Specific performance
of an agreement of sale sec.16 and sec.20 – agreement of sale proved – trial
court decreed the suit – High court reversed by using it’s discretions not
judicially – Apex court held that The High Court has taken a very peculiar view
that the
plaintiff-appellant and also consider the default clause in the
agreement itself shows the non willingness of the defendant in executing the
agreement of sale and found that the
plaintiff filed the suit which was premature and simple because properties
value was raised pending suit, no suit be dismissed conditions may be imposed
and as such Apex court directed to pay 25 lakhs for obtaining specific
performance of decree =
The trial court,
therefore, came to the conclusion that
there is a valid
agreement to sell the
suit property executed by the defendant in
favour of
the plaintiff on
receipt of the advance consideration.
The High Court has
taken a very peculiar view that the plaintiff-appellant
filed the suit which
was premature. For better
appreciation, the relevant
portion of para 8 of the judgment passed by the
High Court is
extracted
hereinbelow:-
“It is not in dispute that the agreement is dated 15.12.2003. Under
the
agreement, both the
parties have agreed
that the sale
deed should be
executed within one
year from that day, that is on or before
15.12.2004.
But the suit is filed
on 9.7.2004, that is within about 7
months from the
date of the
agreement. Absolutely, no reasons
are forthcoming as to why
the suit was filed
prematurely.
The High Court
further held that in the agreement (Exhibit P-1) the parties
have agreed that if
the sale deed could not be executed
by the defendant,
he will repay a sum
of Rs,. 10,90,000/-, According to
the High
Court, the
recital in the
agreement shows that it was not
executed by the
defendant
with free mind and
volition rather he was under pressure
while executing
those documents.
We have given our thoughtful consideration in the matter
and perused the
pleading and evidence.
We are of the view that
the High Court
has not
approached the issue
in its right perspective and
has committed serious
error of law in
holding that the agreement was
executed by the
defendant
without free mind and
volition and under some pressure.
The agreement was
executed on 15.12.2003
wherein it has
been mentioned that
the total
consideration amount
was 16,10,000/- and out of that part
consideration of
sum of Rs. 5,45,000/-
was paid. The said agreement was
followed by another
letter dated
21.1.2004, executed by the respondent,
Section 20 of the Act
specifically provides that the court’s
jurisdiction to grant
decree of specific performance is discretionary
but
not arbitrary. Discretion must be exercised in
accordance with the
sound
and reasonable
judicial principles.
The King’s Bench in
Rookey’s Case [77 ER 209; (1597) 5
Co.Rep.99] it is
said :
“Discretion is a science, not to act arbitrarily according
to men’s will
and private affection: so the discretion which is exercised
here, is to be
governed by rules of law and equity, which are to oppose,
but each, in its
turn, to be subservient to
the other. This
discretion, in some
cases
follows the law implicitly, in others or allays the rigour
of it, but in no
case does it contradict or overturn the grounds or principles
thereof, as
has been sometimes
ignorantly imputed to
this Court. That
is a
discretionary power, which neither this nor any other
Court, not even
the
highest, acting in a judicial capacity is
by the constitution
entrusted
with”
The Court of Chancery in Attorney
General vs. Wheat [(1759)
1 Eden
177; 28 ER 652]
followed the Rooke’s case and observed :
“the law is
clear and courts of equity ought to
follow it in
their
judgments
concerning titles to
equitable estates; otherwise
great
uncertainty and confusion would ensue. And
though proceedings in
equity
are said to be secundum discretionem boni vin, yet when it
is asked, vir
bonus est quis? The answer is, qui consulta partum, qui
leges juraq servat.
And as it is said in Rooke’s case, 5
Rep. 99 b,
that discretion is a
science not to
act arbitrarily according
to men’s will
and private
affection: so the discretion which is exercised here, is to
be governed by
rules of law and equity, which are to oppose, but each, in
its turn, to be
subservient to the other.
This discretion, in some cases
follows the law
implicitly, in others or allays the rigour of it, but
in no
case does it
contradict or overturn the
grounds or principles
thereof, as has
been
sometimes ignorantly imputed to this Court. That is a discretionary power,
which neither this nor any other Court, not even the
highest, acting in a
judicial capacity is by the constitution entrusted
with. This description
is full and judicious, and what ought to be imprinted on the
mind of
every
judge.”
