How to Exercise the Discretion to Grant Specific Performance of a Contract for Sale of Immovable Property [JUDGMENT]

Specific Relief Act, 1963 - S.20 - Discretion as to decreeing specific performance - When a Court considers a suit for specific performance of a contract for sale of immovable property, once it is found that the agreement is genuine and the plaintiff had pleaded and proved his readiness and willingness to perform his part of the contract, it is upon the Court to further consider whether the discretion to grant specific performance has to be exercised in terms of S.20 of the Specific Relief Act.

In order to exercise the discretion to grant specific performance, the Court will have to consider the entire factual aspects involved in the matter and while considering the same, all the circumstances which may give some doubt in the mind of the Court regarding the genuineness of the transaction and the probability of the case set up are also to be analyzed. 

The factum of execution of three agreements itself is unheard of. The contention that it is to avoid registration cannot be believed. The only inference that can be raised is that the plaintiff wanted extension of time so that he gets an option to make arrangements for purchasing the property only by 31/7/2006. Apparently there is neither any pleading nor any legally acceptable evidence available before this Court to infer under what circumstance the time was extended by execution of separate agreements until 31/7/2006. Court below has therefore committed serious error treating the circumstances against the defendants to grant specific performance. In fact, the Court below ought to have ventured to find out whether there are any circumstances in favour of the defendants to deny specific performance as provided u/s 20. In the light of the aforesaid finding of ours, we are of the view that the judgment of the Court below is liable to be set aside. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.M. SHAFFIQUE & P.SOMARAJAN, JJ.

RFA No. 202 of 2011

Dated this, the 28th day of June, 2018

AGAINST THE JUDGMENT IN OS 295/2006 of PRL.SUB COURT,KOTTAYAM DATED 30-07-2010 

APPELLANTS/DEFENDANTS.

JACOB V. VARGHESE AND ANOTHER

BY ADVS.SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA 

RESPONDENT/PLAINTIFF 

P.T. JOSEPH @ TOMY

R1 BY ADV. SRI.ALEX GEORGE R1 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL

J U D G M E N T

Shaffique, J.

This appeal is filed by the defendants challenging judgment dated 30/7/2010 in OS No.295/2006 of the Principal Sub Court Kottayam by which Court below had decreed the suit for specific performance of a contract for sale of immovable property.

2. The short facts as alleged by the plaintiff are as under:- 

Plaintiff and defendants 1 and 2 are relatives. At the instance of father-in-law of the plaintiff, the plaintiff agreed to purchase the plaint schedule property for a sale consideration of ₹42 lakhs and ₹15 lakhs was paid as advance, which was to be adjusted towards sale consideration. Three separate agreements were executed. The first agreement is dated 27/3/2004 by which the plaintiff agreed to purchase the property and pay the balance sale consideration on or before 31/1/2005 and the defendants were under obligation to execute the sale deed. As per the second agreement dated 31/1/2005, the date of compliance of the terms of agreement was on or before 30/11/2005 and as per the 3rd agreement dated 30/11/2005, the obligations were to be completed on or before 31/7/2006. All the three agreements were executed on the same day i.e., on 27/3/2004. The agreement also contained a stipulation that if the plaintiff failed to pay the balance sale consideration within the specified period, defendants shall refund only ₹7 lakhs and retain the balance of ₹8 lakhs with them. Plaintiff also contended that the defendants agreed to sell the property in order to purchase another property at Trivandrum and to shift their residence. It is contended that despite several requests, defendants postponed the execution of the sale deed stating one reason or other and despite the fact that plaintiff was ready to pay the balance consideration, the defendants were not willing to execute the sale deed before the last date fixed for performance. Plaintiff through their power of attorney holder issued a letter to the defendants on 27/6/2006 informing them that plaintiff will be present before the Sub Registrar Office, Changanacherry on 6/7/2006 to execute the sale deed and offering to pay the balance sale consideration. They have also requested the defendants to entrust the photostat copies of the title deeds for drafting the sale deed. Plaintiff appeared before the Sub Registrar Office, Changanacherry on 6/7/2006 with the requisite balance sale consideration and waited till evening. But the defendants did not turn up. Alleging that the plaintiff was always ready and willing to get the sale deed executed by paying the balance sale consideration of ₹27 lakhs at the expense of the plaintiff and he continues to be ready and willing to pay the balance sale consideration, the suit is filed. Alternatively the plaintiff also sought for return of the advance amount with interest at the rate of 12% per annum and cost of the proceedings.

