MANU/UP/1696/2012

Equivalent Citation: 2012(8)ADJ55, 2012(8)ADJ755, 2013(3) ALJ 711, 2012 (94) ALR 463, 2012 6 AWC 5649All

IN THE HIGH COURT OF ALLAHABAD

First Appeal No. 392 of 2007
Decided On: 07.08.2012
Appellants: Digvijay Singh
Vs.
Respondent: Ram Avtar and Ors.
Hon'ble Judges/Coram:
Prakash Krishna and Arvind Kumar Tripathi-II, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: H.R. Mishra and M.P. Yadav
For Respondents/Defendant: Some Narain Mishra and Pankaj Agarwal
Case Note:
Contract - Specific performance - Section 20(2)(a), (b) or (c) of Specific
Relief Act, 1963 - Present Appeal filed against decree of suit for specific
performance of contract to sell - Held, registered agreement was agreement
for sale of property in dispute - It recited payment of sum as advance
money - Terms and condition as mentioned in agreement fixes time limit
for execution of sale deed - Agreement in question was a registered
document and presumption about its due execution was attached to such
documents - A heavy burden to prove that it was executed in lieu of loan
lay on Appellant, which he failed to discharge - Evidence led by Appellant in
support of his plea of loan transaction was scanty, untrustworthy - Findings
recorded by trial Court were disbelieving version of Appellant which were
justified- No material was placed before Court to show that case of
Appellant falls in Section 20(2)(a), (b) or (c) of Act - Appellant entered into
contract with wide open eyes and contract had been witnessed and
attested by his son - In absence of any material, it would be inequitable to
refuse specific performance of contract to sell, having found that there was
nothing on record to show that price of house in question had been
increased manifold- Theory of loan amount had not been found to be proved
- Court opined that Appellant was not entitled to get any discretionary
relief - Appeal dismissed
JUDGMENT
Hon'ble Prakash Krishna, J.
1. Questioning the legality, validity and propriety of the judgment and decree dated
10th October, 2007 passed by the Additional Civil Judge (Senior Division), Ghaziabad
in Original Suit No. 1213 of 2004, the present appeal is at the instance of the
defendant. Three storied house measuring 200.67 square meter situate at R-86 Pratap
Vihar, Ghaziabad is the property in dispute. The defendant who is appellant herein
(hereinafter referred to as the defendant') is the owner and in possession thereof. He,
on 24th July, 2002 entered into a registered agreement to sell in favour of two
plaintiffs, namely, Ram Avtar and Jogendra Singh, respondents herein (hereinafter
referred to as the plaintiffs') for a sum of Rs. 7,50,000/- out of which a sum of Rs.

