Good evening friends. And while they were vacations in Madras in Madurai, we thought why not bring a speaker who can hammer his points, not only in the court, but also nail them in the right perspective so that you can understand things in the issue. Though the sessions name today is probably defense and it pitfalls the suits for specific performance of contract. But, once we have Mr. K. Prabhakar and advocate from Madurai Bench Madras High Court, we know that all those pitfalls, if you have heard it, they won't be while you are drafting them and while you are arguing them. Because he ensures that if they are bulldozed properly, the road is smooth and you can win it properly. And without taking much time, since we all know that it's a weekend and that too on a Sunday and when vacations are about to end in down south though our vacation will start in the month of June. I request straight away Mr. Prabhakar, we are waiting for your session and show the defences which can be all taken across. And we will share the notes given by Mr. Prabhakar on the website subsequently. We will convert it into a VPD of the previous webinar as well as this webinar. So do stay connected with us on the website and do subscribe to the channel of Beyond Law CLC so that you can see how knowledgefully Mr. Prabhakar shares his knowledge amongst with the host of other resource persons we try to bring not only from India but from the pan world. Or do you Mr. Prabhakar? Thank you because bringing my friends, the amendment to the specific relief act 2018 makes it all the more difficult for a person to defend a suit for specific performance. Originally there was section 20 where all kinds of hardship can be taken into consideration. And in many cases where it has been pleaded or not, the court at the room or the leverage to dismiss the suit if he finds that there will be a hardship if a suit for specific performance is degraded in favor of the plaintiff. Once this section 20 has been substituted by a new section and hardship has been almost taken away. The discretion which was with the court is gone. Discretion which it could have exercised in favor of the defendant is no longer available. Then what is the scope available for a defendant to defend a suit for specific performance of an agreement of sale? The age-old defences are manifold. We can say that once the agreement is not to be non-aspective or there was no intention to execute the contract. Three, there was a loan transaction. Four, the plaintiff is not ready and willing. Five, the contract as put out by the plaintiff in the plaintiff is a variance with what has been agreed upon by the parties. These are some of the defences which are still available. If you take what were the defences available, one is under section 16, 2 and 3. Second, section 17, section 13 and section 19, 21 and 22 with regard to the compensation and damages. As well as in case of an undivided interest in respect of a property. Now, well, first we'll take the radiant willingness is always read in conjunction with the time stipulated in the contract. If the contract stipulates some time, one is expected to perform within the time contemplated in the agreement. Are soon thereafter he has to approach the court. But under section 55 of the contract act, time is not the essence of the contract in case of an immobile property. If time is not the essence of the contract, can a defendant come forward and say that not bestending the fact that he has come to the court within a period of three years. As contemplated in the article 54 of the limitation act, the plaintiff should be non-suited because he is not ready and willing. Not bestending the fact that the time is not the essence of the contract. As I have suggested the last Sunday about a year 1993 Supreme Court, a constitutional bench wherein it has been filled that there is a presumption that time is not the essence of the contract. There is also a no presumption that time is not the essence of the contract. Therefore, once the constitutional bench some 30 years ago reiterated the principle as found in section 55, one would have expected that the time as contemplated in the contract is not the essence. A person can come to the court least early but giving some explanation or justification for not coming to the court. Still he can say that he is ready and willing to perform a smarter contract. But phone here is down the lane. If I remember one of the judges who was in the Constitution bench, author another judgment. Reported in AIR 1997 Supreme Court page 1751, equivalent to 1993 SCC page 1, KS Vaidyanandam versus Vaidyanandam. And in the court said that even though section 55 says that the time is not the essence of the contract. The law says the time can be made as an essence of the contract with the parties. Therefore, what has to be done is to look into the terms of the contract, whether the parties really intended that the time should be the essence of the contract. Terms of the contract has always got a role to play in interpretation of this type of contract. The intention in respect of urban property or a commercial property may be different from an intention to purchase and agriculture properties. But what prompted the court, one of the judges was a member of the Constitution bench in 1993 to have a different look in 1997. Maybe the opening up of the economy in 1991-1992, rise in GDP, rise in income of the people. And then the sanctity of time contemplated in the agreement because they squirted the prices of the real estate market. The court had probably the judges in 1997 to have a real look even though the wording is not there in the judgment. They would say that the intention has to be gathered from the document and the conduct of the parties. And subsequently, there was another judgment in 2011, namely of his Latship Ravindran in Saradamani Kandappan v. Rajalakshmi, AAR 2011 Supreme Court, page 3, 2, 3, 4. Equal in 2011, page 12, SCC, page 18. Varanasi's Latship Ravindran would say that we should have a real look at the law of the section 25 itself. What you would say that the law once settled by the court may not be good when the society changes after some years. That's what the Latship Ravindran said that after 1993, there was enormous change in the attitude of the people, change in the society, perception with regard to the property, the commercial attitude of the people. This all has to be taken into consideration. In fact, he would quote some judgments of the Supreme Court as well as the other Privy Council also stating that in such a case, it's not necessary that we should be bind to the precedents. Rather, we should be aware of the reality what is happening and to temper the law according to this present day society. Varanasi would say time can be construed in certain circumstances as the essence of the contract. That is the real turning point. And then after 2011, we can say that the courts have construed this ready and willingness in a much stricter way in a sense. Even if you come to the court within one month, two months after the time period lapse, the court requires the party to prove its ready and willingness. Therefore, the first difference available in a suit for specific performance in so far as the ready and willingness is concerned, time, expose the time. If the plaintiff has not come to the court immediately and if you think that the agreement is true, of course, and you want to regale out of the contract, the one sure shot is to go before the court with all fairness, honesty and integrity. That it is, I have entered in an agreement on certain circumstances. This man did not fulfill his obligation within the time contemplated. I was very serious about the time for the period from the time fixed in the contract or stipulated in the contract and the time when the plaintiff comes to the court. Makes a big case out of it. Took a magnifying glass and elaborate this as much as possible in the pleading and let in oral evidence and tried to cross exam the plaintiff why he has not come to the court immediately. Thereby tried to expose the plaintiff that he could not have been ready and willing to perform his part of the contract. Therefore, my first submission is in a defense. Always possible because in many a case as a lawyer practice in the trial court. Nobody has come to the court the next day after the time stipulated the contract expired. It took some time. Therefore, you try to take advantage of this time. Magnify it manifold. Try to tell the court that this time is very vital and he should have followed it. He has not followed it. Therefore, he is not entitled to a degree for specific performance. I tell you that once this hardship is removed from section 20, it is always possible for the court or to convince the court rather that this ready and willingness, even though the government is not required but truth is still required. This ready and willingness will play a major role. There will be a shift from the perception of the court what has been done all these years and what will be done after the amendment in 2018. Therefore, once the court has been pushed to the wall, but they don't have the discretion which was available before 2018 and the court finds that the plaintiff is not genuine in coming to the court a bit late or late. Then it will try to exercise a discretion which was not available under section 20. By fitting in the case under section 16-3 in a much wider manner, two months, three months time delay which was glossed over all these years probably will assume great significance after 2018. Therefore, try to take inspiration from Sarada Manikandarpan's case of Slashiv Praveendran, try to project if there is a delay. That is one of the sure way of defending a suit for specific performance. The second day, we all take into consideration, once an agreement has been filed into court by way of a suit for specific performance, we take the plea that it has not been executed by the defendant or there was an honest fact and that there was no intention or the character of the document is different from what has been intended to be executed or the consideration has not been passed or the plaintiff has filled up the blank papers available with him. These are the some of the differences which you usually take but when you try to take these types of differences be aware don't take some inconsistent pleas even though as a defendant you are supposed to take inconsistent pleas as many inconsistent pleas as possible. It is very difficult to convince a court to try to shoot from all angles rather pin down the plaintiff to a certain defence when you are not sure of one or two defences which are not inconsistent and which will gel well with your overall defence. It is always better to take one or two pleas and try to focus on such things. I have come across in a trial court, they are personally denying the execution and they will say that I have been forced or requested to execute the document. Don't take this type of inconsistent pleas, the court will not believe thinking that the defendant after all after executing the document is trying to reveal out of the contract by taking all types of pleas and sendries. If you are caught sure that you have not executed the contract stick on to