AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
346 paragraphs · 7,847 wordsRakesh Kumar Garg, J.—This is defendant''s second appeal challenging the judgment and decree of the Lower Appellate Court, whereby,
while accepting the appeal, the judgment and decree of the trial Court has been modified and a decree for possession by way of specific
performance of the agreement dated 22.10.1996 has been passed in favour of the plaintiff-respondent. Briefly stated, the facts of this appeal, as
per the averments made in the plaint, are that the appellant through his attorney (defendant No. 2-Gurcharan Singh) entered into an agreement of
sale of the suit land measuring 51 Bighas 9 Biswas with the plaintiff-respondent at the rate of Rs. 14,00,000/- per acre vide agreement dated
22.10.1996 and defendant No. 2 received a sum of Rs. 1,00,000/- as earnest money on behalf of the appellant and further executed a separate
receipt in this regard. As per the terms and conditions of the agreement, the plaintiff-respondent was to make a payment of Rs. 9,00,000/- to the
appellant on or before 23.11.1996 and after receiving the said amount, the appellant was to deliver the possession of the land in question to the
plaintiff-respondent for the purpose of development activities. It is the further case of the plaintiff-respondent that he was always ready and willing
to perform its part of the contract. On 23.11.1996, the plaintiff-respondent was having the amount of Rs. 9,00,000/- for payment of the same to
the appellant. On 22.11.1996, the appellant was requested to receive the aforesaid amount from the plaintiff-respondent. However, the appellant
put off the matter. On 23.11.1996, the plaintiff-respondent also got issued a demand draft of Rs. 9,00,000/- bearing No. BC/F32234 dated
23.11.1996 from the State Bank of Patiala, Sector 10, Chandigarh and also sent a message to the appellant to receive the said amount. However,
the appellant did not come to the office of the plaintiff-respondent for receiving the aforesaid amount. It is the further case of the plaintiff-
respondent that he along with one Vijay Bhardwaj had gone to the house of the appellant to make the payment of Rs. 9,00,000/-. However, the
appellant did not receive the said amount. Thus, the appellant committed breach of agreement. The plaintiff-respondent also got issued a notice
dated 24.11.1996 upon the appellant through its counsel but the appellant refused to accept the said notice. As per agreement, the plaintiff-
respondent was to make further payment of Rs. 10,00,000/- to the appellant on or before 24.12.1996 but the appellant refused to receive the said
payment. It was agreed between the parties that the appellant would execute the sale deed regarding 2 acres of land out of the suit land after
receiving the payment of Rs. 18,00,000/- equal to the value of 2 acres. The sale deed regarding 3 acres of land was to be executed after receiving
the amount of Rs. 42,00,000/- equal to the value of 3 acres and last and final sale deed regarding the land measuring 31 Bighas 9 Biswas was to
be executed and registered by the appellant in favour of the plaintiff-respondent after receiving the balance sale consideration and the earnest
money of Rs. 2,00,000/- was to be adjusted at the time of execution of the last sale deed. The plaintiff-respondent had always ready and willing
and was still ready and willing to perform its part of contract but the appellant did not cooperate with the plaintiff-respondent for getting necessary
clearance certificates from PUDA and Income Tax Authorities for the purpose of execution and registration of sale deed. The plaintiff-respondent
made repeated requests to the appellant to execute the sale deed regarding the suit land as per the terms and conditions of the agreement but to no
effect. Hence the present suit.
Pursuant to the notice of the suit, the appellant put in appearance and filed written statement contesting the suit raising various preliminary
objections. On merits, execution of the agreement of sale by defendant No. 2 as attorney of appellant was denied. It was further pleaded that
defendant No. 2-Gurcharan Singh was an old and sick person and at that time he was not in a position to understand the nature of any such
transaction. The rate of land prevailing in the village at the relevant time was Rs. 42,00,000/- per acre and there was no question of execution of
agreement to sell by defendant No. 2 thereby agreeing to sell the land at the rate of Rs. 14,00,000/- per acre. Receipt of earnest money of Rs.
1,00,000/- by defendant No. 2 was also denied. It was further pleaded that in fact the plaintiff-respondent in collusion with Colonel Harjit Singh
and Vijay Bhardwaj wanted to grab the valuable property of the appellant. Colonel Harjit Singh was close relative of defendant No. 2 and
defendant No. 2 was having full confidence in him but both the witnesses colluded with the plaintiff-respondent and defrauded and cheated the old
aged, sick and infirm person. The plaintiff-respondent did not make payment of earnest money to defendant No. 2. In fact the appellant was away
to Delhi on 22.10.1996 and taking advantage of this fact, the plaintiff-respondent through its Director colluded with Colonel Harjit Singh and Vijay
Bhardwaj had hatched a criminal conspiracy to defraud the appellant; forged the agreement of sale dated 22.10.1996. It was further denied that
the plaintiff-respondent was ready and willing to make payment of Rs. 9,00,000/- on 23.11.1996. It was further pleaded that false documents
were prepared by the plaintiff-respondent in this regard. The remaining averments of the plaint were also denied and dismissal of the suit was
prayed for.