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5,00,000/- was given before Sub Registrar at the time of registration of the
agreement in question as advance money. It was agreed upon that the plaintiffs will
get the sale-deed executed after paying the balance sale consideration amounting to
Rs. 2,50,000/- on or before 21st July, 2004.
2. The suit giving rise to the present appeal was instituted for specific performance
of the aforesaid contract to sell. Also an alternative relief for refund of the advance
money together with interest as may deem, fit and proper by the Court was claimed.
3 . The suit was instituted on the allegations that the plaintiffs gave a notice dated
3rd February, 2004 to the defendant to execute the sale-deed and be present for the
said purpose before Sub Registrar on 24th February, 2004 for execution of sale-deed
and receipt of balance amount. The defendant replied the notice on 9th February,
2004 with incorrect and wrong allegations that amount of Rs. 5,00,000/- was taken
by him as loan amount. The plaintiffs were present on aforesaid date before Sub
Registrar from morning till evening but the defendant failed to appear to execute the
sale-deed. The plaintiffs have always been ready and willing to perform their part of
contract and are still ready and willing for the same.
4. The defendant contested the suit by filing written statement on the pleas inter alia
that he took Rs. 5,00,000/- as loan and lieu thereof the agreement to sell in question
was executed. He took the amount for the purposes of treatment of his daughter Km.
Ritu, who is polio patient. It was agreed upon that the defendant will pay interest at
the rate of 1% per month. He has paid Rs. 15,000/- per month from August, 2002 to
July, 2004, total sum of Rs. 3,60,000/- and had handed over three cheques of Rs.
40,000/- each to the plaintiffs. They refused to accept the cheques, cheque amount
was paid in cash. The market value of property in dispute is Rs. 50,00,000/- and that
is the reason, the plaintiffs have become dishonest and want to grab it. It was also
pleaded that the defendant was present in the office of Sub Registrar on 21st July,
2004, the date fixed in the agreement for the purpose of re-payment of loan amount
but the plaintiffs failed to appear. Other pleas such as Court fee paid is not sufficient
etc. were also raised.
In replication, the plaintiffs denied theory of loan as was set out by the defendant in
written statement.
On the basis of pleadings of the parties, the following issues were struck by the trial
Court :
(1) Whether the defendant executed an agreement to sell in respect of three
storied house measuring 200.57 square meter situate at R-86 Pratap Bihar,
Ghaziabad with the plaintiffs, for a sum of Rs. 7,50,000/- ?
(2) Whether the suit has been under valued and the Court fee paid is
insufficient?
(3) Whether the Court has jurisdiction to hear and decide the suit?
(4) Whether the agreement to sell dated 24th July, 2002 in respect of
property in dispute was executed and registered and a sum of Rs. 5,00,000/-
was given by the plaintiffs to the defendant as advance money?
(5) Whether the defendant failed to execute sale-deed in respect of the
property in dispute in favour of the plaintiffs within stipulated period?
(6) Whether the plaintiffs are ready and willing and are still ready and willing

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 to get the sale-deed executed?
(7) Whether the defendant received a sum of Rs. 5,00,000/- from the
plaintiffs as loan amount and the agreement in question was executed as a
security and no agreement to sell was executed in favour of the plaintiffs?
(8) Whether the defendant has made part payment of the loan amount of Rs.
5,00,000/- and is ready to pay balance amount?
(9) To what relief, the plaintiffs are entitled to?
The parties led evidence, oral and documentary in support of their respective cases
as find mention in the judgment. The trial court has decided issues no. 1, 4, 5, 6, 7 &
8 together. It reached to the conclusion that the defendant has failed to prove the
oral agreement that the amount of Rs. 5,00,000/- was given as loan amount. The
execution of the agreement in question and payment of Rs. 5,00,000/- thereunder is
admitted to the defendant. The plaintiffs have always been ready and willing to
perform their part of contract and are still ready and willing. The defendant has failed
to prove any re-payment of the loan amount. The other issues were decided in favour
of the plaintiffs holding that the court fee paid is sufficient as it is paid on the value
of the sale-agreement and there is no material to show that the house in dispute is
valued as Rs. 50,00,000/-. The trial court discarded and disbelieved oral evidence led
by the defendant. The defendant besides examining himself as DW-1, examined one
Ranjeet Srivastava as DW-2. The suit for specific performance of contract to sell
having been decreed, the present appeal under Section 96 of the C.P.C. is before us.
Heard Shri H.R. Mishra, learned Senior Counsel along with Shri M.P. Yadav, learned
counsel for the defendant-appellant and Shri Some Narain Mishra, learned counsel for
the plaintiffs-respondents.
It may be placed on record that in the memo of appeal as many as ten grounds have
been set out but learned counsel for the appellant has confined his arguments only to
the following points.
- There being discrepancies in the plaintiff's deposition (namely Ram Avtar
PW-1), his testimony is not reliable and is liable to be rejected.
- The return of part of loan amount is established from testimonies of
defendant DW-1 and Ranjeet Srivastava DW-2.
- The present market value of house in dispute is Rs. 50,00,000/- and in this
view of the matter, the court should exercise its discretion under Section 20
of the Specific Relief Act not to grant a decree for specific performance of
contract to sell.
In reply, learned counsel for the plaintiffs submits that the defendant is an advocate
by profession and he willingly executed the contract of sale dated 24th July, 2002.
One of the attesting witnesses namely, Abhay Singh happens to be son of defendant.
The execution of agreement in question is not denied nor in issue in the suit. This
being position even if, there is some minor contradiction in statement of plaintiffs, it
is of no avail to the defendant. The defendant has utterly failed to establish that the
transaction in question in substance was a loan transaction or he received a sum of
Rs. 5,00,000/- as loan instead of advance money in pursuance of registered
agreement dated 24th July, 2002. He further submits that there is voluminous
evidence on record to show that the defendant has not re-paid even a single shell
and is taking undue advantage of the situation being a practicing advocate at

