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2009 DIGILAW 1400 (PNJ)

Mehar Singh v. Bhajan Singh

2009-08-12

HEMANT GUPTA

body2009
JudgmentJudgment Hemant Gupta, J. 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, where by suit for specific performance of agreementto sell dated 2.12.1987, was decreed. 2. The admitted facts are that on the aforesaid date, the defendant agreed to sell land measuring 23 Kanals 12 Marias at the rate of Rs. 15,000/- per acre. A sum of Rs. 6000/- was paid as earnest money. The parties agreed that the sale deed will be executed within two months on sanctioning of mutation. The civil suit crystalizing the right and interest of the defendant was decided on 2.5.2000 and on the basis of the said decree, the mutation was sanctioned in favour of the defendant on 25.9.2000. Since the defendant did not execute the sale deed as agreed in the aforesaid agreement within two months, the present suit for specific performance was filed on 17.11.2000. Both the Courts have decreed the suit. 3. Though it is the case of the plaintiff that the possession of the suit land was delivered to the plaintiff at the time of executing the aforesaid agreement to sell, but the stand of the defendant in the written statement is that the plaintiff is not in possession of the suit land with the spirit of agreement to sell. The defendant pleaded in para 7 of legal submissions that the grant of decree for specific performance will cause irreparable loss and injustice to the defendant and that the defendant will suffer extreme hardship in the eventuality if the sale deed is ordered to be executed. 4. The learned counsel for the appellant in the present second appeal has raised the sole argument that the execution of the sale deed more than 20 years after the parties entered into agreement will cause extreme hardship to the defendant. It is argued that the defendant had the intention to sell the property in the year 1987, but with the passage of time, the increase in the prices will create undue hardship to the defendant and that the defendant is ready and willing to sell the land to the plaintiff at the current market price. It is also argued that the plaintiff has enjoyed the possession of the property on payment of meager sum of Rs. 6000/- as earnest money for the last 20 years. It is also argued that the plaintiff has enjoyed the possession of the property on payment of meager sum of Rs. 6000/- as earnest money for the last 20 years. Therefore, grant of decree for specific performance at this stage on the price settled by the parties in the year 1987 would be wholly inequitable, unjust and would be an act of extreme hardship over the defendant. Reliance is placed upon M. Meenakshi and others v. Metadin Agarwal (D) by LRs and others (2006)7 SCC 470, to contend that due to increase in prices on account of passage of time, the relief of decree in a suit for specific performance should have been declined under Section 20 of the Specific Relief Act, 1963. 5. Having heard learned counsel for the appellant at some length, I do not find any merit in the present appeal. The substance of the argument of the learned counsel for the appellant is that the price, which was adequate in the year 1987 is now inadequate now after more than 20 years of the said agreement. In other words, inadequacy of the price is the only argument as to cause hardship to the appellant. Section 20 of the Specific Relief Act, 1963 , 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. (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 other 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 would 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. 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)." 6. A perusal of Explanation 1 would show that mere inadequacy of consideration is not deemed to constitute an unfair advantage within the meaning of hardship in clause (b). 7. In the present case, the entire argument of the appellant is based upon hardship, on account of increase in price with that prevailing in the year 1987 as against the prevalent market price. In view of Explanation 1, such cannot be the consideration for declining relief of specific performance to the plaintiff-respondent. This aspect has been examined by the Hon-ble Supreme Court in P.D-souza v. Shondrilo Naidu, 2004(3) RCR(Civil) 668- (2004)6 Supreme Court Cases 649, wherein it has been held to the following effect -- "39.... It is, therefore, too late for the appellant now to suggest that having regard to the escalation in price, the respondent should be denied the benefit of the decree passed in his favour. Explanation I appended to Section 20 clearly stipulates that merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub- section (2) of Section 20. 45. The said decision cannot be said to constitute a binding precedent to the effect that in all cases where there had been an escalation of prices, the curt should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum. No law in absolute terms to that effect has been laid down by this Court nor is discernible from the aforementioned decision." 8. In view of the above, I do not find that any sub-stantial question of law arises for consideration of this Court in second appeal. Dismissed.