The main legal point established in the judgment is that specific performance of a lease deed is discretionary and may not be granted if the party seeking it has failed to fulfill their obligations under the deed.

JUDGMENT :

Arup Kumar Goswami, J.

1. Appellant in RFA No. 08/2018 had filed a suit against the appellant in RFA No. 09/2018 for specific performance of contract in the Court of District Judge, East Sikkim at Gangtok.

2. The case was transferred to the Court of District Judge, Special Division-I, East Sikkim at Gangtok where the same was registered as Title Suit No. 14/2015. Subsequently, the father of appellant in RFA No. 09/2018, on an application being filed by him, was arrayed as Defendant no. 2 in the suit.

3. Later on, one Mr. Taktuk Bhutia and one Mr. Bimal Kumar Jain also filed applications to implead them as parties. Mr. Taktuk Bhutia claimed that he was in possession of the suit property. The plea taken by Mr. Bimal Kumar Jain was that he had purchased a portion of the suit property by a registered sale deed dated 27.03.2008. The learned Trial Court impleaded the aforesaid two individuals as Intervener nos. 1 and 2, respectively.

4. By Judgment and Order dated 28.09.2018, the learned Trial Court, while declining to grant a decree of specific performance of contract in respect of a lease deed dated 30.08.2018, ordered defendant no. 1 (appellant in RFA No. 09/2018) to refund an amount of Rs. 27 lakhs to the plaintiff along with interest @6% per annum with effect from 18.12.2012 till the date of filing of the suit i.e. 01.09.2015, pendente lite interest @6% per annum and further interest @6% on the principle sum adjudged till fully recovery.

5. In both the appeals, while the father of appellant in RFA No. 09/2018 is arrayed as Respondent no. 2, Mr. Taktuk Bhutia and Mr. Bimal Kumar Jain are arrayed as respondent no. 3 and 4, respectively.

6. Aggrieved by the aforesaid judgment, plaintiff has filed the appeal contending that the learned Trial Court ought to have granted a decree of specific performance of contract as prayed for and the learned Trial Court committed error of law even in decreeing the suit for Rs. 27 lakhs in as much as materials on record demonstrate that a sum of Rs. 71 lakhs had been paid to the defendant no. 1/appellant in RFA No. 09/2018.

7. Defendant no. 1 had also filed an appeal being RFA No. 09/2018 being aggrieved by the direction to pay an amount of Rs. 27 lakhs to the plaintiff.

8. The suit was filed stating that a lease deed was entered into by the plaintiff and defendant no. 1 on 30.08.2012 to lease out a flat on the ground floor of the building mentioned in Schedule A to the plaint measuring about 40 ft. x 21 ft. for a period of 99 years with a renewable clause of 99 years on a consideration amount of Rs. 1 crore, out of which, the plaintiff had paid Rs. 44 lakhs as advance payment. Subsequently, the plaintiff also paid a sum of Rs. 5 lakhs on 01.11.2012 and Rs. 12 lakhs on 14.11.2012, thereby, making a total payment of Rs. 61 lakhs.

9. The defendant no. 1 had submitted the lease deed before the Sub-Registrar, East District for registration. The brother, mother and father of the defendant no. 1 had issued No Objection Certificate (NOC) in favour of the defendant no. 1 for leasing out the suit property in favour of the plaintiff. However, in spite of several requests the defendant no. 1 did not turn up for necessary registration formalities though the plaintiff was ready and willing to pay the balance amount of Rs. 39 lakhs at the time of execution of the lease deed.

10. A lawyer's notice dated 06.09.2012 was issued in this connection but even after that as the defendant no. 1 did not perform registration of the lease deed in favour of the plaintiff, the suit came to be filed for specific performance of contract. An alternative prayer was made for a decree directing the defendant no. 1 to return the advance amount of Rs. 61 lakhs to the plaintiff along with 12% interest if the decree for specific performance of contract cannot be granted.

11. The plaint was subsequently amended to the effect that the plaintiff had also paid an amount of Rs. 10 lakhs vide debit voucher no. 235 dated 13.12.2012 and thus, a