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Ghaziabad.
Considered the respective submissions of the learned counsel for the parties.
The registered agreement dated 24th July, 2002, on its face is an agreement for sale
of the property in dispute for a sum of Rs. 7,50,000/-. It recites payment of Rs.
5,00,000/- as advance money. It is also not in dispute that Shri Abhay Singh
attesting witness no. 1 happens to be son of the defendant. The terms and condition
as mentioned in the agreement fixes time limit for execution of the sale-deed as 21st
July, 2004, has also not been disputed. On these admitted facts, the question arises
as to whether the discrepancies, if any, in the statement of the plaintiffs are sufficient
to discard the said agreement which is otherwise a registered document and its
execution is not in question.
In the case of Vimal Chand Ghevarchand Jain and others v. Ramakant Eknath Jajoo,
MANU/SC/0441/2009 : JT 2009 (6) SC 570, the Apex Court has laid down in para-19,
as follows:
19. A document, as is well known, must be construed in its entirety. Reading
the said in its entirety, there cannot be any doubt whatsoever that it was a
deed of sale. It satisfies all the requirements of a conveyance of sale as
envisaged under Section 54 of the Transfer of Property Act.
In Bishwanath Prasad Singh v. Rejendra Prasad & Anr. MANU/SC/8062/2006 : JT
2006 (2) SC 221 : 2006 (4) SCC 432, the Apex Court has held as follows:
16. A deed as is well known must be construed having regard to the
language used therein. We have noticed hereinbefore that by reason of the
said deed of sale, the right, title and interest of the respondents herein was
conveyed absolutely in favour of the appellant. The sale deed does not recite
any other transaction of advance of any sum by the appellant to the
respondents which was entered into by and between the parties, In fact, the
recitals made in the sale-deed categorically show that the respondents
expressed their intention to convey-the property to the appellant herein as
they had incurred debts by taking loans from various other creditors.
In the document in question, the parties have been described as vendor and vendee
and the sale consideration. These terms have definite legal connotation and the
defendant being an advocate supposed to understand their Implications. Viewed as
above, now we proceed to consider the matter in issue.
Learned counsel for the appellant invited attention of the Court towards that part of
the cross-examination of Ram Avtar PW-1 wherein he could not state the name of
stamp vendor or whether the stamp papers were purchased from one vendor or more
than one. The stamp papers were purchased for the purpose of scribing the
agreement in question. This witness has stated that stamp papers were purchased by
Jogendra Singh along with him. He has denied suggestion that all the stamp papers
were purchased in the name of Jogendra Singh. We do not find any contradiction or
discrepancy in the said portion of statement of PW-1. And even if, there is any such
supposed discrepancy it is of inconsequential nature. A man of ordinary prudence is
not supposed to remember after four years, whether the stamp papers were
purchased from one vendor or more than one. The stamp papers are generally
purchased in the name of party by clerk or the person of the scribe in the
name/names of the persons concerned. The agreement in question being an admitted
document, no benefit, if any, can be derived by the defendant from the said part of
statement of PW-1. Learned counsel for the appellant could not point out any other

