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2005 DIGILAW 590 (GAU)

Prabin Chandra Goswami v. Charu Saikia

2005-08-16

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Heard Mr. D.C. Mahanta, learned Sr. Counsel assisted by Mr. S.M. Rahman, learned Counsel for the Appellant and Mr. P.G. Baruah, learned Sr. Counsel assisted by Ms. A. Senapati, learned Counsel for the Respondents. 2. This second appeal has been directed against the judgment and decree dated 25.8.96 and 26.8.96 respectively passed by the learned Asstt. District Judge, Jorhat in Title Appeal No. 9/93 reversing the judgment and decree dated 30.6.93 and 16.7.93 respectively rendered by the learned Munsiff No. 2, Jorhat in T.S. No. 84/86. 3. The brief facts essential to determine the substantial question of law framed by this Court herein mentioned below, are that the Plaintiff/Appellant instituted the instant title suit against the Defendants/Respondents for a decree of specific performance of contract being a sale agreement executed on 16.1.86 exhibited as Exbt. 2, by the Defendants/Respondents in favour of the Plaintiff/Appellant. It was pleaded by the Appellant that in Exbt. 2, the Respondents assured to recovery the land in question in favour of him on consideration of an amount of Rs.3,000/- being the same money of previous sale of land in question by the Appellant to the Respondents in the year 1978 i.e. 20.10.78 by a registered sale deed. It was also alleged that after such sale agreement i.e., 16.1.86, the Respondents by executing a sale deed on 17.2.86 sold the land in question to the Defendant No. 2/Respondent No. 2 for which further prayer was made for cancellation of the said sale deed. 4. The suit was contested by both the Respondents by filing written statement denying all the averments alleging interalia that there was no sale agreement as such and Exbt. 2 alleged to have been falsely and illegally manufactured and she categorically denied, the payment of any such advance amount as claimed by the Appellant and accordingly it was pleaded that no case for specific performance was made out by the Appellant. 5. The learned Munsiff, upon consideration of the pleadings of the parties, framed as many as six issues out of which only two issues namely issue Nos. 2 and 3 were taken up precisely for adjudication of the case. Those issues were-(2) Whether the Defendant No. 1 executed a valid agreement on 16.1.86 to sell the suit land and (3) Whether the Defendant No. 1 received amount from the Plaintiff to sell the suit land as alleged? 2 and 3 were taken up precisely for adjudication of the case. Those issues were-(2) Whether the Defendant No. 1 executed a valid agreement on 16.1.86 to sell the suit land and (3) Whether the Defendant No. 1 received amount from the Plaintiff to sell the suit land as alleged? 6. The Appellant examined as many as three witnesses including himself and produced several documents in support of these cases when the Defendant No. 1/Respondent No. 1 adduced only the Defendant No. 1 as witness and also places relevant documents to prove their case. 7. After hearing learned Counsel for the parties and also on proper appreciation of the materials available on record, the Court decided both the issues i.e., Issue Nos. 2 and 3 in affirmative in favour of the Plaintiff. The Trial Court found that the Respondents executed a valid agreement on 16.1.86 i.e. Exbt. 2 and she received Rs.2,000/- as advance from the Appellant with an assurance to sell the suit land by executing a sale deed in favour of the Plaintiff. In the result, the suit was decreed. 8. Being aggrieved by the aforesaid judgment and decree, the Defendants/Respondents moved the Appellant Court through T.A. No. 9/93 before the learned Asstt. District Judge, Jorhat who after hearing the learned Counsel for the parties and also on consideration of the maternal available on record including the depositions of the witnesses, came to the conclusion that the learned Munsiff No. 2 committed an error of law in decreeing the suit. He found that the documents i.e. Exbt. 2 and 3, the receipt of advance money of Rs.1,000/- were valid documents, however, it was held that the recital of Exbt. 2 was unilateral and the same was appeared to have been signed by the Respondents without being signed by the Plaintiff, as required, being an agreement for sale. It was also held by the learned appellate Court that in the said Exbt. 2, there was no reference of any assurance of the Respondents on 20.10.78 to reconvey the land in question to the Plaintiff/Appellant although Exbt. 2 contained a reference to the earlier sale deed executed by the Appellant in favour of the Defendant. It was also held by the learned appellate Court that in the said Exbt. 2, there was no reference of any assurance of the Respondents on 20.10.78 to reconvey the land in question to the Plaintiff/Appellant although Exbt. 2 contained a reference to the earlier sale deed executed by the Appellant in favour of the Defendant. The