that. If you want to feel that he has entered in the contract and this contract for some other reason ought not to be enforced in a court of law then for certain reason don't try to focus on the execution. Only when the execution can be non-execution can be pleaded in cases where that the defendant or the vendor did not execute the contract. Two, he has been acquiesced to execute the document. Three, the blank papers have been filled up. In the first case or the first in case of an execution or the non-execution the burden is always on the plaintiff to prove the contract. But in many cases we find that the contract is true in accordance with the law because one of the witness always will be a witness or the ally of the plaintiff. He will come forward and depose. The difficulty after 2001 amendment of the civil procedure is this. Before 2001, the pushing of filing a chief affidavit by way of proof of chief examination was not possible. Therefore, when a witness is brought, when the counsel for the party cannot lead the witness it is very impossible for him to bring out the entire terms of the contract by asking him questions. The witness in many of the cases would labor even in the chief examination. But unfortunately that has now been watered down after the introduction of the chief affidavit where the chief affidavits are drawn by the lawyer and therefore there is no question of execution not being properly pleaded or deposed before the court. I have come across some of the cases where the courts have taken into consideration the chief he has spoken about the execution that ends the matter. At the other end of the spectrum, there are some judges who say that the please don't touch the chief. The chief is all that are the lawyers, the engineers, the ingenuity. Therefore they go into the cross examination what has been stated by the witness. Even though the second part or the later part is more correct to assess the witness, the point for consideration is once that the affidavit has come into play the burden of proving the execution of the document has almost vanished because the proof you would have covered everything unless if the witness is good enough unless you are in a position to expose the cross examination which in all cases may not be possible. If the execution of the document is denied, then the challenge can be made by punching a hole in the evidence of the witnesses or by taking the evidence of an expert as a secondary evidence which is also possible to compare the signature found in the document. At least in case of an unregistered document, a comparison with an expert will tilt the scale. Even though in some of the cases including that of Punjab and Aryana, I call I have said that even in case of an unregistered will somewhere on judgment 1992 or 1993 of the Punjab and Aryana I call where there are two witnesses have been examined in case of a will and an expert evidence came out of the different finding that the signature differs. The court said that the evidence of the witnesses are trustworthy and creditworthy. It is a primary evidence that has to be taken into account and the evidence of the expert fails insignificant because it is a secondary evidence. It cannot replace the primary evidence. Therefore, once you want to challenge the execution, the execution you focus on execution. You focus on that you have signed the document blank paper. In two cases then the second case if you say that I have signed the document in blank even though the execution has to be proved by the plaintiff in one or two cases it has also been stated in the Kerala High Court that if you affix your signature in a document but stating that you have affixed the signature in a blank paper then you have to explain your role or a conduct. How come you have put your signature in a blank paper? It becomes a well-nigh impossible as a difference to prove. Therefore, be careful unless and until you have got materials to suggest namely the facts and circumstances like in many cases where checks have been taken in a blank. The point is once you admit the signature there are two things you have to prove as a defendant. One is that you have signed it in a blank paper. The second is how the custody of the document went to the plaintiff. It's very difficult to insert and circumcise unless there is an exceptional case is made up and therefore be careful about taking such a plea unless you are caught short. The third is fraud, undue influence, coercion, equivalent to dearest misrepresentation. These are some of the pleas available under section 16 where you can bring in some material to prove that you have never intended to execute the contract you have been forced to do it or the plaintiff has exercised an influence dominating your bill called as an undue influence etc. Taking the problem is once you take the stand that the document has been executed by fraud because the provision is there in the specific relief act also. Where if it is a variance or if there is a fraud then section 16B where the fraud is also stated you have the burden is upon the person who makes an allegation that it has been obtained by fraud or coercion. Once you take such a stand the plaintiff will be relieved of the proving the execution of the document. The burden shifts to the defendant to show that it has been under certain circumstances it has been obtained in the fraud or coercion unless you have got a material don't take such a plea. If you have got material plead under order 6 rule 4 of the civil procedure court if you want to take a stand that the document has been obtained by fraud you must plead the details of the fraud what is the fraud committed. Nearly a single sentence in the written statement that there is a fraud in executing the document may not be enough the circumstances under which the fraud was committed what is the fraud in any case. A fact which was known to the plaintiff or not known to you and which has been suppressed thinking that it is a fact that you have executed a document but it was not a fact after all these are the various arms of the definition of a fraud. Again choirs here you are with the full conscious you are signing the document but under a threat or pressure from the other party what is the pressure what is the threat whether a police complaint was given immediately what is your reaction after executing this document these are things which you have to plead in the written statement before ever you can take the stand forward before the court of law. The point is this the point is this it is a plea which has to be taken in the written statement the next point is nonest factum what is a nonest factum? Nonest factum always is an exception to section 92 of the evidence act fraud is an exception nonest factum or the character of the document where I never intend to execute this type of a document so long as these types of unregistered documents are obtained and so long as the section 49c gives a leverage for a party to follow suit for specific performance on the basis of an unregistered agreement of sale or even an unregistered sale to be consumed as a contract of sale as held in Kalar Devi's case in 2010 by the Supreme Court in fact from so called judgment reiterated being in force for more than a century the point for consideration is that if you take such a stand you should be in a position to come forward with the detail of the nature of the document you intend to execute if it is a registered document then the problem will be insurmountable if it is an unregistered document probably you can say because you have not been to the register probably at your home or in a village or under a tree you would have executed a document and you went for a loan and the fellow has obtained an agreement of sale and this part of the country now moving so fast we have come across so many cases where for a loan a party is not getting an agreement of sale any longer it takes up a sale deed itself and then it will cancel the sale deed once you pay the money with the interest there was a period they took an agreement of sale for a loan and now with all kinds of impediments put in the spokes of the wheel of these people to realize the loan with the exorbitant interest they thought it would be now to take a sale deed itself once the financial institutions have taken over the lending in all parts of the country including remote parts and which requires some security there are always people to lend money to take advantage of the innocence of the parties and then to take the property itself there the role of a lawyer comes into play to lift the wheel to find out what is the real nature of the transaction whether it was a loan transaction normally an agreement of sale a major portion of the conservation is received and a small portion is left as a balance and a larger period is stipulated as a time in the contract I will give you an example suppose an agreement of sale is for 1 crore 90 lakhs is alleged to have been paid on the date of the agreement and for paying 10 lakhs they take a time of 3 years under the contract for enforcement then obviously when 90% of the sale conservation has been paid the party if he really wants to take the property on sale would have shelled out these 10 lakhs and got it therefore this period of 3 years for paying the balance of 10% will weigh heavily against the truthfulness of the agreement of sale the court will always in such cases will lean that it is more of a loan transaction that is one part of the story the second part of the story is the courts have also insisted upon even though very rarely I find it as a supreme court judgment if you say that it is a loan transaction what the defendant has done all these years suppose that the contract in assuming for a moment a period of 1 year or 2 years is fixed in the contract and you want to take advantage of this as stating that it is a loan transaction if I were to be a judge I would judge it from two angles one, what is the period fixed and what is the balance consideration is to be paid if the balance consideration to be paid is small and the period is large it points towards a loan transaction two, from the angle of the defendant if it is a loan transaction otherwise whether he has made any attempt to repay the money I have rarely come across a case where a person after executing the agreement of sale taking a plea of loan transaction attempting to repay the money they are like the roof hole in the law the courts have always if you find that it is a loan transaction it allows a refund and dismisses the suit of the very performance the point for consideration is that in terms of a loan transaction the loan which has been obtained by the defendant he should repay it similarly if the court finds that the agreement is not true and the plaintiff says that he has paid money or the defendant says that he has paid the money that money has to be returned for which we don't make any leverage in the act therefore, when you take up a plea of non-aspective is it required a challenge by way of a suit or can you take it as a defense in a suit for specific performance once a non-aspective is pleaded of course subject to prove there is no need for you to file a suit to set aside the document because once you say that