Discretionary relief

Jurisdiction of the courts to grant relief of specific performance is discretionary in nature and cannot be claimed as a matter of right.

Appellant / defendant contended that the agreement pertained to year 2005 and after such long time the agreement could not be performed as it was a discretionary relief

Validity

Discretion is required to be exercised keeping in view the facts and circumstances of each case and the terms of relevant agreement

Exercise must not be arbitrary and has to be based on sound and equitable reasons

Respondent / plaintiff instituted suit one day after the cut-off date

Respondent / plaintiff through his evidence remained successful in demonstrating with certainty that he had capacity to perform the agreement

Concerned branch manager produced ledger in Trial Court to show that through banking instrument respondent / plaintiff withdrew balance consideration on relevant date

Such evidence left no doubt that respondent / plaintiff had capacity to perform the agreement

Willingness of respondent / plaintiff was reflected from prompt and immediate institution of suit and by that time no prejudice was caused to appellant / defendant but somehow he himself kept on delaying the matter

Both the Courts below had rightly exercised their discretion to grant the relief

Second appeal could only lie in High Court on the grounds that the decision was contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by Civil Procedure Code, 1908 or law for the time being in force which could possibly have emanated an error or slip-up in determination or decisiveness of the case on merits

High Court declined to interfere in judgments and decrees passed by two Courts below as there was no illegality

Second appeal was dismissed.

For the relief of specific performance, which is discretionary in its nature, the petitioner was expected to prove that he was ready and willing to perform his part of agreement from the date of its execution till the date fixed for payment of balance sale consideration; and also had to prove that he did take necessary steps for the performance of his part

Record revealed that the petitioner could not prove having ever paid or tendered for payment the balance amount of consideration nor produced any documentary evidence such as cheque, pay order, for payment of balance consideration

So much so, after the filing of suit till the filing of appeal no attempt was made to deposit the balance sale price

It was, therefore, a case in which the discretionary jurisdiction could not be exercised in his favour and was rightly declined by the Courts below

Buyer's primary obligation in a contract of sale is to make payment of the balance sale consideration as stipulated in the contract and that if the seller refuses to receive payment the buyer must establish that he had the required money which was kept aside for the seller, for instance, by making a pay order or cashier cheque in his name as this would show that the buyer no longer had access to the sale consideration and that alternatively the buyer could have deposited it in court

If a buyer does not fulfill its primary obligations to secure/tender the sale consideration and files suit and does so without depositing the sale consideration in court, the seller is placed in an advantageous position

In the present case, after considering all said material facts, the Court below rightly concluded that the petitioner was not entitled to seek specific performance of the agreement

No error of law, misreading and non-reading of evidence or any jurisdictional defect was noticed in the impugned judgements passed by both the Courts below to call for interference

Revision petition was dismissed, in circumstances.

In criminal cases each case has to be examined, analyzed and assessed on its own facts and attending circumstances, therefore, no stringent rule can be observed while exercising the jurisdiction in criminal cases particularly vis-à-vis bail matters

Grant of bail is a discretionary relief, however, it is of paramount importance that exercise of discretion is structured upon recognized judicial principles of criminal jurisprudence

Tentative assessment of available material is required at bail stage but the merits of the case can also be touched and if any doubt is observed, the benefit of doubt can be extended to accused even at bail stage.

Respondent / plaintiff sought specific performance of agreement to sell on the plea that petitioner / defendant failed to repay his loan

Both the Courts below concurrently passed judgments and decrees in favour of respondent / plaintiff

Validity

There was no evidence on record relating to market price of suit property

Such fact escaped attention of both the Courts below that they were dealing with specific performance of agreement which, prima facie, was vague in terms of market price of the property

Jurisdiction of Court to grant relief of specific performance as provided under S.22 of Specific Relief Act, 1877 is discretionary in nature and Court is not bound to grant such relief merely because it is lawful to do so

Court in appropriate circumstances can grant compensation as provided under S.19 of Specific Relief Act, 1877

High Court in exercise of revisional jurisdiction directed petitioner / defendant to repay to respondent / plaintiff the amount of actual loan obtained by him

High Court further directed petitioner / defendant to pay additional compensation of Rupees one million over and above the actual amount keeping in view inflation

High Court modified judgments and decrees passed by two Courts below

Revision was allowed accordingly.

Suit can be refused to be decreed even if the agreement has been proved as it is a discretionary relief and said discretion can be exercised on equitable terms.

For the grant of a decree for specific performance on the basis of an agreement to sell it is a discretionary relief and the Court, for just and equitable reasons, can withhold thee same even if the agreement is proved.

