PARSWANATH SAHA versus BANDHANA MODAK (DAS) AND ANR.
[2024] 12 S.C.R. 1186, Supreme Court of India, 2024
Outcome: Disposed off
Segment: Issues
[2024] 12 S.C.R. 1186 : 2024 INSC 1022
Parswanath Saha
v.
Bandhana Modak (Das) and Anr.
(Civil Appeal No. 14804 of 2024)
20 December 2024
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Whether the High Court committed any error in passing the 
impugned judgment setting aside the decree of specific performance 
passed by the Trial Court in favour of the plaintiff-appellant.
Headnotes†
Specific Relief Act, 1963 – s.20, prior to the 2018 Amendment – 
Discretion as to decreeing specific performance – Agreement 
of Sale was executed by the predecessor of the defendants-
respondents (husband of respondent no.1 and father of 
respondent no.2) in favour of the plaintiff-appellant however, 
he died before the execution of the Sale deed – Defendants 
declined to execute the Sale Deed – Decree of specific 
performance passed by Trial Court in favour of the plaintiff – 
Decree set aside by High Court holding that the predecessor 
of the defendants was unable to foresee the hardship that 
would be caused to him and the family at the time when he 
executed the Agreement of Sale w.r.t the suit property and the 
defendants were able to establish that except the suit property 
they did not have any other property and if they had to part 
with it that would cause hardship to them – Correctness:
Held: Not correct– High Court erred in taking the view that the 
plaintiff was not entitled to the decree for specific performance 
as it would cause hardship to the defendants – It
overlooked the 
fact that the question of hardship in terms of Section 20(2)(b) r/w 
explanation (2) bears reference to hardship, which the defendant did 
not foresee at the time of entering into the contract – The issue of 
hardship would come into play only if it was established by cogent 
evidence that predecessor of the defendants who executed the 
Agreement of Sale was unable to foresee the hardship at the time 
* Author
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Parswanath Saha v. Bandhana Modak (Das) and Anr.
of entering into the contract – The explanation elucidates the point 
of time at which the hardship has to be determined with reference 
to the circumstances existing at the time of the contract, except 
where the hardship has been caused from an act of the plaintiff 
subsequent to the contract – Nothing in the pleadings or evidence 
shows that there was a hardship of the kind which the predecessor 
of the defendants did not foresee at the time he executed the 
Agreement of Sale or that the hardship which the defendants would 
face is the result of an act of the plaintiff based on his supervening 
acts – Defendants brought nothing on record to show that the 
suit property was the only shelter available to them – In fact, the 
evidence on record shows that the predecessor of the defendants 
was not getting along well with them and the defendants were 
residing separately – It was only when he passed away that the 
defendants tried to take over the suit property – Impugned order 
set aside, decree of the Trial Court restored with modification as 
stated. [Paras 33-36, 43]
Specific Relief Act, 1963 – s.20, prior to the 2018 Amendment – 
Discretion as to decreeing specific performance – Refusal 
to decree specific performance on the ground of ‘hardship’:
Held: The jurisdiction to decree specific performance is 
discretionary – The discretion is not arbitrary but is “sound and 
reasonable”, to be “guided by
judicial principles” – The exercise 
of discretion is capable of being corrected by a court of appeal 
in the hierarchy of appellate courts – Sub-section (2) of Section 
20 contains a stipulation of those cases where the court may 
exercise its discretion not to grant specific performance – Section 
20 as it stood prior to the 2018 Amendment shows as to under 
what circumstances ‘hardship’ can be taken into consideration in 
refusing specific performance – It is not possible to enumerate 
the different circumstances which constitute a hardship and the 
question of hardship will have to be adjudged in the facts and 
circumstances of the case. [Paras 27, 28]
Words and Phrases – “mere” – Specific Relief Act, 1963 – 
ss.20(4), 20(2)(a)-(c) – Explanations – Discussed. [ Paras 8, 29]
Case Law Cited
K. Narendra v. Riviera Apartments (P) Ltd. [1999] 3 SCR 777 : 
(1999) 5 SCC 77; Nirmala Anand v. Advent Corpn. (P) Ltd. & Ors.
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[2002] Supp. 2 SCR 706 : (2002) 8 SCC 146; K. Prakash v. B.R. 
Sampath Kumar [2014] 13 SCR 702 : (2015) 1 SCC 597; Nanjappan 
v. Ramasamy & Anr [2015] 2 SCR 606 : (2015) 14 SCC 341; 
Ferrodous Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead) & Ors., 2020 
INSC 586 : [2020] 13 SCR 673; Sanghi Bros (Indore) Pvt. Ltd. v. 
Kamlendra Singh, 2023 SCC OnLine Del 5528; Jayakantham & 
Ors. v. Abhaykumar [2017] 2 SCR 355 : (2017) 5 SCC 178; Kamal 
Kumar v. Prem Lata Joshi and Ors. [2019] 1 SCR 54 : (2019) 3 
SCC 704; Shenbagam and Ors. v. K. K. Rathinavel (1969) 2 SCC 
539; Ouseph Varghese v. Josph Aley [1970] 1 SCR 921 : (1969) 
2 SCC 539; G.W. Davis v. Maung Shwe Go, 1911 SCC OnLine 
PC 25; Prakash Chandra v. Narayan [2012] 5 SCR 444 : (2012) 
5 SCC 403 – referred to.
Books and Periodicals Cited
Chitty on Contracts (27th Edn., 1994, Vol. 1., at p. 1296).