The plaintiff-respondent filed replication controverting the averments made in the written statement and reiterating those made in the plant.
On the pleadings of the parties, the following issues were framed by the trial Court:
Whether the plaintiff is entitled for decree of possession by way of specific performance of agreement to sell dated 22.10.1996? OPP
Whether the plaintiff is entitled to relief claimed for? OPP
Relief.
After hearing the arguments and going through the record of the case, the trial Court came to the conclusion that from the evidence on the file it
is proved that agreement dated 22.10.1996 regarding sale of the land in question was executed by defendant No. 2 as attorney of the appellant in
favour of the plaintiff-respondent. However, the trial Court observed that in view of the facts and circumstances of the case, it would not be proper
to grant decree for specific performance of agreement in question in favour of the plaintiff-respondent and in stead thereof, the alternative relief of
refund of earnest money should be granted. Consequently, the trial Court partly decreed the suit vide judgment and decree dated 23.4.2009 and
passed a decree for refund of Rs. 1,00,000/- with interest at the rate of 12% thereon from the date of execution of the agreement of sale till
realization of the amount in question in favour of the plaintiff-respondent.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent preferred an appeal before the Lower
Appellate Court.
It is relevant to mention that the appellant had not filed any appeal to challenge the findings of the trial Court regarding execution of the
agreement to sell in question and the readiness and willingness of the plaintiff-respondent on his part to perform the agreement to sell in question.
The aforesaid appeal filed by the plaintiff-respondent was accepted by the Lower Appellate Court vide impugned judgment and decree dated
24.7.2010. The relevant observations of the Lower Appellate Court reads as follows:
Therefore, it is absolutely clear that where the appellate Court finds that the discretion has not been exercised properly, by the trial Court, the
appellate Court can rectify the mistake in the appeal. Now coming to the facts of this case that the defendant/respondents did not raise any plea
that the terms of the contract shows that the appellant/plaintiff took unfair advantage or that the specific performance of the contract would cause
any hardship to the defendants/respondents. The defendants/respondents have denied the execution of the agreement in question. Once the denial
of the execution of the agreement is found to be false, the decree for specific performance could not be declined by the learned trial Court on the
grounds mentioned in the impugned judgment. The defendants/appellants did not mention the particulars of the fraud practiced upon
defendant/respondent No. 2 by the appellant/plaintiff at the time of entering into contract. The only plea raised by them is that the rates of the land
were much higher at the relevant time. However, they could not substantiate this allegation as they have not produced any evidence to show that
the rate of the land in the said locality was much higher than the rate agreed between the parties. The fact that earnest money was meager amount
of Rs. 1,00,000/- and the possession of the land was agreed to be delivered on the payment of only Rs. 10,00,000/- by the appellant/plaintiff to
the respondents/defendants are no grounds on which the relief of specific performance could be declined to the appellant/plaintiff. As per
explanation (1) appended to Section 20 of the Specific Relief Act even inadequacy of the consideration is not a ground for refusal of specific
performance. When inadequacy of the consideration is not lawful ground, then inadequacy of earnest money can also not be a ground for refusal of
decree of specific performance to the appellant/plaintiff. Moreover, in case the defendant/respondent wanted to avoid the contract on the ground
that same is unfair or fraudulent, they could have instituted a suit seeking rescission of the contract or even in this suit they could have made a
counter claim. However, they did not make any prayer for rescission of contract as they were well aware that there is no ground to avoid the
contract. The learned trial Court has specifically held that due execution of the agreement in question has been proved and there is no defect in the
findings recorded by the learned trial Court in this regard. The version of the appellant/plaintiff in this regard has been proved by PW3 Vijay
Bhardwaj who is marginal witness of the agreement in question. So far as, readiness and willingness on the part of the appellant/plaintiff to perform
its contract is concerned, the learned trial Court has recorded findings in favour of the appellant/plaintiff and the said findings are based on proper
appreciation of evidence. The evidence produced by the appellant/plaintiff shows that the appellant/plaintiff had got issued a demand draft of Rs.
