The court's discretion to grant specific performance of a contract is guided by judicial principles and is not arbitrary. The court must consider all facts and circumstances of the case and ensure that no unfair advantage is obtained by either party.

Tarlok Singh Chauhan, J.

The plaintiff has filed the instant suit for specific performance of contract executed between the parties on 13.3.1997 whereby the defendant had agreed to sell plot No. 503, Type-B in Sector-4, B.C.S., Phase-II, New Shimla to the plaintiff or in the alternative for recovery of Rs.80,00,000/( for short suit land). It is averred that an agreement to sell was executed between the parties whereby the defendant agreed to sell the suit land that had been allotted to the defendant vide letter dated 14.02.1996 by the Chief Administrator of the then H.P. Nagar Vikas Pradhikaran, Kasumpti, Shimla-9 at the cost of Rs.3,67,388/. The area of the plot was 182.72 sq.mtrs. and was in possession of the defendant on hirepurchase basis. The defendant agreed to sell/transfer the plot and it was agreed that the plaintiff would make the payment through gross drafts in the name and saving bank account at UCO Bank, Kasumpti of the original transferee i.e. the defendant on account of payments made/deposited by him with the Himachal Pradesh Nagar Vikas Pradhikaran at the rate Rs.20,000/in 8 (eight) quarterly instalments and it was also agreed by the parties that the first such instalment had been deposited on 12.3.1997. In terms of the agreement of sale, the plaintiff deposited a sum of Rs.1,95,000/in 8 (eight) quarterly instalments. In addition thereto, a sum of Rs.5,83,877/was deposited by the plaintiff with the Himachal Pradesh Nagar Vikas Pradhikaran towards cost, ground rent, enhanced cost of plot and ground rent for the period 2012-2013 and 2013-2014. Thus in all, the plaintiff deposited a total sum of Rs.7,78,877/. The Himachal Pradesh Housing and Urban Development Authority (for short HIMUDA) enhanced the cost of the plot allotted to the defendant by Rs.1,22,636/which was deposited by the petitioner on 3.7.2008. In addition thereto, the plaintiff paid the ground rent and also the enhanced ground rent amounting to Rs.25,000/and Rs.6,891/respectively. It is averred that the plaintiff had fulfilled all the terms and conditions of the agreement dated 13.3.1997 and had performed each and every condition of the agreement and was still ready and willing to perform the same, but the defendant was dillydallying the matter and reluctant to transfer the plot in the name of the plaintiff. Hence, the suit.

2. The defendant contested the suit by filing written statement wherein preliminary objections regarding maintainability, concealment of material facts, the plaintiff having not approached the court with clean hands, alleged agreement of sale being not enforceable, suit being bad for non-joinder of necessary parties, limitation, valuation etc. were raised. On merits, the execution of the agreement in question was not disputed. However, it was submitted that the agreement though had been reduced into writing, yet the same is not a legal and valid document as it was in contravention of the terms and conditions as contained by the HIMUDA, which was previously known as Himachal Pradesh Nagar Vikas Pradhikaran and, therefore, the plaintiff was not entitled to the relief claimed.

3. It is further averred that the allotment in question was governed by the conditions as contained in Annexure ‘A’ attached with the allotment letter, according to which, the lease in respect of the plot in question commenced with effect from the date of issue of the letter after payment of the amount as mentioned in the said letter. Apart from the payment of Rs.3,67,380/the defendant was also liable to pay from the commencement of this lease ground rent calculated on the premium of the land @ 2 ½% per annum for the first 33 years, @ 3¾ % per annum for the next 33 years and @ 5% per annum for the remaining 33 years of the lease and in case there was any contravention of these terms and conditions, the hire purchase agreement that had been executed in favour of the defendant by the Pradhikaran on 6.4.1996 was liable to be terminated. It is further averr