GOBIND RAMversusGIAN CHAND

                                 GOBINDRAM                                             A
                                      v.
                                 GIAN CHAND

                             SEPTEMBER 27, 2000

                   [V.N. KHARE AND S.N. PHUKAN, JJ.]                                   B

      Specific Relief Act, 1963: Section 20.

      Decree for specific performance-Grant of-Held, the grant of decree
is not automatic but is one of discretion of the Court on fair, just and               C
equitable consideration-Court should meticulously consider the facts and
circumstances and motive behind the litigation.

       Decree for specific performance-Grant of-Agreement to sell-Non-
execution of sale deed due to escalation in prices of real estates-Suit for            D
specific performance-Al/owed by the Trial Court and High Court-On appeal,
held it would be inequitable and unjust to deny the decree which was
allowed by the Courts below when no undue or unfair advantage was taken
by the party-However, to mitigate the hardship ofseller, purchaser is directed
to deposit a further sum as compensation.
                                                                                       E
       Appellant agreed to sell the disputed property to respondent for certain
consideration and earnest money was paid to the appellant. Subsequently, on
failure to execute the sale deed within the stipulated period, respondent filed
a suit for specific performance of contract which was decreed by Trial Court.
On appeal, High Court holding that appellant tried to wriggle out the contract
because of escalation in prices of real estate properties, dismissed the appeal        F
with a direction to the respondent to deposit a further sum of Jb, 1,00,000.
Hence the present appeal.

      On behalf of the appellant it was contended that instead of decree for
specific performance compensation may be awarded.
                                                                                       G
      Dismissing the appeal, the Court

     HELD: 1. Grant of a decree for specific performance of contract is not
automatic and is one of discretion of the Court and the Court has to consider
whether it will be fair, just and equitable Court is guided by principle of justice,   H
                                       443
     444                    SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A    equity and good conscience. The Court should meticulously consider au facts
     and circumstances of the case and motive behind the litigation should also be
     considered. (446-B-C]

          Parakunnan Veetill Josaeph 's Son Mathew v. Nedumbara Kuruvi/a 's Son
     and Others, AIR (1987) SC 2328, relied on.
B
           Damacherla Anjaneyulu and Anr. v. Damacheria Venkata Seshaiah and
     Anr., AIR (1987) SC 164J., distinguished.
                              ''II
           2. In the instant case, High Court had given clear finding that the
C   appellant tried to wriggle out of the contract between the parties because of
    escalation in prices of real estate properties. Thus, 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 Further, respondent has deposited the balance of the consideration
D   in the Trial Court and also the amount in the High Court, as directed. However~
    to mitigate the hardship to the appellant respondent is directed to deposit a
    further sum of Rs. 3,00,000. [446-,:, F, G)

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 443 of 1994.

E         From the Judgment and Order dated 20.12.91 of the Delhi High Court
    in R.F.A. No. 50of1977.

         Sudhir Chandra Agarwal, Ashwani Kumar, Achintaya Diwedi and P.O.
    Sharma for the Appellant.
F
         P.N. Misra, Ms. Kumud Lata Das, R.M. Patanaik, A. Kumar Yadav and
    B. Swain for the Respondent.

           The Judgment of the Court was delivered by

G        PHUKAN, J. This appeal by special leave is directed against the
    judgment of Delhi High Court dated 20th December, 1991 passed in RFA No.
    50of1977.

          We may briefly state the undisputed facts. The appellant agreed to sale
    the disputed property situated at Lajpat Nagar (IV), New Delhi for a
H   consideration of Rs. 16,000 to the respondent and accordingly on 24th January,
                    GOBIND RAM v. GIAN CHAND [PHUKAN, J.]                          445

     1973 an agreement to sale was executed and a sum of Rs. 1000 was paid as             A
     earnest money to the appellant. Respondent filed the suit for specific
     performance of the contract as the appellant failed to execute the sale deed
     within time. On 6/10/1976 the suit was decreed and the respondent deposited
     balance consideration of Rs. 15,000 in the Trial Court. The appeal filed by the
     appellant in the High Court was also dismissed by the impugned judgment
     dated 20th December, 1991. However, to mitigate the hardship to the appellant        B
     and as the respondent agreed to pay more sum, High Court directed the
     respondent to deposit a further sum of Rs. 1,00,000 which was to be released
     to the appellant on giving possession of the suit property. The said sum was

-'   also deposited in the registry of the High Court by the respondent and it is
     being kept in interest bearing fixed deposit. The appellant has filed the
     present appeal and that is how the parties are before us ..
                                                                                          C


-          We have heard learned senior counsel for the parties. Only contention
     urged before us by the learned senior counsel for the appellant is that instead
     of decree for specific performance, compensation may be awarded.

           At the time of issuance of notice in the special leave petition, learned
                                                                                          D
     senior counsel for the appellant offered to pay Rs. 1, 16,000 to the respondent
     to cancel the contract and get out of the decree. The respondent after his
     appearance before this court offered another sum of Rs. 50,000 so as to make
     the total consideration of Rs. 1,50,000. In view of the above position leave
     was granted. When the matter came up before us another attempt was made              E
     for a settlement, which failed. At that time learned senior counsel for the
     respondent on instruction made an offer that respondent would pay further
     sum of Rs. 1,50,000 as consideration.

           Learned senior counsel for the appellant has relied on this court's
     judgment in Damacherla Anjaneyu/u and Another v. Damacherla Venkata                  F
     Seshaiah and Anr., AIR (1987) SC 1641. On the facts of that case the court
     recorded the finding that in case of grant of a decree of specific performance
     hardship would be caused to defendant and therefore compensation was
     granted. Facts of present case are different.

             Next decision on which learned senior counsel for the appellant relied       G
      is in Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila 's Son
     and Ors., AIR (1987) SC 2328. We may extract the relevant portion of the said
     judgment:

             "Section 20 of the Specific Relief Act, 1963 preserves judicial discretion
             to Courts as to decreeing specific performance. The Court should             H
     446                     SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A            meticulously consider all facts and circumstances of the case. The
             Court is not bound to grant specific performance merely because it is
             lawful to do so. The motive behind the litigation should also enter
             into the judicial .verdict. The Court should take care to see that it is
             not used as an instrument of oppression to have an unfair advantage
             to the plaintiff."
B
           It is the settled position of law that grant of a decree for specific
    performance of contract is not automatic and is one of discretion of the Court
    and the Court has to consider whether it will be fair, just and equitable. Court
    is guided by principle of justice, equity and good consensus. As stated in
C   P. V. Joseph's Son Mathew (supra) the court should meticulously consider all          --
    facts and circumstances of the case and motive behind the litigation should
    also· be considered.

           High Court considering the facts of this case and observed as follows:

             "We are conscious of the fact that the defendant bas been in
D            possession of the said quarter for the last several decades and logical.
             consequence of affirming the Judgment of the trial court would mean
             considerable hardship to him, at the same time the conduct of the
             defendant does not justify any further indulgence by the court. We
             have no doubt that the defendant has tried to wriggle out of the
E            contract between the parties because of the tremendous escalation in
             the prices of real estate properties all over the country and in Delhi,
             in particular in the last few years."

           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
F    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
G   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 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 respondent to
    deposit a further sum of Rs. 3,00.000 within 4 months from today with the
H   registry of this Court and the amount shall be kept in Short Term Deposit in
                    GOBIND RAM v. GIAN CHAND [PHUKAN, J.]                       447
      a nationalised bank. While giving the above direction we have taken note of A
      the offer made to us on behalf of the respondent. This amount is to be paid
      to the appellant on giving his possession of the suit property to the respondent
      within 6 months from the date of the deposit of the above amount. The
      appellant shall also be entitled to withdraw the amount already deposited in
      the Trial Court and the amount of Rs. 1,00,000 which has been kept in Interest B
      bearing fixed deposit in the registry of the High Court.                             1




            With the above modification of the judgment of the High Court, appeal

...   is dismissed. However, on the facts and circumstances. of the case parties are
      directed to bear their own cost.

      S.V.KI.                                                    Appeal dismissed.     C




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