JUDGMENT Honble Sunil Ambwani, J.—These two second appeals arises out of Original Suit No. 166 of 1986, Ram Kishan v. Om Prakash, real brothers, for specific performance of agreement dated 28-3-1985, and Original Suit No. 409 of 1986, Om Prakash v. Ram Kishan, for arrears of rent and ejectment. The trial Court consolidated both the suits and by a common judgment and order dated 30-3-1989, O.S. No. 166 of 1986 was dismissed for relief of specific performance of contract. It was decreed for alternative relief of Rs. 10,000 with cost. The trial Court decreed O.S. No. 409 of 1986 for arrears of rent at Rs. 500 per month w.e.f. 11-7-1986 and for eviction. The trial Court declared that the firm shall stand dissolved w.e.f. 11-7-1986 and issued a Commission to prepare the accounts of the assets and liabilities of the firm. The defendant-Ram Kishan was asked to submit the account within two months with liberty to Om Prakash to issue a commission on his own expenses. The suit was directed to be pending till the preparation of final decree. 2. Ram Kishan filed First Appeal No. 328 of 1989 against the judgment and decree dated 30-3-1989 in O.S. No. 166 of 1986 and Civil Appeal No. 104 of 1989 against the judgment and decree of the same date in O.S. No. 409 of 1986. The appellate Court by its judgment dated 15-12-2005 allowed the First Appeal No. 328 of 1989 and decreed O.S. No. 166 of 1986 for specific performance of agreement dated 28-3-1985 directing Om Prakash to execute the sale-deed on receipt of Rs. 35,000 from Ram Kishan, failing which the sale-deed was to be executed through Court. The appellate Court partly allowed Civil Appeal No. 104 of 1989 and the decree for arrears of rent and eviction was set aside. However, the decree for accounting of the partnership firm was maintained with direction to Ram Kishan to produce all the accounts of the firm for the period 12-12-1976 to 10-7-1986 within one month. 3. Brief facts giving rise to these two second appeals are, that Om Prakash had purchased the disputed shop by sale-deed dated 9-7-1976. He entered into an agreement to sell the shop to real brother, the defendant Ram Kishan for Rs. 45,000 by an agreement dated 28-3-1985 and received Rs. 10,000 in advance. The agreement was registered. 3. Brief facts giving rise to these two second appeals are, that Om Prakash had purchased the disputed shop by sale-deed dated 9-7-1976. He entered into an agreement to sell the shop to real brother, the defendant Ram Kishan for Rs. 45,000 by an agreement dated 28-3-1985 and received Rs. 10,000 in advance. The agreement was registered. According to the terms of this agreement the sale-deed was to be executed before 27-3-1986. Om Prakash alleged that he is in possession of the shop in which he is running kirana business. In his suit Om Prakash alleged that he is always ready and willing to perform his part of contract and is still ready and willing for the same and requested Ram Kishan to execute the sale-deed. Ram Kishan tried to avoid the execution of the sale-deed, on which a notice dated 24-2-1986 was issued to him, which was received by him on 27-2-1986, but that he did not reach to the office of Sub-Registrar, Anoop Sahar on 29-3-1986. 4. Ram Kishan admitted that Om Prakash is the owner of the shop vide sale-deed dated 9-7-1976 and had constructed a two storied building in November and December, 1976. He, however, denied that he entered into any agreement and accepted Rs. 10,000 towards part sale consideration. In the written statement he stated that at the time of purchase the shop was in dilapidated condition. It was purchased for Rs. 24,000. He got the old constructions demolished and constructed a shop with three portions and staircase and also constructed first floor. The value of the shop reconstructed for doing business is about 2-1/2 lacs. At the time of construction of shop his children were minor and as such he started business in the shop in partnership with his real brother Ram Kishan. It was mutually agreed that rent of the shop will be Rs. 150 per month and since thereafter the plaintiff is in possession of the shop alongwith defendant and they were doing business, which was started with Rs. 5000 with partnership of 50% each. The partnership was registered in Sales Tax Department on 12-12-1976. Om Prakash had given securities in the Sales Tax Department and had executed an undertaking and affidavit that he will not transfer the business without permission of the sales tax officer. 5. 5000 with partnership of 50% each. The partnership was registered in Sales Tax Department on 12-12-1976. Om Prakash had given securities in the Sales Tax Department and had executed an undertaking and affidavit that he will not transfer the business without permission of the sales tax officer. 5. Om Prakash further stated in his written statement in O.S. No. 409 of 1986, that he was busy in his commission agency business of vegetables and relied upon his brother for doing business in the shop. In the year 1985 when the goods and stock were inspected, he was told by Ram Kishan that he had made investment of Rs. 10,000 from his share. By way of mutual accounting Om Prakash was found to be due for Rs. 10,000 in business. He did not have the amount available with him and as such executed the registered agreement by way of security for payment of Rs. 10,000. They were informed by the scribe at Anoop Sahar that expenses of execution of mortgage deed will be more than the expenses for agreement. Ram Kishan was fully aware at the time of execution of the agreement that he was not willing to sell the house and that Rs. 10,000 were not paid as part sale consideration. In the circumstances, the agreement is not liable to be enforced. 6. On his part Om Prakash filed O.S. No. 409 of 1986 for accounting of the firm and for payment of his share with 18% interest. He also prayed for decree for ejectment and arrears of rent from 11-7-1986 to 10-8-1986 at the rate of Rs. 800 per month. 7. The trial Court allowed the documentary and oral evidence and held that since the partnership was not registered, the suit on the basis of partnership firm between the parties was barred under Section 69 of the Indian Partnership Act. The parties, however, are entitled for accounting between them. The Mandi licence issued by Krishi Utpadan Sabji Mandi, Jahangirabad for doing wholesale business was renewed upto 1986 and the certificate issued by Sales Tax Department certifying on the basis of Form 14 of the year 1984-85 proved that Om Prakash and Ram Kishan both sons of Pyare Lal were partners in the business with equal shares. The oral evidence of Bhagwat Prasad in this regard was disbelieved. The oral evidence of Bhagwat Prasad in this regard was disbelieved. Ram Kishan had given a written statement before the Sales Tax Officer to the effect that prior to April 1986 a business in the name of Om Prakash Ram Kishan was carried out from the disputed shop. The trial Court found that the statement of Ram Kishan that he had not given any such statement and had only signed on document for executing security of Rs. 5,000 was disbelieved. The trial Court then held that Om Prakash was liable to pay Rs. 10,000 with interest to the plaintiff in accounting for the business in the year 1986. For this purpose the Commissioner’s report dated 28-8-1988 of the inventory in the shop was taken into consideration. On the issue whether the shop was let out to Ram Kishan, the trial Court held that relationship of landlord and tenant was not established. The shop was given for the benefit of the partnership firm with the condition that the rent at the rate of Rs. 150 per month will be taken to be investment by Om Prakash in the business. After the dissolution of the firm Om Prakash was entitled to recover the possession of the shop. The trial Court found that the smaller shops in the area were let out for Rs. 300 per month and thus fixed the damages for use and occupation w.e.f. 11-7-1986 at the rate of Rs. 500 per month. 8. The trial Court then considered the issue of execution of the agreement of sale and relied upon statement of Ram Kishan. It found that at the time when the business was started in partnership Om Prakash’s eldest son was 12 years old. There was no one present at the time when the brother’s agreed to execute the document. Ram Kishan was earning Rs. 400-500 per month from the business. He had no other means to arrange for Rs. 35,000 and the expenses for registration of the document within one year. The agreement as such was not executed for sale but by way of security for payment of Rs. 10,000, which was due from Om Prakash in business. The shop valued at Rs. 27,000 in 1976 could not be agreed to be sold for only Rs. 45,000. 35,000 and the expenses for registration of the document within one year. The agreement as such was not executed for sale but by way of security for payment of Rs. 10,000, which was due from Om Prakash in business. The shop valued at Rs. 27,000 in 1976 could not be agreed to be sold for only Rs. 45,000. The trial Court thus dismissed the suit for specific performance of contract and decreed the suit for ejectment with damages for use and occupation at the rate of Rs. 500 per month w.e.f. 11-7- 1986 and for settlement of partnership accounts. 9. In appeal the appellate Court reassessed the entire evidence and recorded following findings : (a) The parties did not produce any document or oral evidence with regard to the partnership agreement. Shri Rameshwar Dayal Kansal, Advocate, DW-1, Bhagwat Swarup, DW-2, Om Prakash, DW-3 and Vishan Kumar, DW-4 did not prove the partnership. (b) Om Prakash did not contribute any amount towards partnership business. Infact he admitted that in March 1985, when the goods and stock were verified, an amount of Rs. 10,000 was found to be investment in excess by Ram Kishan. (c) There was no evidence on record nor Om Prakash stated in his pleading and statement about the profit or loss of the business and the receipt of any profits out of his half share in the business. (d) The documents ‘50 ga’, ‘57 ga’ and other documents on record including the statement given by Ram Kishan, Form 14 and the statement given before the Sales Tax Officer clearly established the conduct of the brothers to the effect that they had entered into partnership at well and got the same registered in Sales Tax department. The firm was in existence from 1977 to 1986. The parties were as such doing partnership business in the shop. (e) The firm was not registered and as such parties were not entitled to file a suit for enforcing their rights as partnership firm. Section 69 of the Indian Partnership Act clearly bars the filing of such suits. The partners, however, could file a suit for accounting between them in business. (f) Om Prakash admitted that he had not let out the shop but agreed to contribute rent of shop at the rate of Rs. 150 in the partnership business. Ram Kishan as such was not tenant of the shop. The partners, however, could file a suit for accounting between them in business. (f) Om Prakash admitted that he had not let out the shop but agreed to contribute rent of shop at the rate of Rs. 150 in the partnership business. Ram Kishan