3. The defendants filed written statement inter alia contenting that they had no intention to sell the plaint schedule property. They were employed in Zambia for a very long time and came back to India in the year 2003 and started residing in the plaint schedule property. Defendants were interested in playing Golf and they could locate a proper Golf ground only at Trivandrum. They used to drive to Trivandrum once in a week for playing Golf. On account of the difficulty in travelling to Trivandrum frequently, they thought of acquiring a small house at Trivandrum for a temporary residence. However, they were not having sufficient funds. Sri.K.C.Thomas, father-in-law of the plaintiff offered to help them by procuring a loan of ₹15 lakhs from the plaintiff who was working in Kuwait. They were also informed that the money could be repaid leisurely. It is pursuant to the said arrangement that at the instance of Sri.K.C.Thomas, three agreements were executed. According to them, the defendants only subscribed their signatures in three blank stamp papers and a few blank plain papers and at the time of signing, nothing was written either in the stamp papers or in the plain papers. They contended that the agreements have been written on the stamp papers and blank papers signed by them and it is a concoction. It is further contended that the value of the property during the relevant time is more than ₹70 lakhs. Property is situated in the heart of Changanacherry town on the side of byepass road. The agreements came to be prepared only for the purpose of snatching away the property. Defendants are ready and willing to pay the loan amount of ₹15 lakhs with 12% interest per annum. According to them, they have informed the plaintiff and Sri.K.C.Thomas that they are willing to pay the amount at any time. However they were not willing to accept the same.

4. Court below on the basis of the pleadings framed the following issues:- 

“1. Whether the agreement for sale is genuine? 

2. Whether the plaintiff is entitled for a decree of specific performance of contract? 

3. Whether the plaintiff is entitled for any alternative relief as prayed for? 

4. Reliefs and costs.” 

5. On behalf of the plaintiff, four witnesses were examined as PW1 to PW4 and they relied upon Exts.A1 to A19 documents. First defendant was examined as DW1 and he relied upon Exts.B1 to B7. The Court below found that the agreements were genuine documents and that it is on account of the breach of contract committed by the defendants that the sale deeds could not be executed. It was also found that there was no material not to exercise the discretion to execute the sale deed. Accordingly, the suit was decreed.

6. Heard the learned counsel for appellants and the learned counsel appearing for the respondent/plaintiff.

7. Learned counsel for the appellants primarily contended that the Court below committed serious error of law in placing reliance on three separate agreements executed on the same day for sale of same property. It is argued that the very instance of three agreements being executed on a particular day with specified period one after another clearly gives an indication that the intention was not to assign the property but was only a loan transaction as alleged by the defendants. Further it is argued that Court below had relied upon materials which were neither pleaded nor proved in the case and therefore, there is erroneous appreciation of the evidence adduced in the case. Further it is contended that, even assuming that the agreements were validly executed, while exercising the discretion u/s 20, the Court below ought to have considered the entire factual aspects involved in the matter and arrived at a decision. Such a discretion has not been properly exercised in the matter.

8. Learned counsel also placed reliance on the judgment of the Apex Court in Zarina Siddiqui v. A.Ramalingam alias R.Amarnathan (2014 (4) KHC SN 26) and Anvar v. Basheer (2014 (4) KLT 104). Reference is also made to a Division Bench judgment of this Court in Vinodan v. Sunil Kumar and others (2015 (2) KHC 656).

9. In Zarina Siddiqui (supra), the Apex Court after referring to various earlier judgments reiterated the position that the remedy for specific performance is an equitable remedy. The court while granting relief of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that courts discretion to grant decree for specific performance is discretionary but not arbitrary. It is held that discretion must be exercised on sound and judicial principles.

