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Himachal Pradesh High Court · body

2020 DIGILAW 222 (HP)

Duni Chand v. Shyam Lal

2020-03-11

TARLOK SINGH CHAUHAN

body2020
JUDGMENT Tarlok Singh Chauhan, J. - The defendant is the appellant, who after having lost in both the learned Courts below, has filed the instant regular second appeal. 2. The parties shall be referred to as the 'plaintiff' and the 'defendant'. 3. The plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 13.05.2008. The facts giving rise to filing of the suit are that the defendant is owner in possession of land measuring 0-3-6 bighas being 1/24 share, out of total land measuring 4-0-0 bighas comprised in Khata Khatauni No. 1975/2747, Khasra Kitas 4, land measuring 0-0-3 bigha being l/6th share, out of total land measuring 0-1-0 bigha, Khata-Khatauni No. 1973/2745, Khasra No. 4825, land measuring 0-0-3 bigha being 1/312 share, out of total land measuring 2-12-0 bigha, Khata Khatauni Nos. 1974/2746, Khasra No. 4840, total land measuring 0-3-12 bighas, along with one single storey lintel measuring 30x24 feet, situated in Phati Kharahal, Kothi Kais, Tehsil and District Kullu, Himachal Pradesh ( hereinafter referred to as the suit land). It was averred that the defendant as per agreement to sell dated 13.05.2008 had agreed to sell the suit land measuring 0-3-12 bigha along with house in favour of the plaintiff for a sale consideration of Rs.1,90,000/-. The plaintiff paid a sum of Rs.1,50,000/- as earnest money to the defendant and the rest of the sale consideration of Rs.40,000/- was to be paid at the time of execution and registration of the sale deed on or before31.05.2010, but the same was extended from 31.05.2010 to 26.05.2013. It was further averred that on 26.05.2013, the defendant was informed to come to Tehsil Compound at Kullu and to get the sale deed registered in favour of the plaintiff and also to receive the balance sale consideration of Rs.40,000/-. It was also averred that the plaintiff remained present in the Tehsil Compound, Kullu from 10.00 A.M. to 5.00 P.M. with the balance sale consideration of Rs.40,000/- and the other amount to meet the expenses of execution and registration of the sale deed, but the defendant did not turn up to execute the sale deed in favour of the plaintiff. It was also averred that the plaintiff remained present in the Tehsil Compound, Kullu from 10.00 A.M. to 5.00 P.M. with the balance sale consideration of Rs.40,000/- and the other amount to meet the expenses of execution and registration of the sale deed, but the defendant did not turn up to execute the sale deed in favour of the plaintiff. Even prior to this, a legal notice dated 16.08.2011 was served upon the defendant whereby he was requested to execute and register the sale deed in favour of the plaintiff, but despite service, the defendant failed to execute the sale deed. The plaintiff always remained ready and willing to perform his part of contract and is still ready and willing to perform the same. Lastly , it was averred that the defendant was asked time and again to execute and register the sale deed in favour of the plaintiff, but the defendant refused to do so, hence the suit. 4. The defendant contested the suit by filing written statement wherein he took preliminary objections qua maintainability, cause of action, locus-standi, limitation and estoppel. On merits, it was averred by the defendant that out of total sale consideration, he had received only a sum of Rs.88,000/- as earnest money and the remaining sale consideration was to be paid to him at the time of execution and registration of the sale deed. However, ownership and possession of the suit land and execution of the agreement in question have been admitted. It was further averred that the defendant being an illiterate and rustic person put his thumb impression on the agreement in good faith and the same was not read over and explained to him, but he is still ready and willing to perform his part of agreement. It was also averred that the defendant requested the plaintiff to pay the balance sale consideration of Rs.1,02,000/- and get the sale deed registered in his favour, but the plaintiff failed to do so and thereafter he issued a registered notice dated 27.06.2012 to the plaintiff, but despite service, the plaintiff did not come to perform his part of agreement. The defendant further averred that since the plaintiff has failed to perform his part of contract, therefore, the earnest money received by him from the plaintiff stands forfeited as per the stipulation made in the agreement. The defendant further averred that since the plaintiff has failed to perform his part of contract, therefore, the earnest money received by him from the plaintiff stands forfeited as per the stipulation made in the agreement. Lastly, it was averred that now the prices of the property have increased and thus the defendant is entitled to get the compensation of Rs.2,00,000/- and prayed for dismissal of the suit. 5. The plaintiff filed replication whereby he denied all the counter allegations and reiterated and reasserted the averments made in the plaint. It was denied by the plaintiff that he had paid only a sum of Rs.88,000/- as earnest money to the defendant. The agreement in question was read over and explained to the defendant and thereafter he admitted the contents of the agreement to be correct. 6. From the pleadings of the parties, the learned trial Court on 25.02.2014 and 26.05.2018 framed the following issues. "1. Whether the defendant vide agreement dated 13.5.2008 has agreed to sell the suit land along with house in favour of the plaintiff for a sale consideration of Rs.1,90,000/- and Rs. 1,50,000/-earnest money has been paid to defendant, as alleged? OPP. l(a) Whether the parties entered into another agreement dated 26.5.2010 extending date of the execution and registration of sale deed from 31.5.2010 to 26.5.2013, as alleged? OPP 2. Whether the plaintiff is still ready and willing to perform his part of contract as alleged? OPP. 3. Whether the plaintiff is entitled to the relief of possession by way of specific performance, as alleged? OPP. 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 5. Whether the plaintiff has no cause of action? OPD. 6. Whether the suit is barred by limitation? OPD. 7. Relief." 7. After recording evidence and evaluating the same, the learned trial Court decreed the suit filed by the plaintiff on 31.05.2018 and the appeal filed by the defendant against the judgment and decree passed by the learned trial Court before the learned first appellate Court came to be dismissed on 28.11.2018. 8. Aggrieved thereby, the defendant has filed the instant appeal before this Court mainly on the ground that the Court was not bound to grant the relief of specific performance merely because it was lawful to do so. In support of such contention, strong reliance has been placed on the judgments in Lt. Col. 8. Aggrieved thereby, the defendant has filed the instant appeal before this Court mainly on the ground that the Court was not bound to grant the relief of specific performance merely because it was lawful to do so. In support of such contention, strong reliance has been placed on the judgments in Lt. Col. K. C. Bheemaiah vs. Kakamada A. Kuttappa and others AIR 2004 Karnataka 224, Padma Kumari and others vs. Dasayyan and others (2015) 8 SCC 695 and Jayakantham and others vs. Abay Kumar (2017) 5 SCC 178 . Obviously, there can be no quarrel with the proposition of law propounded in the aforesaid judgments. 9. As regards the specific performance of the contract, it would be necessary for the Court to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub-section 2 of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-Section 2 of Section 20 is in the following terms : "Section 20 (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." 10. However, explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. (Refer : Jayakantham and others vs. Abaykumar, (2017) 5 SCC 178 ) 11. Having made a note of the well settled principles, certain binding precedents on the subject also need to be considered. Though there is plethora of law on the subject, however, the court need not to make note of the entire law and reference to certain recent decisions in this regard shall suffice. 12. In C. Nanjappa vs. R.A. Hameed, (2016) 1 SCC 762 , it was held that in a suit for specific performance of a contract, the court has to keep in mind Section 20 of the Specific Relief Act, 1963. Section 20 preservers judicial discretion to grant decree for specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. Relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to courts to exercise discretion one way or the other are only illustrative, they are not intended to be exhaustive. In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. It shall be apt to reproduce relevant observations as contained in paras 22 to 28 thereof, which read thus: "22. In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. It shall be apt to reproduce relevant observations as contained in paras 22 to 28 thereof, which read thus: "22. However, in a case where the plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties.23. In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. 24. In the case of Surya Narain Upadhyaya vs. Ram Roop Pandey and others, 1995 Supp (4) SCC 542 , this Court while considering Section 20 of the Specific Relief Act held as under:- "4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a 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 of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellant court, namely the appellant has always been ready and willing to perform his part of the contract." 25. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. 26. In the case of Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1 , this Court observed as under:- "8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation." 27. In the case of K. Prakash vs. B.R. Sampath Kumar, (2015) 1 SCC 597 , this Court held: "13. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation." 27. In the case of K. Prakash vs. B.R. Sampath Kumar, (2015) 1 SCC 597 , this Court held: "13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction. Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles. 14. The King's Bench in Rooke's case said: "Discretion is a science, not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with." 15. The Court of Chancery in Attorney General v. Wheate followed Rooke's case and observed: (ER p. 666) "... the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke's case, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. And as it is said in Rooke's case, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, insome cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge." 16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance." 28. Reference may also be made by this Court in the case of Zarina Siddiqui vs. A. Ramalingam, 2015 (1) SCC 705 , this Court observed as under:- "33. Reference may also be made by this Court in the case of Zarina Siddiqui vs. A. Ramalingam, 2015 (1) SCC 705 , this Court observed as under:- "33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance." 13. Similar reiteration of law can be found in Satish Kumar vs. Karan Singh, (2016) 4 SCC 352 , wherein it was observed as under:- "8. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. 9. This Court in Mayawantivs. Kaushalya Devi (1990) 3 SCC 1 held thus:- "8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation." 10. Exercise of discretionary power under Section 20 of the Specific Relief Act for granting a decree, this Court in the case of Parakunnan Veetill Joseph's Son Mathew vs. Nedumbara Kuruivila's Son and others, AIR 1987 SC 2328 observed:- "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Exhibit A-l. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance." 14. The principles as noted above, have thereafter been reiterated in the decision of Hon'ble Supreme Court in Jayakantham and others vs. Abaykumar, (2017) 5 SCC 178 , wherein it was observed as under: "7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub-section 2 of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-Section 2 of Section 20 is in the following terms : "Section 20 (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." 8. However, explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. 9. The precedent on the subject is elucidated below : 9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, this Court held that : (SCC p.345, para 14) "14. 9. The precedent on the subject is elucidated below : 9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, this Court held that : (SCC p.345, para 14) "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff..." 9.2. A similar view was adopted by this Court in Sardar Singh v. Smt. Krishna Devi: (SCC p. 26, para 14)"...14. Section 20(1) of the Specific Relief Act, 1963 provides that 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. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract." 9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd, this Court held thus : (SCC p.91, para 29) "...29. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature , shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature , shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court." 9.4. These principles were followed by this Court in A.C. Arulappan v. Smt. Ahalya Naik, with the following observations : (SCC pp. 604 & 606, paras 7 &15) "7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff." "15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court....." 9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors., and held thus : (SCC p. 150, para 6) "6. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court....." 9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors., and held thus : (SCC p. 150, para 6) "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen." 15. Similar reiteration of law can be found in the judgment of this Court in Rajesh Kumar Sood vs. Parvej Nowrojee, 2016 (3) SLC 1673 : 2016 (4) ILR 1583. 16. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen." 15. Similar reiteration of law can be found in the judgment of this Court in Rajesh Kumar Sood vs. Parvej Nowrojee, 2016 (3) SLC 1673 : 2016 (4) ILR 1583. 16. In view of the law expounded in the aforesaid judgments, it can be taken to be well settled that even though the Court is not bound to grant the relief of specific performance merely because it is lawful to do so, yet merely because the inadequacy of consideration or the mere fact that the contract is onerous to the defendant would not be a consideration for denying the relief of specific performance. The Court has to meticulously consider all facts and circumstances of the case and to see that no unfair advantage is obtained by either of the parties. Even though, the relief of specific performance is discretionary, but at the same time, it is not arbitrary. Discretion has to be exercised in accordance with the sound and reasonable judicial principles. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. This may be in a given case, one of the considerations besides many others, to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for him alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other, as also the hardship that may be caused to either of the parties while enforcing or refusing the specific performance. There may be one or other circumstances on which the parties may not have any control. Thus, this is totality of the circumstances that are required to be seen while granting or refusing the decree of specific performance. 17. There may be one or other circumstances on which the parties may not have any control. Thus, this is totality of the circumstances that are required to be seen while granting or refusing the decree of specific performance. 17. Judged in the light of the various pronouncements of the Hon'ble Supreme Court as also this Court, it would be noticed that it is the conduct of the defendant which definitely is not above board. 18. The defendant while appearing as DW-1 has specifically acknowledged the execution of the agreement dated 13.05.2008 whereby he agreed to sell the land measuring 0-3-12 bighas along with the house in favour of the plaintiff for total consideration of Rs.1,90,000/- and out of total sale consideration, Rs.1,50,000/- were paid as earnest money with the condition that the remaining amount of Rs.40,000/- would be paid to him at the time of execution and registration of the sale deed. No doubt, the defendant tried to state that he had received only Rs.88,000/- towards earnest money, but he failed to prove this fact, as has been noticed by both the learned Courts below. Such findings being pure finding of fact cannot be interfered with in the second appeal. 19. In addition thereto, it would be noticed that the time as initially provided for execution of the sale deed was on or before 31.05.2010, however, the same later on at the request of the defendant was extended to 26.05.2013, as is admitted by the defendant while appearing as DW-1. 20. In the interregnum, the plaintiff apprehended that the defendant would execute and register the sale deed in favour of someone-else, therefore, he served a legal notice dated 16.08.2011 requesting the defendant to execute the sale deed, but he failed to do so. Rather, the defendant issued a notice dated 27.06.2012 Ex. DW-l/B to the plaintiff to execute the sale deed after paying the remaining sale consideration of Rs.1,02,000/- on 10.07.2012, failing which the agreement would be cancelled and thereafter prepared an affidavit of his presence to this effect on 10.07.2012. 21. Rather, the defendant issued a notice dated 27.06.2012 Ex. DW-l/B to the plaintiff to execute the sale deed after paying the remaining sale consideration of Rs.1,02,000/- on 10.07.2012, failing which the agreement would be cancelled and thereafter prepared an affidavit of his presence to this effect on 10.07.2012. 21. Thereafter, on 26.05.2013, the plaintiff informed the defendant to come to the Tehsil Compound, Kullu, to execute and register the sale deed in his favour on receiving balance sale consideration of Rs.40,000/- and remained present in the Tehsil Compound from 10.00 A.M. to 5.00 P.M. along with balance sale consideration and expenses required for execution of the sale deed, but it was the defendant, who did not turn up. 22. The plaintiff always was and is still ready to perform his part of agreement as has been specifically recorded by both the learned Courts below and even before this Court the plaintiff has specifically stated that he is ready and willing to perform his part of the contract. 23. The findings recorded by both the learned Courts below are pure finding of fact which are immune from challenge unless such findings are perverse which is not a case in the instant appeal. 24. The question whether a substantial question of law arises for consideration has been considered by the Hon'ble Supreme Court very recently in C. Doddanarayana Reddy (Dead) By Lrs & Ors vs. C. Jayarama Reddy (Dead) By Lrs & Ors 2020 Law Suit (SC) 172 wherein it was observed as under: "25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-Elsmail Madris-Un-Niswan, 1999 6 SCC 343 , it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: "12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu, 1996 3 SCC 392 , this Court held: "It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did." 14. In Navaneethammal v. Arjuna Chetty, 1996 6 SCC 166 , this Court held : "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material." 15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N., 1997 4 SCC 484 , this Court held: (SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible." 25. Tested on the exposition of law (supra) and as earlier observed, the findings recorded in this case by both the learned Courts below are pure finding of fact which in absence of any perversity warrant no interference. 26. Having said so, I find no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.