there is a non-aspective there was no intention to execute the document then the document is personally void your void document needs to be set aside it can be taken up as a defense in a suit or even in a collateral proceedings the character of the document has always been dealt with by this Honourable Supreme Court in Ninhava v. Bhairappa Siddha Pa Ninhava v. Bhairappa Siddha Pa year 1968 Supreme Court date is 9.56 year 1968 Supreme Court 9.56 there are the landmark judgements rather the Lordship would say that if the character of the document intended to be executed is different from the document obtained then there is a non-aspective the document is void your party need not challenge the document by filing the suit or to file a suit to set aside the document the next case on the mass page an inoperative document a very old case is also there Bethapuramal v. Munia and Iserway 35 Indian appeals 98 there are the judgements of the Pravee council Bethapuramal v. Munia and Iserway 35 Indian appeal report page 98 there are also two other judgements Grama Panchayat of village Nauka v. Ujarsing Grama Panchayat of village Nauka v. Ujarsing AIR 2000 Supreme Court 3272 AIR 2000 Supreme Court 3272 and another judgement of his lordship Simna and if I remember just is Radha Krishnan Prem Singh v. Bill Parr reported in 2006 Supreme Court I am not having it but I recollect it from memory Prem Singh v. Bill Parr 2006 Supreme Court where this very same principle has been reiterated in fact in one of the judgements reported in last month of the AIR also the judgements stating that the document which is a sale deed if you say that the document is void it need not be set aside therefore if you want to take a plea of honest factor or a plea of fraud undue influence coerce there is no need for you to file a suit separately you can challenge it the document by taking up a defence but the problem is under the contract tax one of the provisions says that the document which has been obtained by fraud undue influence misrepresentation mistake misrepresentation not mistake misrepresentation these are all voidable documents it is valid till it is decided to be void that declaration enough by way of a separate soul the court can always say when a defence is taken the court can always come to a conclusion that the document was obtained or undue influence or coerce therefore it is it cannot be enforced therefore be sure you can take a plea as a defendant but once you take a plea come out of the detail detail about the nature of fraud coerce and undue influence etc to convince the court then the other important factors is normally the contract is a contract of bona fide or a uber in a fight in good faith where a person knows a particular fact and if he suppresses the same and enters the contract to make huge money then the courts will tell that the purchaser or a purchaser is not entitled to a specific performance because the old judgments are available one of them is Ramakrishnan Naidu v. Spaniyappa Chettiar Ramakrishnan Naidu v. Spaniyappa Chettiar A.R. 1963, Madras page 17 A.R. 1963, Madras page 17 where the lordship would say that at the time of entering into a contract the plaintiff knew that some irrigation projects is coming up in that particular area once that irrigation project comes up there will be tremendous or humongous water resource that will raise the price of the property this factor was known to the purchaser but not to the seller the seller admittedly entered into a contract he did not force the contract to happen the plaintiff or the purchaser who saw that what is going to happen subsequent to the agreement but at the time of entering the judgment the court found that this is a special knowledge available to the purchaser he did not disclose to the plaintiff and therefore he tried to make a windfall which is not possible under law this type of agreement cannot be enforced now we have got so many issues across the country that you are falling asleep a bus stand is coming up an airport is coming up then the property price will shoot up like anything then these are the factors which has to be taken into and you can very well take a difference if you are not sure that you are not aware of this there was a raise in the price but I am not sure after 2018 whether such a plea can be taken as a difference because these types of difference a factor which was known to the purchaser or known to the unknown to the vendor can all be fit into section 20 where it is inevitable or unfair but once this section 20 has been taken out of the statute thinking that this is too much of a discretion given to the court that leverage is more longer available for the court to deny or refuse specific also quite an unfortunate situation even in the very wording of section 20 may not be required as output is utility there should have been some discussions available to the court instead of tying the hands of the court that once there is an agreement and the plaintiff has proved is ready and willingness no other option granted an unwilling party or unwittingly a person who has entered into without knowing all these factors will be trapped whether there is any escape route for this type of contract section 16 B I will read that section 16 B personal bars could leave specific performance of a contract cannot be enforced in favor of a person who has become incapable of performing violates any essential term of the contract that on his part reminds to be performed or acts in fraud of the contract or willfully acts in variance with or in subversion of the relation intend to be established by the contract there are four parts I will discuss one is who has become incapable of performance a civil death or a person who has become insane are incapable of executing your window is open or how is it the window opens lot of crackers oh my god pair with me for two minutes section 16 B who has become incapable of performance or violates any essential term of the contract that on his part reminds to be performed or acts in fraud of the contract or willfully acts in variance with or in subversion of the relation intend to be established by the contract the opening available to a different date is this acts in fraud of the contract you see that if you are not aware of a particular thing which is available to the client then you can very well explore this and say that it was in violation or it is a fraud of the term of the contract or willfully acts in variance or in subversion of the relation intend to be established subversion of the relation how it will happen these are things of which I am pretty sure after the 2018 amendment the court will look into in case where the court can or should not grant a degree for specific performance then the court has to explore the possibility of doing it or finding the ways and means to deny the specific performance under section 16-3 which is still available which has not been explored because of section 20 available to the different date therefore my view is if you want to take a difference to defeat the right of the do it by invoking section 16-B and section 16-C which is already in a willingness the next part which I will Dhamma Charla Anjane Lu was a Dhamma Charla Venkateshya Shaiya AIR 1987 Supreme Court page 1641 1641 there is an interesting case where after the agreement was entered into the defendant invested money in the property and as came out of the superstructure involving huge outgo the court said that once this type of superstructure has been made by investing huge money then the plaintiff is not entitled to the degree for specific performance but is only for compensation I doubt whether this judgment will be followed in future because we have moved once hardship is taken away whether this type of intelligence is available to the court after 2018 team but anyway this 2018 amendment is subject to whether it has got a retrospective effect or a prospective effect is still open therefore all pending cases the question of invoking section 20 will be available if you have taken a plea in the written statement and kindly remember that once you say that the document is sham and nominal or a rank forgery then the question of taking a plea of hardship doesn't arise one is a Leeladhar v. Vijay Kumar AIR 2019 Supreme Court page 4652 Leeladhar v. Vijay Kumar AIR 2019 Supreme Court page 4652 where the lordship would say that sham and nominal and section 22 farmers will not go and demand the next point is the inadequacy of conservation is also whether it will be available after removing section 20 I am doubtful but the court said that even under the old act or the under minted act mere inadequacy of conservation is not a bore what is a bore is if it is grossly inadequate then the party cannot ask for enforcement what is grossly inadequate that was the discretion available to the court suppose you want to purchase the property by entering into a contract which is only one fifth of the value on the property it can be called as a grossly inadequate even though the law says that merely because an inadequacy of conservation is no ground for denying specific performance the courts have held under the under minted act if it is grossly inadequate then it can be denied but whether this is open for any discussion after 2018 I am doubtful but for the law as it existed before 2018 there is one judgment which I would like to refer Madhusudanan versus Kerala Kumudi Private Limited Madhusudanan versus Kerala Kumudi Private Limited AAR 2004 Supreme Court page 909 AAR 2004 Supreme Court page 909 there was a case where there was a inadequacy of conservation the court said by reversing the judgment of the high court the mere inadequacy of conservation is no ground for denying specific performance similarly in the very clear the court has observed that specific performance for enforcing an agreement for partition is maintainable in respect of immobile property an agreement for partition this is also possible have a look at section 22 specific performance with the refund partition possession in fact in the last Sunday when I took it for the plaintiff I suggested a person can follow super specific performance against X and also for partition along with that against Y and Z who are the court shares along with the X therefore that is possible there are two provisions one is section 13 and another is section 17 of the act section 13 speaks about the role of the purchaser section 17 speaks about the role of a vendor where there is no title in respect of the property for the purchaser for the vendor to enter into a contract and still enters into a contract whether that contract is enforceable section 13 would say that it gives some instances one of them is if the vendor has subsequently acquired title to the property or where a concurrence of other owners of the property is required and whether and if he can be compelled to bring them on board three that the vendor agreed to sell an unencumbered property subsequently find that was an incumbrance he can be directed to clear that incumbrance and four where he choose for specific performance and it suit his dismiss on the ground of his want of title or imperfect title to return to his deposit if any with the interest there on this four are 13D speaks about