Delhi District Court
Sh. Ram Asrey Sharma vs Sh. Suresh Sharma on 7 July, 2018
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL
DISTRICT JUDGE03 (CENTRAL DISTRICT), TIS HAZARI
COURTS, DELHI
CS No. 503/16
New CS No. 10444/16
In the matter of:
Sh. Ram Asrey Sharma,
S/o late Kapil Dev Sharma,
R/o M130, Gali no. 9,
Shastri Nagar, Delhi - 52. ...... Plaintiff
Versus
Sh. Suresh Sharma,
S/o late Chaturbhuj Sharma,
R/o M134, Gali no. 9,
Shastri Nagar, Delhi 52. ..... Defendant
SUIT FOR RECOVERY OF MONEY AND/OR FOR SPECIFIC
PERFORMANCE & PERMANENT INJUNCTION
Suit instituted on - 05.07.2011
Judgment pronounced on 07.07.2018
JUDGMENT
1. Plaintiff (vendee) and defendant (vendor) entered into an CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 1 of 20 pages New CS No. 10444/16 Agreement to Sell on 17.08.2009 for a total sale consideration of Rs. 52,11,000/ qua property no. M134, Gali no. 9, Shastri Nagar, Delhi - 52 measuring 50 sq. yards. Plaintiff claims to have paid earnest money of Rs. 10,11,000/ to the defendant on the same day i.e. 17.08.2009. As per the requirements of defendant/vendor, plaintiff made part payments to him from time to time. Details of all the payments made to the defendant, as per the plaintiff, are as follows: Sl. No. Date Payment (All payments in cash)
1. 17.08.2009 Rs. 10,11,000/ (towards earnest money)
2. 20.09.2009 Rs. 5,00,000/
3. 23.09.2009 Rs. 5,00,000/
4. 28.09.2009 Rs. 19,00,000/ Total Rs. 39,11,000/
2. Date fixed for execution and registration of the sale deed was 11.10.2009. Plaintiff avers that he approached the defendant for execution and registration of the sale deed after arranging the balance sum of Rs. 13 lacs, but the latter failed to perform his part of the contract and disclosed that the original property documents had been mortgaged with Canara Bank, Shastri Nagar Branch, Delhi. Nonetheless, defendant assured the plaintiff that he would make the payments to Canara Bank, obtain the original documents and would then execute the necessary sale deed in his favour. The defendant, however, CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 2 of 20 pages New CS No. 10444/16 postponed the matter on one pretext or the other, but the plaintiff in good faith took no action against him.
3. Thereafter, several meetings were held between the parties as also the property dealer, but to no avail. On 20.05.2011 defendant approached the plaintiff and informed him that he had arranged for the money to be paid to the bank and requested him to give the original Agreement to Sell in order to show to the bank and assured that after getting the original title documents from the bank he would execute the sale deed in his favour. On 26.05.2011 when the plaintiff asked the defendant about return of his (defendant's) title documents and registration of the sale deed in his favour, the latter not only refused to execute the sale deed, but also refused to return the money paid to him and threatened that he would sell the property to someone else for a higher price. Plaintiff then lodged a complaint dt. 26.05.2011 with PS Sarai Rohilla, but to no avail. Plaintiff avers that in terms of clause 2 of the Agreement to Sell, he is entitled to sue for specific performance, and in the alternative to get double the amount paid by him to the defendant. And then in paragraph no. 11 of his plaint he goes on to aver that 'defendant has no right or authority to sell/transfer or create any third party interest till the time the completes the deal with him i.e. without making the payment of Rs. 78,22,000/ towards double the earnest money of Rs.
CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 3 of 20 pages New CS No. 10444/16 39,11,000/'. On these averments, plaintiff seeks the following reliefs:
i) A decree for recovery of Rs. 78,22,000/ i.e. double of Rs. 39,11,000/ paid as earnest money.
ii) A decree for specific performance thereby directing the defendant to execute the sale deed for property no. M134, Gali no. 9, Shastri Nagar, Delhi -52 after receipt of balance sum of Rs. 13 lacs and to hand over vacant and peaceful possession of the same.
iii) A permanent injunction decree thereby restraining the defendant, his associates and representatives from selling, transferring/ alienating or creating third party interest in built up property bearing no. M134, Gali no. 9, Shastri Nagar, Delhi52 measuring 50 sq. yards.
4. Defendant filed his written statement. He denies receiving Rs. 39,11,000/ from the plaintiff. He avers that he had received Rs. 10,11,000/ only from him; Rs. 5,11,000/ having been received on 12.08.2009 and Rs. 5,00,000/ on 17.08.2009. He asserts that the agreement was to be performed by the parties on or before 11.10.2009, time being the essence of the contract and there was no clause in the agreement for extension of time. He avers that the plaintiff did not pay the entire amount before the scheduled date of 11.10.2009 so as to enable him to repay the bank loan and get the original title documents released from the bank for execution and registration of the sale deed in his (plaintiff's) favour. He thus submits that the plaintiff having CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 4 of 20 pages New CS No. 10444/16 failed to pay the balance amount of Rs. 42 lacs and having not purchased the stamp papers of requisite value lacked readiness and willingness to perform his part of the contract. He goes on to state that the plaintiff never wrote to him that he had the balance amount or that the draft sale deed was ready or that he had purchased the stamp papers. He adds that complete inaction on plaintiff's part from 17.08.2009 to 20.05.2011 only goes on to show that he had no intention or capacity to perform his part of the agreement. Since the plaintiff, it is stated, failed to perform his part of the contract, the Agreement to Sell dt. 17.08.2009 automatically came to an end and the same is no longer a valid contract.
5. Defendant points out that plaintiff has not averred that he was ready and willing to perform his part of the contract and as such the suit is barred by section 16 (c), Specific Relief Act. According to him, the suit is also barred by sections 10 and 14 and various other provision of Specific Relief Act. He alleges that it is the plaintiff who violated the terms of the Agreement to Sell and as such he is not entitled to the relief of specific performance. He avers that it was in fact the plaintiff who had approached him to buy the property through a property broker, namely, Suresh Prashar.
6. Defendant asserts that he had very well disclosed to the plaintiff even prior to execution of Agreement to Sell dt.
CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 5 of 20 pages New CS No. 10444/16 17.08.2009 that the property in question stood mortgaged with Canara Bank, Shakti Nagar, Delhi by handing over the original title deed. Denying the incident that allegedly took place on 20.05.2011, defendant states that he never asked the plaintiff to hand over the original Agreement to Sell to him. He submits that no prudent person would believe that for the release of original title deeds, the bank would insist for the subsequent Agreement to Sell. He alleges that the photocopy of the Agreement to Sell (Ex. PW1/1) furnished on record by the plaintiff showing the alleged acknowledgment/endorsement is forged and fabricated. Asserting that he did not receive Rs. 39,11,000/, defendant submits that he never signed any purported acknowledgment/receipt. He denies meeting the plaintiff on 26.05.2011. He states that he has already sold out the property in question to one Smt. Shama Rani wife of Praveen Kumar vide sale deed dt. 12.08.2011. He vehemently denies that plaintiff after arranging the balance sum of Rs. 13 lacs approached him for execution and registration of sale deed and that he (defendant) failed to perform his part of the contract. He states that he has already forfeited the earnest money paid by plaintiff to him on account of his (plaintiff's) failure to perform his part of the contract. Denying other averments, defendant seeks dismissal of the present suit.
7. Plaintiff filed his replication wherein he reiterated and CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 6 of 20 pages New CS No. 10444/16 reaffirmed his averments as set out in the plaint.
8. Issues, framed on 21.11.2012, are as follows:
1. Whether the plaintiff is entitled to the grant of decree to seek specific performance of the agreement to sell dated 17.08.2009 or in the alternative the plaintiff can be granted a decree for the recovery of an amount of Rs. 78,22,000/? OPP
2. Whether the plaintiff is entitled to grant of decree of permanent injunction in terms of prayer (ii) of the plaint? OPP
3. Whether the plaintiff failed to perform his part of his obligation in terms of agreement to sell dated 17.08.2009? OPD
4. Whether the plaintiff was not ready and willing to perform his part of his obligation in terms of the agreement to sell dated 17.08.2009? OPD
5. Whether the suit filed by the plaintiff is barred u/s 16
(c), 20 and 14 of the Specific Relief Act? OPD
6. Relief.
9. In plaintiff's evidence, plaintiff (PW1) was his sole witness. Plaintiff (PW1) was examinedinchief and crossexamined on 01.05.2015 and on which day (01.05.2015) plaintiff's evidence stood closed. In defendant's evidence, defendant Suresh Sharma (DW1) was examinedinchief and partly crossexamined on 14.03.2007. Defendant thereafter stopped appearing and he suffered the proceedings ex parte vide Order dt. 31.07.2017.