10. In Satya Jain v. Anis Ahmed Rushdie [(2013) 8 SCC 131], the Apex Court held that the parameters for the exercise of discretion vested under 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 of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case. The Apex Court also relied upon Nirmala Anand v. Advent Corporation (P) Ltd. [(2002) 8 SCC 146] wherein a three Judge Bench held that when it is true that grant of decree of specific performance lies in the discretion of the Court, it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further 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. In another judgment relied upon by the Apex Court viz., K.Prakash v. B.R.Sampath Kumar (Civil Appeal 9047/2014), it is further held that under S.20 of the Specific Relief Act, a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Vinodan (supra) has been relied upon to contend that when there is no specific pleading in the plaint to seek specific performance, that would amount to non compliance of mandatory requirements of Clause (c) of S.16 of the Specific Relief Act. This Court held that the language of S.16 of the Act being prohibitory, no Court can grant a decree for specific performance unless the plaintiff has averred and proved his readiness and willingness to perform his part of the contract. Judgment in Anvar (supra) has been relied upon to emphasise the point that the electronic evidence that had been produced in the case is not properly proved in terms of Section 65B of the Indian Evidence Act, 1872. In Anvar (supra), Apex Court held that any documentary evidence by way of an electronic record under the Evidence Act can be proved only in accordance with the procedure prescribed u/s 65B. Taking into consideration the arguments raised, the first question to be considered is whether there is proper pleadings in the case to invoke specific performance u/s 16(c).

11. Perusal of the plaint would show that the plaintiff had in clear terms pleaded at paragraph 12 that his power of attorney holder had issued a letter to the defendants on 27/6/2006 stating that plaintiff will be present at the Sub Registrar's office, Changanassery on 6/7/2006 for getting the sale deed executed after paying the entire balance sale consideration. Still further, at paragraph 14, there is a clear pleading that since 27/3/2004, plaintiff was always ready and willing to get the sale deed executed by giving the entire sale consideration of ₹27 lakhs. In paragraph 15 also it is stated that plaintiff had repeatedly informed the defendants his readiness and willingness to get the sale deed executed after paying the balance consideration. It is further averred that in a reply dated 5/7/2006 defendants have denied even the execution of the agreement. On an overall consideration of the averments in the plaint, it is rather clear that the plaintiff was always ready and willing to comply with his part of the contract and continues to be so.

12. The defendants have a case that the agreements were concocted. Plaintiff was examined as PW1. He was not present at the time when Exts.A1 to A3 agreements were executed. Therefore, he cannot vouch for the preparation of the agreement. In cross examination, he states that he had signed the agreements from Kuwait and at that time the defendants had already signed the agreements. He was not present in India at the time when the defendants signed Exts.A1 to A3. PW2 is the person who was conducting a computer centre under the name IT Clinic at Changanaserry. In his chief affidavit, he states that Sri.K.C.Thomas along with the first defendant entrusted a draft agreement in Malayalam and he was requested to print it. He was also entrusted with three stamp papers of ₹50/- each. He had prepared the agreement in his computer and he had done the printing on three stamp papers with three different dates as directed by the first defendant and Sri.K.C.Thomas. He collected ₹200/- as charge. In cross examination, the suggestion of the defendants was that he had no acquaintance with the first defendant and he was giving false evidence at the instance of Sri.K.C.Thomas. PW3 is K.C.Thomas, father-in-law of the plaintiff who deposes that the agreement was prepared by a document writer and a computer print out was taken from PW2's computer centre. The defendants signed the agreement at their residence and the plaintiff had signed the same at Kuwait.

