Jasbir Singh & Anr. vs Jitender Kumar & Anr.
2012 Latest Caselaw 970 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         DATE OF DECISION : FEBRUARY 13, 2012

+                          RFA(OS) 60/2011

       JASBIR SINGH & ANR.           .......Appellants
                 Through : Mr.Chetan Sharma, Sr. Advocate
                           With Mr.Sushil Kumar Pandey,
                           Advocate.
            Versus

       JITENDER KUMAR & ANR.              .......Respondents
                 Through : None.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. Vide agreement Ex.PW-1/1 dated March 02, 2005 the defendants agreed to sell their 37.5% share in 22 bigha 9 biswa of land in the revenue estate of Village Dichaun Kalan to Lal Singh, Jagbir Sigh and Satya Dev. The agreement envisaged the transfer of the right conferred under the agreement to sell.

2. Listing `65 lacs as the sale consideration, the prospective sellers received, evidenced by the receipt Ex.PW-1/2, `4.6 lacs towards earnest money-cum-part sale consideration.

3. The prospective vendees gave a notice Ex.PW-1/3 dated 12.12.2007, informing the prospective vendors of having intended to transfer their rights under Ex.P-W1/1 to the

appellants and thereafter vide the deed of assignment Ex.PW- 1/5 dated 20.01.2008, receiving `5 lacs, the prospective vendees transferred/assigned their rights in favour of the appellants who instituted a suit seeking specific performance of the agreement Ex.PW-1/1 on 20.03.2008 i.e. just at the threshold of the bar of limitation.

4. Impleading the prospective vendors as defendants, suit was instituted seeking specific performance of Ex.PW-1/1. At the ex-parte trial, specific performance was denied. Learned Single Judge granted decree in sum of `4.6 lacs together with interest @9% per annum from the date of institution of the suit till realization.

5. The short and cryptic judgment, spanning about five pages, declines specific performance on the reason that it is not obligatory for a Court to decree each and every claim for specific performance, if legal requirements are proved by the plaintiff. The learned Single Judge has held that the remedy being discretionary, specific performance was to be denied in the instant case for the reason the suit was filed belatedly and there was a funny clause in the agreement to the effect that balance sale consideration would be paid after nine months of the possession of the land being handed over to the purchaser. The learned Single Judge has founded contrary to normal human conduct.

6. Questioning the impugned decision, learned Senior Counsel for the appellants urges that the impugned decision is cryptic and laconic. Secondly, it is urged that once the learned

Single Judge found that the suit was within limitation and additionally found that the plaintiffs had proved their readiness and willingness to perform their part of the obligation under the agreement, decree should have followed. Lastly, it is urged that whereas the law pertaining to specific performance as evolved in England, on Common Law principles, has been guided by equity, in India, Statute governs the field and as long as a claim is within limitation, upon proof of readiness and willingness to perform the plaintiff's obligation under the agreement to sell, as a rule specific performance must follow; with exception being clearly listed circumstances attracting equity thereby denuding the plaintiff the rightful claim to seek specific performance.

7. In support of the contentions urged, learned counsel for the appellants has cited a plethora of authorities which we feel need not be dealt with by us, for the reason if we were to sit down and look at the case law pertaining to claims for specific performance, we land up writing a doctoral thesis on the subject.

8. Whereas it is true that in the field of specific performance, in England, the domain of equity permeates the grant or denial of specific performance, pertaining to agreement to sell, in India, it is statutory law i.e. the Limitation Act which would guide the Courts in relation to issues of delay in seeking specific performance.

9. Whereas, in England, issue of delay would be considered on principles of equity, in India the same have been considered

with reference to the Limitation Act, wherein period described is three years reckoned from when the cause of action accrued.

10. But, principles of laches have been read as applicable in India and the principles of laches as have evolved in England have been read even in India. We highlight only one such decision, which is reported as AIR 1965 SC 1405 Mademsetty Satyanarayana v. G. Yelloji Rao & Ors. A conjoint reading of paras 7 and 8 of the said decision, would highlight that whereas principles of delay pertaining to the domain of equity, as applied by the Courts in England, have no application in India but the principles pertaining to laches have been held relevant in the Indian context even when the suit seeking specific performance was within limitation.

11. The reason is obvious. It is to be found in Section 20 of The Specific Relief Act, 1963, which deals with the jurisdiction of Courts to decree specific performance. It grants the remedy as being within the discretion of the Court. However, the Courts have been cautioned that the discretion should not be exercised in a manner which is arbitrary and that whenever discretion is being exercised not to enforce specific performance the same should be on sound and reasonable principles, guided by judicial principles and capable of correction by a Court of Appeal.

12. Sub-Section 3 of Section 20 of the Specific Relief Act, 1963 reads as under :-

"Section 20. Discretion as to decreeing specific performance :

(1) xxx xxx

(2) xxx xxx

(3) The Court may properly exercise 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."

13. The said Sub-Section itself guides, to some extent, what would be non-arbitrary, sound and reasonable judicial principles. It guides that where the plaintiff has done substantial acts or suffered losses the proper exercise of discretion should be in favour of he who seeks specific performance and not otherwise.

14. Thus, the converse would be equally true. If a small amount of sale consideration is paid, it would be a relevant factor to be taken into account while exercising the discretionary remedy.

15. Pertaining to the field of specific performance, as prices rise, Courts have held, and for which we may only note one decision, which is reported as AIR 2002 SC 3396 Nirmala Anand vs. Advent Corporation (P). LTd. & Ors., that the Courts cannot be oblivious to the increase of the price of land in between the dates when the agreements to sell are executed and claims are enforced by filing suits or even while passing decrees. Merely because there is a phenomenal increase of price may not by itself lead to a circumstance to deny specific performance; it being only one of the many guiding principles which the Court would take note of.

16. The eagerness shown by a party to enforce the claim; the money value vis-à-vis total value of the consideration parted,

with an increase in price of land would certainly be relevant circumstances while deciding either way to exercise or deny discretion.

17. In the instant case, the facts which we have noted herein above, bring out that as against the settled sale consideration in sum of `65 lacs, the plaintiffs (their predecessors-in-interest) parted with a meager sum of `4.6 lacs which we find comes to less than 7% of the total sale consideration.

18. It is not a case where substantial money was found parted with, a situation which existed in the decision reported as (2000) 6 SCC 420 Motilal Jain v. Ramdasi Devi (Smt.) & Ors. The agreement to sell is dated 02.03.2005 and the date when the agreement was sought to be enforced is 20.03.2008 i.e. at the threshold of the bar of limitation. That there has been a phenomenal increase in price of land in Delhi can be judicially taken notice of by this Court, through various reported decision, which we intend not to catalogue. Thus, we find three circumstances which attract the doctrine of laches as also judicially recognized principles to deny the claim of specific performance in the instant case.

19. Thus, notwithstanding plaintiff having fully proved readiness and willingness to perform their obligation under the agreement and the claim being within limitation, we concur with the learned Single Judge that in the facts and circumstances of the instant case, specific performance should not be granted.

20. We highlight that the trinity of the reasons : (1) meager

sale price paid, being `4.6 lacs out of the total sale consideration of `65 lacs; (2) laches in preferring the claim i.e. claim being preferred after three years of the agreement to sell; and (3) increase in the value of the price in the interregnum, would be sufficient to hold so.

21. The appeal is accordingly dismissed, but without any orders as to costs.

PRADEEP NANDRAJOG, J.

PRATIBHA RANI, J.

FEBRUARY 13, 2012 st