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Mere delay by itself cannot be the sole factum to deny specific performance

Cause Title : Dhansukhlal Rambhai Patel vs Dhansukhlal Nagindas Kapadia, R/Second Appeal No. 42 Of 1990, High Court Of Gujarat At Ahmedabad

Date of Judgment/Order : 26/08/2022

Corum : Honourable Dr. Justice A. P. Thaker

Citied: K. Narendra V. Riviera Apartments (P) Ltd. reported in (1999) 5 SCC 77

Background

The plaintiff filed suit for specific performance of the contract against the defendants. The main defense of the defendants is regarding execution of such document under misrepresentation or fraud committed by the plaintiff taking undue advantage of the weak eye sight of the respondent no.1. The Trial Court has dismissed the suit of the plaintiff. On re-appreciation of the entire evidence, the First Appellate Court has set aside the impugned judgment of the Trial Court and has passed the decree of specific performance of contract.

Judgment

The High Court observed that the First Appellate Court has properly appreciated the entire evidence on record and its order also reveals that when the Trial Court has accepted the version of the plaintiff regarding execution of the agreement to sell by the defendants, then, as a consequence, thereof, the decree of specific performance needs to be passed, in view of the amended section 20 of the Specific Relief Act. Of course prior to the amendment of Section 20, the grant of relief of specific performance was discretionary one.

Deciding against the Appellant and referring to the decision of Hon’ble Apex Court in the case of K. Narendra V. Riviera Apartments (P) Ltd. reported in (1999) 5 SCC 77, wherein the Hon’ble Apex Court has laid down the proposition in para 29 thereof regarding section 20 of the Specific Relief Act, the High Court held that in the present case, the appellant has neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. The only plea raised by the defendant-appellant is regarding execution of the agreement to sell by fraud or misrepresentation and/ or taking undue advantage of the weak eye sight of the defendant no.1. Thus, even under the amended section 20 of the Specific Relief Act, the discretionary relief of granting specific performance of the contract needs to be passed against the defendant no.1. Moreover, it is also well settled law that mere delay by itself, without more, cannot be the sole factum to deny specific performance.

Considering the impugned judgment of the First Appellate Court, it is crystal clear that the First Appellate Court has not committed any error of facts and law in passing the impugned decree of specific performance of a contract against the defendant-appellant.

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