LAXMAN TATYABA KANKATE & ANR.versusTARAMATI HARISHCHANDRA DHATRAK

                     [2010] 8 S.C.R. 310

A            LAXMAN TATYABA KANKATE & ANR.
                               v.
            TARAMATI HARISHCHANDRA DHATRAK
                (Civil Appeal No. 6509 of 2005)

                          JULY 8, 2010
B
     [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

       Specific Relief Act, 1963 - ss. 13(1 )(c) and 20 -
  Agreement to sell - Failure to execute sale deed - Suit for
C specific performance and, in the alternative, for refund of
  earnest money - Trial court partly decreeing the suit and
  directing refund of earnest money - First appellate court
  granting relief of specific performance - High Court affirming
  the decree passed by first appellate court - Held: Grant of
D decree of specific performance is lawful and also justified on
  the facts as well as equity - Even if the property was
  mortgaged to Co-operative Society, there is no bar to transfer
  the property in view of s. 48(d) of Co-operative Societies Act
  and ss. 12(1)(c) and 12(2) of Resettlement Act - Purchaser
E has the right to compel the seller to redeem the mortgage and
  obtain a valid discharge and then specifically perform the
  contract where the property is encumbered for an amount not
  exceeding purchase money - Increase in the price of suit
  property cannot be a ground for denying decree of specific
F performance - Maharashtra Co-operative Societies Act, 1960
  - s., 48(d) - Maharashtra Re-settlement of Project Displaced
  Persons Act, 1976 - ss. 12(1)(c) and 12(2) - Equity.

       The plaintiff-respondent entered into an agreement
  with the defendant$-appellants whereby the latter agreed
G to sell the suit land to the former. A sum of Rs. 10,000/-
  was paid at the time of agreement. As the appellants failed
  to execute the sale deed in favour of the respondent, the
  latter filed the suit for specific performance and, in the

H                              310
       LAXMANTATYABAKANKATEv. TARAMATI                   311
           HARJSHCHANDRA DHATRAK
alternative, for refund of earnest money along·with             A
damages.

      The trial court concluded that there was no intention
on the. part of the defendants to sell the property and
partially decreeing the suit, directed the defendants to pay
                                                                8
a sum-of Rs. 10,000/- with interest@ 6% p.a. and denied
the relief of specific performance of contract. The' first
appellate court setting aside·the decree passed'by the
trial .court, passed the decree •for· specific·performance
upon· grant of permission by the· competent authority as
contemplated. u/s. 12(c) of Maharashtra· Re-settlement of       C
Project Displaced Persons Act, 1976 and'also by the· Co-
operative Society ·as contemplated u/s. 47(2) of
Maharashtra Co-operative Societies -Act, 1960. The·High
Court affirmed the decree passed·by the,first appellate
court.                                                          D

     In the instant appeal, the appellant-defendant
contended that no decree for specific performance could
have been passed because the property could not be
transferred in favour of the respondent in view of the          E
restriction u/s. 48 of Co-operative Societies Act: and· u/ss.
12(1)(c) 12{2) and 12(3) of the Re-settlement Act; that the
courts ·below failed ·to· appreciate-the evidence in· its
correct perspective; and that the value of the·suit
property had increased tremendously.                            F

     Respondent-plaintiff volunteered to pay· increased
amount towards the consideration Le .. Rs. 1,50,000/-
instead of Rs ..40,000/- in view of the increased price of
the land.
                                                                G
    Dismissing the appeal, the Court

     HELD: 1. All the three courts have returned ·all the
findings of fact in favour of the respondent. Such findings
are based upon proper appreciation of evidence and no
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    312      SUPREME COURT REPORTS             [2010] 8 S.C.R.


A legal infirmity can be traced in them. It is hardly
  permissible for Supreme Court to go into such questions
  of facts alone, in exercise of its jurisdiction under Article
  136 of the Constitution of India. [Para 11] [322-A-B]

      2.1 It is not correct to say that the land could not have
8
  been transferred in favour of the respondent in view of
  the restriction contained in the provisions u/s. 48 (d) of
  Maharashtra Co-operative Societies Act, 1960 and u/ss.
  12(1) (c}, 12(2) and 12(3) of Maharashtra Re-settlement of
C Project Displaced Persons Act, 1976. The appellants did
  not adduce any evidence that the property in question •
  had been mortgaged or was under the charge of the Co-
  operative Society. The appellants did not place any such
  argument or specific plea. In fact, no such issue was
  either claimed or framed in this regard. [Paras 10 and 12]
D [323-C-D]