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discrepancy or defect in other portion of deposition of PW-1. We therefore find that
the defendant cannot make any capital out of the cross-examination of PW-1 and
point no. 1 is decided accordingly.
Basic point urged by the learned counsel for the appellant is that the defendant had
taken a sum of Rs. 5,00,000/- by way of loan and agreement in question was
executed as a security for re-payment of loan amount and as such the plaintiffs
cannot claim decree for specific performance of contract to sell. Plea of loan has been
set out by the defendant and burden lay upon him to establish it. He came out with
the case that his daughter Km. Ritu is a polio patient and the money was urgently
needed for her operation. To prove the said fact, it may be stated at the very outset
that no documentary evidence whatsoever has been placed on record to show either
Km. Ritu was a polio patient or any amount was spent out of the amount for her
treatment, if any. The defendant being an advocate understands the importance of
documentary evidence. The plaintiffs in their deposition have stated that they were
never told that the defendant is in need of money for medical treatment of his
daughter.
The defendant has been grilled on the question of medical treatment of his daughter
in cross-examination. He has deposed that his daughter Km. Ritu is polio patient
since 1987 and when he took loan she was being provided treatment in a charitable
hospital at Visakhapatnam and was getting treatment since February/March, 2001 and
she is still under treatment. He used to make the payment against receipts. He further
states that he has not filed any such receipt. In further cross-examination, he states
that he has given only Rs. 10,000/- to Rs. 15,000/- against receipt and has made
payment to the doctor without obtaining any receipt. According to him, all these
payment were made to the doctor and the medical expenses were incurred in the
month of February/March, 2001 i.e. before the execution of agreement in question
which is dated 24th July, 2002. This is all what he could state in his deposition. The
defendant has failed to produce any reliable or cogent evidence to show that his
daughter was suffering at the material time with polio and he badly needed the
financial assistance for her treatment in the year 2002 when agreement in question
was admittedly executed. Noticeably, there is no reliable evidence on record to prove
the alleged illness of daughter and in any case, dire need of money for her treatment.
On analysis of evidence, the court below has rightly reached to the conclusion on the
above issue that the theory as propounded by the defendant that he needed money
for medical treatment is not established. We ourselves scrutinized the evidence and
find no reason to differ with the finding of the trial court on the above point.
The agreement in question is a registered document and a presumption about its due
execution is attached to such documents. A heavy burden to prove that it was
executed in lieu of loan lay on the defendant, which he failed to discharge.
No oral evidence to contradict the terms of any such contract, or of a grant, or of any
other disposition of property have been reduced to the form of a document under
Section 91 of the Evidence Act could be given in view of Section 92 thereof. Section
92 of the Evidence Act provides specifically exclusion of evidence of oral agreement
for the purposes of contradicting, varying, adding to, or subtracting from, its terms.
It contains as many as six proviso. Learned counsel for the defendant could not point
out that under which proviso his case falls. However, he placed reliance on the
following two judgments of the Hon'ble Apex Court :-
1. Ishwar Dass Jain v. Sohan Lal, MANU/SC/0747/1999 : (2000) 1 SCC 434;
and

