HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- SECOND APPEAL No. - 1070 of 2015 Appellant :- Virendra Singh Respondent :- Rohit And 4 Ors. Counsel for Appellant :- Vinod Sinha, Mahesh Chand Sharma Hon'ble Pramod Kumar Srivastava, J.
1. O.S. No. 410/2009, Virendra Singh v. Rohit & others was filed by plaintiff for specific performance of contract. The plaint averment was that defendants had agreed to sell the 1/6th of their share of property in bhumidhari land detailed in plaint for Rs. 60,000/- and received Rs. 30,000/- as advance consideration and agreed to execute sale deed till 28.1.2009. Two of the defendants were minor, therefore said agreement was executed on their behalf by their mother, defendant no.-5. Plaintiff has been ready and willing to perform his part of contract, who had been asking and reminding the defendant to execute sale deed in his favour after receiving remaining consideration, and also also given legal notice for the same but defendants were not ready to execute sale-deed as agreed between parties, therefore, plaintiff had filed suit for specific performance of contract.
2. The defendants had not admitted the plaint case in their written statement and pleaded that in pretext of executing document for loan the plaintiff had fraudulently got signed documents by defendants without any consideration. Therefore, the document of registered agreement to sell is void and suit is liable to be dismissed.
3. After accepting evidences, the Additional Civil Judge (S.D.), Court No.-3, Ghaziabad had passed judgment dated 27.5.2012 by which plaint averment regarding execution of registered agreement to sell as well as readiness and willingness of plaintiff to perform his part of contract as mentioned in the plaint, was found proved. But the trial court had declined the plaintiff the first and main relief of specific performance of contract, and decreed the suit for alternative relief of return of advance consideration of Rs. 30,000/- with interest to plaintiff from defendant.
4. Aggrieved by the judgment dated 27.5.2012 of the trial court, Civil Appeal No. 135/2013 Virendra Singh v. Rohit and another was preferred by the plaintiff of original suit. This appeal was filed only for quashing that portion of judgment and decree which related to alternative relief of refund of advance consideration and for the grant of relief of specific performance of contract. This civil appeal no. 135/2013 was dismissed by the judgment dated 11.8.2015 of Additional District Judge, Court No.-12, Ghaziabad. The first appellate court had also considered factual and legal aspect on the point that whether in present matter relief of specific performance of contract should be granted to plaintiff-appellant, then after considering legal the provisions as well as involvement of rights and interest of minors, the first appellate court had found it appropriate that judgment of trial court should be confirmed and should not be interfered.
5. Aggrieved by this judgment of the trial court as well as the first appellate court, the present Second Appeal has been preferred by the plaintiff of the original suit.
6. The learned counsel for the appellant contended that the two courts below had considered the ground of minority of two minors-respondents, and wrongly relied on provision of Section-8 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'Act') and thereafter reached to incorrect conclusion that in case of involvement of right of minors the relief of specific performance of contract is not proper. In this regard, he relied on two single bench judgments of Allahabad High Court reported in Ashok Kumar and others v. Kaneshwar Nath and others, 1999 (1) AWC 535 which was relied again in Maya Shankar and others v. D.D.C and others, 1984 RD, page-1. He contended in light of these rulings that for specific performance of contract the property of minors-respondents can be sold. But the first appellate court had cited the ruling Kallathil Sreedharan v. Komath Pandyala Prasanna, (1996) 6 SCC 218 in which Apex Court had held as under:
"6. Having regard to the respective contentions, the question that arises for consideration is whether the agreement dated 22-7-1982 for sale of the cinema theatre is to be specifically enforced? When the special leave petitions were filed, the appellants had filed an affidavit stating that they are not claiming specific performance as regards half share of the second respondent-minor. It would be obvious that since the mandatory requirement of sanction from the Court for alienating the property of the minor, as required under Section-8 of the Hindu Minority and Guardianship Act, had not been obtained, the contract of sale to the extent of the half share of the minor is void and it does not bind the minor. The courts have rightly declined to exercise discretion on sound principle of law to protect the estate of the minor."