      2.2 Besides, the provisions of clause (d) of Section
  48 of Maharashtra Co-operative Societies Act, 1960
  places a conditional restriction upon alienation of the
E whole or any part of the land or interest in the property
  unless and until the whole amount borrowed by the
  member of the Society has been repaid with interest.
  Once the loan of the Society has been cleared, it
  obviously cannot have any objection to transfer the
F property. No effort was made by the appellants to bring
  on record any evidence to show as to what was the
  extent of money currently due to the Society, if at all, and
  for what amount the property had been mortgaged in its
  favour. In the absence of any specific evidence in that
G regard, the Court will have to draw an adverse inference
  against the appellants for not producing before the court
  the best available evidence. In any case, the appellants
  cannot take advantage of their own wrong. [Para 12] [322-
  D-G]

H         2.3 As regards the plea that the land could not be
       LAXMAN TATYABA KANKATE v. TARAMATI                 313
            HARISHCHANDRA DHATRAK

transferred in favour of the respondent in view of .the          A
restriction contained in Sections 12(1)(c) and 12(2) of the
Maharashtra Re-settlement of Project Displaced Persons·
ACt, 1976, a bare reading of the provisions shows that the
Government can grant permission for transfer of the
property, subject to such conditioMs, as it may deem fit         1;3
and proper. Again, the appellants have neither claimed
any issue nor led any evidence to substantiate even this
plea. [Paras 12 and 13] [323-G-H;·324-A-B]

    Nathula/ v. Phoo/ Chand AIR 1970 SC 546 .- relied on.
                                                                 c
     3.1 Section 13(1)(c) of the Specific Relief Act, 1963
clearly postulates that where a person contracts to sell
an immovable property with an imperfect title and the
property is encumbered for an amount not exceeding the
purchase money, the purchaser has the right to compel D
the sell.er to redeem the mortgage and obtain a valid
discharge and then specifically perform the contract in.
its favour.. [Para 13) [323-D-E]

     3.2 Sectio11 20 of the Specific Relief Act vests the
court with a wide discretion either to decree the suit for       E
specific performance or to decline the same. The
discretion of the Court has to be exercised as per the
settled judicial principles. In the instant case, it is the
appellants who have taken advantage of the pendency
of the proceedings. They have used the sum given                 F
towards earnest money for all this period as well as have
enjoyed the fruits of the property. It is, therefore, not only
lawful but even equity and facts of the case demand that
a decree for specific performance should be granted in
favour of the respondent. Besides, the respondent has            G
agreed to pay much higher consideration than what was
payable in terms of the agreement of sale. [Paras 14 and
15) [323-F; 325-B~E]

                                                                 H
    314    SUPREME COURT REPORTS               [2010] 8 S.C.R.


A        Bal Krishna vs. Bhagwan Das (2008) 12 SCC 145;
    Mohammadia Cooperative Building Society Ltd. vs. Lakshmi
    Srinivasa Cooperative Building Society Ltd. and Ors. (2008)
    7 SCC 310; P. V. Joseph's son Mathew vs. N. Kuruvila's Son
    AIR 1987 SC 2328 - distinguished.
B
       4. The onus to prove that the respondent had
  obtained signatures of the appellants on blank papers on
  the pretext of advancing a loan of Rs.2,000/- was entirely
  upon the appellants. No evidence, much less cogent
  documentary or oral evidence, was led by the appellants
C to discharge this onus. The averment has rightly been
  disbelieved by the courts concerned. The appellants led
  no evidence and brought nothing to the notice of this
  Court, even during the course of the hearing, in support
  of their case. [Para 16] [325-E-H]
D
       5. It is a settled principle of law that before the first
  appellate court, the party may be able to support the
  decree but cannot challenge the findings without filing
  the cross-objections. The appellants have neither filed
E cross- objections nor any appeal challenging the findings
  recorded by the trial court. In fact, the entire conduct of
  the defendant-appellants shows that they have not only
  failed to prove their claim before the courts of competent
  jurisdiction but have even not raised proper pleas in their
F pleadings. [Para 16] [325-G-H; 326-A-B]