13. The learned counsel for the appellants points out a few infirmities in the agreements. One is that the schedule which forms part of the agreement has not been signed by any of the parties. According to the counsel, the schedule was subsequently incorporated and therefore material changes had been made to the agreement. Plaintiff in his evidence does not remember to have seen the schedule at the time of signing the agreements at Kuwait. According to his deposition, he had signed at the places where the defendants have signed and since the defendants had not put the signatures in the schedule, he too did not sign the same. Another infirmity pointed out is the spacing between the name of first defendant and his signature. Learned counsel for appellants argued that first defendant's name is Jacob V.Varghese and he is known by that name. But, in the place where his signature is put, name is written only as “Jacob”, meaning thereby, the contents of the document were incorporated subsequently. DW1 however in cross examination submits that he knew about the danger in signing blank papers. He had signed the same only on account of the relationship he had with Sri.K.C.Thomas. He used to entrust his documents and other valuables with Sri.K.C.Thomas while he was in Zambia. When they return, Sri.K.C.Thomas used to meet them at the airport and entrust the articles entrusted to him. When they go back, they entrust the documents to Sri.K.C.Thomas. Further cross examination was based on various e-mail correspondences. He also submits that he had come to know about the contents of Exts.A1 to A3 at his lawyer's office. Ext.A5 is the letter dated 27/6/2006 issued by Sri.K.C.Thomas to the defendants by which there is reference to agreements and payment of ₹15 lakhs as advance. The balance amount was also specified as ₹27 lakhs. It is by this letter that defendants were informed to be present before the Sub Registrar Office, on 6/7/2006 and to entrust the copies of the documents for preparing the draft sale deed. In reply to this letter, first defendant has sent Ext.A8 admitting to have received ₹15 lakhs from the plaintiff on 27/3/2004. But according to the defendants, it is not received as advance for sale of their property. He had received financial assistance only for purchasing a property at Trivandrum and had offered to pay back the said amount within two years with bank interest. On the said day itself, he had given three stamp papers and three blank papers duly signed. He further states that if it was for sale of property, he would have done it 1½ years back and without any change in the price, he would not have kept it pending. It is loss for him to sell the property at ₹42 lakhs. Therefore, he requested Sri.K.C.Thomas not to create any problems, talked with plaintiff and arrived at a settlement that they are ready and willing to pay back ₹15 lakhs with interest.

14. Learned counsel for the respondent argued that the existence of the agreements were indeed known to the defendants. When the first defendant had given evidence before Court, he had denied having seen the agreements. But it is relevant to note that even in Ext.A8, the contention of the defendants is that they had signed and given three stamp papers and blank papers and in the written statement it is pleaded that the agreements were prepared in the said documents.

15. But despite the infirmities pointed out by the learned counsel for appellants and the contention urged, we do not think that the defendants' contention is to be accepted. PW2 who has prepared the documents had stated that he had typed out a draft agreement in computer and print outs were taken by him and it was handed over in the presence of Sri.K.C.Thomas and the first defendant. Further, first defendant himself admits that he had purchased the stamp papers. Therefore, we are inclined to accept the fact that the agreements were indeed executed and the plaintiff was aware of the said agreements.

16. The question now is whether there was an intention on the part of the defendants to sell the plaint schedule property or was it only prepared for the purpose of advancing a loan. The situation seems very curious. Three separate agreements are seen executed with three separate dates and three separate dates for performance. PW3's explanation is that it was prepared to give more time for performance. The question to be considered is at whose instance the three agreements were executed. PW3 says that it is to avoid registration that three separate agreements were executed. Such an explanation is not acceptable and there is no such mandate. He had even consulted a document writer for preparing the draft. We do not think that any document writer would advise preparation of three agreements unless the plaintiff requires more time to comply with his part of the contract. Even then, the necessity was to prepare a single agreement.

17. The question to be considered is which is the agreement that is required to be enforced; is it the first agreement, second agreement or third agreement. The first and second agreement is now superseded by the third agreement. The question would be at whose instance the time was extended until 31/7/2006. If the defendants intended to sell the property, their intention would only be to obtain the balance sale consideration within a reasonable time and especially when they were in necessity of funds. Why should the defendants extend the period for more than one year? Therefore, there is doubt regarding the underlying transaction between the parties, especially when three agreements for sale were prepared.

18. The Court below placed much reliance on Exts.A9 and A10 series which were print outs of e-mails allegedly sent by the first defendant to plaintiff, replies thereof and Ext.A11. First of all, in order to prove these documents, PW4 has been examined. PW4 is only a Police Constable working in the Crime Detachment Cyber Cell in the office of Superintendent of Police, Kottayam. There is nothing to indicate that he is an expert in the field. In order to accept Exts.A9 and A10 series and A11, which are copies of the electronic records allegedly maintained by the plaintiff, it requires certification in terms of S.65B of the Evidence Act. The law in this regard had been clearly held by the Apex Court in Anvar (supra). Exts.A9 to A10 series are all e-mail communications and Ext.A11 is an internet advertisement of property sale and none of those documents are certified in terms of S.65B. That apart, it is not difficult for a person to generate such documents. There was no pleading to substantiate the existence of such documents. Though in Shafhi Mohammad v. State of Himachal Pradesh (2018 (2) KHC 80), it has been held that certification under Section 65B is procedural, we do not think, in the present set of facts, those documents can be relied upon. All those documents say secondary evidence. In the absence of any certification, none of those documents can be relied upon. Therefore, Court below committed serious error of law in relying upon the said documents to find out the underlying transaction between the parties.

