Madras High Court
K. Manickam vs R. Palanisamy on 29 October, 1993
Equivalent citations: (1994)1MLJ198
ORDER Ratnam, J.
1. The defendant in O.S. No. 54 of 1986, Subordinate Judge's Court, Erode, is the petitioner in the civil revision petition as well as the appellant in the civil miscellaneous appeal, directed against the order in I.A. No. 232 of 1992 in A.S. No. 193 of 1990, Additional District Judge's Court, Erode and in A.S. No. 193 of 1990, respectively. For the sake of convenience, the reference to the parties, in the course of this judgment, shall be according to their array in the suit. Briefly stated, the circumstances giving rise to these proceedings are as follows:
On 7.4.1980, a house bearing door No. 259, Periyar Nagar, Erode Town, was allotted to the defendant by the Tamil Nadu Housing Board, under a lease-cum-sale agreement on an initial deposit of Rs. 5,900 and the defendant agreed to pay the balance in monthly instalments, besides the service charges to the housing board. The defendant entered into an agreement of sale on 1.2.1983 with the plaintiff, whereunder it was agreed to execute a registered sale deed in favour of the plaintiff for Rs. 58,000, after receiving a sum of Rs. 15,000 as advance, towards part payment of the sale price and agreeing further, to pay the future instalments and service charges to the Housing Board and to execute a sale deed after receiving the balance of sale consideration in a sum of Rs. 43,000. In part performance of the agreement, the plaintiff was put in possession of the house and at the request of the defendant, the plaintiff paid a sum of Rs. 1,835.50 to the Housing Board through the defendant, who handed over the receipt for the payment and agreed to adjust that amount also towards the balance of sale consideration of Rs. 43,000. The plaintiff thus claimed to have paid Rs. 16,835.50 towards part of the sale price of Rs. 58,000. Since, according to the plaintiff, the defendant had been delaying to clear the balance amount due to the Housing Board, the plaintiff issued a notice on 23.4.1985 expressing his readiness and willingness to pay the balance of the sale price and take a registered sale deed. But, this, according to the plaintiff, did not evoke any response. Subsequently, enquiries were made by the plaintiff at the Tamil Nadu Housing Board and it was learnt that the defendant had not paid the balance of the sale price and the value of the land payable was pending adjudication and under those circumstances, the defendant, according to the plaintiff, was unable to execute a registered sale deed in favour of the plaintiff, which led to the cancellation of the agreement by the plaintiff by means of a registered notice dated 28.1.1986, whereunder, a demand for the refund of Rs. 16,835.50 was also made Which, however, was not paid by the defendant. In O.S. No. 54 of 1986 instituted by the plaintiff, he prayed for the recovery of the sum of Rs. 16,835.50 from the defendant together with interest and costs.
2. In the written statement filed by the defendant, while accepting the allotment of the house bearing door No. 259, by the Tamil Nadu Housing Board, on 7.4.1980 arid the entering into an agreement for the sale of the house to the plaintiff on 1.2.1983 and the receipt of a sum of Rs. 15,000 by way of advance and the handing over of possession of the property to the plaintiff in part performance of the agreement, he denied the payment of Rs. 1,835.50 by the plaintiff and stated that the plaintiff did not make any payment at all to the Housing Board on behalf of the defendant. Claiming that he had been paying the monthly instalments, the defendant questioned the readiness and willingness of the plaintiff to perform his part of the contract and stated that the plaintiff never tendered the balance of sale consideration and called for the execution of the sale deed and that was owing to non-availability of requisite funds with the plaintiff. In addition it was also stated that the land value awaited adjudication by court and the plaintiff has necessarily to wait till the dispute was settled and the plaintiff cannot unilaterallly rescind the agreement and seek to recover, the advance. The suit was also characterized as premature. Referring to the occupation of the house by the plaintiff, the defendant stated that the house was capable of fetching a monthly rental of not less than Rs. 450 and he had thus sustained a loss at that rate per month from 1.2.1983 and that he is entitled to deduct that amount in case he is called upon to refund the advance. Ultimately, the defendant prayed for the dismissal of the suit.