       6.1 Increase in the price of the land in question
  cannot be a ground for denying the decree of specific
  performance to the respondent. The first appellate court,
  by a well reasoned judgment, has granted the relief of
G specific performance instead of only granting refund of
  money, as given by the trial court. The judgment of the
  first appella~c court has been upheld by the High Court
  and there is no reason whatsoever to interfere with the
  concurrent findings of facts and law as stated in the
H judgment under appeal. [Para 17] [326-C-D]
        LAXMAN TATYABA KANKATE v. TARAMATI                     315
             HARISHCHANDRA DHATRAK

    6.2 The respondent has volunteered to pay a sum of                A
Rs.1,50,000/- instead of Rs.40,000/- as the total sale
consideration. This offer of the respondent is very fair.
Even from the point of view of equity, the offer made by
the respondents, substantially balances the equities
between the parties. Therefore, no prejudice will be                  s
caused to the appellants in any manner whatsoever.
[Paras 17 and 18] [326-D-E; 326-F-G]

                       Case Law Reference:
     AIR 1970 SC 546            Relied on.              Para 13       c
     2008 (12) sec 145          Distinguished.          Para 14
     2008 (7) sec 31 o          Distinguished.          Para 14
     AIR 1987 SC 2328           Distinguished.          Para 14
                                                                      D
    CIVIL APPELLATE JURISDICTION : Civil Appeal No ..
6509 of 2005.

    From the Judgment & Order dated 17 .07 .2001 of the High
Court of Judicature at Bombay bench at Aurangabad in Second           E
Appeal No. 96 of 2001.

    Miten Mahapatra, Ravindra Keshavrao Adsure for the
Appellants.
                                                                      F
    Nitin Kumar Gupta (for Shivaji M. Jadhav) for the
Respondent.

     The Judgment of the Court was delivered by

     SWATANTER KUMAR, J. 1. Civil Judge, Senior Division,             G
Shrirampur, District Ahmednagar (for short 'the Trial Court'), in
a suit for specific performance and in the alternative for recovery
of Rs. 10,000/-, vide his judgment and decree da.ted 25th July,
1995 partially decreed the suit of the plaintiff (respondent
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    316     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   herein), dismissing her claim for specific performance, ordered
    refund of earnest money with interest at the rate of 6% per
    annum pendente lite and future, with proportionate cost.

       2. Against this decree, the respondent filed an appeal
B before the District Judge, Ahmednagar (hereinafter referred
  to as 'the First Appellate Court'), who, vide his judgment and
  decree, dated 28th November, 2000, decreed the suit in its
  entirety. The Court granted decree for specific performance in
  respect of the land in question and upon grant of permission
c by the competent authority, as contemplated under Section 12
  (c) of the Maharashtra Re-settlement of Project Displaced
  Persons Act, 1976, (hereinafter referred to as 'the Re-
  settlement Act') and also by the Society, as contemplated under
  Section 47(2) of the Maharashtra Cooperative Societies Act,
D 1960, (for short 'the Societies Act'}, the appellants were entitled
  to specific performance upon payment of the balance sale
  consideration of Rs. 30,000/-. It also directed the appellants to
  submit an application seeking permission from the competent
  authority and execute a registered sale deed in favour of the
E respondent herein.

       3. The legality and correctness of the aforesaid decree
  was challenged by the appellants before the High Court of
  Judicature at Bombay at its Aurangabad Bench in Second
  Appeal No. 96 of 2001 which came to be dismissed vide
F judgment dated 17th July, 2001. Aggrieved from the aforesaid
  coocurrent decrees passed by the Courts, the present appeal
  under Article 136 of the Constitution of India has been preferred
  by the appellants.

G     4. The necessary facts are that, according to the
  respondent, an agreement to sell dated 08.01.1991 was
  entered into bP~ween the parties in terms whereof the
  appellants had agreed to sell the land admeasuring 1H. 60 R.
  in Village Pimpri Lokai, Taluka Shrirampur, District
H Ahmednagar in Block No. 220, the boundaries of which were
       LAXMAN TATYABA KAN KATE v. TARAMATI    317
  HARISHCHANDRA DHATRAK [SWATANTER KUMAR, J.]
 stated in the plaint. A sum of Rs. 10,000/- was paid at that A
 time and it was agreed that upon obtaining the permission
 from the competent authority, the demarcation of the land would
 be effected and the possession of the suit land would be given.
 The appellants were expected to execute the sale deed in
 favour of the respondent, as the respondent was always ready B
 and willing to perform her part of the contract. Though the
 appellants assured that they would execute the sale deed in
 favour of the respcmdent, .they failed to do so. A notice dated
 05.06.1992 was served upon the appellants but no sale deed
 was executed.                                                      c
       5. Thereafter, according to the respondent, the appellants
· also started causing obstruction in the peaceful possession of
  the respondent and one of such incidents occurred on
  11.07.1992, which compelled the respondent to file the suit for 0
  specific performance, and in the alternative, for the refund of
  earnest money along with damages. One Vitthal Laxman
  Kankate also applied to the Court, vide Exh. 23, to be
  impleaded as a party, as he claimed right and interest in the
  said land. This application was allowed.
                                                                    E
      6. The suit was contested by the appellants who took
 various legal objections including, that the suit was bad for
 non-joinder of the necessary parties and, thus, was not ·
 maintainable. On merits, it was stated that no agreement, as
 alleged, was executed between the parties and the entire case, F
 as pleaded 6y the respondent, was false. It was also averred
 that defendant No. 2 in the suit (appellant No. 2 in the present
 appeal) had also filed a suit wherein injunction was granted in
 favour of the said party.
                                                                    G
       7. A plea was also taken that the agreement to sell was
  not a registered document, as such, the same could not be
  acted upon. The appellants .also took the stand· that there was
. rapid increase in the market value of the land and, therefore,
  they could not have agreed to sell the property at the. price     H
    318     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   indicated in the agreement. However, it was really not in dispute
    that the plaintiff and the defendants were acquainted to each
    other. The learned Trial Court, on the basis of the record before
    it, noticed that the appellants claimed that they wanted to obtain
    a loan for a sum of Rs. 2,000/- from the respondent and had
B   agreed to sign certain papers by way of security, that the
    respondent, on the pretext, got certain blank papers signed
    from the appellant as well as his son and that there was no
    intention to sell the property in question.

c        8. On the pleadings of the parties, the Trial Court framed
    the following issues and gave findings thereon :

                           Issues                           Findings

      1     Does the plaintiff prove that the defendant
D                                                           Proved
            agreed to sell the field for Rs. 40,000/-?

      2     Does the plaintiff prove that the amount Rs.
                                                            Proved
            10,000/- was paid as earnest money?

E     3     Does the plaintiff prove that amount of Rs.     Proved
            30,000/- was agreed to be paid at the time
            of execution of sale deed?

      4     Does the plaintiff prove that the sale deed     Proved
F           was to be executed within 1 month from the
            permission of the Competent Authority?

      5      Does the defendant prove that the plaintiff    Proved
             paid Rs. 2,000/- only as loan and the            Not
             signature were obtained on blank stamp
G
             paper by way of security?

       6     Does the plaintiff prove that she was ready    Proved
             and willing to perform her part of contract?

H
      LAXMAN TATYABA KAN KATE v. TARAMATI    319
 HARISHCHANDRA DHATRAK [SWATANTER KUMAR, J.]

  7     Whether the plaintiff is entitled for a decree     Not     A
        of Specific Performance?                         Proved

  8     Whether the suit is bad for non-joinder of Does not
        necessary party?                            survive
                                                                   B
        9 What relief and order?                         as pe'.
                                                          final
                                                          order

                       Additional issues
                                                                   c
  1     Whether the agreement is binding on the
                                                          Yes
        defendant No. 2.

  2     Does plaintiff prove that by way of alternate     Yes
        relief, she is entitled to refund of earnest               D
        money with damages?"

     9. The learned Trial Court decided all the material issues
in favour of the respondent and, while upholding the agreement
in favour of the respondent, it also returned a finding in favour E
of the respondent that she was always ready and willing to
perform her part of the contract and had paid a sum of Rs.
10,000/- as earnest money. It may be noticed, that the stand
taken by the appellants, that the signatures were obtained on
blank papers, was answered by the Court in the negative.
                                                                   F
Despite these facts, the learned Trial Court, as already noticed,
partially decreed the suit and directed the appellants to pay a
sum of Rs. 10,000/- with interest at the rate of 6% per annum
and without any additional amount of damages, as prayed by
the respondent. The learned First Appellate Court, while setting G
aside the decree passed by the Trial Court only for payment of
money, passed the decree for specific performance while
otherwise affirming the conclusions arrived at by the Trial Court.
The First Appellate Court returned the findings in favour of the
respondent and held as under:
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    320      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A        "Therefore, the sale is permissible with the prior
    permission of the government. Admittedly, the respondent No.
    1 has agreed to obtain permission from the government prior
    to sale transaction. Therefore, there would not be legal bar
    while granting a relief of specific performance. The authority
8 cited by the le.arned counsel for appellant is directly in point.
    The facts of thl? said authority and the facts of the present case
    are identical one. Hence, the reasons on account of which the
    learned trial court was not pleased to grant a relief of specific
    performance cannot be accepted. After having come to
c   conclusion that there is no bar of section 12 of the Re-
    settlement Act, the another reason on account of which the
    learned trial court was not pleased to grant the said relief, is
    proper or not is to be considered. The learned trial court has
    observed that in view of provisions of the Section 48(e) of the
D   Societies   Act, the agreement for sale is void one, and hence.
    it can't be enforced. According to learned trial court there was
   ·charge on the suit land in favour of the society i.e. since the
    respondent no. 1 has taken the loan amount. The learned trial
    court has relief on the entry in the record of rights, while coming
E to conclusion that there was charge of the society of the suit
     tand in view of the loan transaction, and the· appellant was
     aware of it in view of her admission that she had seen the entry.
     Consequently, the learned trial court has come to conclusion·
    that there is a bar while granting relief of specific performance
F . u/s 48 (e) of the Co.op. societies Act. In my opinion, in view of
    the authority reported in the case of Narayan vs. Macchindra,
     1994 Mh. L.J.558 it can't be said that there would be any legal
     bar while enforcing the agreement .Exh.45 ................. .

          xxxxxxxxxx
G
          .................. Therefore, there would not be any legal
          impediment while granting a relief of specific performance
          subject to certain conditions i.e. prior permission of the
          state government and permission from the society of
H
      LAXMAN TATYABA KANKATE v. TARAMATI     321
 HARISHCHANDRA DHATRAK [SWATANTER KUMAR, J.]
    village Pimprilokai, taluka Newasa. There are no reasons A
    on record so as to prevent the appellant from claiming a
    relief of specific performance. The respondents were not
    able to show as to why discretion should not be grant a
    relief of specific performance. Since the agreement for
    sale, Exh. 45, is lawful one, it can be safely enforced. B
    Consequently, the finding in respect of point No. 2 is · ·
    answered in the affirmative. In view of the findings in
    respect of point Nos. 1 and 2, it logically follows that the
    judgment and decree of the learned trial court have to be
    set aside, and suit filed by appellant is decreed, which is c
    for a relief of specific performance however subject to
    certain conditions i.e. regarding prior permission of the
    state government of society of village Pimprilokai. lncase,
    both authorities are not pl~ased to grant permission then
    appellant would be entitled to claim refund of the earnest o
    amount from respondents which is to the tune of Rs.
    10,000/-."

     10. The findings and the conclusions of fact and law arrived
at by the Courts were affirmed by the High Court which E
sustained the decree passed by the First Appellate Court. The
learned counsel appearing for the appellants vehemently
argued that the decree for specific performance could not have
been passed by the Courts against the appellants, as the
property was mortgaged to the cooperative society, and the
property being under the charge of the society, no title could F
be passed in favour of the respondent. Secondly, it was
contended that the Courts have failed to appreciate the
evidence in its correct perspective and the judgment under
appeal is liable to be set aside. Lastly, it was contended that
during the pendency of the proceedings, the value of the land G
has increased tremendously,and it would be unjust and unfair
to pass a decree for specific performance in favour of the
respondent.

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    322     SUPREME COURT REPORTS                    [2010) 8 S.C.R.


A         11. At the very outset, we may notice that all the three
    Courts have returned all the findings of fact in favour of the
    present respondent. Such findings are based upon proper
    appreciation of evidence and no legal infirmity can be traced
    in them. It is hardly permissible for this Court to go into such
B   questions of facts alone, in exercise of its jurisdiction under
    Article 136 of the Constitution of India.

          12. From the judgment of the learned Trial Court, it is
    apparent that the appellants had not placed any such argument
c   or specific plea before that Court. In fact, as is evident from the
    afore reproduced issues, no such issue was either claimed or
    framed, in this regard. It is rightly contended by the learned
    counsel appearing for the respondent that the appellants had
    not adduced any evidence that the property in question had
    been mortgaged or was under the charge of the society. Be
0
    that as it may, the provisions of clause (d) of Section 48 of the
    Societies Act, places a restriction upon alienation of the whole
    or any part of the land or +nterest in the property unless and until
    the whole amount borrowed by the member of the society has
E   been' repaid with interest. In other words, the restriction is
    conditional and once the loan of the society has been cleared,
    the society obviously cannot have any objection to transfer the
    said property. No effort was made by the appellants to bring
    on record any evidence to show as to what was the extent of
F   money currently due to the society, if at all, and for what amount
    the property had been mortgaged in favour of the society. In
    the absence of any specific evidence in that regard, the Court
    will have to draw an adverse inference against the appellants
•   for not producing before the Court the best available evidence.
    Jn any case, the appellants cannot take advantage of their own
G   wrong. Coming to the other submission, that the land could not
    be transferred in favour of the respondent in view of the
    restriction contained in Section 12 (1) (c) and Section 12 (2)
    of the Re-settlement Act, the bare reading of these provisions
    show that the Government can grant permission for transfer of
H
     LAXMAN TATYABA KANKATE v. TARAMATI     323
HARISHCHANDRA DHATRAK [SWATANTER KUMAR, J.]

the property, subject to such conditions, as it may deem fit and        A
proper.

     13. In the present case, the appellants have neither claimed
any issue nor led any evidence before the Court to substantiate
even this plea. Furthermore, the learned First Appellate Court          B
while relying upon the judgment of this Court in the case of
Nathulal v. Phoo/chand [AIR 1970 SC 546], had dealt with both
these contentions rightly and in accordance with the law. We
see no reason as to how a presumption can be raised against
the respondent on face of the fact that the appellants chose not        c
to lead any evidence on either of these aspects. These
contentions raised on behalf of the appellants are, therefore,
without any substance. The learned counsel appearing for the
appellants drew our attention to Section 13 (1) (c) of the
Specific Relief Act, -1963 (for short 'the Act'), which clearly         0
postulates that where a person contracts to sell immovable
property with an imperfect title and the property is encumbered
for an amount not exceeding the purchase money, the
purchaser has the right to compel the seller to redeem the
mortgage and obtain a valid discharge and then specifically             E
perform the contract in its favour. Even from this point of view,
the right of the present respondent is fully protected.

     14. It will also be useful to refer to the provisions of Section
20 of the Act which vests the Court with a wide discretion either
to decree the suit for specific performance or to decline the           F
same. Reference in this regard can also be made to the case
of Bal Krishna v. Bhagwan Das ((2008) 12 SCC 145], where
this Court held as under :

     "13 ......... The compliance with the requirement of Section       G
     16(c) is mandatory and in the absence of proof of the same
     that the plaintiff has been ready and willing to perform his
     part of the contract suit cannot succeed. The first
     requirement is that he must aver in plaint and thereafter
     prove those averments made in the plaint. The plaintiff's          H
    324       SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A         readiness and willingness must be in accordance with the
          terms of the agreement. The readiness and willingness of
          the plaintiff to perform the essential part of the contract
          would be required to be demonstrated by him from the
          institution of the suit till it is culminated into decree of the
B         court.

          14. It is also settled by various decisions of this Court that
          by virtue of Section 20 of the Act, the relief for specific
          performance lies in the discretion of the court and the court
c         is not bound to grant such relief merely because it is lawful
          to do so. The exercise of the discretion to order specific
          performance would require the court to satisfy itself that
          the circumstances are such that it is equitable to grant
          decree for specific performance of the contract. While
D         exercising the discretion, the court would take into
          consideration the circumstances of the case, the conduct
          of parties, and their respective interests under the contract.
          No specific performance of a contract, though it is not
          vit'iated by fraud or misrepresentation, can be granted if it
          would give an unfa'ir advantage to the plaintiff and where
E
          the performance of the contract would involve some
          hardship on the defendant, which he did not foresee. In
          other words, the court's discretion to grant specific
          performance is not exercised if the contract is not equal
          and fair, although.the contract is not void."
F
         Similar view was taken by this Court in the case of
    Mohammadia Cooperative Building Society Ltd. v. Lakshmi
    Srinivasa Cooperative Building Society Ltd. & Ors. [(2008) 7
    SCC 31 OJ, where the Court reiterated the principle that
G   jurisdiction of the Court to grant specific performance is
    discretionary and role of the plaintiff is one of the most important
    factor to be taken into consideration. We may also notice that
    in the case of P. V. Joseph's son Mathew v. N. Kuruvila's Son
    [AIR 1987 SC 2328], this Court further cautioned that while
H
      LAX.MAN TATYABA KANKATE v. TARAMATI    325
 HARISHCHANDRA DHATRAK [SWATANTER KUMAR, J.]