Suit for declaration/permanent injunctions was filed against the respondent/defendant (concerned Assistant Commissioner) who served the petitioner/plaintiff with notices directing him to remove superstructure over suit property

Application of plaintiff/petitioner for grant of temporary injunction in his favour, having been moved along with suit for declaration, was declined by the Tribunal

Plaintiff/petitioner asserted himself as owner-in- possession, however, he was not recorded as an owner in the relevant record

Contention of the petitioner/plaintiff was that he had purchased suit-property about 35 years ago (from two private respondents); and had constructed five-storey building and shops over the time, for which the official respondent never raised any objection before

Petitioner/plaintiff invoked constitutional jurisdiction of the High Court against rejection of temporary injunction

Held, that in order to win discretionary relief , a plaintiff had to show the co-existence of three ingredients i.e. prima facie case, balance of convenience and irreparable loss

Temporary injunction could be granted notwithstanding of the fact that the said three ingredients did not co-exist where circumstances made out a good arguable case on the strength of a prima facie case only

Possession and construction of the petitioner/plaintiff, in the present case, suggested a prima facie case, rather " a good arguable case"

If on the one hand, the temporary injunction was not to be granted and the official respondent would demolish his construction ; and on the other, if he would be able to win his case before the Tribunal, he would suffer materially as compared to the respondent

In event of dismissal of the suit of petitioner/plaintiff, official respondent would demolish the built-up property, thus, a good arguable case existed in favour of petitioner/plaintiff which offered the High Court a threshold for exercising its jurisdiction

Good arguable case was made out in favour of the petitioner/plaintiff

High Court granted temporary injunction in favour of the petitioner/plaintiff for a period of 45 days during which the Tribunal would decide the case

Constitutional petition was allowed, in circumstances.

Grant of bail is a discretionary relief, however, it is most essential that exercise of discretion is structured upon sound judicial principles, in conformity with statutory parameters.

Courts had always been slow/reluctant in granting such reliefs of declaration as to future/reversionary rights.

Trial Court dismissed the suit on the ground that plaintiff failed to deposit balance consideration amount during the time fixed by Court

Validity

When the time fixed in sale agreement had approached, plaintiff should have been ready and had shown his bona fide by depositing total sale consideration in Court to demonstrate his readiness for performance of sale agreement

Plaintiff issued legal notice at his own on 24-4-2007 for performance of sale agreement that too with certain conditions in respect of which he was required to issue that notice in August, 2005

Plaintiff first time intimated his intention with some excuses in April, 2007 after about two years of the date of his obligation

Defendant vigilantly issued legal notice in September, 2005 i.e. the same year in which sale agreement was executed

Defendant demanded performance of agreement but it was plaintiff who put forth conditions in his belated response dated 18-1-2006 and in further belated legal notice dated 24-4-2007

Inference against plaintiff was that he was not willing all along to deposit sale consideration

Ample discretion lay with Court to deny relief to a purchaser of an immovable property keeping in view circumstances of each case as he could not claim specific performance of a contract as a matter of right even where it was lawful to do so

High Court directed defendant to return earnest money along with interest / markup at Bank rate calculated from February, 2005 till the date of payment in two equal installments within a period of six months

High Court modified judgment and decree passed by Trial Court

Appeal was dismissed accordingly.

Where right to legal character or property is not involved suit for declaration is not maintainable.

Plaintiffs though examined both the marginal witnesses of agreement to sell to prove the same but there were notable discrepancies in the statements of said witnesses

Plaintiffs had failed to explain as to why vendor opted to execute agreement to sell at the place which was far-flung from his residence

Agreement to sell had not been signed by all the vendees

Impugned agreement to sell was not enforceable in circumstances

Subsequent transaction could only be effected if once the plaintiffs succeeded in proving the valid execution of agreement to sell

Plaintiffs had failed to prove the execution of agreement to sell in their favour so same would have no bearing upon the transaction in favour of subsequent vendees

Agreement to sell did not confer any right to the proposed vendee in the subject matter of said agreement

Agreement to sell at the most equipped the vendee with a right to file a suit for specific performance for the enforcement of the same

Plaintiffs had yet to establish their right in the suit property in the light of alleged agreement to sell

Relief of specific performance was discretionary relief and same would depend upon the judicial conscious of the court either to grant or refuse the same

Court had power to refuse the relief of specific performance even in the cases where agreement to sell had validly been proved

Plaintiff could not claim the relief of specific performance as a matter of right

Trial Court had misread the evidence available on record while decreeing the suit of plaintiffs

Appellate Court had rightly exercised its jurisdiction

Second appeal was dismissed in circumstances.

