Delhi High Court

Smt. Uma Devi vs Mr.Bijdender Singh on 26 August, 2013

Author: V.K.Shali

*                    HIGH COURT OF DELHI AT NEW DELHI
+                             R.S.A. No.175/2013

                                       Decided on : 26.08.2013

SMT. UMA DEVI                                      ...... Appellant
                       Through:   Mr.Pramod K.Sharma, Advocate.


                         Versus

MR.BIJDENDER SINGH                                  ...... Respondent


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant against the

judgment dated 19.02.2013 passed in RCA No.31/2011 upholding the

judgment and decree passed by the Civil Judge on 27.07.2011 decreeing

the suit partially so far as the refund of the consideration amount of

`50,000/- is concerned.

2. The learned counsel for the appellant has contended that despite the

fact that the two courts below have come to the conclusion that the

respondent had executed an agreement to sell in favour of the appellant,

still, instead of decreeing the suit for specific performance, the courts

below have chosen to grant alternative relief to the appellant which was

for refund of the consideration amount of `50,000/-.

3. It is contended by the learned counsel for the appellant that the trial

court as well as the first appellate court have fallen into an error by not

granting the specific performance of the contract.

4. I have considered the submissions made by the learned counsel for

the appellant and gone through the record.

5. Briefly stated, the appellant herein filed a suit for specific

performance of an agreement to sell dated 21.09.2004, possession and

permanent injunction. The case which was set up by the appellant in the

plaint was that the respondent/defendant had agreed to sell a property

bearing No.145-B (New No.241-A) measuring 50 square yards out of

Khasra No.564, 565, Village Kirari Suleman, Kirari Extension, Delhi-41

to the appellant/plaintiff for a total consideration of `50,000/- vide an

agreement to sell dated 21.09.2004 and the General Power of Attorney

duly registered on 22.09.2004 before the Sub Registrar. It was stated that

despite having received the total consideration amount of `50,000/- the

respondent/defendant had not transferred the property in the name of the

appellant/plaintiff. The appellant has even claimed herself to be entitled

to payment of user charges of the premises in question at the rate of

`1,500/- per month from the date of agreement to sell dated 21.09.2004

till possession is handed over to the appellant/plaintiff. Since that has

not been done, the suit for specific performance of contract, possession

and permanent injunction was filed by the appellant/plaintiff.

6. The respondent/defendant took the plea that he had never sold the

property in question to the appellant/plaintiff. It was contended that his

signatures were obtained on the agreement to sell, GPA and other

documents under threat and even the sale consideration for which the

property in question is purported to have been sold to the appellant has

not been paid to the respondent/defendant.

7. It was contended on behalf of the respondent/defendant before the

trial court that the market value of the property in question was around `5

lakhs and there was hardly any occasion for the respondent/defendant to

sell the same at `50,000/-.

8. On the completion of pleadings of the parties, the following issues

were framed:

"i) Whether the court has no pecuniary jurisdiction to try and decide the present suit? OPD

ii) Whether the plaintiff is entitled for decree of specific performance and possession as prayed for? OPP

iii) Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP

iv) Relief"

9. Both the appellant as well as the respondent appeared in the

witness box and testified in support of their case.

10. The learned trial court, after analyzing the testimony of PW-1,

appellant/plaintiff, as well as the testimony of DW-1,

respondent/defendant, had returned a finding that though the

respondent/defendant had signed the documents like the agreement to

sell, etc. in favour of the appellant/plaintiff, yet the appellant was not

entitled to seek specific performance of the agreement to sell dated

21.09.2004 or for issuance of a direction to the Registrar or any other

official of the High Court to complete the transaction of the appellant.

11. On the contrary, the learned trial court arrived at a finding that the

grant of specific performance is a discretionary relief and for entitling the

exercise of this discretion in favour of the appellant, she had to show that

she had come to the court with clean hands as well as that the non grant

of decree of specific performance of the agreement to sell would be unfair

to her. The court also observed since the appellant had come to the court

after a considerable delay, therefore, the court did not consider it

appropriate to direct the respondent/defendant to take steps in accordance

with the agreement to sell in favour of the appellant/plaintiff and

accordingly passed a decree for refund of the consideration amount by the

respondent/defendant to the appellant/plaintiff along with interest at the

rate of 6% per annum from the date of the agreement to sell i.e.