3. The learned Subordinate Judge, Erode, who tried the suit, on a consideration of the oral as well as the documentary evidence, found that the plaintiff is not entitled to recover any amount from the defendant and ultimately dismissed the suit. Aggrieved by this, the plaintiff preferred A.S. No. 193 of 1990 before the Additional District Judge's Court, Erode. In I.A. No. 232 of 1992 in A.S. No. 193 of 1990, the plaintiff prayed for an amendment of the plaint to include two paragraphs with reference to his readiness and willingness to perform his part of the contract and the ability of the defendant to execute the sale deed justifying the inclusion of the relief of specific performance as well as the cancellation of the agreement made was on an erroneous appreciation of the state of affairs. In the prayer portion of the plaint also, the plaintiff wanted the introduction of the relief for specific performance ordering the defendant to execute and register the sale deed. This application was resisted by the defendant on the ground that the plaintiff in the notice issued by him on 28.1.1986 had voluntarily cancelled or rescinded the agreement of sale and demanded the amount of advance paid and had also instituted the suit for the return of the advance amount with interest and under those circumstances, the plaintiff cannot be permitted to make a volte face, to introduce a new case that he had always been ready and willing to perform his part of the contract and that the cancellation of the agreement was erroneous. In addition, it was also the case of the defendant that the plaintiff cannot be permitted to introduce a new set of pleas diametrically opposed to the stand earlier taken by him and that if the amendment is permitted, that would alter the character of the suit. An additional plea was also raised that the relief of specific performance prayed for, would also be barred by limitation.
4. The learned Additional District Judge, Erode, placing reliance upon an unreported judgment of this Court in M. Karuppiah v. A. Chinnaswami Gounder C.R.P. Nos. 3877 and 4316 of 1981, dated 5.10.1982, allowed the amendment of the plaint as prayed for by the plaintiff. Consequently, he allowed A.S. No. 193 of 1990 and remitted the suit for fresh disposal. The correctness of the orders allowing the amendment of the plaint and remanding the suit, is questioned in the civil revision and the appeal respectively.
5. Learned Counsel for the defendant strenuously contended that though the plaintiff had in the notice dated 23.4.1985, purported to demand specific performance of the agreement of sale stating that he was ready and willing to perform his part of the obligations under the agreement, yet, by another notice dated 28.1.1986, the plaintiff had cancelled the agreement dated 1.2.1983 and had demanded only the return of the advance amount together with other amounts claimed to have been paid by him and under those circumstances, the plaintiff must be held to his option exercised by him and cannot now be permitted to introduce an amendment claiming the relief of specific performance. Strong reliance in support of this contention was placed on the decision reported in Sundaramayyar v. Jagadeesan , Prem Raj v. D.L.F. Housing and Construction (P.) Ltd. , Ayissabi v. Gopala Konar and Roop Chand Chaudhari v. Ranjit Kumari . On the other hand, learned Counsel for the plaintiff contended that under identical circumstances in M. Karuppiah v. A. Chinnaswami Gounder C.R.P. Nos. 3877 and 4316 of 1981, dated 5.10.1982, this Court had upheld the allowing of such an amendment and that would govern this case as well, rendering it unnecessary to interfere with the orders passed by the court below.