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 2 . Smt. Gangabai v. Smt. Chhabubai, MANU/SC/0385/1981 : AIR 1982 SC
20.
In the case of Ishwar Dass Jain v. Sohan Lal (supra), it was pleaded by the defendant
in written statement that the mortgage deed though true was a sham document not
intended to be acted upon. The mortgage deed was executed to circumvent the law
and the plaintiff was a rich man and there was no occasion for him to mortgage his
property. It was held that inspite of Section 92(1) of the Evidence Act; it is
permissible for a party to a deed to contend that the deed was not intended to be
acted upon but was only a sham document. The bar arises only when the document is
relied upon and its terms are sought to be varied and contradicted.
The another relied upon case is, Smt. Gangabai v. Smt. Chhabubai (supra) wherein it
has been laid down that the bar of, as to adducing of oral evidence is attracted only
when a party seeks to rely upon the document embodying the terms of the
transaction. In that event, the law declares that the nature and intent of the
transaction must be gathered from the terms of the document itself and no evidence
of any oral agreement or statement can be admitted as between the parties to such
document for the purposes of contradicting or modifying its terms. The sub-section is
not attracted when the case of a party is that the transaction recorded in the
document was never intended to be acted upon at all between the parties and that
the document is sham. Such a question arises when the party asserts that there was a
different transaction altogether and what is recorded in the document was intended to
be of no consequence whatever. For that purpose oral evidence is admissible to show
that the document executed was never intended to operate as an agreement but that
some other agreement altogether not recorded in the document, was entered into
between the parties. (See: Tyagaraja Mudaliyar and another v. Vedathanni,
MANU/PR/0014/1935 : AIR 1936 PC 70).
Viewed as above, even if, we take oral evidence, the defendant has utterly failed to
prove that it was a loan transaction between the parties. The defendant is an
advocate and he very well understands the niceties of law and is supposed to know
the importance of execution of a registered document vis. a vis, an oral agreement.
He could not lead any cogent and reliable evidence to prove the alleged loan
transaction. As stated herein above, the theory of medical treatment propounded by
him in the absence of any convincing evidence, has been negated by us. He has taken
oscillating stand, in his reply to the notice, in the written statement and in the
evidence with regard to the repayment of the loan amount. In the reply dated 9th
February 2004 (paper no. 39-ka), there is no mention for what purpose he needed
the loan. He states that presently there is an increase in the value of house in dispute
to Rs. 50,00,000/- and therefore, it is not possible to transfer it. He further states
that it was agreed upon that if at the time of return of money i.e. 21st July 2004 if
any of his family member has any objection for the sale of house then the plaintiffs
will not compel him to execute the sale-deed and will accept a sum of Rs. 5,00,000/-
only. For the sake of convenience, the said portion of the reply is reproduced below:

He further recites that there is still time to return money upto 21st July, 2004 and he

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has given three cheques each of Rs. 40,000/- and these cheques should not be
encashed by the plaintiffs failing which if they are dishonoured, he will not be liable
in any manner. In the written statement, the defendant became wiser took a plea for
the first time that he has been re-paying partial payments monthly amounting to Rs.
15,000/- per month since August, 2002 to July, 2004 and thus, has paid a sum of Rs.
3,60,000/-. With regard to three cheques, he pleads that the said cheques were
returned by the plaintiffs and lieu thereof he gave Rs. 1,20,000/- in cash but without
obtaining any receipt. The evidence of defendant suffers with inherent discrepancies
and cannot be relied upon.
Ranjeet Srivastava DW-2 states that he was present when talk in between the
plaintiffs and defendant took place in the year 2002. It was in the month of May/June
the defendant handed over document of title in his presence to the plaintiffs on 24th
July, 2002 and a sum of Rs. 5,00,000/- was given to the defendant. He further states
that the document of title, sanctioned map by the Ghaziabad Development Authority
along with other documents were given as mortgage (Girvi). The relevant portion
from his cross-examination is reproduced below:-

