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2015 (9) TMI 1608 - SC - Indian LawsDiscretionary relief for specific performance - failure to prove agreement of sale dated 2.9.1967 - lease agreement. Held that: - There is no dispute that even a decree for specific performance can be granted on the basis of oral contract - while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. However, in a case where the Plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the Plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the Plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. In the instant case while deciding the issue as to whether the agreement of 1967, allegedly executed by the Defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under ₹ 18,000/- was paid to the Defendant-Appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the Plaintiff - Indisputably, various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the Plaintiff regarding possession of the suit property but these documents have not been considered by the High Court. In our considered opinion the evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court. It is not a fit case where the discretionary relief for specific performance is to be granted in favour of the Plaintiff-Respondent - The High Court in the impugned judgment has failed to consider the scope of Section 20 of the Specific Relief Act and the law laid down by this Court. Suit liable to be dismissed - appeal allowed.
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