PRAKASH CHANDRA Vs NARAYAN
Bench: G.S. SINGHVI,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-008102-008102 / 2011
Diary number: 19465 / 2007
Advocates: MONIKA GUSAIN Vs
ANAGHA S. DESAI
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REPORABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8102 OF 2011 (arising out of SLP(C)No.21139 of 2007)
PRAKASH CHANDRA … APPELLANT
Versus
NARAYAN … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave was granted on 22.9.2011.
2. This appeal has been preferred by the
appellantplaintiff against the judgment and
order dated 6th March, 2007 passed by the learned
Single Judge of the High Court of Judicature of
Mumbai, Nagpur Bench in Second Appeal No.198 of
2006, whereby the judgment and decree passed by
the District Court, Pandharkawada (Kelapur) in
Regular Civil Appeal No.129 of 2002 came to be
confirmed.
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3. The first appellate court by the aforesaid
judgment and decree reversed the judgment and
decree dated 23rd September, 1998 and 3rd October,
1998 in Special Civil Suit No.175 of 1997 which
was preferred by the appellantplaintiff for
specific performance.
4. The suit in question was filed by the
appellant against the respondent for specific
performance of agreement for sale dated 18th
April, 1996 in respect of agricultural land
admeasuring 1 H. 61Are. at a price of
Rs.51,000/. It was the case of the appellant
that he had paid the earnest money of Rs.39,000/
while the balance amount was to be paid on the
date of execution of the sale deed which was
fixed for 18th March, 2007, but despite the
appellant being present for the purpose of
completion of the formalities of agreement for
sale, the respondent did not turn up.
Consequently, the appellant purchased a stamp
paper of Rs.100/ on 18th March, 1997 and issued
a notice to the respondent on 2nd April, 1997 and
called upon him to execute the sale deed dated
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21st April, 1997 but a false reply was given by
the respondent on 15th April, 1997. As the
respondent refused to perform his part of the
contract, the appellant filed Special Civil Suit
No.175 of 1997 for specific performance of
contract, and alternatively to refund the earnest
money.
5. The respondent contested the case claiming
that his signatures were obtained on a blank
stamp paper for the outstanding money of
Rs.12,000/ for the purchase of fertilizers and
clothes etc. The trial court by its judgment
dated 23rd September, 1998 and decree dated 3rd
October, 1998 decreed the suit for specific
performance.
6. On appreciation of the material on record,
the trial court held that the appellant had
proved that the respondent agreed to sell the
suit land for consideration of Rs.51,000/ by
executing an agreement for sale on 18th April,
1996 and that he had paid earnest money of
Rs.39,000/ to the respondent. The respondent
failed to prove that he had signed on a blank
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Stamp paper in the presence of Vithal Sitaram
Thaori. On the other hand there is sufficient
material on record to show that the appellant was
ready and willing to perform his part of the
contract and, therefore, the appellant is
entitled to the decree for specific performance
of contract while the alternative prayer needs no
consideration. The respondent is not entitled to
compensatory cost. All the six issues were
decided in favour of the appellant and against
the respondent with a direction to the respondent
to execute the sale deed on or before 31st August,
1998 in respect of the suit land i.e. southern
portion of the land admeasuring 1 H 61Are having
Gat No.1/2 situated at village Khadki on payment
of the balance consideration of Rs.12,000/. The
Court also directed the respondent to deliver the
possession of the suit land to the appellant with
the clear condition that in the event of the
respondent failing to execute the sale deed on or
before the fixed date, the appellant will deposit
the balance amount in the Court to get the sale
deed executed.
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7. The respondent took up the matter vide
first appeal before the District Court. The
following questions were framed for
determination:
1) Whether the defendant has agreed to sell and the plaintiff has agreed to purchase the suit property for consideration of Rs.51,000/ on 18.4.1996?
2) Whether the defendant has signed Ex.25 blank Stamp paper in lieu of the credit amount of the plaintiff towards the clothes and fertilizers?
3) Whether the plaintiff was and is ready and willing to perform his part of the contract?
4) Whether the defendant has failed to perform his part of the contract?
5) Whether it is necessary to interfere with the impugned judgment and decree?
6) What order and relief?”
8. The first appellate court on hearing the
parties and on appreciation of the material on
record answered all the issues in favour of the
appellant but reversed the judgment and decree
thereby allowing discretion in favour of the
respondent by directing him to pay the earnest
money with interest.