9,00,000/- on 23.11.1996 for payment of the said amount to the defendants/respondents but they did not receive the said amount. The
appellant/plaintiff had sent message and also phonogram Ex. PW3/1 to the defendants/respondents on 23.11.1996 vide receipt Ex. PW3/H. Even
a notice Ex. PW3/D was sent to the defendants/respondents through courier vide receipt Ex. PW3/C and even a legal notice had been sent to the
defendants/respondents by the appellant/plaintiff through its counsel. Further the statement of M.K. Jain Director of the appellant/plaintiff in this
regard finds corroboration from the testimony of Vijay Bhardwaj. On the other hand, the defendant/respondents have denied the agreement in
question and it is not their plea that appellant/plaintiff was not ready and willing to perform its contract. Under these circumstances, the evidence
produced by the appellant/plaintiff to prove their readiness and willingness to perform their part of contract can be accepted without any hesitation
and in this regard I find supports from the judgment of Hon''ble Punjab and Haryana High Court in Santa Singh Vs. Binder Singh and Others
Cases-608 wherein it was held as under:-
Since the case of the defendant is that of one of denial, therefore, the statement of the plaintiff that he was ready and willing to perform his part of
the contract is sufficient to infer that plaintiffs were ready and willing to perform their part of contract. It was a meager amount of Rs. 2,000/- alone
which was required to be paid at the time of registration of the sale deed. The substantial amount was paid at the time of execution of the
agreement. More than Rs. 12,000/- was kept for payment to the mortgagee. Therefore, the argument raised by the learned counsel for the
appellant that the plaintiffs have not led evidence to prove his ready and willingness to perform the contract is not tenable.
Once the due execution of the agreement and readiness and willingness on the part of the appellant/plaintiff is proved, the decree of specific
performance should be passed in favour of the appellant/plaintiff, unless, a specific case for refusal of relief of specific performance is made out.
The decree for specific performance cannot be declined on the whims and fancy. The parties should be made to fulfill their contractual obligations
unless there is some ground for relieving them from their contractual obligation. In Smt. Mohini Kapoor and Others Vs. Deepak Uppal and Others,
Cases 160 the Hon''ble Punjab and Haryana High Court has held that contract for transfer of immovable property must be specifically enforced
and alternative relief of securing compensation in money would not be adequate. As already mentioned even the escalation in the prices of the
property is not a ground for refusing the specific performance. So far as the delay in filing of the suit is concerned, the same is not of any
consequence as the suit has been held within limitation. It is not the case of the defendants/respondents that circumstances have changed due to
delay in filing of the suit.
Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendant has filed the instant appeal. In the
grounds of appeal, it is submitted that the following substantial questions of law arise in this appeal:
(i) Whether the findings of the courts below are perverse to the pleadings, evidence and material placed on record?
(ii) Whether the plaintiff has to stand on his own legs and to prove his positive case or the suit of the plaintiff can be decreed on the basis of
weaknesses of the defence?
(iii) Whether the plaintiff, throughout has to prove his readiness and willingness i.e. from the date of execution of the agreement to sell to till the
actual execution of the sale deed, even in the cases where the execution of the agreement to sell itself is being denied?
(iv) Whether the judgments of the courts below is totally perverse as the courts below has failed to give any observation that whether the plaintiff
was still ready and willing to purchase the property on 24.12.1996, 23.4.1997, 23.7.1997 and 23.10.1997?
(v) Whether the court has to satisfies to his own conscience by looking at the disputed signature as well as standard signatures, where
contradictory reports of the handwriting experts are on record?
(vi) Whether the trial court was justified in declining the relief of specific performance to the plaintiff in terms of Section 20 of Specific Relief Act
and in view of the facts and circumstances of the present case?
(vii) Whether the finding of the ld. Lower Appellate Court is totally illegal that a legal issue like hardship has to be specifically pleaded or the legal
issue can be raised at any stage?
Learned counsel appearing on behalf of the appellant has argued that in the present case the requirement of Section 16 of the Specific Relief
Act has not been complied with as the plaintiff-respondent has failed to prove his readiness and willingness to perform his part of the contract at all
the stages of the agreement. Elaborating his argument further, learned counsel for the appellant has argued that readiness and willingness of the
plaintiff-respondent on 24.12.1996, 23.4.1997, 23.7.1997 and 23.10.1997 is not proved from the record. The plaintiff-respondent has not
produced any evidence on record to show that on the said dates, he was ready and willing to purchase the property in dispute. He has neither
made any pleadings nor led any evidence with regard to his readiness and willingness on the above mentioned dates/stages and thus, has failed to
prove that he was continuously ready and willing to perform his part of the agreement from the date of the contract till the filing of the suit
notwithstanding that the appellant had repudiated the contract and was not ready to complete the transaction in terms of the agreement. According
to the learned counsel for the appellant, the fact that the appellant had refused to receive Rs. 9,00,000/- from the plaintiff-respondent on
23.11.1996 amounts to repudiating the contract and in such a case in a suit for specific performance of the agreement, the plaintiff-respondent was
required to prove continuous readiness and willingness from the date of the contract upto the date of filing of the suit to perform the contract on his
part and failure to make good that averment brought with it the inevitable dismissal of his suit. In support of his case, learned counsel for the
appellant has relied upon the judgments cited as AIR 1928 208 (Privy Council) Saral Kumar Chatterjee Vs. Madhusudan Auddy and Another,
and H.P. Pyarejan Vs. Dasappa (Dead) by LRs. and Others, . It was also argued by the learned counsel for the appellant that the discretion
available with the Court u/s 16 of the Specific Relief Act was to be used very cautiously and in the present case it becomes even more important as
there was total inaction on the part of the purchaser for almost three years and the delay in filing the suit coupled with substantial rise in prices of
properties it would be inequitable to give relief of specific performance to the appellant. Counsel for the appellant has cited K.S. Vidyanadam and
Others Vs. Vairavan, to contend that in such circumstances specific performance of the agreement in question cannot be granted. Lastly, learned
counsel for the appellant also argued that in view of the conduct of the respondent, he was not entitled to the discretionary relief as granted and
therefore, the judgment and decree of the Lower Appellate Court was liable to be set aside. On the basis of the aforesaid argument, learned
counsel for the appellant has argued that the following substantial question of law arises in this appeal:
Whether the Lower Appellate Court was right in law in granting the discretionary relief u/s 20(c) of the Specific Relief Act in the absence of
compliance of provisions of Section 16(c).
