Agreement to Sell – Mere inadequacy of the consideration cannot be a ground to deny the specific performance

Mr. Anil Kshetarpal, J. (Oral).:- CM No.9932-C of 2016

1. Application is allowed, as prayed for.

Main Case

2. The defendant-appellant is in Regular Second Appeal against the judgment passed by the learned Additional District Judge, Kurukshetra.

3. The plaintiff had filed a suit for specific performance of the contract dated 07.11.2006, whereby the defendant had agreed to sell the land measuring 13 kanals 11 marlas being 1/4th share of the land measuring 54 kanals 3 marlas for a sum of Rs.10,00,000/-. It was asserted that the defendant had received a sum of Rs.5,00,000/- as earnest money and the date for execution and registration of the sale deed had been fixed as 20.02.2007.

4. The defendant contested the suit and pleaded that one Sh. S.S. Sharma who was his Commission Agent had offered to get the tower of the Reliance Company installed on a land measuring 10 feet x 10 feet and under that pretext, the defendant had handed over the papers on which the agreement to sell has been forged.

5. To prove the agreement to sell, the plaintiff himself appeared in the witness box and also examined the attesting witness PW2-Sushil Kumar. The plaintiff further examined the Stamp Vendor from whom the non-judicial stamp papers for the purpose of the execution of the agreement to sell were purchased. The Stamp Vendor further proved that the defendant had put his thumb impressions on the register maintained by him.

6. Although, learned trial Court dismissed the suit, however, the learned First Appellate Court after re-appreciating the evidence available on the file decreed the suit filed by the plaintiff. Learned First Appellate Court has discussed the evidence in detail and had arrived at a conclusion that the view taken by the trial Court was erroneous.

7. I have heard the learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below and the photocopies of the record produced by the learned counsel for the parties.

8. Learned counsel for the appellant has submitted as under:-

1. The suit is barred under Order 2 Rule 2 CPC.

2. From a bare look at the agreement to sell, it is proved that the thumb impressions of the defendant are for the purpose of affidavit or for drafting of pleadings to be filed in the Court.

3. The price of the land at which the land is agreed to be sold is much less than the market price and, therefore, the decree for specific performance could not be passed.

9. On the other hand, learned counsel for the respondent has supported the judgment passed by the learned First Appellate Court. He has submitted that there was no issue framed by the Courts below on Order 2 Rule 2 CPC. He has further submitted that the defendant-appellant did not press this point even in the absence of issue either before the trial Court or before the First Appellate Court. He has further submitted that a bare look at the agreement to sell would show that on the first page, the defendant-appellant had put his thumb impression as well as on the second page also he had put three thumb impressions. One of the thumb impression is on the revenue stamp. He has further submitted that the defendant did not even pray for framing of an issue about the inadequacy of the price the land. He has submitted that the price is determined by the agreement between the parties and the Court cannot deny the relief on this count as per Explanation 1 of Section 20 of the Specific Relief Act.

10. As far as first argument of the learned counsel that the suit is barred under Order 2 Rule 2 CPC, it is sufficient to mention that the defendant did not seek any issue on Order 2 Rule 2 CPC. No argument was raised before the Courts below on this aspect.

11. In Regular Second Appeal, for the first time, counsel for the defendant has raised such argument. Still further, it is not in dispute that the plaintiff had filed a suit for injunction previously but that was before the date on which the cause of action to f