a case where the defendant has no title he enters into a contract and when the court cannot give him a degree for specific performance the court can direct the plaintiff to return the money to the defendant as it require any plea the point is therefore under section 13 the defect in title or imperfection in title by itself may not disentitle the plaintiff of the purchaser to sue for specific performance it is always possible for him to get a degree I'll straight away give you a very interesting judgment which is under the old law before 1963 Baluswamy Aiyar versus Laxman Aiyar Aiyar 1927 Madras page 172 a full bench judgment Baluswamy Aiyar versus Laxman Aiyar Aiyar 1921 sorry 1921 Madras page 721 full bench that it was a case of an agreement entered into by a person who is only a co-sharer of the property whether this contract can be enforced or not was a question which has been posed whether he can be compelled to bring anybody else who are other co-sharers of the property the court ultimately held that this is not a contract to be executed in full if you want to execute the document or compelled the court to compelled the party to execute the sale deed in respect of a portion of the property then you should come to the court under the old law because in 1963 the part performance has changed because of these types of judgments under the old law what you have to do is pay the conserving in entirety and take the share which a purchaser will do suppose he has got one of the the front-end of the vendor has got only one fourth share in the property under the old law he is not entitled to sell the entire interest but if you want to purchase pay the entire money as agreed and take the one fourth interest and work out the remedy by way of a partition a judgment which according to me is one of the reasons for amending the act in 1963 now whether an undivided interest still can be a deciding factor in denying the specific performance I will take into account some of the judgment in the earlier class namely Kartar Singh case in year 1990 Supreme Court page 854 and then when a matter was placed before a larger bench where the three judges in 2005 Surinder Singh was as Kapoor Singh discussed the issue but did not laid out the law went on facts and he can be directed to executed contract in respect of ish share but subsequently a very interesting case came up Pemada Pramakar versus Youngman's Association 2015 three SCC pages 56 pages 556 subject to correction Pemada Pramakar versus Youngman's Association there were three vendors in the case but only two of the vendors have signed the document the court said there is a defect in title but invoked section 17 not 13 in Balasamy ISK the court considered that the imperfection or the defective title and said that if the purchaser is willing to take the property with the imperfect title or defective title then the defendant or the vendor cannot deny the execution therefore if the purchaser is willing to take up the property with all the problems he can do so and he can also mold his relief by the four classes under section 13 as we have cited whether the property or if he can be compelled to bring the other kosher and the agreement etc but if it is not possible and the the court in Pemada Pramakar instead of invoking section 13 invoking section 17 and denied the relief of specific performance on the ground that only the two of the vendors out of the three who are entitled to the property and therefore this contract is not enforceable but quite unfortunate in a sense as section 17 has been invoked section 17 does not come in the way of a purchaser section 17 is against the vendor if a vendor say that I am the owner and comes to the court if he wants a specific performance then if he is not the owner the court will deny the specific performance one minute I will read section 17 contract to sell or let property by one who has no title or not specifically enforceable contract to sell or let any immobile property cannot be specifically enforced in favor of a vendor or a lesser it cannot be enforced in favor of a vendor if a vendor comes to the court by way of a suit for specific performance may ask me one question there any person a vendor comes to the court asking for specific performance I will tell you one reason why he can come to the court suppose in 2018 they have entered into a contract for purchase of one property for one crore because of covid pandemic 19 the value has come down and now the value is only 30 lakhs the purchaser doesn't want to purchase the property the vendor can file a suit for specific performance directing the plaintiff or directing the purchaser to take the property that is possible in such a cases when the vendor wants to enforce an agreement of sale or an agreement of contract and if he has got no title to the property or absolute title to the property the court can refuse specific performance because this is a man who has represented the owner and this man comes to the court and if ultimately file the suit barriers no title to the property that property cannot be burdened on the purchaser you can't burden a purchaser an unwilling purchaser to purchase a property who is not the owner whereas if the purchaser wants to take the property with all imperfections he is entitled to do so under section 13 therefore my point for consideration is in Piyamrata Prabhakar's case the court ought not have taken section 17 it is one thing to say that it is a case which can be fitted under section 13 but still section 13 doesn't deny a purchaser to purchase the property it is always look out if he is willing to take the property which over which the defender or the vendor has no absolute title it is look out that is what the judgment of this lawsuit in the full bench Balu Swami Ayer v. Rexmana Iyer then coming to some of the minor defences where if the agreement of sale is not on a stand paper the court will look into the jaundice this is not a contract obviously the court will see that the the parties would have filled up a document in a blank paper signed blank paper Nanjapa v. Swami Ayer 2015 Supreme Court page 3389 Nanjapa v. Swami Ayer 2015 Supreme Court 3389 if an agreement of sale is not on a stand paper the court can refuse to enforce a specific performance then the court can also refuse if the original has not been filed into court original of the agreement of sale in very interesting case the plaintiff comes forward with the case that the the agreement of sale was entered into by the defendant and the defendant has taken the vendor has taken the original I was given only a photocopy I am finding the photocopy yeah very recent judgment in Atimuthu Manoharan v. Stilagavadi Atimuthu Manoharan v. Stilagavadi 2021 2021 to MLJ page 51 the court or the Madras High Court has held that normally as a customary practice the purchaser should be holding the original agreement of sale if he makes an allegation that he is not having the original then it is not a grown for granting a specific performance now coming to article 54 of the Limitation Act article 54 will give you a difference there are two types if there is a time fixed under the contract then the three years period will kick in from that day when the time stipulated in the contract lapses if no time is fixed under the contract from the date of refusal the time will start that is the second part of the article in the third column therefore once there is a time stipulated as I have said focus on readiness and willingness if there is no time stipulated a person can come forward by issuing a notice demanding execution of the sale deed and then you will say that I have come to the court immediately God against that namely whether this type of agreement would have been executed by a party with the full consciousness whether you would have intended to execute such a type of contract or open contract there may be circumstances under which a person would have received the entire conservation and had executed an unregistered sale deed or an agreement of sale that whenever it is demanded I will come to the court and execute it off me unless this is there if the entire conservation is not paid or at least a major portion of the conservation has not been paid then it is a definite pointer that this agreement has to be seen with the suspicious circumstances take the route under section 16B to deny specific performance two judgment on the score Baburam versus Durga Prasad Baburam alleyes Durga Prasad versus Sri Indra Palsing Baburam alleyes Durga Prasad versus Sri Indra Palsing KIA 1998 Supreme Court page 3021 where the lawship had taken the second part of the third column namely if the contract does not speak about any time limit under the party refusers then the time will start from the day when the contract was when the enforcement was refused therefore God against it the second part will kick in in all cases where the major major portion of the conservation is paid or the entire conservation has been paid then see with the links or a magnifying glass whether this conservation has really been passed if it is not so attack the agreement that the conservation has not been paid as stated in the agreement then allow the plaintiff to prove that the conservation has passed as stated in the agreement last to the point is whether the contract which is vague can be enforceable in all not in all circumstances a vague contract cannot be enforced sometimes the contract will be vague with regard to price contract will be vague with regard to the property if the vagueness is or the indefinite's uncertainty is with regard to the property it is always possible for the party to bring in evidence or a collateral evidence to show that the parties are really intended to enter into a contract in respect of this property in many a case in a village the property will have a name a name would have been incorporated in the agreement rather than the survey number or extent that can be established thought against it or if the price has not been fixed then the question of enforcing such a contract does not arise straight away there are two judgments one is Paneer Selvam versus Bayleys AAR 2006 Madras page 242 ascertaining property can be made by other evidences AAR 2006 Madras page 242 but another judgment of the very same high court in AAR 1927 Madras page 513 1927 AAR Madras page 513 Secretary of State versus Wolcott brothers that was a case where rate could not be ascertained the price could not be ascertained the consideration could not be ascertained if the consideration cannot be ascertained then this type of agreement cannot be enforced the last of them the repudiation of the contract within a stipulated time what will be the consequences suppose the contract says within three months you have to enforce one of the parties within the period of three months says that the contract is bogus and as a defendant you take a stand in the at the time of giving a reply or something like that your party says that the contract is bogus fraudulent cannot purchase within that stipulated time come forward the suit for specific performance or art in such a case the remedy available for a purchase immediately is to follow suit for compensation or still if you want to come forward with a suit for