However, the court may take notice of the
fact that there has
been an
increase in the price
of the property and considering the
other facts and
circumstances of the
case, this Court while granting decree
for specific
performance can
impose such condition which may to
some extent compensate
the defendant-owner of
the property
As discussed above the
agreement was entered into between
the parties
in 2003 for sale of
the property for a total consideration of Rs.16,10,000/-
. Ten years have passed by and now the price of
the property in that area
where it situates has increased by not less than
five times. Keeping
in
mind the factual
position we are of the view that the appellant
should pay
a total consideration
of Rs.25 lakhs,
being the price
for the said
property.
We, therefore, allow this appeal and set
aside the judgment
and order
passed by the High
Court and restore the judgment and decree
of the trial
court with the
modification that on payment of
Rs.25 lakhs, less
already
paid by the
plaintiff, the defendant-owner shall execute a
registered sale
deed within a period
of three months from today.
2014 –
Sept. Month -http://judis.nic.in/supremecourt/imgst.aspx?filename=41947
REPORTABLE
IN THE SUPREME COURT OF
INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9047 OF 2014
(Arising out of
Special Leave Petition (Civil) No.2271 of 2012)
K. Prakash
…Appellant (s)
Versus
B.R. Sampath Kumar …Respondent(s)
JUDGMENT
M.Y. Eqbal, J.:
Leave granted.
2. This appeal by
special leave is directed against
the judgment and
order dated 23.8.2011 passed by the High Court of Karnataka
whereby Regular
First Appeal No.396 of 2007 of the respondent was
allowed, reversing the
judgment of the
trial court and
dismissing the suit
for specific
performance of the agreement filed by the
plaintiff-appellant.
The facts of the case lie in a narrow compass.
All disputes pertain to a self acquired
property of the
father of the
respondent. The
respondent’s father had four sons and three daughters. On
31.7.1988, transfer of Khata was executed by all brothers
and sisters in
the name of the respondent.
After the demise of their parents,
partition
seems to have taken place on 14.12.2000 among brothers and
sisters and the
property in question is said to have fallen to the share
of defendant, who
was required to pay a sum of Rs.1,25,000/- to
each of the brothers and
sisters in lieu of their shares in the suit house. The plaintiff
had paid
Rs.1,25,000/- to all his brothers and sisters except brother
Selva Pillai.
The respondent herein
executed an Agreement for Sale
in favour of the
appellant on 15.12.2003 agreeing to sell the schedule
property for a total
sale consideration of Rs.16,10,000/-. The schedule property is located
at
Bangalore, admeasuring 30 x 45 feet with built
up area of 1700 sq.ft.,
consisting of ground floor and first floor including out
house. The ground
floor is occupied by the respondent and the first floor is
occupied by the
appellant. as a mortgagee.
The out-house is occupied by the brother of the
defendant-respondent namely Sheshadri (as mortgagee). It
is relevant to
note that an amount of Rs.3,75,000/- was
paid by the
appellant to the
respondent as requested by the respondent and
Sheshadri, who is
occupying
the out-house
portion, has paid Rs.1,65,000/- as a
mortgage consideration
to the respondent while occupying the
house. Agreement further
reveals
that the aforesaid amounts shall be treated as advance amount
received by
the respondent under the agreement of sale. The understanding between
the
parties is that the
mortgage consideration need
not be repaid
by the
respondent to the
mortgagees including Sheshadri
and his mortgage
consideration will be repaid by the prospective vendee
i.e. the
appellant.
However, on the
date of execution
of sale agreement,
only a sum of
Rs.5,000/- was paid by the appellant to the respondent. Thus, in all a sum
of Rs.5,45,000/- is said to have been paid by the
appellant. The plaintiff
could raise loan of Rs.3 lakh by
securing property. The
remaining sale
consideration of Rs.7,65,000/- was payable to
the respondent within
one
year from the date of the agreement, and in case respondent
fails to comply
with any of the conditions in the agreement,
he would repay
double the
amount i.e. Rs.10,90,000/- to the appellant.
Although prescribed time was one year, litigation
seems to have
started
between the parties within three months. Repeated complaints were filed by
the appellant against the respondent before the
police authorities. At
last, appellant-plaintiff moved a suit on 9.7.2004 praying
for a decree of
specific performance on the ground that the respondent-defendant
has denied
the execution of the sale deed. The sum and substance of
the appellant-
plaintiff’s case is
that the defendant-respondent has failed to perform his
part of the contract
though the appellant-plaintiff was
ready and willing
to perform his part
of the contract.