as such was not tenant of the shop. (g) The firm stood dissolved w.e.f. 11-7-1986 and that partners were entitled to accounting between them on issuing a commission. Om Prakash, however, is not entitled to any interest on his share in the business. Ram Kishan had got the name of business changed. The firm, however, shall not be dissolved until accounts are settled between the parties and thus until the accounts are settled, the damages for use and occupation of the shop and for ejectment could not be decreed. (h) The agreement is registered and bears the signatures and thumb impression of Om Prakash. He had admitted before the Sub-Registrar that he has received Rs. 10,000 in advance and will execute the sale-deed on receipt of Rs. 35,000 before 27-3-1986. Om Prakash also admitted in his reply to the notice that he is willing to pay Rs. 10,000 with interest to Ram Kishan. These two statements proved that Om Prakash had agreed to sell the shop to Ram Kishan. He did not produce the accounts nor made any application to summon the account book to establish that in 1985 he was required to pay Rs. 10,000 of his share of business to Ram Kishan, and in the circumstances his plea that he had executed the agreement by way of security for payment of Rs. 10,000 could not be believed. (i) Ram Kishan had stated that he was always ready and willing to perform his part of the contract. It was not necessary for him to prove that he had the entire amount of Rs. 35,000 available with him on the date of execution of agreement to sell. 10. The appellate Court allowed appeal No. 328 of 1989 and decreed suit for specific performance of contract. The civil appeal No. 104 of 1989 was partly allowed. The suit was decreed for accounting. The arrears, damages and ejectment, however, were not allowed. 11. I have heard Shri R.S. Misra assisted by Shri Ratnesh Kumar Pandey for the appellant and Shri R.N. Singh for the respondent. 12. The civil appeal No. 104 of 1989 was partly allowed. The suit was decreed for accounting. The arrears, damages and ejectment, however, were not allowed. 11. I have heard Shri R.S. Misra assisted by Shri Ratnesh Kumar Pandey for the appellant and Shri R.N. Singh for the respondent. 12. With the agreement of the party the following question was framed as substantial question of law on 19-8-2006 and the matter was fixed for hearing on 4-12-2006 : “Whether in view of the facts and circumstances in which the brothers were doing business in partnership and at the time of dissolution of business an amount of Rs. 10,000 was found due against the defendants, in security of which he had executed a registered agreement to sell in favour of other brothers, and further in view of the fact that there are averments of improvement of the shop, the discretionary relief of specific performance under Section 20 of the Specific Relief Act should be granted to decree the suit?” 13. Shri R.S. Misra submits that there was sufficient evidence on record that Om Prakash had purchased the shop by sale-deed dated 9-7-1976 for Rs. 27,000. He had demolished the shop and reconstructed the shop with three portion and staircase, and first floor over the two portions of the shop. The shop was valued for Rs. 2-1/2 lacs on the date of agreement. Both the Courts below found that brothers carried out kirana business in the name of partnership firm Om Prakash Ram Kishan registered with Sales Tax Department and with Mandi Samiti. The statement of the parties clearly established that the business was run in partnership in which Om Prakash contributed the rent of the shop in the business. In the accounting in 1985 Om Prakash was found liable to pay Rs. 10,000 as his share of contribution in the stock. The brothers agreed to execute a document for security and that instead of mortgage, which would have involved more expenses, a deed of agreement was executed and registered. The money was not exchanged before the Sub-Registrar. In the accounting in 1985 Om Prakash was found liable to pay Rs. 10,000 as his share of contribution in the stock. The brothers agreed to execute a document for security and that instead of mortgage, which would have involved more expenses, a deed of agreement was executed and registered. The money was not exchanged before the Sub-Registrar. Taking into account the relationship between the parties, valuation of the shop and the fact that admittedly the brothers were doing business in which appellant Om Prakash did not contribute any amount, even if it is found by the Court that the agreement was executed for sale of the shop, it would be wholly unjust, harsh and inequitable to decree the suit for specific performance for a sale consideration of Rs. 45,000. The relief of specific performance is discretionary. It should not result into any special hardship to vendor. Shri Mishra has relied upon Damacherla Anjaneyulu and another v. Damacherla Venkata Seshaiah and another, AIR 1987 SC 1641 , in which the Supreme Court invoking Section 20 of the Specific Relief Act, 1963 substituted the order by directing that the appellants-defendants shall pay to the respondents-plaintiffs a sum of Rs. 1,25,000 within six months in two equal installments on which the decree will stand satisfied. 14. In Parakunnan Veetill Joseph’s Son Mathew v. Nedumbara Kuruvila’s son and others, AIR 1987 SC 2328 , the Supreme Court held that Section 20 preserves judicial discretion to Courts to decree suit for specific performance. The Court should meticulously consider all facts and circumstances of the case. It is not bound to grant specific performance merely because it is lawful to do so. In this case the person to whom property was agreed to be sold had waived its right under an agreement of sale executed by owner in his favour. One of the heirs of the owner was assignee and could not get a better right to enforce than the agreement. The Court found that the plaintiff was not entitled to specific performance of contract. 