{"id":43982,"date":"2009-01-13T00:00:00","date_gmt":"2009-01-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gurdev-kaur-vs-inderjit-singh-on-13-january-2009"},"modified":"2017-05-05T16:43:44","modified_gmt":"2017-05-05T11:13:44","slug":"gurdev-kaur-vs-inderjit-singh-on-13-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gurdev-kaur-vs-inderjit-singh-on-13-january-2009","title":{"rendered":"Gurdev Kaur vs Inderjit Singh on 13 January, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Gurdev Kaur vs Inderjit Singh on 13 January, 2009<\/div>\n
RSA No.2136 of 2007                                           1\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n\n                                      RSA No.2136 of 2007 (O&M)\n\n                                      Date of Decision: 13.01.2009\n\n\n\n\nGurdev Kaur                                             ..Appellant\n\n                         Vs.\n\nInderjit Singh                                          ..Respondent\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\n\nPresent:    Mr.V.K.Jindal, Advocate,\n            for the appellant.\n\n            Mr.Puneet Bali, Advocate,\n            for the respondent.\n\n                   ---\n\n      1.    Whether Reporters of Local Newspapers may\n            be allowed to see the judgment?\n\n       2.     To be referred to the Reporters or not?\n\n       3.     Whether the judgment should be reported in\n              Digest?\n\n               ---\nVinod K.Sharma,J. (Oral)\n<\/pre>\n
            By way of this regular second appeal challenge is to the
\n RSA No.2136 of 2007                                              2<\/span><\/p>\n
judgments and decree dated 13.9.2005 and 17.1.2007 passed by the learned<\/p>\n
courts below decreeing the suit         for possession by way of specific<\/p>\n
performance of an agreement to sell dated 1.4.1999.<\/p>\n
             The plaintiff\/respondent brought a suit for specific performance<\/p>\n
for the agreement to      sell dated 1.4.1999     executed by Gurdev Kaur<\/p>\n
regarding the land measuring 9 kanals 7 marlas for a total consideration of<\/p>\n
Rs.3.5 lacs as detailed in the head-note of the plaint or in the alternative for<\/p>\n
recovery of Rs.5 lacs.\n<\/p>\n
             The appellant\/defendant being owner in possession of the land<\/p>\n
in dispute entered into an agreement to sell dated 1.4.1999 regarding the suit<\/p>\n
land. At the time of agreement the appellant was paid a sum of Rs.2.50 lacs<\/p>\n
as part   sale consideration. It was agreed that the sale deed would be<\/p>\n
executed on or before 31.3.2000 on the receipt of balance sale consideration<\/p>\n
from the plaintiff. One of the stipulations in the agreement was that in case<\/p>\n
the defendant failed to perform her part of the agreement she would be<\/p>\n
liable to pay double the amount of earnest money i.e. Rs.5 lacs.<\/p>\n
             The plaintiff\/respondent claimed that he was always ready and<\/p>\n
willing to perform his part of agreement. However, the defendant resiled<\/p>\n
from the agreement in question by refusing to perform her part of the<\/p>\n
contract without any rhyme or reason. It was also the case of the plaintiff<\/p>\n
that notice dated 16.3.2000 was issued by the defendant-appellant taking a<\/p>\n
plea that the agreement was forged.        Notice was replied. The plaintiff<\/p>\n
appeared in the office of Sub Registrar, Anandpur Sahib on 31.3.2000 i.e.<\/p>\n
the date stipulated for execution of the sale deed. He claimed to have gone
\n RSA No.2136 of 2007                                             3<\/span><\/p>\n
there along with balance sale consideration and other expenses to perform<\/p>\n
his part of the contract. However, defendant never turned up to perform her<\/p>\n
part of the contract. The plaintiff\/respondent got himself marked present<\/p>\n
before the Sub Registrar, Anandpur Sahib. The case of the plaintiff was that,<\/p>\n
as the defendant failed to execute the sale deed in his favour the suit for<\/p>\n
specific performance was filed.\n<\/p>\n
            The suit was contested by the defendant wherein a preliminary<\/p>\n
objection was taken that the suit was not maintainable. Defendant-appellant<\/p>\n
claimed that she never executed any agreement to sell in favour of the<\/p>\n
plaintiff. She also denied the receipt of Rs.2.5 lacs as earnest money. A plea<\/p>\n
was taken that the agreement of sale was false and fabricated document<\/p>\n
and was prepared by the plaintiff\/respondent in connivance with the scribe<\/p>\n
and got signed by the defendant under misrepresentation.<\/p>\n
            It was claimed that    husband of the appellant namely Kuldip<\/p>\n
