^ HI^H CGURT OF CHHATTIS^ARH ^T BILASPUR First ADpeal No. 1407 2003 Chetan Bharti \/s. PremSa! Dewangan Post for Judgment: 10.04.2007 Sd/- Dilip Raosaheb Deshmukh Judge 10.04,2007 HI^H COURT OF CHHATTIS©ARHAT BILASPUR Before: Hon'ble Shri Justic®Dilip Raosaheb Deshmukh Y. : APPELLANT &EFENDANT RESPON&ENT PLAINTEFF First ApDeal No. 140/2006 Chetan Bharti, son of Shri Sukalchand Bharthari, aged about . 46 years, Constable, R/o Mamta Nagar, Tulsipur, Tahsil and bistrict Rajnandgaon (€.(?.) Versus Prembl Dewangan, aged about 43 years, son of Shri Babuial Gewcxngon, Proprietor - Dewangan ^eneral Store, Mamta Nagar, Tulsipur, Tahsil and District RGjnand^<}pp Shri Abhishek Verma, Counsel for the oppellant/defendant. Shri V,K.Sharma, Counsel for the respondent/plaintiff JU &6MENT (Delivered on this (ofk day of April, 2007) This appeal is directed against the judgment and decree dated 3.7.2006 passed by 1 Additional District Judge. Rajnandgaon in Ciyil Suit No, 48-A of 2003 whereby while refusing to grant a decree for specific performance of contract dated 3.9.2002 in favour of the respondent/plaintiff, Jt ordered refund of advance of Rs,70,000/- to the respondent/plaintiff which included interest of fts,6,300/- and costs of goods purchased worth Rs,3,700/- by the clefendant on credit from the plGintiff- ^z ^- 2. The respondent/plaintiff filed a Civii Suit No. 48-A of 2003 for specific performance of contract dated 3.9.2002 for saSe of the suit house by the defendsint It wos aiteged that on 3.9.2002 the defendoont agreed to set! the suit hou^ to the pjaintiff and recewed an advance of Rs.60,000/-. The Ekrarnama was executed by the respondent/defendont acknowjedging receipt of Rs-60,000/-B. It was mentioned in the agreement that if the appeilant/defendoint cou!d not make arrangement for money within next 15 months, he wouSd refund the amount of Rs.60,000/- to the respondent/ptaintEff. The pbintiff prayed for a decree for speclfic performoince of contract cnd in the aJternative prayed for refund of advance of Rs.60,000/- with inter^st of Rs.6,300/- thereon and also the amount of Rs.S/ZOOA towards artic?es purchased on credit by the defendcint from the shop of the ptaintiff. 3. The appeSbnt/defendant whi!e denying the claim in tofopleaded that he did not receive ony amount from the respondent/plaintiff and also did not execute any Ekrarnama. 4. On the basis of the wholty unrebutied evidence led by the pjaintiff, the learned trial Judge recorded a finding that the execution of the Ekrarnamab^/ the defendant on 3.9.2002 cnd receipt of Rs.60,000/ - frorn the piaintiff by the defendant, as aSso purchase of articles worth Rs3,700/» on credit by the defendant from the pSaintsff was proved, However, cn the basis of the clear endorsement in the agreement dated 3.9.2002 that if the defendant could not arrange for money within 15 montiis, he would refund the amount of Rs.60,000/- to the plaintiff, the !ower Court came to the conciusion Ifiat the transaction between the parties was a loan transaction and /^\ 33 on fnis ground refused to grant specific performance of the contract while granting a decree in favour of the piaintiff for refund of consideration of Rs<60,000/CT with interest Rs-6,300/- and the amount of Rs.3,700/- towards cost of articles purchased by the defendcnt on credit. 5, The respondent/pSaintiff dld not prefer any appeal against the judgment and decree passed by the Court below\ 6. Jhe onSy ground urged by the iearned counsei for the appeKant/defendant in this appeat is that once the Court came to the conclusion that the defendoint had not agreed to sel! tiie suit house to 1+ie plaintiff for a consideration of Rs.70,000/- on 3.9.2002 and the transaction between the parties was a loan transactlon, It had no jurisdiction to order refund of Rs.70,000/- to the plaintiff from the defendant. On the other hwid, the learned counsel for the respondent/piaintiff argued In support of 1+ie Impugned judgment and decree whiie ptacing reliance on Si/m^/? ChQndra v\ ^tya NarayaH (1) M.P.H.T 238 wheretn under similar circumstauices refund of advance paid by the pSaintsff to the defendant was held to be justified. 7. Having heard the rival contentions, I am of the consiaered opinion that this oppeal has no merit and is Siable to be dismis^d, The evidence Sed by the respondent/pbintiff regarding execution of the agreement datcd 3.9.2002 by the defendo^it wid receipt of an amount of Rs.60,000/- as also purchase of articSes worth 3,700/- on credit was whoSSy unrebufted since the ^itrsesses were not cross-examined by the defendant. Ttie execution of 1+ie Ekrarnama Ex.P.l by the @ \.. defendont and the receipt of Rs.60,000/- as aiso goods worth Rs.3,700/" on credit by the defendant was thus fully established. The only fact which wesghed heavity witfi the lower Court in refusing to grant specific performance of contract the endorsement at the bottom of the Ekrarnama, whlch \s as under: ^ ^Tff 15 TRW W w^i f^pff w ^m ^ ^jjf^. ^ff 3?9^ ^^ ^ -^^ ^- ^qr^T ^? ^T c^ 9g' 60,000/- w. ^ ?45? y^at/^d' ^fr ^ ^]rRT ^? ^ i37^ (?W7' V^ ^^STHiW ^N ^f^f ^t 'fftW (7®rWjJIW^f ^TT f' 8. The Court beiow he!d that fne above note cleariy revealed that in fact an amount of Rs.60,000/- was advanced by the pSaintiff to the defendant which was to be refunded within a period of 15 months cmd in fact there was no controct for of the suit house. In this rnanner, although the Court came to the concSusion that the defendaint had executed fne agreement ExPl which had the recital of of suit house for Rs,70,000/w and had received the amount of Rs.60,000/-a from the pSaintiff and further that the defendont had atso purchased articies worti8'! Rs3,700/- from the pSaintiff on credit, it was who!!y justified in refusSng to grant specific performance of the contract on the basis of the recitaS in the footnote of Ex.P.l and granting a decree only for refund of Rs.60,000/- along with interest cialmed ie. Rs*6/300/~ and the cost of articSes purchased on credit by the pbintiff i.e. Rs.SJOO/- in total Rs.70,000/-. 