IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.244 of 1985 Date of Decision: 4.10.2010 Mohinder Singh (since deceased) through L.Rs. ....... Appellants through Shri H.R.Bhardwaj, Advocate. Versus Smt.Pritam Kaur. ....... Respondent through Shri Sachin Sharma,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiff is in second appeal. His suit for specific performance of agreement to sell dated 9.7.1980 was decreed with costs by Sub Judge Ist Class, Ludhiana (hereinafter described as `the trial Court') requiring him to pay the balance sale consideration of Rs. 85200/- (minus Rs.1000/- already paid) to the respondent within a period of three months from the date of passing of the decree, which judgment was set aside by the District Judge, Ludhiana (referred to hereinafter as `the first appellate Court'). The case of the appellant is that the respondent entered into an agreement with him on 9.7.1980 for alienation by way of sale at the rate of R.S.A.No.244 of 1985 -2- .... Rs.16000/- per acre qua land which was measuring 42 kanals 11 marlas. The sale deed was to be executed by 10.6.1981 and earnest money of Rs.1000/- was paid and the balance amount of Rs.85200/- was to be paid at the time of execution of the sale deed. It was pleaded by the appellant that he was always ready and willing to perform his part of agreement and on the stipulated date, he remained present in the office of Sub Registrar, but the respondent did not turn up and thereafter also, he had requested her to honour the agreement,but she failed to do so. The respondent denied the execution of agreement to sell as well as her signatures thereon. She also denied the receipt of Rs.1000/- as earnest money from the appellant. It was pleaded by the respondent that she had purchased 21 kanals of land out of the land in question a few months prior to the alleged agreement regarding which the mutation had not been entered and, therefore, to include this land in the agreement to sell only reflected the fraudulent action of the appellant. Likewise, the stipulation qua the trees, electric motor and a kotha also seemed to be an act of fraud on the part of the appellant as none of these things existed on the land in question. The parties went to trial on the following issues:- 1. Whether the defendant executed an agreement to sell dated 9.7.80 in favour of the plaintiff in respect of the suit land. If so, on what terms and conditions?OPP 2. Whether the plaintiff has ever been ready and willing to perform his own part of the contract?OPP R.S.A.No.244 of 1985 -3- .... 3. Whether the plaintiff is entitled to the possession by way of specific performance of the agreement to sell dated 9.7.1980?OPP 4. Relief. As observed earlier, the trial Court decreed the suit with costs, but its findings were reversed in appeal which has resulted in the filing of the instant appeal wherein learned counsel for the appellant contended that all the three ingredients which are required to be pleaded and proved in a suit for specific performance having been established by cogent evidence on record, the findings recorded by the first appellate Court are erroneous and are, therefore, liable to be set aside. It was then submitted that to show the readiness and willingness of the appellant, the availability of cash was not necessary. He further submitted that both the Courts below have accepted the plea of the appellant that the agreement was valid and that Rs.1000/- were paid as earnest money and , therefore, to deny the relief of specific performance of the agreement is totally unjustified and such finding deserves to be reversed. In support of his contentions, he placed reliance on judgments reported as Sukhbir Singh and others Versus Brij Pal Singh and others, AIR 1996 S.C. 2510; Nilkanth Dhandiba Chavan & Ors. Versus Umabai & Ors., 2005(2) Civil Court cases 218 (Bombay); Smt.Balbir Kaur Versus Joginder Singh and others, 1996(3) P.L.R. 57 (P&H); Aniglase Yohannan Versus Ramlatha and others, 2005(4) R.C.R.(Civil) 563 (S.C.); Raja Ratan Gopal Sainchar (died) and others Versus Rajendra Prasad and others, 1997 A.I.H.C. 368 (A.P.); G.Alagarsamy Versus K.V.Subha Naidu, R.S.A.No.244 of 1985 -4- .... Madras Law Journal Reports 272 (Madras) and Darshan Singh Versus Ram Singh, 2009(1) Civil Court Cases 208 (P&H). On the other hand, learned counsel for the respondent contended that there is no infirmity in the findings recorded by the first appellate Court and the discretion vested in the Court pursuant to the provisions of Sections 16(c) and 20 of the Specific Relief Act,1963 (for short, `the Act') has been exercised in a justified manner and the impugned judgment & decree do not warrant any interference. He also contended that to establish the readiness and willingness of the appellant, there was no evidence to show that cash was available with him. In support his contentions, he placed reliance on Amrik Singh Versus Harjeet Singh, 2002 (1) R.C.R.