Singh is owner of 3 trucks and has landed property of about 12 acres and<\/p>\n
also a house in Shahpur Bela. Sons of the appellant-defendant are drivers<\/p>\n
who ply their trucks. It was claimed that one of the trucks belonging to the<\/p>\n
husband of the defendant-appellant was involved in a case registered at<\/p>\n
Police Station, Biwara on 27.3.1999. Kuldip Singh was said to have been<\/p>\n
told about the involvement of truck by the driver. It was claimed that police<\/p>\n
of Police Station, Biwara demanded a sum of Rs.25,000\/- to get the truck<\/p>\n
released. Satinder Singh was contacted who helped in the matter by<\/p>\n
arranging a sum of Rs.25,000\/-who was running a shop at Anandpur Sahib.<\/p>\n
He was also a friend of the plaintiff. It was claimed that the plaintiff agreed
\n RSA No.2136 of 2007                                                4<\/span><\/p>\n
to arrange Rs.25,000\/- on the condition that interest at the rate of 20 per cent<\/p>\n
per annum would be paid on the said amount. It was claimed that the land in<\/p>\n
dispute was        given as a security and thus, it was claimed that the<\/p>\n
defendant\/appellant was made to sign the papers in the Tehsil Office.<\/p>\n
Writing was not done in the presence of the defendant-appellant nor the<\/p>\n
same was read out to her nor any payment was made. Thus, it was claimed<\/p>\n
that in fact no agreement to sell was executed between the parties.<\/p>\n
             On the defence raised above it           was claimed that whole<\/p>\n
transaction was suspicious, therefore suit deserves to be dismissed.<\/p>\n
             In the replication pleas raised in the plaint were reiterated and<\/p>\n
that of the written statement were denied.\n<\/p>\n
             On the pleading of the parties        the learned trial court was<\/p>\n
pleased to frame the following issues:-\n<\/p>\n
              1.     Whether the defendant has agreed to sell the suit property<\/p>\n
                     vide    agreement     dated    1.4.1999     and     received<\/p>\n
                     Rs.2,50,000\/-? OPP<\/p>\n
              1-A Whether the agreement to sell dated 1.4.1999 is false,<\/p>\n
                     forged and fabricated document and is a result of<\/p>\n
                     misrepresentation? OPD<\/p>\n
              2.     Whether the plaintiff is still ready and willing to perform<\/p>\n
                     his part of agreement? OPP<\/p>\n<\/blockquote>\n
              3.     Whether the plaintiff is entitled to the relief of possession<\/p>\n
                     by way of specific performance? If issue No.1 and 2 are<\/p>\n
                     proved? OPP
\n RSA No.2136 of 2007                                               5<\/span><\/p>\n<\/blockquote>\n
               4.     Whether the plaintiff is entitled to alternative relief of<\/p>\n
                      recovery of Rs.5 lacs along with interest? OPP<\/p>\n<\/blockquote>\n
               5.     Whether the suit is not maintainable? OPD<\/p>\n<\/blockquote>\n
                 6.   Relief.<\/p><\/blockquote>\n
              Learned courts below on appreciation of evidence did          not<\/p>\n
believe the case set up by the appellant\/defendant and decided issue No.1 in<\/p>\n
favour of the plaintiff\/respondent. Issues No.1-A and 2 were also decided in<\/p>\n
favour of the plaintiff\/respondent and against the defendant\/appellant.<\/p>\n
              On issue No.3, it was held that the plaintiff\/respondent was<\/p>\n
entitled to the relief of possession   by way of specific performance. In view<\/p>\n
of the findings on issue No.3, it was held that the plaintiff was not entitled<\/p>\n
to the alternative relief. Thus, issue No.4 was also decided against the<\/p>\n
appellant\/defendant and in view of the findings referred to above the suit<\/p>\n
was decreed.\n<\/p>\n
              Appeal filed against the judgment and decree of the learned<\/p>\n
trial court also failed.\n<\/p>\n
              Mr.V.K.Jindal, learned counsel appearing on behalf of the<\/p>\n
appellant while challenging the judgment and decree passed by the learned<\/p>\n
courts below referred to the following stipulation in the agreement:-<\/p>\n
             ”        If I failed to execute the sale deed registered within the<\/p>\n
             period     fixed above, in favour of above mentioned Inderjit<\/p>\n
             Singh, then I, apart from the amount of earnest money, will pay<\/p>\n
             Rs.2,50,000\/- on account of compensation i.e. in total I will<\/p>\n
             return Rs.5,00,000\/- to Inderjit Singh. For the payment of
\n RSA No.2136 of 2007                                              6<\/span><\/p>\n
            aforesaid amount, I and my entire moveable and immovable<\/p>\n
