In the present case, it appears that possession was not
given to the plaintiff at the time of execution of the agreement,
nor the area of land agreed to be sold was clear, as such, it
cannot be said that the plaintiff has done substantial acts or
suffered losses due to expenditure in constructions etc., in
consequence of a contract capable of specific performance. The
direction given by High Court in the impugned order shows
that the measurements of land actually agreed to be sold, are
not final.
17. In the above facts and circumstances of the case, we are
of the view that instead of affirming the decree of specific
performance as modified by High Court, it will be equitable,
just and proper to direct the appellants to pay back amount of
Rs.60,000/- accepted by the original defendant with interest
@ 18% per annum to the plaintiff/respondent from
04.02.1992 till date, within a period of three months from
today, failing which this appeal shall stand dismissed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7893 OF 2015
(Arising out of S.L.P. (Civil) No. 27657 of 2014)
Hemanta Mondal
Versus
Sri Ganesh Chandra Naskar
Citation: 2016 (6) MHLJ 30
2. This appeal is directed against judgment and order dated
01.08.2013, passed by High Court of judicature at Calcutta in
Second Appeal No. 430 of 2004, whereby said court has
modified the decree passed by Additional District Judge 3rd
,
Howrah in Title Appeal No. 139 of 2002.
3. We have heard learned counsel for the parties and
perused the papers on record.
4. Brief facts of the case are that plaintiff/respondent filed
Title Suit No. 4 of 1993 for specific performance of agreement,
possession and injunction before Civil Court at Howrah, in
respect of ‘Danga’ land measuring 8 cottahs 14 chittacks 24
sq. ft., recorded as 16 shatak in R.S. Dag No. 271 Khatian
No.74, and in recent settlement record the same has been
recorded in Dag No. 273, Khatian No. 602 within
Mouza-Pakuria, P.S. Domjur, District Howrah. As per the
agreement dated 04.02.1992, defendant (Mishrilal Mondal)
agreed to sell the land at the rate of Rs.15,000/- per cottah in
favour of plaintiff (Ganesh Chandra Naskar), and received
Rs.60,000/- as earnest money, and rest of the consideration
was agreed to be paid at the time of the execution of sale deed.
It was also stipulated in the agreement that, if entire area
comes out as 10 cottah, the lump sum consideration would be
Rs.1,50,000/-. According to plaintiff, measurements were
made on 07.03.1992, by surveyors in the presence of parties,
and it was found that the area of land was 8 cottah 14 chitaks
24 sq.ft., as such amount of consideration was Rs.1,33,125/-,
i.e., at the rate of Rs.15,000/- per cottah. It is pleaded in the
suit that plaintiff was/is always ready and willing to pay
balance amount of Rs.73,125/- to get the sale deed executed,
but the defendant declined to execute the same. On this, the
plaintiff gave notice to the defendant to execute the sale deed
but he questioned the correctness of the measurements, and
offered to pay back Rs.60,000/- accepted by him as earnest
money. Consequently, the suit for specific performance,
possession and injunction was filed by the plaintiff.
5. The original defendant contested the suit and filed his
written statement. It appears that during the pendency of suit
due to the death of the original defendant his heirs were
substituted. The case of the appellants as contained in
amended written statement is that Mishrilal Mondal had
undivided share in the property and he was owner in respect
of only 16 ½ shataks of the land out of 33 shataks of Dag no.
271.
6. The trial court framed issues, and after recording
evidence of the parties disposed of the suit directing the
defendant to refund the earnest money of Rs. 60,000/- to the
plaintiff. Said judgment and decree dated 29.06.2002, passed
by the Civil Judge (senior division), 3rd Court, Howrah, was
challenged by the plaintiff who filed Title Appeal No. 139 of
2002. The same, after hearing the parties, was allowed, and it
was directed by the first appellate court that the defendants
shall execute sale deed after accepting balance amount of
Rs.73,125/- from the plaintiff.
