R.S.A.No. 130 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 130 of 2010 (O&M) Date of decision: 3.2.2011 Baljinder Kaur ......Appellant Versus Kamlesh Dutta and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sarju Puri, Advocate for the appellant. **** SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of the agreement to sell. The case of the plaintiff, in brief, was that the defendant was owner of the property in dispute and had executed an agreement to sell in favour of the plaintiff on 11.2.2003 qua the suit property for a consideration of ` 6,50,000/-. ` 4,50,000/- had been received by R.S.A.No. 130 of 2010 (O&M) 2 the defendant towards earnest money. The sale deed was to be executed on 15.12.2003. It was further agreed that the defendant would get the sale deed released from Jammu and Kashmir Bank, Mandi Gobindgarh and thereafter, she would execute the sale deed in favour of the plaintiff. The plaintiff appeared before the Sub Registrar, Khanna on the stipulated date for execution of the sale deed but defendant had failed to appear. Defendant, in his written statement, denied the execution of the agreement to sell in question. It was averred that the alleged agreement was a result of fraud. The defendant had taken a loan of ` 4,00,000/- from the plaintiff on 11.2.2003. At that time signatures of the defendant were obtained on blank stamp papers. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant executed agreement to sell dated 11.2.2003 in favour of the plaintiff? OPP. 2. Whether the plaintiff was always ready and willing to perform his part of the contract? OPP 3. Whether the plaintiff is entitled to specific performance of agreement to sell dated 11.2.2003? OPP 4.Whether the plaintiff is entitled to permanent injunction, as prayed for? OPP 5. Whether agreement to sell dated 11.2.2003 is result of fraud played upon the defendant ? OPD 6. Whether signatures of defendant were obtained on R.S.A.No. 130 of 2010 (O&M) 3 blank papers as security for loan amount obtained by the defendant from plaintiff, if so, its effect ? OPD 7. Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 29.10.2007. Aggrieved by the same, defendant preferred an appeal and the same was dismissed vide judgment and decree dated 18.3.2009 passed by District Judge, Ludhiana. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that the Courts below had erred in decreeing the suit of the plaintiff. The alleged agreement to sell was a result of fraud. Great hardship had been caused to the appellant. In support of his arguments, learned counsel has placed reliance on Kanshi Ram vs. Om Parkash Jawal and others 1996(1) Apex Court Journal 402 (SC), wherein, in para 5, it was held as under:- “Having regards to the facts of this case and the arguments addressed by the learned counsel, the question that arises for consideration is: whether it would be just, fair and equitable to grant the decree for specific performance? It is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a R.S.A.No. 130 of 2010 (O&M) 4 contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. Considered from this perspective, in view of the fact that the respondent himself had claimed alternative relief for damages, we think that the courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance which would be unrealistic and unfair. Under these circumstances, we hold that the decree for specific performance is inequitable and unjust to the appellant.” Learned counsel has further placed reliance A.C. Arulappan vs. Smt.Ahalya Naik 2001 (4) RCR (Civil) 109, wherein, in para 7, it was held as under:- “The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but his discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20 (2) of the Specific Relief Act, 1963 as to under R.S.A.No. 130 of 2010 (O&M) 5 what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff.” Learned counsel has next placed reliance on M.Meenakshi and others vs. Metadin Agarwal (D) by legal representatives and others 2006 (4) Civil Court Cases 267 (SC), wherein, in para 38, it was held as under:- “Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform R.S.A.No. 130 of 2010 (O&M) 6 their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katial and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. and Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted.” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. R.S.A.No. 130 of 2010 (O&M) 7 The suit was filed by Dharam Pal for possession by way of specific performance of agreement to sell dated 11.2.2003. The plaintiff, however, died during the pendency of the suit and his regal representatives were brought on record. In order to prove their case, wife of the deceased -plaintiff appeared in the witness box as PW-2. The legal representatives of the deceased- plaintiff examined PW-1 Rameshwar Prashad, attesting witness of agreement to sell. The said witness deposed qua the due execution of the agreement to sell. The defendant, on the other hand, had failed to establish her plea of fraud qua execution of agreement to sell. PW-2 Kamlesh Dutta also proved on record affidavit Ex.P-2 dated 15.12.2003 sworn by her deceased husband before the Sub Registrar Khanna to establish that he had remained present in the office of the Sub Registrar on the stipulated date for execution of the sale deed. The present case cannot be described to be a case of hardship. The total sale consideration in the present case was ` 6,50,000/- and out of the said consideration ` 4,50,000/- had been paid by the plaintiff towards earnest money at the time of execution of the agreement to sell. Even otherwise learned counsel has failed to convince me that the appellant would suffer hardship in case the specific performance of agreement to sell in question is upheld. The judgments relied upon by learned counsel for the appellant fail to advance the case of the appellant as these are based on different R.S.A.No. 130 of 2010 (O&M) 8 facts. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 03, 2011 anita