(Civil) 502 (P&H) and Lakhvir Singh and another Versus Chanan Masih and others, 2009(3) Civil Court Cases 644 (P&H). I have considered the rival contentions and have gone through the impugned judgment, as also the record. The respondent has not denied the agreement to sell which has been so effectively established by the appellant. However, the forgery, as a plea, has been set up by the respondent to deny the agreement. But, no such evidence has been produced from where fraud or forgery could be inferred. It is always the duty of the person, who pleads fraud, to provide particulars of such fraud and thereafter, prove the same by bringing cogent evidence on record. In the instant case, the appellant has produced PW3-Om Singh and PW4-H.S.Marshal, who were attesting witnesses to the agreement and they have proved the execution thereof. R.S.A.No.244 of 1985 -5- .... As observed earlier, in the absence of any such specifics of fraud being pleaded and proved, the Court is of the considered opinion that that the finding to the effect that the agreement was validly executed cannot be faulted with. Likewise, the passing of earnest money of Rs.1000/- also stands established. The next question that is to be determined is as to whether the appellant was always willing and ready to perform his part of agreement or not? and whether he was possessed of sufficient means to purchase the suit land or not? There is evidence to suggest that the appellant was present in the office of Sub Registrar, but this alone may not be sufficient in the facts of the instant case to establish that he was willing to perform his part of agreement. In his plaint, a specific pleading has been made that he was present in the office of Sub Registrar along with balance sale consideration and even though, ordinarily it is not necessary for a person asserting his right to get the agreement to sell executed by way of a suit for specific performance to show as to whether he was possessed of sufficient means, but if a person pleads as such, then it becomes incumbent upon him to prove such a fact as well. There is a specific pleading in paragraph 4 of the plaint that “plaintiff with the remaining consideration amount remained present before the office of the Sub Registrar for getting his sale deed executed in his favour.” It was, thus, imperative upon the appellant to prove such a fact. R.S.A.No.244 of 1985 -6- .... Sections 61(c) and 20 of the Act are extracted below:- “16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person - (a) xx xx xx xx (b) xx xx xx xx ( c) who fails to ave and prove that he has performed or has always been ready and willing to perform the essential terms of the contact which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause ( c ),- (i)where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 20. Discretion as to decreeing specific performance.- The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. R.S.A.No.244 of 1985 -7- .... (2) the following are cases in which the court may properly exercise discretion not to decree specific performance:- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or ( c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.- Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent R.S.A.No.244 of 1985 -8- .... to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.” The afore-quoted provisions of law clearly lay down that a Court has to evaluate that it is not always necessary to grant a prayer of the plaintiff who approaches it for specific performance of an agreement and in a given set of circumstances, the relief in alternate terms may be justified. The appellant had merely paid a sum of Rs.1000/- out of total sale consideration of Rs.85200/- which is highly illogical to bind down a person to sell land measuring 41 kanals 11 marlas. This nominal amount was a miniscule portion of the entire sale consideration. In this view of the matter, I am of the considered opinion that the discretion vested in the Court by the statute has rightly been exercised by the first appellate Court and there is no case for interference with the same. The appellant, who had deposited the balance sale consideration pursuant to the decree of the trial Court has since retrieved the same while making an application before this Court which was allowed without prejudice to his rights. On the basis of the above discussion, the instant appeal is held R.S.A.No.244 of 1985 -9- .... to be without any merit and is dismissed. October 4,2010 ( Mahesh Grover ) “SCM” Judge