            property stands guarantee.”\n<\/p><\/blockquote>\n
to contend that once the parties have stipulated that in the event of failure to<\/p>\n
execute the agreement the plaintiff\/respondent shall be entitled to a sum of<\/p>\n
Rs.5 lacs, the learned courts were not justified in decreeing the suit for<\/p>\n
specific performance. Reference was made to Sections 10 and 14 of the<\/p>\n
Specific Relief Act which provide that a specific performance of the<\/p>\n
contract cannot be ordered when the party can be compensated in terms of<\/p>\n
money.\n<\/p>\n
             However, this plea of the learned counsel for the appellant<\/p>\n
cannot be accepted as explanation I to Section 10 provides that breach of<\/p>\n
contract to transfer immovable property cannot be adequately relieved by<\/p>\n
compensation in money.\n<\/p>\n
             Similarly, section 14 of the Specific Relief Act can be of no<\/p>\n
help to the appellant\/defendant as the compensation in money cannot be<\/p>\n
said to be adequate in view of explanation I to Section 10 of the Act.<\/p>\n
             Learned counsel for the appellant thereafter contended that as<\/p>\n
the plaintiff\/respondent had himself claimed alternative relief of damages,<\/p>\n
the decree of specific performance would be inequitable and unjust.<\/p>\n
             In support of this contention learned counsel for the appellant<\/p>\n
placed reliance on the judgment of Hon’ble Supreme Court in the case of<\/p>\n
Kansi Ram Vs. Om Parkash Jawal and others AIR 1996 SC 2150,<\/p>\n
wherein Hon’ble Supreme Court was pleased to lay down as under:-<\/p>\n
             “5.   ….. But it is equally settled law that granting decree for
\n RSA No.2136 of 2007                                            7<\/span><\/p>\n
            specific performance of a contract of immovable property is<\/p>\n
            not automatic. It is one of the discretion to be exercised on<\/p>\n
            sound principles. When the Court gets into equity jurisdiction,it<\/p>\n
            would be guided by justice, equity, good conscience and<\/p>\n
            fairness to both the parties. Considered from this perspective, in<\/p>\n
            view of the fact that the respondent himself had claimed<\/p>\n
            alternative relief for damages, we think that the Courts would<\/p>\n
            have been well justified in granting alternative decree for<\/p>\n
            damages, instead of ordering specific performance which<\/p>\n
            would be unrealistic and unfair. Under these circumstances,we<\/p>\n
            hold that the decree for specific performance is inequitable and<\/p>\n
            unjust to the appellant.”<\/p><\/blockquote>\n
            However, Mr. Puneet Bali, learned counsel appearing on behalf<\/p>\n
of the respondent controverted the contention raised by the learned counsel<\/p>\n
for the appellant by placing reliance on the judgment of this court in the<\/p>\n
case of Mohini Kapoor Vs. Deepak Uppal 2006 (1) RCR (Civil) 807,<\/p>\n
wherein this court had upheld the order passed by the learned courts below<\/p>\n
ordering specific performance of the contract wherein alternative relief of<\/p>\n
compensation was also claimed, by observing as under:-<\/p>\n
            ”     The argument based on the aforementioned Clause 2 has<\/p>\n
            also been rejected by the learned lower Appellate Court by<\/p>\n
            observing that merely because prayer for the alternative relief<\/p>\n
            of refunding double the amount of earnest money has been<\/p>\n
            made as per the terms of the agreement would not necessarily
\n RSA No.2136 of 2007                                           8<\/span><\/p>\n
          mean that the suit of the plaintiff-respondent for specific<\/p>\n
          performance of agreement was to be dismissed by granting him<\/p>\n
          alternative relief of damages to pay double        the amount of<\/p>\n
          earnest money. The learned lower Appellate Court has placed<\/p>\n
          reliance on various judgments and has rejected the argument of<\/p>\n
          the defendant-appellant by observing as under:<\/p>\n<\/blockquote>\n
                “In the present case the respondent-plaintiff has been<\/p>\n
                ready and willing to perform their part of the contract.<\/p>\n
                The appellant-defendants had been avoiding performance<\/p>\n
                thereof. Untenable grounds have been taken by them.<\/p>\n<\/blockquote>\n
                      Incorporation of clause of payment of damages, as<\/p>\n
                has rightly been argued by learned         counsel for the<\/p>\n
                respondent\/plaintiffs,   even    otherwise        cannot   be<\/p>\n
                interpreted to refuse specific performance of the<\/p>\n
                agreement. In case Kapoor Singh Vs. Surinder Singh,<\/p>\n
                1993 (1) RRR 567: 1993 (1) PLR 499, it was held that<\/p>\n
                mere mention in the agreement of a sum to be paid as<\/p>\n
                damages in case of default is no ground to deny the<\/p>\n
                specific performance of the agreement. It was further<\/p>\n
                observed that such mention was only made for the<\/p>\n
                purpose of securing performance. In Sadiz Hussain V.<\/p>\n
                Anup Singh, AIR 1924 Lahore 151 it was held that<\/p>\n
                general rule of equity is that if a thing is agreed upon to<\/p>\n
                be done though there is a penalty annexed to secure its
\n RSA No.2136 of 2007                                     9<\/span><\/p>\n
               performance. Yet the very thing itself must be done.<\/p>\n
               Reference may be made to authority report Hukam<\/p>\n
               Chand and another V. Nikka Singh and another, 15,<\/p>\n
               Punjab Record, 1908 wherein it was ruled that party<\/p>\n
               should not be allowed to evade merely because the<\/p>\n
               agreement provided a penal clause.\n<\/p><\/blockquote>\n
                      Still in another recent authority reported as<\/p>\n
               Gurmail Singh and others V. Amrit Singh and others<\/a>,<\/p>\n
               2000 (1) RCR (Civil) 70: 1993 (3) PLR 68 (P&H) it<\/p>\n
               was held that merely because agreement indicated that<\/p>\n
               the plaintiff would claim double the amount in case of<\/p>\n
               breach, would not exclude the right of the plaintiff to<\/p>\n
               enforce the agreement. Support has also been sought<\/p>\n
               from the authorities reported as Smt.Shakuntla Devi V.<\/p>\n
               M\/s Mohanlal Amrit Raj Jain Market, Pali AIR 1994<\/p>\n
               (Rajasthan) 259; Ramani Ammnal V.Susilammal,<\/p>\n
               AIR 1991 Madras 163; Narayan Nagarao V. Amrit<\/p>\n
               Haribhau, AIR 1957 Bombay 241; Sadiq Hussain V.<\/p>\n
               Anup Singh, AIR 1924 Lahore 151, Hukam Chand<\/p>\n
               and another V. Nikka Singh and another, 15 Punjab<\/p>\n
               Record     1908;    V.K.Kandasami      Chettiar    Vs.<\/p>\n
               Shanmugha Thevara and another, AIR (36) 1949<\/p>\n
               Madras 3021; Kirpal Singh Vs. Mst. Kartaro and<\/p>\n
               others, AIR 1980 Rajasthan 212 and Vairvan
\n RSA No.2136 of 2007                                      10<\/span><\/p>\n
               V,K.S.Vidyanandam and others, 1996 (4) LLR 163.<\/p>\n<\/blockquote>\n
                      Looking from another angle, relief of specific<\/p>\n
               performance is to be ordinarily granted and is to be<\/p>\n
               refused only in exceptional circumstances. In case of<\/p>\n
               immovable property monetary compensation is not<\/p>\n
               adequate. Mere mentioning of liquidated damages does<\/p>\n
               not curtail jurisdiction of the Court to grant relief of<\/p>\n
               specific performance. Reference may be made to<\/p>\n
               authority reported as Janga Singh v. Harbans Singh,<\/a><\/p>\n
               1992(1) RRR 566 : 1992 PLJ 7 (P&H); Gurdial Singh<\/p>\n
               v. Darshan Singh,<\/a> 1995(3) RRR 508 : 1996(1) PLR 102<\/p>\n
               (P&H); Anokh Devi v. Trilok Singh,<\/a> 1996(1) RRR 288 :<\/p>\n
               1996(1) PLR 372 (P&H); M.L. Devender Singh v. Syed<\/p>\n
               Khaja, AIR<\/a> 1973 SC 2452; and Afsar Gujjar v. Barkha<\/p>\n
               Ram, 1989 PLJ 23 (P&H).\n<\/p><\/blockquote>\n
               Still further it may be mentioned that in case of<\/p>\n
               immovable property time is never the essence of the<\/p>\n
               contract unless so is recited in the contract. Reference<\/p>\n
               may be made to the authorities reported as Mohammad<\/p>\n
               Nadir v. Chaudhari Jahangiri Mal and others, AIR<\/p>\n
               (36) 1949 Lahore 72; Bhagwan Singh v. Teja Singh<\/a><\/p>\n
               alias Teja Ram, 1996(3) LLR 487 (P&H); and, Gur<\/p>\n
               Akbar Akal Kaur v. Tehal Singh,<\/a> 1994(1) RRR 225<\/p>\n
               (P&H) : 1994(1) LLR 581 (P&H).\n<\/p><\/blockquote>\n
 RSA No.2136 of 2007                                         11<\/span><\/p>\n
\n
               Thus, plea of learned counsel for the appellants that<\/p>\n
               sufficient time having elapsed, the specific performance<\/p>\n
