The aforesaid provisions show that contract to
transfer immovable property is as a rule specifically enforceable.
The refusal of such relief is possible only when the grounds
mentioned in section 20 are made out. There was no pleading at
all in the written statement with regard to the grounds mentioned
in section 20 and the defence of fraud was taken. The burden of
proof in respect of these grounds was on defendant. The Trial
Court has not discussed either these grounds and has not given
any specific reason for refusal to give relief to the plaintiff. Thus,
the Trial Court has committed error in exercising the jurisdiction. If
the Court does not give reasons for refusing the specific relief, in
such a case, it can be said that error is committed in exercising
the discretionary power and such error can be corrected in the
appeal.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 568 OF 1991
Peeraji s/o. Limbaji Agawane,
Versus
Hariba s/o. Nana Bhinge,
CORAM
DATED
: T.V. NALAWADE, J.
: 20th March, 2014.
Citation; 2014MHLJ 53 Bom
The appeal is filed against judgment and decree of
1.
Mr. Sachin Deshmukh, Advocate for respondent Nos. 1 (1) to 1(5).
Regular Civil Appeal No. 191/1984 which was pending in the Court
of Additional District Judge, Latur. The appeal of the present
respondent against the judgment and decree of Regular Civil Suit
No. 157/1979 decided by Joint Civil Judge, Junior Division, Latur is
decided in favour of the respondent. The relief of specific
performance of contract and permanent injunction are granted to
the respondent by the First Appellate Court. Both the sides are
heard.
2.
The respondent (plaintiff) had filed suit in respect of
agricultural land bearing Gat (Block) No. 141 and 153 situated at
Ankoli, Tahsil and District Latur. The area of first land is 5 Acres 35
Gunta and area of second land is 4 Acres 10 Gunta. It is the case
of plaintiff that defendant - Peeraji was in need of money and so,
he agreed to sell the suit property to plaintiff for consideration of
Rs. 12,500/-. It is contended that on 25.12.1978 the agreement
was written and it was scribed by daughter of defendant. It is
contended that on the same day, the amount of Rs. 1,000/- was
given as earnest money by the defendant to the plaintiff and the
3.
possession of land was given to the plaintiff under the agreement.
It is the case of plaintiff that he was ready and willing
to perform his part of contract and he requested many times to
defendant to accept the balance consideration and to execute the
sale deed. It is contended that the defendant avoided to execute
the sale deed and lastly he denied the contract itself on
25.3.1979. The suit came to be filed on 29.3.1979.
4.
By filing written statement, Peeraji/defendant denied
the agreement. He contended that plaintiff had joined hands with
daughter of defendant and by making false representation that
the thumb impression of defendant was required on security bond
in respect of employment of the daughter, his thumb impression
was obtained on the document. He denied that he has received
consideration and he has handed over the possession to the
5.
plaintiff.
The issues were framed in accordance with the
aforesaid pleadings. For proving the case, the plaintiff examined
himself and he examined witnesses on agreement like Kishan
Jadhav and Shaikh Jameer. The execution of document was
admitted by defendant though he took the defence of fraud. In
defence, the defendant examined himself. He examined his
daughter Shashikala, who had written the document and he
examined one Dattatraya Talikhedkar.
6.
impression
The defendant has given evidence that his thumb
was
obtained
by
Shashikala
by
making
false
representation that it was necessary for obtaining loan. He has
deposed that he had never agreed to sell the suit property to the
plaintiff. He has deposed that he had not given possession to the
plaintiff. This evidence regarding fraud has no basis of pleadings
and the particulars in respect of fraud mentioned in the written
statement were different. In the cross examination, the defendant
admitted that the document was already written when his thumb
impression was obtained. In the cross examination, he contended
that if the amount of Rs. 12,500/- was given to him, he would
have executed the sale deed in favour of the plaintiff. He then
contended in the evidence that he would still execute the sale
deed, if plaintiff was ready to give Rs. 40,000/-.
7.
In the cross examination, the defendant admitted that
his wife and his daughter wanted to sell the suit property to the
plaintiff. He admitted that in the presence of witness Kishan,
plaintiff had agreed to pay Rs. 12,500/-. He has also admitted that
in his presence there was a talk about the execution of agreement
of sale when thumb impression was obtained. He has admitted
that besides the suit land, he was having other agricultural land
admeasuring 11 Acres.