The defendant-respondent denying Agreement Ex.P1
pleaded in his
written
statement that there being difference of opinion between
himself and his
brothers, he was in highly disturbed state of mind and when he approached
the appellant for suggestion and help, appellant took his
signature on the
alleged agreement of sale and he signed it since he had implicit
faith in
the appellant. The
appellant-plaintiff had assured that
B.R. Sheshadri -
brother of the respondent-defendant, who was living in the
out-house, would
be made to vacate the premises in the guise of interest
being created in
favour of appellant in the property. It has also been contended
that the
respondent had no
intention to execute the agreement of sale or to sell the
property and the agreement
was entered into
only for the
purpose of
securing the loan and
the property was mortgaged as
a security for
the
loan.
After hearing
argument on both sides, the trial court decreed
the suit in
favour of the
plaintiff-appellant with a
direction to the
defendant-
respondent to execute
the absolute sale deed in favour of
the plaintiff,
free from
all claims and
encumbrances, by receiving
the balance
consideration of
Rs.10,65,000/- and to hand over the vacant
and peaceful
possession of the
suit Schedule Property to the plaintiff. Aggrieved
by
the decision, the defendant-respondent preferred an appeal
before the High
Court, which passed
the impugned order setting aside
the decree of the
trial court and
dismissing the suit for specific performance.
Hence, this
appeal by special leave by the plaintiff.
Mr. Sanjay Parikh, learned counsel appearing on
behalf of the
appellant
contended that instead of adverting to and re-appreciating
the evidence on
record, the High
Court erred in
arriving at the
findings based on
conjectures and surmises.
The appellant-plaintiff has
complied with the
provisions of Section
16(c) of the Specific Relief Act by
establishing his
willingness to
perform his part of the contract
whereas the respondent-
defendant failed to
do so. It is further contended that
the respondent has
admitted by way
of affidavit dated
10.10.2006 that he
executed the
Agreement of sale dated
15.12.2003 and also
by letter dated
21.1.2004
further admitted that
he has executed
aforesaid agreement and
he had
already received a sum of Rs.5,45,000/- as part payment
of the
total sale
consideration. At the
instance of appellant, on 16.2.2004 Syndicate
Bank
issued two cheques one
for Rs.10,65,000/- in
favour of the
respondent
towards balance amount of sale consideration and
another for Rs.1,19,840/-
in favour of
Sub-Registrar, Rajajinagar, Bangalore
for payment of the
registration charges of the said sale deed. As
contended, on failure
of
the respondent to reply legal notice of the appellant and
execute the sale
deed in favour of the appellant, the appellant had
to move a
suit for
relief of specific performance directing
the respondent to receive the
balance sale consideration to execute an absolute sale deed
in favour of
the appellant.
Learned counsel drew our attention to the exhibits and the
evidence of the defendant-respondent and submitted that the
appellate court
has committed serious illegality in ignoring these materials
and reversed
the finding of the trial court.
Per contra, Mr. Vishwanath
Shetty, learned senior
counsel appearing on
behalf of respondent, submitted that taking advantage of
financial crises
and disturbed state of mind of the respondent, the
appellant suggested him
to execute an agreement of sale and without revealing its
contents took his
signature on the agreement, which was made only for nominal
purpose and he
had no intention to sell the property. It is
further contended that
the
appellant had concocted and fabricated the agreement. It is
alleged by the
respondent that since appellant did not perform his
part of
the contract,
the entire alleged agreement stood cancelled. Prevailing circumstances had
forced
respondent to write
aforesaid letter dated
21.1.2004 calling
appellant to pay the entire
amount. Alleged agreement
and letter were
created by the appellant under suspicious circumstances and
mental pressure
of the defendant-respondent, and as such, they are not legally
enforceable
for a decree under Section 16(c) read
with Section 20 of the
Specific
Relief Act, 1963. The
High Court has held that there was
payment of only
Rs.5000/- to the defendant as against the claim of the
plaintiff that he
has paid a sum of Rs.5,45,000/- under Ex.P1 and P2. It
has been further
contended on behalf of the respondent that the market value
of the property
in the year 2003 in Bangalore was much more
to the consideration
amount
contained in Ex. P1 and P2.
The whole transaction was
nothing but farce.
Respondent contends that
taking into consideration
all aspects of the
matter, the High Court is right in reversing
the judgment of
the trial
court, which had ignored the material evidence on record
with regard to the
conduct of the plaintiff-appellant.
