MOHINI KAPOOR Vs. DEEPAK UPPAL

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity Code) challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent is entitled to specific performance of agreement to sell dated 18.08.1990. Both the Courts below have concurrently found that the defendant-appellants have failed to perform their part of the contract by not obtaining the Income Tax Clearance Certificate from the concerned Department and the required permission from the Estate Officer, HUDA. It has further been held that the plaintiff-respondents have always been willing and ready to perform their part of the contract. On the aforementioned issue, detailed discussion is available in Paras 7 to 19. After referring to documentary as well as oral evidence of the parties and close analysis of the same, the learned lower Appellate Court has approved the view taken by the trial Court by observing as under :

(2.) ON the question whether specific performance of contract of sale dated 18.08.1990 is to be ordered or decree was to be passed for the alternative relief of refunding double the amount of earnest money to the plaintiff- respondent, the lower Appellate Court again accorded approval to the findings recorded by the trial Court holding that specific performance of the agreement dated 18.8.1990 has to be ordered. In the agreement dated 18.8.1990, Clause 2 has provided for such an eventuality and the same is necessary to be reproduced which reads as under :

(3.) MR . J.K. Sibal, learned Senior counsel has placed reliance on Clause 2 of the agreement to sell and has argued that once there is a contract between the parties entered with their free will giving option to one party to terminate the contract at any time and without assigning any reason then such a contract has to be considered as determinable within the meaning of Section 14(1)(c) of the Specific Relief Act, 1963 (for brevity the 'Act'). According to the learned counsel, in such like cases no specific performance of a contract of sale would be permissible and proper relief of refunding double the amount of earnest money would alone be sustainable in law. In support of his submission, learned counsel has placed reliance on the observation in para Nos. 56 and 57 of the judgment of the Supreme Court in the case of Her Highness Maharani Shanti Devi P. Gaikwad v. Savjibhai Haribhai Patel and others, 2001(1) RCR(Rent) 481 (SC) : 2001(2) RCR(Civil) 536 (SC) : (2001)5 SCC 101. Learned counsel has also relied upon another judgment of the Supreme Court in Dadarao v. Ramrao, (1999)8 SCC 416 and argued that where the agreement itself provided for contingencies if sellers are refusing to sell and purchases are refusing to buy by stipulating the refund of earnest money then there was no obligation to complete the sale transaction by passing a decree for specific performance. Learned counsel has then argued that when there is continuous steep rise in prices of the property in respect of a house located in an urban area then relief of specific performance of agreement could be refused by passing a decree for alternative relief of damages.