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2020 Supreme(HP) 494
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Duni Chand - Appellant
Versus
Shyam Lal - Respondent
RSA No.15 of 2019.
Decided On : 11-03-2020
Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Anaida Kuthiala, Advocate, For the Appellant; Mr. Arun Sehgal, Advocate, For the Respondent
The discretion of the court to grant specific performance is guided by judicial principles and is not arbitrary. The mere inadequacy of consideration or the fact that the contract is onerous to the defendant would not be a consideration for denying the relief of specific performance.
Headnote:
Specific Performance - Agreement to Sell - Specific Relief Act, 1963 - Section 20(2) - The court is not bound to grant the relief of specific performance merely because it is lawful to do so. 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. 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). 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.
Fact of the Case:
The plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 13.05.2008. The defendant contested the suit by filing written statement denying the allegations and raising preliminary objections. After recording evidence, the trial Court decreed the suit, which was upheld by the first appellate Court. The defendant filed the instant appeal before this Court.
Finding of the Court:
The Court dismissed the appeal, finding that the plaintiff was ready and willing to perform his part of the contract, and the defendant's conduct was not above board. The Court held that the findings recorded by both the learned Courts below were pure findings of fact and warranted no interference.
Issues: The issues framed by the trial Court included the agreement to sell, extension of the execution and registration date, readiness and willingness of the plaintiff to perform the contract, entitlement to possession by way of specific performance, maintainability of the suit, cause of action, and limitation.
Ratio Decidendi: The Court emphasized that the discretion of the court to grant specific performance is not arbitrary but is guided by judicial principles. The Court also highlighted that the mere inadequacy of consideration or the fact that the contract is onerous to the defendant would not be a consideration for denying the relief of specific performance.
Final Decision: The Court dismissed the appeal, leaving the parties to bear their own costs.
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. 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 contr
