GAYATRI GUPTA Vs. RUBY SHARMA & ORS

JUDGEMENT

(1.) Cm No. 3419/2019 (condonation of delay in re-filing)

(2.) Though the trial court has not referred to the judgment of the Hon'ble Supreme Court in the case of Saradamani Kandappan v. S. Rajalakshmi and Others, 2011 12 SCC 18, the reasoning of the trial court is based upon the ratio of the judgment of the Hon'ble Supreme Court in the case of Saradamani Kandappan (supra), and the above judgment states that by paying only a small ption out of the total sale consideration as advance, a buyer cannot be allowed to have a decree of specific perfmance many years later when property prices have considerably increased in the meanwhile, and thereby a seller is prejudiced because the seller cannot purchase a similar property many years later on the same sale price of a property as was agreed many years ago under the earlier agreement to sell. I have considered the judgment of the Hon'ble Supreme Court in the case of Saradamani Kandappan (supra) f refusing the discretionary relief of specific perfmance in the judgment in the case of M/s Hotz Industries Pvt. Ltd. v. Dr. Ravi Singh (Since Deceased Through LRs) & Ors., 2018 249 DLT 638. The relevant paras of this judgment are paras 20(i) to 23, and these paras read as under: -

(3.) The aforesaid paras, being the ratio of the judgment in the case of M/s Hotz Industries Pvt. Ltd. (supra) will squarely apply to the facts of the present case where the appellant/plaintiff has only paid about 8% of the sale consideration as advance. I may at this stage note that the trial court has wrongly written that about 39% of the total sale consideration was paid, because the fact of the matter is that actually only a sum of Rs. 1,88,000/- has been paid by the appellant/plaintiff/buyer under the Agreement to Sell. The trial court has possibly got confused, as the difference between 8% and 39% is on account of availability of funds as loan for finalizing the sale transactions with the appellant/plaintiff, but the issue is not the availability of funds with a buyer, but the principle issue is as to what is the actual amount paid in advance by a buyer to a seller under an agreement to sell. Therefore, the appellant/plaintiff having only paid 8% of the sale consideration was not entitled to the discretionary relief of specific performance and the trial court has rightly so held in this regard.