LexLAXMAN TATYABA KANKATE & ANR. versus TARAMATI HARISHCHANDRA DHATRAK
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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[2010] 8 S.C.R. 310
LAXMAN TATYABA KANKATE & ANR.
v.
TARAMATI HARISHCHANDRA DHATRAK
(Civil Appeal No. 6509 of 2005)
JULY 8, 2010
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Specific Relief Act, 1963 -
ss. 13(1 )(c) and 20 -
Agreement to sell - Failure to execute sale deed - Suit for
C specific performance and, in the alternative, for refund of
earnest money - Trial court partly decreeing the suit and
directing refund of earnest money - First appellate court
granting relief of specific performance - High Court affirming
the decree passed by first appellate court - Held: Grant of
D decree of specific performance is lawful and also justified on
the facts as well as equity - Even if the property was
mortgaged to Co-operative Society, there is no bar to transfer
the property in view of s. 48(d) of Co-operative Societies Act
and ss. 12(1)(c) and 12(2) of Resettlement Act - Purchaser
E has the right to compel the seller to redeem the mortgage and
obtain a valid discharge and then specifically perform the
contract where the property is encumbered for an amount not
exceeding purchase money - Increase in the price of suit
property cannot be a ground for denying decree of specific
F performance - Maharashtra Co-operative Societies Act, 1960
- s., 48(d) - Maharashtra Re-settlement of Project Displaced
Persons Act, 1976 - ss. 12(1)(c) and 12(2) - Equity.
The plaintiff-respondent entered into an agreement
with the defendant$-appellants whereby the latter agreed
G to sell the suit land to the former. A sum of Rs. 10,000/-
was paid at the time of agreement. As the appellants failed
to execute the sale deed in favour of the respondent, the
latter filed the suit for specific performance and, in the
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310
LAXMANTATYABAKANKATEv. TARAMATI
311
HARJSHCHANDRA DHATRAK
alternative, for refund of earnest money along·with
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damages.
The trial court concluded that there was no intention
on the. part of the defendants to sell the property and
partially decreeing the suit, directed the defendants to pay
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a sum-of Rs. 10,000/- with interest@ 6% p.a. and denied
the relief of specific performance of contract. The' first
appellate court setting aside·the decree passed'by the
trial .court, passed the decree •for· specific·performance
upon· grant of permission by the· competent authority as
contemplated. u/s. 12(c) of Maharashtra· Re-settlement of C
Project Displaced Persons Act, 1976 and'also by the· Co-
operative Society ·as contemplated u/s. 47(2) of
Maharashtra Co-operative Societies -Act, 1960. The·High
Court affirmed the decree passed·by the,first appellate
court.
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In the instant appeal, the appellant-defendant
contended that no decree for specific performance could
have been passed because the property could not be
transferred in favour of the respondent in view of the
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restriction u/s. 48 of Co-operative Societies Act: and· u/ss.
12(1)(c) 12{2) and 12(3) of the Re-settlement Act; that the
courts ·below failed ·to· appreciate-the evidence in· its
correct perspective; and that the value of the·suit
property had increased tremendously.
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Respondent-plaintiff volunteered to pay· increased
amount towards the consideration Le .. Rs. 1,50,000/-
instead of Rs .. 40,000/- in view of the increased price of
the land.
Dismissing the appeal, the Court
HELD: 1. All the three courts have returned ·all the
findings of fact in favour of the respondent. Such findings
are based upon proper appreciation of evidence and no
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SUPREME COURT REPORTS
[2010] 8 S.C.R.
A legal infirmity can be traced in them. It is hardly
permissible for Supreme Court to go into such questions
of facts alone, in exercise of its jurisdiction under Article
136 of the Constitution of India. [Para 11] [322-A-B]
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2.1 It is not correct to say that the land could not have
been transferred in favour of the respondent in view of
the restriction contained in the provisions u/s. 48 (d) of
Maharashtra Co-operative Societies Act, 1960 and u/ss.
12(1) (c}, 12(2) and 12(3) of Maharashtra Re-settlement of
C Project Displaced Persons Act, 1976. The appellants did
not adduce any evidence that the property in question •
had been mortgaged or was under the charge of the Co-
operative Society. The appellants did not place any such
argument or specific plea. In fact, no such issue was
either claimed or framed in this regard. [Paras 10 and 12]
D [323-C-D]
2.2 Besides, the provisions of clause (d) of SectiExcerpt shown. Read the full judgment & AI analysis in Lexace.