7. The judgment and decree dated 22.12.2003, passed in
Title Appeal No. 139 of 2002 was challenged by the defendants
in Second Appeal no. 430 of 2004, and the High Court passed
impugned judgment, modifying the decree passed by the first
appellate court. It is directed by the High Court that the decree
of specific performance of contract shall stand affirmed in
respect of the agreement dated 04.02.1992, but not on the
basis of measurements taken by PW-2. The High Court
remanded the matter to first appellate court, with further
direction that the defendant shall be allowed to apply for
appointment of a Commissioner for doing the survey of the
land to be transferred. It is also clarified by the High Court
that if no such application is moved the suit shall stand
decreed, as per the measurements made by PW-2. Unsatisfied
with the modified decree, passed by High Court, the
defendants are before us, in this appeal, through special leave.
8. Copy of the agreement between plaintiff Ganesh Chandra
Naskar and original defendant Mishrilal Mondal (since died) is
annexed as Annexure P-8 with affidavit dated 16.09.2014,
filed by Dilip Mondal (appellant no.2), which discloses that
Mishrilal Mondal agreed to sell 16 shataks or 10 cottahs of
land mentioned in the schedule, to the plaintiff, on payment of
Rs.15,000/- per cottah which was the market rate. It is also
mentioned in the agreement that Mishrilal Mondal (original
defendant) accepted Rs. 60,000/- as part payment. The terms
and conditions mentioned in the agreement contains following
relevant stipulation:-
“3. After executing this Advance Agreement,
while measuring the land if it is found that the total
area of the land which will be sold is less than 10
Cottahs as mentioned in schedule below, you will
pay the balance amount which will be calculated for
the less area of land @ Rs.15,000/- and I alongwith
my heirs and representatives shall remain bound to
register the Sale Deed in your favour for the land as
mentioned in the schedule below.”
9. The description of the schedule property for which
advance is taken, gives following details at the end of the
terms mentioned in the agreement (Annexure P-8):-
“DESCRIPTION OF SCHEDULE PROPERTY FOR WHICH
ADVANCES TAKEN
Under District-Howrah, District Registrar
Office-Howrah, Sub-Registry Office- Domjur, P.S.
Domjur and within Mouza-Pakura mentioned in old
‘Parcha’ (record) in Khatian No. 177 (one hundred
seventy seven) in Dag No. 271 (Two hundred
seventy one), high land measuring 33 (thirty three)
shataks under permanent tenancy right, half
portion from the western side which is according to
Revisional Settlement’s ‘Parcha’ (record) in Khatian
No. 746 (seven hundred forty six), Dag No. 271 (two
hundred seventy one) and in Parcha (Record) of
present Revisional Settlement it is recorded in
Khatian No. 602 (six hundred two), Dag No. 273
(two hundred seventy three) under permanent
tenancy right as high land measuring 16 (sixteen)
shataks”.
10. In the second para of the agreement, following
declaration is made by the original defendant:-
“I am the absolute Owner and possessor of the said
property. Besides me, there is no co-sharer or heir. I
have never transferred or joint liability with any
person. It is absolutely free from all sorts of liability
and encumbrances. If any type of liability reveals,
you will get time till it is made free from liability and
encumbrances and in this condition I and my
successors are bound to execute the deed.”
11. Admittedly, the appellant no. 1 to 4 are sons, appellant
no. 5 is widow, and appellant no. 6 is daughter of Mishrilal
Mondal (original defendant). Appellant no. 8 and appellant no.
9 are son and daughter of Netai Mondal (brother of Mishrilal
Mondal), appellant no. 10 wife of Basudev Nasakar and
appellant no. 11 is wife of Natabar Mondal, the relatives of
original defendant.
12. On behalf of the plaintiff/respondent, copy of challan
depositing Rs. 73,125/- on 13.01.2004/16.01.2004 with the
Civil Court, in favour of the appellants, is annexed with the
counter affidavit.
13. Though the appellants have pleaded that Mishrilal
Mondal was not absolute owner of the land, however, said plea
appears to have not been accepted by none of the courts
below. Moreover, the legal heirs of the original defendant are
not only bound by the agreement executed by him, but also by
the pleas taken by the original defendant in his written
statement before the trial court.
14. Having heard learned counsel for the parties, we are not
inclined to interfere with the findings affirmed by the High
Court. On consideration of submissions of rival parties in the
present appeal the only point before us is whether in the facts
and circumstances of the case, a decree of specific
performance of agreement of sale should have been passed, or
the decree of refund of part consideration received by the
defendant, with interest, would have served the ends of
justice.
