Relief of specific performance can’t be refused if there is willingness to perform part of contract: SC

Read Order: Sughar Singh vs. Hari Singh (dead) Through Lrs. & Ors

Pankaj Bajpai

New Delhi, October 27, 2021: The Supreme Court has opined that the discretion u/s 20 of the Specific Relief Act, 1963 is required to be exercised reasonably and the plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. 

Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty, observed a Division Bench of Justice M.R. Shah and Justice Aniruddha Bose. 

In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant–executant of the agreement to sell, while exercising the discretion judiciously, added the Bench. 

The observation came pursuant to an appeal challenging the judgment passed by the High Court of Allahabad, whereby the Second Appeal u/s 100 of Code of Civil Procedure, 1908 (CPC) was allowed and the judgment and decree for specific performance of the Agreement confirmed by the First Appellate Court, was set aside. 

The background of the case was that Sughar Singh (Appellant–original plaintiff) instituted the suit for specific performance of the agreement to sell, and the Trial Court as well as the First Appellate Court decreed the suit in favour of the plaintiff, observing that the plaintiff was always ready and willing to perform his part of contract. 

However, the High Court reversed the concurrent findings recorded by both the Courts on readiness and willingness, mainly on the ground that there were no specific averments in the plaint which are required as per section 16(c) of the Specific Relief Act. 

The High Court consequently dismissed the suit for specific performance on the ground that the relief of specific performance is the discretionary relief u/s 20 of the Act and that even though the execution of the agreement to sell is proved and even the plaintiff was found to be always ready and willing to perform his part of the obligation under the agreement to sell, the decree of specific performance is not automatic and such grant of decree is dependent upon the principles of justice, equity and good conscience. 

After considering the evidence and averments, the Top Court noted that as such there were concurrent findings of fact recorded by the Trial Court as well as the First Appellate Court on readiness and willingness on the part of the plaintiff, which were on appreciation of evidence on record. 

Therefore, in exercise of powers u/s 100 of the CPC, the High Court ought not to have interfered with such findings of fact unless such findings were found to be perverse, added the Court. 

Having gone through the findings recorded by the Trial Court as well as the First Appellate Court on readiness and willingness on the part of the plaintiff, the Apex Court opined that findings recorded cannot be said to be perverse and/or contrary to the evidence on record. 

However, the High Court ignored the necessary aspects on readiness and willingness including the conduct on the part of the parties, added the Court.  

“There are concurrent findings of fact recorded by the Courts below that the defendant Nos.2 to 5 were in knowledge of the agreement to sell in favour of the plaintiff; despite the same they purchased the suit land surreptitiously. Even the sale consideration mentioned in the sale deed in their favour is found to be doubtful”, observed the Division Bench of the Apex Court. 

Hence, the Top Court allowed the appeal and restored the judgment passed by the Civil Judge, Mathura City, thereby ordering decree for specific performance of the agreement to sell in favour of the plaintiff.