A buyer is not entitled for specific performance by paying only a small portion out of the total consideration as advance.

The Hon’ble High Court of Delhi held in a judgment that the acts where the less substantial consideration is paid and/ or the buyer is not in the possession of the subject property, the said buyer cannot seek the discretionary relief of specific performance.

The decision was delivered by the High Court of Delhi in the matter of Gayatri Gupta Vs. Ruby Sharma and Others, RFA No. 58 of 2019 decided on 23.01.2019.

Challenge:

The only limited issue for adjudication before the High Court was whether the trial court was justified in dismissing the suit for specific performance filed by the appellant/ plaintiff with respect to the Agreement to Sell dated 04.06.2007 for the subject property.

The Ld. Trial Court held that though the Agreement to Sell stands proved and there is a breach on the part of the respondent no. 1/ defendant no. 1/ seller, yet the suit can not be decreed as the appellant/ plaintiff/ buyer cannot be granted the discretionary relief of specific performance as only a sum of Rs. 1,88,000/- has been paid out of the total consideration of Rs. 21,00,000/-.

Held:

By dismissing the said appeal, the Hon’ble High Court held that the courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.

The High Court further observed that when a proposed buyer as a plaintiff only has paid a very limited amount of consideration, then such a plaintiff may not ordinarily be entitled to the discretionary relief of specific performance.

In the light of the same, the decision of the trial court was upheld as the appellant/ plaintiff/ buyer has only paid 8% of the total sale consideration, and hence was not entitled to the discretionary relief of specific performance.

The said decision was after relying upon Saradamani Kandappan vs. Mrs. S. Rajalakshmi, 2011 (12) SCC 18.