               should be refused, cannot be accepted. The default lies<\/p>\n
               with the appellants and refusing specific performance<\/p>\n
               would be amounting to undue enrichment of wrong-<\/p>\n
               doers.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
               Mr. J.K. Sibal, learned Senior counsel has placed<\/p>\n
            reliance on Clause 2 of the agreement to sell and has argued<\/p>\n
            that once there is a contract between the parties entered with<\/p>\n
            their free will giving option to one party to terminate the<\/p>\n
            contract at any time and without assigning any reason then<\/p>\n
            such a contract has to be considered as determinable within<\/p>\n
            the meaning of Section 14(1)(c) of the Specific Relief Act,<\/p>\n
            1963 (for brevity the ‘Act’). According to the learned<\/p>\n
            counsel, in such like cases no specific performance of a<\/p>\n
            contract of sale would be permissible and proper relief of<\/p>\n
            refunding double the amount of earnest money would alone<\/p>\n
            be sustainable in law. In support of his submission, learned<\/p>\n
            counsel has placed reliance on the observation in para Nos.<\/p>\n
            56 and 57 of the judgment of the Supreme Court in the case<\/p>\n
            of Her Highness Maharani Shanti Devi P. Gaikwad v.<\/p>\n
            Savjibhai Haribhai Patel and others<\/a>, 2001(1) RCR(Rent)<\/p>\n
            481 (SC) : 2001(2) RCR(Civil) 536 (SC) : (2001)5 SCC<\/p>\n<\/blockquote>\n
            101. Learned counsel has also relied upon another judgment
\n RSA No.2136 of 2007                                         12<\/span><\/p>\n
            of the Supreme Court in Dadarao v. Ramrao,<\/a> (1999)8 SCC<\/p>\n
            416 and argued that where the agreement itself provided for<\/p>\n
            contingencies if sellers are refusing to sell and purchases are<\/p>\n
            refusing to buy by stipulating the refund of earnest money<\/p>\n
            then there was no obligation to complete the sale transaction<\/p>\n
            by passing a decree for specific performance. Learned<\/p>\n
            counsel has then argued that when there is continuous steep<\/p>\n
            rise in prices of the property in respect of a house located in<\/p>\n
            an urban area then relief of specific performance of<\/p>\n
            agreement could be refused by passing a decree for<\/p>\n
            alternative relief of damages.\n<\/p><\/blockquote>\n
                 Mr. Ashok Aggarwal, learned Senior counsel appearing<\/p>\n
            for the plaintiff- respondent has argued that the law is well<\/p>\n
            settled and merely because an alternative plea of refund of<\/p>\n
            earnest amount and damages has been raised it cannot<\/p>\n
            constitute a bar to claim a decree for specific performance of<\/p>\n
            contract. In support of his submission, learned counsel has<\/p>\n
            placed reliance on the judgment of the Supreme Court in the<\/p>\n
            case of P.C. Varghese v. Devaki Amma Balambika Devi<\/p>\n
            and others<\/a>, 2005(4) RCR(Civil) 469 : (2005)8 SCC 486 and<\/p>\n
            P.D. Souza v. Shondrilo Naidu,<\/a> 2004(3) RCR(Civil) 668 :<\/p>\n
            (2004)6 SCC 649. Learned counsel has then argued that the<\/p>\n
            agreement of sale by virtue of Clause 2 or any other Clause<\/p>\n
            would not become a contingent contract which could alone
\n RSA No.2136 of 2007                                         13<\/span><\/p>\n
            be performed on the happening of a particular event.<\/p>\n
            According to the learned counsel, Clause 2 firstly lacks<\/p>\n
            mutuality and then the relief by filing the suit has been<\/p>\n
            claimed without any delay. Learned counsel has drawn my<\/p>\n
            attention to the date of filing the suit which is 18.05.1991<\/p>\n
            and the date of agreement to sell executed between the<\/p>\n
            parties on 18.08.1990. There is a stipulation in the agreement<\/p>\n
            to sell that the balance sale consideration was to be paid by<\/p>\n
            the plaintiff-respondent to defendant-appellant Nos. 1 and 2<\/p>\n
            within 30 days from the date of issuance of transfer<\/p>\n
            permission by defendant- respondent No. 3 and after<\/p>\n
            obtaining of Income Tax Clearance Certificate from the<\/p>\n
            concerned Department. There was no communication sent by<\/p>\n
            the defendant- appellants to the plaintiff-respondent so as to<\/p>\n
