- (1.) THE petitioner has challenged the order dated 24. 5. 2008 whereby an application of the petitioner/defendant under Order 7 Rule 11 CPC was dismissed by the Trial Court and the petition for specific performance was held maintainable. The plea of the petitioner before Court below was that the documents relied upon by the respondent were forged and the ownership of the petitioner was not clearly established from the documents relied upon by the respondent. The suit was not maintainable in view of a clause in the agreement specifying damages.
(2.) THE Counsel for the petitioner relying upon Dadarao and Anr. V. Ramrao and Ors. IX (1999)SLT 240 contended that if in the "agreement to sell" there was a clause that in the event of one of the parties resiling from the agreement, the other would be entitled to damages, the suit for specific performance was not maintainable. He submitted that in the agreement relied upon by the plaintiff, it was specifically provided that in case the vendor does not perform its part of the contract, the vendee would be entitled to receive double the amount and if the vendee does not performs his part of the contract, the vendor would be entitled to forfeit the earnest money. Relying on this clause, he argued that suit for specific performance was not maintainable.
(3.) THE argument advanced by the petitioner is contrary to Section 23 of the Specific Relief Act. Section 23 (1) of the Specific Relief Act reads as under: 23. Liquidation of damages not a bar to specific performance " (1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the Court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. ;