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Referring Clause (b) of subsection (2) of
Section 20 of Specific Relief Act, the First
Appellate Court held as follows:
“20. Having regard to the facts on the record, it is evident from the evidence of the defendant and also an admitted fact that the defendant was having the only suit land and he would be landless if the decree would be granted for specific performance. On the other hand, the plaintiff is having landed properties and all the riches including the business of clothes and fertilizers. Therefore these aspects are not considered by the learned lower court, while exercising the discretion, in granting the decree for specific performance. The amount of Rs.12,000/ were not paid or deposited to the defendant’s favour since the agreement for sale till the date of decree. Therefore having regard to all these circumstances and facts on the record, this Court is of the opinion that this Court should interfere in the discretion exercised by the learned lower court while granting the decree for specific performance. The hardship would be, in all probabilities and facts and circumstances caused to the defendant than the plaintiff. In the result, the court is of the opinion that alternative relief for refund of the earnest amount of Rs.39,000/ to the plaintiff by the defendant, would meet the ends of justice. The same can be utilized and exercised by awarding the damages by way of an interest on the earnest amount……..”
9. When the matter was taken up in the second
appeal, the learned Single Judge vide impugned
judgment dated 6th March, 2007 dismissed the
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second appeal on the ground that the first
appellate court has factually found that the
respondent would be landless as against the
appellant who is having various businesses as
well.
10. According to the learned counsel for the
appellant, there was no impediment in according a
relief of specific performance particularly when
all the issues have been decided in favour of the
appellant and against the respondent. He further
submitted that, in the absence of any defence
taken by the respondent that he would become
landless if the relief for specific performance
is granted and in absence of any material on
record, the finding of the first appellate court
cannot be sustained.
11. Learned counsel for the appellant referring
to the crossexamination of the respondent
contended that the respondent would not become
landless as is evident from the fact that after
the agreement reached with the appellant, he sold
4 acres of land to one Dilip Karekar. Even
thereafter the respondent is having 2.25 H of
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cultivable land apart from 0.88 H uncultivable
land.
12. According to the learned counsel for the
respondent, as hardship would be caused to the
respondent, the appellate court rightly held
that it would subserve the ends of justice if
the entire amount of earnest money received by
the respondent is directed to be paid back to
appellant along with interest.
13. We have heard the learned counsel for the
parties. The learned counsel appearing on either
side elaborately took us through the findings of
the trial court, the first appellate court as
well as the High Court in second appeal. From
the materials on record and the agreement dated
18th April, 1996 and from the judgment of the
trial court and the first appellate court, it is
evident that no issue relating to the hardship of
the respondent was framed. In a case of Specific
performance, hardship is a good defence provided
such defence is taken by the defendant and
evidence in support of such defence is brought on
record, while in this case no such defence was
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taken by the respondent and no evidence was
brought on record in its support.
14. The appellant has specifically pleaded that
the respondent possessed agricultural land
admeasuring 5 H. 76.R. in Gat No. ½, which has
not been denied by the respondent. The appellant
proved that an agreement was reached between the
parties on 18th April, 1996 to sell southern
portion of land admeasuring 1.61 H. by making an
eastwest boundary for the consideration of Rs.
51,000/ for which appellant had paid Rs.39,000/
to the respondent as earnest money. The
appellant also proved that he was always ready
and willing to perform his part of the contract.
These issues were decided in favour of the
appellant. During crossexamination the
respondent stated that he sold only 4 acres of
land during the pendency of the case, thereby
remaining 2.25 H cultivable and 0.88 H
uncultivable land is still available with the
respondent.
15. The question as to whether the grant of
relief for specific performance will cause
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hardship to the defendant within the meaning of
Clause (b) of subsection (2) of Section 20 of
the Specific Relief Act, 1963, being a question
of fact, the first appellate court without
framing such an issue ought not to have reversed
the finding of the trial court while concurring
with it on all other issues with regard to the
appellant’s entitlement to relief for specific
performance of contract.
The High Court in the second appeal failed
to notice that the respondent had not taken any
defence of hardship and no such issue was framed
and in absence of any such evidence on record,
the first appellate court held that he would be
landless should the decree for specific
performance be granted.
16. For the reasons stated above, we are of the
view that the appellant is entitled to the
specific performance of agreement for sale, as
ordered and decreed by the trial court. The
appeal is accordingly allowed. The order passed
by the High Court in the second appeal and the
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judgment and decree passed by the first appellate
court are set aside. The judgment and decree
passed by the Trial Court is affirmed. The
appellant is allowed two months to pay the
balance consideration to the respondents. If the
respondent fails to execute the sale deed, such
amount will be deposited in the trial court which
will ensure the execution of the sale deed as per
its judgment and decree.
……………………………………………….J. ( G.S. SINGHVI )
……………………………………………….J. ( SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI, APRIL 23, 2012.
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