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2015 (9) TMI 1686 - SC - Indian LawsExecution of agreement - Degree of specific performance or refund of amount - agreement to sale - whether in the facts and circumstances of the case, a decree of specific performance of agreement of sale should have been passed, or the decree of refund of part consideration received by the defendant, with interest, would have served the ends of justice? - HELD THAT:- Explanation 1 to sub-section (2) provides that mere inadequacy of consideration shall not be deemed to be an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2 provides that the question whether the performance of a contract when involved 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 in the contract, be determined with reference to the circumstances accepting at the time of contract. Sub-section (3) provides that the court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. In the present case, it appears that possession was not given to the plaintiff at the time of execution of the agreement, nor the area of land agreed to be sold was clear, as such, it cannot be said that the plaintiff has done substantial acts or suffered losses due to expenditure in constructions, etc., in consequence of a contract capable of specific performance. The direction given by the High Court in the impugned order shows that the measurements of land actually agreed to be sold, are not final - instead of affirming the decree of specific performance as modified by the High Court, it will be equitable, just and proper to direct the appellants to pay back the amount of ₹ 60,000 accepted by the original defendant with interest @ 18% p.a to the respondent-plaintiff from 4-2-1992 till date, within a period of three months from today, failing which this appeal shall stand dismissed. Appeal dismissed.
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