# Kunwar Pal Singh v. Suresh Chand - **Citation:** (2016) 5 ILRA 524 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-11 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunwar-pal-singh-v-suresh-chand-43866 - **Pages:** 3 ## Headnote Bhanu Bhushan Jauhari ................................. Specific Performance Declined - Hardship to Defendant Farmer Justified - Refund of Advance Consideration Enhanced - Registered agreement to sell dated 8.12.2005 for land at consideration of Rs. 60,000/-, advance of Rs. 50,000/- paid; defendant pleaded transaction was a security for loan; trial court (Additional Civil Judge, Senior Division, Court No. 10, Shahjahanpur) decreed specific performance; first appellate court (Civil Appeal No. 21/2015) set aside specific performance holding that disputed land near township of Shahjahanpur, consideration of Rs. 20,000/- per bigha was meager, defendant was a poor farmer whose livelihood would be jeopardized and directed refund of Rs. 40,000/- with interest; Held, findings of first appellate court regarding hardship to defendant and inequity of specific performance are in accordance with Section 20(1) and (2) of the Specific Relief Act and cannot be treated as incorrect; however, considering enhancement of real estate values and decline in currency value since 2005, refund amount enhanced from Rs. 40,000/- to Rs. 1,00,000/- with interest as directed by first appellate court. (Paras 2-13) Appeal Partly Allowed - Refund Enhanced to Rs. 1,00,000/- Case Law Discussed: Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67 ## Text 524 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 483 Of 2016 Kunwar Pal Singh ...Appellant Versus Suresh Chand ...Respondent Counsel for the Appellant: Dinesh Kumar Singh, Jitendra Pal Singh Jadaun Counsel for the Respondent: Bhanu Bhushan Jauhari ................................. Specific Performance Declined - Hardship to Defendant Farmer Justified - Refund of Advance Consideration Enhanced - Registered agreement to sell dated 8.12.2005 for land at consideration of Rs. 60,000/-, advance of Rs. 50,000/- paid; defendant pleaded transaction was a security for loan; trial court (Additional Civil Judge, Senior Division, Court No. 10, Shahjahanpur) decreed specific performance; first appellate court (Civil Appeal No. 21/2015) set aside specific performance holding that disputed land near township of Shahjahanpur, consideration of Rs. 20,000/- per bigha was meager, defendant was a poor farmer whose livelihood would be jeopardized and directed refund of Rs. 40,000/- with interest; Held, findings of first appellate court regarding hardship to defendant and inequity of specific performance are in accordance with Section 20(1) and (2) of the Specific Relief Act and cannot be treated as incorrect; however, considering enhancement of real estate values and decline in currency value since 2005, refund amount enhanced from Rs. 40,000/- to Rs. 1,00,000/- with interest as directed by first appellate court. (Paras 2-13) Appeal Partly Allowed - Refund Enhanced to Rs. 1,00,000/- Case Law Discussed: Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67 (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard learned counsel for the parties and perused the records. 2. Admittedly, the defendant Kunwar Pal Singh had executed the registered agreement to sell dated 8.12.2005 for selling his land for a consideration of Rs. 60,000/-, and received Rs. 50,000/- as advance consideration. It was admitted between the parties that within one year defendant will receive remaining consideration of Rs. 10,000/- from plaintiff and execute sale-deed of his property in question. When he had not executed sale-deed, then the plaintiff had given legal notice to him and filed suit for specific performance of contract for sale. 5 All. Kunwar Pal Singh Vs Suresh Chand 525 3. In written-statement, the defendant pleaded that he had taken loan from plaintiff, but the transaction was written in form of registered agreement to sell. In fact, it was admitted that amount of loan of Rs. 50,000/- will be returned by defendant to plaintiff within one year, then deed will be cancelled and the said registered deed will be only for security of said loan. 4. After affording opportunity of hearing to parties, Additional Civil Judge (Senior Division), Court No.-10, Shahjahanpur had decreed the suit and directed the defendant to execute sale-deed within two months after receiving remaining part of consideration from plaintiff. 