Specific Relief; Rajendra Singh Vs. Chandra Pal [Allahabad High Court, 13-05-2016]

Specific Relief Act, 1963¬†– Section 20 –¬†Discretion as to decreeing specific performance – Suit for Specific Performance – Guidelines for discretion of granting and refusing relief of specific performance.

Specific Performance


HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon’ble Pramod Kumar Srivastava, J.

13 May, 2016

SECOND APPEAL No. – 291 of 2016

Appellant :- Rajendra Singh Vs. Respondent :- Chandra Pal

Counsel for Appellant :- Pradeep Kumar Singhal

Counsel for Respondent :- Kshitij Shailendra

1. Heard learned counsel for the parties and perused the records.

2. In Original Suit No. 92/2009, Rajendra Singh v. Chandrapal, the plaint case in brief was that defendant is owner of 1/4th share of property detailed at the foot of the plaint. He had entered into registered agreement for sale of said property in favour of plaintiff on 9.3.2006, by which it was admitted between the parties that defendant will sell that property for consideration of Rs. 80,000/- and he had received Rs. 75,000/- as advance consideration at the time of registration of said agreement to sell. It was agreed between the parties that sale-deed will be executed by defendant within 11 months after receiving remaining amount of Rs. 5,000/-. Plaintiff has been ready and willing to perform his part of contract and had repeatedly requested the defendant, but defendant had not executed sale-deed in spite of plaintiff’s reminder and registered notice served on him. Therefore, plaintiff had filed suit for specific performance.

3. Plaint case was denied by defendant through written-statement, in which he further pleaded that plaintiff is a money lender. When defendant had requirement for some money, so he approached the plaintiff because he could not obtained loan from bank, then plaintiff had agreed to grant him loan on interest, for which he took defendant to Tehsil, where defendant’s photographs were taken and he was asked to put signatures on several documents and received Rs. 60,000/-. After 10 months, defendant was again in need of money, so he received loan of Rs. 1,000/- from plaintiff and had put his thumb impression and signature on several documents after getting his photographs taken. No document was read or explained to defendant. When defendant had returned the loan and asked the plaintiff to return document of loan, then plaintiff had not returned those documents and filed suit on the basis of incorrect facts.

4. In replication, plaintiff reiterated his plaint averments. Thereafter the trial court had framed issues, accepted documentary and oral evidences of the parties and then, after affording opportunity of hearing to them, Civil Judge (Senior Division) Chandausi, Moradabad had passed judgment dated 25.4.2012, by which suit was decreed for alternative relief of return of Rs. 77,000/- of advance sale consideration with 12% interest. In this judgment, trial court had found this plaint averments correct that parties had entered into registered agreement to sell of disputed property of defendant in favour of plaintiff and had received Rs. 77,000/- as advance sale consideration. But trial court had held that plaintiff had failed to prove its readiness and willingness in accordance with terms of contract; and from return of advance consideration the defendant would not be subjected to any loss. Therefore trial court considered it appropriate to grant alternative relief of refund of advance sale consideration.

5. Against the judgment of trial court, Civil Appeal No. 59/2012, Rajendra Singh v. Chandrapal, was preferred by plaintiff of the original suit, which was heard and dismissed by the judgment dated 30.11.2015 of Additional District Judge, Court No.-12, Moradabad. In this judgment, first appellate court had given specific finding that it is proved that plaintiff-appellant has been ready and willing to perform his part of contract and was ready to get the sale-deed executed. The first appellate court had reversed this finding of trial court that plaintiff readiness and willingness should not be accepted, because after first notice of performance of contract, he had given second notice after sufficiently long time. Thus the first appellate court had given every finding in favour of plaintiff-appellant, including on point of his readiness and willingness, which proves that the plaint case has been correct and proved. But lower appellate court had considered the point of hardship of plaintiff and defendant, and cited some ruling of Apex Court, and held that from the time of execution of registered agreement to sell, sufficient time has been passed and value of property has been enhanced; therefore possible hardship to defendant by specific performance of contract cannot be ignored. On these findings, first appellate court had confirmed the judgment of trial court regarding refund of advance consideration of Rs. 77,000/- to plaintiff with interest.

6. Aggrieved by the judgment of trial court as well as first appellate court, present second appeal has been preferred by plaintiff of the original suit.

7. Learned counsel for the plaintiff-appellant contended that trial court had not disputed the hardship of plaintiff-appellant from non-execution of agreement to sell, but had declined the relief of specific performance merely on the ground of readiness and willingness of plaintiff being not proved, but this readiness and willingness was held proved by first appellate court. But the finding of first appellate court regarding alleged hardship to defendant-respondent by specific performance of contract is based on incorrect and hypothetical grounds. He also contended that Section 20 of Specific Relief Act provides guidelines for discretion of granting and refusing relief of specific performance. He submitted that in present case most of the amount of full consideration was already paid by plaintiff-appellant to defendant-respondent, who had not only enjoyed the possession and user of disputed property, but also enjoyed almost full consideration received from money. He further submitted that in this case, in fact, hardship was caused to plaintiff-appellant, who had paid almost full consideration. He further submitted that lower courts had failed to appreciate this fact at the time of granting discretionary relief that after receiving loan, defendant had been telling lie, placing incorrect and false defences and even stated to have returned whole of the money received from plaintiff, which is proof of his mala fide. He contended that defendant-respondent should not be rewarded of his dishonest intention in garb of discretionary relief.

8. Learned counsel for the respondent contended that in this matter interest at the rate of 12% was granted to plaintiff-appellant, which is more than normal interest and this is sufficient to meet any inconvenience caused to him. He submitted that disputed property is only means of livelihood of respondent. He further submits that defendant had sold property in question to third person, which shows that there was no likelihood of any prejudice being caused to him by non performance of contract. Therefore, appeal should be dismissed.

9. Section-20 of Specific Relief Act reads as under: