# Rajendra Singh v. Chandra Pal

- **Citation:** (2016) 5 ILRA 493
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-v-chandra-pal-43859
- **Pages:** 8

## Headnote

494 INDIAN LAW REPORTS ALLAHABAD SERIES
Specific Performance Decreed - Plaintiff Paid 96.25% of Sale Consideration - Suit for specific
performance (Original Suit No. 92/2009) arising out of registered agreement to sell dated 9.3.2006 for 1/4th
share of property for total consideration of Rs. 80,000/-, out of which Rs. 77,000/- (96.25%) was paid as
advance; trial court (Civil Judge, Senior Division, Chandausi, Moradabad) decreed alternative relief of refund
of advance with 12% interest holding readiness and willingness not proved; first appellate court (Civil Appeal
No. 59/2012, Additional District Judge, Court No. 12, Moradabad) reversed finding on readiness and
willingness and held same proved, but declined specific performance on ground of hardship to defendant due
to passage of time and rise in property value and confirmed refund of advance; Held, both courts failed to
properly exercise discretion under Section 20 of Specific Relief Act; escalation of property price by itself is no
ground to deny specific performance; defendant who had enjoyed 96.25% of consideration and adopted
dishonest and mala fide defences cannot be rewarded - specific performance decreed. (Paras 2-6, 11-17)

Discretion Under Section 20 Specific Relief Act - Hardship to Be Assessed at Time of Contract -
Section 20(2) Specific Relief Act examined; Held, hardship is to be assessed with reference to circumstances
existing at the time of contract under Explanation 2; plaintiff, having paid almost entire sale consideration,
would suffer serious prejudice if contract not specifically performed; defendant failed to prove any
dependence on or prejudice from execution of sale-deed; defendant sold property to a third person indicating
absence of genuine hardship; false defences pleaded throughout litigation; mala fide conduct of defendant
disentitles him to the benefit of discretionary refusal of specific performance; defendant directed to receive
Rs. 3,000/- balance consideration and execute sale-deed within two months, failing which plaintiff entitled to
get sale-deed executed through court process at defendant's cost. (Paras 9-18)

Case Law Discussed:
N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr.), (1995) 5 SCC 115
Satya Jain (D) through LR & Others v. Anis Ahmed Rushdie (D) through LRs & Others, 2013(31) LCD 558
Rathnavathi & Another v. Kavita Ganashamdas, 2015(1) Civil Court Cases 164 (SC)

## Text

5 All. Rajendra Singh Vs Chandra Pal

493
by this Court. The decision cited by the respondents in the case of M/s Aristo Printers
(Supra) of a learned Single Judge is distinguishable. In that case, a specific finding has been given
that the assessee of that case did not contend that the chemicals used by him in the process of the
cloth were consumables and that it had not passed on to the customers. In view of that finding, the
learned Single Judge held that the ink and chemicals used in the process had passed on to the
customers and consequently, were exigible to tax. In the instant case, a specific case has been stated
by the petitioners, namely, that the dyes and chemicals are consumed in the process of cloth and are
not transferred to the customers, which finding still stands and the same has not been reversed by
the assessing authority. The contention that tax on cotton fabric is now payable on account of the
exemption being withdrawn has no relevance to the issue involved in the writ petition. The issue is
one of the imposition of tax in the processing of dyeing, colouring, bleaching on the cloth. The
State Government has clearly given a decision that dyes and chemicals used in the processing of
the cloth loose their identity and are, therefore, consumables and is not a deemed sale, which
finding is binding upon the assessing authority. The payment of additional excise duty is wholly
irrelevant to the transactions made under the VAT Act. The charge under the VAT Act is on the
turnover of sale and not on the manufacture. A transaction may or may not be a manufacture but it
has to come within the definition of sale as provided under the Vat Act. If the transaction does not
satisfy the definition of sale, the question of subjecting it to tax under Vat Act does not arise.
Consequently, omission of additional excise duty as contended by the learned Special Counsel for
the State has no relevance to the issue.

