KANSHI RAM

OM PRAKASH JAWAL AND ORS.

APRIL 15, 1996

(K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

Special Relief Act, 1963 :

Specific peifonnance of a contract of immovable property--{]rant of C decree-Not automatine of discretion to be exercised on sound p1inciples-Cowt would be guided by justice, equity, good conscience and fairness to both the pmties--W/1en the party had claimed altemative relief for damages, Court justified in granting alternative decree for damages instead of ordering specific peifomiance.

D S. Rangaraju Naidu v. S. Thi1uvarakkarasu, AIR (1995) SC 1769, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7499 of 1996.

E From the Judgment and Order dated 18.4.95 of the Delhi High Court in R.F.A. No. 217 of 1972.

Mukul Rohtagi and Matrinder Singh for the appellant.

R.C. Pathak for the Respondents.

F The following Order of the Court was delivered :

Leave granted.

This appeal by special leave arises from the judgment and order dated April 18, 1995 of the Delhi High Court made in RFA No. 217/72.

G The admitted position is that an agreement of sale dated April 7, 1969 was executed to. convey the property on the plot of land admeasuring 100 square yards situated in Dayanand Colony, Lajpat Nagar, New Delhi for Rs. 16,000 and Rs. 2,500 was paid as earnest money. The respondent filed the suit on July 13, 1970 for the specific performance if the agreement and H also claimed, alternatively damages for a sum of Rs. 12,00 with interest

KANSHIRAM v. O.P.JAWAL 331

payable thereon. The courts below have granted the decree for specific A performance. Thus this appeal by special leave.

The learned counsel for the appellant has fairly contended that specific performance of the contract is within the discretion of the Court and is not a matter of course. The courts in granting the decree for specific performance should exercise the discretion on sound principles of law. In the event of working out the equities, the. courts would in an appropriate case, grant alternative relief, instead of granting the decree for specific performance. In support thereof, he sought to place reliance on the judgment of this Court in S. Rangaraju Naidu v. S. Thintvarakkarasu, AIR

(1995) SC 1769. He contended that the appellant is prepared to pay a sum of Rs. 10 Iakh as alternative relief; though the respondent claimed Rs. 12,000 instead of granting specific performance at this distance of time which would be unjust, inequitable and unfair.

It is contended by learned counsel for the respondents that the D respondent had secured balance money and he was always ready and willing to perform his part of the contract which finding was affirmed by both the courts below; the appellant had avoided execution of the sale deed; therefore, the courts below have rightly granted the decree; and there • is no justification for interference with the decree granted by the courts below.

Having regards to the facts of this case and the arguments addre"5ed 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 F 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 tht granting decree for specific performance of a 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 G by justice, equity, good conscience and fairness to both the parties. Considered from this perspective, in view of the fact that the responden~ 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 H

SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A performance is inequitable and unjust to the appellant.

The appeal is accordingly allowed. The appellant shall not again sell the property for five years. The plaintiff respondent will be paid a sum of Rs. 10 lakhs within a period of three months from to-day. In case the plaintiff respondent avoid receipt of the amount within the stipulated time, B it would be open to the appellant to deposit the same to the credit of the plaintiff in the trial Court. Jn case of default, the decree would stand confirmed. No costs.

G.N.

Appeal allowed.