However, on the other hand, learned counsel appearing on behalf of the plaintiff-respondent has supported the impugned judgment and decree
submitting that the escalation in prices of the properties is no ground to refuse the specific performance of the agreement in question and the delay
in filing the suit is not of any consequence as admittedly the suit was filed within limitation prescribed under law and moreover, it is not the case of
the appellant that circumstances have changed due to delay in filing of the suit. Learned counsel for the respondent has also argued that in the
present case, the appellant had denied the agreement in question and it was not even his plea that the plaintiff-respondent was not ready and willing
to perform its contract and under these circumstances, the findings recorded by the Courts below regarding the readiness and willingness of the
plaintiff-respondent to perform its part of the contract do not suffer from any infirmity. Moreover, the evidence produced by the plaintiff-
respondent shows that the plaintiff-respondent was ready with an amount of Rs. 9,00,000/- on 23.11.1996 for payment of the said amount to the
appellant but he did not receive the same. Neither the appellant parted with the possession of the suit property on 23.11.1996 on receipt of Rs.
9,00,000/- from the plaintiff-respondent as stipulated in the agreement and once the appellant had not performed his part of the contract on
23.11.1996, there was no occasion thereafter for the plaintiff-respondent to perform its part of the agreement as argued. Learned counsel for the
respondent has further argued that the inadequacy of consideration is not a ground for refusal of specific performance. Moreover, the plea raised
by the appellant has not been substantiated by producing any evidence to the effect that the rate of the land in the said locality was much higher
than the agreed rate. Moreover, the appellant had taken a false plea of fraud which he failed to prove and therefore, he was not entitled to any
equity in his favour. Counsel for the respondent further argued that even the plea of hardship has not been pleaded by the appellant and thus, the
appeal was devoid of any merit and is liable to be dismissed.
I have heard learned counsel for the parties and have perused the impugned judgment and decrees.
Execution of the agreement dated 22.10.1996 in question by defendant No. 2 (who was father and general power of attorney) on behalf of the
appellant is not in dispute. The defence taken by the appellant in the written statement was that the aforesaid attorney Gurcharan Singh was an old
and sick person and was defrauded and cheated by the plaintiff-respondent in connivance with the marginal witnesses of the agreement in question.
However, the aforesaid defence taken by the appellant could not be proved.
It may be noticed that while decreeing the suit for alternative relief of refund of earnest money, the trial Court also found that the plaintiff-
respondent was ready and willing and was still ready and willing to perform his part of the contact on 23.11.1996 by offering a sum of Rs.