15. In Rajeshwari v. Puran Indoria, JT (2005) 7 SC 630, the Supreme Court held that the question whether the Court could in law exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of party in that suit. 15. In Rajeshwari v. Puran Indoria, JT (2005) 7 SC 630, the Supreme Court held that the question whether the Court could in law exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of party in that suit. Since the High Court did not consider the questions and dismissed the appeal in limine, the matter was remanded to the High Court for fresh hearing. 16. In Raghubir Singh v. Sher Singh, (2004) 3 AWC 2114 , the High Court remanded the matter to the trial Court to consider whether the terms of the contract gave unfair advantage to the plaintiff over the defendant. The plaintiff was in advantageous position being in permissive possession on behalf of the defendant. He made an attempt to somehow grab the property of the defendant. 17. Section 20 (2) of the Specific Relief Act provides that the Court has discretion to decree the suit for specific performance. It is not bound to grant specific relief merely because it is lawful to do so. The discretion, however, is not to be exercised arbitrarily, but on sound and reasonable ground guided by judicial principles. The guidelines for exercise of such discretion provided in sub-section (2) are : (a) Where the term of the contract or the conduct of the parties at the time of entering into contract or the other circumstances under which contract was entered into are such that the contract, though not avoidable, gives the plaintiff an unfair advantage over the defendant, or (b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would not involve no such hardship to the plaintiff, or (c) Where the defendant entered into the contract under circumstances which though not render the contract avoidable, makes it inequitable to enforce specific performance.” 18. In the present case, Om Prakash, the plaintiff in suit No. 409 of 1986 purchased the shop on 9-7-1976 for Rs. 24,000. He got it reconstructed and also added one room on first floor. At that time his eldest son was only 12 years old, and as such he allowed the shop to be occupied by his brother Ram Kishan. They started general merchandise business in the name and style of Om Prakash Ram Kishan. The firm was not registered. 24,000. He got it reconstructed and also added one room on first floor. At that time his eldest son was only 12 years old, and as such he allowed the shop to be occupied by his brother Ram Kishan. They started general merchandise business in the name and style of Om Prakash Ram Kishan. The firm was not registered. Ram Kishan, however, got it registered with the sales tax department and Krishi Utpadan Mandi Samiti. After about 10 years when the brothers took the account of goods and stocks, it was found that Om Prakash was liable to pay Rs. 10,000 to his brother Ram Kishan. He did not have sufficient money to pay the amount and as such he entered into an agreement of sale of the shop and in which Rs. 10,000 payable in business was treated to be the advance. Rest of the amount of Rs. 35,000 was to be paid within one year and sale-deed to be executed before 27-3-1986. Om Prakash did not contribute any amount in the business except his shop and charged rent, which was treated to be his contribution to run the business. The shop is in occupation of Ram Kishan since after the start of business in December, 1976. The appellate Court found that relationship of landlord and tenant are not established and that the partners do not have right to sue as the firm was not registered under Section 69 of the Indian Partnership Act. They could still seek a relief of accounting of the partnership, which was established between them. Om Prakash did not lead any evidence to show the market price of the shop in the year 1986. The circumstances in which the agreement was arrived at between the parties was not reduced to writing. These circumstances do not go to show that the enforcement of contract will cause any undue hardship on Om Prakash, which he could not have foreseen. The enforcement of contract would also not give any unfair advantage over the defendant as Om Prakash has separate business and that he was not dependent on the business in the shop run by his brother. It would not be inequitable to enforce specific performance between the real brothers. Om Prakash has his own flourishing business as a commission agent in vegetables. It would not be inequitable to enforce specific performance between the real brothers. Om Prakash has his own flourishing business as a commission agent in vegetables. The evidence does not show that Om Prakash agreed to sell the shop in any such circumstances, which may be called as compelling to make the contract unavoidable. Om Prakash did not lead evidence to provide the valuation of the shop. On the other hand if the specific performance is refused and Ram Kishan is evicted he will loose his entire business. 19. In the facts and circumstances, I do not find that appellate Court committed any error in exercising discretion to decree the suit for specific performance of contract and for accounting. 20. Both the second appeals are consequently dismissed. ————