Relief of specific performance was discretionary and same would depend upon the judicial conscious of the court either to grant or refuse the same

Court had power to refuse the relief of specific performance even in the cases where agreement to sell had validly been proved

Plaintiff could not claim the relief of specific performance as a matter of right.

Constitutional jurisdiction was discretionary relief which could only be exercised in extra-ordinary and exceptional circumstances in aid of a litigant who approached the court with clean hands

Powers to conduct auction proceedings were available in the relevant statute itself and mere non-framing of rules or bye-laws to such effect was not sufficient to invalidate auction proceedings

Petitioners had not taken part in the auction proceedings

Constitutional petition had been filed to frustrate the auction proceedings

Such proceedings could not be set at naught at the whims of the party who had failed to take part in the same

Constitutional petition was dismissed in limine.

Constitutional jurisdiction being discretionary relief cannot be awarded to party who himself placed hurdles in the way of smooth running of the proceedings of the Court

Constitutional petition was dismissed.

Parties had agreed to sell on the condition that if plaintiff did not finalize the purchase by 1st July 1994, his advance money would stand confiscated

Parties to the agreement to sell had desired adherence to the time and any deviation from the time clause would entail penal consequences

Plaintiff had failed to prove that he was prepared to perform his part of contract

Plaintiff was not entitled to decree for specific performance which was discretionary relief

Discretion was to be exercised judiciously on recognized principles and not arbitrarily

Discretion could only be exercised in favour of plaintiff where he had done substantial acts or suffered losses in consequence of a contract capable of specific performance

Time was the essence of contract in the present case

Plaintiff had failed to perform his part of contract

No substantial error or procedural defect resulting in erroneous or defective decision had been pointed out in the impugned judgments passed by the Courts below

Second appeal was dismissed in circumstances.

Grant or refusal of bail though was discretion of the court but such discretion be exercised in a judicious manner taking into account all the attending circumstances of particular case.

Suit could not be dismissed merely on the basis of limitation rather question of limitation had to be resolved keeping in view the facts and circumstances of the case

Courts below had recorded findings of facts on the basis of proper appreciation of material brought on record

Findings of facts recorded by the courts below did not suffer from any legal infirmity

Appeal was dismissed in circumstances.

Neither plaintiff made any effort to pay the remaining sale price to the vendor nor sent any notice to perform her part of agreement before expiry of target date

Nothing was on record to suggest that plaintiff was ready to perform its part of agreement and defendant avoided the same

Plaintiff having failed to make payment of balance sale price within the stipulated time, was not entitled to the decree of specific performance which was discretionary relief

Court even if case was proved could refuse to exercise its discretion

No illegality had been pointed out in the impugned judgment and decree passed by the Trial Court

Appeal was dismissed in circumstances.

Same could not be agitated as a matter of right.

Plaintiff had not served any notice upon the vendor to complete the execution and registration of sale deed in his favour by expressing his readiness to pay the balance amount of sale consideration

Where a date was fixed by the parties to an agreement to sell then case would fall under First Part of Art. 113 of Limitation Act, 1908

Cause of action would accrue to the aggrieved party from the date fixed in the agreement to sell

Court had discretion to decree suit for specific performance

No misreading, non-reading of evidence, illegality or irregularity and infirmity was pointed out in the impugned judgments and decrees passed by the courts below

Revision was dismissed in circumstances.

High Court in Constitutional jurisdiction cannot extend protection of law to a delinquent person to retain a gain, privilege or benefit which was acquired by manipulation

Where transaction was not transparent and on the contrary, lacked element of transparency which resultantly caused huge losses to government exchequer, High Court would never come forward to rescue of delinquent individuals.

Contention of defendant was that before novation of contract suit property was purchased by him through registered sale deed

Suit was decreed by the Trial Court

Validity

Plaintiff was bound to prove the novated contract and then he could press for performance of original agreement to sell

Registered sale deed which was prior in time was in existence against the novated contract

Vendees were not owners of suit property at the time of novated contract and they could not enter into agreement with the plaintiff

Plaintiff was in knowledge of sale of suit property at the time of novation of contract

Suit property was sold by one of the defendants to the plaintiff being attorney of others but no such power of attorney had been placed on the file

Plaintiff was bound to produce Petition Writer along with his register to prove date of execution of agreement to sell and Stamp Vendor to prove the issuance of stamp paper on specific date

Best evidence had been withheld by the plaintiff and presumption would be that same was against him

Impugned agreement to sell was executed by a person who was not having any title and same was not specifically enforceable

Grant of decree for specific performance was a discretionary relief and court could exercise such discretion in favour of a person who had proved his entitlement for the same

Defendant could not be burdened to prove the bona fide purchaser of suit property when possession was also delivered to him under the sale

Plaintiff was bound to prove the knowledge of defendant about his original contract at the time of sale deed but no such evidence was produced

Appeal was accepted in circumstances and suit was dismissed with costs throughout.

