1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 339/2005 ( Smt.Kausalyabai wd/o Doma Khangar & 5 others VERSUS Laxman Narayan Deotale ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri De, counsel for the appellant. Shri Choube, counsel for the respondent. CORAM : Smt. Vasanti A. Naik, J. DATE : 6 th September, 2007. Heard the learned counsel for the parties. The appellants are the original defendants. A suit was filed by the plaintiff for specific performance of contract of sale of suit property. It was the case of the plaintiff that one Doma was the owner of field survey no.19 admeasuring 1.50 Hectares and had entered into an agreement of sale with the plaintiff to sell the suit land for a consideration of Rs.20,000/-. The agreement was executed on 09.03.1992 and the sale deed was to be executed on or before 15.04.1993. However, prior to the date of the execution of the sale-deed i.e. 15.04.1993, Doma died. It is the case of the plaintiff that during the lifetime of Doma and after the death 2 of Doma, the plaintiff continuously approached Doma and his legal heirs seeking the execution of the sale- deed in respect of the suit property. Doma during his lifetime and his legal heirs, however, did not execute sale-deed in favour of the plaintiff, and therefore, the plaintiff filed a suit for specific performance of contract. It was pleaded by the plaintiff that the plaintiff was ever ready and willing to perform his part of the contract but, the defendants had failed to perform their part. In the alternative, the plaintiff claimed the refund of the earnest amount with interest @ 2% per month. The defendants resisted the claim of the plaintiff by filing the written statement and pleaded that the plaintiff was a money lender and since deceased Doma was in need of money, he taken a loan of Rs.4,000/- from the plaintiff which was repayable with interest @ 25% per annum. It was further pleaded by the defendants that Doma Khangar was a rich cultivator and he had no reason to sell the field to the plaintiff. The defendants also 3 pleaded that though the plaintiff had agreed to pay an amount of Rs.4,000/- to Doma, the same was not paid and the plaintiff had got written a document dated 09.03.1992 towards security of the loan and obtained the signatures of Doma. In fact, the defendants pleaded that there was no contract of sale executed between the parties and the plaintiff was trying to take an undue advantage of the document which was signed by Doma. On the rival pleadings of the parties, the trial Court framed the issues and held that the plaintiff had proved that deceased Doma had agreed to sell the suit land to the plaintiff for an amount of Rs. 20,000/- by an agreement dated 09.03.1992. The Court further held that Doma had received earnest amount of Rs.17,800/- on 09.03.1992 from the plaintiff. The Court then held that the sale-deed was agreed to be executed on or before 15.04.1993 and the plaintiff had further succeeded in proving that he was ready and willing to perform his part of the contract but, the defendants had failed to perform 4 their part. The Court lastly held that the plaintiff was entitled for grant of a decree for specific performance of contract, and therefore, decreed the suit filed by the plaintiff with costs. The defendants were directed to execute the sale-deed within a period of three months on receiving the balance consideration. The judgment passed by the trial Court was challenged by the defendants in appeal. The first appellate Court, however, after reappreciating the evidence tendered by the parties on record, confirmed the findings recorded by the trial Court and held that the trial Court was justified in granting a decree for specific performance of contract in favour of the plaintiff. Both the judgments are challenged in this second appeal. Shri A.K. De, the learned counsel for the appellant, submitted that both the Courts committed a serious error in not considering the provisions of Section 20 of the Specific Relief Act and not considering the aspect as to whether it was necessary and lawful to grant a decree for specific 5 performance of contract in favour of the plaintiff. It was submitted on behalf of the appellant that the Court failed to exercise the discretion as is required to be exercised in view of the provisions of Section 20 of the Specific Relief Act, 1963. According to the counsel for the appellant, the Courts failed to consider the provisions of Section 20(2) of the Specific Relief Act and though the trial Court, had framed an issue on the question as to whether the plaintiff was entitled to a decree for specific performance of contract, it had not rendered any reasons while recording a finding on the same. It was submitted by the learned counsel for the appellant that the first appellate Court had not even raised a point for determining as to whether the discretion could be exercised in favour of the plaintiff before granting a decree for specific performance of contract in his favour. The counsel for the appellant lastly argued that the plaintiff was not entitled to grant of a decree for specific performance of contract as the plaintiff had not sought a decree for 6 possession and a relief not sought under Section 22 of the Specific Relief Act could not have been granted in favour of the plaintiff. According to the counsel for the appellant, since the relief of possession was not sought, the suit filed by the plaintiff for specific performance of contract was liable to be dismissed. The counsel for the appellant then relied on the cases reported in 2005(7) SCC 60, AIR 1987 SC 2328 and AIR 1990 Kerala 177 to substantiate the aforesaid submissions. Shri Choube, the learned counsel for the respondent, on the other hand, supported the judgments passed by both the Courts and submitted that none of the submissions raised on behalf of the appellants give rise