12. In the light of the aforesaid, we are of the opinion that the impugned orders passed by
the assessing authority imposing tax on dyes and chemicals used in the dyeing, colouring and
printing of cloth is patently misconceived and are quashed. The writ petitions are allowed.
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 291 Of 2016

Rajendra Singh ...Appellant
Versus
Chandra Pal ...Respondent

Counsel for the Appellant:
Sri Pradeep Kumar Singhal

Counsel for the Respondent:
Sri Kshitij Shailendra
.................................
494 INDIAN LAW REPORTS ALLAHABAD SERIES
Specific Performance Decreed - Plaintiff Paid 96.25% of Sale Consideration - Suit for specific
performance (Original Suit No. 92/2009) arising out of registered agreement to sell dated 9.3.2006 for 1/4th
share of property for total consideration of Rs. 80,000/-, out of which Rs. 77,000/- (96.25%) was paid as
advance; trial court (Civil Judge, Senior Division, Chandausi, Moradabad) decreed alternative relief of refund
of advance with 12% interest holding readiness and willingness not proved; first appellate court (Civil Appeal
No. 59/2012, Additional District Judge, Court No. 12, Moradabad) reversed finding on readiness and
willingness and held same proved, but declined specific performance on ground of hardship to defendant due
to passage of time and rise in property value and confirmed refund of advance; Held, both courts failed to
properly exercise discretion under Section 20 of Specific Relief Act; escalation of property price by itself is no
ground to deny specific performance; defendant who had enjoyed 96.25% of consideration and adopted
dishonest and mala fide defences cannot be rewarded - specific performance decreed. (Paras 2-6, 11-17)

Discretion Under Section 20 Specific Relief Act - Hardship to Be Assessed at Time of Contract -
Section 20(2) Specific Relief Act examined; Held, hardship is to be assessed with reference to circumstances
existing at the time of contract under Explanation 2; plaintiff, having paid almost entire sale consideration,
would suffer serious prejudice if contract not specifically performed; defendant failed to prove any
dependence on or prejudice from execution of sale-deed; defendant sold property to a third person indicating
absence of genuine hardship; false defences pleaded throughout litigation; mala fide conduct of defendant
disentitles him to the benefit of discretionary refusal of specific performance; defendant directed to receive
Rs. 3,000/- balance consideration and execute sale-deed within two months, failing which plaintiff entitled to
get sale-deed executed through court process at defendant's cost. (Paras 9-18)

Case Law Discussed:
N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr.), (1995) 5 SCC 115
Satya Jain (D) through LR & Others v. Anis Ahmed Rushdie (D) through LRs & Others, 2013(31) LCD 558
Rathnavathi & Another v. Kavita Ganashamdas, 2015(1) Civil Court Cases 164 (SC)

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the parties and perused the records.

2. In Original Suit No. 92/2009, Rajendra Singh v. Chandrapal, the plaint case in brief was
that defendant is owner of 1/4th share of property detailed at the foot of the plaint. He had entered
into registered agreement for sale of said property in favour of plaintiff on 9.3.2006, by which it
was admitted between the parties that defendant will sell that property for consideration of Rs.
80,000/- and he had received Rs. 75,000/- as advance consideration at the time of registration of
said agreement to sell. It was agreed between the parties that sale-deed will be executed by
defendant within 11 months after receiving remaining amount of Rs. 5,000/-. Plaintiff has been
ready and willing to perform his part of contract and had repeatedly requested the defendant, but
defendant had not executed sale-deed in spite of plaintiff's reminder and registered notice served on
him. Therefore, plaintiff had filed suit for specific performance.

3. Plaint case was denied by defendant through written-statement, in which he further
pleaded that plaintiff is a money lender. When defendant had requirement for some money, so he
approached the plaintiff because he could not obtained loan from bank, then plaintiff had agreed to
grant him loan on interest, for which he took defendant to Tehsil, where defendant's photographs
5 All. Rajendra Singh Vs Chandra Pal

495
were taken and he was asked to put signatures on several documents and received Rs. 60,000/-.
After 10 months, defendant was again in need of money, so he received loan of Rs. 1,000/- from
plaintiff and had put his thumb impression and signature on several documents after getting his
photographs taken. No document was read or explained to defendant. When defendant had returned
the loan and asked the plaintiff to return document of loan, then plaintiff had not returned those
documents and filed suit on the basis of incorrect facts.

