2020 Supreme(Kar) 460

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K.S. Mudagal, Suraj Govindaraj, JJ.
Pandurang - Appellant
Versus
Ravi - Respondent
R.F.A. No. 100230/2017
Decided On : 08-05-2020

Headnote:

Specific Relief Act, 1963 - Sections 17, 18, 20 and 21 - Indian Evidence Act, 1872 - Section 58 - Limitation Act, 1963 - Possession of suit property - Jurisdiction of Court - Whether trial Court was justified in holding that plaintiff has proved execution of agreement of sale and receipt of part consideration - Whether finding of Trial Court as regards identity of property is sustainable - Whether trial Court was justified in holding that plaintiff has proved his readiness and willingness to perform his part of contract - Whether trial Court was justified in holding that suit was in time - Whether trial Court was justified in decreeing suit for specific performance - Defendant is absolute owner and in possession of suit property - For his family necessity he agreed to sell suit property in favor of plaintiff for a consideration - Receiving as earnest money in presence of witnesses defendant executed an agreement of sale - Further Defendant received advance consideration under due receipts – Thus he received in all as part sale consideration - Defendant went on dodging execution of sale deed - Defendant did not claim notice sent by plaintiff demanding execution of sale deed - Therefore he is constrained to file suit - Defendant filed written statement denying execution of sale deed receipt of consideration identity of property notice and readiness and willingness of plaintiff to perform his part of contract - He contended that suit was barred by time and market value of property was crores of rupees – Held, It was contended that suit was barred by time - As per Article 54 of Limitation Act, 1963 time prescribed for filing suit for specific performance of contract is three years from date fixed for performance or if no such date is fixed when plaintiff has notice that performance is refused - As per schedule of payment in Ex.P1 last payment was due - On receiving said amount defendant had to execute sale deed - Suit was filed - In Ex.P1 neither date for performance was fixed nor outer date for execution of sale deed after last installment was fixed – Therefore second part of Article 54 notice of refusal of performance applies - Plaintiffs evidence that defendant went on postponing receipt of balance amount and execution of document was not disputed in his evidence - Therefore cause of action to plaintiff starts from date of service of Ex.P7 notice - Suit was filed within three years from that date – Therefore trial Court was justified in holding that suit was on time - Section 20 of Specific Relief Act, 1963 governs grant of a decree for specific performance - Section 20(1) of Act states that jurisdiction of Court to grant a decree for specific performance is discretionary and discretion shall be guided by judicial principles and not arbitrarily - Section 20(2) of Act specifies category of cases in which discretion to grant a decree for specific performance may not be exercised - Section 20(2)(a) of Act speaks of cases which give plaintiff an unfair advantage over defendant - Section 20(2)(b) of Act speaks about cases which cause hardship to defendant which he had not foreseen at time of agreement - Section 20(2)(c) of Act speaks of cases where granting specific performance is inequitable to defendant - Defendant did not plead any of aforesaid grounds to bring his case under Section 20(2) of Act - His only contention was that property was worth crores of rupees - Thereby he meant inadequacy of consideration - Defendant did not lead any evidence to show that consideration was inadequate much less unconscionable - Explanation I to Section 20(2) of Act states that mere inadequacy of consideration does not constitute an unfair advantage within meaning of Clause (a) or hardship meant under clause (b) of Act - Explanation-II states that hardship contemplated under Section 20(2)(b) of Act is one which resulted from act of plaintiff and not of defendant - Section 20(3) of Act states that it is proper to exercise discretion to grant a decree of specific performance in any case where plaintiff has done substantial acts or suffered losses in consequence of contract - In his written statement defendant did not plead grounds of unfair advantage hardship or inequity to him - Plaintiff parted with a huge sum and deposited before trial Court by filing suit and prosecuted litigation up for almost for about ten years before trial Court – Thereby he had done substantial acts as contemplated under Section 20(3) of Act – Therefore rejecting decree for specific performance was causing loss to him - Appeal is dismissed