special performance he has to wait for the period contemplator of the contract to lapse and then to follow suit but in such a case the readiness and willingness has to be proved by the plaintiffs straight away an interesting judgment Jawaharlal Vadwa versus Hari Prasad Chakra Matthi 1989 one SCC page is 76 1989 one SCC page is 76 there are three judges of the Honorable Supreme Court came to the conclusion that if you once there is a repudiation of the contract within the stipulated time the only remedy available to the purchaser is to follow suit for compensation but if you want a specific performance wait for the period of three months comes a specific performance wait for the period stipulated to lapse and then follow suit for specific performance if you offer the second course then he must prove his ready and willingness therefore in such a cases what is the option available for a defendant he can always come to the court and say I have repudiated the contract two months before he never exhibited any willingness how this willingness can be done after the repudiation immediately deposit the money or send the money balance consideration or say that I am ready money is available with my bank etc. these types of ready and willingness should be treated by the plaintiff and group this is the loop or which will be available to the defendant from the date of repudiation to the date of the filing of the suit the readiness can be challenged ultimately the refund of the compensation which has been sought under section 22 or 21 which has to be considered by the court read with the section 19 my point is in all cases where the party seeks a compensation he can seek a compensation under section 20 in two cases two instances where if the court designed the specific 22, the court designed the specific performance ought not to be granted but there is a contract within the parties which has been broken by the defendant then the plaintiff is entitled to compensation for the breach and award him such a compensation this will fit in in cases where the plaintiff is as a purchase not ready and willing to perform his part of the contract the contract is enforceable but the section 22 says where the defendant has broken the promise only in such a cases the compensation is contemplated in section 21-2 therefore take advantage namely I have already broken the contract or repudiated the contract and then therefore the plaintiff is entitled to only compensation under section 21-2 of the act any such a suit the court decides that the specific performance ought not to be granted I see that this 21 originally has to be read with the section 20 and section 16C readiness and willingness and hardship but once the hardship has gone this 2020 20 subclass 2 has to be read only with the section 16-3 23 says 21-3 says if any such a court decides a specific performance ought to be granted but that is not sufficient to satisfy mere specific performance in some cases it is not in respect of an immobile property in some other cases where in the case of a work contract the specific performance may not be enough the compensation can be granted but in 21 subclass 2 will give you a leverage that once there is a repudiation of the contract the defendant can take a plea or a shelter under section 20 subclass 2 as a defendant whether you are a plaintiff or a defendant it does not matter the point is come to the court with the fairness honesty and if you place a case fairly before the court instead of shooting multiple differences immediately the agreement is not true yes I have received money as a loan transaction these types of please always unsettle the court the court will not favor a party who comes to the court not with any toothfulness this entire specifically fact is based upon fairness and lack of arbitrariness if fairness is there then there is a possibility then moving forward whether this amendment 2018 is enough it is now loaded in favor of the plaintiff namely the purchaser once there is an agreement and if this agreement is true the court is ready and willing grant him a degree whatever the hardship the defendant will undergo the went on and undergo it has all vanished whether this amendment is correct my view is that it is in a over zealous enthusiasm that this discretion has to be curtailed the legislature of the parliament has come with this instead what it should have done is it should have balanced the went on as well as the purchaser how it could have been done this three year period for enforcing the specific performance should have been reduced namely even six months where they can say a party who has approved an agreement of sale comes to the court within six months he is entitled to a specific performance otherwise he is not entitled to reduce then there is no need for us to go into the question of readiness and willingness at all once the period is reduced this ready and willingness or unpredictableness in a court of law could have been reduced that could have been the direction in enacting this once this archivist is removed the court should have removed this long period of the second the essence of the contract in respect of an immobile property why when this amendment has been made a slatship Ravindran made a hue and cry in 2011 that this should have been the parliament should have a relook on this whole procedure they should have done it if the period is reduced and there is no need for a party to prove ready and willingness give you a sanctity the contract once you enter into a contract and third this is the registration in respect of an agreement of sale has been made compulsory but 49C gives them the room for filing a suit for specific performance and the basis that this can be used as an evidence of a contract in a suit for specific performance in 2001 48 of 2001 Arun Jaitley amendment cave 53A was removed for in the case of an unregistered document at that time it was thought that the agreement of sale if compulsorily registerable is made many of the innocent people living in the rural areas will be affected now 21 years of pass now time for us to remove that in Broglie under section 49C have an agreement of sale register it file it within 6 months get a degree always try not necessarily in a court of law thank you I am just saying as to whether we have any questions if the purchaser the plaintiff says the sale agreement entered is a fraud and file specific performance on the basis of oral agreement what is the standard there can't be two agreements one either you stick on to one as a plaintiff you can't take two please it cannot be an alternative plea because once there is an agreement you say that it is a fraud then the execution is admitted then the question of falling upon a oral contract doesn't arise once there is an agreement and all the terms are reduced to writing and if you say that it is a fraud if it establishes fraud then it goes if the fraud is not there that agreement has to be enforced the question of disowning the contract and falling upon the original oral contract doesn't arise it is not possible what initiates everything and then you say that both cannot sink and swim together yeah so Harsha says what is the difference between advanced money and earnest money earnest money is for the performance that if you doesn't go through the contract then you will lose that money advance maybe is a part of the consideration itself advance is a part of the consideration whereas earnest money is a money which is paid for due performance of your obligation under the contract it need not be part of the consideration so one is a part of it the other part may not overlap Pradeep Kumar majority of the agreement of the sale at the time of giving advance not registered to register the true mountains to be shown and accordingly stamp duties to be paid and so to avoid the payment at the time of giving advance agreements would be an unregistered so for specific performance of sale what can be done all the details will be given an agreement but it will be normally on the page 200 stamp paper buyer does not insist it should be for registration under what circumstances and what is the remedy that's I have advocated that if your 49 c is removed all the things available under 49 c one is with regard to a document which requires registration not registered it can be used in a suit for specific performance and another collateral purpose once this is removed there is no point in having an agreement and not being presented in court this type of agreement are entered into by the parties to generate I would say the difference between the money which has been paid in the accounted form in cases where the circle rate is less than the market value the parties intend to go for an unregistered agreement by putting the market value and subsequently paying the money under the circle rate in respect of registration that can be reduced if you remove this clause for enforceability once it is done the question of having an unregistered document is of no use what is the difference between a registered and non-registered will in case of an immobile property sir can a person who can't go to the subregister office due to some problem is it a valid or not valid in case of will if the will can be challenged or not if it is not registered in case of a will there is no difference except for the fact that authenticity there is a presumption with regard to due execution but always in cases of a will near execution is not enough you have to prove that the testator was in a sound disposing state of mind and the attesting witnesses are attested these things cannot be presumed therefore except for this purpose of some authenticity the registration may not have any effect in case of will but your question with regard to the subregister office due to some problem is valid or not valid unregistered will is valid provided it has been attested by two witnesses always kindly remember that even though the will doesn't require attested registration the courts of law are very very reluctant to uphold a will which is unregistered and if it is draws some suspicious circumstances where the legal has been disinherited some third party has been given a property huge property not making any provision for the daughter son wife etc and if it is unregistered it will be very very difficult to prove in a court even the witness speaks therefore when vendor returns the check even in lieu of advance amount of agreement and denies to execute the CLT what is the best remedy for the purchaser for compensation or specific performance the reason at the background is the rise in the value it is always a choice available but the point is if you go for a compensation then you will go for a compensation compensation in respect of an immobile property is not in addition to if it is a work contract then it can be in addition to but always it is preferable to go for a specific performance and in the alternative for compensation there is normally people ask do we go for a specific prayer or we should always go for an alternative prayer alternative prayer is better because the law says that if the alternative prayer is not there then the court cannot grant compensation or even refund even though some of the courts have stretched the principle