List of Acts
Specific Relief Act, 1963.
List of Keywords
Section 20 of the Specific Relief Act, 1963; Prior to the 2018 
Amendment; Decree of specific performance; Hardship; Refusing 
specific performance/Refusal of specific performance of the 
contract; Act of the plaintiff subsequent to the contract; Agreement 
of Sale; Sale Deed; Predecessor of the defendants; Residing 
separately; Hierarchy of appellate courts; Discretion not to grant 
specific performance; Court of appeal.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14804 of 
2024
From the Judgment and Order dated
29.07.2022 of the High Court 
of Tripura at Agartala in RFA No. 28 of 2019
Appearances for Parties
Pijush Kanti Roy, Sr. Adv., Mrs. Kakali Roy, Rajan K. Chourasia, 
Advs. for the Appellant.
Ajit Pravin Wagh, Advs. for the Respondents.
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Parswanath Saha v. Bandhana Modak (Das) and Anr.
Judgment/Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1.	
Leave granted.
2.	
This appeal arises from the judgment and order passed by the 
High Court of Tripura in Regular First Appeal No. 28 of 2019 dated 
29.07.2022 by which the High Court allowed the appeal filed by the 
respondents herein (Original Defendants) and thereby quashed and 
set aside the judgment and decree passed by the Civil Judge West 
Tripura, Agartala granting Specific Performance of Agreement of 
Sale in Title Suit No.135 of 2016 instituted by the appellant herein 
(Original Plaintiff). 
3.	
Facts giving rise to this appeal may be summarised as under:
(a)	 The appellant herein (Original Plaintiff) instituted Case No. 
T.S. 135 of 2016 in the Court of Civil Judge Senior Div. (Court 
No. 1) West Tripura, Agartala and prayed for the following reliefs: 
(i)	
A decree for declaration of the entitlement of the 
Plaintiff to get the execution, registration and 
possession of the suit land from the Defendants 
as part performance of the contract following 
the registered deed of Agreement for Sale dated 
27.05.2016. 
(ii)	
A decree for mandatory injunction directing the 
Defendants to execute and register the sale deed 
in respect of the suit land in favour of the plaintiff 
and to handover the possession of the suit land to 
the plaintiff as part performance of the contract in 
pursuance of the deed of Agreement for Sale within a
specified period failing which to execute and register 
the sale deed in respect of the suit land in favour of 
plaintiff and to hand over possession of the suit land 
to the plaintiff through the Ld. Court by enforcing the 
decree as may be passed.
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(iii)	 A decree for permanent injunction restraining the 
defendants and their agents from making any kind 
of transfer of the suit land to others or to give any 
mortgage, lease, etc of the suit land till disposal of 
the present suit.
(b)	 It appears from the materials on record that the husband of 
the respondent no. 1 herein and father of the respondent no. 2 
herein namely Late Prabha Ranjan Das was the lawful owner 
of the suit property. 
(c)	
The appellant herein entered into a registered Agreement of 
Sale dated 27.05.2016 with respect to the suit property. The 
total sale consideration fixed was of Rs. 17,50,000.00 (Rupees 
Seventeen Lakh Fifty Thousand only). An amount of Rs. 
4,00,000.00 (Rupees Four Lakh only) was paid to Late Prabha 
Ranjan Das by the appellant herein towards earnest money. 
(d)	 Prabha Ranjan Das passed away on 05.07.2016 leaving behind 
the respondents (Original Defendants) as his lawful heirs. 
(e)	 The appellant herein called upon the respondents herein to 
execute the Sale Deed in accordance with the terms of the 
Agreement of Sale dated 27.05.2016 duly executed by Prabha 
Ranjan Das. 
(f)	
The respondents herein declined to execute the Sale Deed. In 
such circumstances, the appellant herein was left with no other 
option but to institute the suit, seeking specific performance of 
the contract. 
(g)	 In the suit, the Trial Court framed the following issues: 
(i)	
Is the suit maintainable in its
present form and nature?
(ii)	
Has the plaintiff any cause of action to institute the 
instant suit?
(iii)	 Has the plaintiff entered into a registered agreement 
for sale dated 27.05.2016 with Prabha Ranjan Das 
(predecessor of the defendants) to purchase the 
suit land?
(iv)	 Are the averments available in the plaint in respect of 
readiness and willingness to perform the part of the
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Parswanath Saha v. Bandhana Modak (Das) and Anr.
contract in its true construction sufficient to enforce 
specific performance as prayed for?
(v)	
Is the plaintiff entitled to get a registered sale deed 
in terms of agreement for sale?
(vi)	 Is the plaintiff entitled to get a decree as prayed for?
(vii)	 What other relief / reliefs the plaintiff is entitled to?