deposition of P.W. 1 and 2 also did not reveal that there was no such assurance in original sale deed dated 20.10.78 from the Respondent's side to reconvey the land in question to the Appellant. Eventually, the finding of the appellate Court was that it was not an agreement of sale between two parties. In the result, the appeal was party allowed by setting aside the impugned judgment and decree of the trial Court for specific performance on the basis of alleged document i.e., agreement for sale dated 16.1.86 and cancellation of sale deed dated 21.1.86 in favour of the Respondent No. 2. However, the Respondent was directed to return the sum of Rs.2,000/- so paid to her as an advance as reflected from Exbt. 2 and 3 and this second appeal has been preferred against the aforesaid appellate judgment. 9. This Court took up the matter for hearing on 21.7.05 but had to release the case from part herd as during the course of hearing no substantial question of law was formulated. After hearing learned Counsel for the parties and on perusal of the materials available on record, following substantial question of law was formulated. Whether the Plaintiff is entitled to a decree for specific performance for a contract under Section 20 of the Specific Relief Act 1963 and whether the refusal to pass a decree for specific performance of contract is legal and valid. 10. Before delving upon the contentious and submissions advanced by the learned Counsel for the contesting parties, let us see the provision of law laid down in Section 20 of the Specific Relief Act, 1963 (for short 'the Act'). Section 20 reads as under: 20. Discretion as to decreeing specific performance-(1) The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. Discretion as to decreeing specific performance-(1) The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. (2) The following are cases in which the Court may properly exercise discretion not to decree specific performance: (a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the circumstances under which the contract was entered into are such that the contract though not voidable, gives the Plaintiff an unfair advantage over the Defendant, or (b) Where the performance of the contract involve some hardship on the Defendant which he did not foresee, whereas its non-performance would involve no such hardship on the Plaintiff, or (c) Where the Defendant entered into the contract under circumstances which though not rendering the contract voidable makes it inequitable to enforce specific performance. Explanation-1: Mere inadequacy of consideration or the mere fact that the contract is onerous to the Defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b). Explanation-2: The question whether the performance of a contract would involve hardship on the Defendant within the meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the Plaintiff subsequent to the contract, be determined with reference to the circumstances existing of the time of the contract. (3) The Court may properly exercise discretion to decree specific performance in any case where the Plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The Court shall not refuse to may party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 11. Section 20 of the Act, as is noticed hereinabove, vests the discretionary power on the Court in the matter of decreeing specific performance. The Court in exercise of discretionary power is not bound to grant any such relief merely because it is lawful to do so. 11. Section 20 of the Act, as is noticed hereinabove, vests the discretionary power on the Court in the matter of decreeing specific performance. The Court in exercise of discretionary power is not bound to grant any such relief merely because it is lawful to do so. In exercising such discretionary power, Court must act with Soundness and reasonableness and such discretion must not be exercised arbitrarily as the same must be guided by judicial principles and capable of correction by a Court of appeal. A party cannot claim, as a matter of right, for declaration of specific performance inasmuch as such relief of specific performance is more than a nature of equitable relief than a legal remedy. 12. In the backdrop of this statutory principles, now let us consider the arguments advanced by the learned Counsel for the parties. Mr. Mahanta learned Sr. Counsel has forcefully argued that the learned Appellant of Court while reversing the judgment and decree of the trial Court, ought not to have consider the instant case as a case under Section 53 of the Transfer of Property Act ignoring the relevant law on specific performance as stipulated in Section 20 of the Act. Since it is a case of specific performance, the appellate Court unnecessarily dealt with the matter precisely on the issue of delivery of possession which is not a case of the Plaintiff Appellant. According to him, in a case of specific performance, the question of delivery of possession does not come which