21.09.2004 till realization of the decretal amount.

12. The first appellate court while considering the plea of the appellant

that specific performance ought to have been ordered, has referred to the

judgments of the Supreme Court in Azhar Sultana v. B.Rajamani; AIR

2009 Supreme Court 2157 and come to the conclusion since grant of

specific performance is a discretionary relief, the court has to see a

number of parameters including the conduct of the parties to decide

whether the discretion should be exercised in favour of the plaintiff or

not.

13. The appellant who has preferred to file the present regular second

appeal and is claiming specific performance of an agreement to sell dated

21.09.2004 ought to have come to the court at the earliest. Admittedly, in

the instant case, the agreement to sell is purported to have been executed

on 21.09.2004 while as the suit itself has been filed after the expiry of

two and a half years when the entire limitation period was about to come

to an end.

14. In addition to this, the court observed that a person must come to

the court within a reasonable period of time and what would be a

reasonable period of time would be dependent on the facts and

circumstances of each case.

15. The second point on which the court has decided not to grant

decree of specific performance is that the appellant/plaintiff has not

revealed the true picture to the court. This is on account of the fact that

in the suit, the appellant/plaintiff had claimed possession of the suit

property while as he had placed on record a document on the strength of

which it was urged that the respondent had transferred the possession of

the suit property to the appellant. This document of handing over

possession to the appellant was considered to be a false document by the

court. On this reasoning, the court has denied the specific performance

and upheld that view taken by the court for refund of the consideration

amount along with interest at the rate of 6% per annum from the date of

the agreement to sell dated 21.09.2004 till realization of the decretal

amount.

16. Before this court, the only submission which has been made by the

learned counsel for the appellant which is stated to be raising a substantial

question of law is as to whether a suit in which an agreement to sell is

proved is to be specifically enforced or not.

17. I do not consider that there is any question of law involved in this

appeal. This is on account of the fact that the specific performance of a

contract to purchase an immovable property has to be specifically

enforced. The only condition is that the grant of this relief is a

discretionary relief and further that, in case any specific time for

execution of the specific performance is fixed, then time become the

essence. Otherwise, the entire transaction must be completed within a

reasonable time. In the instant case, it does not seem that there was any

time limit fixed by the parties. Therefore, the only best thing was that the

appellant/plaintiff and the respondent/defendant had to complete the

transaction within a reasonable period of time. What would be a

reasonable period of time can certainly not be laid down in a straight

jacket formula but the fact of the matter remains that the agreement

between the parties was entered in the year 2004 and if the

respondent/defendant had become dishonest and was not perfecting the

title of the appellant, then the appellant/plaintiff ought to have filed a suit

for specific performance immediately in the year 2004 itself or in early

2005, but the appellant/plaintiff chose to wait for almost three years

before she invoked the jurisdiction of the court. This lapse of time in

availing of remedy of specific performance from a court is accordingly

hit by laches as well as and makes the court to ponder over the second

submission advanced on behalf of the appellant/defendant to refund the

consideration amount, which has been done in the instant case.

18. The Supreme Court in Azhar Sultana v. B.Rajamani's case (supra)

has also observed that if no time limit is fixed for completion of a

transaction by the parties, the entire transaction must be completed after

coming to court within the reasonable period of time.

19. The second component while exercising the discretion by the court

is that the very grant of decree of specific performance is a discretionary

relief with the court and the only requirement is that this discretion has to

be exercised on settled legal principles and it should not be exercised an

arbitrary act. The exact language of Section 20 of the Specific Relief

Act, 1963 is 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

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 party."

20. A perusal of the aforesaid Section, would clearly show that the

grant of specific performance cannot be claimed as a matter of right even

though a party may be able to prove the agreement. This is what is stated

in the first sub-clause of the section. Admittedly, in the present case, time

was not the essence but still a contract for specific performance of

immoveable property must be wrapped up within a reasonable time rather

than waiting for years together. It shows that the plaintiff had given up for

specific performance. In the instant case also, I feel that the interest of

justice would be met in case the entire consideration amount is refunded

to the appellant. This is precisely what has been done by the courts

below. Thus, there is a concurrent finding against the appellant/plaintiff.

21. I do not consider that any substantial question of law has been