(h)	 The suit ultimately came to be allowed in favour of the appellant 
herein vide judgment and decree dated 20.11.2018. The 
operative part of the order passed by the Trial Court reads thus: 
“In the result, the suit is decreed with cost in favour 
of the plaintiff with following directions: 
(a) the defendant No. 1 Smt. Bandana Modak (Das) 
shall execute a Registered Deed of Sale on behalf of 
herself and also being the guardian on behalf of her 
minor son i.e. defendant No. 2 Master Diptanu Das 
in favour of the plaintiff Shri Parswanath Saha for the 
suit land measuring 1 ganda 1 kara of land alongwith 
building thereon measuring 529 sq.ft appertaining 
to Khatian No.347 having R.S. Plot No.151 within a 
period of forty five days from the date of drawing up 
of decree failing which the plaintiff will be entitled to 
get the Sale Deed be executed through this Court 
as per law subject to payment of rest consideration 
amount of Rs.13,50,000/- (thirteen lac fifty thousand) 
only by the plaintiff to the defendants; 
(b) the defendants shall hand over the possession of 
the suit land to the
plaintiff immediately after execution 
of the above mentioned Sale Deed along with all the 
documents of title relating to the suit property which 
are in the defendants’ possession or power. 
Prepare decree accordingly.
Sheristadar of my Court is hereby directed to prepare 
the decree in the light of my above judgment and to 
place it before me for my signatures within 15 (fifteen) 
days from the date of passing of this judgment.
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Make necessary entry in the Trial Register. 
Thus this case is disposed of without contest.”
(i)	
The respondents herein (Original Defendants) went in appeal 
before the High Court. The High Court allowed the appeal 
essentially on the ground that Late Prabha Ranjan Das was 
unable to foresee the hardship that would be caused to him and 
the family at the time when he executed the Agreement of Sale 
with respect to the suit property. The High Court accepted that 
Late Prabha Ranjan Das executed the registered Agreement of 
Sale with respect to the suit property and had also accepted Rs. 
4,00,000.00 (Rupees Four Lakh only) by way of earnest money. 
However, as stated above, the High Court took the view that 
the defendants have been able to establish that except the suit 
land they do not have any other property and if they had to part 
with the suit property that would cause lot of hardship to them. 
(j)	
The High Court while allowing the First Appeal filed by the 
defendants observed as under: 
“17. Apart from the aforesaid facts, we find that the 
submission of learned senior counsel appearing on 
behalf of the plaintiff that the defendants have not 
pleaded the fact of hardship in their written statement 
is not correct. The defendants have specifically stated 
in their written statement that except the suit land 
they have no other piece of land and they require 
the suit land for their own residential purpose and 
they
cannot expect to dispose of their only piece 
of land and building standing thereon which would 
render them homeless, shelterless and roofless. This 
pleading is also supported by their evidence. Even 
from the evidence of the witnesses of the plaintiff, it is 
established that the defendant no. 1 used to reside in 
the house of her father at Beltali. The plaintiff deposing 
as PW-1 specifically stated that he along with his 
staff met with the defendant No.1 personally in the 
house of her father at Beltali, Agartala on 21.08.2016 
and told her as to whether she could obtain the said 
Survivor Certificate and the Guardianship Certificate.
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18. From such evidence of the plaintiff, there cannot 
be any doubt that the defendants had no shelter other 
than the father of the defendant no.1 and according to 
us, this admitted fact is enough to prove the hardship 
of the defendants that the defendant no.1, who along 
with her minor son would be rendered homeless and 
shelterless, if the suit for specific performance of the 
agreement of sale (Exbt.1) is decreed in favour of 
the plaintiff.” 
19. Applying the well settled principle that it is not 
always necessary to grant specific performance 
simply for the reason that it is legal to do so, we are 
of the opinion, that the case in hand is a fit case to 
exercise our discretion rejecting the plaintiffs claim 
to ask the defendants to execute the deed of sale in 
terms of Exbt.1 as decreed by learned court below. 
20. As a sequel, we hold that the plaintiff is not 
entitled to get a decree for specific performance of 
the agreement of sale (Exbt.-1) and the defendants 
are not under any obligation to execute the sale deed 
in favour of the plaintiff in the light of the agreement 
of sale (Exbt.-1). However, the plaintiff is definitely 
entitled to get refund of the earnest money, which 
he paid to late Prabha Ranjan Das, the predecessor 
of the defendants along with interest at the rate of 
8% per annum. The defendants shall refund the said 
earnest money of Rs.4,00,000 (Rupees four lakhs) 
along
with simple interest at the rate of 8% per annum 
to the plaintiff from the date of the institution of the 
suit within a period of 3(three) months from today.”
4.	
The appellant herein being dissatisfied with the impugned judgment 
and order passed by the High Court is here before this Court with 
the present appeal. 
RELEVANT PROVISIONS OF LAW
5.	
Section 20 of the Specific Relief Act, 1963 as it then stood i.e., prior 
to the 2018 amendment reads as under:
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“20. Discretion as to decreeing specific performance.-(1) 
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.
(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 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
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Parswanath Saha v. Bandhana Modak (Das) and Anr.
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 other 
party.” 
6.	
