Chitambaresh, J.
The plaintiff in a suit for specific performance of Ext.A1 agreement for sale dated 21.2.1993 is the appellant. A sum of ` 5,000/- was paid as advance by the plaintiff to the first defendant on the date of agreement itself. The balance sale consideration of ` 1,45,000/- was to be paid at the time of execution of the sale deed. The sale deed was to be executed on or before 15.3.1993 by the first defendant as per the terms of the agreement.
2. The first defendant is said to have obtained right over the property under Ext.B6 settlement deed dated 5.11.1981. The settlement deed was executed by the second defendant who is the father of the first defendant. The settlement deed reserves the right of the second defendant to remain in possession and take usufructs from the property. The first defendant settlee is also bound thereunder to discharge a mortgage loan of ` 11,000/-. The settlement deed clarifies that any future transaction can be with A.S.No.909/1998 2 the junction of the second defendant only.
3. The second defendant is said to have executed document No.893/1982 dated 23.9.1982 releasing his rights over the property. But the same is not produced and only Ext.A7 encumbrance certificate showing the registration of a document is produced. There is at any rate no evidence to show that the mortgage loan of ` 11,000/- creating a charge over the property has been discharged. The pleadings in that regard are absolutely lacking though the plaintiff admits that he saw Ext.B6 settlement deed. It is trite law that specific performance includes also the right to obtain possession of the property. It will be inequitable under the circumstances to specifically enforce Ext.A1 agreement for sale.
4. The court below has found that the plaintiff was not ready and willing to perform his part of the contract. The court below has noticed that only a sum of ` 25,701/- was available in Ext.A5 bank account of the first defendant on 15.3.1993. The amount necessary to pay the balance sale consideration is seen credited much later on 23.3.1993. We agree with the A.S.No.909/1998 3 court below that there was paucity of evidence to show that the plaintiff was flush with funds. Added to this is the fact that defendants 2 and 3 had obtained a decree of injunction by Ext.B5 judgment. The same restrains the first defendant from alienating the property interfering with their possession. There is no prayer in the suit for a declaration that Ext.B5 judgment is fraudulent or collusive. There cannot be conflicting decrees relating to the same property between the parties to the lis.
5. The relief of specific performance under Section 20 of the Specific Relief Act is discretionary. It is not necessary to grant specific performance merely because it is lawful to do so as held by the Supreme Court. Moreover more than 23 years have elapsed since the date of Ext.A1 agreement and the price of the property has rocketed. We concur with the court below that the relief of specific performance should be denied in the instant case.
6. We however find that neither the execution of Ext.A1 agreement nor the receipt of ` 5,000/- by the first defendant is denied. There is paucity of A.S.No.909/1998 4 evidence to hold that the first defendant suffered loss on account of breach of contract. It is only under such circumstance can the first defendant appropriate the sum received as advance. The amount is liable to be refunded to the plaintiff lest it amounts to unjust enrichment in law. We therefore grant a decree to the plaintiff for a sum of ` 5,000/- from the first defendant and his property. The same will carry interest at 12% per annum from the date of the suit till the date of realisation. Therefore a decree for return of the amount received as advance is granted in lieu of specific performance in the circumstances.
The Appeal Suit is allowed in part with costs throughout.
Sd/-
V.CHITAMBARESH, Judge.
Sd/-
K.HARILAL, Judge.
nj/20.07.2016