Madras High Court
Kochukunjan Pillai vs Sathiadhas on 20 April, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2010 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN C.R.P(PD)(MD)No.1155 of 2009 and M.P(MD)No.1 2009 Kochukunjan Pillai ... Petitioner/Defendant vs Sathiadhas ... Respondent/Plaintiff Prayer Civil Revision Petitions filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order, dated 13.07.2009 made in I.A.No.942 of 2008 in O.S.No.12 of 2006, on the file of the District Judge, Kanyakumari @ Nagercoil. !For Petitioner ... Mr.A.Arumugam for M.Ajmalkhan ^For Respondent ... Mr.K.Sreekumaran Nair :ORDER
Heard both sides
2.The defendant in O.S.No.12 of 2006, on the file of the District Court, Nagercoil, is the revision petitioner herein.
3.The respondent/plaintiff filed the suit for recovery of Rs.6,30,200/- from the revision petitioner, on the basis of the agreement of sale entered into between the parties. It is the specific case of the respondent/plaintiff that the respondent and the revision petitioner entered into an agreement of sale for a total consideration of R.36,36,875/- at the rate of Rs.57/- per Cent on 06.10.20005 and the revision petitioner received a sum of Rs.6,00,000/- from the respondent and agreed to execute a sale deed in favour of the respondent/plaintiff. In the agreement of sale, the revision petitioner undertook to pay all the debts and all encumbrance in respect of the suit property and agreed to convey the absolute title and possession to the respondent/plaintiff on or before 15.01.2006 free from all encumbrances. But the revision petitioner/defendant did not clear the encumbrance and was also not ready to execute the sale deed free from all encumbrances to the respondent/plaintiff. The respondent/plaintiff was ready and willing to perform his part of contract provided the revision petitioner conveyed free and absolute right over the possession to the plaintiff and as the revision petitioner/defendant was delaying the matter and was not able to perform his part of contract, the plaintiff issued notice, dated 09.01.2006 to the defendant and the revision petitioner/defendant sent a reply notice, dated 20.01.2006 and re-joinder was also sent by the revision petitioner/defendant on 31.01.2006. As the revision petitioner/defendant was not having free and impeachable right over the possession of the suit property and is having defective title, the plaintiff filed a suit for recovery of Rs.6 lakhs being the advance amount paid with interest and claimed Rs.6,30,200/-.
4.The revision petitioner filed a statement denying the allegations and also contended that he was ready and willing to perform his part of contract. It is the plaintiff, who was not prepared to pay the balance amount and also stated that the property is free from Court attachment and there is no encumbrance over the property. Thereafter, the plaintiff filed I.A.No.942 of 2008 for the amendment of the plaint stating that as per the written statement, the defendant has cleared all the dues payable to the Bank and the property is free from all encumbrances and therefore, the plaintiff is entitled to get the sale deed executed in his favour by the defendant on the payment of balance sale consideration and he is ready and willing to pay the balance sale consideration and get the sale deed executed in his favour and for adding the prayer of decree for specific performance of agreement of sale, dated 06.10.2005 for the the sale consideration of Rs.36,36,875/- filed the aforesaid amendment application to make necessary amendment in the plaint as well as in the prayer and that was objected by the revision petitioner. The lower Court allowed the application holding that the amendment does not bring any change in the basic character or introducing a new cause of action. Further, the amendment sought for is also not barred by limitation and no prejudice or injustice will be caused to the revision petitioner/defendant. Aggrieved by the same, this civil revision petition is filed by the revision petitioner/defendant.
5.Mr.A.Arumugam, the learned counsel appearing for the revision petitioner submitted that in a suit for specific performance, the party must be ever willing and ready to perform his part of contract and in this case, the party namely the plaintiff has repudiated the contract on the ground that the revision petitioner was not in a position to convey the clear title free from all encumbrances and was satisfied with the return of the advance amount and hence, it is not open to him to file the amendment petition praying for the relief of specific performance, on the basis of the averments made in the written statement that the property is free from all encumbrances and the loans payable to the Bank have been cleared. He relied upon the judgment of the Honourable Supreme Court reported in 1968 AIR SC 1355 and AIR 1989 SC 606 wherein the Honourable Supreme affirmed the judgment reported in AIR 1965 Mad 85, in the case of Sundaramayyar vs. Jagadeesan. Mr.A.Arumugam, therefore, contended that as per the above judgments, it is not open to the respondent/plaintiff to sue for specific performance as alternative.
