The provision clearly indicates that when an obligation
enforceable by law is created, the party under the obligation cannot
be allowed to escape from it on flimsy excuse especially in a
transaction wherein a promise is made to transfer valuable
immovable property.
25. There must be proof of a proper explanation or
justification from the defendant to avoid the agreement or for the
delay that has occurred to execute the sale deed in favour of the
plaintiff. In the aforesaid manner, the burden lies on both the
parties to prove their respective contentions. True it is that, specific
performance of a contract is an equitable relief and equity of both
the sides has to be weighed. Prices of immovable property do
escalate. As a general rule, one cannot say that ordinarily the
plaintiff cannot be allowed to have, for him alone, the entire benefit
of phenomenal increase of the value of the suit property during the
pendency of the litigation. While balancing the equities, one of the
consideration to be kept in view is as to who is the defaulting party.
It is also to be borne in mind whether any party is trying to take
undue advantage over the other party as also the hardship that
may be caused to the defendant by directing the relief of specificperformance. There may be other circumstances upon which parties
may not have any control. Totality of the circumstances in the case
is required to be seen. Ordinarily, as of rule, the relief of specific
performance ought to be granted and only rarely the relief of
enforceable by law is created, the party under the obligation cannot
be allowed to escape from it on flimsy excuse especially in a
transaction wherein a promise is made to transfer valuable
immovable property.
25. There must be proof of a proper explanation or
justification from the defendant to avoid the agreement or for the
delay that has occurred to execute the sale deed in favour of the
plaintiff. In the aforesaid manner, the burden lies on both the
parties to prove their respective contentions. True it is that, specific
performance of a contract is an equitable relief and equity of both
the sides has to be weighed. Prices of immovable property do
escalate. As a general rule, one cannot say that ordinarily the
plaintiff cannot be allowed to have, for him alone, the entire benefit
of phenomenal increase of the value of the suit property during the
pendency of the litigation. While balancing the equities, one of the
consideration to be kept in view is as to who is the defaulting party.
It is also to be borne in mind whether any party is trying to take
undue advantage over the other party as also the hardship that
may be caused to the defendant by directing the relief of specificperformance. There may be other circumstances upon which parties
may not have any control. Totality of the circumstances in the case
is required to be seen. Ordinarily, as of rule, the relief of specific
performance ought to be granted and only rarely the relief of
specific performance is to be denied.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,
V
Sau. Sheelabai W/o Kishor Shrungare,
CORAM : A. P. BHANGALE, J.
Sau. Sheelabai W/o Kishor Shrungare,
CORAM : A. P. BHANGALE, J.
DATED : September 10, 2015
Citation:2016(3) ALLMR105
Citation:2016(3) ALLMR105
