Bombay High Court
Shrikrishna Ganuji Sonone vs Mohsin Ali Qurban Hussain To Enter ... on 17 December, 2009
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO: 75 / 1998
Shrikrishna Ganuji Sonone
Aged about 46 years, occu: Agril.
R/o Matargaon (Bk) Tal. Shegoan
Dist. Buldana. ... ...APPELLANT
v e r s u s
Vitthal s/o Shankar Bajre
Aged about 51 years, Cultivator
R/o Matargaon (Bk) Tal.Shegaon
Dist. Buldana. ...RESPONDENT
............................................................................................................................
Mr A K De, Advocate for appellant
Mr. G G Mishra & other Advocates for Respondent are absent
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CORAM: A.P.BHANGALE, J.
DATED : 17th December, 2009
JUDGMENT :
The appellant has challenged the judgment and decree
passed by first Appellate Court by learned Additional District Judge
Khamgaon in Regular Civil Appeal No. 68 /1998 decided on
14.10.1997 whereby the judgment and decree of specific performance
in Regular Civil Suit No. 86/1987 decided by learned Civil Judge
Junior Division, Khamgaon, on 22.4.1988, was set aside.
2. The respondent (original defendant ) owned a field Gat No.
36 admeasuring 1.20 hectare at village Brahmanwada, Tah.
Shegaon Dist. Buldana. On 13.1.1987, he executed an agreement
to sell it (Exh.20) to the plaintiff (appellant) for a consideration of Rs.
17,000/- upon receiving earnest money in the sum of Rs. 5,000/-. The
parties agreed to execute the sale deed on 31.1.1987. Since the
defendant did not execute the sale deed as promised, the plaintiff
issued notice dated 24.3.1987 (Exh.21) calling upon defendant to
execute sale deed on 31.3.1987; but defendant did not act upon notice
though plaintiff was ready and willing to perform his part of contract.
Thus, RCS No.86/1987 was instituted for specific performance of
contract. The defendant had resisted the suit giving lame excuse that
the field was mortgaged with a Co-operative Society, Matargaon and
denied the claim for specific performance of contract. Upon evidence
led the trial Court decreed the suit of the plaintiff and directed the
defendant to execute sale deed of the suit property free from
encumbrances and also ordered inquiry into mesne profits.
3. In support of the appeal, learned Advocate for appellant
criticized the impugned judgment and order by first Appellate Court
denying specific performance that the discretion to grant specific
performance of contract was rightly exercised by the trial Court. The
first Appellate Court failed to notice that ordinarily specific
performance has to be granted unless there are strong equities against
the plaintiff to deny him the specific relief of performance of the
contract. Considering concurrent findings of facts about readiness and
willingness of the plaintiff to perform his part of the suit agreement to
execute sale deed, the first Appellate Court appears to have erred in law
in setting aside the judgment and decree of the trial Court.
4. In Prakash Chandra vs. Angadal : AIR 1979 SC 1241 :
(1979 ) 4 SCC 393, it is held in para No.9 as under:
" The ordinary rule is that specific performance
should be granted. It ought to be denied only
when equitable consideration point to its refusal
and the circumstances show that damages
would constitute an adequate relief. In the
present case the conduct of the appellant has not
been such as to dis-entitle him to the relief of
specific performance. He has acted fairly
throughout. There is nothing to show that by any
act or omission or commission he encouraged
Mohsin Ali Qurban Hussain to enter into sale
with the first and second respondents"
Thus, the specific performance of contract was ordered by the Apex
Court. The ruling is also followed in Kartarsingh vs. Harjindersingh:
AIR 1990 SC 854. The Apex Court maintained the decree for specific
performance of agreement as against the vendor who had signed it and
whose property was identifiable by his specific share.
5. Looking to the settled legal position, therefore, the trial Court
had rightly granted specific relief in favour of the plaintiff. There were
no any compelling or exceptional reasons in the facts and
circumstances to deny the relief of specific performance of the suit
agreement to the plaintiff.
6. In the result, the judgment and order by the first Appellate
Court impugned herein is quashed and set aside and the judgment
and order passed by the trial Court is restored. The suit is decreed as
ordered by the trial Court. Appeal is allowed accordingly, with costs.
JUDGE
sahare
