https://www.indiankanoon.org/doc/141961942/
The next issue to be decided is issue no.8 of whether the plaintiffs are entitled to the discretionary relief of specific performance.
It may be noted that only 10% consideration has been paid under the three agreements to sell. Even the possession of the suit property is with the defendant and not with the plaintiff. In such circumstances, I am of the opinion that the plaintiff cannot be entitled to the discretionary relief of specific performance, and rationale for which I have given in the following paragraphs of the judgment in the case of Shri Jinesh Kumar
Jain (supra) and which read as under:-
13. Now let us assume that the agreement to sell dated 26.9.1988 was not hit by the 1972 Act; the defendants were guilty of breach of their obligation to perform their part of contract; and that the plaintiff was ready and willing to perform his part; even then, can it be said that the plaintiff is yet entitled to the discretionary relief of specific performance. It will be appropriate at this stage to refer to CS(OS)Nos.2414, 2415 & 2421/1989 Page 23 of 33 Section 20 of the Specific Relief Act, 1963, and more particularly sub-Section 3 thereof. Section 20 reads as under:-
.......
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific CS(OS)Nos.2414, 2415 & 2421/1989 Page 24 of 33 performance.
14. Sub-Section 3 makes it clear that Courts decree specific performance where the plaintiff has done substantial acts in consequence of a contract/agreement to sell. Substantial acts obviously would mean and include payment of substantial amounts of money. Plaintiff may have paid 50% or more of the consideration or having paid a lesser consideration he could be in possession pursuant to the agreement to sell or otherwise is in the possession of the subject property or other substantial acts have been performed by the plaintiff, and acts which can be said to be substantial acts under Section 20(3). However, where the acts are not substantial i.e. merely 5% or 10% etc of the consideration is paid i.e. less than substantial consideration is paid, (and for which a rough benchmark can be taken as 50% of the consideration), and/or plaintiff is not in possession of the subject land, I do not think that the plaintiff is entitled to the discretionary relief of specific performance.