            permit the commencement of period of 30 days. Replying to<\/p>\n
            the argument of the learned counsel for the defendant-<\/p>\n
            appellant, Mr. Aggarwal has submitted that continuous steep<\/p>\n
            rise in prices of property during the pendency of the suit<\/p>\n
            cannot constitute the sole basis for refusing to grant a decree<\/p>\n
            for specific performance and grant of the alternative relief of<\/p>\n
            refund of earnest amount along with damages. Learned<\/p>\n
            counsel has also submitted that in any case Clause 2 cannot<\/p>\n
            be interpreted to mean that the defendant-appellant has<\/p>\n
            arbitrary discretion to refuse performance of the agreement
\n RSA No.2136 of 2007                                        14<\/span><\/p>\n
            to sell but the same has been incorporated in order to secure<\/p>\n
            the performance of agreement to sell. Learned counsel has<\/p>\n
            also made a reference to the explanation appended to Section<\/p>\n
            10 and Section 22 of the Act. The last submission made by<\/p>\n
            the learned counsel is that there are concurrent findings of<\/p>\n
            fact which do not deserve to be interfered in exercise of<\/p>\n
            jurisdiction under Section 100 of the Code and that the plea<\/p>\n
            of determination of contract based on Section 14(1)(c) has<\/p>\n
            nowhere been raised by the defendant-appellant in the<\/p>\n
            Courts below. According to the learned counsel, an issue of<\/p>\n
            the aforementioned plea could have been framed, evidence<\/p>\n
            could have been led and then finding could have been<\/p>\n
            recorded and, therefore, such a plea cannot be permitted to<\/p>\n
            be raised before the High Court in an appeal under Section<\/p>\n
            100 of the Code.\n<\/p><\/blockquote>\n
               After hearing the learned counsel for the parties and<\/p>\n
            perusing the judgments of both the courts below, I am of the<\/p>\n
            considered view that this appeal does not merit admission<\/p>\n
            because   no   substantive   question   of   law    requiring<\/p>\n
            determination by this court is involved. Both the courts<\/p>\n
            below have concurrently found that the defendant-appellants<\/p>\n
            have failed to perform their part of the contract whereas the<\/p>\n
            plaintiff-respondents have always been ready and willing to<\/p>\n
            perform their part. It has rightly been held that merely
\n RSA No.2136 of 2007                                         15<\/span><\/p>\n
            because a clause for payment of damages has been<\/p>\n
            incorporated in the agreement to sell dated 18.8.1990 would<\/p>\n
            not constitute a ground to refuse specific performance of the<\/p>\n
            agreement. It is elementary to point out that a breach of<\/p>\n
            contract cannot be adequately relieved by compensation in<\/p>\n
            money. The aforementioned legal position emerges from the<\/p>\n
            plain language of Explanation (1) of Section 10 and Section<\/p>\n
            23 of the Act. For the aforementioned purpose, reliance can<\/p>\n
            be placed on the judgment of the Supreme Court in P.C.<\/p>\n
            Varghese case (supra). It is also evident that Clause 2 merely<\/p>\n
            contained sanction for securing the performance of the<\/p>\n
            agreement to sell as contemplated by Section 23 of the Act.<\/p>\n
            The aforementioned view is supported by the judgment of<\/p>\n
            the Supreme Court in the case of Manzoor Ahmed Magray<\/p>\n
            v. Gulam Hassan Aram and others<\/a>, 1999(4) RCR(Civil)<\/p>\n
            597 : AIR 2000 SC 191. It is equally well settled that under<\/p>\n
            Section 230-A of the Income Tax Act, 1961, clearance<\/p>\n
            certificate for registration of transfer of property has to be<\/p>\n
            obtained by the defendant- appellants and an application was<\/p>\n
            required to be submitted by them. In this regard, reference<\/p>\n
            may be made to the judgment of Karnataka High Court in the<\/p>\n
            case of Smt. Fouzia Shahi Nazeer v. B.K. Lingappa and<\/p>\n
            others, 1990 ITR 342. It has been categorically found by the<\/p>\n
            courts below that the defendant-appellants did not come
\n RSA No.2136 of 2007                                            16<\/span><\/p>\n
            forward to complete the formalities for obtaining transfer<\/p>\n
