Sh. Jagbir Singh & Ors. v. Sh. Jitender Kumar & Ors.

1. A specific performance of Agreement to Sell March, 2005, for the sale of agricultural land bearing No.234/170 min bearing Khasra No.146/23 (4-16), 15 16), 6(3-5), 7 (4-16) and 8 (4-16) total measuring 22 9 biswas situated in the Revenue Estate of Village D Kalan, Delhi, (hereinafter referred to as the ‘suit prop sought by the plaintiffs in this case.

2. According to the plaintiffs, defendants had ente 2011:DHC:465 an Agreement to Sell (Ex. PW-1/1) in respect of thei share in the suit property with Shri Lal Singh, Shr Singh and Shri Satya Dev for a total consideration o lacs, out of which defendants have received Rs.4,60,0 earnest money, vide Receipt (Ex. PW-1/2) of 2nd Marc Vendees to Agreement to Sell sent a legal notice ( 1/3) of 12th December 2007 to the Defendants and th transferred their rights and interest in the a Agreement to sell in favour of the plaintiffs vide D Assignment and Receipt (Ex. PW-1/5) of 20th Januar for a total consideration of Rs.5,00,000/-. It is averr the plaintiffs were always ready and willing to perfor part of Agreement to Sell but despite being served wi notice of 12.12.2007, the defendants have not come to perform their part of the Agreement in question.

3. Defendants, upon service, shoes not to conte were set ex parte on 22nd May 2009, and the e evidence led is of Plaintiff No.1 - Mr. Jasbir Singh (PW plaintiff No.2 – Hoshiyar Singh (PW-2) who had file evidence by way of affidavit (Ex. PW-1/A and Ex. respectively) on 6th January 2010. Plaintiffs al examined Mr. Satbir Singh (PW-3), who is the only wit

4. Learned Senior Counsel for the plaintiffs ha heard at length and the evidence on record ha scrutinized.

5. The parameters for grant of discretionary r specific performance, have been reiterated by th Court in Krishna & Another Vs. Bhagwan Dass (dead) & Others AIR 2008 SC 1786 in the following words:- “Section 16 of the Specific Relief Act, 19 (hereinafter referred to as 'the Act') corresponds w Section 24 of the old Act of 1877 which lays down th the person seeking specific performance of t contract, must file a suit wherein he must allege a prove that he has performed or has been ready a willing to perform the essential terms of the contra which are to be performed by him. The spec performance of the contract cannot be enforced favour of the person who fails to aver and prove readiness and willingness to perform essential ter of the contract. Explanation (ii) to Clause (c) of Sect 16 further makes it clear that plaintiff must av performance of, or readiness and willingness perform, the contract according to its tr construction. The compliance of the requirement Section 16(c) is mandatory and in the absence of pro of the same that the plaintiff has been ready a willing to perform his part of the contract suit cann succeed. The first requirement is that he must aver plaint and thereafter prove those averments made the plaint. The plaintiff's readiness and willingne must be in accordance with the terms of t agreement. The readiness and willingness of t plaintiff to perform the essential part of the contr would be required to be demonstrated by him fro the institution of the suit till it is culminated in decree of the court. It is also settled by vario decisions of this Court that by virtue of Section 20 the Act, the relief for specific performance lies in t discretion of the court and the court is not bound grant such relief merely because it is lawful to do The exercise of the discretion to order spec performance would require the court to satisfy its that the circumstances are such that it is equitable grant decree for specific performance of the contra While exercising the discretion, the court would ta into consideration the circumstances of the case, t conduct of parties, and their respective intere under the contract. No specific performance of contract, though it is not vitiated by fraud misrepresentation, can be granted if it would give unfair advantage to the plaintiff and where t performance of the contract would involve som hardship on the defendant, which he did not fores In other words, the court's discretion to grant spec performance is not exercised if the contract is n equal and fair, although the contract is not void.”

6. The factum of execution of Deed of Agreemen March, 2005 (Ex. PW1/1) stands established fro deposition of Mr. Satbir Singh (PW-3) who was a wit this Agreement. Receipt (EX.PW1/2) indicating paym the earnest money of Rs.4,60,000/- to the defe remains unrebutted. The second party i.e. the predec interest of the plaintiffs were to make payment balance sale consideration within nine months from t they received the possession of the suit propert appears to be somewhat strange. In normal co events, possession is handed over at the time of rece the balance sale consideration. The revenue reco PW1/6) shows that the possession of the suit propert with the defendants. According to the plaintiffs, th Notice (EX.PW1/3) has not been responded to. Sin possession of the suit property has not been handed the plaintiffs or predecessor in interest of the p therefore, defendants were not entitled to forfeit the money.

7. There is unrebutted evidence on record to sh the plaintiffs were ready and willing to perform their Agreement but it is not found to be equitable to grant for specific performance of the Agreement in q especially in view of the fact that the Legal Notice w by the plaintiffs after an inordinate and unexplained nearly three years. However, by virtue of D Assignment (EX. PW1/5) the plaintiffs are entitled to of the earnest money.

8. In the light of the aforesaid, this suit is partly d with costs to the extent of refund of earnest mo Rs.4,60,000/- only against the defendants joint severally with interest at the rate of 9% p.a. from the institution of this suit till realization. Decree sh accordingly drawn.

9. This suit is accordingly disposed of. Sunil G January 25, 2011 rs