CIVIL

SUPREME COURT`S VIEW ON DISCRETIONARY REMEDY

Remedy of specific performance is an equitable remedy. In Order to obtain such discretionary relief, plaintiff has to come to the Court with clean hands. Entire facts of the case have to be pleaded. There should be no attempt on the part of the plaintiff to conceal the facts.

 Since the remedy of specific performance is a discretionary remedy and equitable in nature, plaintiff has to produce materials with respect to his/her readiness and willingness at all point of time. The conduct of the plaintiff assumes significance in a case like this. Court was expected to weigh the materials produced by the plaintiff to come to a definite conclusion pertaining to the readiness and willingness to perform the contractual obligation voluntarily undertaken by the plaintiff. Any action on the part of the plaintiff to take undue advantage of the situation would give negative results and he/she would be denied the equitable remedy. The conduct of the plaintiff throughout should be taken note of to decide the issue regarding exercise of discretionary jurisdiction. In short, in a matter relating to sale of property, Court is not bound to grant specific performance for a mere asking.

In Gobind Ram v. Gian Chand , (2000) 7 SCC 548, the discretionary jurisdiction of specific performance was indicated by the Supreme Court thus :-

“7.It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it will be fair, just and equitable. The court is guided by principle of justice, equity and good conscience. As stated in P.V. Joseph?s Son Mathew the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered.”

The Supreme Court in G.Jayashree v. Bhagwandas S. Patel,(2009) 3 SCC 141, indicated the concept of discretionary jurisdiction thus :- “32. The civil courts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law.

 In Parakunnan Veetill Joseph’s Son Mathew v. Nedumbara Kuruvila’s Son (1987) Supp. SCC 340, the Supreme Court considered the scope and ambit of Section 20 of the Specific Relief Act and observed thus:

“Section 20 of the Specific Relief Act 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.”

The Supreme Court in Bal Krishna v. Bhagwan Das, (2008) 12 SCC 145, indicated that if specific performance would give unfair advantage to the plaintiff, no decree should be given.

“13. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as ?the Act?) corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff?s readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court.

 It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court?s discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.”

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