19. Plaintiff in his affidavit though has stated his readiness and willingness, there is absolutely no evidence to prove that he was having the financial capacity to pay the balance sale consideration on the respective dates of agreements. Readiness includes the financial capacity which is a fact which requires to be pleaded and proved. Though the plaintiff has stated that he is ready and willing to pay the balance sale consideration, he has not stated in his evidence viz, the affidavit filed in lieu of chief examination, the arrangements he had made to pay the balance sale consideration. Of course, in the written statement, the defendants had denied even execution of the agreement, but, still, it is for the plaintiff to prove the said fact. Some documents have been produced without any narration in the chief affidavit. Of course Exts.A9 to A11 documents were marked subject to admissibility at the time of evidence. In a case where plaintiff avers that his readiness to pay the balance sale consideration, he should also adduce evidence to prove his capability to pay the balance sale consideration. Other than producing statement of accounts of different Banks, viz., Exts.A15 to A19, nothing is stated in the chief affidavit regarding the capacity to raise funds. Of course he is a person employed in Kuwait. Ext.A15 is a passbook of a joint account of plaintiff and Suja Joseph of Canara bank which would show that as on 3/7/2006, there is a deposit of ₹16,71,470/- and as on 31/7/2006, the balance in the account is ₹16,97,144/-. Ext.A16 is an extract of the statement of account of SB Account No.58861 of Canara Bank, Changanacherry for the period from 1/01/2004 to 2/02/2005 and 1/8/2005 to 4/7/2006. The statement of account would show that this account is in the name of the plaintiff and it would show that as on 3/7/2006, the balance in his account was ₹11,16,462/-. Ext.A17 is a passbook of joint account in the name of plaintiff and Suja Joseph in Indian Bank. This is in respect of the period from 2/8/2003 till 28/8/2005 which may not have any relevance to the case on hand. Ext.A18 is a statement of account of a ledger extract from ICICI Bank, Changanacherry which is relating to the account period 1/2/2006 to 31/7/2006. This document would show that as on 31/7/2006, the balance amount lying in the account is ₹3,99,801/-. Ext.A19 is a ledger extract of Canara Bank in respect of SB Account No.28349 in the name of Suja Joseph and plaintiff. This is only a statement of account corresponding to passbook Ext.A15. The period of statement of account is from 1/7/2004 to 4/7/2006. These documents would apparently show, though not specifically pleaded, that the plaintiff is in a position to raise sufficient funds for acquisition of the property as well by paying the balance sale consideration and for registration of document.

20. The Court below has placed much reliance on Exts.A9 and A10 series and Ext.A11 in order to believe the genuineness of Exts.A1 to A3. As already indicated Exts.A9 and A10 series and Ext.A11 cannot be treated as evidence before a Court of law. Therefore, the case has to be considered in the light of the other evidence. As already indicated, though the signatures in Exts.A1 to A3 are admitted and the probability of defendants signing the same for availing an amount of ₹15 lakhs is proved, the documents were not intended to be acted upon as agreements for sale. The very fact that three separate agreements had been executed on the same day with three separate set of dates indicates the fact that the arrangement between the parties was only a loan transaction. Otherwise, there is no reason for such a long period to be specified for complying with the terms of contract. As far as the seller is concerned, under normal circumstances, if he requires money, his intention is to sell the property at the earliest and receive the balance consideration. If the parties intended that the time for performance has to be after one year, there was nothing wrong in stating so in a single agreement. It is also necessary to note that neither of the parties had sought for performance until Ext.A5 was issued by Sri.K.C.Thomas on 27/6/2006.