Shashikala, daughter of defendant, who scribed the
document 8. has
given
evidence
that
she
had
made
false
representation that thumb impression of defendant was required
for service purpose. Her evidence further shows that she had
agreed to sell the property to plaintiff and she had scribed the
document accordingly. However, she has tried to say that no
amount was paid to her by the plaintiff.
9.
The evidence of Shashikala, in the cross examination
shows that she was S.S.C. and she had passed D.Ed. She was
serving as a Teacher at the relevant time. Her evidence shows
that she had collected the information from others about the
manner of writing agreement of sale. She has given evidence that
witnesses Jameer and Kishan put their signature and thumb
impression as witnesses on the document in her presence. She
admits that she was in need of money, so the document was
executed. Shashilaka and witness of defendant - Dattatraya have
given evidence that on the date of deposition, the defendant was
10.
in possession of the land.
The Trial Court held that there was the agreement of
sale. The Trial Court held that part of consideration, amount of Rs.
1,000/- was given on the date of agreement. The Trial Court held
that fraud was not proved by the defendant. The Trial Court held
that the possession was not given. The Trial Court, however, did
not give reason for not giving the relief of specific performance of
contract. The First Appellate Court has considered the record of
inquiry prepared by revenue authority to ascertain as to whether
possession was given to the plaintiff. On the basis of that record,
the First Appellate Court has held that the possession was given
to the plaintiff. The First Appellate Court has held that no reason is
given for denying the relief of specific performance to the plaintiff
and so, the suit is decreed as prayed.
Argument was advanced by the learned counsel for
11.
7
the appellants on the grounds mentioned in the appeal memo.
The argument was mainly on the following grounds which are
treated as substantial questions of law :-
Whether the Appellate Court has committed
(i)
error in interfering the decision of the Trial Court
Whether the point of readiness and willingness
(ii)
which is based on exercise of discretionary power ?
ought to have been answered in favour of plaintiff in
view of nature of evidence ?
Whether the defendant, appellant is entitled to
(iii)
market price on the ground of equity ?
12.
It was mainly submitted by the learned counsel for
the appellants that granting or refusing the relief of specific
performance is within discretionary powers of the Civil Court as
provided under section 20 of Specific Relief Act. It was submitted
that in view of the fact that the small amount of consideration was
given, it was not proper for Appellate Court to interfere in the
decision of the Trial Court. It was also submitted that the plaintiff
ought to have been made to pay market price on the ground of
equity and that could have done justice to both the sides as
13.
possession is with the plaintiff.
Present appeal is prosecuted by the husband of
Shashikala and widow of deceased defendant. The evidence given
by the defendant with regard to the intention of Shashikala and
widow of deceased defendant is already quoted. Shashikala had
scribed the document and in view of the evidence given by the
defendant in the cross examination, it can be said that it is not
open to Shashikala to deny that there was agreement of sale.
Shashilala had taken lead in execution of the agreement. As the
evidence shows that the wife also wanted to sell the land to the
plaintiff, after the death of original defendant, the Court is
expected to keep in mind the scope available to Shashilaka and
widow of defendant to refuse to execute the sale deed. Further,
from the evidence of defendant, it can be said that he has dispute
that entire consideration was not given in lumpsum on the date of
agreement. The defendant wanted more consideration, amount of
Rs. 40,000/- and for that reason, he was refusing to execute the
sale deed. These circumstances are considered by the First
Appellate Court and they cannot be ignored. This material was not
considered by the Trial Court. Being the First Appellate Court, it
was necessary for the First Appellate Court to consider all the
evidence and to appreciate it. The Trial Court has also given
decision in favour of the plaintiff in respect of two issues and it is
held that there was the agreement of sale and there was no fraud
played.
14.
