9911796707
TMI Blog2010 (7) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... its entirety. The Court granted decree for specific performance in respect of the land in question and upon grant of permission by the competent authority, as contemplated under Section 12(c) of the Maharashtra Re-settlement of Project Displaced Persons Act, 1976, (hereinafter referred to as `the Re-settlement Act') and also by the Society, as contemplated under Section 47(2) of the Maharashtra Cooperative Societies Act, 1960, (for short `the Societies Act'), the appellants were entitled to specific performance upon payment of the balance sale consideration of ₹ 30,000/-. It also directed the appellants to submit an application seeking permission from the competent authority and execute a registered sale deed in favour of the respondent herein. 3. The legality and correctness of the aforesaid decree was challenged by the appellants before the High Court of Judicature at Bombay at its Aurangabad Bench in Second Appeal No. 96 of 2001 which came to be dismissed vide judgment dated 17th July, 2001. Aggrieved from the aforesaid concurrent decrees passed by the Courts, the present appeal under Article 136 of the Constitution of India has been preferred by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff and the defendants were acquainted to each other. The learned Trial Court, on the basis of the record before it, noticed that the appellants claimed that they wanted to obtain a loan for a sum of ₹ 2,000/- from the respondent and had agreed to sign certain papers by way of security, that the respondent, on the pretext, got certain blank papers signed from the appellant as well as his son and that there was no intention to sell the property in question. 8. On the pleadings of the parties, the Trial Court framed the following issues and gave findings thereon: 9. The learned Trial Court decided all the material issues in favour of the respondent and, while upholding the agreement in favour of the respondent, it also returned a finding in favour of the respondent that she was always ready and willing to perform her part of the contract and had paid a sum of ₹ 10,000/- as earnest money. It may be noticed, that the stand taken by the appellants, that the signatures were obtained on blank papers, was answered by the Court in the negative. Despite these facts, the learned Trial Court, as already noticed, partially decreed the suit and dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt while granting a relief of specific performance subject to certain conditions i.e. prior permission of the state government and permission from the society of village Pimprilokai, taluka Newasa. There are no reasons on record so as to prevent the appellant from claiming a relief of specific performance. The respondents were not able to show as to why discretion should not be grant a relief of specific performance. Since the agreement for sale, Exh. 45, is lawful one, it can be safely enforced. Consequently, the finding in respect of point No. 2 is answered in the affirmative. In view of the findings in respect of point Nos. 1 and 2, it logically follows that the judgment and decree of the learned trial court have to be set aside, and suit filed by appellant is decreed, which is for a relief of specific performance however subject to certain conditions i.e. regarding prior permission of the state government of society of village Pimprilokai. Incase, both authorities are not pleased to grant permission then appellant would be entitled to claim refund of the earnest amount from respondents which is to the tune of ₹ 10,000/-. 10. The findings and the conclusions of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r what amount the property had been mortgaged in favour of the society. In the absence of any specific evidence in that regard, the Court will have to draw an adverse inference against the appellants for not producing before the Court the best available evidence. In any case, the appellants cannot take advantage of their own wrong. Coming to the other submission, that the land could not be transferred in favour of the respondent in view of the restriction contained in Section 12(1)(c) and Section 12(2) of the Re-settlement Act, the bare reading of these provisions show that the Government can grant permission for transfer of the property, subject to such conditions, as it may deem fit and proper. 13. In the present case, the appellants have neither claimed any issue nor led any evidence before the Court to substantiate even this plea. Furthermore, the learned First Appellate Court while relying upon the judgment of this Court in the case of Nathulal v. Phoolchand AIR 1970 SC 546, had dealt with both these contentions rightly and in accordance with the law. We see no reason as to how a presumption can be raised against the respondent on face of the fact that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void. Similar view was taken by this Court in the case of Mohammadia Cooperative Building Society Ltd. v. Lakshmi Srinivasa Cooperative Building Society Ltd. and Ors. (2008) 7 SCC 310, where the Court reiterated the principle that jurisdiction of the Court to grant specific performance is discretionary and role of the plaintiff is one of the most important factor to be taken into consideration. We may also notice that in the case of P.V. Joseph's son Mathew v. N. Kuruvila's Son AIR 1987 SC 2328, this Court further cautioned that while exercising discretionary jurisdiction in terms of Section 20 of the Act, the Court should meticulously consider all facts and circumstances of the case. The Court is expected to take care to see that the process of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the respondent. The learned First Appellate Court, by a well reasoned judgment, has granted the relief of specific performance instead of only granting refund of money, as given by the Trial Court. The judgment of the First Appellate Court has been upheld by the High Court and we see no reason whatsoever to interfere with the concurrent findings of facts and law as stated in the judgment under appeal. However, the learned Counsel appearing for the respondent volunteered and after taking instructions stated that they would be willing to pay a sum of ₹ 1,50,000/- instead of ₹ 40,000/- as the total sale consideration. We find this offer of the respondent to be very fair. 18. We have already held that the defence taken up by the appellants in the suit was totally unbelievable. There is no reason or ground as to why the relief of specific performance should be declined to the respondent. She satisfied all the requirements of Section 20 of the Act. Even then, if we examine this case purely from the point of view of equity, the offer now made by the respondent substantially balances the equities between the parties and the very argument raised on behalf of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
