Pushpa Hurria & Ors. vs Jasvinder Singh
2015 Latest Caselaw 2259 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                                   R.S.A. No.66/2015

                                        Decided on : 17th March, 2015

PUSHPA HURRIA & ORS.                                    ...... Appellant
             Through:                 Mr.Sanjiv Bahl, Mr.Eklavya Bahl and
                                      Mr.Vikrant Arora, Advs.

                           Versus

JASVINDER SINGH                                         ...... Respondent
              Through:

+                                   R.S.A. No.68/2015



PUSHPA HURRIA & ORS.                                    ...... Appellant
             Through:                 Mr.Sanjiv Bahl, Mr.Eklavya Bahl and
                                      Mr.Vikrant Arora, Advs.

                           Versus

UMAKANT UPADHYAY & ANR.                                 ...... Respondent
           Through:



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

V.K. SHALI, J. (ORAL)

1. These are two regular second appeals being RSA No.66/2015 titled

Pushpa Hurria & Ors.v. Jasvidner Singh and RSA No. 68/2015 Pushpa

Hurria & Ors. vs. Umakant Upadhayay & Anr.

2. The learned counsel for the appellants has contended that while

passing a decree of specific performance, the trial court has not

considered the fact that the grant of specific performance is a

discretionary relief which has to take into consideration various factors

including the gross injustice to which a party may be subjected in the

event of specific performance. He has drawn the attention of the court to

case titled A.C.Arulappan v. Smt.Ahalya Naik; AIR 2001 SC 2783 where

in para 7, it has been observed as under:

"The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue

hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff."

3. On the strength of these observations, the case which has been set

up by the learned counsel for the appellants is that although he does not

deny the agreement to sell having been entered with the respondents on

12.10.2004, however, his contention is that when the agreement was

executed the appellants were not aware of the huge amount of nearly 27

lakhs being raised by the DDA in respect of the alleged misuse of the

basement by one of the tenants in contravention of the provisions of the

Master Plan and, therefore, notwithstanding the fact that such a tenant

had been evicted, the appellants could not be forced to perfect the title of

the respondents without the respondents coming forward to share part of

the misuse charges levied by the DDA. It contended that the respondents

had made false averments in the plaint and, therefore, they were not

entitled to the relief of specific performance. The false averment which

was purported to have been made by the respondents was in para 7 of the

plaint wherein they had stated that according to the agreement the

expenses of converting the property from leasehold to freehold were to be

borne by the present appellants and not by the respondents which

according to the learned counsel was factually incorrect if seen in the

context of clause 7 of the agreement entered into between the parties.

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

the appellants. However, in my considered opinion, none of the

submissions which have been urged by the learned counsel for the

appellants raises any substantial question of law which may warrant

issuance of a notice to the respondents. However, before parting with the

case, it may be pertinent to give a brief background so as to appreciate the

fact that the matter does not involve any substantial question of law.

5. It is also pertinent here to mention that the facts of both these

appeals are same including the dates of agreement etc. except that the

shop number is different and the person in whose favour the agreement

was executed are different.

6. The undisputed facts of RSA No.68/2015 are that one Sh.Bhagwan

Das Kalra (since deceased) and presently represented by two legal heirs

namely Smt.Pushpa Hurria and late Smt.Saroj Bala had entered into an

agreement to sell with the respondents/Sh.Umakant Upadhayay and

Smt.Archana Upadhayay for sale of a shop No.5, 32, Community Centre,

East of Kailash measuring 15'.9'' x 10'10'' for a sale consideration of

Rs.2,87,000/- out of which a sum of Rs. 60,000/- was received by the

present appellants at the time of signing of the agreement and the balance

was to be received at the time of execution of the sale deed by him or

through his nominee. Various documents such as GPA etc. were also

executed and the respondents were also put in possession.

7. One of the conditions in the agreement to sell dated 12.10.2004

was contained in clause 7 which reads as under:

"7. That the First party will apply and get the said property converted from leasehold into freehold from DDA and all the expenses relating to freehold shall be paid and borne by the second party near Rs.70,000/- and the first party shall execute the proper sale deed for conveying the same in favour of the second party or his nominee before the Sub Registrar, New Delhi."

8. The appellants did not perfect the title of the respondents.

Consequently, it resulted in filing of a suit for specific performance

wherein the respondents have wrongly stated that all the expenses of

conversion of the property from leasehold to freehold were to be borne by

the appellants/defendants.

