Specific performance cannot be allowed if one party will get unfair advantage over the other, as per Section 20(2)(a)(b) of the Specific Relief Act, 1963.

KANWALJIT SINGH AHLUWALIA, J.

In CM No.8593-C of 2011

C.M. is allowed. Exemption is granted as prayed for.

RSA No.3123 of 2011 (O&M)

The present Regular Second Appeal has been filed by the plaintiff to the suit. The learned trial Court had dismissed the suit for possession by way of specific performance of the agreement to sell dated 7.9.2000. The lower Appellate Court reversed the findings of the trial Court regarding execution of the agreement to sell dated 7.9.2000 but, however, had granted the alternative relief in favour of the plaintiff-appellant-purchaser by holding that he is entitled to recovery of Rs. One lac, paid as earnest money along with interest at the rate of 6% per annum from 1.7.2001 till recovery of the amount.

2. Briefly stated, it was pleaded in the suit that defendant-respondent-Mukhtiar Singh had executed an agreement dated 7.9.2000 in favour of the plaintiff-appellant for sale of 80/380th share measuring 4 Kanals out of the land, detail and description of which has been given in the plaint. It was pleaded that earnest money of Rs. One lac was paid and defendant-respondent had agreed to execute the sale deed of the suit land on or before 30.6.2001. All the expenses of the sale deed were to be borne out by the plaintiff-appellant and in failure of the plaintiff-appellant to get the sale deed executed, the earnest money was to be forfeited and in case the defendant-respondent failed to keep his promise, the plaintiff-appellant was well within his rights to get the sale deed executed through Court. It was further pleaded in the suit that defendant-respondent had delivered possession of the suit land at the time of execution of the agreement. Plaintiff-appellant remained ready and willing to purchase the suit property on payment of remaining sale consideration. According to the plaintiff-appellant 30.6.2001 and 1.7.2011 were holidays, therefore, he remained present before the Sub Registrar, Chamkaur Sahib on 2.7.2001 along with remaining sale consideration and the expenses which were to be incurred for registration of the sale deed.

3. Upon notice, the defendant-respondent appeared. He raised some preliminary objections and also denied execution of the agreement dated 7.9.2000 being false and fabricated.

4. The trial Court after completion of pleadings had formulated the following issues:-

“1-Whether the defendant entered into an agreement with the plaintiff to sell on 7.9.2000 regarding suit land and received Rs.1 lac as earnest money as alleged ? OPP

2-Whether the suit is not maintainable in the present form? OPD

3-Whether the plaintiff has no locus standi to file the present suit? OPD

4-Whether alleged agreement dated 7.9.2000 is forged and fabricated document, is so to what effect? OPD

5-Whether the plaintiff has been and still ready and willing to purchase the suit property? OPP

6-Whether the plaintiff is entitled for specific performance of the agreement to sell? OPP

7- If the above issue is not proved whether in the alternative, plaintiff is entitled for any amount, if so to what effect as alleged? OPP

8-Relief.

5. The trial Court held execution of the agreement to sell dated 7.9.2000 to be suspicious and came to the conclusion that there is no need for determination whether the plaintiff was ready and willing to perform his part of the contract. Thus, issue No.1 was decided against the plaintiff and in favour of the defendant. Issues No.2 and 3 were decided in favour of the defendant and against the plaintiff. The Court held that since agreement to sell dated 7.9.2000 is disputed, the prayer for alternative relief has become redundant. However, issues No.6 and 7 were decided against the plaintiff and in favour of the defendant. After the above said findings, the trial Court had dismissed the suit.

6. Aggrieved against the dismissal of suit, the plaintiff filed an appeal. The lower Appellate Court took into consideration the evidence which was led by the plaintiff by way of additional evidenc