Appeal was dismissed on the ground that plaintiff had not arrayed all the defendants in the suit as respondents in the appeal

Validity

Plaintiff had arrayed only one respondent in the appeal and had left out other defendants in the suit who were required to be arrayed as respondents in appeal

Plaintiff had not made any effort to seek permission of the Appellate Court in spite of objection by the defendants for bringing on record the remaining defendants as respondents in the appeal

No explanation was appended with the appeal to justify such conduct on the part of plaintiff whereby other defendants in the suit were left out and not arrayed as respondents in the appeal

Appellate Court was bound to look into such conduct of the party seeking discretionary relief

Interest of other party would be prejudiced and rights accrued would also infringe without being any mistake on behalf of other party if such discretion was exercised

Neither any application was filed by the plaintiff for bringing the other defendants on record nor had sought condonation of delay by filing of application

Appellate Court had rightly upheld the objections which otherwise ought to have prevailed looking at the conduct of the plaintiff in the facts and circumstances of the present case

Appeal had been rightly dismissed being incompetent in law and impugned order being unexceptionable did not require any interference

Revision was dismissed in limine.

Nothing was on record that plaintiff made effort to show his readiness to pay the balance sale consideration to the defendant

Time was not essence of contract as certain obligations had to be performed before application of time clause which were imposed through agreement upon the seller/vendor

When requirements of transfer of property were completed the time which was essence would start

Plaintiff had failed to perform the agreement in accordance with its terms

Plaintiff had no cause of action to file the present suit as he had been estopped by his words and conduct

Plaintiff was not entitled for discretionary relief of specific performance

Impugned judgment and decree were set aside and suit was dismissed

Amount of earnest money which had been received by the defendant was ordered to be returned with double rate as agreed by the parties in the Trial Court within one month

Appeal was allowed in circumstances.

Appeal was dismissed for non-prosecution against which an application for restoration was moved which was also dismissed

Contention of appellant was that he remained ill

Validity

Appellant remained absent on various dates of hearing and Appellate Court was left with no option but to dismiss the appeal

Application for restoration of appeal was filed after delay of 4 months but no document was produced with regard to illness of appellant

Appellant had not taken due care and had not been vigilant to pursue his appeal

Grant of restoration application was discretionary relief which was subject to sufficient cause

Discretion had to be exercised in favour of a party who had been vigilant and had due respect to the order of court

Appellant did not deserve discretionary relief in absence of plausible and cogent reason

Period for filing an application for restoration of appeal was 30 days

No application for condonation of delay had been moved in the present case

Delay beyond limitation period would create a right in favour of opposite party

Appeal was dismissed in circumstances.

Contention of petitioner was that he was entitled for another period of lease and impugned letter was based on mala fide

Validity

Petitioner should have demonstrated that there existed clear and undisputed right or interest in his favour to be recognized and respected to seek enforcement of corresponding obligations through a writ of mandamus

Relief sought by the petitioner could only be granted in a suit for specific performance of contract

Contractual obligations or disputes were not open to scrutiny under constitutional jurisdiction which could be redressed through other remedy available under the law

Respondent-department had formulated a policy that land should not be leased out for a period of more than 03 years and no further extension beyond 10 years would be granted in case of already leased land

Impugned letter had been issued in pursuance to the policy formulated by the competent authority and same had been made applicable throughout the country

Mala fide was a question of fact and same had to be specific and not vague in absence of which policy framed by the competent authority could not be annulled

Respondent-department had received a higher bid for the lease of land against the amount being paid by the petitioner

Discretionary relief could not be granted to help retention of ill-gotten gain even where the impugned action had been taken in deviation of certain recognized norms and procedures

High Court in absence of any illegality, arbitrariness or mala fide would not annull the policy framed by the competent authority

Constitutional petition was dis-missed in circumstances.