9,00,000/- to the appellant as stipulated in the agreement. In fact the trial Court observed that since the appellant had denied the execution of the
agreement dated 22.10.1996, therefore, he cannot take the plea that the plaintiff was not ready and willing to perform its part of the contract and
that the plaintiff did not have the capacity to make the payment and therefore, the question whether the plaintiff-respondent was ready with the
balance payment of Rs. 10,00,000/-, Rs. 18,00,000/- and Rs. 42,00,000/- to be paid on subsequent dates became meaningless and lost its
significance and there was no occasion for the Court to come to the conclusion whether the plaintiff-respondent was ready with the remaining
amount. However, the trial Court refused to exercise its jurisdiction of granting the relief of specific performance u/s 20 of the Specific Relief Act
on the ground that the suit was filed after a long gap and the prices have escalated in the meantime. Relevant para of the trial Court judgment reads
as follows:
The main contention raised by the learned counsel for the plaintiff is that defendant No. 1 Narinderjit Singh being owner in possession of the suit
land had appointed defendant No. 2 Col. Gurcharan Singh i.e. his father as his attorney, whereas, defendant No. 2 had executed an agreement to
sell in question dated 22.10.1996 in favour of the plaintiff at the rate of Rs. 14 lacs per acre after having received the earnest amount of Rs. One
lac in respect of the land in dispute. The defendants had simply denied having executed such agreement in favour of the plaintiff and rather,
defendants have taken a specific plea that agreement in question was result of fraud and fabrication. However, I do not agree with the contention
of the learned counsel for the defendants in this regard. All the witnesses examined by the plaintiff have proved the due execution of the agreement
dated 22.10.1996 in accordance with provisions of law. This is not disputed that defendant No. 1 was owner of the suit property. This is also not
disputed that he had appointed defendant No. 2 i.e. his father as his general power of attorney vide registered document dated 14.3.1978. The
execution of the agreement dated 22.10.1996 has been safely proved on record in accordance with provisions of law by marginal witness PW3
Vijay Bhardwaj. PW3 Vijay Bhardwaj has stated on oath before the Court that Narinderjit Singh has entered into an agreement in respect of the
suit land in favour of the plaintiff for selling the same at the rate of Rs. 14,00,000/- per acre through defendant No. 2 Gurcharan Singh who was of
sound and disposing mind at the time of the execution of the agreement. The said agreement was got scribed by Gurcharan Singh defendant No. 2
being General Power of Attorney of defendant No. 1 at Panchkula and the same was typed by Ashwani Kumar Pathak, Document Writer at the
instance of Gurcharan Singh. All the parties put their signatures/thumb impression on the same after admitting its contents to be true and correct in
the presence of the witnesses. Gurcharan Singh had also received an amount of Rs. 1,00,000/- as earnest amount from the plaintiff company
thrugh Onkar Mal Mittal in his presence and in the presence of Harjit Singh, whereas, he also signed the original agreement Ex. PW2/A as an
attesting witness and Harjit Singh has also put his signatures on the same. Similarly, Onkar Mal Mittal, Director of the Company had also put his
signatures on the same in his presence and in the presence of Harjit Singh and Gurcharan Singh, whereas, the receipt was also got typed on the
back of page No. 1 of Ex. PW2/A on 22.10.1996 at the instance of Gurcharan Singh. The contents of the receipt were also read over and
explained to the defendants, whereas, Harjit Singh had also signed as an attesting witness on the original receipt Ex. PW2/B. He also identified his
signatures on the receipt Ex. PW2/B. The plaintiff company was ready and willing and was still ready and willing to perform his part of agreement,
but the defendants were not ready and willing to perform their part of the contract. Onkar Mal Mittal had visited the house of the defendants at
Sector 9 Chandigarh along with draft of Rs. 9,00,000/- in his presence, but, the defendants have refused to receive the amount of Rs. 9,00,000/-
from Onkar Mal Mittal. This witness has stated that defendant No. 2 had executed an agreement in favour of the plaintiff in their presence and in
the presence of other witness Harjit Singh. Still more significantly, this witness has stated that the contents of the said agreement were read over to
the defendant No. 2 who had duly admitted the same and signed the same after admitting its contents to be true and correct. More significantly,
defendant No. 2 has executed a separate receipt in favour of the plaintiff after receiving the earnest amount of Rs. One lac. Perusal of the terms
and conditions of the agreement to sell in question reveals that the plaintiff had to pay an amount of Rs. 9 lac as part payment amount on or before
23.11.1996 and the defendant No. 2 in turn was schedule to deliver the vacant physical possession of the property in dispute to the plaintiff i.e. on
23.11.1996. The specific stand taken by the plaintiff is that he remained ready with the said amount of Rs. 9 lacs to be paid to the defendants on
23.11.1996, but the defendants refused to accept the said amount on pretext or the other. The plaintiff sent a telephonic message through STD to
the defendant No. 2 besides sending the other phonogram message to the defendant No. 2 on the same day at 11.00 a.m. More significantly, the
plaintiff had prepared a draft of Rs. 9 lacs bearing No. BC/F322341 dated 23.11.1996 in this regard. Had the plaintiff not been having ready cash
amount of Rs. 9 lacs and not ready and willing to pay the amount of Rs. 9 lacs to the defendants, then, he would have prepared the said draft.
Rather, defendants have denied the execution of any such agreement dated 22.10.1996 and therefore, defendants cannot take the plea that plaintiff
never offered an amount of Rs. 9 lacs. The defendants are also estopped from taking plea that plaintiff was not ready and willing to perform his
part of the contract and that the plaintiff did not have the capacity to make the payment when the defendants have denied the very execution of the
agreement in question. It may be pertinent to mention here that plaintiff had also served a legal notice upon the defendants through his counsel Sh.
