Madras High Court
M. Chidambaram (Decd.), Ct. Deivanai, ... vs S. Anthony Raj, S. Dorai Raj And Mrs. ... on 31 October, 2002
JUDGMENT K. Govindarajan, J.
1. The plaintiff in C.S.No. 294/1980 having aggrieved by the judgment an decree passed by the learned Judge, dated 17.11.1993, has filed the above Original Side Appeal.
2. The first appellant/plaintiff filed a suit in C.S.No. 294/1980 on the file of this Court for specific performance of the contract entered into with the defendants 1 and 2 under the agreement of sale dated 4.7.1979 marked as Ex.P1, or in the alternative for damages for Rs.20,00,000/- and for refund of a sum of Rs.15,000/-received by defendants 1 and 2 as advance.
3. It is the case of the plaintiff that defendants 1 and 2 are the owners of the land mentioned as 'A' Schedule property and the 3rd defendant, the mother of defendants 1 and 2 is the owner of the superstructure constructed over the said land, which is mentioned as 'B' Schedule in the plaint. Before entering into the agreement under Ex.P1, in the litigation between defendants 1 and 2 on the one side and the 3rd defendant on the other side, in C.S.No. 185/1975, they entered into a compromise and a decree was passed on 21.12.1977 under which defendants 1 and 2 are entitled to purchase the superstructure on payment of the market value of the same. Defendants 1 and 2 have entered into an agreement to sell both 'A' and 'B' schedule properties to the plaintiff for a consideration of Rs.34,97,500/- payable by the plaintiff to defendants 1 and 2 after securing sale from the 3rd defendant with respect to 'B' Schedule property. Since defendants 1 and 2 have not secured the sale in their favour with respect to the 'B' Schedule property and executed the sale deed with respect to the suit property as per the agreement Ex.P1, the plaintiff came forward with the above suit.
4. The first defendant filed a written statement and the second defendant adopted the same. According to the defendants 1 and 2, the plaintiff prevailed upon the defendants 1 and 2 to sign the agreement taking advantage of the dispute between defendants 1 and 2 and the 3rd defendant. They have also stated that though the value was fixed for the 'B' Schedule property by the Commissioner, no final order was passed as the 3rd defendant objected to the same. It is their further case that the title for 'B' Schedule property has not been passed on to defendants 1 and 2, to convey the same in favour of the plaintiff. The price fixed under the agreement for the suit property was very low and the transaction cannot be gone through on the ground of frustration, impossibility, non-performance or otherwise. The transaction as a whole must fall. It is also specifically stated that the agreement is not divisible with respect to 'A' and 'B' Schedule properties. As the contingent event has not taken place, by conveying the right of 'B' Schedule property in favour of defendants 1 and 2 by the 3rd defendant, the plaintiff cannot sustain the suit for specific performance on the basis of the agreement marked as Ex.P1. Even with reference to the claim of damages, defendants 1 and 2 came forward with the case that the plaintiff is not entitled for any damages, as the plaintiff was not put to any mental agony or any sort. Defendants 1 and 2 are not liable to pay any damages as they are not guilty of breach of contract.
5. The third defendant also filed a written statement separately stating that the suit is not maintainable against her as she was not a party to the agreement marked as Ex.P1 dated 4.7.1979. It is also stated that defendants 1 and 2 have no right to enter into an agreement for sale of the superstructure in favour of the plaintiff. She came forward with the plea that the plaintiff is not entitled to claim any damages against her.
6. On the basis of the above said pleadings, the learned Judge framed as many as 11 issues and one additional issue with respect to damages as claimed by the plaintiff. The learned Judge found that there is no legal impediment for enforcing the agreement by the plaintiff, that the plaintiff was ready and willing to perform his part of the contract, and that the defendants have committed breach of agreement also. Referring to Ex.P1, the learned Judge found that the said agreement is a concluded contract between the plaintiff and defendants 1 and 2, and it cannot be said that the contract is impossible of performance as it had become frustrated on account of the fact that the conditions which are to be fulfilled before the contract could be performed, have not been fulfilled. The learned Judge also found that defendants 1 and 2 have right to enter into an agreement under Ex.P1 to convey even with respect to 'B' Schedule property, as the right to purchase the said property has been declared in C.S.No. 185/1975. The learned Judge also negatived the case of the 3rd defendant that defendants 1 and 2 colluded with the plaintiff to deprive her right in the superstructure. Though the learned Judge found that the agreement dated 4.7.1979 is not binding on the 3rd defendant, she is bound by the decree passed in C.S.No. 185/1975 to convey her right in 'B' Schedule property on receipt of the market value of the same. Having held so, the learned Judge ultimately rejected the suit for specific performance, exercising discretion under Sec.20 of the Specific Relief Act, and declined to grant the relief of specific performance on the basis that the plaintiff did not take any steps to bring the suit in C.S.No. 185/1975 to a finality by impleading himself as a party to the suit though he was having right under the agreement to do so and that as the land value was going up day by day, it is not fair to direct defendants 1 and 2 to wait some more time till C.S.No. 185/1975 reaches the finality to execute the sale deed as per the agreement for the nominal price, when the plaintiff cannot be allowed to take advantage of the same, they took undue advantage over defendants 1 and 2. While dealing with the additional issue, the learned Judge found that the plaintiff has not adduced any clear evidence to claim compensation of Rs.20,00,000/-, and the adequate compensation is only Rs.1,00,000/-, in addition to the refund of advance amount of Rs.15,000/- with interest at 15% per annum till date of payment. Aggrieved against the same, the plaintiff has filed this Appeal.
7. The points for consideration in this Appeal are:-
(1) Whether the denial of relief of specific performance as prayed for is sustainable in law?
(2) Is the compensation fixed by the learned Judge reasonable?
8. Learned Senior Counsel appearing for the appellants has submitted that the learned Judge having come to the conclusion that there is no legal impediment for enforcing the agreement, and the agreement Ex.P1 dated 4.7.1979 is a concluded contract between the plaintiff and defendants 1 and 2, the learned Judge is not correct in rejecting the prayer for specific performance. The learned Senior Counsel referring to the agreement has submitted that even with respect to the 'B' Schedule property, the right has been given to the defendants 1 and 2 to purchase the same, and only obligation is to pay the amount payable to the 3rd defendant as fixed by the Court, and the defendants have not taken proper steps to fix the said amount. According to him, the learned Judge is not correct in holding that the agreement cannot be enforced on account of insufficiency of consideration. For that purpose, he referred to Sec.20 of the Specific Relief Act and submitted that the discretion to refuse to grant decree for specific performance can be exercised only within the scope of the said provision and the defendants have not established any one of the incidents mentioned in the provision so as to enable the learned Judge to reject the suit for specific performance. According to him, the learned Judge should not have taken the subsequent events to exercise his discretion against the appellant/plaintiff. Learned Senior Counsel has also relied on a number of decisions in support of his submission.
9. Learned Counsel appearing for the respondents /defendants 1 and 2 have submitted that the agreement was entered into to sell the property when they were in urgent need of money. On the basis of the decree dated 21.12.1977 passed in C.S.No. 185/1975, they have also agreed to sell the 'B' Schedule property, though they are not the owners of the said property. Though defendants 1 and 2 have assigned the right got under the decree in C.S.No. 185/75, dated 21.12.77 in favour of the appellant/plaintiff, he did not take any steps by impleading themselves in the said suit so as to request the Court to fix the value of the 'B' Schedule property, as the sale deed could be executed simultaneously in respect of 'A' and 'B' Schedule properties, after getting the sale deed from the 3rd defendant. Learned Counsel appearing for the respondents have further submitted that the consideration was fixed only on the basis of the value fixed by the Commissioner, to 'B' Schedule property, but the 3rd defendant did not agree for the same, and the said value has yet to be finalised. Without finalising the value and getting the sale deed from the 3rd defendant, the agreement Ex.P1 cannot be enforced. On that basis the learned Counsel have also submitted that the learned Judge is correct in denying the relief as sought for by the appellant/plaintiff for specific performance of the agreement.
10. Before dealing with the above said argument, it is better to deal with the scope of the agreement Ex.P1,dated 4.4.1979. The following features can be culled out from the same:-
(1) Agreement was only between plaintiff and defendants 1 and 2.
(2) Though the defendants 1 and 2 are the owners of the land alone, i.e. 'A' Schedule property, they agreed to sell 'B' Schedule property also, which admittedly belongs to 3rd defendant, on the basis of the right given in the decree dated 21.12.1977 in C.S.No. 185/1975.
(3)Under the said decree, the defendants 1 and 2 are entitled to secure sale deed of 'B' Schedule property from the 3rd defendant on payment of the market value of the same.
4) The agreement had proceeded as if the market value of the 'B' Schedule property had been fixed at Rs.25,75,391.00 on the basis of the report submitted by the Commissioner. (But factually the same is yet to be finally fixed).
5.) The 3rd defendant after receipt of the market value of 'B' Schedule property shall convey the same and deliver vacant possession along with all title deeds relating to the same. (This clause was included in the agreement, though the 3rd defendant was not a party to the agreement)
6) Total consideration for both 'A' and 'B' Schedule properties was fixed at Rs.34,97,500/- and paid Rs.5000/-as advance by way of cheque on 4.7.1979, and paid another sum of Rs.10,000/- on 18.7.1979.
(7) The defendants 1 and 2 shall procure the sale deed of 'B' Schedule property and simultaneously arrange for conveyance of 'A' and 'B' Schedule properties in favour of the appellant/plaintiff.
(8) The appellant/plaintiff shall pay the amount to the 3rd defendant, payable by the defendants 1 and 2 towards the value fixed for 'B' Schedule property at the time of Registration of the sale deed before the Registering Authority.
9) The defendants 1 and 2 undertook to complete the sale simultaneously with respect to 'A and 'B' Schedule properties after receiving the balance of consideration remaining after giving credit to the advance amount paid and the amount paid by the purchaser to secure the sale deed from 3rd defendant in favour of defendants 1 and 2.
10) 'B' Schedule property should be secured free from all encumbrances and sold to the plaintiff free of all encumbrances.
11) The sale transaction shall be completed on or before 31.1.1980.
12) Though 3rd defendant was not a party to agreement, the defendants 1 and 2 have given liberty to the plaintiff to enforce the agreement against the 3rd defendant.
13) The defendants 1 and 2 declared that the plaintiff shall be the nominee, assignee or transferree of the rights of the vendors under the decree dated 21.12.1977 in C.S.No. 185/1975.
14) The stamp duty and other charges to get the sale deed from the 3rd defendant have to be borne by the defendants 1 and 2 and the said charges and duty with respect to the sale in favour of the plaintiff have to be borne by the plaintiff.
11. From the above terms, it is clear that the defendants 1 and 2 have an obligation to get the sale deed from the 3rd defendant with respect to the 'B' Schedule property on or before 31.1.1980 and convey the 'A' and 'B' schedule properties to the plaintiff simultaneously in the same sale deed after receiving the balance amount after giving credit to the advance amount of Rs.15,000/-and the amount paid to the 3rd defendant as consideration to purchase 'B' schedule property, from the agreed consideration of Rs.34,97,500/-. These facts are specifically admitted by the plaintiff as P.W.1 in the cross-examination.
12. Though in the agreement it was proceeded as if the value had been fixed at Rs.25,75,391.00, the same is to be finalised yet. Unless the said amount is fixed by the Court finally, defendants 1 and 2 cannot get the conveyance from the 3rd defendant. Though certain clauses in the agreement create an obligation on the part of the 3rd defendant, the same cannot be enforced against her as she is not a party to the agreement. Though 3rd defendant has been impleaded as a party to the suit, no relief can be given to the plaintiff/appellant against the 3rd defendant, even as an assignee of the decree in C.S.No. 185/1975, dated 21.12.1977,as the amount payable to the 3rd defendant has not been finally fixed so as to enable defendants 1 and 2 to enforce their right to purchase 'B' Schedule property as per the decree and as per the agreement, defendants 1 and 2 alone should get the sale deed from the 3rd defendant relating to 'B' schedule property.
13. It is represented by the counsel for the 3rd defendant /appellant that though the learned Judge had fixed the sale consideration for 'B' schedule property at Rs.30,000,00.00, she did not accept the same and she is not willing to execute the sale deed for the said consideration. So, defendants 1 and 2 are also not in a position to get the sale deed from her with respect to 'B' Schedule property.
14. The learned Judge while considering the issue No. 6, exercised his discretion and declined to grant the relief of specific performance in favour of the plaintiff. The reason for such a conclusion is that the suit in C.S.No. 185/1975 did not reach the finality by fixing the value of the superstructure etc., namely, 'B' Schedule property, and the plaintiff has not taken prompt steps to implead himself in C.S.No. 185/75,so as to enable him to bring the said proceedings to finality, though he has a right to take such a step as an assignee of defendants 1 and 2 as per the agreement. It is also found that though the agreement was entered into, on 4.7.79, the plaintiff had slept over for more than 12 years and he filed an application to implead him as a party only in February 1993. Though the said application was dismissed on 17.11.93. No steps had been taken to list the petition and the Appeal was filed on 28.3.94 with the delay of 29 days, the said delay was condoned, only on 4.7.2002, and the said Appeal has been numbered as O.S.A.No. 266/2002. Since the plaintiff has not properly taken care of his interest, with reference to the decree in C.S.185/75, the learned Judge found that on account of his inaction, the suit in C.S.185/75 has not reached the finality fixing the market value of 'B' schedule property and the same is only on account of laches on the part of the plaintiff and thereby defendants 1 and 2 are not in a position to execute the sale deed as per the agreement. The learned Judge also has taken into consideration of the rise in price of the 'A' schedule property, which is 22 grounds situate in prime locality of the city.
15. Learned Senior Counsel appearing for the appellant has submitted that the learned Judge is not correct in relying on the subsequent rise in the price. According to him, when the learned Judge was able to agree with the appellant that Ex.P1 agreement is a concluded contract and it has not become impossible and frustrated on account of the conditions mentioned in the agreement and so the learned Judge would have decreed the suit for specific performance and not for compensation, though it is sought for as an alternative prayer. Learned counsel relying on Sec.20 of the Specific Relief Act 1963 has submitted that the discretion cannot be exercised merely on the basis of inadequacy of consideration or on sympathy.
16. It cannot be denied that the plaintiff has not taken diligent steps though right was given under the agreement to bring the other suit in C.S.185/75 to finality. The Apex Court while considering the laches on the part of the plaintiff in performing the contract, in the judgment in K.S.Va1dyanadam v. Vairavan, , disagreeing with the principles laid down in the judgment in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar, , holding that mere price in rise is no ground for denying specific performance, held as follows:-
"With great respect, we are unable to agree if the said decision is undestood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality - and the reality is constant and continuous rise in the values of urban properties - fuelled by large-scale migration of people from rural areas to urban centres and by inflation. Take this very case. The plaintiff had agreed to pay the balance consideration, purchase the stamp papers and ask for the execution of sale deed and delivery of possession within six months. He did nothing of the sort. The agreement expressly provides that if the plaintiff fails in performing his part of the contract, the defendants are entitled to forfeit the earnest money of Rs.5000 and that if the defendants fail to perform their part of the contract, they are liable to pay double the said amount. Except paying the small amount of Rs.5000 (as against the total consideration of Rs.60,000/- the plaintiff did nothing until he issued the suit notice 2-1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable property - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. The learned counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance."
17. Similarly, in the judgment in Kanshi Ram v. Om Prakash Jawal and others, , the Apex Court held that though the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance, to grant a decree for specific performance of a contract of immovable property is not automatic and it is one of discretion to be exercised on sound principles. So the learned Judge is correct in the case on hand in taking into consideration the rise in prices, pending proceedings and also the laches on the part of the plaintiff to bring the other suit to finality, while exercising his discretion, in dealing with the suit for specific performance.
18. Though, ordinary Rule is that specific performance should be granted on equitable consideration of the facts of the case, the Court can exercise its discretion even to deny the relief for specific performance and to grant the relief for damages. In this case, the plaintiff has sought for such a relief also. Though it is well settled that such a discretion shall not be exercised in an arbitrary and unreasonable manner, discretion can be exercised if it is established that under the terms of contract, the plaintiff gets an unfair advantage over the defendants, and if the defendants would be put to undue hardship which they did not foresee at the time of the execution of the agreement. Even if the Court is not able to come to the conclusion that if it is inequitable to grant specific relief, then the Court would desist from granting a decree for specific performance in favour of the plaintiff. The above said issue is supported by the judgment in A.C. Arulappan v. Ahalya Naik, .
19. Though the learned Senior Counsel appearing for the appellants has submitted that the plaintiff is ready to pay reasonable sale consideration, taking into consideration the increase in price and also the delay occurred in this case, this Court is not in a position to accept such a plea in view of the fact that the decree for specific performance cannot be granted as directly in accordance with the agreement and also as sought for by the plaintiff, in view of the fact that the suit in C.S.No. 185/1975 has not reached finality.
20. While construing the scope of Sec.20 of the Specific Relief Act, the Division Bench of the Karnataka High Court in the judgment in Ranganayakamma vs. Govinda Narayan, , has held as follows:-
"It is thus clear from the above decision that the illustrations given under sub-sections (23) and (3) of Section 20 of the Specific Relief Act, in which a Court could refuse specific performance are not exhaustive and there may be a broad band of different cases in which also the Court may deny relief to the plaintiff. The relief may vary with the circumstances of individual cases judged by the familiar legal standard of the reasonable man. The Legislature in the first place has given the discretion to Courts and secondly, it was emphasised that the discretion is required to be exercised on sound and reasonable basis guided by judicial principles. Thirdly, it was provided that the decision should be capable of correction by a Court of appeal. The latter two aspects are always implied and need not be stated when the power is conferred upon Courts. The purpose of restating these principles, as we understand, was to discourage a tendency to subject a case to "legal strait-jackets", and to ensure that Judges are not led into the trap of legalism on the validity of the agreement. Judges are not led into the trap of legalism on the validity of the agreement. Judges cannot approach the matter with a mind sentimental to the rights of the parties, but must take into account the relative hardships in granting or refusing the relief prayed for."
21. Even in the present case, materials are available to show that defendants 1 and 2 approached the plaintiff for money for immediate necessity to discharge the debts, the agreement has been entered into for a sum of Rs.34,97,000/-, which amount was fixed as if the value of 'B' schedule property was only Rs.25,75,391.00. Both the parties have not realised the fact that the amount towards 'B' schedule property was not finally fixed, but the total consideration was fixed only on the basis of the said amount. Defendants 1 and 2 did not foresee that the 3rd defendant may claim more amount, even more than the total consideration fixed in the agreement. As a matter of fact, though the Court has fixed Rs.30,00,000/- as the value of 'B' schedule property, the 3rd defendant is not agreeing for the same. 'A' schedule property is 22 grounds in the prime locality of Chennai city. Though the inadequacy of price is not a ground to be considered, the above said fact clearly establishes that defendants 1 and 2 entered into the agreement without realising the consequences of the terms of the agreement. So, the learned Judge has taken into consideration the hardship on the part of defendants 1 and 2 in this regard to deny the exercise of discretion in favour of the plaintiff.
22. Moreover, as rightly found by the learned Judge, as per the agreement, defendants 1 and 2 have to convey 'A' and 'B' schedule properties simultaneously under the same sale deed. The said obligation can be performed only if defendants 1 and 2 are able to get the conveyance from the 3rd defendant with respect to 'B' schedule property. On the date of the suit filed by the plaintiff for specific performance of the agreement, the amount payable to 3rd defendant with respect to 'B' schedule property has not been finalised. Though he got a right of assignment under the agreement with respect to right of defendants 1 and 2 on the basis of the decree in C.S.185/1975, he did not take any prompt steps to prosecute the said suit, to get a finality. So the agreement without getting any sale deed from 3rd defendant cannot be enforced, as defendants 1 and 2 has to execute the single sale deed with respect to both properties, namely, 'A' and 'B' schedule properties.
23. The learned Judge of this Court in Jinnah, N.K. v. K.P. Krishnan, 1994-1-L.W. 192, while dealing with the case where the 1st defendant therein agreed to perform his part of the contract by executing a sale deed within one month from taking possession of the property through court in court proceedings, have held as follows:-
"10. it is well known that specific performance is a discretionary remedy, S. 20 of the Specific Relief Act also provides that the Court is not bound to grant specific relief "merely because it is lawful to do so". Specific performance by Gareth Jones & Willams Goodhart, Chapter I, 1986 Edition also points out "specific performance is a decree of the court which compels the defendant personally to do what he promised to do." . Again in Halsbury's Laws of England, in paragraph 401, p 275 4th Edition, Vol.44 it is stated zs follows:
"The remedy by specific performance is a equitable relief, given by the Court to enforce against a defendant, the duty of doing what he agreed by contract to do.
These two passages have also been relied on in Namazi, N.B. v. Central Chinmaya Mission Trust (100 L.W. 582) (D.B._. Here, in the present case, the 1st defendant agreed to perform his part of the contract, viz., execution of the sale deed within one month from taking possession of the suit property through Court in the above referred Court proceedings. But, admittedly, he has not taken possession so far. So, in such a situation, I do not think that he could be compelled to specifically perform the contract under Ex.A1 since as per the very recital in Ex.A1 time for performing the contract has not come yet. No doubt, it is argued that the 1st defendant deliberately allowed the final decree petition to be dismissed and he should not be allowed to take advantage of the said dismissal in view of his own default. If that is so, the plaintiffs could claim damages from the 1st defendant and I do not think that the discretionary remedy of specific performance could be given in the present case in the above said situation in favour of the plaintiffs."
24. The Apex Court in the decision in Sardar Singh v. Krishna Devi & another, , while construing the scope of Sec.20 of the Specific Relief Act, 1963, has held as follows:-
"14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
25. The Full Bench of our High Court in Gopirathanam, P. v. Ferrodous Estate (Pvt.) Ltd., , while dealing with the enforcement of agreement in the light of the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, has held that when a transaction can be completed only after obtaining exemption or permission from another authority over which Court has no control, the relief of specific performance usually is not granted. This finding was given on the basis that such a decree is given, the decree becomes waste even if ultimately such exemption is refused.
26. The Division Bench of this Court in the recent judgment in Bhagwandas Fatechand Daswani v. H.P.A. International, 2001 (3) CTC 86, after elaborately discussing and referring to a number of judgments has observed as follows:-.
"23. The foundation for a decree for specific performance is a subsisting legally enforceable contract. Absent such a contract, there can be no decree for specific performance for part or whole. The plaintiffs suit when instituted was maintainable. The contract that was relied upon was legal and enforceable on its terms. The condition requiring the vendor to obtain sanction of the Court for the sale of reversionary interest was a condition subject to which a decree for specific performance could have been made. Such a decree would have directed the vendor to apply to the Court, for sanction, and if sanction was forthcoming, then execute the sale deed. In the event of sanction not being accorded compensation if justified would be the only remedy that would have been available to the plaintiff. That such is the legal position is evident from the decision of the Apex Court in the case of Mrs. Chandnee Widya Vati v. Dr. C. KI. Kattal, ."
... ... ... ...
43. The suit agreement being an integrated whole was one and indivisible incapable of being split into an agreement for sale of life interest and another for the sale of reversionary interest. What perished was the whole of the contract and not only a part. What was contemplated by the parties to the agreement was the sale of "entire interest" in the property provided sanction was given, and in the event of sanction not being given the agreement stood cancelled as a whole leaving each of the parties to arrange their affairs as they thought fit wholly unhampered by anything contained in the agreement. The agreement contemplated the sale of all interests in the property if sanction was forthcoming, and no sale of any part of the property in case sanction was not given. The bargain was for all or nothing. It was not open to the court to make a new contract for the parties after the contract in it's entirety had perished."
The said Division Bench has held that the plaintiff is not entitled to a decree for specific performance of the suit agreement whether in whole or in part.
The above said decision would clearly support the case of the respondents that the 1st appellant/plaintiff cannot sustain the suit for specific performance not only on the ground of laches on his part and thereby creating hardship to defendants/respondents, but also due to the fact that defendants 1 and 2 are not in a position to get the sale deed with respect to the 'B' schedule property from the 3rd defendant so as to enable them to execute the sale deed as per the agreement in favour of the plaintiff. Hence the learned Judge is correct in not granting a decree for specific performance of the agreement Ex.P1.
27. With respect to the claim for compensation as an alternative relief, learned Senior Counsel appearing for the appellants has submitted that though the 1st appellant/plaintiff sought for a sum of Rs.20,00,000/- as compensation, the learned Judge without any basis awarded only Rs.1,00,000/- and also directed to return the advance amount paid to respondents 1 and 2. It is relevant to mention here that the 1st appellant/plaintiff had parted with only a sum of Rs.15,000/- as advance amount though the sale consideration was fixed at Rs.34,97,500/-. As rightly found by the learned Judge, no material is available to establish that he sustained damages so as to enable him to get more compensation. Learned Senior Counsel appearing for the appellants has also not pointed out any material to enhance the compensation, over and above the amount awarded by the learned Judge.
28. For the foregoing reasons, we do not find any merits in this Appeal and this Appeal is liable to be dismissed. Accordingly, this O.S.A.No. 62/1994 is dismissed. No costs.