Kerala High Court
Ayissabi vs Gopala Konar on 9 June, 1988
Equivalent citations: AIR1989KER134, AIR 1989 KERALA 134, (1988) 2 CIVLJ 612, (1988) 2 KER LT 282, (1988) 2 KER LJ 74, (1988) 2 CURCC 635
JUDGMENT S. Padmanabhan, J.
1. Suit for specific performance of Ext. Al agreement for sale of 43/4 cents of land was dismissed by the trial court but decreed by the appellate court and defendant challenges the decree. The short but substantial question of law for consideration is whether the plaintiff who repudiated the contract and claimed damages could turn back and seek specific performance.
2. The finding of the trial court on the pleadings and evidence is that plaintiff was in breach of the terms and he was not ready and willing to perform his part of the contract and hence is disentitled not only from getting specific performance but also in getting damages or even return of the advance amount. The appellate court without considering the conduct of the plaintiff and its effect and without considering the readiness and willingness of the plaintiff, decreed the suit solely on the finding that the defendant was at breach.
3. Ext.Al agreement is dated 4-4-1979. It was to sell the property for Rs. 950/- per cent within two months. Of course it could be said that time was not the essence of the contract. Oral evidence is not of much essence because what is there is only oath against oath and each party was blaming the other. The agreement provided that in case of breach by the defendant, plaintiff will be entitled to get back the advance amount of Rs. 1,000/- and another amount of Rs. 1,000/- by way of damages.
4. On 18-6-1979 plaintiff issued Ext.A2 notice alleging that defendant is guilty of breach of contract and hence the sale could not be taken in time. In Ext.A2 he therefore repudiated the contract and claimed advance amount and damages and informed that in case of failure he will file a suit for realisation of the amount. He never stated in the notice that he performed the conditions on his part or was or is ready and willing to perform his part or ready with funds and take the sale deed. Towards the close of the notice he also included a bald statement that he may also file a suit for specific performance. Defendant gave Ext.A3 reply stating that she was ready and willing and plaintiff was at fault.
5. In spite of the vague reminder and warning in Ext.A2 that a suit for specific performance may also be filed; the main stand taken by the plaintiff therein is that the contract is repudiated on account of the attitude of the defendant and the plaintiff elected to sue for damages. That means the agreement is given a go by. Now the plaintiff admits the evidence of DW 1 that he went and enquired on 16-6-1979 and defendant said that she is ready to execute the sale deed only if some damage incurred by her on account of the laches of the plaintiff is also made good. It was thereafter that Ext.A2 notice repudiating the contract was given and Ext.A3 reply was sent.
6. It is true that in the plaint and in the box plaintiff made a vague statement of readiness and willingness. Absolutely no such statement is there in Ext. A2 which is mainly a repudiation of the contract and election to sue for damages. Specific performance is an equitable and discretionary relief. It is necessary for the plaintiff not only to allege but also to prove if traversed that he has performed all the conditions which under the contract he was bound to perform and that he has been ready and willing at all times from the time of the contract down to the date of suit to perform his part of the contract This principle is set out successfully in Section 24(b) (15(b)) of the Specific Relief Act and expanded by judicial decisions. In a suit for specific performance, the plaintiff is also bound to treat the contract as subsisting at all times. Continuous readiness and willingness from the date of contract to the time of hearing without any interruption is the requisite for the grant of the equitable remedy. Plaintiff must treat the contract as subsisting always. After repudiating the contract as was done in Ext.A2 and electing to sue for damages he cannot turn round and claim specific performance at his sweet will and pleasure.
7. As was held in Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208, failure to make up such a case and commencement of an action for damages or an attempt for that purpose as in Ext.A2 by repudiating the contract amounts to an election to treat the contract as at an end. The election precluded the plaintiff from reverting back and claiming specific performance when ExtA2 is having the effect of treating the contract as at an end. No suit for specific performance will thereafter lie. On the merits also there is nothing to show that plaintiff was ready and willing and performance could not be had only on account of the conduct of the defendant. Plaintiff is the man who approached the court for relief and the conduct of the defendant arises only when the plaintiff discharges his burden of establishing his right to get the remedy.
8. In granting an equitable relief of this type as held in Srish Chandra Roy v. Banomali Roy (1904) ILR 31 Cal 584 (PC) the conduct of the plaintiff is relevant and it may disentitle him to the relief. He must take the consequences of his acts. Default alone is not the criterion, conduct including unclean hands will disentitle the remedy. A conduct at variance with the contract or tending to its rescission and the subversion of the relation established by it will be sufficient for refusal of the relief. Such conduct and circumstances could be put forward as successful defences.
9. In this case these aspects were not taken note of by the appellate court. In the matter of assessing the conduct of the defendant by the evidence also the appellate court went wrong. The decree granting specific performance, therefore, requires reversal. But the plaintiff is entitled to get back the advance amount. That relief could be refused only if the defendant can establish damages for which there is no evidence.
The second appeal is allowed and the decree granting specific performance is reversed and the suit is dismissed in that respect. There will only be a decree in favour of the plaintiff against the defendant and his assets charged on the suit property for realisation of Rs. 1000A with 6% interest from the date of suit till realisation. No costs.