In a notable ruling, the Gujarat High Court has held that post 2018 amendment, the relief of specific performance under Section 20 of the Specific Reliefs Act is no longer discretionary but rather is a regular statutory relief.

The single-judge bench of Justice A.P. Thaker was adjudicating upon a Second Appeal filed by the defendants in a suit under Section 100 CrPC against a judgement of Assistant Judge.

The defendant has contended that the appellate Court has erred in holding that the plaintiff has proved execution of agreement to sell dated 23.08.1979 at exhibit 29. It was also contended that the Trial Court has rightly dismissed the suit of the plaintiff which ought not to have been interfered with by the First Appellate Court. It was also contended that the Appellate Court has erred in law in passing the decree of specific performance of the contract. It was also contended that the Appellate Court has erred in holding that in a suit for specific performance only those defense could be taken which are available under the provisions of the Specific Relief Act, 1963. It is also contended that the First Appellate Court has failed to appreciate facts of disability of the defendant and the defense raised by the defendant that he has never entered into any agreement to sell and that the plaintiff has taken advantage of defendants blindness and has used his signature for creating a document in his own favour. According to the defendants, the First Appellate Court ought to have accepted the defense of the defendant and ought not to have passed the impugned judgment and decree against the defendant. It is also contended that merely because the suit against the defendant no.2 remained exparte was not a proper ground for passing the impugned judgment and decree by the First Appellate Court.

According to him, the First Appellate Court has also erred in observing that the plaintiff has parted with Rs.2,601/-. It is also contended that the entire sale transaction is disputed by the defendant in his written statement which is not properly appreciated by the First Appellate Court. He has also contended that when the plaintiff has prayed for an alternative
relief of damages then the Appellate Court ought to have given option to the defendant and ought to have not passed the decree for specific performance of the contract.

The question of law arose in the appeal was:

In the facts and circumstances of the case, whether the learned First Appellate Court has committed error of facts and law in reversing the decree passed by the Trial Court rejecting
the suit of the plaintiff and has committed error of law in passing the decree for specific performance of the contract, upon agreement at exhibit 29?

The Court upon listening the arguements of both the Counsels and examining evidence on record, was of the view that considering the impugned judgment of the First Appellate Court, it clearly transpired that the First Appellate Court has properly appreciated the entire evidence on record.

The Court went to discuss the effect of 2018 amendment to the SRA.

"It also reveals that when the Trial Court has accepted the version of the plaintiff regarding execution of the agreement to sell by the defendants at exhibit 29, then, as a consequence, thereof, the decree of specific performance needs to be passed, in view of the amended section 20 of the Specific Relief Act. Of course prior to the amendment of Section 20, the grant of relief of specific performance was discretionary one", it said.

In regard to the above, it cited K. Narendra V. Riviera Apartments (P) Ltd. (1999) 5 SCC 77, wherein the Hon’ble Apex Court has laid down the proposition in para 29 thereof regarding Section 20 of the Specific Relief Act to the following effect:

- “…….29. Section 20 of the Specific Relief Act, 1963 provides that 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; 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. Performance of the contract involving some hardship on the defendant which he did not foresee while nonperformance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant…….”

 Noting that appellant has neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement and the only plea raised was regarding execution of the agreement to sell by fraud or misrepresentation and/ or taking undue advantage of the weak eye sight of the defendant no.1, the Court opined that even under the amended Section 20 of the Specific Relief Act, the discretionary relief of granting specific performance of the contract needs to be passed against the defendant no.1.

"Moreover, it is also well settled law that mere delay by itself, without more, cannot be the sole factum to deny specific performance", the court stated.

In background of the above, the Court observed that First Appellate Court has not committed any error of facts and law in passing the impugned decree of specific performance of a contract against the defendant-appellant.

CASE TITLE: DHANSUKHLAL RAMBHAI PATEL & 1 other(s) Versus DHANSUKHLAL NAGINDAS KAPAD

CASE DETAILS: SECOND APPEAL NO. 42 of 1990

CORAM: Justice A.P. Thaker

Read Judgement @LatestLaws.com:

Share this Document :

Picture Source :