IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1552 of 2008 (O&M)
Date of decision: 13.02.2009
Tehal Chand and another ....Appellants
versus
Vivek Bajaj ....Respondent
CORAM: HON’BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. Vikram Singh, Advocate for the appellants.
Mr. Tejinder Pal Singh, Advocate for the respondent.
Vinod K. Sharma, J(Oral)
C.M. No.4911-C of 2008
This is an application under Section 5 of the Limitation Act
for condoning the delay of 125 days in filing the appeal.
For the reasons stated in the application, C.M. is allowed
and delay of 125 days in filing the appeal is ordered to be condoned.
RSA No.1552 of 2008
This regular second appeal is directed against the judgments
and decree dated 15.05.2007 and 17.10.2007 passed by the learned
Courts below decreeing the suit filed by the plaintiff-respondent. for
specific performance of an agreement to sell.
Plaintiff-respondent sought specific performance of an
agreement to sell dated 22nd April, 1999 with respect to House No.761,
Ward No.3, Panipat. It was pleaded by the plaintiff that by way of
agreement to sell dated 22nd April, 1999, the defendant-appellants had
agreed to sell the house in dispute for total sale consideration of Rs.5 lac
out of which Rs.1 lac was paid as earnest money. The date for execution
RSA No.1552 of 2008 (O&M) -2-
of the sale deed was fixed as 30th March, 2000. It was the case of the
plaintiff-respondent that on 30th March, 2000, he was present in the
office of Sub-Registrar, Panipat, along with the entire balance sale
consideration and necessary charges for stamp and registration, but the
defendants did not turn up to receive the balance sale consideration to
get the sale deed executed in favour of the plaintiff. Thereafter, a notice
was issued to the appellant-defendants on 5th December, 2000 to execute
the sale deed. The appellant-defendants failed to execute the sale deed.
Thus, it was claimed by the plaintiff-respondent that he was always
willing and ready and still willing and ready to perform his part of
contract.
On notice, defendants contested the suit by taking
preliminary objections that the suit is not maintainable and the
respondent-plaintiff has no locus standi to file and maintain the present
suit. Plea of estoppel was also raised and it was pleaded that the plaintiff-
respondent had concealed true and material facts from the Court.
However, on merits, the appellant-defendant denied the
averments made in the plaint.
On the pleadings of the parties, the learned trial Court was
pleased to frame the following issues:-
“1. Whether defendants entered into an agreement to sell
dated 22.4.99 with the defendants and received Rs.1 lac as
earnest money, if so to what effect? OPP.
2. Whether the plaintiff has been and is still ready and
willing to perform his part of the agreement? OPP.
3. Whether the suit is not maintainable in the present
form? OPD.
RSA No.1552 of 2008(O&M) -3-
4. Whether the plaintiff has no locus standi to file the
suit? OPD.
5. Whether the plaintiff is estopped from filing the suit
by his own act and conduct? OPD.
6. Whether the plaintiff has no cause of action to file the
present suit? OPD.
7. Relief.”
The learned trial Court on the basis of evidence produced
on record decided issue Nos.1 and 2 in favour of the plaintiff-respondent
and held that the defendants had entered into an agreement to sell dated
22nd April, 1999 and had also received a sum of Rs.1 lac as earnest
money. It was also held that the plaintiff was ready and willing to
perform his part of contract. Issue Nos.4 and 6 were decided against
the defendant-appellants, Issue Nos.3 and 5 were not pressed and
therefore, decided against the defendants. Consequently, the suit was
decreed.
In appeal, the findings of fact recorded by the learned trial
Court stand affirmed by the learned lower Appellate Court.
Learned counsel for the appellants raised the following
substantial question of law for consideration in this appeal:-
Whether in the facts and circumstances of the case, it
was equitable for the Courts below to have granted a decree
for specific performance instead of decreeing the suit for
recovery along with damages and interest?
Learned counsel for the appellants in support of substantial
question of law as framed, contended that the appellants never agreed to
sell the house as it is the only house owned by the appellants, wherein 10
RSA No.1552 of 2008(O&M) -4-
members are living and therefore the learned Court below should not
have granted the decree for specific performance, rather plaintiff-
respondent should have been granted decree for recovery of earnest
money along with damages as it is a case of hardship. In support of his
contention, the learned counsel for the appellants placed reliance on the
judgment of Hon’ble Supreme Court in the case of Bal Krishan and
another v. Bhagwan Das (dead) and others-2008(2) RCR (Civil) 732,
wherein the Hon’ble Supreme Court has pleased to lay down as under :-
“8. Section 16 of the Specific Relief Act, 1963
(hereinafter referred to as “the Act”) corresponds with
Section 24 of the old Act of 1877 which lays down that the
person seeking specific performance of the contract, must
file a suit wherein he must allege and prove that he has
performed or has been ready and willing to perform the
essential terms of the contract, which are to be performed
by him. The specific performance of the contract cannot be
enforced in favour of the person who fails to aver and prove
his readiness and willingness to perform essential terms of
the contract. Explanation (ii) to clause (c ) of Section 16
further makes it clear that plaintiff must aver performance
of, or readiness and willingness to perform, the contract
according to its true construction. The compliance of the
requirement of Section 16(c ) is mandatory and in the
absence of proof of the same that the plaintiff has been
ready and willing to perform his part of the contract suit
cannot succeed. The first requirement is that he must aver
in plaint and thereafter prove those averments made in the
plaint. The plaintiff’s readiness and willingness must be in
accordance with the terms of the agreement. The readiness
and willingness of the plaintiff to perform the essential part
of the contract would be required to be demonstrated by
RSA No.1552 of 2008(O&M) -5-
him from the institution of the suit till it is culminated into
decree of the court. It is also settled by various decisions of
this Court that by virtue of Section 20 of the Act, the relief
for specific performance lies in the discretion of the court
and the court is not bound to grant such relief merely
because it is lawful to do so. The exercise of the discretion
to order specific performance would require the court to
satisfy itself that the circumstances are such that it is
equitable to grant decree for specific performance of the
contract. While exercising the discretion, the court would
take into consideration the circumstances of the case, the
conduct of parties, and their respective interests under the
contract. No specific performance of a contract, though it
is not vitiated by fraud or misrepresentation, can be granted
if it would give an unfair advantage to the plaintiff and
where the performance of the contract would involve some
hardship on the defendant, which he did not foresee. In
other words, the court’s discretion to grant specific
performance is not exercised if the contract is not equal and
fair, although the contract is not void.”
However on consideration of the matter, I find no merit in
the contentions raised by the learned counsel for the appellants. In this
case the factum of execution of agreement to sell has not been denied,
nor defendant-appellants disputed the fact that the plaintiff-respondent
was willing and still willing to perform his part of contract.
The plea of hardship to invoke Section 20 of Specific Relief
Act was not taken before the learned Courts below and has been raised
for the first time before this Court.
There is no nothing on record to support the contention
now sought to be raised that the decree for specific performance would
RSA No.1552 of 2008(O&M) -6-
not be equitable. It is settled law that agreement to sell immovable
property is to be specifically enforced as the payment of damages cannot
be said to be adequate compensation for breach of the said contract. No
case for grant adequate compensation has been made out, so as to deny
the relief of specific performance.
The substantial question of law framed is answered against
the appellants.
No merit.
Dismissed.
(VINOD K. SHARMA)
JUDGE
13.02.2009
sanjeev