exercising discretionary jurisdiction in ternis of Section 20 of    A
the Act, the Court should meticulously consider all facts and
circumstances of the case. The Court is expected to take care
to see that the process of the Court is not used as an instrument
of oppression giving an unfair advantage to the plaintiff as
opposed to the defendant in the suit.                               B

      15. The discretion of the Court has to be exercised as per
the settled judicial principles. All the aforesaid principles are
squarely satisfied in the present case and it is the appellants ·
before us who have taken advantage of the pendency of the           c
proceedings. They have used the sum of Rs. 10,000/-, which
was given as earnest money for all this period, as well as, have
enjoyed the fruits of the property. The present case does not
fall within the ambit of any of the aforesaid cases specified·
under Section 20 (2) of the Act. In the present case, it is not 0
only lawful but even equity and facts of the case demand that a
decree for specific performance should be granted in favour
of the respondent. Besides all this, the respondent before us
has agreed to pay much higher consideration than what was
payable in terms of the agreement to sell between the parties. E

      16. The onus to prove that the respondent had obtained
signatures of the appellants on blank papers on the pretext of
advancing a loan of Rs. 2,000/- was entirely upon the appellants.
No evidence, much less cogent documentary or oral evidence,
was led by the appellants to discharge this onus. The averment      F
has rightly been disbelieved and the plea was rightly rejected
by the concerned Courts in the judgment under appeal. The
appellants led no evidence and nothing was brought to our
notice, even during the course of the hearing, to show that this
plea could be accepted. It is a settled principle of law that       G
before the First Appellate Court, the party may be able to
support the decree but cannot challenge the findings without
filing the cross objections. As it appears from the record, the
present appellants have neither filed cross objections nor their
                                                                    H
    326     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   appeal challenging the findings recorded by the learned Trial
    Court. In fact, the entire conduct of the present appellants shows
    that they have not only failed to prove their claim before the
    Courts of competent jurisdiction but have even not raised
    proper pleas in their pleadings.
B
       17. It was contended on behalf of the appellants that there
  has been considerable increase in the price of the land in
  question. Though that may be true, it cannot be a ground for
  denying the decree of specific performance to the respondent.
c The learned First Appellate Court, by a well reasoned judgment,
  has granted the relief of specific performance instead of only
  granting refund of money, as given by the Trial Court. The
  judgment of the First Appellate Court has been upheld by the
  High Court and we see no reason whatsoever to interfere with
0 the concurrent findings of facts and law as stated in the judgment
  under appeal. However, the learned counsel appearing for the
  respondent volunteered and after taking instructions stated that
  they would be willing to pay a sum of Rs. 1,50,000/- instead of
  Rs. 40,000/- as the total sale consideration. We find this offer
E of the respondent to be very fair.

       18. We have already held that the defence taken up by the
  appellants in the suit was totally unbelievable. There is no
  reason or ground as to why the relief of specific performance
  should be declined to the respondent. She satisfied all the
F requirements of Section 20 of the Act. Even then, if we examine
  this case purely from the point of view of equity, the offer now
  made by the respondent substantially balances the equities
  between the parties and the very argument raised on behalf of
  the appellants that there has been increase in the price of the
G land in question loses its significance. Now, no prejudice will
  be caused to the appellants in any manner whatsoever.

        19. For the reasons afore recorded, we see no legal or
    other infirmity in the judgment under appeal. While dismissing
H
      LAXMAN TATYABA KANKATE v. TARAMATI     327
 HARISHCHANDRA DHATRAK [SWATANTER KUMAR, J.)

the present appeal, we direct that the respondent will abide by    A
her offer and would pay a total sale consideration of Rs.
1,50,000/- and upon payment of Rs. 1,50,000/- - Rs. 10,000/-
= Rs. 1,40,000/- and complying with the conditions stated in the
judgment dated 28th November, 2000 of the First Appellate
Court, the sale deed shall be registered in favour of the          B
respondent in terms of the decree passed by the First Appellate
Court subject to the above modifications.

    20. However, in the facts and circumstances of the case,
we leave the parties to bear their own costs.
                                     ~--                           c
K.K.T.                                     Appeal dismissed.