10. Arguments heard. Record perused.
CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 7 of 20 pages New CS No. 10444/16
11. Issuewise findings are as follows:
12. Issues no. 3 and 4 These two issues are taken up together. It is not in dispute that the property in question was agreed to be sold for a total consideration of Rs. 52,11,000/. However, on the point of the money advanced towards purchase of this property the parties differ. As per the plaintiff, he had advanced a total of Rs. 39,11,000/ in four installments and all the payments had been made in cash. Defendant however refutes this. As per the defendant, the plaintiff had paid him only Rs. 10,11,000/ in two installments; firstly Rs. 5,11,000/ on 12.08.2009 and then Rs. 5,00,000/ on 17.08.2009. Plaintiff in support of his claim about payment of Rs. 39,11,000/ relied on handwritten notings on the back page of document Ex. PW1/1, which is a colour photocopy of the Agreement to Sell dt. 17.08.2009. Defendant (DW1), in his crossexamination, admitted his signature at the bottom of this agreement. He (DW1) however denied his purported signatures on the handwritten notings on the back page of Ex. PW1/1. Even in his written statement, he had denied receiving the payments as reflected in the handwritten notings on the back page of document Ex. PW1/1. The original of document Ex. PW1/1 is not on record. As per the plaintiff, defendant had taken away the same from him on the pretext of showing it to the bank officials, and which averment the latter refuted. Inasmuch as the original CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 8 of 20 pages New CS No. 10444/16 of the same is not on record, even the handwritten notings on the back page thereof are not in the original and in such an eventuality it was incumbent on the part of the plaintiff to prove the handwritten notings by way of secondary evidence. And in order to lead secondary evidence under sections 63/65, Evidence Act, it was essential for the plaintiff to first establish that the original of Ex. PW1/1 was in power and possession of the adverse party i.e. the defendant as claimed by him. However, plaintiff's plea that original of document Ex. PW1/1 was in power and possession of the defendant is highly doubtful and stands not proved. Plaintiff claims that on 20.05.2011 the defendant approached him and informed that he had arranged for the money to be paid to the bank and requested him to give the original Agreement to Sell in order to show to the bank and assured that after getting the original title documents from the bank he would execute the sale deed in his favour. This assertion of the plaintiff cannot be believed. It is inconceivable to think that for the release of original title deeds, the bank would insist for the subsequent Agreement to Sell. It is pertinent to mention here that the defendant could certainly not be asked to prove a negative fact/assertion that he had not taken the original Agreement to Sell from the plaintiff. Onus to prove this assertion of handing over of the Agreement to Sell was squarely on the plaintiff and he has failed to prove it. Further, the CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 9 of 20 pages New CS No. 10444/16 handwritten notings on document Ex. PW1/1 purportedly show a cash payment of Rs. 5 lacs made on 20.09.2009. Next to this handwritten noting of 20.09.2009, there is a signature of a witness. This witness, who had appended his signatures on 20.09.2009 ostensibly in respect of the cash payment, did not step into the witness box. The examination of this witness was although more essential as the plaintiff was only relying on the photocopy of the handwritten notings on the back page of Ex. PW1/1. Furthermore, the payments (Rs. 5,00,000/ on 20.09.2009, Rs. 5,00,000/ on 23.09.2009 and Rs. 19,00,000/ on 28.09.2009) were made in cash and in very quick succession. Plaintiff in his plaint does not explain the source of these three cash payments. He does not furnish his income tax returns. Plaintiff (PW1) in his crossexamination states that he is into business and that he files income tax returns of Rs. 6.00 6.50 lacs per annum. Therefore, for a person of annual income of Rs. 6.00 - 6.50 lacs to make payments of huge amounts (Rs. 5,00,000/ on 20.09.2009, Rs. 5,00,000/ on 23.09.2009 and Rs. 19,00,000/ on 28.09.2009) and that too in very quick succession appears to be somewhat inconceivable and little doubtful. Plaintiff (PW1) in his crossexamination explained that he had taken Rs. 5 lacs from his son Girija Narain Sharma; that the third installment of Rs. 5 lacs paid on 23.09.2009 was out of his own funds; and that for payment of the last installment of Rs. 19 CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 10 of 20 pages New CS No. 10444/16 lacs, he had taken Rs. 5 lacs from Ravi Kant Sharma and the remaining Rs. 14 lacs was available with him in cash at his residence. Girija Narain Sharma and Ravi Kant Sharma did not step into the witness box. That apart, there is no material/document on record to show that Girija Narain Sharma and Ravi Kant Sharma had in fact advanced loans of Rs. 5 lacs each to the plaintiff. There is also no material/document on record to show that Girija Narain Sharma and Ravi Kant Sharma in fact possessed money to the tune of Rs. 5 lacs each. In short, the selfserving ipse dixit of the plaintiff, sans any cogent material whatsoever on record to support his claim that he made cash payments (Rs. 5,00,000/ on 20.09.2009, Rs. 5,00,000/ on 23.09.2009 and Rs. 19,00,000/ on 28.09.2009) to the defendant, cannot be accepted. The available evidence on record goes to prove that plaintiff had advanced Rs. 10,11,000/ only to the defendant, which the latter admits.
13. Thus, from the available evidence on record, it stands proved that plaintiff had paid Rs. 10,11,000/ only to the defendant towards purchase of the property. This left a balance of Rs. 42 lacs that was still to be paid. Plaintiff did not pay this amount by the scheduled date i.e. 11.10.2009. Plaintiff has not been able to establish that he had with him the balance funds of Rs. 42 lacs as on 11.10.2009. He has not filed his bank account statement of the relevant period showing that the balance CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 11 of 20 pages New CS No. 10444/16 amount of Rs. 42 lacs was available with him. Not only this, there is no other document on record to even remotely suggest that he possessed the balance amount of Rs. 42 lacs as on 11.10.2009. Conversely, if the plaintiff's averment that only Rs. 13 lacs was still to be paid be accepted as the gospel truth, yet plaintiff has no material/document whatsoever to establish that he had with him Rs. 13 lacs as on 11.10.2009. This Court is of the view that the plaintiff failed to perform his part of the obligations as enjoined upon him by the Agreement to Sell dt. 17.08.2009.
14. It cannot go unnoticed that there is not a single averment in the entire plaint that plaintiff was ready and willing to perform his part of the contract in terms of the Agreement to Sell. The fact that plaintiff was not in possession of the balance funds of Rs. 42 lacs only goes to show that he was not ready and willing to perform his part of the contract. Further, this lack of readiness and willingness on the part of the plaintiff is also evident from the fact that the plaintiff at no point of time purchased any stamp papers for execution of the sale deed. That apart, there was complete inaction on plaintiff's part from 17.08.2009 till 20.05.2011. This only goes to show that he (plaintiff) had no intention or capacity to perform his part of the contract. Between the period 17.08.2009 to 20.05.2011 plaintiff at no point of time ever wrote to the defendant. In the plaint, he CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 12 of 20 pages New CS No. 10444/16 merely states that several meetings were held between him, the defendant and the property dealer. However, he does not give any details of such meetings. This inaction for 21 months reflects lack of readiness and willingness on his part. Plaintiff (PW1) in his crossexamination tried to explain this away by deposing that inasmuch as the defendant was his neighbour he did not feel the need to ever write any letter to him. However, this explanation on the plaintiff does not seem to be credible. The evidence on record only shows absolute inaction on plaintiff's part for 21 months between the period 17.08.2009 to 20.05.2011.
15. Plaintiff took the stand that it was in fact the defendant who was at fault inasmuch as the latter never informed him about the mortgage of the property with the bank and that he came to know of it subsequently. Even assuming this stand of the plaintiff to be the gospel truth, yet the question to be asked is whether he himself was ready with the balance funds as on 11.10.2009. The answer to this has to be categorically in the negative. The material on record clearly indicates that as on 11.10.2009 the plaintiff was never ready and willing to perform his part of the agreement. Therefore, when the plaintiff himself was not ready and willing, he cannot then shift the blame to the other side for the ultimate failure of the deal. Had the plaintiff in the very first place shown his readiness and willingness, then the question of the defendant not having conveyed to him about CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 13 of 20 pages New CS No. 10444/16 the mortgage at the time of execution of the Agreement to Sell would have come into the picture. Plaintiff being himself at fault cannot therefore point fingers at the defendant. Plaintiff cannot seek to prove his case in an indirect manner by urging that defendant's case has a certain deficiency or that there had been noncompliance of a certain obligation on his part. Plaintiff must stand on his own legs. To put it in other words, a plaintiff must succeed on the strength of his own case and not on the strength of deficiencies, if any, in defendant's case. He cannot raise the edifice of his case by highlighting the deficiencies / loopholes in defendant's case. In this regard, the following decisions can be referred to: Sankar Kumar & Anr. vs. Mohanlal Sharma, AIR 1998 Orissa 117; Shiv Nandan Sachdeva (Sh.) vs. Smt. Ruby, 2009 V (Delhi) 55; Umesh Bondre vs. Wilfred Fernandes, AIR 2007 Bombay 29; M. P. Narayan vs. Sm.
Sudhadevi & Ors., AIR 1986 Cal 256; State of West Bengal vs. Subimal Kumar Mondal & Anr., AIR 1982 Cal 251 and Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Others, (2004)7 SCC 708 : JT 2004 (6) SC 556. It appears that plaintiff took this plea merely to cover up his own shortfalls.
16. The discussion on these two issues is concluded by holding that plaintiff failed to perform his part of the obligations as CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 14 of 20 pages New CS No. 10444/16 enjoined upon him in the Agreement to Sell dt. 17.08.2009. It is further observed that plaintiff was not ready and willing to perform his part of the obligations in terms of the Agreement to Sell dt. 17.08.2009.
17. Issue no. 1 The issue is whether the plaintiff is entitled to the grant of decree to seek specific performance of the agreement to sell dated 17.08.2009, or in the alternative whether he can be granted a decree for recovery of Rs. 78,22,000/, onus of proof being on the plaintiff. It is already observed hereinabove that the plaintiff was never ready and willing to perform his part of the contract and that he had not performed his part of the obligations. It bears repetition to state that there is not a single averment in the plaint that the plaintiff was ready and willing to perform his part of the contract. That apart, a holistic reading of the plaint (in particular paragraph 11 of the plaint) reflects that the plaintiff is really not interested in specific performance of the contract and he is rather interested in recovery of Rs. 78,22,000/. It is thus held that that plaintiff is not entitled to the specific performance of the contract.
18. The other limb of this issue is whether in the alternative plaintiff can be granted a decree for recovery of Rs. 78,22,000/. Plaintiff claimed this amount being the double of Rs. 39,11,000/ that he claims to have advanced to the defendant. The basis of CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 15 of 20 pages New CS No. 10444/16 this claim is that as per clause 2 of the Agreement to sell he is entitled to claim double the earnest money. To begin with, as already observed the evidence on record proves that the plaintiff had advanced a sum of Rs. 10,11,000/ only to the defendant and not Rs. 39,11,000/ claimed by him. Plaintiff's claim that in terms of clause 2 of the Agreement to Sell dt. 17.08.2009 he ought to be refunded double the money paid by him. Such a claim is not legally tenable for following reasons. Firstly, as already observed hereinabove, the material/evidence on record clearly indicates that the plaintiff was not ready and willing to perform his part of the contract and he did not in fact fulfill his obligations under the Agreement to Sell dt. 17.08.2009. The plaintiff himself being at fault, he cannot therefore seek to recover double the amount paid by him to the defendant. That apart, the clause for payment of double amount is clearly in terrorem. Such a clause would clearly be hit by sections 73/74, Contract Act, being in the nature of penalty. Under the extant law, the plaintiff cannot thus be entitled to recover double the amount paid by him to the defendant towards purchase of the property in question.