of equity very recently Slaship Nagasura came down heavily and he said that the compensation cannot be awarded because there is a special provision which says there should be a specific prayer with regard to compensation next is if plaintiff says fraud and never entered the sale agreement will the stand on oral agreement continue I don't think so I'm not sure which plaintiff will come to the court fraud and never entered the sale agreement and we would say there is a oral agreement I can visualize only one thing the parties having entered an agreement of sale subsequently wants to disown that and fall back upon a oral agreement if the oral agreement is more beneficial to him than the written contract when it will be beneficial to him it will be beneficial to him provided the value and the oral contract is far less is it possible for you to prove such a oral contract leave alone the question of falling a suit when there is a written contract can there be a oral contract inconsistent with the terms of the contract section 92 will be a bond then the last of the question there is a family settlement instead of will is it valid or not I'm not sure about the circumstances in which it has been asked for but family settlement is different from your bill family settlement is a settlement in which consensus is arrived by all the parties all the members of the family and it can be either registered or if it is a memorandum of according a past transaction it does not even require registration family settlement always be looked upon by the court favorably because it amicably settle all the issues between the members of the family here will come into effect on the demise of a test setup in respect of its absolute property family settlement is in respect of all the properties of the family whether it is of the test set or not therefore in both of them operates on a different field a family arrangement or a settlement or if you say that it is a settlement the settlement of what I can visualize from this question is a test set or instead of writing a bill can you execute a settlement deed a settlement deed will come into operation immediately whereas the bill will come into effect after the demise of the test set it all depends upon the wish of the person whether he wants to hold the property till his lifetime or he wants to give it now but both are valid provided the executant is entitled to execute the document namely it should be the absolute order thereof whether it is a bill or a family settlement both of them are valid yeah these were the all questions Mr. Drakar as usual everybody was glued to the seat to understand the nuances of law thank you everyone stay safe stay blessed and we will keep on sharing the webinar links to do stay connected with us and those who have missed the previous webinars they can share like and subscribe to the Beyond Law CLC YouTube channel thank you everyone


Welcome to the Knuckleheads of Liberty. Sometimes, a lot of times when we talk about markets, we're talking about in our own jurisdiction, but sometimes that gets a little bit complicated when you start talking about international trade and what kind of restrictions, if any, there should be on international trade. And this brings up a story recently, and maybe we can get the visual up on that, but it says Walmart sparks public outcry in China over products from Xinjiang. And so that's a province in China where there have been, I guess, the problems with human rights abuses to this group called the Uighurs that I guess are Muslim people living in China who are, I guess, not being treated very well by the government there. And so recently, Joe Biden actually put some trade restrictions against products coming from those countries because, or from that area, because of these human rights abuses. And so some of our big box stores that happen to be in China are following these same restrictions with some of the products they sell in China, which is what this particular story is about. So some of the people in China are kind of upset about seeing these product restrictions in the stores, but it brings up the larger question, though, too, and that's it. For libertarians, is there a situation where we should have restrictions on trade or is that something that people should all make at the individual level? Because I can certainly see there being instances where maybe there's some sort of a pollution problem where one country is ignoring whatever the pollution standards are the rest of the world and maybe they're polluting the ocean and so they get a cheaper product and then they send it here and then we all buy it thinking what a bargain, but they're actually causing maybe some kind of a pollution issue, sort of a hidden third party cost going on there. So it seems like maybe there's some situations, but it's hard to say, and of course this was a human rights abuse in this particular case. What do you guys think about that? What's the right call for when should a government get involved in international trade? Well, Simon Black had a really good article about the imbecile king, who was King Charles II, took over his throne at the age of three.  I mean, so we have an imbecile king also here in America.  So, but mainly a good thing that they did in Spain, was they restricted trade to the point that from the new world, they lost 75% of their trade. So this is nothing new, this whole restrictions on trade. So maybe they had different reasons to restrict trade, but you know, it's a recipe for fiscal disaster, and I don't care if it's, oh, what about Africa? Why are we buying these batteries that's going into all these cars that are being pushed by the Biden administration? Oh, the imbecile king to go into all these future electric cars, and of course they go into our iPhones and everything else, and yet they're mined by these little kids and under horrible, deplorable conditions and so on and so on and so on. I mean, you could make excuses to ban anything nowadays because everything comes from multiple places all over the planet, a pencil, where do you get the lead? Where do you get the paint that goes to make it yellow? Where's that come from? Where's the wood come from and who mines it?  I don't know, so you, if you're on your high horse can coerce or can have an effect on government to get rid of anything and everything, okay? You don't want your iPhone anymore? Okay, government can do that. So it's a recipe for fiscal suicide, and which we've already had way more than we need at this point. So we don't need King Charles II to drive the government over a cliff at 1,000 miles an hour, okay, we just don't need that. And so, no, we don't need that stuff. And if you want it, you've got it everywhere and anywhere.     And I understand that that little kid was probably had an even more bleak future without somebody wanting him to go down and get something of minimal value, even though it should be maybe more valuable, but hey, you know what? You gotta start somewhere. Yeah, he could have been working in a Nike factory, right? Yeah, there you go. Yeah, or he could have been starving, working on the family farm, trying to eke out some existence there too and starving to death. You know, these people think that these people live like we do and then they go into the mine, okay? It's like, okay, we all live in a three-bedroom, two-bathroom house, you know, 1500 square feet with central heat and air and we have refrigerators and a big screen TV in every room. And yet with that, we still have to get up in the morning real early and go to the mine and mine the cobalt for our iPhones.   So there you go. And so, no, we don't need more regulations. We need less. Let me ask a question then, Tim. Let me ask a question. Are you, am I understanding you correctly when you say that there are no conditions under which the government should intervene to stop, to stop trade? Yeah, I'm pretty much saying that. Okay. Yeah, you have an example. I know what you got. Well, no, what about during slavery? Should the government intervene to stop that trade? The slave trade.  No, I'm not trying to. I'm not trying to, but we...  Yeah, all my slaves, you know, all those, the good...  Okay, in controlling companies of... Okay, are we talking about controlling other countries, the companies in other countries, or are we talking about controlling... Well, I guess it doesn't matter, right? The regulation is a regulation. Yeah, in this particular case, you know, so they're essentially equating this with something like slave labor happening in China. Well, they're saying not something like slave labor, they're claiming the allegations are, and I have no proof of it, but the allegations are that the Uyghurs are working as slaves in that region of China, producing all of these products that we are receiving here in the West. So the question though, the question, if indeed it is slavery that is ongoing, should the government intervene to stop that? That to me is a vital question. Now, I'm not saying I have the answer, but I'm saying it is a vital question.  I'm not all about the cheap products, you know? So, and if that makes me a hypocrite, I'm sorry, you know, I'm not perfect. And so, yeah, I mean, I could definitely make, I could make a case myself that they should have a regulation against slave labor.  Once you get that going down that slope, it's slippery and it just is gonna take everything with it. And to bring up like a slippery example, the left might say, well, this is not unionized labor. Therefore, it's slave labor because they're not making what we consider a minimum wage here, even though they may be working in the Nike factory voluntarily for 50 cents an hour or whatever it is, you know? And so, you know, you could sort of- Which is triple what they would make anywhere else in their country they come from, you know? Well, there's no doubt that, I mean, you know, the, in some of these cases, you brought up the case like in Africa, Tim, there's no doubt that the person who's working in these, I mean, obviously horrible conditions, but they are better off than they otherwise would have been, right? I mean, that argument could be made. But it still begs the question though, at what level, where is the point that we should make this cut off? Or are we gonna say all products produced under whatever conditions, it's okay for it to be traded freely? Yeah. Right. Oh, Tim, before you get going too far, we can keep going with this, but I didn't wanna short your good guys with guns. So if you wanna go to good guys with guns, we'll do that or otherwise we'll continue with this. Now, well, are you kidding? Are you asking me? I mean, I'm the one that's asking you. I'm asking you. I'm asking you. I'm asking you.  You can shoot the way out if you want. I wanna switch topics real quick. Okay, this sounds like a good one to come back to another time though. Yeah, let's come back to that after I've given it some serious thought. Okay, okay. And when we do, let's get rid of this Leon guy, okay? Can we get rid of him? Life, liberty and the pursuit of happiness always. Thank you for listening to the Knuckleheads of Liberty podcast. Find us on Facebook, Rumble, YouTube, your favorite podcast network and at knuckleheadsofliberty.com.