The judgment and decree of Trial Court shows that
there is no discussion at all which needs to be there for refusal to
grant specific performance of contract when section 10 of Specific
Relief Act shows that ordinarily relief of specific performance
needs to be granted when the contract is for sale of immovable
property, it becomes necessary for the Court to say, why such
relief cannot be granted. Further, the refusal to grant such relief
can be only on the grounds mentioned in section 20 of Specific
Relief Act. The relevant provisions of section 10 and 20 of Specific
Relief Act are as under :-
10. Cases in which specific performance of
contract enforceable.-Except as otherwise
provided
in
this
Chapter,
the
specific
performance of any contract may, in the
discretion of the court, be enforced-
(a)
When
there
exists
no
standard
for
ascertaining actual damage caused by the non-
performance of the act agreed to be done; or
(b)
When the act agreed to be done is such
that that compensation in money for its non-
performance would not afford adequate relief.
Explanation.- Unless and until the contrary is
proved, the court shall presume. -
(i) That the breach of a contract to transfer
immovable
property cannot
be adequately
relieved by compensation in money; and"
20. Discretion as to decreeing specific
performance.- (1) The jurisdiction to decree
specific performance is discretionary, and the
court is not bound to grant such relief merely
because it is lawful to do so; but the discretion
of the court is not arbitrary but sound and
reasonable, guided by judicial principles and
capable of correction by a court of appeal.
The following are cases in which the court
(2)
may property exercise discretion not to decree
specific performance:-
(a)
where the terms of the contract or the
conduct of the parties at the time of entering
into the contract or the other circumstances
under which the contract was entered into are
such that the contract, though not voidable,
gives the plaintiff an unfair advantage over the
defendant; or
(b)
where the performance of the contract
would involve some hardship on the defendant
which he did not foresee, whereas its non-
performance would involve no such hardship on
the plaintiff, or
(c)
11
where the defendant entered into the
contract under circumstances, which though
not rendering the contract voidable, makes it
inequitable to enforce specific performance.
Explanation 1.-
consideration, or
contract
is
Mere
the
onerous
inadequacy
mere
to
the
fact
that
defendant
of
the
or
improvident in its nature, shall not be deemed
to constitute an unfair advantage within the
ig
meaning of clause (a) or hardship within the
meaning of clause (b).
Explanation 2.- The question whether the
performance
of
a
contract
would
involve
hardship on the defendant within the meaning
of clause (b) shall, except in cases where the
hardship has resulted from any act of the
plaintiff
subsequent
to
the
contract,
be
determined with reference to the circumstances
existing at the time of the contract."
15.
The aforesaid provisions show that contract to
transfer immovable property is as a rule specifically enforceable.
The refusal of such relief is possible only when the grounds
mentioned in section 20 are made out. There was no pleading at
all in the written statement with regard to the grounds mentioned
in section 20 and the defence of fraud was taken. The burden of
proof in respect of these grounds was on defendant. The Trial
Court has not discussed either these grounds and has not given
any specific reason for refusal to give relief to the plaintiff. Thus,
the Trial Court has committed error in exercising the jurisdiction. If
the Court does not give reasons for refusing the specific relief, in
such a case, it can be said that error is committed in exercising
the discretionary power and such error can be corrected in the
appeal. Reliance can be placed on this point on the case reported
as AIR 1973 SC 2457 [M.L. Devender Singh v. Syed Khaja]
on this point. In view of the aforesaid discussion and position of
law, the First Appellate Court has not committed any error in
interfering the decision of the Trial Court. Thus, the first
question
substantial
of
law
is
answered
against
the
appellant/defendant.
16.
On the point of readiness and willingness, no issue as
such was framed in view of defence taken in written statement.
The relevant provision, the portion of section 16 of Specific Relief
Act is as under :-
"16.
Personal
bars
to
relief.-
Specific
performance of a contract cannot be enforced
in favour of a person-
(a)
who would not be entitled to recover
compensation for its breach; or
(b)
who has become incapable of performing,
or violates any essential term of, the contract
that on his part remains to be performed, or
acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relations
intended to be established by the contract; or
(c)
who fails to aver and prove that he has or
has always been ready and willing to perform
the essential terms of the contract which are to
be performed by him, other than terms of the
performance of which has been prevented or
waived by the defendant.
(i)
Explanation.-For the purposes of clause (c), -
where a contract involves the payment of
money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in
court any money except when so directed by
the court;
(ii)
the plaintiff must aver performance of, or
readiness
and willingness to perform, the
contract according to its true construction."
17.