6.On the other hand, Mr.K.Sree Kumaran Nair, the learned counsel appearing for the respondent/plaintiff submitted that the plaintiff was forced to file the suit for return of advance amount as the defendant/revision petitioner failed to convey clear title free from all encumbrances and the plaintiff has stated in the plaint that he is ever ready and willing to perform his part of contract and as there is a defect in title and the defendant also refused to rectify the defect and convey free title to the plaintiff, he sent notice, dated 09.01.2006 requesting the defendant to convey the clear title and the subsequently, sent a re-joinder notice, dated 31.03.2006 requesting the revision petitioner to perform his part of contract by clearing all encumbrances and convey the absolute right to the plaintiff, but he did not come forward to clear the encumbrance and clear the title. Under these circumstances, the suit was filed for returning the advance amount with interest and that will not be taken as giving up of the contract by the plaintiff and only due to the conduct of the defendant in not clearing the encumbrance, the plaintiff was constrained to file a suit for recovery of advance amount and in the written statement in para 6, it has been clearly stated that the property is free from Court attachment and all encumbrance and the defendant was also willing to perform his part of contract and hence, in that circumstances, the plaint was sought to be amended and that has been rightly allowed by the lower Court and hence, the revision petition is liable to be dismissed.
7.I have given my anxious consideration to the submission made by both parties.
8.Mr.K.Sree Kumaran Nair, the learned counsel appearing for the respondent/plaintiff relied upon the judgment reported in 2003(4) LW 797, in the case of Senniappa Gounder vs. Ramasamy, wherein in similar circumstances, this Court directed the plaintiff to amend the prayer by including the relief of specific performance when originally the plaint was filed for the return of advance amount. He further relied upon the judgment reported in 96 LW 560, in the case of T.P.Palaniswami and another vs. Deivanaiammal and others, wherein the Court held that while dealing with the amendment, the Court should not look into the merits of the amendment. He further relied upon the judgement reported in 2001(3) MLJ 322, in the case of Viswanathan vs. Ramakrishnan Chettiar, wherein this Court has held that in view of proviso to Sub section (2) of Section 22 of the Act, amendment can be allowed to avoid the multiplicity of proceedings and also relied upon the judgment of the Honourable Supreme Court reported in AIR 1982 SC 818, in the case of Babu Lan vs. M/s.Hazari Lan Kishori Lan, to the same effect.
9.Mr.K.Sree Kumaran Nair, the learned counsel appearing for the respondent further submitted that being a pre-trial amendment, the Court must be liberal in allowing the amendment and therefore, the order of the lower Court is in consonance with the decision of the Honourable Supreme Court as well as our High Court and hence, it does not call for any interference. In the judgment reported in AIR 1982 SC 818, in the case of Babu Lal vs. M/s.Hazari Lan Kishori Lan and the judgment of this Court reported in 2001(3) MLJ 322, in the case of Viswanathan vs. Ramakrishna Chettiar, wherein the Honourable Supreme Court and our High Court dealt with the proviso to sub-Section 2 of Section 22 of the Specific Relief Act and allowed the amendment.
10.A reading of Section 22 of the said Act makes it clear that when any person suing for the specific performance of a contract for the transfer of immovable property may in an appropriate case ask for possession, or partition and separate possession, of the property in addition to such performance or any other relief to which he may be entitled to, including the refund of any earnest money or deposit paid by him in case his claim for specific performance is refused and as per proviso to sub section 2 to section 22, no relief under sub- section (1) shall be granted unless it has been clearly claimed, provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall at any stage of the proceedings allow him to amend the plaint on such terms as may be just for including a claim for such relief.