The above statement of the witness would show that he is a got up witness and has
gone a step further to support the defendant. He has gone to the extent of saying that
loan agreement was arrived between the parties in his presence and document of title
etc. were given by the defendant as mortgage, a case not even pleaded by the
defendant. This shows that he is procured witness being friend of the defendant, a
fact which has been admitted by him. Besides the above statements of DW-1 and
DW-2, there is no evidence worth the name to show that the defendant took loan and
the sale agreement was not intended to be acted upon.
It is interesting to note that DW-2 in his examination-in-chief states that on 24th
July, 2002 a loan agreement was executed in writing wherein it was agreed upon that
the defendant will return the loan amount in installments along with interest and get
the writing cancelled, a case not even set out by the defendant. It has not even
pleaded that on 24th July, 2002, any such loan agreement was executed in writing.
This is indicative of the interested testimony of defendant no. 2 in favour of the
defendant.
The statements of DW-1 and DW-2 are untrustworthy and cannot be relied upon
specially when the defendant is an advocate and fully understands the implications of
execution of a registered document. The evidence led by the defendant in support of
his plea of loan transaction is scanty, untrustworthy. The ultimate finding recorded by
the trial court disbelieving the version of defendant on the above issue is perfectly
justified and we endorse the same. The stand taken by the defendant is incredible
and implausible.
Lastly, it was urged that this Court should exercise its discretion as available under
Section 20 of the Specific Relief Act by setting aside the decree for specific

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performance of contract to sell and lieu thereof grant a decree for refund of the
amount to the plaintiffs. There has been manifold increase in prices of immovable
properties and presently the property in dispute is around Rs. 50,00,000/- submits
the defendant. Repeatedly, we asked the counsel to show evidence, if any, to
establish that the house in dispute can or could fetch at Rs. 50,00,000/- but he
failed. Except making a bald statement that the house was valued at Rs. 50,00,000/-,
there is no evidence to support the above plea. The defendant could have placed very
easily some material in support of his plea but he failed to discharge the burden. The
plea that the house is valued at Rs. 50,00,000/- deserves rejection and we do so.
Much was argued with the help of Section 20 of the Specific Relief Act. It was rightly
pointed out by the learned counsel for the respondents that no such plea was ever
forwarded before the trial court either in the pleadings or in issue or in evidence. He
submits that grant of any such relief to the defendant would amount premium to a
person who wants to wriggle out of a registered agreement and will promote
dishonesty in the society. He further submits that a bare perusal of the agreement in
question would show that the defendant has at least two houses. Besides the house
in question, he has got one house situate at K.M.-96, Kavi Nagar, Ghaziabad. This
finds mention against his particulars in the agreement itself. In short, the defendant
does not deserve any sympathy of the Court. Had this issue been raised before the
trial court, the plaintiffs would have given evidence in this regard. He relied upon
recent decision of Apex Court in Prakash Chandra v. Narayan, 2012 (2) ARC 213.
Paragraph-15 of the said judgment is reproduced below:
15. The question as to whether the grant of relief for specific performance
will cause hardship to the defendant within the meaning of Clause (b) of
sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a
question of fact, the first appellate court without framing such an issue ought
not to have reversed the finding of the trial court while concurring with it on
all other issues with regard to the appellant's entitlement to relief for specific
performance of contract. The High Court in the second appeal failed to notice
that the respondent had not taken any defence of hardship and no such issue
was framed and in absence of any such evidence on record, the first
appellate court held that he would be landless should the decree for specific
performance be granted.
In the above case, the Apex Court reversed the judgment of High Court and it
decreed the suit and granted the relief for specific performance of contract to sell, as
was decreed by the trial court.
As against above, the appellant has relied upon K. Narendra v. Riviera Apartments (P)
Ltd. MANU/SC/0392/1999 : (1999) 5 SCC 77 and Lourdu Mari David and others v.
Louis Chinnaya Arogiaswamy and others, MANU/SC/0726/1996 : AIR 1996 SC 2814.
It was also submitted that in the plaint, an alternative relief for return of earnest
money along with interest and damages as may be determined by the Court, has
been claimed and the same has been asserted in deposition by the plaintiffs in cross-
examination also.
It is an acknowledged legal proposition that a plaintiff can claim more than one relief
on the same cause of action. He must claim all; he will otherwise entitle to bring a
new suit for omitted relief, unless the omission is for the first time was with leave of
the Court. The claim of alternative relief of refund of earnest money along with
interest etc. is a usual relief claimed in such suits. The defendant cannot compel a
plaintiff to be satisfied by the alternative relief, relief for specific performance of
contract to sell instead. It will be travesty of justice if relief for contract to sell is