4. In replication, plaintiff reiterated his plaint averments. Thereafter the trial court had
framed issues, accepted documentary and oral evidences of the parties and then, after affording
opportunity of hearing to them, Civil Judge (Senior Division) Chandausi, Moradabad had passed
judgment dated 25.4.2012, by which suit was decreed for alternative relief of return of Rs. 77,000/-
of advance sale consideration with 12% interest. In this judgment, trial court had found this plaint
averments correct that parties had entered into registered agreement to sell of disputed property of
defendant in favour of plaintiff and had received Rs. 77,000/- as advance sale consideration. But
trial court had held that plaintiff had failed to prove its readiness and willingness in accordance
with terms of contract; and from return of advance consideration the defendant would not be
subjected to any loss. Therefore trial court considered it appropriate to grant alternative relief of
refund of advance sale consideration.

5. Against the judgment of trial court, Civil Appeal No. 59/2012, Rajendra Singh v.
Chandrapal, was preferred by plaintiff of the original suit, which was heard and dismissed by the
judgment dated 30.11.2015 of Additional District Judge, Court No.-12, Moradabad. In this
judgment, first appellate court had given specific finding that it is proved that plaintiff-appellant
has been ready and willing to perform his part of contract and was ready to get the sale-deed
executed. The first appellate court had reversed this finding of trial court that plaintiff readiness and
willingness should not be accepted, because after first notice of performance of contract, he had
given second notice after sufficiently long time. Thus the first appellate court had given every
finding in favour of plaintiff-appellant, including on point of his readiness and willingness, which
proves that the plaint case has been correct and proved. But lower appellate court had considered
the point of hardship of plaintiff and defendant, and cited some ruling of Apex Court, and held that
from the time of execution of registered agreement to sell, sufficient time has been passed and
value of property has been enhanced; therefore possible hardship to defendant by specific
performance of contract cannot be ignored. On these findings, first appellate court had confirmed
the judgment of trial court regarding refund of advance consideration of Rs. 77,000/- to plaintiff
with interest.

6. Aggrieved by the judgment of trial court as well as first appellate court, present second
appeal has been preferred by plaintiff of the original suit.

7. Learned counsel for the plaintiff-appellant contended that trial court had not disputed the
hardship of plaintiff-appellant from non-execution of agreement to sell, but had declined the relief
of specific performance merely on the ground of readiness and willingness of plaintiff being not
proved, but this readiness and willingness was held proved by first appellate court. But the finding
496 INDIAN LAW REPORTS ALLAHABAD SERIES
of first appellate court regarding alleged hardship to defendant-respondent by specific performance
of contract is based on incorrect and hypothetical grounds. He also contended that Section 20 of
Specific Relief Act provides guidelines for discretion of granting and refusing relief of specific
performance. He submitted that in present case most of the amount of full consideration was
already paid by plaintiff-appellant to defendant-respondent, who had not only enjoyed the
possession and user of disputed property, but also enjoyed almost full consideration received from
money. He further submitted that in this case, in fact, hardship was caused to plaintiff-appellant,
who had paid almost full consideration. He further submitted that lower courts had failed to
appreciate this fact at the time of granting discretionary relief that after receiving loan, defendant
had been telling lie, placing incorrect and false defences and even stated to have returned whole of
the money received from plaintiff, which is proof of his mala fide. He contended that defendantrespondent should not be rewarded of his dishonest intention in garb of discretionary relief.

8. Learned counsel for the respondent contended that in this matter interest at the rate of
12% was granted to plaintiff-appellant, which is more than normal interest and this is sufficient to
meet any inconvenience caused to him. He submitted that disputed property is only means of
livelihood of respondent. He further submits that defendant had sold property in question to third
person, which shows that there was no likelihood of any prejudice being caused to him by non
performance of contract. Therefore, appeal should be dismissed.

9. Section-20 of Specific Relief Act reads as under:

"20. Discretion as to decreeing specific performance.--(1) 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.

(2) The following are cases in which the court may properly exercise discretion not
to decree specific performance-

(a) where the terms of the contract or the conduct of the parties at the time of
entering into the contract or the other circumstances under which the contract was entered into are
such that the contract, though not voidable, gives the plaintiff an unfair advantage over the
defendant; or

(b) where the performance of the contract would involve some hardship on the
defendant which he did not foresee, whereas its non-performance would involve no such hardship
on the plaintiff;

(c) where the defendant entered into the contract under circumstances which
though not rendering the contract voidable, makes it inequitable to enforce specific performance.
5 All. Rajendra Singh Vs Chandra Pal

497
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the
contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute
an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2.--The question whether the performance of a contract would involve
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 to the contract, be determined with
reference to the circumstances existing at the time of the contract.

3) 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.