7. thus it is clear that this argument is unacceptable that in matter of specific performance of contract for sale of property the section-8 of the Act has its application. So far as this argument of learned counsel for the appellant is concerned that provision of permission to sale such agricultural property section-8 of the Act is not required this argument is unacceptable in light of verdict of Apex Court.
8. It is pertinent to consider that so far matter relating to granting of relief of specific performances or alternative relief of refund of money as provided under section-20 of the Specific Relief Act is concerned, it is discretionary relief. At the time of decreeing the suit for specific performance of contract the court is duty bound to consider the provisions of section-20 of the Specific Relief Act and decide as to whether discretion should be applied or not for granting relief of specific performance. Section-20 of the Specific Relief Act reads as under:
"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.
(2) The following are cases in which the court may properly 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;
(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.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the 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.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party."
9. In present matter the trial court as well as first appellate court had discussed not only above mentioned provisions of the Act and Specific Relief Act, but had also discussed the justification of the case for not awarding the relief of Specific performance of agreement to sell, and for granting the alternative relief of refund of advance consideration. Not only the legal points were properly discussed but there is concurrent finding of fact for justification of propriety for not awarding the relief of specific performance and awarding the alternative relief of refund of advance consideration. These findings are apparently correct and acceptable. Such concurrent findings cannot be interfered by re-appreciation of evidence in second appeal by this court.
10. In this regard in Kallathil Sreedharan v. Komath Pandyala Prasanna, (1996) 6 SCC 218 the Apex Court has held as under:
"9. Section 20 of the Specific Relief Act, 1963 deals with discretion and jurisdiction to the court. It says that the court is not bound to grant such relief merely because it is lawful to do so, but at the same time it enjoins that the discretion of the court should not be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. It would thus be seen that the discretion given to the court of equity is required to be exercised not arbitrarily but on sound and reasonable basis guided by judicial principles.
10. It is seen that the appellant had himself admitted in the cross-examination that he was not particular of having the agreement enforced with the respondent for the purchase of Prabha Cinema Theatre since he was already having theatres in Cannanore itself. He says that "if Premarajan had asked me to give two lakhs or more to pay the Prabha Theatre, I would not have purchased it on that day. I have no idea of purchasing the Prabha Theatre." But finding the situation in which the first respondent was situated, he was willing to purchase the property on paying an additional sum of Rs 2 lakhs towards the respondent-judgment-debtors' share and tried to secure the theatre for the judgment-debtors. It would, thus, be seen that the appellant was already having the theatres. He was not serious about purchasing the theatre. But since she had offered to sell the theatre to him, he had agreed to purchase the property. It is seen that the cinema theatre is a joint property between the first respondent and her minor son. Considered from this perspective and in view of the finding recorded by the High Court on appreciation of the evidence, we are of the view that the High Court has not committed any error of law in declining to exercise the discretion in favour of the appellant by granting decree for specific performance. Instead, it granted decree for refund of the amount advanced by the appellant to discharge the decree debt which she owed to salvage the theatre from being confirmed in the court auction. Considered from this perspective, we are of the opinion that the discretion exercised by the High Court is on sound principles and, therefore, it does not warrant interference."
11. From perusal of provisions of Section-20 of the Specific Relief Act as well as the above mentioned judgment of the Apex Court, it is clear that the court is not always bound to grant relief of specific performance of contract at the time of decreeing the suit instituted for the same and may grant alternative relief of refund of amount as compensation or damages or consideration to plaintiff.
12. Therefore in light of Apex Court Judgment the rulings cited the arguments advanced by learned counsel for appellant are unacceptable and is found that the trial court as well as first appellate court had rightly relied on provisions of section-8 of Hindu Minority Guardianship Act for declaring the relief of specific performance and granting the alternative remedy.
13. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate Court are well reasoned and are based upon proper appreciation of the entire evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. No question of law, much less a substantial question of law, was involved in this case before the High Court. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained.
14. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
15. Let a copy of this order be sent to the court concerned.
Order Date :- 22.12.2015 SKS