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denied on this ground. It is true that discretion has been given to the Court under
Section 20 of the Specific Relief Act but the specific performance relief should not be
refused arbitrarily. The discretion should be exercised on sound principles of law
capable of correction by an appellate court, as laid down by the Apex Court in the
case of Lourdu Mari David (supra). It is settled law that the party who seeks to avail
of the equitable jurisdiction of a Court and specific performance being equitable
relief, must come to the Court with clean hands. Here is a case where it was neither
found by the trial court nor any material was placed before us by the defendant to
show that the plaintiffs has not come to the court with clean hands or they have
based their claim on some falsehood. As a matter of fact, the position is otherwise.
The defendant has not come to the court with clean hands and has come forward with
untrue facts. Refusal of decree for specific performance of contract to sell in such
situation would not promote honesty in society.
In the first relied upon the case by the defendant i.e. K. Narendra v. Riviera
Apartments (P) Ltd. (supra), the decree for specific performance of contract to sell
was refused on account of peculiar facts of that case. The vendee was a building
contractor who proposed to purchase the land for the purpose of raising multistoried
building. There the suit for specific performance was filed after about eight years
which was not treated a reasonable period and part of land was declared surplus
within meaning of Urban Land Ceiling & Regulation Act, 1976. The agreement
contemplated several sanctions and clearances which were certainly not within the
power of the parties. Both the parties knew it well that the vendor was depended on
such clearance. Part of the land was acquired by the State and to that extent the
agreement was rendered incapable of performance. Having it found that the builder
shall not be able to raise construction as desired and will not be able to give the
delivery of possession of the agreed constructed portion to the vendor, the decree for
specific performance of contract to sell was refused. The said case was decided on
peculiar facts of that case. It should be read and understood in the factual scenario
as existed therein. It has not been laid down as a rule of universal application that
the discretion should be exercised to refuse the decree for specific performance of
contract to sell whenever the defendant pleads so.
In another case i.e. Lourdu Mari David (supra), the case of the plaintiff was belied
with regard to taking of possession on the date of agreement. The court also found
that in paras-7 & 9 of the plaint of that suit, the plea set out therein is false. The
third circumstance with regard to payment made by the plaintiff was also found to be
incorrect. These were circumstances which were taken cumulatively to deny the
relief. Here, on the case on hand, not even a single circumstance could be pointed
out by the defendant to disentitle the plaintiff to get a decree for specific performance
of contract to sell. The decree for specific performance of contract to sell cannot be
denied when execution of deed is proved, on whims of a court. On the facts of the
case, there is no rational not to confirm the decree for specific performance of
contract to sell. Besides the fact that no such plea was put forward before the court
below, we find that even in the memo of appeal no circumstance has been mentioned
which may tilt the fulcrum of balance in favour of the defendant. On the contrary, if a
party has to be blamed, then it would be the defendant who has come with untrue
and wrong allegations. He has come forward with frivolous defence and frivolous
litigation.
No material was placed before us to show that the case of the defendants falls in any
of clauses (a), (b) or (c) of Section 20(2) of the Specific Relief Act. The defendant
entered into the contract with wide open eyes and the contract has been witnessed
and attested by his son. In the absence of any material, it would be inequitable to
refuse specific performance of contract to sell dated 24th July, 2002, having found

