The law with respect to discretion by the Court in the case of specific
performance is clear and the Hon’ble Supreme Court in the case of Hemanta
Mondal and Others Vs. Ganesh Chandra Naskar reported in (2016) 1 SCC
567 has held as under:
“14. Section 20 of Specific Relief Act, 1963 gives
discretion to the court, and provides that the court is not
bound to grant relief of specific performance merely
because it is lawful to do so. It further provides that the
discretion is not to be exercised arbitrarily but guided by
judicial principles. Sub-section (2) of Section 20
enumerates three conditions when discretion is not to be
exercised to grant decree of specific performance:-
“20(2)(a) where the terms of the contract or the conduct of
the parties at the time of entering into the contract or the
other circumstances under which the contract was entered
into are such that the contract, though not voidable, gives
the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve
some hardship on the defendant which he did not foresee,
whereas its non-performance would involve no such
hardship on the plaintiff; or
(c) where the defendant entered into the contract under
circumstances which though not rendering the contract
voidable, makes it inequitable to enforce specific
performance.”
15. Explanation (1) to sub-section (2) provides that
mere inadequacy of consideration shall not be deemed to
be an unfair advantage within the meaning of clause (a)
or hardship within the meaning of clause (b). Explanation
(2) provides that the question whether the performance of
a contract when involved hardship on the defendant
within the meaning of clause (b) shall, except in cases
where the hardship has resulted from any act of the
plaintiff subsequent in the contract, be determined with
reference to the circumstances accepting at the time of
contract. Sub-section (3) provides that court may properly
exercise discretion to decree specific performance in any
case where plaintiff has done substantial acts or suffered
losses in consequence of a contract capable of specific
performance.
16. In the present case, it appears that possession was
not given to the plaintiff at the time of execution of the
agreement, nor the area of land agreed to be sold was
clear, as such, it cannot be said that the plaintiff has done
substantial acts or suffered losses due to expenditure in
constructions etc., in consequence of a contract capable of
specific performance. The direction given by High Court
in the impugned order shows that the measurements of
land actually agreed to be sold, are not final.”
Information from: verdictm