While deciding the issue as to whether the agreement dated 15.12.2003
was
executed by the
defendant in favour of the
plaintiff-appellant, the trial
court has gone
through the pleading and evidence and
discussed the matter
in detail. The
trial court found that after the agreement
executed between
the parties on
15.12.2003 the defendant-respondent issued
letter dated
21.1.2004 calling upon the plaintiff to get ready with the
entire balance
amount on or before 15.4.2004 and
also mentioned that
in default, the
agreement dated 15.12.2003 will stand cancelled and
the advance amount
shall be forfeited. The trial court further found that
the plaintiff had
paid an amount of Rs. 3,75,000/- to
the defendant for
the property in
occupation of the plaintiff taken on
lease and the
defendant in cross
examination had admitted that the plaintiff occupied
the first floor
as
mortgagee and that the plaintiff has paid the
amount of Rs.
3,75,000/-
(exhibit P-3).
The trial court
further found that
the defendant was
examined as DW-1 and he admitted the signature of
himself, his wife
and
signature of plaintiff.
He further admitted in cross
examination that he
had read the papers and signed the same. The defendant also
handed over
copies of the title deeds and the encumbrance certificate
to the
plaintiff
on lease basis and also Exhibit P-1 and P-2, the trial court
came to the
conclusion that the defendant entered into an agreement of
sale with the
plaintiff for a consideration of Rs. 16,10,000/- and that
the amount of Rs.
5,45,000/- was paid as an advance towards the sale of
the said property.
Further the defendant (DW-1) admitted the receipt of the
legal notice dated
12.3.2004 (exhibit P-3) but he did not reply the said
notice.
The trial court also discussed the defence taken by
the defendant during
cross examination that the
suit property has fallen to
the share of the
defendant and that all his brothers and sisters
are residing separately.
The trial court,
therefore, came to the conclusion that
there is a
valid
agreement to sell the
suit property executed by the defendant in
favour of
the plaintiff on
receipt of the advance consideration.
The High Court has taken a very peculiar view that the plaintiff-appellant
filed the suit which was premature. For better appreciation, the
relevant
portion of para 8 of the judgment passed by the
High Court is
extracted
hereinbelow:-
“It is not in dispute that the agreement is dated 15.12.2003. Under
the
agreement, both the
parties have agreed
that the sale
deed should be
executed within one
year from that day, that is on or before
15.12.2004.
But the suit is filed
on 9.7.2004, that is within about 7
months from the
date of the agreement. Absolutely, no reasons are forthcoming
as to why
the suit was filed
prematurely. In the meanwhile, the
plaintiff approached
the Police for enforcement
of the contract. The same
is clear in the
matter on record Ex.P.11 dated 08.2.2004 is the
complaint lodged by the
plaintiff before the Deputy Police Commissioner.
In the said
complaint,
he has clearly stated that though the
defendant agreed for selling his
property on
15.12.2003, the plaintiff has not come forward to execute
the
sale deed and that the plaintiff has been delaying the
execution of sale
deed since four days prior to the filing of the complaint.
The plaintiff
requested the Deputy Police Commissioner to call the
defendant and to take
action by directing him to execute the sale deed as
agreed. He also sought
for protection by filing the said complaint.
Ex.P.12 is the
complaint dated 3.3.2004 filed by the plaintiff
before
the Police Commissioner, Bangalore city. In the said
complaint also, the
plaintiff has alleged that defendant is refusing to
execute the sale
deed
in his favour and that therefore, the Commissioner
should intervene in the
manner for getting the sale deed executed in favour of the
plaintiff.
Ex.P.13 is
the complaint dated
11.4.2004 filed by the plaintiff
before the
Police Inspector, Subramanyanagar Police
Station, Bangalore
(subsequently police station). In the said complaint, he has
stated that
defendant and his family members have threatened to kill
the plaintiff and
his family members and
therefore, action should
be taken against
the4
defendant. However, Inspector of
Police has issued
an endorsement on
11.3.2004, as per
Ex.P.14 to the effect that dispute between the parties is
of civil nature and
the complainant was directed
to get his
grievances
redressed before
the jurisdictional Civil
Court. Ex.P.15 is
another
complaint of similar nature. Ex.P.16
is an endorsement
issued by the
Police officer to the wife
of the complainant
intimating her that
the
complaint lodged by her on 12.3.2004, is received and
for any grievance,
she can approach the Subramanyanagar Police Station. Further,
in Ex.P.17,
the Inspector of Police has intimated the plaintiff that
the defendant has
denied the agreement of sale and that he
had signed the
sale agreement
under mental pressure.