19. The stand of the defendant that plaintiff, being guilty of breach of contract, is not entitled to refund of the money paid and that the same stood forfeited would not be tenable. The amount of Rs. 10,11,000/ can be forfeited only if defendant CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 16 of 20 pages New CS No. 10444/16 proves that he had suffered a loss or legal injury of Rs. 10,11,000/ and not otherwise. The fact that Agreement to Sell Ex. PW1/1 contained a clause for forfeiture of the earnest amount would not enable the defendant, under the extant law, to retain the same. Sections 73 and 74, Contract Act, would hit such a clause being in the nature of 'penalty'. Two relevant judgments in this regard are a Constitution Bench judgment of Apex Court in Fateh Chand vs. Balkishan Dass, AIR 1963 SC 1405 and Kailash Nath Associates vs. Delhi Development Authority and Another, (2015) 4 SCC 136. Thus, it is the view of this Court that defendant ought to refund Rs. 10,11,000/ to the defendant. Invoking Order VII Rule 7, CPC, it is ordered that on this amount of Rs. 10,11,000/ plaintiff shall be entitled to pendente lite and future interest of 8% per annum only.
20. This is issue is answered in the following terms. The plaintiff is not entitled to decree for specific performance. Plaintiff is however entitled to refund of Rs. 10,11,000/ from the defendant together with pendente lite and future interest of 8% per annum thereon.
21. Issue no. 2 The issue is whether the plaintiff is entitled to grant of decree of permanent injunction in terms of prayer (ii) of the plaint, onus of proof being on the plaintiff. Inasmuch as the plaintiff is not entitled to the relief of specific performance of CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 17 of 20 pages New CS No. 10444/16 contract, he cannot be entitled to the relief of permanent injunction as prayed by him. That apart, under section 54, Transfer of Property Act a mere Agreement to Sell creates no charge or any interest in any property. This issue is accordingly decided against the plaintiff.
22. Issue no. 5 The issue is whether sections 16 (c), 20 and 14 of Specific Relief Act bar the instant the suit of the plaintiff, onus of proof being on the defendant. This issue is answered in the following terms.
(a) Section 14 (1), Specific Relief Act enumerates the contracts that cannot be specifically enforced. The contract in the present case does not fall within the ambit of section 14 (1), Specific Relief Act. This suit is not hit by section 14 (1), Specific Relief Act.
(b) Section 16 (c), Specific Relief Act mandates that a person would not be entitled to the relief of specific performance who fails to aver and prove that he was always ready and willing to perform the essential terms of the contract. It bears repetition to state that there is no averment whatsoever in the entire plaint that plaintiff was ready and willing to perform his part of the contract. A holistic reading of the plaint reflects that plaintiff was essentially seeking CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 18 of 20 pages New CS No. 10444/16 to recover Rs. 78,22,000/. Further, as discussed hereinabove the evidence on record also does not show that plaintiff was ready and willing to perform his part of the contract. Consequently, findings of fact in the discussion on the aforesaid issues entail that the relief of specific performance is hit by section 16 (c), Specific Relief Act. However, section 16 (c), Specific Relief Act does not bar plaintiff's claim to recovery of money.
(c) Section 20 (1), Specific Relief Act merely states that the relief of specific performance is a discretionary one. Section 20 (2), Specific Relief Act enumerates three circumstances under which the Court may exercise its discretion not to decree specific performance. Section 20, Specific Relief Act does not as such hit the very institution or maintainability of the suit. Whether or not the discretion is to be exercised would be essentially depend upon the material/evidence brought forth in a particular case. As already observed hereinabove in the present case, this Court has exercised its jurisdiction not to decree specific performance.
23. Relief In view of the above, the suit stands decreed in plaintiff's favour and against the defendant in the sum of Rs.
CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 19 of 20 pages New CS No. 10444/16 10,11,000/ together with pendente lite and future interest @ 8% per annum thereon. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally
signed by
MURARI
MURARI PRASAD
PRASAD SINGH
Date:
SINGH 2018.07.07
16:12:07
ANNOUNCED IN THE OPEN +0530
COURT ON 07.07.2018
(M. P. SINGH)
ADJ03 (CENTRAL)
TIS HAZARI COURTS:
DELHI
CS No. 503/16 Ram Asrey Sharma Vs. Suresh Sharma page 20 of 20 pages
New CS No. 10444/16