Therefore, the power of the Court to allow the amendment of the plaint arise only when a person files a suit for specific performance of contract, if the person does not ask for specific performance of contract, then section 22 will not apply. In the aforesaid reported case, the suit was filed for specific performance of contract and the alternative relief of refund of money was not claimed and in that circumstances, it was held that as per proviso to sub- section 2 of section 22 of the Specific Performance Act, amendment can be allowed. But, in this case the suit was filed for refund of advance amount with interest and thereafter, the amendment application was filed to include the prayer for specific performance and the question is in such a suit, such prayer can be allowed. As per the judgment of the Honourable Supreme Court reported in AIR 1989 SC 606, in the case of Jawahar Lal Wadhwa v. Haripada Chatroberty,:-
"It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance. The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance, but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract."
11.As a matter of fact, the Honourable Supreme Court in the judgment reported in AIR 1968 SC 1355, in the case of Prem Raj v. D.L.F.H & C Ltd., held as follows:-
"So far as the relief of specific performance is concerned, the matter must be examined in the light of the provisions of the Specific Relief Act. In this connection reference may be made to Sec.37 of the Specific Relief Act (Act No.1 of 1877) (now Sec.29)which is to the following effect: "A plaint instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled, and the Court, if it refused to enforce the contract specifically may direct it to be rescinded and delivered up accordingly.
"It is expressly provided by this section that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is, therefore, not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance."
Keeping in view the two decisions of the Supreme Court, I am of the opinion that the only conclusion is that once a suit for return of the earnest money/advance or grant of damages is filed, such a plaintiff disentitles himself to the alternative relief of specific performance even if claimed in the suit. If that is so, he cannot be allowed to amend his plaint later on to claim specific performance of the contract as the first relief and return of earnest money/advance and/ or damages as an alternative relief. This is primarily on the rule that a claim for return of earnest money/ advance and/or damages can be based on repudiation of the contract for one reason or the other and once the contract is repudiated, the relief of specific performance would not be available either as an alternative relief as was held in Prem Raj's case (supra) by the Supreme Court, nor would such a relief be admissible by amendment as is sought to be done in this case."
12.Further, the Honourable Supreme Court affirmed the judgment of our Honourable High Court reported in AIR 1965 Mad 85 in the case of Sundaramayyar v. Jagadeesan. In the aforesaid Judgment, our Honourable High Court has held as follows; "It will not be open to a party to contract, who has once elected to accept the breach assuming there was a breach on the part of the other side to cancel that election and treat the contract as if it were subsisting. We regard the notice dated 22.05.1958 is amounting to a definite abandonment by the appellant of his right to obtain specific performance of the contract. As pointed out by the Privy Council in Ardeshr Mam Flora Sassion, ILR 52 Bom. 597, AIR 1928 SC 208, the plaintiff in a suit for specific performance should always treat the contract still subsisting; he has to prove his continuous readiness and willingness, from the date of contract to the time of the hearing of suit to perform his part of the contract and a failure to make good that case would undoubtedly lead to a rejection of his claim for specific performance. where, therefore, a party to contract of sale made a claim for damaged on the footing of its breach by the other party would amount to a definite election on the part to treat the contract as at an end and thereafter no suit for specific performance could be maintained by him, for by such election, he had disabled himself from making the averment that he ha always been ready and willing to perform his part of contract.(underline supplied)
13.In that judgment, inspite of the fact that the suit for specific performance has been filed, the relief was denied on the ground that before filing the suit, the plaintiff had elected his remedy to claim the return of advance and damages and this can be done only after putting an end to the contract. Therefore, as per the judgment of the Honourable Supreme Court reported in AIR 1989 SCC 606, the plaintiff is not entitled to amend his plaint.
14.The judgments referred to above were not brought to the notice of the Honourable Judge, who rendered the judgment reported in 2003(4) LW 797 and hence, I am not bound by the said judgment. As I follow the judgment of the Honourable Supreme Court reported in AIR 1989 SC 606, the amendment cannot be allowed.
15.In the result, the order of the lower court allowing the amendment is set aside and accordingly, this civil revision petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
er To The District Judge, Kanyakumari @ Nagercoil