Difference between revisions of "B.K. SRI HARSHA (D) BY L.R & ANR V. M/S BHARATH HEAVY ELECTRICALS LTD"

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B.K. Sri Harsha (D) By L.R. & Anr vs M/S Bharath Heavy Electricals Ltd on 8 February, 2008
CASE NO.: Appeal (civil)  6329-6330 of 2004

PETITIONER: B.K. Sri Harsha (D) By L.R. & Anr

RESPONDENT: M/s Bharath Heavy Electricals Ltd

DATE OF JUDGMENT: 08/02/2008

BENCH:Dr. ARIJIT PASAYAT & P. SATHASIVAM

FACTS OF THE CASE Two suits were filed by the respondent, which were consolidated. The respondents as plaintiff sought specific performance in respect of certain properties which were allegedly agreed to be sold by the appellants Smt. B. Saroja Devi and her husband Sri B.K. Harsha under the contract. Since the validity and the genuineness of two agreements Exhibits P-1 and P-2 were not disputed, the Trial Court was of the view that the only question which arises for consideration was whether the respondent was entitled to the relief of specific performance. The Trial Court came to hold that the respondent-company was always ready and willing to perform its part of the contract. It was also found that the two agreements were never revoked or cancelled by the appellants at any time. Further, it was held that the suit for specific performance was filed within the period of limitation. The Trial Court further came to hold that the respondent-company being in possession of the suit property from 2.5.1974, equality lies in its favour in granting specific performance and more so, when major portion of the agreement consideration had already been paid. Therefore, both these suits were decreed. The High Court as noted above, dismissed the First Appeals.

JUDGEMENT OF THE CASE:- The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit."The High Court has also given a finding regarding adverse possession in a suit for specific performance. Above being the position, there is total non-application of kind. The manner in which the appeals were dismissed cannot be said to be proper. Above being the position, the impugned judgment deserves to be set aside. The matter is remitted to the High Court to consider the matter afresh. The appeals are accordingly disposed of. There shall be no order as to costs.