9. Section 20 of the Specific Relief Act reads as under: "20. Discratjon as to deereesns spsejfjc performanc®.— (1) The jurisdictjon to decree specific performcrsce Is discretionary, and the court is not bound to grant ajch relief merety because it Is hwfu! to do so; but the discretion of the court ss not arbjtrary but sound and reasonable, guided by judicial principles and capable of correction by a court of dppeal. (2) TTie foSIowing are cases in which the court may properiy exercise djscretion not to decree speclfic performance:-— (a) where the terms of the contract or the conduct of the parties at the time of enterjng into the contract or the other circumstance^ under which t?ie contract was entered into are such that the contract, though not voidabie, gives the piaintiff an unfdr advantage over the defendant; or (b) where the performance of the contract wou!d invoJve some hardship on 1+ie defendant whlch he did not foresee, whereas it non-performance would involve no such hardship on the phintiff; or (c) where the defendant entered into the contract under circumstanc^s which thoygh not rendering the contract yoidable, makes it jnequitable to enforce specific performance. Explanation L— inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nalure, shajl not be deemed to constitute an unfair advantage within the meonin9 of clause (a) or hardship within the meaning of clause (b). EMp/anaffon 2.— The question whether the performance of a contract would Involve hardshlp on 1+ie defendont within the meaning of cbuse (b) shall, except in where the hardship has resulted from any act of the ptejntiff sub^querit to the contract, be determjned with reference to the circumstances existin9 at th©time of the contract, (3) The court may properiy exercise discretion to decree specjfic performance in any where the 6 plaintiff has done substcuitiai acts or suffered losses in consequenc^ of a contract copabte of specifjc performonce. (4) The court shali not refu^ to ony party specific performance of a contract nierely on 1+ie ground that the contract is not enforceable at the instance of the party, Gront of relief for specific performance of contract is thus whoISy discretionary. In the facts and circumstonces, ciause (c) of ajb-section (2) of Section 20 gets att-mcted and the Court below was whoiiy' justified in refusing to grant the relief for specific performance of contract dated 3.9.2002. 10, Section 22 of the Specific Relief act reads as under: 22. Power t®grant r@3i©f for possesslon, part'ltion, refund ®f®am@st mot^y @tc.—(1) Notwithstanding anythin9 to the contrary contained in the Code of CiviJ Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable propert^ may, in an appropriate case, cxsk for— (a) possession, or partition and separate possession, of the property, in addition such performance; or (b) ony other relief to which he may be entitled, jncluding the refund of any earnest money or deposit paid or [made by] him, in cose. his claim for specific performance is refused. (2) No relief under ciGuse (a) or clause (b) of syb- ssction (1) shalj be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plalnt, the court shall, at any stage of the proceeding, allow him to amend the ploint on such terms as msy be just for includi'ng a cSaim for such retief. @ (3) The power of the court to grant relief under clau^ (b) of sub-^ction (1) shall be without pr^judice to its powers to award compensation under section 21. 11. Once Ifie execution of Ekrarnama by the defendant and the receipt of amount of Rs,60,GOO/- towards adv<mce by the defendoint from the piaintiff was proved, the Court had jurisdiction to order refund of the money paid by the pbintiff to the defendant under Section 22 (1) (b) of the Specific Reiief Act, 1963. It is to be noticed that the plaintiff had also prayed for the reiief of fne refund of Rs.70,000/- from the defendouit in the piaint. In this manner, instead of driving the ptaintiff to file anolfier suit, the Court below had jurisdiction to grant the relief of refund of amount paid by the pSaintiff to tfie defendant at the time of executjon of the document Ex.P.l, under subaac!ause (2) of Section 22 of the Specific Relief Act and aiso for the cost of Rs.3,700/- towards articles purchased by the defendant from the piaintiff on credit, 12. In the resuSt, there is no merit in this apped which is accordingly dismissed. There sha!l be no order as to costs. Sd/- Dilip Raosaheb Deshmukh Judge AVI^^