Again by issuing such an endorsement, the Inspector
has directed the plaintiff to get his grievances redressed
before the Civil
Court.
Cr.P.C.107 proceedings were
initiated before the
Tehsildar,
Bangalore, against the parties as is clear
from Ex.P.18. based
on the
complaints, two charge sheets were lodged
against the defendant
as per
Ex.P.19 and 21; the same
are pending consideration
before the Criminal
Court. These facts
clearly go to show that the plaintiff
has approached
the police repeatedly by making one
or the other
allegations that too
within the span of 2 to 4 months of the agreement. He
has approached the
Commissioner of Police
and Deputy Commissioner of
police seeking their
interference in the matter
for getting the
sale deed executed
in his
favour.”
The High Court
further held that in the agreement (Exhibit P-1) the parties
have agreed that if
the sale deed could not be executed
by the defendant,
he will repay a sum
of Rs,. 10,90,000/-, According to
the High
Court, the
recital in the
agreement shows that it was not
executed by the
defendant
with free mind and
volition rather he was under pressure
while executing
those documents.
We have given our thoughtful consideration in the matter
and perused the
pleading and evidence.
We are of the view that
the High Court
has not
approached the issue
in its right perspective and
has committed serious
error of law in
holding that the agreement was
executed by the
defendant
without free mind and
volition and under some pressure.
The agreement was
executed on 15.12.2003
wherein it has
been mentioned that
the total
consideration amount
was 16,10,000/- and out of that part
consideration of
sum of Rs. 5,45,000/-
was paid. The said agreement was
followed by another
letter dated
21.1.2004, executed by the respondent,
the
contents whereof
are reproduced herein-below:-
“21.01.2004
“That on this 22nd day of January, 2004, I have
executed the agreement
of
sale in favour of Sri K.Prakash, in respect of the House
bearing No.2558,
11th Main Road, Subramanyanagara, Bangalore-560 010, to sell
the same for a
total sale consideration
of Rs.16,10,000/- (Rupees
Sixteen Lakhs Ten
thousand only). In all I have received a sum of
Rs.5,45,000/- (Rupees Five
Lakhs Forty Five Thousand
only) from K.
Prakash and the
balance sale
consideration to be paid on or before 15.04.2004 evening,
failing to pay
the balance sale consideration as per the agreement dated
15.12.2004. This
Agreement stands cancel. I agree for the same.
Sd/- Sd/-
(Sampath Kumar)
Vendor (K.Prakash)
(Purchaser)
Sd/-
(Kanthamani)
WITNESSES:
WITNESSES
Sd/- 1) Sd/-
Sd/- 2) Sd/-
Sd/- 3) Sd/-”
Indisputably, remedy for specific performance is an
equitable remedy. The
Court while granting relief for specific performance
exercise discretionary
jurisdiction. Section 20 of the Act specifically provides
that the court’s
jurisdiction to grant
decree of specific performance is discretionary
but
not arbitrary. Discretion must be exercised in
accordance with the
sound
and reasonable
judicial principles.
The King’s Bench in
Rookey’s Case [77 ER 209; (1597) 5
Co.Rep.99] it is
said :
“Discretion is a science, not to act arbitrarily according
to men’s will
and private affection: so the discretion which is exercised
here, is to be
governed by rules of law and equity, which are to oppose,
but each, in its
turn, to be subservient to
the other. This
discretion, in some
cases
follows the law implicitly, in others or allays the rigour
of it, but in no
case does it contradict or overturn the grounds or principles
thereof, as
has been sometimes
ignorantly imputed to
this Court. That
is a
discretionary power, which neither this nor any other
Court, not even
the
highest, acting in a judicial capacity is
by the constitution
entrusted
with”
The Court of
Chancery in Attorney General vs.
Wheat [(1759) 1 Eden
177; 28 ER 652] followed the Rooke’s case and observed :
“the law is
clear and courts of equity ought to
follow it in
their
judgments
concerning titles to
equitable estates; otherwise
great
uncertainty and confusion would ensue. And
though proceedings in
equity
are said to be secundum discretionem boni vin, yet when it
is asked, vir
bonus est quis? The answer is, qui consulta partum, qui
leges juraq servat.
And as it is said in
Rooke’s case, 5 Rep. 99
b, that discretion
is a
science not to
act arbitrarily according
to men’s will
and private
affection: so the discretion which is exercised here, is to
be governed by
rules of law and equity, which are to oppose, but each, in
its turn, to be
subservient to the other.