to any substantial question of law as the plaintiff had proved that there was a valid agreement of sale executed by the parties and the plaintiff had paid the earnest amount and was ready and willing to perform his part of contract. According to the learned counsel for the respondent, the Courts have clearly recorded a finding of fact that the 7 defendants had failed to perform their part of the contract and the suit was rightly decreed. I have perused the judgments passed by the two Courts. It is worthwhile to note that though the plaintiff had examined himself and also had examined three other persons who also included the attesting witnesses to the agreement dated 09.03.1992, the defendants had failed to enter the witness box. The defendants also did not produce any documentary evidence on record to disprove the case of the plaintiff or to show that the defendants would suffer comparative hardship. The defendants, in effect, had pleaded in their pleadings that Doma was a rich man and could not have agreed to sell the suit property to the plaintiff. The defendants had then also pleaded that Doma was in need of money, and therefore, had sought an amount of Rs.4,000/- from the plaintiff. Both the Courts have considered the evidence of the plaintiff as well as the three witnesses examined on behalf of the plaintiff. The Courts have also considered the fact that the 8 defendant had failed to produce any evidence to rebut the case of the plaintiff. The Courts have not lost sight of the fact that it was the plaintiff who has to prove the case, and therefore, on the basis of voluminous evidence produced by the plaintiff on record, they held that the plaintiff had succeeded in proving the agreement of sale dated 09.03.1992 and the fact that he had paid an earnest amount of Rs. 17,800/- towards the purchase price. The Courts recorded a concurrent finding of fact that the plaintiff was ready and willing to perform his part of contract and the defendants had failed to perform their part. In view of these categorical findings and in view that the defendants have failed to enter the witness box or to produce any other evidence on record to show that the conduct of the plaintiff was such that he was disentitled from seeking the relief of specific performance of contract or that comparative hardship would be caused to the defendants if the decree for specific performance of contract was passed. The Courts rightly did not consider those questions. The 9 defendants had also not brought anything before the Court to show that it would be inequitable to grant a decree of specific performance of contract in favour of the plaintiff. The Courts had no occasion to consider the provisions of sub Section 2 of Section 20 of the Specific Relief Act as the defendants had not brought anything on record for invoking the provisions of Clause a, b & c of sub Section 2 of Section 20. Thus, in the facts and circumstances of the case, the Courts rightly considered the fact there was a valid agreement of sale executed between the parties, the defendants had failed to prove that the documents dated 09.03.1992 was reflected a loan transaction, the plaintiff had further proved that the considerable amount was paid towards earnest money and the plaintiff was ready and willing to perform his part of the contract, to grant a decree in favour of the plaintiff. The discretion under provisions of Section 20 of the Specific Relief Act, 1963 has rightly been exercised by the trial Court. In the facts and 10 circumstances of the case, it cannot be said that the discretion exercised by the trial Court was not based on sound judicial principles which are laid down from time to time. It also cannot be said that it was further necessary for the first appellate Court to frame a point of determination on the question as to whether the discretion has been exercised by the trial Court rightly or not. The first appellate Court was justified in framing five points for determination which elaborately dealt with all the issues and the first appellate Court was justified in coming to a conclusion that the trial Court had rightly exercised the discretion in favour of the plaintiff and decreed the suit of the plaintiff. As rightly held by the first appellate Court, a decree of specific performance of contract cannot be denied to the plaintiff merely because he has not sought the possession of the suit property from the defendants. Absence of prayer for possession would not non suit the plaintiff in claiming a decree for specific performance of contract. The first appellate 11 Court has rightly recorded the reasons in paragraph 18 of the judgment to hold that failure on the part of the plaintiff to take leave of the Court to sue afterwards for possession would not be a ground for denying the relief of specific performance of contract to the plaintiff. The aforesaid reported judgments which are relied on by the counsel for the appellant cannot be applied to the facts of the case. They merely lay down the general principles which are to be followed by the Courts while considering the cases seeking specific performance of contract of sale. These are the broad general principles which are to be followed by the Courts and the applicability of these principles would depend on the facts of each case. As already pointed out, the defendant had failed to enter the witness box and had also not produced any evidence on record to show that the plaintiff was seeking any unfair advantage or the hardship caused to the defendants would be more than that which would be caused to the plaintiff if the relief of specific 12 performance of contract was granted. In the facts and circumstances of the case, it is clear that no substantial question of law arises for consideration in this second appeal. For the reasons aforesaid, the second appeal is dismissed with no order as to costs. JUDGE APTE