only to be dealt with in the case of part performance. Here in the instant case, according to Sr. Counsel, Exbt. 2 clearly reflects that in the earlier sale deed an assurance was made by the Respondent No. 1 to recovery the land in question as and when the exact amount of sale price was paid. Despite such clear recital of reconveyance of the land for which advance money to the time of Rs.2,000/- was also paid with a break up of Rs.1,000/- paid at the time of making the agreement i.e., 16.1.86 and another amount of Rs.1,000/- paid later on by Exbt. 3. That being the position, the Court had to allow the prayer for specific performance in terms of Section 20 of the Act. 3. That being the position, the Court had to allow the prayer for specific performance in terms of Section 20 of the Act. He has specifically mentioned that though Court can not decree specific performance on three conditions as stipulated in Sub-section 2 of Section 20 of the Act and since his case does not fall either of these three categories, the Appellate Court ought to have confirmed the judgment and decree passed by the trial Court in support of this argument, Mr. Mahanta, learned Sr. Counsel has relied on a decision reported in AIR 1965 SC 1405 (Mademsetty Satyanarayana v. G. Yellop Rao and Ors.). It is contended that the meaning of specific performance" and scope of exercise of discretionary power to grant the said relief were discussed by the Apex Court at paragraph 6 and 7 of the said judgment. After reading those paragraphs so referred by the learned Sr. Counsel, it appears that since the said case related to the decision on the point of fundamental difference between the two systems i.e. English and Indian system on the question of relief of specific performance, the ratio of the same will not be applicable in the instant case. 13. Rejecting those contentions and submissions made on behalf of the Appellant, Mr. Baruah, learned Sr. Counsel has strenuously argued that the Appellant failed to make out a case of specific performance in order to entitle him to get a decree in terms of Section 20 of the Act. His case is that it is not a case at all of specific performance and the Appellate Court rightly reversed the decision of the trial Court decreeing the suit for specific performance. He has also asserted the Exbt. 2, on the basis of which the learned appellate Court rejected the prayer for specific performance so granted by the trial Court, does not disclose any such contention of reconveying the land in question to the Appellant on payment of same consideration transacted earlier at the time of original transfer of land by the Appellant to the Defendant and further Exbt. 2 cannot be said to be an agreement for sale due to the fact that the said document itself highlighted fact that the Plaintiff was not a party to the said agreement. 2 cannot be said to be an agreement for sale due to the fact that the said document itself highlighted fact that the Plaintiff was not a party to the said agreement. It is accepted norms in an agreement for sale that both the parties must sign the document but that has not happened in the instant case. 14. Specific performance has not been defined either in the Act or in the Transfer of Property Act. Specific performance has been defined in Black's Law Dictionary which reads as under: A Court-ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real estate or rare article is involved it further denotes that specific performance is an equitable remedy that lies within the Court's discretion to award whenever the common law remedy is insufficient, either because damages would be inadequate or because the damages could not possibly be established. 15. From the ordinary reading of the aforesaid definition it clearly shows that it was an equitable remedy which can only be awarded by the Court exercising its discretionary power. Such exercise of discretionary power has also been duly reflected in the statute book prescribed in the Section 20 of the Act. However, to apply discretionary power, the Court has to act justly, reasonably and judiciously. From the close perusal of the impugned appellate judgment and decree, this Court is of the view that this judgment was not passed arbitrarily or did not lack any guided judicial principle. This Court has also perused Exbt. 2 and on careful scrutiny of the same the Court is inclined to accept the finding of the appellate Court that the said document lacks narration pertaining to reconveyance of the land in question on the basis earlier agreement which was never placed before the Court to substantiate the assurance so made by the Defendants/Respondents. 16. Accordingly, the Court is of the view that the Plaintiff is not entitled to any decree for specific performance of contract under Section 20 of the Act and the substantial question of law so framed by this Court is answered accordingly against the Appellant. 17. In the result, this second appeal fails and stands dismissed. Appeal dismissed.