Live from Las Vegas, it's The Cube, covering NetApp Insight 2017, brought to you by NetApps. Okay, welcome back everyone. We're here live in Las Vegas at Mandalay Bay. This is The Cube's exclusive coverage of NetApp Insight 2017. I'm John Furrier, the co-host of The Cube, co-founder of SiliconANGLE Media, my co-host. Keith Townsend with CTO Advises, and our next guest is Gene English, who's the Chief Marketing Officer of NetApp. Great to see you. Thanks for having us, and thanks for coming on The Cube. Oh, thank you. Thank you guys for being here. So NetApp is no longer a storage company we learned last year, now this year, they're a data company. Sorry. The brand promise is still the same. Take us through as the Chief Marketing Officer, you have to, it's a complex world. I mean, one of your concepts here we've been seeing is winning while in a tough environment, and IT is a tough environment. I got application development going on, I got DevOps, I got data governance, I got security issues, Internet of Things. It's a challenging time for customers. How's your brand promise evolving? Yeah, so we really see that NetApp is a data authority for a hybrid cloud, and the amazing thing is, is that what we see is our customers aren't talking to us about storage anymore. They're talking to us about data, and what their data challenges are, and most companies are trying to think through, if they're going to transform, how are they going to harness the wealth of the data? What are they going to do to maximize the value of the data? And the cloud too is center stage, because the cloud is a forcing function, it's changing the relationship of your partners, far as we had a lot of folks talking about the dynamics with customers around multiple clouds. We saw on stage the announcement with Microsoft, congratulations. Thank you. So you've been in Amazon for a while, we've been covering that, but the on-premise work still is growing. We have the data from Wikibon Research, came out shows that the on-premise true private cloud, which is defined as cloud operation business model, is actually growing. However, the decline in automation of non-differentiated labor is declining by 1.5 billion over the next five years, which means the SaaS market is going to continue to explode and grow. So the on-premise is actually growing as is cloud. How does that change the narrative for you guys, or does it, or is that a tailwind for NetApp? We think it's a complete tailwind for NetApp. I mean, when we think about data today, we see that it's really becoming more distributed across environments. It's definitely more dynamic as you're looking for the latest source of truth and the diversity of data, especially with machine learning.  So how do you start to be able to build that data together? We really think of it is that our customers want to maximize that value, and the only way to do that is to start to think about how do they bring it together, and how do they get more insight from that data, and then how do they have more access and control of that data, and then the most questions we usually get from our customers around, how do I make sure it's secure? But the really big point is that as we think about what NetApp is doing, it has been about three things that we see with our customers. They have to make sure that they're modernizing what they have today, and that goes to the on-prem environment. So if it's going to be that they've got to accelerate applications, they want to make sure that they have that. But this notion of building clouds, like even building private clouds, and we think of that as a next generation data center, especially with DevOps environments. Then harnessing the power of the cloud and hyper-cloud world. And if they are not able to really leverage cloud for SaaS applications, if they're leveraging cloud for backup, or even disaster recovery, data protection, that's where we see that these three imperatives, when they come together, that they're truly, truly able to unleash the power. So we saw on stage CEO, George Curry, and talking about his personal situations in light of what's happened in Las Vegas here. Data is changing the world, and your tagline has changed the world with data. So I got to ask you, I'll see data, we see a lot of examples in society, and also personal examples of data being harnessed for value. Cloud could be great there, it's all on-prem. How do you guys position NetApp as a company? You know there's a lot of positioning exercises and marketing you do, but positioning is really important, because that's what you do. The tagline is kind of the emotional aspect of it. Okay, changing the world, let's change the world with data, I believe that. But what's the positioning of NetApp? I mean, how would you say that the positioning, what's the positioning statement of NetApp? The positioning statement of NetApp, I think we've really seen a big break in the positioning in the last couple of years, and why is because the customers are demanding something different. You know they're really looking for more hybrid cloud data services. And what are those data services that accelerate and integrate data? And that notion of on-prem and in the cloud, that's where we see what's going to happen to accelerate digital transformation. And so this notion of yes, thought about a storage before, customers are demanding more for their data, and they need data services, especially in hybrid environments, to really be able to drive their business. You know, the expression, position it, they will come. And you guys done a good job with the data. Okay, now let's get to the customer reality. You have to go out and do the tactical marketing. They're busy, right? There's a lot of noise out there. We just came back from New York at our big data NYC event that we ran in conjunction with Strato, it's a separate event, and it's clear, they don't want the hype, they want reality, they're representing the road, because they're so busy, and with the security and the governance challenges, GDPR for instance, in Europe is a huge pressure point for data, a lot of challenges, but they want the magic, it should be easy, right? But it's not, how do you guys go out day to day and take that to the field message? What's your strategy? Well, you talked about changing the world with data, and it feels like a lofty promise, but we really believe that when we come down to the purpose of why NetApp exists, it is to empower our customers to change the world with data, and that's something that NetApp has been focused on not just for today, but the 25 years of history, and then also into the future. So what makes that the reality? Well, number one, they want something that's simple, and so this notion of simplicity, and no matter how they think about managing or optimizing their data, it's got to be simple and easy to manage. Optimized to protect, I think data protection is critically important, things of safeguarding data across its life cycle, and I think that NetApp has always been focused on how to make sure that data is secure and protected, and that now is what we're seeing in the cloud too. So all the relationships and partnerships that we've been creating and solidifying AWS has been for the last couple of years. We've had some latest announcements of what we're doing to really make sure that we have stronger data protection in multi-cloud environments. Obviously today, from what we're doing with Microsoft Azure, and really providing, not even having to know how to manage storage, you can do it easily in Azure. No, I'm sorry, I really love this message from NetApp. As a traditional technologist, I understand NetApp disrupting the original storage sand market with Fowlers. You guys were one of the first in the cloud with AWS. So from a trusted partner inside of the infrastructure team, I understand the vision of NetApp. But the transformation also means that you're starting to expand that conversation beyond just that single customer of the storage admin of the infrastructure group. How has that messaging been going towards that new group of customers within your customers who have said NetApp, isn't that a storage company? How has that transformation been going? You know, when we talk about reinventing, NetApp is reinventing itself and that's what we're going through right now. And what we see is that the customers that we know and love, the storage admins and the storage architects, those are definitely tried and true and we love our relationships with them. But we see that the demands around data are growing and those demands are starting to reach more into DevOps, application developers, definitely into cloud enterprise architects as they think about cloud environments. The CIO is now under more pressure to think through. They have a mandate to move to the cloud. Now what? But who do they want to move with? Someone that they've trusted before. And by the way, because we've been first and because we're so open with all the relationships with the cloud providers, why not move with us? Because we can help them think through it. So you're keeping the core, you're not pivoting off the core, you're building on top of the core, extending that, is that what you're saying? We're building off of a really great foundation of who we've had as customers all along. We're establishing new relationships though as well with cloud enterprise architects. And today we actually just had here at Insight our first executive summit where we brought together CIOs and CTOs and really talked about what's happening with data and organizations, what's happening with data as being disruptive, what's happening if you want to thrive based on data as well. We used to have an old expression back in the day when Polaroid was around. What's the new Polaroid picture of something? Now it's Instagram. So I have to ask you a question. What is the new Instagram picture of NetApp? For the customers that you have and for customers that are now in the data space, there's a lot of data conversations happening. What is that picture of NetApp? What should they know about NetApp? NetApp is in the cloud. Yeah, I love that messaging that NetApp is in the cloud and how important is that moving forward? Especially as we look at technology such as OnTap that have been there from the beginning, I love the NFS on Azure story. But that's powered by OnTap, which, you know, I kind of, it took me a few minutes to kind of get it because I'm thinking OnTap and Azure, that's bringing the old to the new, but that's not exactly what it is. What messaging do you want customers to get out of something like an NFS in Azure? We want them to understand that they don't have to do anything about storage to be able to protect and manage their data, no matter what environment that they're in. And by the way, we've been looking at, I've been commenting critically on theCUBE, many events now that multi-cloud is pipe dream. Now I say that only as looks know me, it's real. Customers want multi-cloud, but multi-cloud has been defined as, oh, I run 365 on Azure and I got some analytics on Redshift on Amazon and I do some stuff on Prem. That's considered multi-cloud because it happened to be stuff on multiple clouds. You guys are doing something with cloud orchestration, it's quite interesting. It truly is multiple clouds in the sense that you can move data, if I get this right, across clouds. So it's in a complete transparent way, I mean, seamless way, so I don't have to code anything. Is that true? If that's true, then you might be one of the first multi-cloud use cases. We are one of the first multi-cloud use cases. We have created the Data Fabric, which is really looking at how do you seamlessly integrate across multiple clouds or on-prem environments. The Data Fabric, we've been talking about this vision for a couple of years. What we're seeing now as customers are seeing it come to reality. And now that we have the more and more relationships expanding, as we mentioned, we've been building really SaaS offerings with AWS for a couple