6. From paragraph 6 of the plaint as originally filed, it is seen that on 23.4.1985, the plaintiff had sent a notice to the defendant expressing his readiness and willingness to pay the balance of the sale price and also to take a registered sale deed. This would indicate that at the time when the notice was issued, the plaintiff was keen on obtaining the relief of specific performance of the agreement dated 1.2.1983, though there was no reply to that notice from the defendant. However, in paragraph 7 of the plaint, it had been stated that owing to the non-payment of the balance of the sale price and the increased land value payable by the defendant, which was also pending decision, the defendant had rendered himself unable to execute a registered sale deed and plaintiff cancelled the agreement by his notice dated 28.1.1986, and demanded refund of Rs. 16,835.50, which the defendant failed to pay. From the stand so taken, it is evident that at the time when the notice dated 28.1.1986 was issued, the plaintiff had abandoned the idea of securing the specific performance of the agreement dated 1.2.1983 and was content to get back the amount paid by him by way of advance. Otherwise, the cancellation of the agreement by the notice dated 28.1.1986 and the demand for the refund of the advance amount by the plaintiff, could not have been so made by the plaintiff. What transpires from the stand of the plaintiff in the notices dated 23.4.1985 and 28.1.1986 and also the plaint is, though on 23.4.1985, the plaintiff might have entertained a desire-to have the agreement dated 1.2.1983 specifically enforced, the idea of securing that relief had been given up by him by the unilateral cancellation of the agreement by notice dated 28.1.1986 and demanding a refund of the amount of advance said to have been paid. It is thus seen that though the plaintiff was aware of the reliefs which he could secure under the agreement dated 1.2.1983, he deliberately opted to cancel the agreement putting an end to the obligations on his part and also on the part of the defendant and had sought recovery of the advance amount paid. This would undoubtedly amount to an election on the part of the plaintiff so as to preclude him from making a volte face and asking for the inclusion of the relief of specific performance, earlier abandoned. It is in this connection, the decision in Sundaramayyar v. Jagadeesan , is relevant. In that case, it had been pointed out that where a party to the contract of sale made a claim for damages, on the footing of the breach by the other party, it would amount to definite election on his part to treat the contract as at an end and thereafter no suit for specific performance can be maintained by him, for, by such election, he had disabled himself from making the averment that he has always been ready and willing to perform his part of the contract. Similar is the situation in this case, where the plaintiff was fully aware of the reliefs available to him owing to the alleged non-performance of the obligations by the defendant under the terms of the agreement dated 1.2.1983, but, he had chosen in the first instance to secure the relief of specific performance in the first notice dated 23.4.1985, though in the second notice dated 28.1.1986, he had cancelled the agreement and had demanded only the refund of the advance amount and some other amount. This would amount to an election on the part of the plaintiff treating the agreement as cancelled and seeking to recover only the advance amount paid thereby disabling himself from claiming the relief of specific performance.
7. In Prem Raj v. D.L.F. Housing and Construction (P.) Ltd. , the question arose whether a plaintiff suing for a declaration that a certain contract is void and inoperative, having been obtained by undue influence, can, in the same suit, in the alternative, ask for the relief of specific performance of the same contract. While holding that it would not be open to the plaintiff to do so, the Supreme Court, referring to Section 37 of the Specific Relief Act, 1877, corresponding to Section 29 of the Specific Relief Act, 1963, pointed out that it is not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance and such omission is deliberate, so that no such alternative prayer would be available to the plaintiff. In this case, there was no need whatever for the plaintiff to have resorted to the relief of rescission as, in the second notice dated 28.1.1986, the plaintiff had unequivocally cancelled the agreement dated 1.2.1983 and thereafter, he could not have prayed for the relief of specific performance, as the very agreement on which that would have been available to the plaintiff, stood cancelled by his own act. In Ayissabi v. Gopala Konar , it was laid down that where the plaintiff had once repudiated the contract and elected to sue for damages, he cannot thereafter claim specific performance of that contract. This decision also would support the case of the defendant that the plaintiff cannot, at this stage, be permitted to include the relief of specific performance earlier abandoned by him. In Roop Chand Chaudhari v. Ranjit Kumari , it was held that once a suit for return of the earnest money/advance is filed, the plaintiff disentitles himself to the alternative relief of specific performance, even if claimed in that suit and he cannot be allowed to amend his plaint later and this is primarily on the basis that a claim for return of earnest money is based on repudiation of the contract and when once the contract is repudiated, the relief for specific performance would not be available either as an alternative relief or even by way of an amendment to the plaint. It is thus seen that on the facts and circumstances of this case, the plaintiff had clearly and categorically elected to treat the agreement dated 1.2.1983 as at an end resulting in the discharge of both the parties from the obligations thereunder and thereafter, it is not open to the plaintiff to seek by way of an amendment, the relief of specific performance.
