Rajender Kumar Sharma & Anr. v. Ashwani Goyal & Anr.

1. This review application has been pending for a very long time as it got adjourned for one reason or the other. I have heard the learned counsel for the parties as well as perused the order dated 9th November, 2010 of which the review is sought.

2. The contention of learned counsel for the parties can be appreciated only when the facts are given in brief. The plaintiffs filed a suit for specific performance in respect of a property bearing No.3096, situated at Mohalla 2013:DHC:1703 Dussan, Charkhewalan, Delhi measuring 130 sq. yds., claiming that the defendants had agreed to sell the suit property for a total sale consideration of Rs.55 lakhs, out of which, an amount of Rs.15 lakhs was paid to the defendants. In this regard an agreement dated 23rd June, 2010 was purportedly executed and the balance amount of Rs.40 Lakhs was to be paid by the plaintiffs to the defendants, which they were ready and willing to pay but the defendants were allegedly trying to wriggle out of the agreement. This led to the filing of the suit for specific performance and also alternatively for refund of the amount of Rs.15 lakhs given to the defendants as earnest money along with interest @ 18% per annum from the date of demand till the time it is actually realized.

3. The suit came up for hearing for the first time on 9th November,

2010. The defendants were present as Caveator. It was, at that stage, that after hearing the learned counsel for the parties, this court passed an order that since the plaintiffs have claimed an alternative relief of refund of Rs.15 lakhs given to the defendants and the grant of specific performance was a discretionary relief, therefore, the interest of the plaintiffs’ will be fully protected in case the defendants are directed to the deposit a sum of Rs.15 lakhs with the Registrar General of this Court without prejudice to their rights and contentions.

4. The contention of the Mr. Jauhar, learned counsel for the plaintiffs, is that the aforesaid direction to the defendants to deposit a sum of Rs.15 lakhs was passed on the assumption that in case a party claims both the relief of specific performance and alternatively refund of earnest money then it is the discretion of the Court to grant the refund, if it does not deem it proper to grant the relief of specific performance. It is contended that the legal position is to the contrary. In this regard, the learned counsel has referred to the judgment of the Supreme Court in the case titled P.C.Varghese Vs. Devaki Amma Balambika Devi & Ors., 2005 (8) SCC 486, to contend that alternative relief cannot be a bar for claiming the relief of specific performance. It has been, accordingly, contended that this is an error apparent on the face of the record in paragraph 9 of the said order and, accordingly, the same be rectified.

5. Learned counsel for the defendants has filed reply to the application and has contested the same. It has been contended by the learned counsel that there is neither any error apparent on the face of the record nor does the order dated 9th November, 2010 deserves to be reviewed. It is contended that the aforesaid order was passed when the written statement and the reply to the interim application were not on record and since both these documents have already been filed by the defendants, therefore, the application under Order XXXIX Rules 1 & 2 CPC requires to be decided on merits by the Court.

6. This fact is not disputed by Mr.Jauhar except that he has contended that the observations passed by the Court in para 9 of the order may come in his way while seeking a restraint order qua the property and press for his relief of specific performance.

7. I have carefully considered the rival contentions. There is no denial of the fact that by virtue of Section 20 of the Specific Relief Act, the grant of specific performance in respect of an agreement to sell an immovable property is a discretionary relief. This Court in its wisdom thought appropriate, at that point of time, when the order was passed that the stand of the defendants was not on record and the interests of the plaintiffs will be protected by directing the defendants to deposit a sum of Rs.15 lakhs and, accordingly, passed a direction, in this regard. This order was passed keeping in view the fact that the grant of specific performance being a discretionary relief, it is not necessary that in each and every case, a restraint order deserves to be passed against the property de hors the legal position, which would have been considered after obtaining the reply. Now that the pleadings in respect of application and the main suit are complete, it is essentially for the successor Court to decide the application under Order XXXIX Rules 1 & 2 CPC on merits. Needless to say that the observations passed in the order in question were only tentative which need not necessarily be accepted by the successor court while deciding the application u/O 39 Rules 1 and 2 CPC on merits.

8. In view of the aforesaid facts, the application for review stands dismissed as there is no error apparent on the face of the record.

9. List the matter before the successor Court for directions on 6th May,

2013. V.K. SHALI, J. April 5th, 2013 ss