15. Section 20 of Specific Relief Act, 1963 gives discretion to
the court, and provides that the court is not bound to grant
relief of specific performance merely because it is lawful to do
so. It further provides that the discretion is not to be exercised
arbitrarily but guided by judicial principles. Sub-section (2) of
Section 20 enumerates three conditions when discretion is not
to be exercised to grant decree of 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) 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) to sub-section (2) provides that mere
inadequacy of consideration shall not be deemed to be an
unfair advantage within the meaning of clause (a) or hardship
within the meaning of clause (b). Explanation (2) provides that
the question whether the performance of a contract when
involved 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 in the
contract, be determined with reference to the circumstances
accepting at the time of contract. Sub-section (3) provides that
court may properly exercise discretion to decree specific
performance in any case where plaintiff has done substantial
acts or suffered losses in consequence of a contract capable of
specific performance.
16. In the present case, it appears that possession was not
given to the plaintiff at the time of execution of the agreement,
nor the area of land agreed to be sold was clear, as such, it
cannot be said that the plaintiff has done substantial acts or
suffered losses due to expenditure in constructions etc., in
consequence of a contract capable of specific performance. The
direction given by High Court in the impugned order shows
that the measurements of land actually agreed to be sold, are
not final.
17. In the above facts and circumstances of the case, we are
of the view that instead of affirming the decree of specific
performance as modified by High Court, it will be equitable,
just and proper to direct the appellants to pay back amount of
Rs.60,000/- accepted by the original defendant with interest
@ 18% per annum to the plaintiff/respondent from
04.02.1992 till date, within a period of three months from
today, failing which this appeal shall stand dismissed. We
order accordingly. The amount of Rs.73,125/- deposited by
the plaintiff may also be withdrawn by him after appellants
pay or deposit the sum in favour of plaintiff as directed above.
Appeal stands disposed of.
……………….....…………J.
[Dipak Misra]
.……………….……………J.
New Delhi; [Prafulla C. Pant]
September 23, 2015.
Print Page
given to the plaintiff at the time of execution of the agreement,
nor the area of land agreed to be sold was clear, as such, it
cannot be said that the plaintiff has done substantial acts or
suffered losses due to expenditure in constructions etc., in
consequence of a contract capable of specific performance. The
direction given by High Court in the impugned order shows
that the measurements of land actually agreed to be sold, are
not final.
17. In the above facts and circumstances of the case, we are
of the view that instead of affirming the decree of specific
performance as modified by High Court, it will be equitable,
just and proper to direct the appellants to pay back amount of
Rs.60,000/- accepted by the original defendant with interest
@ 18% per annum to the plaintiff/respondent from
04.02.1992 till date, within a period of three months from
today, failing which this appeal shall stand dismissed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7893 OF 2015
(Arising out of S.L.P. (Civil) No. 27657 of 2014)
Hemanta Mondal
Versus
Sri Ganesh Chandra Naskar
Citation: 2016 (6) MHLJ 30
2. This appeal is directed against judgment and order dated
01.08.2013, passed by High Court of judicature at Calcutta in
Second Appeal No. 430 of 2004, whereby said court has
modified the decree passed by Additional District Judge 3rd
,
Howrah in Title Appeal No. 139 of 2002.
3. We have heard learned counsel for the parties and
perused the papers on record.
4. Brief facts of the case are that plaintiff/respondent filed
Title Suit No. 4 of 1993 for specific performance of agreement,
possession and injunction before Civil Court at Howrah, in
respect of ‘Danga’ land measuring 8 cottahs 14 chittacks 24
sq. ft., recorded as 16 shatak in R.S. Dag No. 271 Khatian
No.74, and in recent settlement record the same has been
recorded in Dag No. 273, Khatian No. 602 within
Mouza-Pakuria, P.S. Domjur, District Howrah. As per the
agreement dated 04.02.1992, defendant (Mishrilal Mondal)
agreed to sell the land at the rate of Rs.15,000/- per cottah in
favour of plaintiff (Ganesh Chandra Naskar), and received
Rs.60,000/- as earnest money, and rest of the consideration
was agreed to be paid at the time of the execution of sale deed.
