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2014 DIGILAW 1411 (ALL)

Mohd. Shahid v. Veerpal Singh

2014-05-01

PANKAJ NAQVI

body2014
JUDGMENT : Pankaj Naqvi, J. Heard Shri Varchasva Bajpai, learned counsel for appellants and Shri B.B.Johri, holding brief of Shri Bharat Pratap Singh learned counsel for respondent. 2. For the sake of convenience, parties shall described as they were referred before the trial court i.e. plaintiffs/defendants, unless specified otherwise. 3. This is defendants second appeal challenging the judgments and decree of courts below whereby suit for specific performance of contract has been decreed. 4. Veerpal Singh,? instituted a suit for specific performance of registered agreement to sell dated 30.9.1999 on the allegations that? defendant had agreed to sell ?rd share of plot no. 76 (total area 1.314 hectare) for a total sale consideration of Rs.1,76,000/- out of which Rs.1 lac was paid at the time of execution of the agreement and further Rs.30,000/- was paid on 2.10.2000 for which a receipt was also? executed. The balance sale consideration of Rs.46,000/- was to be paid at the time of the execution of the sale deed which was agreed to be executed within two years. It was alleged that even though? plaintiff was always ready and willing to perform his part of contract, but defendants were dilly dallying and avoiding the execution of the sale deed so much so that? plaintiff sent a registered notice dated 23.8.2001 calling upon the defendants to ensure their presence before the Sub-Registrar concerned on 14.9.2001. As? on 14.9.2001 staff of the office of Sub Registrar was on strike, a notice was sent on 17.9.2001 for 24.9.2001. It was alleged that even though plaintiff was present through out the day, defendant did not turn up.? Further a fresh notice and a telegram was also sent on 4.12.2001 for 12.12.2001 but again the defendants did not turn up, hence the suit. 5. The suit was contested on the ground that no agreement was executed by? defendants and that no sale consideration? ever passed.? It was further alleged that witnesses in agreement are highly interested,?? no reliance could be placed on them.? The execution of the alleged receipt was also denied.? It was further stated that relations between? plaintiff and defendant were cordial and that?? signatures of the defendant were obtained on the pretext of a compromise which was to be executed between the parties and that? recitals of the registered agreement to sell dated 30.9.1999 were never explained or read over to them.? It was further stated that relations between? plaintiff and defendant were cordial and that?? signatures of the defendant were obtained on the pretext of a compromise which was to be executed between the parties and that? recitals of the registered agreement to sell dated 30.9.1999 were never explained or read over to them.? It was finally alleged that the property in dispute which was sought to be? sold is sole Bhumidhari for which there was no occasion or justification. 6. The agreement was alleged to be attested by two witnesses Rajveer Singh (P.W.2) and Raj Kumar Singh.? It is not denied that only Rajveer Singh (P.W.2)? was examined.? P.W.2? proved the execution of the agreement by inter alia stating that the same was scribed by Raj Bahadur and thereafter the contents of the same were also explained to Mohd. Shahid and Mohd. Sajid (defendants).? He also stated that after? execution of the agreement, parties went before the Sub Registrar where agreement was got registered.? Registration also lends authenticity to the execution of the agreement.? Mohd Shahid (D.W.1) admitted the execution of the agreement and the photograph appended on the same including his thumb impressions and that of his brother on Paper no.7-A (registered agreement to sell dated 30.9.1999).? Further? said witness also admitted his signatures on paper no.26 ka which was the receipt executed by him for acknowledging the payment of Rs.30,000/- which was towards second installment of the earnest.? Thus from the totality of the evidence,? courts below took the view that execution of the agreement to sell dated 30.9.1999 was duly established and as? plaintiff were always ready and willing to perform his part of the contract,? suit for specific performance was decreed. 7. It was contended that despite a specific plea? that there was no occasion for the defendant? appellant to sell? his sole Bhumidhari,? courts below ought to have exercised its discretion for refund of earnest. 8. Section 20(2) of Specific Relief Act in so far is relevant, quoted herein below: "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 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; (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 at 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 any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. 9. A perusal of aforesaid provision would manifest that remedy of specific performance has always been held to be discretionary depending on the facts and circumstances of each case. It is always open for the court to refuse specific performance for cogent? reasons? and grant relief by way of refund of earnest.? 9. A perusal of aforesaid provision would manifest that remedy of specific performance has always been held to be discretionary depending on the facts and circumstances of each case. It is always open for the court to refuse specific performance for cogent? reasons? and grant relief by way of refund of earnest.? Clause (b) of sub section (2) of Section 20 contemplates one such situation.? It provides that where performance of contract would cause some hardship to defendant which he did not forsee and its non performance would involved no hardship to plaintiff, specific performance may be refused.? But the facts of the present case are not such where it could be applied.? There is no evidence on record to suggest that defendant was not aware of the consequences of execution of agreement to sell.? Execution of agreement is duly proved.? On the? contrary learned counsel for respondent, invited the attention of the court towards? cross examination of P.W.1 at page 115 wherein he stated that defendant has? other properties also.?? The court finds that there was no cross examination on this aspect by the defendants/appellants.? On the facts of present case defendant/appellant could not establish a case of exercise of discretion in favour of plaintiff under Section 20 of the Act. 10. The court finds that the findings recorded by the courts below are based on relevant and admissible evidence based on proper appraisal? to which no perversity could be demonstrated.? No substantial question of law arises. 11.The appeal is dismissed at admission stage with costs. Appeal Dismissed.