Sobaran Singh vs Raghubir Singh & Another
2016 Latest Caselaw 3089 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- SECOND APPEAL No. - 817 of 1998
 

 
Appellant :- Sobaran Singh
 
Respondent :- Raghubir Singh & Another
 
Counsel for Appellant :- B.P.Agarwal,Beni Prasad,J.H. Khan,Pankaj Bharti,S.K. Singh,W.H. Khan
 
Counsel for Respondent :- B.D.Mandhyan,S.C.Mandhyan,Satish Mandhyan
 
Hon'ble Pramod Kumar Srivastava, J.

1. Heard learned counsel for the parties and perused the records.

2. In original suit no. 168/1977 (Sobaran Singh v. Raghubir Singh) the plaint case in brief was that the defendants had executed the registered agreement to sell dated 16.06.1975 for selling his land for a consideration of Rs. 20,000/-, and received Rs. 5,000/- as advance consideration. It was admitted between the parties that within two year defendant will receive remaining consideration of Rs. 15,000/- from plaintiff and execute sale-deed of his property in question. When he had not executed sale-deed, then the plaintiff had served legal notice dated 25.04.1977 to him and after receiving its incorrect reply, he had filed suit for specific performance of contract for sale.

3. In written-statement, the defendant pleaded that he had taken loan from plaintiff, but the transaction was written in form of registered agreement to sell. In fact, it was admitted between the parties that when defendants will return the loan amount of Rs. 5,000/- then that deed will be cancelled; and the said registered deed will be only for security of said loan. Defendants had already returned the amount of loan. Intention of the parties was not to execute sale deed. Plaintiff was never ready and willing to get sale-deed executed. Suit is liable to be dismissed.

4. After affording opportunity of hearing to parties, 3rd Additional Civil Judge, Agra had decreed the suit by its judgment dated 28.02.1979 directed the defendant to execute sale-deed after receiving remaining part of consideration of Rs. 15,000/- from plaintiff.

5. Against the judgment of trial court, Civil Appeal No. 129/1995 (Raghubir Singh v. Sobaran Singh) was preferred by the defendant of the original suit. This appeal was heard and partly allowed by the 7rh Addl. District Judge, by which judgment dated 15.05.1998 of trial court was set aside and defendant-appellant was directed to return Rs. 5,000/- to plaintiff with interest at the rate of 12% per annum w.e.f. 28.02.1979. Aggrieved by this judgment of first appellate court, present second appeal has been preferred by the plaintiff of the original suit.

6. Learned counsel for the appellant contended that no sufficient ground for granting alternative relief was given by first appellate court, therefore, its judgment for refund of advance consideration should be set aside and judgment of trial court for specific performance of contract should be restored.

7. Learned counsel for the respondent contended that the reasons given for alternative discretionary relief of refund of advance consideration by first appellate court are based on proper reasonings and the court was competent to grant discretionary relief of refund of money, so there is no error in judgment of first appellate court, which should be confirmed.

8. A perusal of the impugned judgment of first appellate court reveals that it has mentioned the reason for exercise of discretionary relief instead of relief of specific performance of contract. It has given finding that plaintiff had not been able to prove that he had sufficient income to pay remaining sale consideration of Rs. 15,000/- so his readiness is not properly proved.

9. Section 20 of Specific Relief Act 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, 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".

10. In present matter, the trial court had also appreciated the point of grant of discretionary relief in form of disposal of issue no.-4 and said point was again reconsidered by the first appellate court. The finding of the trial court in this regard is detailed which appear proper and correct. The trial court had properly discussed the provisions of section 20 of the Specific Relief Act, and then gave reasons as to why grant of relief of specific performance would be proper.

11. The finding of the first appellate court in this regard, had not reversed those findings but allowed the appeal on different grounds, as mentioned above, without considering the grounds mentioned in judgment of trial court. Those grounds are not properly based on evidences but were also based on some speculations, especially regarding income and paying capacity of plaintiff.

12. Section-20 of 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."

13. The provisions of section 20 as above were properly considered by the trial court, but not by the first appellate court. It is a fact that plaintiff-appellant had been running from pillar to post for about 40 years after paying advance consideration, and contesting the false defences set up by the defendant-respondent. He is suffering due to misuse of process of court by defendant-respondent for no fault of his own. His sufferance was not taken into account by the first appellate court, in spite of the fact that he had proved his plaint case and defendant's case of written-statement was found incorrect. The grounds mentioned in section 20(2) of the Specific Relief Act were also not considered by the first appellate court. The parties were given proper opportunity of hearing in this regard during second appeal.

14. This contention of respondent's side is not unacceptable that in last 41 years, after execution of registered agreement to sell in year 1975, position had changed a lot, which could not be foreseen by respondent-defendant. So respondent's proposal was to return advance consideration with some more money or more interest.

15. But this point remains pertinent that plaintiff-appellant had given amount of Rs. 5,000/- in year 1975, and from then not only value of the property has been enhanced but also the value of the currency has also reduced. In this regard, Apex Court had held in Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67 as under:-

"16. But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shot up very high, therefore, while exercising our jurisdiction under Section 20 of the Specific Relief Act, 1963 we would like to be equitable and would not allow the sale of property to be executed for a sum of Rs 1,20,000. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of the passage of time we direct that the respondents shall pay a sum of Rs 5 lakhs in addition to Rs 1,10,000 as out of Rs 1,20,000, Rs 10,000 has already been paid as advance. On receipt of Rs 1,10,000 and Rs 5 lakhs (Rs 6,10,000) the appellants shall execute the sale-deed for the property in question."

16. On behalf of respondent this counsel gave proposal to return/ pay Rs. 5,00,000/- as lump sum amount to settle the dispute. the proposal of the counsel for appellant was that for the disputed land (area 5 bigha 1 biswa 18 biswansi) appellant is ready to pay at the rate of Rs. 5,00,000/- per bigha at the time of execution of sale-deed in specific performance of the contract in question. Both parties were not consenting the proposal of each other; but had consented that court's decision will be accepted to them in this regard.

17. Considering the status of the parties, the enhancement of value of real estate and decline in value of currency, it appears appropriate that the relief of refund of money, as directed by first appellate court, should be enhanced with certain conditions. Conditions are necessary because once the defendant respondent had already denied the agreement in question executed by him. He should not be permitted to misuse process of law. In present set of circumstances , after hearing parties, it appears appropriate that said amount be enhanced.

18. In view of above, this appeal is allowed, and the judgment of fist appellate court is amended, and returnable amount directed by first appellate court is enhanced from Rs. 15,000/- to Rs. 15,00,000/- with interest at the rate directed in impugned judgment from today. It is also directed that if the defendant-respondent fails to pay this amount to plaintiff-appellant within three months from today, then original suit of plaintiff will stand decreed for the relief specific performance of contract; and in that case plaintiff-appellant will pay consideration of disputed property at the rate of Rs. 5,00,000/- per bigha and get the registered sale-deed of the same executed in his favour by defendants-respondents. In case, if defendant-respondents fails to execute registered sale-deed within three months, then plaintiff-appellant will be entitled to get sale-deed executed in his favour through court at the expense of defendant-respondents.

Order Date :- 27.05.2016

SR