It was also stipulated in the agreement that, if entire area
comes out as 10 cottah, the lump sum consideration would be
Rs.1,50,000/-. According to plaintiff, measurements were
made on 07.03.1992, by surveyors in the presence of parties,
and it was found that the area of land was 8 cottah 14 chitaks
24 sq.ft., as such amount of consideration was Rs.1,33,125/-,
i.e., at the rate of Rs.15,000/- per cottah. It is pleaded in the
suit that plaintiff was/is always ready and willing to pay
balance amount of Rs.73,125/- to get the sale deed executed,
but the defendant declined to execute the same. On this, the
plaintiff gave notice to the defendant to execute the sale deed
but he questioned the correctness of the measurements, and
offered to pay back Rs.60,000/- accepted by him as earnest
money. Consequently, the suit for specific performance,
possession and injunction was filed by the plaintiff.
5. The original defendant contested the suit and filed his
written statement. It appears that during the pendency of suit
due to the death of the original defendant his heirs were
substituted. The case of the appellants as contained in
amended written statement is that Mishrilal Mondal had
undivided share in the property and he was owner in respect
of only 16 ½ shataks of the land out of 33 shataks of Dag no.
271.
6. The trial court framed issues, and after recording
evidence of the parties disposed of the suit directing the
defendant to refund the earnest money of Rs. 60,000/- to the
plaintiff. Said judgment and decree dated 29.06.2002, passed
by the Civil Judge (senior division), 3rd Court, Howrah, was
challenged by the plaintiff who filed Title Appeal No. 139 of
2002. The same, after hearing the parties, was allowed, and it
was directed by the first appellate court that the defendants
shall execute sale deed after accepting balance amount of
Rs.73,125/- from the plaintiff.
7. The judgment and decree dated 22.12.2003, passed in
Title Appeal No. 139 of 2002 was challenged by the defendants
in Second Appeal no. 430 of 2004, and the High Court passed
impugned judgment, modifying the decree passed by the first
appellate court. It is directed by the High Court that the decree
of specific performance of contract shall stand affirmed in
respect of the agreement dated 04.02.1992, but not on the
basis of measurements taken by PW-2. The High Court
remanded the matter to first appellate court, with further
direction that the defendant shall be allowed to apply for
appointment of a Commissioner for doing the survey of the
land to be transferred. It is also clarified by the High Court
that if no such application is moved the suit shall stand
decreed, as per the measurements made by PW-2. Unsatisfied
with the modified decree, passed by High Court, the
defendants are before us, in this appeal, through special leave.
8. Copy of the agreement between plaintiff Ganesh Chandra
Naskar and original defendant Mishrilal Mondal (since died) is
annexed as Annexure P-8 with affidavit dated 16.09.2014,
filed by Dilip Mondal (appellant no.2), which discloses that
Mishrilal Mondal agreed to sell 16 shataks or 10 cottahs of
land mentioned in the schedule, to the plaintiff, on payment of
Rs.15,000/- per cottah which was the market rate. It is also
mentioned in the agreement that Mishrilal Mondal (original
defendant) accepted Rs. 60,000/- as part payment. The terms
and conditions mentioned in the agreement contains following
relevant stipulation:-
“3. After executing this Advance Agreement,
while measuring the land if it is found that the total
area of the land which will be sold is less than 10
Cottahs as mentioned in schedule below, you will
pay the balance amount which will be calculated for
the less area of land @ Rs.15,000/- and I alongwith
my heirs and representatives shall remain bound to
register the Sale Deed in your favour for the land as
mentioned in the schedule below.”
9. The description of the schedule property for which
advance is taken, gives following details at the end of the
terms mentioned in the agreement (Annexure P-8):-
“DESCRIPTION OF SCHEDULE PROPERTY FOR WHICH
ADVANCES TAKEN
Under District-Howrah, District Registrar
Office-Howrah, Sub-Registry Office- Domjur, P.S.