9. Be that as it may, the suit was contested by the

appellants/defendants.

10. It was the case of the appellants/defendants that there was one shop

on the basement which was misused by one of the tenants against whom

eviction was sought and before agreement to sell having been entered into

by the present appellants with the respondents, the said premises were

vacated and at that point of time it was not known to the present

appellants that they may be visited with imposition of misuse charges.

11. It is the case of the appellants that after the agreement to sell was

executed, the DDA issued a demand for a sum of Rs.27 lakhs on account

of misuse charges for the portion which was under the occupation of a

tenant. It was averred by the appellants/defendants that the said misuse

charges must be borne proportionately by the present appellants along

with 4-5 vendees to whom he had agreed to sell the shops.

12. On the pleadings of the parties, the following issues were framed.

"1. Whether the suit of the plaintiff is liable to be dismissed for the plaintiff suppressing material facts from this court? OPD.

2. Whether the plaintiff has no cause of action to file the present suit? OPD.

3. Whether the plaintiff is entitled to the direction to be given to the defendant to specifically perform the contract dated 12.10.2004 as prayed for? OPP.

4. Whether the plaintiff is entitled to the decree of perpetual injunction as prayed for? OPP.

5. Relief."

13. The parties produced their evidence and the trial court decreed the

suit in favour of the respondents.

14. Feeling aggrieved, the first appeal was preferred by the

appellants/defendants in which also he was unsuccessful. Still feeling

dissatisfied, the appellants have filed the present second appeal raising

the aforesaid point of payment of proportionate misuse charges despite

the fact that the same were not mentioned in the agreement to sell.

15. For this purpose, the contention which has been advanced by the

learned counsel for the appellants is that the property which has been sold

by the appellants to the respondents is at a very low price only on account

of the fact that at the time when the agreement dated 12.10.2004 was

executed in favour of the respondents he was not aware that these misuse

charges will be levied by the DDA and, therefore, these misuse charges

must necessarily be paid by the respondents proportionately along with

other vendees and the appellants. It is in this context that the learned

counsel has contended that the grant of specific performance is a

discretionary relief under Section 20(2) and while exercising the said

discretion in favour of the respondents, it should not work to the

disadvantage of the appellants so as to cause serious financial loss to the

appellants.

16. I have already observed hereinabove that the very fact that the said

has been decreed in favour of the appellants not only by the trial court,

but also by the first appellate court in itself shows that the two courts

have concurrently exercised discretion in favour of the respondents and

merely because it works out to be hard to the appellants/defendants, the

specific performance could not be denied to the respondents or, in other

words, merely because there is no detailed discussion with regard to the

exercise of discretion in favour of the respondents, it cannot be presumed

that this aspect of the matter was not in the mind of the court when the

suit was decreed.

17. The contention of the learned counsel for the appellants that the

property was sold at a much lesser price and had it been known to the

appellant that they had to pay misuse charges to the DDA, the price

would have been much higher, is of no consequence because for grant of

relief of specific performance, the court never looks upon the declaration

of consideration at which the property has been sold or in other words,

adequacy of consideration is not relevant for specific performance.

Therefore, this plea of the learned counsel for the appellants also does not

have any merit.

18. The third submission which the learned counsel for the appellants

had urged was that the respondents had made a false averment in the

plaint to say that all the expenses in getting the property converted from

leasehold to freehold are to be borne by the appellants while as this fact

was denied by the appellants and this fact is actually wrongly stated, as is

reflected in clause 7 of the agreement to sell.

19. To that extent, there is no dispute about the fact that according to

clause 7 of the agreement to sell dated 12.10.2004, the respondents were

under an obligation to bear the expenses, which it has come in the

evidence, that he already has paid to the appellant to the tune of

Rs.70,000/-. Therefore, merely because they has made an incorrect

statement in the plaint, which does not fit in with the agreement to sell,

does not mean that respondents can be denied the relief of specific

performance for that reason.

20. In the light of the aforesaid facts and circumstances of the case, I

feel that none of the submissions, which has been urged before this court

by the learned counsel for the appellants, raises any substantial question

of law which may warrant issuance of notice and accordingly the present

regular second appeal is without any merit and the same is dismissed.

21. It may also be pertinent here to mention that RSA No.66/2015

which is at para materia with the present case expect the shop number is

different and so is the vendee as is reflected in the title above and thus the

same is also dismissed on the same reasoning.

V.K. SHALI, J.

MARCH 17, 2015 dm