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TMI Blog2015 (9) TMI 1686X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of clause (b). Explanation 2 provides that the question whether the performance of a contract when involved hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent in the contract, be determined with reference to the circumstances accepting at the time of contract. Sub-section (3) provides that the court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. In the present case, it appears that possession was not given to the plaintiff at the time of execution of the agreement, nor the area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the parties and perused the papers on record. 3. Brief facts of the case are that respondent-plaintiff filed Title Suit No. 4 of 1993 for specific performance of agreement, possession and injunction before the Civil Court at Howrah, in respect of Danga land measuring 8 cottahs 14 chitak 24 sq ft, recorded as 16 shatak in RS Dag No. 271, Khatian No. 74, and in recent settlement record the same has been recorded in Dag No. 273, Khatian No. 602 within Mouza Pakuria, PS Domjur, District Howrah. As per the agreement dated 4-2-1992, the defendant (Mishrilal Mondal) agreed to sell the land at the rate of ₹ 15,000 per cottah in favour of the plaintiff (Ganesh Chandra Naskar), and received ₹ 60,000 as earnest money, and rest of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disposed of the suit directing the defendant to refund the earnest money of ₹ 60,000 to the plaintiff. The said judgment and decree dated 29-6-2002, passed by the Civil Judge (Senior Division), 3rd Court, Howrah, was challenged by the plaintiff who filed Title Appeal No. 139 of 2002. The same, after hearing the parties, was allowed, and it was directed by the first appellate court that the defendants shall execute sale deed after accepting balance amount of ₹ 73,125 from the plaintiff. 6. The judgment and decree dated 22-12-2003, passed in Title Appeal No. 139 of 2002 was challenged by the defendants in Second Appeal No. 430 of 2004, and the High Court passed impugned judgment, modifying the decree passed by the first appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss than 10 cottahs as mentioned in the schedule below, you will pay the balance amount which will be calculated for the less area of land @ ₹ 15,000 and I along with my heirs and representatives shall remain bound to register the sale deed in your favour for the land as mentioned in the schedule below. 8. The description of the schedule property for which advance is taken, gives following details at the end of the terms mentioned in the agreement (Annexure P-8): description of schedule property for which advances taken Under District Howrah, District Registrar Office, Howrah, Sub-Registry Office, Domjur, PS Domjur and within Mouza Pakura mentioned in old parcha (record) in Khatian No. 177 (one hundred seventy-seven) in Dag N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 73,125 on 13-1-2004/16-1-2004 with the civil court, in favour of the appellants, is annexed with the counter-affidavit. 12. Though the appellants have pleaded that Mishrilal Mondal was not the absolute owner of the land, however, the said plea appears to have not been accepted by none of the courts below. Moreover, the legal heirs of the original defendant are not only bound by the agreement executed by him, but also by the pleas taken by the original defendant in his written statement before the trial court. 13. Having heard the learned counsel for the parties, we are not inclined to interfere with the findings affirmed by the High Court. On consideration of the submissions of the rival parties in the present appeal the only point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2 provides that the question whether the performance of a contract when involved hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent in the contract, be determined with reference to the circumstances accepting at the time of contract. Sub-section (3) provides that the court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 16. In the present case, it appears that possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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