Specific performance cannot be granted when land acquisition renders it impossible; compensation awarded must be reasonable and based on market value.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment and decree dated 15.10.2019, passed by learned District Judge Shimla whereby the appeal filed by the appellant (plaintiff before the learned Trial Court) and respondent no. 1 (defendant before the learned Trial Court) was partly allowed. (Parties shall hereinafter referred to in the same manner as they were arrayed before the learned trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned Trial Court seeking the specific performance of an Agreement to Sell dated 13.07.2004 (Ext. PW3/A) regarding the suit land mentioned in para 1 of the plaint or in the alternative for the recovery of Rs.1,00,000/- along with interest @18% per annum from the date of execution of the agreement. A consequential relief of permanent prohibitory injunction restraining the defendant from alienating the suit land to any person was also sought. It was pleaded that the parties entered into an agreement to sell on 13.07.2004 in the presence of witnesses S.R. Chauhan and Kishan. An amount of Rs.50,000/- was paid as earnest money to the defendant. It was agreed that the remaining amount of Rs.80,000/- would be paid at the time of the execution of the sale deed. The sale deed was to be executed within 90 days of the execution of the agreement. The time to execute the sale deed was mutually extended by the parties on 28.02.2005 and an endorsement was made to this effect on the back of the agreement. The defendant failed to execute the sale deed even within the extended time. The plaintiff had constructed the house on the suit land in the year 1991. He was coming in exclusive possession of the suit land. The plaintiff installed Electricity connection and water connections and paid the municipal taxes to M.C. Shimla. The plaintiff remained ready and willing to perform his part of the agreement. The defendant failed to execute the sale deed despite the receipt of a valid notice. The plaintiff had constructed the house by spending Rs.3,97,584/- and in case, the specific performance was not granted, a decree of Rs.10,00,000/- was sought.

3. The suit was opposed by defendant no. 1 by filing a written statement taking preliminary objections regarding lack of maintainability, cause of action and jurisdiction, the plaintiff having suppressed the material fact from the Court, the plaintiff being estopped to file the present suit by his act and conduct, the suit having not been properly valued for the purpose of Court fees and jurisdiction and the suit being bad for non-issuance of notice under Section 80 of CPC. The contents of the plaint were denied on merits. However, it was admitted that the parties entered into an agreement to sell the suit land on 13.07.2004 in the presence of witnesses S.R. Chauhan and Kishan. It was also admitted that the defendant received Rs.50,000/- at the time of execution of the agreement and the remaining amount of Rs.80,000/- was to be paid within 90 days of the execution of the agreement. It was asserted that the plaintiff failed to pay the remaining amount of Rs. 80,000/- towards the sale consideration. The defendant approached the plaintiff to execute the sale deed but the plaintiff failed to arrange Rs.80,000/-. He requested the defendant to extend the time for the execution of the sale deed. This request was accepted and the time was extended till 13.07.2004. The plaintiff failed to arrange the money and time was again extended till 28.02.2005. The plaintiff failed to abide by the terms and conditions of the agreement. It was specifically denied that the plaintiff constructed a house on the suit land. It was asserted that the construction was made by the defendant and this fact was duly mentioned in the agreement executed between the parties. The defendant suffered a huge financial loss as he had to visit Shimla from Delhi for the execution of the agreement.