21. The Court below found out certain circumstances to accept the contention of the plaintiff. One is that plaintiff would not have produced all the three agreements and production of those agreements itself would prove that those documents are genuine. We do not think that this is a justifiable proposition. The payment appears to have been made prior to 27/3/2004. So if the plaintiff produces only the last agreement, he will not be in a position to prove the payment of ₹15 lakhs prior to 27/3/2004. Therefore, production of all the three documents was necessary for the plaintiff to put up a case regarding payment of advance and the execution of agreements. Another circumstance considered by the Court below is that only the first defendant had been examined in the case and there is no evidence to prove that any money had been repaid during the interregnum period. We have already observed that the parties started agitating their rights based on the aforesaid transaction only by Ext.A5 letter issued by Sri.K.C.Thomas to which a reply had been sent by the defendants to repay the entire amount with interest and to settle the issue. We have taken this view on account of the contention that the arrangement between the parties was only a loan transaction and the money had to be paid after a specified period. According to the defendants, there was no offer to pay money immediately and the defendants only offered to pay it with interest at the bank rate within two years. Another circumstance pointed out is that the defendants had utilized the money received from the plaintiff for purchasing a house at Trivandrum. There is no dispute about the aforesaid fact. Even according to the defendants, they required money for purchasing a house at Trivandrum and they were in the look out of a loan which was given by the plaintiff. Another circumstance pointed out is that under normal circumstances, the defendants will not sign blank signed papers. Probably it is correct. The defendants would have signed in the document itself. But, the intention of preparing the documents is only to get a loan and not for sale of property. The Trial Court further finds that no legal action had been taken by the defendants having knowledge about the fact that signed stamp papers were misutilized by the plaintiff. First of all, they are relatives and the defendants owe money to the plaintiff. Secondly, we have already found the genuineness of the agreement, of course, on the basis of the preponderance of probabilities. Even though the agreements are found to be genuine, while exercising discretion, the Court will have to consider under what circumstances the agreements came to be executed. This aspect of the matter has been completely ignored by the court below. Another aspect relied upon is that the second defendant did not enter the box. Second defendant is the wife of DW1 and no one has a case that she was present at the time when the document was prepared. Nobody disputes her signature. The contention is only that they had signed on blank stamp papers and blank papers which we have already found against them. Therefore, her non examination cannot be characterized as a reason for allowing specific performance. Finally the Court had relied upon the e-mail communications which we have already found to be not in accordance with law.

22. When a Court considers a suit for specific performance of a contract for sale of immovable property, once it is found that the agreement is genuine and the plaintiff had pleaded and proved his readiness and willingness to perform his part of the contract, it is upon the Court to further consider whether the discretion to grant specific performance has to be exercised in terms of S.20 of the Specific Relief Act. In order to exercise the discretion to grant specific performance, the Court will have to consider the entire factual aspects involved in the matter and while considering the same, all the circumstances which may give some doubt in the mind of the Court regarding the genuineness of the transaction and the probability of the case set up are also to be analyzed. As held by the Apex Court in Zarina Siddiqui (supra), the discretion is to applied on well settled principles. Any doubt in the mind of the Court regarding the transaction will tilt in favour of the defendants. In the case on hand, the factum of execution of three agreements itself is unheard of. The contention that it is to avoid registration cannot be believed. The only inference that can be raised is that the plaintiff wanted extension of time so that he gets an option to make arrangements for purchasing the property only by 31/7/2006. Apparently there is neither any pleading nor any legally acceptable evidence available before this Court to infer under what circumstance the time was extended by execution of separate agreements until 31/7/2006. Court below has therefore committed serious error treating the circumstances against the defendants to grant specific performance. In fact, the Court below ought to have ventured to find out whether there are any circumstances in favour of the defendants to deny specific performance as provided u/s 20.

23. In the light of the aforesaid finding of ours, we are of the view that the judgment of the Court below is liable to be set aside. In the suit, plaintiff had only sought for specific performance. No alternate relief had been sought for. Therefore, under normal circumstances, plaintiff cannot even seek for return of the advance amount.

But having regard to the fact that defendants have admitted that they are ready and willing to pay the amount advanced with interest at 12% per annum, we are of the view that plaintiff can be given a decree for recovery of the said amount and accordingly, this appeal is allowed as under:- 

(i) The decree and judgment dated 30/7/2010 in OS No.295/2006 is set aside.

(ii) The suit is decreed permitting the plaintiff to recover a sum of ₹15,00,000/- (Rupees Fifteen lakhs only) with interest at the rate of 12% per annum from 27/3/2004 till realisation along with cost of the suit and the cost before this Court.

(iii) That the decree shall be a charge over the plaint schedule property.