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that there is nothing on record to show that price of the house in question has been
increased manifold and the theory of loan amount having not been found to be
proved. We are of the view that the defendant is not entitled to get any discretionary
relief, envisaged under Section 20 of the Specific Relief Act.
In Laxman Tatyaba Kankate & another v. Taramati Harishchandra Dhatrak, 2010 (3)
ARC 189, a case relied upon by the plaintiffs it has been held that discretion of court
has to be exercised as per the settled judicial principles. In that case, a sum of Rs.
10,000/- was given as earnest money. The Court while confirming the decree for
specific performance took note of the fact that there is no circumstance not to grant
specific performance of contract which is discretionary. Role of the plaintiff is one of
the most important factors is to be taken into consideration. The Court is expected to
take care to see that the process of the Court is not used as an instrument of
oppression giving an unfair advantage to the plaintiff as opposed to the defendant in
the suit. There being no circumstance, the defendant enjoyed the earnest money of
Rs. 10,000/- as also the possession. It is not only lawful but even equity and facts of
the case demand that a decree for specific performance should be granted in favour
of the respondent therein. The ratio laid down in the above case is fully applicable to
the facts of the present case.
At this juncture, we may re-produce some observations of the Supreme Court made
in respect of such kinds of litigation. In the case of Indian Council for Enviro-Legal
Action v. Union of India & others MANU/SC/0837/2011 : JT 2011 (8) SC 375. the
Apex Court has observed as follows:-
197. In Padmawati vs Harijan Sewak Sangh - CM (Main) No. 449 of 2002
decided by the Delhi high Court on 6.11.2008, the court held as under:-
The case at hand shows that frivolous defences and frivolous
litigation is a calculated venture involving no risks situation. You
have only to engage professionals to prolong the litigation so as to
deprive the rights of a person and enjoy the fruits of illegalities. I
consider that in such cases where Court finds that using the Courts
as a tool, a litigant has perpetuated illegalities or has perpetuated an
illegal possession, the Court must impose costs on such litigants
which should be equal to the benefits derived by the litigant and
harm and deprivation suffered by the rightful person so as to check
the frivolous litigation and prevent the people from reaping a rich
harvest of illegal acts through the Court. One of the aims of every
judicial system has to be to discourage unjust enrichment using
Courts as a tool. The costs imposed by the Courts must in all cases
should be the real costs equal to deprivation suffered by the rightful
person.
1 9 8 . We approve the findings of the High Court of Delhi in the
aforementioned case.
199. The Court also stated: "Before parting with this case, we consider it
necessary to observe that one of the main reasons for over-flowing of court
dockets is the frivolous litigation in which the Courts are engaged by the
litigants and which is dragged as long as possible. Even if these litigants
ultimately loose the lis, they become the real victors and have the last laugh.
This class of people who perpetuate illegal acts by obtaining stays and
injunctions from the Courts must be made to pay the sufferer not only the
entire illegal gains made by them as costs to the person deprived of his right

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 and also must be burdened with exemplary costs. Faith of people in judiciary
can only be sustained if the persons on the right side of the law do not feel
that even if they keep fighting for justice in the Court and ultimately win,
they would turn out to be a fool since winning a case after 20 or 30 years
would make wrongdoer as real gainer, who had reaped the benefits for all
those years. Thus, it becomes the duty of the Courts to see that such
wrongdoers are discouraged at every step and even if they succeed in
prolonging the litigation due to their money power, ultimately they must
suffer the costs of all these years long litigation. Despite settled legal
positions, the obvious wrong doers, use one after another tier of judicial
review mechanism as a gamble, knowing fully well that dice is always loaded
in their favour, since even if they lose, the time gained is the real gain. This
situation must be redeemed by the Courts.
Against this judgment, Special Leave to Appeal (Civil) No. 29197/2008 was
preferred to the this Court. The Court passed the following order:
We have heard learned counsel appearing for the parties. We find no
ground to interfere with the well-considered judgment passed by the
High Court. The Special Leave Petition is, accordingly, dismissed.
More or less, similar observations have been reiterated in Maria Margarida Sequeria
Fernandes and others v. Erasmo Jack de Sequeria, JT 2012 (3) SC 451.
Any other point was not pressed.
The appeal merits dismissal.
We find no merit in the appeal. Judgment and decree of the court below is on terra
firma and needs no interference. The appeal is dismissed with costs.
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