G.K. Verma, Advocate on 24.11.1996, but the defendants refused to accept the said notice. The plaintiff was scheduled to make further payment
on different dates to the defendants after 23.10.1996, but since the defendants have denied the execution of the agreement, therefore, the question
where, the plaintiff was ready with the subsequent payment of Rs. 10 lacs, Rs. 18 lacs and Rs. 42 lacs to be paid on subsequent dates becomes
meaningless and loses its significance. DW1 Narinderjit Singh has himself stated that document was forged and fabricated, but, he was failed to
prove this averment on record. Although, the defendants have examined an expert witness namely DW3 Navdeep Gupta, who has stated that
agreement to sell dated 22.10.1996 did not contain the signatures of defendant No. 2 Gurcharan Singh, but, his testimony cannot be given much
weightage in the wake of the positive oral as well as documentary evidence led by the plaintiff. Rather, the plaintiff has also examined PW6 Jassy
Anand, Finger Prints and Handwriting Expert, who has specifically stated on oath before the Court that in the present case, he has examined the
disputed signatures of defendant No. 2 on the agreement in question with the standard signatures and he was of the opinion that signatures of Col.
Gurcharan Singh, defendant No. 2 tallied with the disputed signatures of Col. Gurcharan Singh, defendant No. 2 on the agreement in question
which means that signatures on the disputed agreement and the signatures on the authentic documents were done by one and the same person.
Another contention of the learned counsel for the defendants is that suit had not been filed by the competent court. However, I do not agree with
the contention of the learned counsel for the defendants in this regard. Vide resolution dated 11.10.1999, the plaintiff company had authorised
M.K. Jain one of the Director to pursue the present case, who was fully competent to file the present case. PW4 Mohinder Kumar Jain, one of the
Director of the plaintiff company had specifically stated that plaintiff company had authorised him vide resolution dated 11.10.1999 Ex. PW3/A to
file the present suit. He has further deposed that said agreement to sell dated 22.10.1996 Ex. PW2/A was accepted in the meeting of the plaintiff
company by the Board of Directors vide resolution dated 1.11.1996 Ex. PW3/B. PW5 Mast Ram son of Sita Ram, Company Secretary of the
plaintiff company has also proved the original resolution dated 11.10.1996 as Ex. PW3/A and the Ex. PW3/B besides proving original
incorporation certificate of plaintiff company Ex. PW3/F and further proved the memorandum of articles of the plaintiff company as Ex. PW3/G.
So, the agreement in question dated 22.10.1996 Ex. PW3/A duly stands proved in accordance with the provisions of law. It stands sufficiently
proved on record that defendants on 22.10.1996 had executed an agreement to sell in favour of the plaintiff after receiving earnest amount of Rs.
One lac from the plaintiff in the presence of marginal witnesses. Another contention of the learned counsel for the defendants that even if the
agreement to sell in question was proved by the plaintiff, even, then the plaintiff was not entitled for specific performance of the agreement to sell
dated 22.10.1996 as the relief claimed by the plaintiff could give him unfair advantage within the meaning of Section 20(2) of the Specific Relief
Act. I agree with the contention of the learned counsel for the defendants in this regard. It may be pertinent to mention here that only an amount of
Rs. One Lac was paid by the plaintiff to the defendants on the date of execution of the agreement and he was supposed to make the payment of
Rs. 9 lacs to the defendants on or before 23.11.1996 and he was supposed to make further payments of Rs. 10 lacs on or before 24.12.1996,
payment of Rs. 18 lacs and further payment of Rs. 42 lacs. However, no further payment can be made to the defendants after the initial amount of
Rs. One lac. It is a well settled law that court was not bound to grant the relief of specific performance merely because it was lawful to do so. In
this connection, I am attracted by authority of Hon''ble Supreme Court of India titled as Sargunam (Dead) by LR. Vs. Chidambaram and Another,
wherein, it has been stated that grant of decree of specific performance was not a discretion of the court, whereas, the court was not bound to
grant such relief merely because it was lawful to do so. Further more, where, one of the three circumstances mentioned in Section 20(2) of the
Specific Relief Act was established, then no discretion of the court arose in granting the relief of specific performance. In this connection, I am also
attracted by another authority of Hon''ble Supreme Court of Janardhanam Prasad Vs. Ramdas, wherein, it has been stated that in suitable cases
the court can refuse to exercise this discretionary jurisdiction of granting the relief of specific performance u/s 20 of the Specific Relief Act. In the
authority, in hand, suit for specific performance was filed after a long gap, whereas, the seller in the meantime, had made improvements in the land
and the Hon''ble Supreme Court of India has held that the trial Court was at liberty to refuse the grant of relief of discretion. Further, in this regard,
I am attracted by another authority of the Double Bench of our own Hon''ble Punjab and Haryana High Court as contained in Mohan Singh and
Another Vs. Kulwinder Singh . In this authority, it has been specifically stated that court has to strike balance of equities between the parties. The
court is to consider all relevant aspects in this regard and where the Court finds relief sought is iniquitous, then court is not obliged to grant the relief
merely because it is lawful to do so. In the present case, also relief of specific performance in my opinion would be iniquitous and it would give
unfair advantage to the plaintiff. As the plaintiff has only paid an amount of Rs. one lac as per the terms and conditions of the agreement, the suit
property was sold at the rate of Rs. 20 lacs per acre. The defendants has taken the stand that actual value of the property at the time of the
execution of the agreement is at least three times more than the prices quoted in the alleged agreement and the current market prices would be in
crores. So, the facts of this authority are fully applicable to the facts of the present case. Apart from it, I am also attracted by another authority as
contained i Ramawati Devi Vs. Idris Ahmad (Dead) Cases 332 (Allahabad), wherein, it has been stated that section 20 of the Specific Relief Act
confers discretionary power to be exercised by a Court in appropriate cases to refuse a decree for specific performance of contract to sell.