This discretion, in some cases
follows the law
implicitly, in others or allays the rigour of it, but
in no
case does it
contradict or overturn the
grounds or principles
thereof, as has
been
sometimes ignorantly imputed to this Court. That is a discretionary power,
which neither this nor any other Court, not even the
highest, acting in a
judicial capacity is by the constitution entrusted
with. This description
is full and judicious, and what ought to be imprinted on the
mind of
every
judge.”
17. The principles
which can be enunciated is that where
the plaintiff
brings a suit for
specific performance of
contract for sale,
the law
insists a condition
precedent to the
grant of decree
for specific
performance that
the plaintiff must
show his continued
readiness and
willingness to perform his part of the
contract in accordance
with its
terms from the date of contract to the date of hearing. Normally, when the
trial court exercises its discretion in one way or other
after appreciation
of entire evidence and materials on record, the appellate
court should not
interfere unless it is established that the discretion has
been exercised
perversely, arbitrarily
or against judicial
principles. The appellate
court should also not exercise its discretion against the
grant of specific
performance on extraneous considerations or sympathetic considerations. It
is true, as contemplated under Section 20 of the Specific
Relief Act, that
a party is not entitled to get a decree
for specific performance
merely
because it is lawful to do so. Nevertheless
once an agreement to sell
is
legal and validly
proved and further requirements for getting such a decree
is established then
the Court has to exercise its discretion
in favour of
granting relief for
specific performance.
Mr. Shetty,
lastly submitted that
grant of decree
for specific
performance in favour of the appellant will cause a great
hardship for the
reason not only because of the lesser price shown in the
agreement but also
because of the rise in price which have been increased ten
times the price
agreed between the parties.
Subsequent rise in
price will not be treated as
a hardship entailing
refusal of the decree for specific performance. Rise in price is
a normal
change of circumstances
and, therefore, on
that ground a
decree for
specific performance
cannot be reversed.
However, the court may take notice of the
fact that there has
been an
increase in the price
of the property and considering the
other facts and
circumstances of the
case, this Court while granting decree
for specific
performance can
impose such condition which may to
some extent compensate
the defendant-owner of
the property. This
aspect of the
matter is
considered by a three Judge Bench of
this Court in
Nirmala Anand vs.
Advent Corporation (P) Ltd. and Others, (2002) 8 SCC 146, where this Court
held :-
“6. It is true that grant of decree of specific
performance lies in the
discretion of the court and it is also well settled that
it is
not always
necessary to grant specific performance simply for the reason
that it is
legal to do so. It is further well settled that the court in
its discretion
can impose any reasonable
condition including payment
of an additional
amount by one party to the
other while granting
or refusing decree
of
specific performance. Whether the purchaser shall be
directed to pay an
additional amount to the seller or converse would depend
upon the facts and
circumstances of a case. Ordinarily, the plaintiff is not to
be denied the
relief of specific performance only on account of the
phenomenal increase
of price during the pendency of litigation. That may be,
in a
given case,
one of the
considerations besides many
others to be
taken into
consideration for refusing the decree of specific
performance. As a general
rule, it cannot be held that ordinarily the plaintiff cannot
be allowed to
have, for her alone, the entire benefit of phenomenal
increase of the value
of the property during the pendency of the litigation. While balancing
the
equities, one of the considerations to be kept in view is as
to who is the
defaulting party. It is also to be borne in mind whether a
party is
trying
to take undue advantage over the other as also the
hardship that may be
caused to the defendant by directing specific
performance. There may be
other circumstances on which parties may not have any
control. The totality
of the circumstances is required to be seen.”
As discussed above the agreement was
entered into between the parties
in 2003 for sale of
the property for a total consideration of Rs.16,10,000/-
. Ten years have passed by and now the price of
the property in that area
where it situates has increased by not less than
five times. Keeping
in
mind the factual
position we are of the view that the appellant
should pay
a total consideration
of Rs.25 lakhs,
being the price
for the said
property.
We, therefore, allow this appeal and set
aside the judgment
and order
passed by the High
Court and restore the judgment and decree
of the trial
court with the
modification that on payment of
Rs.25 lakhs, less
already
paid by the
plaintiff, the defendant-owner shall execute a
registered sale
deed within a period
of three months from today.
………………………….J.
[ M.Y. Eqbal ]
…………………………….J
[Pinaki
Chandra Ghose]
New Delhi
September 22, 2014