            permission letter from HUDA or from the Income Tax<\/p>\n
            Department. Moreover, both the courts below have exercised<\/p>\n
            discretion in favour of the plaintiff- respondents by keeping<\/p>\n
            in view the facts and circumstances of the case and the<\/p>\n
            aforementioned discretion cannot be interfered with in<\/p>\n
            exercise of jurisdiction under Section 100 of the Code<\/p>\n
            because nothing has been shown from the record that there is<\/p>\n
            any legal infirmity in the application of law or in respect of<\/p>\n
            finding of fact. It has been repeatedly emphasized by the<\/p>\n
            Supreme Court that this court in exercise of jurisdiction<\/p>\n
            under Section 100 of the Code should be extremely slow in<\/p>\n
            setting aside the findings of fact as the first appellate court is<\/p>\n
            the final court of fact as well as law. In this regard, reference<\/p>\n
            may be made to the judgment of the Supreme Court in the<\/p>\n
            case of Santosh Hazari v. Purushottam Tiwari,<\/a> 2001(3)<\/p>\n
            RCR(Civil) 243 : (2001)3 SCC 179. In concluding portion of<\/p>\n
            para 15 of the judgment their Lordships of have observed as<\/p>\n
            under :\n<\/p><\/blockquote>\n
                  “We need only remand (remind ?) the first appellate<\/p>\n
                  courts of the additional obligation cast on them by the<\/p>\n
                  scheme of the present Section 100 substituted in the<\/p>\n
                  Code. The first appellate court continues, as before, to<\/p>\n
                  be a final court of facts; pure findings of fact remain
\n RSA No.2136 of 2007                                         17<\/span><\/p>\n
                  immune from challenge before the High Court in<\/p>\n
                  second appeal. Now the first appellate court is also a<\/p>\n
                  final court of law in the sense that its decision on a<\/p>\n
                  question of law even if erroneous may not be<\/p>\n
                  vulnerable before the High Court in second appeal<\/p>\n
                  because the jurisdiction of the High Court has now<\/p>\n
                  ceased to be available to correct the errors of law or<\/p>\n
                  the erroneous findings of the first appellate court even<\/p>\n
                  on questions of law unless such question of law be a<\/p>\n
                  substantial one.”\n<\/p><\/blockquote>\n<\/blockquote>\n
               Therefore, the appeal does not deserve admission as no<\/p>\n
         substantial question of law requiring determination by this court<\/p>\n
         has been raised.\n<\/p><\/blockquote>\n
               The argument of the learned counsel for the defendant-<\/p>\n
         appellants placing reliance on Clause 2 would not require any<\/p>\n
         detailed consideration because such an argument has not been<\/p>\n
         raised in terms before the courts below. The absence of such an<\/p>\n
         argument before the courts below would be significant because<\/p>\n
         it would have required pleadings, framing of issues and<\/p>\n
         adducing of evidence by the parties. It is no doubt true that such<\/p>\n
         a course can be adopted even at the stage of second appeal<\/p>\n
         under Section 100 of the Code, but I do not wish to prefer to<\/p>\n
         adopt the aforementioned course because there is nothing on<\/p>\n
         the record to show that there was any intimation refusing to
\n RSA No.2136 of 2007                                         18<\/span><\/p>\n
         perform the contract. Therefore, it has as to be concluded that<\/p>\n
         the contract in terms of Clause 2 in any case had never been<\/p>\n
         determined. No notice expressing the intention to determine the<\/p>\n
         contract in terms of Clause 2 has ever been given and therefore,<\/p>\n
         Section 14(1)(c) of the Act cannot be invoked. It is further<\/p>\n
         appropriate to mention that the use of expression ‘a contract’<\/p>\n
         which is in its nature determinable in Clause (C) of sub-section<\/p>\n
         (1) of Section 14 of the Act would not include in its sweep the<\/p>\n
         ordinary agreement to sell containing penalty clause which are<\/p>\n
         aimed at securing the performance of the contract as envisaged<\/p>\n
         by Section 23 of the Act. Moreover, sub-section (3) of Section<\/p>\n
         14, has incorporated a non-obstante clause which provides that<\/p>\n
         notwithstanding anything contained inter alia any clause (C) of<\/p>\n
