IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1552 of 2008 (O&M) Date of decision: 13.02.2009 Tehal Chand and another ....Appellants versus Vivek Bajaj ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Vikram Singh, Advocate for the appellants. Mr. Tejinder Pal Singh, Advocate for the respondent. Vinod K. Sharma, J(Oral) C.M. No.4911-C of 2008 This is an application under Section 5 of the Limitation Act for condoning the delay of 125 days in filing the appeal. For the reasons stated in the application, C.M. is allowed and delay of 125 days in filing the appeal is ordered to be condoned. RSA No.1552 of 2008 This regular second appeal is directed against the judgments and decree dated 15.05.2007 and 17.10.2007 passed by the learned Courts below decreeing the suit filed by the plaintiff-respondent. for specific performance of an agreement to sell. Plaintiff-respondent sought specific performance of an agreement to sell dated 22nd April, 1999 with respect to House No.761, Ward No.3, Panipat. It was pleaded by the plaintiff that by way of agreement to sell dated 22nd April, 1999, the defendant-appellants had agreed to sell the house in dispute for total sale consideration of Rs.5 lac out of which Rs.1 lac was paid as earnest money. The date for execution RSA No.1552 of 2008 (O&M) - 2 - of the sale deed was fixed as 30th March, 2000. It was the case of the plaintiff-respondent that on 30th March, 2000, he was present in the office of Sub-Registrar, Panipat, along with the entire balance sale consideration and necessary charges for stamp and registration, but the defendants did not turn up to receive the balance sale consideration to get the sale deed executed in favour of the plaintiff. Thereafter, a notice was issued to the appellant-defendants on 5th December, 2000 to execute the sale deed. The appellant-defendants failed to execute the sale deed. Thus, it was claimed by the plaintiff-respondent that he was always willing and ready and still willing and ready to perform his part of contract. On notice, defendants contested the suit by taking preliminary objections that the suit is not maintainable and the respondent-plaintiff has no locus standi to file and maintain the present suit. Plea of estoppel was also raised and it was pleaded that the plaintiff- respondent had concealed true and material facts from the Court. However, on merits, the appellant-defendant denied the averments made in the plaint. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues:- “1. Whether defendants entered into an agreement to sell dated 22.4.99 with the defendants and received Rs.1 lac as earnest money, if so to what effect? OPP. 2. Whether the plaintiff has been and is still ready and willing to perform his part of the agreement? OPP. 3. Whether the suit is not maintainable in the present form? OPD. RSA No.1552 of 2008(O&M) - 3 - 4. Whether the plaintiff has no locus standi to file the suit? OPD. 5. Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD. 6. Whether the plaintiff has no cause of action to file the present suit? OPD. 7. Relief.” The learned trial Court on the basis of evidence produced on record decided issue Nos.1 and 2 in favour of the plaintiff-respondent and held that the defendants had entered into an agreement to sell dated 22nd April, 1999 and had also received a sum of Rs.1 lac as earnest money. It was also held that the plaintiff was ready and willing to perform his part of contract. Issue Nos.4 and 6 were decided against the defendant-appellants, Issue Nos.3 and 5 were not pressed and therefore, decided against the defendants. Consequently, the suit was decreed. In appeal, the findings of fact recorded by the learned trial Court stand affirmed by the learned lower Appellate Court. Learned counsel for the appellants raised the following substantial question of law for consideration in this appeal:- Whether in the facts and circumstances of the case, it was equitable for the Courts below to have granted a decree for specific performance instead of decreeing the suit for recovery along with damages and interest? Learned counsel for the appellants in support of substantial question of law as framed, contended that the appellants never agreed to sell the house as it is the only house owned by the appellants, wherein 10 RSA No.1552 of 2008(O&M) - 4 - members are living and therefore the learned Court below should not have granted the decree for specific performance, rather plaintiff- respondent should have been granted decree for recovery of earnest money along with damages as it is a case of hardship. In support of his contention, the learned counsel for the appellants placed reliance on the judgment of Hon'ble Supreme Court in the case of Bal Krishan and another v. Bhagwan Das (dead) and others-2008(2) RCR (Civil) 732, wherein the Hon'ble Supreme Court has pleased to lay down as under :- “8. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as “the Act”) corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c ) of Section 16 further makes it clear that plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance of the requirement of Section 16(c ) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by RSA No.1552 of 2008(O&M) - 5 - him from the institution of the suit till it is culminated into decree of the court. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.” However on consideration of the matter, I find no merit in the contentions raised by the learned counsel for the appellants. In this case the factum of execution of agreement to sell has not been denied, nor defendant-appellants disputed the fact that the plaintiff-respondent was willing and still willing to perform his part of contract. The plea of hardship to invoke Section 20 of Specific Relief Act was not taken before the learned Courts below and has been raised for the first time before this Court. There is no nothing on record to support the contention now sought to be raised that the decree for specific performance would RSA No.1552 of 2008(O&M) - 6 - not be equitable. It is settled law that agreement to sell immovable property is to be specifically enforced as the payment of damages cannot be said to be adequate compensation for breach of the said contract. No case for grant adequate compensation has been made out, so as to deny the relief of specific performance. The substantial question of law framed is answered against the appellants. No merit. Dismissed. (VINOD K. SHARMA) JUDGE 13.02.2009 sanjeev