Domjur and within Mouza-Pakura mentioned in old
‘Parcha’ (record) in Khatian No. 177 (one hundred
seventy seven) in Dag No. 271 (Two hundred
seventy one), high land measuring 33 (thirty three)
shataks under permanent tenancy right, half
portion from the western side which is according to
Revisional Settlement’s ‘Parcha’ (record) in Khatian
No. 746 (seven hundred forty six), Dag No. 271 (two
hundred seventy one) and in Parcha (Record) of
present Revisional Settlement it is recorded in
Khatian No. 602 (six hundred two), Dag No. 273
(two hundred seventy three) under permanent
tenancy right as high land measuring 16 (sixteen)
shataks”.
10. In the second para of the agreement, following
declaration is made by the original defendant:-
“I am the absolute Owner and possessor of the said
property. Besides me, there is no co-sharer or heir. I
have never transferred or joint liability with any
person. It is absolutely free from all sorts of liability
and encumbrances. If any type of liability reveals,
you will get time till it is made free from liability and
encumbrances and in this condition I and my
successors are bound to execute the deed.”
11. Admittedly, the appellant no. 1 to 4 are sons, appellant
no. 5 is widow, and appellant no. 6 is daughter of Mishrilal
Mondal (original defendant). Appellant no. 8 and appellant no.
9 are son and daughter of Netai Mondal (brother of Mishrilal
Mondal), appellant no. 10 wife of Basudev Nasakar and
appellant no. 11 is wife of Natabar Mondal, the relatives of
original defendant.
12. On behalf of the plaintiff/respondent, copy of challan
depositing Rs. 73,125/- on 13.01.2004/16.01.2004 with the
Civil Court, in favour of the appellants, is annexed with the
counter affidavit.
13. Though the appellants have pleaded that Mishrilal
Mondal was not absolute owner of the land, however, said plea
appears to have not been accepted by none of the courts
below. Moreover, the legal heirs of the original defendant are
not only bound by the agreement executed by him, but also by
the pleas taken by the original defendant in his written
statement before the trial court.
14. Having heard learned counsel for the parties, we are not
inclined to interfere with the findings affirmed by the High
Court. On consideration of submissions of rival parties in the
present appeal the only point before us is whether in the facts
and circumstances of the case, a decree of specific
performance of agreement of sale should have been passed, or
the decree of refund of part consideration received by the
defendant, with interest, would have served the ends of
justice.
15. Section 20 of Specific Relief Act, 1963 gives discretion to
the court, and provides that the court is not bound to grant
relief of specific performance merely because it is lawful to do
so. It further provides that the discretion is not to be exercised
arbitrarily but guided by judicial principles. Sub-section (2) of
Section 20 enumerates three conditions when discretion is not
to be exercised to grant decree of 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) 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) to sub-section (2) provides that mere
inadequacy of consideration shall not be deemed to be an
unfair advantage within the meaning of clause (a) or hardship
within the meaning of clause (b). Explanation (2) provides that
the question whether the performance of a contract when
involved 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 in the
contract, be determined with reference to the circumstances
accepting at the time of contract. Sub-section (3) provides that
court may properly exercise discretion to decree specific
performance in any case where plaintiff has done substantial
acts or suffered losses in consequence of a contract capable of
specific performance.
16. In the present case, it appears that possession was not
given to the plaintiff at the time of execution of the agreement,
nor the area of land agreed to be sold was clear, as such, it
cannot be said that the plaintiff has done substantial acts or
suffered losses due to expenditure in constructions etc., in
consequence of a contract capable of specific performance. The
direction given by High Court in the impugned order shows
that the measurements of land actually agreed to be sold, are
not final.
17. In the above facts and circumstances of the case, we are
of the view that instead of affirming the decree of specific
performance as modified by High Court, it will be equitable,
just and proper to direct the appellants to pay back amount of
Rs.60,000/- accepted by the original defendant with interest
@ 18% per annum to the plaintiff/respondent from
04.02.1992 till date, within a period of three months from
today, failing which this appeal shall stand dismissed. We
order accordingly. The amount of Rs.73,125/- deposited by
the plaintiff may also be withdrawn by him after appellants
pay or deposit the sum in favour of plaintiff as directed above.
Appeal stands disposed of.
……………….....…………J.
[Dipak Misra]
.……………….……………J.
New Delhi; [Prafulla C. Pant]
September 23, 2015.
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