RFA No. 58/2019 Page 1 of 12

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 58/2019

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23^rd January, 2019

GAYATRI GUPTA

..... Appellant

Through:

Dr. Jose P. Varghese and Mr.

Dhruv Jose, Advocates.

(9871295411)

versus

RUBY SHARMA & ORS.

..... Respondents

Through:

CORAM:

HON’BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 3419/2019 (condonation of delay in re-filing)

For the reasons stated in the application, delay in re-filing is

condoned, subject to just exceptions.

CM stands disposed of.

RFA No. 58/2019 & CM No. 3418/2019 (stay)

1.

This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 13.09.2018 by which

RFA No. 58/2019 Page 2 of 12

the trial court has dismissed the suit for specific performance filed by

the appellant/plaintiff with respect to the Agreement to Sell dated

04.06.2007 for the property bearing no. 250 Ground Floor, Pocket-1,

Sector-23, Category H, Type-A, Dwarka, New Delhi by holding that

though the Agreement to Sell stands proved and there is a breach on

the part of the respondent no. 1/defendant no. 1/seller, yet the suit

cannot be decreed as the appellant/plaintiff cannot be granted the

discretionary relief of specific performance as the appellant/plaintiff

has only paid a sum of Rs. 1,75,000/- plus Rs. 13,000/- (total being

Rs. 1,88,000/-) out of the total sale consideration of Rs. 21,00,000/-.

2. Though the trial court has not referred to the judgment of

the Hon'ble Supreme Court in the case of Saradamani Kandappan v.

S. Rajalakshmi and Others, (2011) 12 SCC 18, the reasoning of the

trial court is based upon the ratio of the judgment of the Hon'ble

Supreme Court in the case of Saradamani Kandappan (supra), and

the above judgment states that by paying only a small portion out of

the total sale consideration as advance, a buyer cannot be allowed to

have a decree of specific performance many years later when property

prices have considerably increased in the meanwhile, and thereby a

RFA No. 58/2019 Page 3 of 12

seller is prejudiced because the seller cannot purchase a similar

property many years later on the same sale price of a property as was

agreed many years ago under the earlier agreement to sell. I have

considered the judgment of the Hon'ble Supreme Court in the case of

Saradamani Kandappan (supra) for refusing the discretionary relief

of specific performance in the judgment in the case of M/s Hotz

Industries Pvt. Ltd. v. Dr. Ravi Singh (Since Deceased Through

LRs) & Ors., 249 (2018) DLT 638. The relevant paras of this

judgment are paras 20(i) to 23, and these paras read as under: -

“20.(i)

The next aspect to be considered is as to whether plaintiff is

entitled to the discretionary relief of specific performace. In law, merely

because there is an agreement to sell, and that the proposed seller is found

to be guilty of breach of agreement to sell, yet it does not automatically

follow that a proposed buyer is only for that reason entitled to the specific

performance of the agreement to sell. In fact, besides the

defendants/proposed sellers being guilty of breach of contract, and that

even if the proposed buyer/plaintiff proves that there was financial

capacity in the plaintiff to pay the balance sale consideration, yet the

plaintiff is not necessarily and automatically entitled to specific

performance, and this is because the grant of relief of specific performance

is a discretion vested in the Court as per Section 20 of the Specific Relief

Act.

(ii)

An agreement to sell i