Oct
31
2013


Specific Performance is a discretionary relief. Merely because property in relation to which agreement was entered upon is no longer subject to any order of restrain, party seeking specific performance does not automatically becomes entitled to such relief. What is the fate of an agreement to sell executed in violation of the injunction order? Whether purchaser can seek specific performance of the agreement? What would be the position if the purchaser is aware about the injunction and what should be the approach of Courts in such proceedings? The above issues arose before the Hon’ble High Court in the present case, wherein it was held that the purchaser of a property cannot seek specific performance of an agreement to sell entered upon in violation of a Court order which has restrained seller from alienation or to encumber or to sell the property. Such agreement is void and since it is void, the plea for its performance cannot be sought. Court, before which a plea of specific performance is raised, on gaining the knowledge about there being any injunction order in effect, instead of entertaining the suit, should direct the party seeking relief to approach the Court which granted injunction and to take permission to proceed with his claim. Any further proceedings should be subject to getting such permission. While seeking permission the purchaser must express his willingness to perform his part of the agreement and should also be willing to accept the final outcome of the proceedings before the Court granting injunction. It is also then important for the Court to take into account the circumstances in which the agreement in question was executed so as to ensure that there are no suspicious circumstances in which the agreement was entered and if the parties to the proceedings as well agreement in question are fair and neutral in their conduct. Om Prakash vs. Santosh Chaddha [Delhi HC, 31.10.2013]








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