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Surinder Kaur (D) thr. L.Rs. Vs. Bahadur Singh (D) thr. L.Rs. - (Supreme Court) (11 Sep 2019)

Court can refuse to grant discretionary relief of specific performance, even if, contract is not voidable but circumstances make it inequitable to enforce the same



In facts of present case, Mohinder Kaur, predecessor in interest of the Appellants entered into an agreement with Bahadur Singh, predecessor in interest of the Respondents whereby she agreed to sell the suit land to Bahadur Singh for a total sale consideration of Rs. 5605. Out of this, Rs. 1000 was paid as earnest money at the time of execution of agreement to sell, and it was agreed that the balance amount would be paid at the time of registration of the sale deed. The possession of the land was handed over to the vendee on the date of agreement to sell itself. Since, there was some litigation with regard to the property, it was agreed between the parties that the sale deed would be executed within one month from the date of decision of civil appeal pending before the Punjab and Haryana High Court.

The question of law arising in these appeals is whether a vendee who does not perform one of his promises in a contract can obtain the discretionary relief of specific performance of that very contract.

There can be no hard and fast Rule and the issue whether promises are reciprocal or not has to be determined in the peculiar facts of each case. The payment of rent was an essential term of the contract. Explanation (ii) to Section 16(c) of Specific Relief Act, 1963 clearly lays down that, the Plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that, Bahadur Singh was required to pay customary rent.

A party cannot claim that, though he may not perform his part of the contract, he is entitled to specific performance of the same. Explanation (ii) to Section 16(c) of The Specific Relief Act lays down that it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract.

A perusal of Section 20 of Act clearly indicates that the relief of specific performance is discretionary. Merely because the Plaintiff is legally right, the Court is not bound to grant him the relief. The Court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. The discretion cannot be exercised in an arbitrary or whimsical manner.

Sub clause(c) of Sub-section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the Court can refuse to grant such discretionary relief. Explanation (2) to the Section provides that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the Plaintiff.

In this case, Bahadur Singh having got possession of the land in the year 1964 did not pay the rent for 13 long years and even when he filed the replication in the year 1978, he denied any liability to pay the customary rent. Therefore, he did not act in a proper manner. Equity is totally against him. He was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell.

The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. The land was agricultural land. Bahadur Singh was cultivating the same. He by not paying the rent did not act fairly and, forfeited his right to get the discretionary relief of specific performance. The judgment and decree of all the Courts below is set aside. Appeal allowed.


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