Moreover, if initial payment of Rs. 9 lacs which was paid by the plaintiff to the defendants was not actually paid to the defendants. In this regard,
stand taken by the plaintiff is that he was ready to pay an amount of Rs. 9 lacs to the defendants on the relevant date, but since the defendants had
taken specific stand that no such original agreement was executed by him in favour of the plaintiff and no initial payment of Rs. one lac was
received by him, therefore, there was no occasion for the court to come to the conclusion that whether plaintiff was ready with the remaining
amount of Rs. 9 lacs or that the defendants did not accept the same. No other point of argument has been raised.
No appeal was filed against the aforesaid findings/judgment of the trial Court by the appellant and it was the plaintiff-respondent who filed an
appeal before the Lower Appellate Court seeking relief of specific performance of the agreement in question.
It may also be relevant to point out at this stage that even before the Lower Appellate Court, the plea of any hardship to the appellant and
readiness and willingness of the plaintiff-respondent as argued before this Court was not taken by the appellant. The relevant para of the Lower
Appellate Court reads as follows:
On the other hand, the learned counsel for the respondent/defendants has forcefully argued that the respondent No. 2 Gurcharan Singh was an old
man aged about 88 years at the time of alleged agreement. The power of attorney had been executed by defendant/respondent No. 1 in his favour
in the year 1978 i.e. about two decades prior to the execution of the agreement. However, in the meantime circumstances had changed and even
defendant/respondent No. 1 i.e. principal himself was easily available to deal with his land. However, the director of the appellant/plaintiff company
took advantage of the absence of the defendant/respondent No. 1 from Chandigarh just for short duration of one day and brought the agreement
to existence by deceiving an old fellow. He has pointed out that even from the terms and conditions of the agreement it is made out that the terms
and conditions are totally unfair and the director of the appellant/plaintiff company took advantage of old age and infirm health of the person with
whom they were dealing. As per agreement only Rs. 1,00,000/- was paid as earnest money. Usually the earnest money is to the extent of at least
10% of the total sale consideration but in this case the earnest money fell below 1% of the total sale consideration. As per the agreement, the
defendant/respondent No. 2 agreed to deliver the vacant possession of the land to the appellant/plaintiff just on receipt of Rs. 9,00,000/- on
23.11.1996 and at that stage even the total amount of Rs. 10,00,000/- would have been below 10% of the total sale consideration. Usually the
possession is delivered by the proposed vendor to the proposed vendee on receipt of 1/3rd of the sale consideration. Further, the company was
given right to develop the land into colony and to get the sale deeds executed in favour of the customers straightway from the
defendants/respondents. Therefore, it is made out that contract was disadvantageous to the defendants respondents. He has further argued that in
the agreement, the appellant/plaintiff did not disclose that their company was yet to be incorporated. Therefore, it is clear that intentions of Mr.
Onkar Mal Director of the company who entered into agreement in question on behalf of the company were fraudulent. He has argued that in such
like circumstances, the learned court has rightly declined the relief of specific performance by relying upon the judgments of Hon''ble Supreme
Court in Sargunam (Dead) by LR. Vs. Chidambaram and Another, and Janardhanam Prasad Vs. Ramdas 2007 (1) RCR (Civil) 881(supra). He
has prayed for dismissal of the appeal.
Thus, after considering the arguments raised by the learned counsel for the parties, the Lower Appellate Court found that the discretion as
provided u/s 20 of the Specific Relief Act was not exercised properly by the trial Court, as the trial Court had taken wholly erroneous view while
refusing the relief of specific performance of the agreement in question as plea of unfair advantage and that the specific performance of the contract
would cause any hardship to the appellant was not taken by the appellant in his pleadings and the only plea taken by him regarding fraud was found
to be false. While passing the impugned judgment and decree, the Lower Appellate Court also found that escalation in the prices of the property is
not a ground for refusing the specific performance and the delay in filing of the suit was of no consequence as the same was filed well within
limitation.