of years. We just had the big announcement today with Microsoft Azure, we're working with IBM Cloud, we're also working with Google Cloud, Alibaba. So as we think about a seamless data fabric, they want frictionless movement in and out of the cloud. Gene, you got to change gears for a second, because one of the things we've been observing over the past couple of months, certainly we've had the open source summit, Linux Foundation. Open source is growing exponentially now. You're seeing a new onboarding of developers in general, and the enterprise is going to take a bulk of that. Companies are supplying personnel to contribute on open source projects that's continuing to happen. Nothing new there, but it's starting to change again. You see blockchain out there, getting some traction, high CEOs and all that hype, but it points to one thing, communities are really valuable. So as a marketer, I know you were at IBM, very community oriented, very open source oriented. The role of communities is going to be super important as customers discover, so marketing is changing. From batch marketing, you know, search, email marketing to real time organic with communities, this is not just, you know, have a social handle, really have you guys looked at the B2B marketing transformation as customers start to make selections and take opinions in the new organic communities because you have people in these projects in open source, people are making decisions based on content, what's your view on communities and the importance of communities? Well, we believe highly in communities. Our A team is a community with us that is so strong and they're our biggest advocates. They get brought in very, very early on in terms of learning about our new technologies and learning our story and understanding our strategy and where we're moving. I think you may have talked to some of our A team members before, but they are an amazing group of people and we believe highly that their advocacy is what is really going to help us to stay in touch and be really close to these new buyers as well. And you've got to really internalize that too in the company. Operationally, any best practices you can share with other CMOs, because this is a challenge for a lot of marketers is, how do you operationalize something new? Yes, well we're finding that this notion of reinvention and it starts with the company itself and it starts with our own employees. And so when we talk about the shift from storage to data, we're even having our own employees talk about their own data story and how do they connect data? George talked about his data story actually on the main stage in our keynote the other day. But connecting to that's been really important. This notion of transforming to think about these new customers and new buyers, it starts with the customer needs. It's not about a product out discussion. And so a new story to a new buyer, relevancy, what's happening in their industry, and then engagement, engagement, engagement. I've been following NetApp since they were a startup and then went public. Great story. They have a DNA of reinvention. David Hitz is going to come out, I'm sure. We'll talk about that because he's been an entrepreneur, but he's also had that entrepreneurial DNA. It's kind of still in the company. So my question to you is from a personal perspective, what have you learned or observed at NetApp during this reinvention? Not a lot, not a pivot. It's not at all, it's more of an inflection point for NetApp and a new way, a new way to engage with customers, new way to build products, new way to do software development, a new way to use data. This is a theme we're seeing. What's your personal observation, learnings that you can share? Well in my first month, what I really learned is just the absolute amazing culture of what NetApp has and this notion of we're always embracing what our customers want to where we move. So what our customer wants, we move with it. We embrace it holistically. Years and years ago, you know, Linux and Windows, years, a couple years later, virtualization, virtualized environments, could have killed us, made us stronger, now embracing the cloud. A lot of our customers say, I would have canceled the meeting with you, but I now understand that you're interested in the cloud and that you're in the cloud. I've totally changed my mind and we say we love the cloud. We embrace the cloud holistically. You guys are progressive. I notice it's a competitive strategy kind of theory, but the old expression goes, you got to eat your own to get to the new market. Some companies will milk the market share dry and then can't get to the new model, right? This is the reinvention challenge. When do you stop making profits to build for the future? It's a tough call. It is, but that's why we listen to what our customers say. And so when they talked about wanting to move to the cloud a few years ago, we said we're going to be the first to holistically embrace the cloud. Okay, so you got the NetApp Insight 2017 going on in Berlin. Okay, that brings up the question because it's in Germany, so I have to ask. GDPR has been super hot. The global landscape, how is that going on for NetApp? Obviously you have some experience outside the U.S. I mean it's not always the U.S. North America centric world. What's the global story for NetApp? It's not. I lived in China and Singapore and I know that there are demands that are not just U.S. centric. When we talk about Germany, I was just there a few months ago and this notion of how do we start to address the articles that are in GDPR that help to make sure that we have the right compliance and protection for data inside of a country and inside of Europe. We actually have expertise in that area. We've been actually consulting and talking with customers about what they want to do with data compliance and we're being asked now to say, how does NetApp help address those articles? How do we come back with solutions to help control data and make sure we have the right access of data? So, we're already consulting with customers. We know it's a top priority and we have expertise to be able to help. Sheila Fitzpatrick, she's the Chief Privacy Officer. Very colorful, very dynamic, a lot of energy. She's going to slap anyone around who says, do you don't bolt on privacy? Good policy conversation. Policy is converging in with that. It's interesting, the global landscape, the Cube will be in China next week for the Alibaba Cloud Conference. So, we're going to go report and see what's going on there. So, huge international challenge around regulations and policy. Does that affect the marketing at all? Because policy kind of is data privacy and security. Security is super hot, obviously data security is a big thing. How does policy intersect with the technology and how, as a CMO, do you kind of get that realized and put it into action? Well, I think basing on the foundation that we're always optimized to protect and that's one of our key foundations of why people choose NetApp. We definitely know that there are other demands that are happening in local markets. I was just in Australia a few weeks ago and was meeting with the New South Wales government, of which they've had a mandate that all the agencies need to use their own cloud platform. They've been working with NetApp to ensure that they can have the right data management solutions on that platform. And from a marketing perspective, we embrace that. And so we work with, whether it's Telstra, we're working with New South Wales, we're thinking about how do we ensure that that message is strong because we know customers there have different demands than just what's in the US. So when you get CIOs and senior executives together in the summit, like guys had over the past few days, ideas start to percolate, problems start to come across. What was some of the biggest policy concerns throughout those conversations? Was it GDPR, was it something else? What's the top of mind? What we're hearing top of mind right now is data governance. And I think that that could be towards data compliance in terms of GDPR for Europe. I think it expands beyond Europe though. I mean, I just heard, like I said in Australia, where they're having demands based on the government of what's needed to be really driven through a cloud platform. We're hearing through our customers in the last couple of weeks about, if I'm moving to the cloud, number one, I want to have seamless transition to the move in or out of the cloud. But I got to make sure I've got the right governance model in place. So we've heard this repeatedly, customers move into the cloud. How many customers are coming to you saying, you know what, for whatever reason, whether it's cost, agility, the overall capability we thought we'd have available in the cloud, not really what we thought it would be. We need help moving it back. And what is that conversation like? Well, it's a conversation that we're able to help with pretty easily. I mean, right now we have had customers that have either had won a cloud mandate. So they got to think about, how am I going to move all my data to the cloud? Once they actually started getting into the detail, we do a design workshop where we help them think about, maybe there's not all workloads going to the cloud. Maybe some workloads go in the cloud. We have had a customer who did move the majority of workloads in the cloud and then decided, actually we think we'll get better cost performance and better efficiencies if we actually have those back on-prem. He said, no problem, we can help you with that too. And I think that's the beauty of what we've talked about with data fabric is, we're able to help them think through, no matter where they want their data in on-prem or in the cloud, we can help them. Gene, thanks for coming up here. I know your time's super valuable. I got to get one more point in because I want to make sure we get that out there. A public sector, net-ass position, strong, getting better. What's your thoughts, a quick update on public sector? We are very, very strong in the public sector. We've actually had a strong presence in public sector with our customers for many years, and we're continuing to help them think about too, how they start to look at cloud environments. All right, Jean English CMO here in theCUBE, getting the hook here in the time. She's super busy. Thanks for sharing, congratulations on great positioning and looking forward to chatting further. It's theCUBE, live coverage here in Las Vegas at the Mandalay Bay. Keith Townsend, we'll be right back with more live coverage after this short break.


This paper discusses the potential benefits of using cloud-based technology in higher education. It examines the use of G Suite in particular, which can be used to create a blended learning environment for university courses. The authors tested this approach by creating pilot versions of courses and analyzed the results. They found that the combination of online and face-to-face elements of the courses improved student engagement and performance. Additionally, they identified several areas where improvements could be made, such as the design of the courses and the integration of the various components. Overall, the authors concluded that cloud-based technology can be a valuable tool for universities looking to improve their courses. This article was authored by Tessiana, I. Korbinakova, Natalia, P. Volkova, Svitlana, P. Khashko, and others.


Meanwhile, the Pan-90 Delta Forum has called on governors in the south-south region to fast track the establishment of a security outfit to help protect the area against further attacks by herdsmen. The National Publicity Secretary of Pandev Ken Robinson said this while he reacted to the killing of a youth. Noye Unwa Omuku in Egbede Community River State, allegedly by suspected herdsmen last week. Hello, hope you enjoyed the news. Please do subscribe to our YouTube channel, and don't forget to hit the notification button so you get notified about fresh news updates.