The relief of specific performance having its roots in equity, the 
Specific Relief Act, 1963, prior to its amendment has preserved 
the discretion of the Court not to grant the relief even though the 
agreement is specifically performable in law. The only fetters imposed 
by the statute on the exercise of the discretion are that the discretion 
must not be exercised arbitrarily but soundly and reasonably and 
guided by judicial principles. The phrase “capable of correction by a 
Court of appeals” has been inserted possibly to indicate the necessity 
for the Trial Court to state the reasons for exercising its discretion 
in a particular way. The circumstances when specific performance 
mentioned in the Clauses (a), (b) and (c) of Sub-section (2) of Section 
20 cannot be granted are not expressly exhaustive. They indicate 
the situations in which the Court may properly exercise discretion 
not to decree specific performance. However, certain considerations 
have been excluded as relevant factors. These are contained in 
Explanations 1 and 2 to the Section as well as in Section 20(4). 
It is to be noticed that each of these
exclusions are preceded by 
the word “mere”. The word “mere” in the context means “sole”. In 
other words, any one of those factors by itself would not justify the 
exercise of discretion against granting specific performance. The 
factors cumulatively or with other factors may form the basis of a 
decision not to grant specific performance. 
7.	
Hardship of the defendant may be one of the grounds which may 
be taken into consideration for exercising its discretion by the Court 
in refusing to grant a decree for specific performance of contract.
POSITION OF LAW
8.	
In K. Narendra v. Riviera Apartments (P) Ltd., reported in (1999) 
5 SCC 77 this Court held as under:
“29. Section 20 of the Specific Relief Act, 1963 provides 
that the jurisdiction to decree specific performance is
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discretionary and the court is not bound to grant such relief 
merely because it is lawful to do so; 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. Performance of the contract involving some 
hardship on the defendant which he did not foresee 
while non-performance involving no such hardship on 
the plaintiff, is one of the circumstances in which the 
court may properly exercise discretion not to decree 
specific performance. The doctrine of comparative 
hardship has been thus statutorily recognized in India. 
However, mere inadequacy of consideration or the 
mere fact that the contract is onerous to the defendant 
or improvident in its nature, shall not constitute an 
unfair advantage to the plaintiff over the defendant or 
unforeseeable hardship on the defendant. The principle 
underlying Section 20 has been summed up by this 
Court in Lourdu Mari David and others v. Louis Chinnaya 
Arogiaswamy and others (1996) 5 SCC 589 by stating that 
the decree for specific performance is in the discretion of 
the Court but the discretion should not be used arbitrarily; 
the discretion should be exercised on sound principles of 
law capable of correction by an appellate court.
xxx xxx xxx
35. … Possession over a meagre part of the property 
was delivered by the appellant to the respondents, not 
simultaneously with the agreement but
subsequently 
at some point of time. To that extent, the recital in the 
agreement and the averments made in the plaint filed by 
the respondents are false. On a major part of the property, 
the appellant has continued to remain in possession. 
As opposed to this, the respondents have neither 
pleaded nor brought material on record to hold that 
they have acted in such a way as to render inequitable 
the denial of specific performance and to hold that 
theirs would be a case of greater hardship over the 
hardship of the appellant. Upon an evaluation of the 
totality of the circumstances, we are of the opinion 
that the performance of the contract would involve
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such hardship on the appellant as he did not foresee 
while the non-performance would not involve such 
hardship on the respondents. The contract though 
valid at the time when it was entered, is engrossed 
into such circumstances that the performance thereof 
cannot be secured with precision. The present one is 
a case where the discretionary jurisdiction to decree the 
specific performance ought not to be exercised in favour 
of the respondents. …”
(Emphasis supplied)
9.	
In Nirmala Anand v. Advent Corpn. (P) Ltd. & Ors., reported in 
(2002) 8 SCC 146 this Court held as under: 
“6. ⁠It is true that grant of decree of specific performance 
lies in the discretion of the court and it is also well settled 
that it is not always necessary to grant specific performance 
simply for the reason that it is legal to do so. It is further 
well settled that the court in its discretion can impose any 
reasonable condition including payment of an additional 
amount by one party to the other while granting or refusing 
decree of specific performance. Whether the purchaser 
shall be directed to pay an additional amount to the seller or 
converse would depend upon the facts and circumstances 
of a case. Ordinarily, the plaintiff is not to be denied 
the relief of specific performance only on account of 
the phenomenal increase of price during the pendency 
of litigation. That may be, in a given case, one of 
the
considerations besides many others to be taken 
into consideration for refusing the decree of specific 
performance. As a general rule, it cannot be held that 
ordinarily the plaintiff cannot be allowed to have, for 
her alone, the entire benefit of phenomenal increase 
of the value of the property during the pendency of 
the litigation. While balancing the equities, one of the 
considerations to be kept in view is as to who is the 
defaulting party. It is also to be borne in mind whether 
a party is trying to take undue advantage over the 
other as also the hardship that may be caused to the 
defendant by directing specific performance. There
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may be other circumstances on which parties may not 
have any control. The totality of the circumstances is 
required to be seen.” 
(Emphasis supplied)
10.	 In K. Prakash v. B.R. Sampath Kumar, reported in (2015) 1 SCC 
597 this Court held as under: 
“18. Subsequent rise in price will not be treated as a 
hardship entailing refusal of the decree for specific 
performance. Rise in price is a normal change of 
circumstances and, therefore, on that ground a decree 
for specific performance cannot be reversed.