         sub-section (1) the court may still enforce specific performance<\/p>\n
         where the suit is for enforcement of a contract. It appears to me<\/p>\n
         that the situation contemplated by Section 14(1)(c) is the one<\/p>\n
         which was available in the case of Indian Oil Corporation<\/p>\n
         Limited v. Amritsar Gas Service,<\/a> 1991(1) SCC 533, because in<\/p>\n
         that case the finding recorded in the award was that the<\/p>\n
         distributorship agreement was revocable and the same was<\/p>\n
         admittedly for rendering personal service and in such a situation<\/p>\n
         Section 14(1)(c) would automatically get attracted. It has<\/p>\n
         further been made clear that sub-section (1) of Section 14 of the<\/p>\n
         Act specifies the contracts which cannot be specifically
\n RSA No.2136 of 2007                                              19<\/span><\/p>\n
            enforced and one of the type of contract mentioned is which is<\/p>\n
            in its nature determinable. It is thus evident that Section 14(1) is<\/p>\n
            attracted to those contracts which cannot be specifically<\/p>\n
            enforced and it includes a contract which in its nature is<\/p>\n
            determinable. The aforementioned provision when read with<\/p>\n
            Explanation (1) of Section 10 then it becomes evident that<\/p>\n
            breach of a contract to transfer immovable property cannot be<\/p>\n
            adequately relieved by compensation in money. In other words,<\/p>\n
            a presumption is available under Explanation (1) of Section 10<\/p>\n
            that the court must presume that the breach of a contract to<\/p>\n
            transfer immovable property must be specifically enforced and<\/p>\n
            the alternative relief of securing compensation in money would<\/p>\n
            not be adequate. Therefore, on principle as well as on precedent<\/p>\n
            the legal position is against the defendant-appellants.”<\/p><\/blockquote>\n
            Though the relief of specific performance is a discretionary<\/p>\n
relief but it is well settled that normally suit for specific performance is<\/p>\n
required to be decreed unless on the facts and circumstances of the case<\/p>\n
courts come to the conclusion that it would not be, just, fair and equitable to<\/p>\n
grant decree for specific performance by taking into consideration the facts<\/p>\n
brought on record, rise in price of the property or any other equitable<\/p>\n
consideration.\n<\/p>\n
            In the present case, the appellant\/defendant neither pleaded nor<\/p>\n
proved that the decree       of specific performance would be harsh or
\n RSA No.2136 of 2007                                            20<\/span><\/p>\n
inequitable so as to grant a relief against the well settled law that normally<\/p>\n
a suit for specific performance is required to be decreed. It is also well<\/p>\n
settled that inadequate price fixed in an agreement to sell cannot be a<\/p>\n
ground to deny the decree of specific performance unless the price is shown<\/p>\n
to be so inadequate to prick the conscience of the court to hold that the<\/p>\n
specific performance would be unfair and inequitable.<\/p>\n
             As already observed above no such plea was raised or proved,<\/p>\n
thus, no fault can be found with the judgments and decree passed by the<\/p>\n
learned courts below.\n<\/p>\n
             The appeal raises no substantial question of law for<\/p>\n
consideration by this court as the plea raised by the learned counsel for the<\/p>\n
appellant    already stands decided by this court in the case of Mohini<\/p>\n
Kapoor Vs. Deepak Uppal (supra).\n<\/p>\n
             No merit.\n<\/p>\n
             Dismissed.\n<\/p>\n
13.01.2009                                         (Vinod K.Sharma)\nrp                                                      Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Gurdev Kaur vs Inderjit Singh on 13 January, 2009 RSA No.2136 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2136 of 2007 (O&M) Date of Decision: 13.01.2009 Gurdev Kaur ..Appellant Vs. Inderjit Singh ..Respondent Coram: Hon’ble Mr. Justice Vinod K.Sharma Present: Mr.V.K.Jindal, Advocate, for the appellant. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-43982","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nGurdev Kaur vs Inderjit Singh on 13 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gurdev-kaur-vs-inderjit-singh-on-13-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gurdev Kaur vs Inderjit Singh on 13 January, 2009 - 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