(4) The court shall not refuse to any party specific performance of a contract
merely on the ground that the contract is not enforceable at the instance of the other party."

10. The Apex Court in N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC
115 held as under:

 "5. It is settled law that remedy for specific performance is an equitable remedy and is in
the discretion of the court, which discretion requires to be exercised according to settled principles
of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for
short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was
a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove
that he had performed or has always been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than those terms the performance of which has
been prevented or waived by the defendant. The continuous readiness and willingness on the part
of the plaintiff is a condition precedent to grant the relief of specific performance. This
circumstance is material and relevant and is required to be considered by the court while granting
or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To
adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must
take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit
along with other attending circumstances. The amount of consideration which he has to pay to the
defendant must of necessity be proved to be available. Right from the date of the execution till date
of the decree he must prove that he is ready and has always been willing to perform his part of the
contract. As stated, the factum of his readiness and willingness to perform his part of the contract
is to be adjudged with reference to the conduct of the party and the attending circumstances. The
court may infer from the facts and circumstances whether the plaintiff was ready and was always
ready and willing to perform his part of the contract."

11. In present case the readiness and willingness to perform his part of the contract, as
required for the grant of relief of specific performance, is proved fact. Not only the lower courts
had given such finding in favour of plaintiff-appellant, but also this fact is explicitly clear and
498 INDIAN LAW REPORTS ALLAHABAD SERIES
evident from the fact that out of total agreed sale consideration of Rs. 80,000/- the plaintiffappellant had already paid Rs. 77,000/- which is 96.25 % of the sale consideration. This amount of
sale consideration was used and usurped by defendant-respondent who had also been enjoying the
possession of disputed property.

12. Thus almost slightly less than total consideration was utilized and enjoyed by the
defendant-respondent, who had not only been enjoying the property in question, but had already
been acting in bad faith and mala fide manner when he had been taking false defences of alleged
loan and refund of amount etc., which were found incorrect and false by the two lower courts. He
had been repeatedly telling lie, and misusing process of court by giving false evidences.

13. Section 20 (2) of the Specific Relief Act had provided certain conditions, as quoted
above, in which court may properly exercise discretion not to decree specific performance.
Considering those conditions in light of present case it is found that (a) the terms of the contract or
the conduct of the parties at the time of entering into the contract was not such could give the
plaintiff an unfair advantage over the defendant, because the plaintiff had already received more
than 96% of sale consideration, and it would be the defendant whould get unfair advantage over
plaintiff-appellant if no relief of specific performance is granted; (b) in present matter there
appeared nothing which the defendant-respondent could not foresee, and instead of defendant it
would be the plaintiff-appellant who would suffer hardship by non-performance who had paid
almost nearly whole the price of property, and when in present age of boom of property prices
would get meager amount of actual price of said land, even if the money is refunded with interest;
and (c) the defendant-respondent, after receiving of almost more than 96% of sale consideration,
had not entered into the contract under any circumstances which makes it inequitable to enforce
specific performance.

14. In Satya Jain (D) through LR and others Vs. Anis Ahmed Rushdie (D) through
Lrs and others 2013 (31) LCD 558 Apex Court had held as under:

 "The discretion to direct specific performance of an agreement and that too after elapse
of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and
acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the
Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and
contours thereof will always depend on the facts and circumstances of each case. The ultimate
guiding test would be the principles of fairness and reasonableness as may be dictated by the
peculiar facts of any given case, which features the experienced judicial mind can perceive without
any real difficulty. It must however be emphasized that efflux of time and escalation of prince of
property by itself cannot be a valid ground to deny the relief of specific performance."

15. In the case of Rathnavathi and another Vs. Kavita Ganashamdas 2015(1) Civil
Court Cases 164 (SC), the Apex Court had held as under:
5 All. Rajendra Singh Vs Chandra Pal

499
 "In our considered opinion, the High Court being the last Court of appeal on facts/law
while hearing first appeal under section 96 of CPC as well within its powers to appreciate the
evidence and came to its own conclusion independent to that of the trial court's decision. One
cannot dispute the legal proposition that the grant/refusal of specific performance is a
discretionary relief, and, therefore, once it is granted by the appellate court on appreciation of
evidence, keeping in view the legal principle applicable for the grant then further appellate court
should be slow to interfere in such finding, unless the finding is found to be either against the
settled principle of law, or is arbitrary or perverse."

