TMI Blog2002 (5) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... suance to the agreement to sell. In my view she is entitled to get the sale deed executed in her favour on payment of the sum mentioned in the agreement to sell (already paid and balance, if any) plus the amount she becomes liable to pay under term (iv) and first portion of term (v) for completion of building in case the appellant agrees to get the building completed from 7th respondent on payment of the prevailing market rates as per mutual agreement. Reasons as to why term No. (ii) requiring the 4th plaintiff-appellant to pay the sum of ₹ 40 lacs and consequent term (vii) should not imposed are: Section 20 of the Specific Relief Act, 1963 provides that relief of the specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. The discretion cannot be exercised arbitrarily. It has to be exercised in a sound and reasonable manner guided by judicial principles. Sub-Section (2) enumerates the circumstances in which the Court may exercise its discretion in not granting the decree of specific performance; sub-section (3) gives guidelines for proper exercise of the discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point, it is germane to point out that subsequent to 1969 the construction of the building was again resumed on or around 1998 which continued till 1999. The building is still incomplete. On 30th July, 1969, the appellant along with 7 other similar purchasers instituted a suit for specific performance of their flat purchase agreements. However, when the suit was finally adjudicated upon by the learned single Judge of the Bombay High Court (as trial Court on original side), all the plaintiffs except plaintiff No. 4 (appellant herein) and plaintiff No. 7 had settled their disputes with defendants-respondent Nos. 1 and 2. The Trial court in its order dated 23.3.1981 came to factual conclusion that the appellant had always been and is ready and willing to carry out her part of the agreement. The agreement was still valid and subsisting and Defendant No. 1 had committed breach of the agreement. Trial Court did not grant the specific performance of the agreement for the reasons that a Court ought not to grant a decree of specific performance in circumstances when the lease of the land on which the building stood terminated and the building was incomplete. Appellant alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept a sum of ₹ 1.50 crores by way of damages. He later on scaled down the demand to ₹ 1.20 or 1.25 crores which was not acceptable to the respondents. It is well-settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff. My learned brother has already enumerated the reasons with which I agree that the appellant in the circumstances of the case is entitled to the specific performance of the agreement irrespective of the fact that certain permissions are required to be taken from the Government authorities for completing the building. I need not re-emphasis the same. The appellant had come to the Court for seeking specific performance of an agreement promptly. The Trial Court as well as the appellate Court have recorded a finding that the appellant was ready and willing, at the time of filing of the suit as well as later, to perform her part of the agreement and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to get a decree as he had not taken any undue or unfair advantage over the appellant. On a concession made the vendor was directed to deposit a further sum of ₹ 3 lakhs. The conclusion recorded by this Court in para 9 is: In view of the above clear finding of the High Court that the appellant tried to wriggle out of the contract between the parties because of escalation in prices of real estate properties, we hold that the respondent is entitled to get a decree as he has not taken any undue or unfair advantage over the appellant. It will be inequitable and unjust at this point of time to deny the decree to the respondent after two courts below have decided in favour of the respondent. While coming to the above conclusion we have also taken note of the fact that the respondent deposited the balance of the consideration in the trial court and also the amount in the High Court, as directed. On the other hand the appellant, as held by the High Court, tried to wriggle out of the contract in view of the tremendous escalation of prices of real estate properties. However, to mitigate the hardship to the appellant we direct the respondent to deposit a further sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1981, i.e., for a period of more than 2-1/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement. It is thus not a case of mere delay. It is a case of total inaction on the part of the plaintiff for 2-1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices according to defendants, three times between the date of agreement and the date of suit notice. They delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. In V.Pechimuthu Vs. Gowrammal, 2001 (7) SCC 617, it was held that rise in price of the land agreed to be conveyed may be a relevant factor in denying relief of specific performance where the Court is considering whether or not to grant a decree for specific performance for the first time. It would be seen in none of the above noted cases this Court has laid an absolute rule that the proposed vendee would be required to compensate the propos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