The plea of hardship is a question of fact. The escalation of price of the real estate, inadequacy of consideration or the mere fact that the
contract is onerous to the defendant or improvident in its nature have not been considered as sufficient grounds by the Hon''ble Supreme Court in
various judgments to decline the decree for the specific performance of the agreement. Reference can be made to Gobind Ram Vs. Gian Chand,
K. Narendra Vs. Riviera Apartments (P) Ltd., and Sargunam (Dead) by LR. Vs. Chidambaram and Another,
It is well settled that grant of a decree for specific performance of the agreement is a discretionary relief and the Court is not bound to grant
such relief merely because it is lawful to do so. However, discretion of the Court is not arbitrary but sound and reasonable guided by the judicial
principles and capable of correction by the Court of appeal. Therefore, if the discretion has not been exercised properly, the Lower Appellate
Court could rectify such error. As noticed above, the appellant has not raised any plea regarding willingness and readiness of the plaintiff-
respondent at each and every stage of the contract before the Lower Appellate Court and as raised before this Court. As a matter of fact the
findings of the Lower Appellate Court were not challenged by the appellant by filing any appeal.
Even the argument raised by the learned counsel for the appellant on the basis of Ardeshir H. Mama''s case (supra) is not tenable.
It may be noticed that the aforesaid judgment stands explained in H.P. Pyarejan''s case (supra). The relevant part of the aforesaid judgment
reads as follows:
In our opinion, therefore, the judgment of the High Court suffers from serious infirmities. It suffers from the vice of exercise of jurisdiction which did
not vest in the High Court under the law. u/s 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the
judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not
warranted if it involves re-appreciation of evidence (see Panchugopal Barua and others Vs. Umesh Chandra Goswami and others, and Kshitish
Chandra Purkait Vs. Santosh Kumar Purkait and others, High Court has not even discussed any evidence. No basic finding of fact recorded by
the courts below has been reversed much less any reason assigned for taking a view contrary to that taken by the Courts below. The finding on the
question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset. It is statutorily provided by
Section 16(1)(c) of the Act that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed
and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the
performance of which has been prevented or waived by the defendant.
According to the aforesaid conclusion reached by the Hon''ble Supreme Court of India, the plaintiff-respondent is to prove his readiness and
willingness to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has
been prevented or waived by the defendant.
The factum of readiness and willingness to perform the plaintiff''s part of the contract is to be adjudged with the conduct of the parties and the
attending circumstances. In the present case, it may be noticed that according to the terms and conditions of the agreement in question, the plaintiff-
respondent was to make a payment of Rs. 9,00,000/- to the appellant on 23.11.1996 and on receipt of the aforesaid payment, the appellant was
to allow the plaintiff-respondent to carry out the development activities. However, it has been established on record that the appellant refused to
receive the aforesaid amount of Rs. 9,00,000/- on 23.11.1996. There is no evidence on record that the appellant ever allowed the plaintiff-
respondent to carry out development activities in the land in question. Thus, thereafter, there was no occasion for the plaintiff-respondent to further
perform its part of the contract on subsequent dates as argued. Still there is no evidence on record placed by the appellant to prove the fact that
the plaintiff-respondent was not ready to get the sale deed executed on subsequent dates as per the terms and conditions of the agreement in
question. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness, may be meant the
capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price whereas determining the willingness to
perform his part of the contract, the conduct of the parties has to be scrutinized. In the present case, there is no evidence placed on record to show
that the plaintiff-respondent was not having the capacity to pay the purchase price for execution of the subsequent sale deeds. The plaintiff-
respondent had demonstrated his willingness to pay Rs. 9,00,000/- on 23.11.1996 by placing on record the demand draft of Rs. 9,00,000/- in
favour of the appellant. However, as noticed above, since the appellant refused to accept the same, the plaintiff-respondent was prevented from
performing its part of the agreement by offering money for execution of the sale deeds on subsequent dates.
Even the equity is not in favour of the appellant as he had taken the plea of fraud which was found to be false.
No doubt the issue of perversity itself is a substantial question of law and there is no prohibition on entertaining a second appeal even on a
question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant
evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot
interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower
courts.
There is no such material evidence which has been ignored.
In view of the aforesaid discussion, it cannot be argued that the view taken by the Lower Appellate Court granting specific performance of
agreement cannot be held to be arbitrary and perverse warranting interference of this Court in the exercise of its jurisdiction u/s 100 CPC.
Thus, I find no merit in the arguments raised by the learned counsel for the appellant.
The substantial question of law as raised by the appellant does not arise in the present appeal.
No other point was urged. Dismissed.