Parties must ready to perform their part of agreement at the time of agreement, at the time of filing of suit and at the time of decree passed in the suit

Remaining payment was not made by the plaintiff till the last date fixed in the agreement to sell

Defendant made a statement that if remaining sale price is paid within a period of 10 days then he had no objection in passing of decree in favour of plaintiff but plaintiff failed to pay the same

Plaintiff did not make effort to get executed the sale deed by making payment to the defendant

Discretion would lie with the Trial Court to see whether any party was entitled for the decree of specific performance on the basis of equity or for any fault on his part

Plaintiff had delayed the proceedings of suit and he was never willing to pay the remaining consideration amount despite the conceding statement of defendant

Plaintiff intentionally avoided to pay the remaining sale price which was required for the progress of the case and he failed to comply with the order of Trial Court

Co-owners of the property in question also appeared and got recorded their statements that they had no objection in transferring the same if remaining amount was paid

Equity as well as fairness would lie in favour of defendant and not with the plaintiff

Trial Court had rightly dismissed the suit as plaintiff could not claim the performance of agreement to sell as of right

No illegality or infirmity had been pointed out in the impugned judgment and decree passed by the Trial Court

Appeal was dismissed in circumstances.

Grant of decree for specific performance was discretionary relief which would be granted if court was satisfied that there was an agreement between the parties.

Water and Sewerage Board having failed to pay bill of electricity, Electric Supply Corporation was restrained to discontinue the electricity supply to the said Board

Validity

Grant of injunction was an equitable relief based on the principle of equity which was discretionary depending upon the circumstances of each case

Where a party had a prima facie case, balance of convenience/inconvenience and apprehension of irreparable loss or injury, the court was bound to grant discretionary relief

Court could refuse to allow the said injunction if said parameters were not fulfilled

Some Strategic Consumers were on record to whom electric power must be supplied at all times without interruption

Water and Sewerage Board was also Strategic Consumer who was entitled for supply of electric power without interruption

Electric Supply Corporation was bound to supply electric power to the Water and Sewerage Board without interruption

If Strategic Consumer had failed to pay the electric bills then an invoice had to be issued and in case of failure to pay the electric bills after issuance of the invoice a notice requesting a meeting should be given and all efforts should be made to reach to an agreement between the company and defaulting Strategic Consumer

Electric Supply Corporation had to send a notice to the Government if no amicable settlement was reached between the Corporation and Strategic Consumer and Government would pay the claims from available funds to the Electric Company

Electric Supply Corporation, in the present case, should have taken legal proceedings against the Government rather than discontinuing the electricity of Water and Sewerage Board

Action of Electric Supply Corporation was violative of the terms of agreement entered between the Corporation and Government

Water and Sewerage Board was not signatory of the contract but being beneficiary privity of contract was applicable

Water and Supply Board was responsible for supply of water and sewerage services to the city and it would require uninterrupted supply of electricity

Water and Sewerage Board was not absolved/exempted from making any payment but if electric power was not supplied then citizen would suffer losses

Losses suffered by Electric Supply Corporation due to non-payment of bills by Water and Sewerage Board could be settled between the Company and Government

Findings recorded by the Trial Court had a prima facie case for grant of injunction

Appeal was dismissed in circumstance, however Trial Court was directed to decide the case expeditiously.

Order for appointment of receiver was penal in nature whereby one person in possession was to be removed from control and possession of such property

Such discretionary power for appointment of receiver should be exercised where continuity of possession and control of property would result in wastage or dissipation of property resulting into irreparable loss/injury to a party seeking such appointment of receiver

No apprehension of wastage or dissipation of property was available in the present case

Application for appointment of receiver was dismissed in circumstances.

Criminal case was registered against the petitioner (civil servant) and upon acquittal, he was re-instated in service with all the benefits

Plea of petitioner was that he was also entitled for ex-gratia and workers participation fund for the intervening period and children education allowance

Contention of petitioner was that judgment passed by the Service Tribunal had not been complied with in its letter and spirit

Validity

Issue of payment/back benefits was not only agitated but had also been decided

Petitioner had received amount without any protest and he could not agitate any grievance with regard to service benefits

Judgment passed by the Service Tribunal had been abated by the said Tribunal

Impugned order had attained finality

No question for implementation of judgment of Service Tribunal arose

Present constitutional petition was not maintainable as no Statutory Rules of the Employer Corporation existed

Petitioner could not explain delay of five years in filing of present constitutional petition

Constitutional petition suffered from laches

Petitioner was not entitled for discretionary relief in such like situation

Constitutional petition was dismissed, in circumstances.

Contrary to settled principles for a party to apply for and be granted discretionary relief, and for that party to then come forward and seek "suspension" and "restoration" of such relief at its own will or to serve some collateral purpose, howsoever, pressing.

Incumbents were promoted on officiating basis as a stop-gap arrangement, therefore, direction in the nature of mandamus to promote the petitioners on regular basis could not be issued under law

Writ petition was dismissed.

High Court while equipped with power to redress grievance of an aggrieved person, has simultaneous jurisdiction to refuse the relief to a party where granting whereof would tantamount to injustice.