8. It would also be relevant to notice that Section 22 of the Specific Relief Act, 1963, provides that a person suing for the specific performance of a contract, may, in appropriate cases, ask for any other relief, including refund of any earnest money under Section 22(1)(b) and for the purpose of obtaining such relief, he must specifically ask for it and if it had not been so asked, the court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint notwithstanding anything to the contra contained in the Code of Civil Procedure. From this also, it follows that in a suit for specific performance of the contract only, the relief of refund of earnest money or deposit could be asked for and in this case, the relief asked for initially was not for specific performance, but for refund of the advance amount and in such a case, there is no question of the applicability of Section 22(1)(b) of the Specific Relief Act, 1963, also.
9. There is yet another aspect which requires to be noticed. At the time when the plaintiff issued the notice dated 23.4.1985, he was fully aware of his right under the agreement of sale dated 1.2.1983, as otherwise, he would not have called upon the defendant to perform his part of the obligations under the agreement, while expressing his readiness and willingness to perform the obligations cast on him thereunder. In other words, at the time when the notice dated 23.4.1985 was issued, the plaintiff was fully aware of his right to seek the relief of specific performance. Even after being aware of his right to seek such a relief, the plaintiff did not do so. This would mean that the plaint had not chosen to mention in the original plaint, the reliefs which were available to him on facts and within his knowledge, and in such an event, to permit an amendment, would result in a new case being made on facts, which were available, but were not put forward. In Gopalakrishnamurthi v. Sreedhara Rao , it had been pointed out that facts available to the plaintiff, which he had not chosen to mention, could not be permitted to be brought in by an amendment, and in so holding, reliance was placed upon the decision of the Privy Council in Ma Shwa Mya v. Mauna 481 I.A. 214, to the effect that a new case cannot be permitted to be made out on facts, which were available, but not put forward. This principle also would be applicable on the facts and circumstances of this case, inasmuch as the plaintiff was not only fully aware of the facts, but was also aware of the reliefs which he could have prayed and which, indeed, were prayed for1 in the first notice dated 23.4.1985.
10. That leaves for consideration, the unreported Judgment in M. Karuppiah v. A. Chinnaswami Gounder C.R.P. Nos. 3877 and 4316 of 1981, dated 5.10.1982, referred to earlier, on which considerable reliance was placed by learned Counsel for the plaintiff. On a careful perusal of the judgement, it is seen that in the course of the suit, which was pending after a remit order, an amendment was prayed for to delete the relief for specific performance and the amendment was allowed. It does not appear from the Judgment that there was any election of relief as in this case. Further, the decision in Sundaramayyar v. Jagadeesan , has also not been properly appreciated in that, it had been stated that the question how far the plaintiff would be entitled to seek specific performance, after having asked for a refund of the advance, is a matter that has to be gone into in the trial of the suit. When the very question is whether he should be permitted to go for trial on a case seeking the relief of specific performance, it appears that that cannot be gone into in the course of the trial of the suit, but should be dealt with and decided even at the stage of considering the amendment. Further, when the plaintiff in his case had elected to cancel the agreement dated 1.2.1983 by the notice dated 28.1.1986, it is difficult to conceive of the agreement being kept alive or intact, for the purpose of enabling the plaintiff to include by way of an amendment, the relief of specific performance. For the aforesaid reasons, the decision in M. Karuppiah v. A. Chinnaswami Gounder C.R.P. Nos. 3877 and 4316 of 1981, dated 5.10.1982, cannot be pressed into service by learned Counsel for the plaintiff.
11. Thus, on a due consideration of the facts and circumstances of the case and also the relevant decisions, the orders of the court below allowing the amendment of the plaint and also remitting the suit for fresh disposal cannot be sustained. The civil revision petition and the appeal are, therefore, allowed and I.A. No. 232 of 1992 in A.S. No. 193 of 1990 shall stand dismissed and the remit order in A.S. No. 193 of 1990, is set aside. The learned Additional District Judge, Erode, is directed to dispose of A.S. No. 193 of 1990 on merits. No costs.