5. Against the judgment of trial court, Civil Appeal No. 21/2015 was preferred by the defendant of the original suit. This appeal was heard and partly allowed by first appellate court, by which judgment dated 20.11.2014 of trial court was set aside and defendant-appellant was directed to return Rs. 40,000/- to plaintiff with interest. Aggrieved by this judgment of first appellate court, present second appeal has been preferred by the plaintiff of the original suit. 6. Learned counsel for the appellant contended that no sufficient ground for granting alternative relief was given by first appellate court, therefore, its judgment for refund of advance consideration should be set aside and judgment of trial court for specific performance of contract should be restored. 7. Learned counsel for the respondent contended that in absence of non-compliance of Section 16 (c) of the Specific Relief Act regarding non-mentioning of readiness and willingness to perform part of contract, the suit of plaintiff-appellant should have been dismissed. He further contended that the reasons given for alternative discretionary relief of refund of consideration by first appellate court are based on proper reasonings and the court was competent to grant discretionary relief of refund of money, so there is no error in judgment of first appellate court, which should be confirmed. 8. A perusal of the impugned judgment of first appellate court reveals that it has mentioned the reason for exercise of discretionary relief instead of relief of specific performance of contract. It has given finding that disputed land is very near to township of Shahjahanpur and for such land consideration of Rs. 20,000/- per bigha is inappropriately meager. It was further held that defendant is a poor former and by specific performance of contract, his source of livelihood would be jeopardized and he would suffer more inconveniences than plaintiff. 9. Section 20 of Specific Relief Act provides that "the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a court of appeal". 10. In present matter, the trial court had also appreciated the point of grant of discretionary relief in form of disposal of issue no.-3 and said point was again reconsidered by the first appellate court. The finding of the first appellate court in this regard does not appear improper or perverse. When the first appellate court had considered facts and circumstances of the matter and found that in present matter performance of contract would involve more hardship to defendant whereas its non-performance would 526 INDIAN LAW REPORTS ALLAHABAD SERIES involve no such hardship to plaintiff, and that the specific performance would be inequitable for the defendant, then such findings are apparently such which cannot be treated as incorrect or erroneous. Findings of first appellate court are in accordance with sub-section (1) and sub-section (2) of section 20 of Specific Relief Act. These findings are not such that should be interfered without any sufficient reason. 11. But this point remains pertinent that plaintiff-appellant had given amount of Rs. 50,000/- in year 2005, and from then not only valuation of the property has been enhanced but also the value of the currency has also reduced. In this regard, Apex Court had held in Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa, (2008) 12 SCC 67 as under:- "16. But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shot up very high, therefore, while exercising our jurisdiction under Section 20 of the Specific Relief Act, 1963 we would like to be equitable and would not allow the sale of property to be executed for a sum of Rs 1,20,000. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of the passage of time we direct that the respondents shall pay a sum of Rs 5 lakhs in addition to Rs 1,10,000 as out of Rs 1,20,000, Rs 10,000 has already been paid as advance. On receipt of Rs 1,10,000 and Rs 5 lakhs (Rs 6,10,000) the appellants shall execute the sale-deed for the property in question." 12. Considering the status of the parties, the enhancement of value of real estate and decline in value of currency, it appears appropriate that the relief of refund of money, as directed by first appellate court, should be enhanced. After hearing parties, it appears appropriate that said amount be enhanced from Rs. 40,000/- to Rs. 1,00,000/-. 13. In view of the above, this appeal is partly allowed. The judgment of first appellate court is amended, and the defendant-respondent is directed to pay Rs. 1,00,000/- with interest, as directed by first appellate court. Remaining directions of first appellate in impugned judgment are confirmed. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 12.05.2016 BEFORE THE HON'BLE ADITYA NATH MITTAL, J. Criminal Appeal No.- 614 Of 1997 Kripa Ram & Ors. ...Appellants Versus State Of U.P. ...Respondent Counsel for the Appellants: