Agreement to Sell--Increase in the prices after execution of the agreement to sell cannot be a ground to refuse specific performance of the agreement to sell

Anil Kshetarpal, J.

1. Defendant-Appellant is in the regular second appeal against the judgment passed by the learned first appellate court reversing the judgment of the trial court and granting decree for specific performance of the agreement to sell dated 17.10.2005.

2. In the present case, signatures on the agreement to sell are not disputed, however, defendant has pleaded that the agreement to sell was executed in good faith and the same is result of fraud. It has been pleaded that the defendant is not the complete owner of the property.

3. Learned trial court after returning a finding that the execution of the agreement to sell and payment of earnest money has been proved, ordered refund of double of the amount of the earnest money on two grounds:-

(i) that the title of the defendant is not clear.

(ii) that the Rehabilitation Department is not party to the suit.

4. Learned first appellate court after re-appreciating the evidence decreed the suit as noticed above.

5. Learned counsel appearing for the appellant has submitted that in the agreement to sell, there was no date for performance of the contract. He submitted that the amount of balance sale consideration was never tendered to the defendant nor it was sent through any demand draft. Hence, he submitted that the plaintiff is not proved to be ready and willing to perform his part of the contract. He further submitted that the discretion exercised by the first appellate court is erroneous. He further submitted that the title of the defendant-appellant is defective and therefore, decree for specific performance should not have been passed. He further submitted that now the decree for specific performance of the agreement to sell is inequitable because the prices of the property have increased very sharply.

6. On the other hand, learned counsel appearing for the respondent has submitted that in the agreement to sell it had been clearly stipulated that the sale deed would be executed within a period of 60 days. He further drew attention of the court to the copy of the plaint wherein the plaintiff has pleaded that he contacted the defendant for execution and registration of the sale deed and the defendant orally informed him that he will get the sale deed registered on 15.12.2005. Therefore, the plaintiff went to the office of Sub-Registrar on 15.12.2005 but the defendant did not come forward and in order to prove his presence he got attested an affidavit from the Executive Magistrate on 15.12.2005. He has further submitted that the plaintiff has pleaded that he was always ready and willing and still ready and willing to perform his part of the contract. The suit was filed within one month from the date the plaintiff visited the office of Sub-Registrar. Hence, the plaintiff is proved to be ready and willing to perform his part of the contract. He further submitted that the learned first appellate court has exercised the discretion in accordance with Section 20 of the Specific Relief Act, 1963. He further submitted that there is no evidence with respect to any defece in the title of the plaintiff. He submitted that the defendant had purchased the property in a public auction from the Rehabilitation Department and his bid was accepted on 20.07.2005. Plaintiff has already deposited the entire amount and the sale is only to be approved. He further submitted that there is no evidence that there was any restriction on the sale of the property. He further submitted that if the decree for specific performance is not upheld, it is the plaintiff who would suffer irreparable loss as the defendant who had entered into an agreement to sell with open eyes but thereafter refused to perform his part of the contract. Hence, the defendant cannot be given benefit of delay in disposal of the suit.

7. This Court has analyzed the arguments of learned counsels and with able assistance of learned counsels for the parties gone through the judgments passed by the courts below and the record.

8. As r