
nions disguise to arm henelf with a. mortgage decree to swallow up the property
in ease the S]lecific performance litigation fails The appellant acted contrary H
to the .agreement because !nstelld of paying the mortgage money and extinguish-
ing the mortgage .Oe took an assignment of the equitable mortgage with a view
294 SUPREME COURT REPORTS [1980] 2 s.c.R.'
'
.A to use it against the respondent. This was not consistent with the understanding
assumed under the contract. [296 CJ

CIVIL APPEI.I.ATE JURISDICTION : Civil Appeal Nos. 1993-1994 of
1977·
ApJ'f"lls 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 CA.
1993)', Mrs. Shyamala Pappu (C.A. 199~
·C and A. V. Rangam for the Respondent. ·t
The Judgment of the Court was delivered by

S:, .\ KRISHNA IYER, J.-W;ites 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
D who with a line reveals infinity. It is the art of the great dmmatist who
with a significant word shakes the soul. Schiller, said Coleridge, bums
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 legjll 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-lo~ed and.fatigued. A judgment' ~an be brief but n~
a blank and there 1s no reason to repeat the details of a case where
iF tltere is an exhaustive statement in the judgment under appeal, as in this '
case. We adopt these long pages of judicial manuscript and abbl?liate
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 enjoy~,ct a long and inti-
mate relationship with her. The respondent owned a lovely mansion
on the Marina in Madras which he agreed to sell to the appellant for 1
a consideration of around Rs. 4 lakhs way back in April 1967. 'fhi8il • •
was subject to an equitable mortgage over tlte · property in
favour of the South Indian Bank, Coimbatore. When the two separat-
ed litigation erupted. A suit for specific performance of the agreement
lH •
to sell was broughf where both sides took up unrighteous positions, and
(I) AG. Gardiner, The Pillars of Society, p. 106.
K. K. SARASWATHI v. P.S.S. CHETTIAR (Krishna Iyer, J.) 295

the trial court (the original side of the High Court of Madras) decreed A
~ the suit directing the plaintiff to deposit the mortgage amO'imt plus
I 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 beeu paid at the time of the agreement and
possession had been made over to the plaintiff by the defendant. The
, <lecree also provided that the amount should be deposited into court by B
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 her-
. :ir ·
·~elf impleaded as second plaintiff in the suit which, by then, had been
c
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 pressnt plaintiff (second plaintiff therein); anti the amount nOIW due
bas, by now, swollen to around Rs .. 11 lakhs or so.
An appeal had been carried by the plaintiff-appellant 10 a Division
Bench of the High Court which rejected most of her contentions except D
-0ne. The court, while affirming that the direction to make a deposit
fato 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
tp.e point which were cited before us, the proper course in this situation
E
was to pass a decree for specific performance, which would, for all
practical purposes, be a preliminary decree. The suit wonld continue
and be under the control of the court until appropriate motion was made
~~ by either party for passing a final decree. Th~ plaintiff-appellant moved
f--<he 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 F
favour. That was not granted. Various skirmishes, essentially of an
interlocutory nature, took place. Ultimately, on two applications, one
by the plaintifl'-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 G

) ~:=s= . :'.8~ for sale was ~;~sed and for delivery of posses-
. . fu-:.1.,.··tra

' .. !~erfect .· .. to the court in: control of a suit for specific per-
for . · to ext . ,.~e time for dposit, and this Court may do so even
now to,tifiable the plaintiff to get the advantage of the agreement to sell B
-in her favour. The disentitling circumstances relied upon by the defen-
.dant-1'espondent are off-set by the false pleas raised in the course of the
296 SUPREME COURT REPORTS [1980] 2 s.c.a.

A suit by him and rightly negatived. Nor arei we convinced that the appli-
cation 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 p_arty even while •
granting the relief. The final end of law is justice, and so the means
B 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 disingenious disguise to arm herself with a mortgage decree
to swallow up the property in case the specific performance litigatici~. _
misfires. To sterilise this decree is necessary equity to which th: ' ~-;
c 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 ShriA. K. Sen and Smt. Shyamala Pappu for the respon-
D
dents-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 rememberea
E in this context. The appellant who was bound to discharge the mort-
gage acted contrary to the agreement because, instead of paying the·
mortgage mopey and extinguishing the mortgage (which was, perhaps,
a pardonable exercise, in lieu of deposit into court) she, under some· 1
ill-advice took an assignment of the equitable mortgage with a view to. _J,..
using it against the respondent. Surely, this was not cpnsistent with the.- ~
(I 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 talcing an assignment of the mortgage ,i;hould 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·
G cent. from April" 1967 up!O date, the mortgage decree in her favour
must be extinguished, save to the extent of the cash then paid. The· 1
High Court expressed a slightly drastic though similar view, somewhat_. · , ,
loosely, thus : '"
After we have expressed our opinion and dictated this
B 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 t)l.e Court. Haviog regard to the
,. K. K. SARASWATHI v. P.S.S. CHETTIAR (Krishna Iyer, !.) 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
I
I

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 wnt give up her B
right under the mortgage decree, which she has obtained
against the defendant in the present suit in 0.S. No. 154 of
1968.. · (emphasis added)
~ We agree with the substance of this direction, but without going
t1Jat far pass a conditional decree. We should have taken long pages c
and elaborate argument in substantiation of the course we adopt, bnt
fur reasons adduced at the very begiuning, we decline to do so. We
gather that in many jnrisdictions the highest Court, which hears the
arguments at enormous length and ha.~ the advantage of a complete
statement of facts and discussion of law in the judgment under appeal,
D
limits itself to a severe economy. of words in the statement of its reason-
ing. We regard this as a wholesome step. Natnral 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 s.um of Rs. 3,45,000
together with interest due upto date at the rate of 11 per cent., together E
with an undertaking that she would give up ail her rights under the mort-
gage decree passed in her favour iu 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.
F
In the event of non-<:ompliance with either of these conditions the
appeal will stand dismissed with costs.

P.B.R.
\

;o. -86SSC1 /79