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2009 Supreme(UK) 520
2010 (1) UAD 351
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Sudhanshu Dhulia
Second Appeal No. 38 of 2004
ILAM CHAND & ORS. – Defendants/Appellants
Versus
SMT. KUNTA – Plaintiff/Respondent
Decided on : 23.10.2009
Subject
Contract Law - Specific Performance
Act Referred
SPECIFIC RELIEF ACT : S.20, S.16
Headnote
(B) Civil Procedure Code, 1908, Sec. 34 — Interest — Proviso to — That interest can be awarded in the decree but it shall not exceed the contractual rate of interest — But in case there is no contractual rate of interest — Then in such cases the rate of interest shall be the interest on which moneys are lent or advanced by nationalized banks in relation to commercial transactions — Held — On well-established principles, the interest shall be calculated not from the date of the agreement i.e. 29.10.1992 but it shall be calculated from the date of filing of the suit i.e. 22.8.1996 — The decree of the courts below is upheld with modification that the interest of 11% shall be calculated from the institution of suit and not from the date of the ageement.
(Paras 11, 13, 14)
¼v½ fof'k"V vuqrks"k vf/kfu;e] 1963] /kkjk 16 vkSj 20 & fof'k"V fu"iknu fMdh Lohdr dh xbZ & fof'k"V fu"iknu fMdh dk dk;Z {ks= Losfoosdk/khu gS vkSj U;k;ky; dsoy bl fy, ,sls vuqrks"k dks Lohdr djus gsrq ck/; ugha gS ih MCY;w fd ,slk djuk dkuwuu lgh gS & ijUrq U;k;ky; dk Lofoosd LosfPNd u gksdj xaHkhj vkSj U;k;ksfpr gksuk visf{kr gS tks fd U;kf;d fl)kUrksa ij vk/kkfjr vkSj vihyh; U;k;ky; }kjk gh 'kqf) djus ;ksX; gS & izfroknh }kjk nk;j f}rh; vihy esa ;g fu.kZ; fn;k & tc nksuksa voj U;k;ky;ksa }kjk ;g fu.kZ; fn;k tk pqdk Fkk fd uk rks oknh }kjk uk gh izfroknh }kjk cSukek djus esa viuh viuh bPNk vkSj rS;kjh iznf'kZr dh xbZ Fkh rks vadu #d 1,00,000/- dh fMxzh ds lEcU/k esa dksbZ vlaxfr ugha FkhA ¼izLrj 8] 12½
¼c½ nhokuh izfd;k lafgrk] 1908] /kkjk 34 ds vUrxZr C;kt dk izkfo/kku & bl ds vuqlkj fMdh esa C;kt fn;k tk ldrk gS ijUrq ;g r;'kqnk C;kt dh nj ls vf/kd ugha gksxk & ijUrq ml n'kk esa tc dksbZ r;'kqnk C;kt nj u gks] rc ,sls dslst esa C;kt nj og gksxh tks jk"Vªh;dr cSadksa }kjk okf.kfT;d ysunsu esa /kujkf'k dks m/kkj vFkok _.k nsus ds :i esa yxk;k tkrk gS & fu.kZ; esa dgk x;k fd izfrikfnr fl)kUrksa ds vuqlkj C;kt dh x.kuk vuqcU/k dh frfFk ;kuh 29-10-1992 ls u djds okn nk;j djus dh frfFk ;kuh 22-8-1996 ls dh tk,xh & voj U;k;ky; dh fMdh bl la'kks/ku ds lkFk iq"V dh tkrh gS fd 11% dh nj ls C;kt] okn nk;j djus dh frfFk ls vkadfyr fd;k tk,xk uk fd ,xzhesaV dh frfFk lsA ¼izLrj 11] 13] 14½
For the Appellants :Mr. Lok Pal Singh, Advocate
For the Respondent:Mr. A.K. Sharma, Advocate
Heard Sri Lok Pal Singh, Advocate for the defendants/appellants as well as Sri A.K. Sharma, Advocate for the plaintiff/respondent.
2. The plaintiff/respondent had filed a suit for specific performance against the defendants/appellants being Suit No. 136 of 1996. The facts giving rise to the filing of the aforesaid suit are as follows :
3. An agreement was executed between the plaintiff and the defendants on 29.10.1992 which was registered as per the agreement the defendants had to sell its land to the plaintiff for a consideration of Rs. 3,87,765/- for which as per the agreement an amount of Rs. 1,00,000/- was given as earnest money. The remaining amount was to be given by the plaintiff to the defendants within a year and the sale deed was to be executed on 31.8.1993. According to the plaintiff since the defendants refused to execute the sale deed, she constrained to file a suit for specific performance against the defendants. The trial court formulated the following issues :
(A) Whether the plaintiff, as per the agreement dated 29.10.1992 was always ready and willing to execute the sale deed?
(B) Whether there has been a breach of contract on the part of the plaintiff and consequently the amount given by the plaintiff to the defendants i.e. Rs. 1,00,000/- is not liable to be returned to the plaintiff?
(C) Whether the suit is barred by Section 20 of the Specific Relief Act?
(D) Whether the suit is barred by limitation?
(E) Whether the time was an essence of contract? If yes, then its effect?
(F) To what relief the plaintiff is entitled for?
(G) Whether as per the terms of the agreement the defendants had dug and installed tube-well and planted trees? If yes, then its effect?
(H) Whether the suit is barred by Section 154 of Zamindari Abolition Act?
4. The trial court after examining the entire evidence on record and after considering the arguments advanced by both the parties came to the conclusion as far as “readiness and willingness” is concerned, neither the plaintiff nor the defendants showed any readiness or willingness to execute the contract and as such following decree was passed :
The amount of Rs. 1,00,000/- along with 11 per cent interest was given to the plaintiff. The interest was to be calculated from the date of the agreement i.e. 29.10.1992.
5. Against the said decree the defendants filed a first appeal being Civil Appeal No. 6/2000 Ilam Chand & others v. Smt. Kunta. The lower appellate court had dismissed the appeal of the defendants and confirmed the decree passed in favour of the plaintiff.
6. Aggrieved, the defendants have filed the present second appeal. This second appeal has been admitted on the following substantial questions of law :
(A) Whether the Courts can pass a decree in favour of plaintiff beyond the terms of contract along with 11% interest, where there is no condition in the contract for refund of money along with interest?
(B) Whether unless the Courts found that the main relief sought by the plaintiff/respondent cannot be granted without recording the findings in this regard, whether the Court can grant alternative relief and without refusing the main relief for specific performance, the learned Courts below committed illegality in granting the alternative relief?
7. Both the substantial questions of law on which the second appeal is admitted are being decided accordingly.
8. First and foremost, the relief of specific performance is a discretionary relief. Undoubtedly this discretion can never be arbitrary and has to be passed on sound and reasonable established principles. Nevertheless, the trial court as well as the lower appellate court has come to a considered view that under the present facts and circumstances and based on the findings adduced by both the parties the readiness and willingness both on the part of the plaintiff and the defendants could not be clearly established. Consequently instead of granting a decree of specific performance, the trial court has rightly decreed
