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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