As per the aforesaid provision, there was averment in
the plaint. The plaintiff came to the Court with specific case that
the defendant had repudiated the contract. The suit was filed
within period mentioned in the agreement. In view of these
circumstances, it can be said that plaintiff accepted the
repudiation and acted upon it by filing the suit. In view of these
circumstances and nature of evidence given by defendant, which
is already quoted, it cannot be inferred that plaintiff was not ready
and willing to perform his part of contract. Thus, on this point also
there are no merits in the appeal. This point involves questions of
fact and both the Courts below have not decided this point
against the plaintiff and there was also no need of decision on this
point in view of the nature of defence taken in the written
statement. On this point, reliance can be placed on the case
reported as 1989 (4) SCC 313 [Abdul Khader Rowther Vs.
P.K. Sara bhai]. For respondents reliance was placed on
following two reported cases (i) (2012) 5 Supreme Court Cases
712 [Narinderjit Singh Vs. North Star Estate Promoters
Limited] and (ii) (2008) 4 Supreme Court Cases 212
[Ramkrishna Pillai and Anr. Vs. Muhammed Kunju and Ors].
The learned counsel for the appellant placed reliance on the case
reported as 2013 (1) ALL MR 433 (S.C.) [Satya Jain (D) thr.
Lrs. & Ors. Vs. Anis Ahmed Rushdie (D) tr. Lrs. & Ors.].
18.
On the third point, it was submitted by the learned
counsel for the appellants that for last so many years, plaintiff has
been in possession of the suit property and he had given
consideration of only Rs. 1,000/-. It was submitted that in view of
these circumstances and the fact that the matter is being decided
after many years, equity needs to be done to the defendant and
direction needs to be given to the plaintiff to pay market price. In
this regard, it can be said that as per the judgment and decree of
the First Appellate Court, the remaining amount of consideration
was deposited by the plaintiff in the Court. The suit was filed also
immediately within period prescribed in the agreement. It is due
to the aforesaid conduct of the defendant, the sale deed could not
be executed. It cannot be said that the suit remained pending due
to conduct of the plaintiff. On this point, reliance was placed on
case reported as 2011 ALL SCR 1597 (Vimaleshwar Nagappa
Shet Vs. Noor Ahmed Sheriff & Ors.). In this case, the Apex
Court has discussed the provision of section 20 of Specific Relief
Act. In the reported case due to the circumstance like filing of suit
after lapse of long period, the relief was not given to the plaintiff
and it was held that the prices of property in that urban area had
increased very fast. In the case reported as Satya Jain cited
supra while discussing the provision of section 20, the Apex Court
considered the escalation in prices. The Apex Court has laid down
that escalation of prices of property cannot be valid ground for
refusing the relief of specific performance. The Apex Court
however made order to give market price to the defendant.
Similar directions were made in the case reported as 2011 (6)
Mh.L.J. 84 [Preetam Kaur Vs. Prakash Ramdeo Jaiswal] by
19.
this Court.
The facts and circumstances of each and every case
are always different. The facts of the present case are altogether
different and this Court has considered the conduct of both the
parties. Grounds mentioned in section 20 of Specific Relief Act are
not made out. The conduct is also relevant for using principle of
equity. In the reported cases AIR 2004 Supreme Court 4472
(1) [P. D'Souza Vs. Shondrilo Naidu] at paragraph No. 47
following observations are made :
"47. The said decision cannot be said to
constitute a binding precedent to the effect that
in all cases where there had been an escalation
of prices the court should either refuse to pass
a decree on specific performance of contract or
direct the plaintiff to pay a higher sum. No law
in absolute terms to that effect has been laid
down by this Court nor is discernible from the
aforementioned decision"
20.
In this reported case statement of law from the case
of M.L. Devender Singh cited supra is considered by the Apex
Court. In view of this position of law, this Court holds that last
substantial question of law also needs to be answered against the
appellant.
In the result, the appeal stands dismissed.
22. The learned counsel for appellant submitted that he
21.
wants to challenge the decision of this Court. He requested for
time of six weeks. In view of the facts and circumstances of this
case, this Court holds that time of four weeks can be given. The
[ T.V. NALAWADE, J. ]
stay is given to the execution of the decree for four weeks.
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