16. On the basis of above discussion, I am of the considered opinion that during trial or
during first appeal court, no evidence was led by defendant-respondent to prove that his livelihood
is dependent on disputed property or that prejudice, if any, would caused to him if contract for sale
in question is specifically performed. The burden of proving such facts are on defendantrespondent who wants the court to believe it, but he had failed to discharge this burden. It is also
proved that respondent had been acting dishonestly, pleading false defences and giving false
evidences in Court to prove that he had no intention to execute agreement for sale in question and
also that no amount of plaintiff is due against him. In these circumstances, this contention of
learned counsel for the appellant is not unacceptable that plaintiff-appellant had totally proved its
plaint case and would suffer prejudice if contract for sale in question is not specifically performed,
but no prejudice would be caused to defendant-respondent in case of specific performance of
contract. This contention is also found acceptable that for acting in dishonest and mala fide way
and giving false defences and for telling lie before the Court, the defendant-respondent should not
be awarded and given benefit of his greed, nor should he be permitted to benefit of his misuse of
process of court.

17. For the reasons discussed above, it is found that plaintiff-appellant had totally
proved his case and readiness and willingness to perform his part of contract and also that if
said contract is not specifically performed, then he would be subjected to serious prejudices,
because he had been waiting for long time after paying more than 96% sale consideration,
and had been subjected to long litigation without any sufficient reason. It is also proved that
both the lower courts had not properly appreciated the point as to how discretion under
Section 20 of Specific Relief Act should be exercised. Therefore they had passed erroneous
orders. Such error of lower courts must be rectified in interest of justice. Therefore, this
appeal succeeds.

18. In view of the above, this appeal is allowed with cost throughout. Defendantrespondent is directed to receive Rs. 3,000/- of remaining sale consideration from plaintiff
and execute sale-deed of disputed property in favour of plaintiff-appellant within two
months, failing which plaintiff-respondent would have right to get the said sale-deed
executed through process of Court at the cost of defendant-respondent. The judgment dated
30.11.2015 of first appellate court passed in Civil Appeal No. 59/2012 and judgment of trial
court dated 25.4.2012 passed in Original Suit No. 92/2009 (Rajendra Singh v. Chandrapal)
are accordingly amended.
500 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.05.2016

BEFORE

THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Appeal No.- 349 Of 1994

Ayodhya Prasad ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Sri A.R. Siddiqi, Sri Abdul Raffey Siddiqi, Sri Kiran Kumar Butpori

Counsel for the Respondent:
Govt. Advocate
.................................

Conviction Under Sections 363, 366 & 376 IPC Upheld - Testimony of Prosecutrix Inspires Full
Confidence- Appellant convicted by VIth Additional Sessions Judge, Faizabad (Session Trial No. 129 of 1992)
for enticing away a minor girl aged about 12 years from her school on 29.03.1990 and committing rape;
victim PW-2 categorically stated she was enticed away on a bicycle, taken to Kanpur where she was subjected
to forcible rape for about one and a half months and was threatened upon resistance; brother of victim PW-3
(a child witness) independently corroborated that he was allured by Rs. 5/- to call his sister outside school;
FIR lodged on same day at 16:30 hours; victim recovered on 20.05.1990 and within two days appellant filed
surrender application before court - conduct of appellant going against him; no enmity between parties; no
element of artificiality or unnaturalness found; plea of consent repelled as victim specifically stated rape was
committed forcefully with threats; no consent proved by appellant; trial court judgment upheld on conviction.
(Paras 1-12)

Absence of Injuries No Ground to Disbelieve Prosecutrix - Sentence Modified- Contention that
absence of injuries on private parts of victim makes prosecution story doubtful, repelled relying upon settled
position of law; age of victim found to be below seventeen years at time of incident being student of Class-IV
- offences under Sections 363, 366 and 376 IPC proved; Held, sentence for Section 363 IPC subsumed in
Section 366 IPC conviction; considering that incident occurred in 1990 and 26 years have passed, sentence for
Section 376 IPC modified from five years R.I. to three years R.I. with fine of Rs. 10,000/- (default three
months imprisonment); conviction and sentence under Section 366 IPC of three years R.I. upheld; sentences
to run concurrently; period already undergone set off; appellant directed to surrender within two weeks.
(Paras 7-13)

Appeal Partly Allowed

Case Law Discussed:
1. Kaini Rajan v. State of Kerala, (2013) 9 SCC 113
2. Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88