19. However, the court may take notice of the fact that 
there has been an increase in the price of the property 
and considering the other facts and circumstances of 
the case, this Court while granting decree for specific 
performance can impose such condition which may 
to some extent compensate the defendant-owner of 
the property …”
(Emphasis supplied)
11.	 In Nanjappan v. Ramasamy & Anr., reported in (2015) 14 SCC 
341, this Court held as under: 
“11. Under Section 20 of the Specific Relief Act, grant of 
specific performance of contract is discretionary. Though 
the decree for specific performance is discretionary, yet the 
court is not bound to grant such a 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 
of law and capable of correction by a court of appeal and 
should be properly exercised keeping in view the
settled 
principles of law as envisaged in Section 20 of the Act. 
The jurisdiction of decreeing specific performance is a 
discretion of the court and it depends upon facts and 
circumstances of each case. The court would take into 
consideration circumstances of each case, conduct 
of the parties, recitals in the sale agreement and the
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circumstances outside the contract have to be seen.
12. In Sardar Singh v. Krishna Devi [(1994) 4 SCC 18], 
this Court observed that as the court has to see the 
totality of the circumstances, conduct of the parties 
and respective interests under the contract while 
granting/refusing such relief.
13. First sale agreement was executed on 30.9.1987 
about twenty seven years ago. The property is situated in 
Coimbatore City and over these years, value of property 
in Coimbatore City would have considerably increased. In 
Saradamani Kandaplan vs. Rajalakshmi & Ors., (2011) 
12 SCC 18, this Court has held that the value of the 
property escalate in the urban areas very fast and it 
would not be equitable to grant specific performance 
after a lapse of long period of time. In the instant case, 
first agreement was executed on 30.9.1987 i.e. twenty 
seven years ago. In view of passage of time and 
escalation of value of the property, grant of specific 
relief of performance would give an unfair advantage 
to the respondents-plaintiffs whereas the performance 
of the contract would involve great hardship to the 
appellant-defendant and his family members.”
(Emphasis supplied)
12.	 In Ferrodous Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead) & Ors., 
reported in 2020 INSC 586, this Court held as under:
“28. … Section 20, as it then stood, makes it clear 
that the jurisdiction to decree specific performance is
discretionary; but that this discretion is not arbitrary but 
has to be exercised soundly and reasonably, guided by 
judicial principles, and capable of correction by a court of 
appeal - see section 20(1). Section 20(2) speaks of cases 
in which the court may properly exercise discretion not to 
decree specific performance. Significantly, under clause 
(a) of sub-section (2), what is to be seen is the terms 
of the contract or the conduct of the parties at the time 
of entering into the contract. Even “other circumstances 
under which the contract was entered into” refers only to
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circumstances that prevailed at the time of entering into 
the contract. It is only then that this exception kicks in - 
and this is when the plaintiff gets an unfair advantage over 
the defendant. Equally, under clause (b) of subsection 
(2), the hardship involved is again at the time of 
entering into the contract which is clear from the 
expression “which he did not foresee”. This is made 
clear beyond doubt by Explanation II of section 20 
which states that the only exception to the hardship 
principle contained in clause (b) of sub-section (2) 
is where hardship results from an act of the plaintiff 
subsequent to the contract. In this case also, the act 
cannot be an act of a third party or of the court - the 
act must only be the act of the plaintiff. Clause (c) of 
sub-section (2) again refers to the defendant entering 
into the contract under circumstances which makes it 
inequitable to enforce specific performance. Here again, 
the point of time at which this is to be judged is the time 
of entering into the contract.”
(Emphasis supplied)
13.	 In Sanghi Bros (Indore) Pvt. Ltd. v. Kamlendra Singh, reported 
in 2023 SCC OnLine Del 5528, Delhi High Court held as under: 
“101. In view of the above-mentioned judgments, it is 
apparent that the view taken by the Court is applicable 
to the instant Suit. The MOU in the instant Suit was 
executed in the year 1998. Since then, almost 25 years 
have elapsed. The performance of the
contract would 
involve considerable hardship on the parties. The same 
is being said considering that a third-party interest has 
been created to such an extent that the revocation of 
that contract would lead to an increase in hardships 
warranting unjustified litigations.
xxx xxx xxx
112. In view of the material which has been placed on 
record, it is indicated that a third-party interest has 
been created in the property against which the plaintiff 
is seeking specific performance. Such a circumstance
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makes it inequitable to grant and enforce the specific 
performance decree. The said observation is made 
to balance the interests of justice and equity for 
the parties involved. Hence, the decree for specific 
performance is not to be granted.
113. This Court is further of the view, that there will be 
undue hardship caused to the defendant as well as to 
the third party who purchased the property in dispute, 
in case the plaintiff is granted specific performance. 
Taking into consideration the facts of the case, this Court is 
of the view that the plaintiff may have been entitled to the 
relief as claimed for specific performance in the year 2004. 
However, presently, the plaintiff cannot be granted the 
relief of specific performance by this Court due to the 
defendant’s conduct of not adhering to the terms of 
the MOU entered into between him and the plaintiffs, 
creation of third-party interests and the other factors 
involved, as discussed hereinabove.”
(Emphasis supplied)
SUBMISSIONS ON BEHALF OF THE APPELLANT (ORIGINAL 
PLAINTIFF)
14.	 PW-4 Smt. Pratima Debnath who used to look after Prabha Ranjan 
Das, has in no uncertain terms deposed that the Defendants did 
not stay with Mr. Prabha Ranjan Das. The Defendants used to stay 
at Beltali, A.D Nagar, which was her parental house. According to 
PW-4, the Defendants used to come and visit Mr. Prabha Ranjan 
Das and stayed in the suit property for a
day or two. PW-4 has also 
deposed that even when Prabha Ranjan Das was ill, the Defendant 
No. 1 i.e. his wife did not bother to come and see her husband and 
the PW-4 would help him for his medical treatment. The PW-4 has 
further deposed that she was aware of the agreement of sale and 
receiving of earnest amount from the Plaintiff and was aware of the 
fact that the balance amount would be paid within 3 months and the 
sale deed would be executed and registered. 
15.	 The Trial Court vide Judgment and Order dt. 20.11.2018 has held 
that the Plaintiff is entitled to get a decree for specific performance
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of contract and accordingly decreed the suit in favour of the Plaintiff 
on 23.11.2018. The Trial Court held that:
i.	
The Defendants failed to establish that the suit property was 
mortgaged to the Agartala Co-operative Urban Bank Ltd. and 
they were not necessary parties to the suit; 
ii.	
The suit in question was filed within limitation; 
iii.	
The Registered Agreement of Sale dated 27.05.2016 was 
signed by Mr. Prabha Ranjan Das himself and the same was 
identified by PW-2 and PW-3 respectively (Attesting witnesses)
iv.	
Prabha Ranjan Das was mentally fit at the time of signing and 
registration of the Agreement of Sale. The Defendants lead no 
evidence or produced any document to their claim that Prabha 
Ranjan Das was mentally unfit to give effect to the transaction. 
v.	
Plaintiff was always ready & willing to perform his part of the 
contract.
vi.	
Defendants failed to prove that the performance of a contract 
would involve hardship on them which Prabha Ranjan Das 
had not foreseen at the time of execution of the Agreement of 
Sale. subsequent to the contract from any act of the plaintiff. 
16.	 The Trial Court after dealing with all the issues so framed, came 
to the conclusion that since the Defendants were not residing with 
deceased Prabha Ranjan Das during his lifetime, therefore, no 
hardship would be caused to the Defendants if they are asked to 
execute the sale deed in favour of the Plaintiff. 
17.	 The Trial
Court was right in holding that no hardship had resulted from 
any of the acts of the Plaintiff post execution of the contract. In the 
instant case the Defendants have failed to show any circumstance 
existing at the time of the contract that if the suit land was sold, it 
would cause hardship to them and they would become homeless. 
The Trial Court rightly decreed the suit & directed the Defendants 
to execute the registered sale deed in favor of the Plaintiff upon 
receipt of balance consideration amount of Rs. 13.50 lakhs and also 
to hand over the vacant & peaceful possession of the suit land after 
execution of the sale deed.
18.	 The High Court while setting aside the judgment and decree passed 
by the Trial Court, failed to consider Sec. 20(2)(b) of the Specific
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Relief Act, 1963 and wrongly concluded that it will cause hardship 
to the Defendants because such performance of contract would 
render the Defendants homeless being conscious of the fact that 
the defendants were residing in the parental house of Defendant 
No.1 at Beltali, A.D. Nagar, which she has mentioned and admitted 
in her examination in chief filed by way of Affidavit. 
19.	 In such circumstances referred to above, the learned counsel 
appearing for the appellant prayed that there being merit in his appeal 
the same may be allowed and the impugned judgment of the High 
Court may be set aside. 
SUBMISSIONS ON BEHALF OF THE RESPONDENTS (ORIGINAL 
DEFENDANTS)
20.	 It is not in dispute that Prabha Ranjan Das, the husband of Defendant 
no. 1 and the father of Defendant no. 2, signed the Bainapatra on 
27-05-2016 which was registered on 28-05-2016 for the sale of suit 
property (residential house), while he was ailing and he died on 
05-07-2016 and he had no other property to offer to the defendants 
to reside.
21.	 The defendants are the legal heirs of Late Prabha Ranjan Das 
(Wife and minor Son). An amount of Rs 4,00,000/- was received by 
cheque by Late Prabha Ranjan Das as advance towards the total 
sale consideration of Rs 17,50,000/-, 
22.	 In the written statement filed by the defendants, it was specifically 
pleaded that if the suit premises were to be handed over to the 
plaintiff pursuant
to the subject agreement for sale, the defendants 
would be rendered shelter-less and therefore, it was prayed that it 
was a fit case to deny the relief of specific performance. 
23.	 The Trial Court failed to frame the issue regarding the readiness and 
willingness on the part of plaintiff to perform his part of the contract. 
24.	 In support of the aforesaid submissions, the learned counsel placed 
reliance on the following decisions: 
(i)	
 Jayajantham & Ors. v. Abaykumar reported in (2017) 5 SCC 
178;
(ii)	
 Kamal Kumar v. Prem Lata Joshi and Ors. reported in (2019) 
3 SCC 704;
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(iii)	 Shenbagam and Ors. v. K. K. Rathinavel reported in (1969) 
2 SCC 539;
(iv)	  Ouseph Varghese v. Josph Aley reported in (1969) 2 SCC 539.
25.	 In such circumstances referred to above, the learned counsel prayed 
that there being no merit in this appeal the same may dismissed.
ANALYSIS
26.	 Having heard the learned counsel appearing for the parties and 
having gone through the materials on record the only question that 
falls for our consideration is whether the High Court committed any 
error in passing the impugned judgment. 
27.	 While evaluating whether specific performance ought to have been 
decreed in the present case, it would be necessary to bear in mind 
the fundamental principles of law. The court is not bound to grant 
the relief of specific performance merely because it is lawful to do 
so. Section 20(1) of the Specific Relief Act, 1963 indicates that the 
jurisdiction to decree specific performance is discretionary. Yet, the 
discretion of the court is not arbitrary but is “sound and reasonable”, 
to be “guided by judicial principles”. The exercise of discretion is 
capable of being corrected by a court of appeal in the hierarchy of 
appellate courts. Sub-section (2) of Section 20 contains a stipulation 
of those cases where the court may exercise its discretion not to grant 
specific performance. (See: Jayakantham & Ors. v. Abaykumar 
reported in (2017) 5 SCC 178.)
28.	 A perusal of Section 20 of the Specific
Relief Act, 1963 as it then 
stood would go to show as to under what circumstances ‘hardship’ 
can be taken into consideration in refusing specific performance. 
It is not possible to enumerate the different circumstances which 
constitute a hardship. It will suffice if it is noted that the question of 
hardship will have to be adjudged in the facts and circumstances of 
the case. In this connection, the observations of the Privy Council 
in the decision in G.W. Davis v. Maung Shwe Go reported in 1911 
SCC OnLine PC 25 throw light on an important aspect of the matter. 
Among other things, it is observed in the said case as under:
“In the absence of any evidence of fraud or misrepresentation 
on the part of the plaintiff which induced the defendant 
to enter into the contract, their Lordships see no reason
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to accede to the argument. The bargain is onerous, but 
there is nothing to show that it is unconscionable. The 
defendant knew all along that a lakh was the plaintiff’s 
limit; it is in evidence that he had frequently urged the 
defendant’s daughter to advise him to sell the land if he 
was getting a higher offer. It is difficult to say under the 
circumstances that he took an improper advantage of his 
position or the difficulties of the defendant.”
(Emphasis supplied)
29.	 Then again, it is necessary to remember that mere rise in price 
subsequent to the date of the contract or inadequacy of price is not 
to be treated as a hardship entailing refusal of specific performance 
of the contract. Further, the hardship involved should be one not 
foreseen by the party and should be collateral to the contract. In 
sum, it is not just one factor or two, that is relevant for consideration. 
But it is the some total on various factors which is required to enter 
into the judicial verdict.
30.	 The High Court seems to have been carried away by the fact that in 
the written statement the defendants did plead that hardship would 
be caused if they would be asked to execute the Sale Deed of the 
suit property. 
31.	 The Trial Court had not framed any issue as regards hardship that 
may be caused to the defendants. It is also pertinent to note that 
the High Court concurred with the Trial Court on all other issues
but thought fit to reverse the decree only on the ground that if the 
defendants are asked to execute the Sale Deed of the suit property, 
i.e., the residential house they would be rendered shelterless. 
32.	 In the aforesaid context, we may refer to a decision of this Court in 
Prakash Chandra v. Narayan reported in (2012) 5 SCC 403 wherein 
para 17 of the report, it has been held: 
“17. The question as to whether the grant of relief for 
specific performance will cause hardship to the defendant 
within the meaning of clause (b) of sub-section (2) of 
Section 20 of the Specific Relief Act, 1963, being a 
question of fact, the first appellate court without framing 
such an issue ought not to have reversed the finding of the
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trial court while concurring with it on all other issues with 
regard to the appellant’s entitlement to relief for specific 
performance of contract.”
33.	 Thus, in view of the aforesaid the High Court committed an error in 
taking the view that the plaintiff is not entitled to the decree for specific 
performance as the same would cause hardship to the defendants.
34.	 The High Court seems to have overlooked the fact that the question 
of hardship in terms of Section 20(2)(b) of the Act, 1963 read with 
explanation (2) bears reference to hardship, which the defendant did 
not foresee at the time of entering into the contract. In other words, 
the issue of hardship would come into play only if it is established 
by cogent evidence that Late Prabha Ranjan Das who executed the 
Agreement of Sale was unable to foresee the hardship at the time 
of entering into the contract. 
35.	 The explanation elucidates the point of time at which the hardship 
has to be determined with reference to the circumstances existing at 
the time of the contract, except where the hardship has been caused 
from an act of the plaintiff subsequent to the contract. 
36.	 There is nothing to indicate in the pleadings or evidence that there 
was a hardship of the kind which Late Prabha Ranjan Das did not 
foresee at the time he executed the Agreement of Sale or that the 
hardship which the defendants herein would face is the result of an 
act of the plaintiff
based on his supervening acts. 
37.	 This Court in K. Narendra (supra) in paras 29 and 30 held as under: 
“29. Section 20 of the Specific Relief Act, 1963 provides 
that 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; 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. Performance of the contract involving 
some hardship on the defendant which he did not foresee 
while non-performance involving no such hardship on the 
plaintiff, is one of the circumstances in which the court 
may properly exercise discretion not to decree specific 
performance. The doctrine of comparative hardship has 
been thus statutorily recognized in India. However, mere
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Parswanath Saha v. Bandhana Modak (Das) and Anr.
inadequacy of consideration or the mere fact that the 
contract is onerous to the defendant or improvident in 
its nature, shall not constitute an unfair advantage to the 
plaintiff over the defendant or unforeseeable hardship on 
the defendant. The principle underlying Section 20 has 
been summed up by this Court in Lourdu Mari David v. Louis 
Chinnaya Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 
2814] by stating that the decree for specific performance 
is in the discretion of the Court but the discretion should 
not be used arbitrarily; the discretion should be exercised 
on sound principles of law capable of correction by an 
appellate court.
30. Chitty on Contracts (27th Edn., 1994, Vol. 1., at 
p. 1296) states:
“Severe hardship may be a ground for refusing specific 
performance even though it results from circumstances 
which arise after the conclusion of the contract, which 
affect the person of the defendant rather than the subject-
matter of the contract, and for which the plaintiff is in no 
way responsible.”
38.	 It may not be out of place to state at this stage that in K. Narendra 
(supra) there is a reference with approval to Chitty on Contracts 
(27th Edn., 1994, Vol.1 at p.1296), where the passage quoted clearly 
indicates that one of the grounds for refusing specific performance, 
though they arise from circumstances post-contract, are factors which 
affect the person of the defendant
rather than the subject-matter of 
the contract, and to which the plaintiff is in no way a contributory. It 
is these personal circumstances of the defendant, which this Court 
has alluded to in the earlier part of this judgment while dwelling upon 
the issue of hardship under Section 20(2)(b) of the Specific Relief 
Act, 1963. The discretion there being wide, it is certainly not limited 
to what is illustratively mentioned in the statute. At the cost of some 
repetition, it, therefore, deserves emphasis that circumstances of the 
plaintiff also are very relevant in the exercise of discretion to grant 
specific performance, based on the parameters of hardship to the 
defendant.
39.	 Even if we go by what Chitty as said in his Book Chitty on Contracts, 
27th Ed. 1994 referred to above, there is nothing which the defendants
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have been able to bring on record that the suit property is the only 
shelter available to them. 
40.	 It appears from the evidence on record that Late Prabha Ranjan 
Das was not getting along well with his wife and son. His wife and 
son, i.e., the defendants were residing separately. It appears that 
they were residing at the parental home of the defendant No. 1. It 
is only when Prabha Ranjan Das passed away that the defendants 
tried to take over the suit property. 
41.	 The learned counsel appearing for the respondents (Original 
defendants) vehemently submitted that the Trial Court failed to 
frame any issue whether the plaintiff was always ready and willing to 
perform his part of the contract. It seems that the learned counsel is 
under some misconception of fact that the Trial Court did not frame 
the issue as regards whether the plaintiff was ready and willing to 
perform his part of the contract. The Trial Court did frame the issue 
as regards readiness & willingness & answered in the affirmative, 
i.e., in favour of the plaintiff. The High Court does not seem to 
have touched this issue at all. The High Court has not disturbed 
the findings recorded by the Trial Court on the issue of readiness 
& willingness. The plaintiff was always ready and willing to perform 
his part of the contract. 
42.	 In the overall view of the matter, we are convinced that the High 
Court committed an error in setting aside the decree passed
by the 
Trial Court of specific performance. 
43.	 In the result, this appeal succeeds and is hereby allowed. 
44.	 The impugned order passed by the High Court is hereby set aside. 
However, we would like to restore the original decree passed by the 
Trial Court with a little modification. 
45.	 The Trial Court directed that the appellant herein (Original plaintiff) shall 
pay the balance consideration of Rs. 13,50,000/- to the defendants 
and upon receipt of the said amount, the defendants shall execute 
the Sale Deed in favour of the appellant herein (Original plaintiff).
46.	 In the facts and circumstances of this case, more particularly, keeping 
in mind that the defendant No. 1 is a widow and defendant No. 2 
is her minor son, we deem fit to enhance the amount to be paid 
towards the balance consideration to Rs. 20,00,000/-.

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47.	 The decree of the Trial Court stands modified to the aforesaid extent. 
In short, the appellant herein (Original plaintiff) shall pay an amount 
of Rs. 20,00,000/- to the defendants and upon receipt of the same 
the defendants shall execute the Sale Deed in favour of the appellant 
(Original plaintiff).
48.	 The appeal stands disposed of in the aforesaid terms.
Result of the Case: Appeal disposed of.
†Headnotes prepared by: Divya Pandey