Kochukunjan Pillai vs Sathiadhas

R.S. Ramanathan, J.—Heard both sides

The defendant in O.S. No. 12 of 2006, on the file of the District Court, Nagercoil, is the revision petitioner herein.

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 Rs. 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/-.

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.

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 Prem Raj Vs. D.L.F. Housing and Construction Pvt. Ltd. and Another, and Jawahar

Lal Wadhwa and Another Vs. Haripada Chakroberty, wherein the Honourable Supreme affirmed the judgment reported in K.S. Sundaramayyar

Vs. K. Jagadeesan and Another, 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.

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.

I have given my anxious consideration to the submission made by both parties.

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 v. 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 Anr. v. Deivanaiammal and Ors. 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 Viswanathan Vs.

Ramakrishna 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 Babu Lal Vs.

Hazari Lal Kishori Lal and Others, , in the case of Babu Lan v. Hazari Lan Kishori Lan, to the same effect.

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 Babu Lal Vs. Hazari Lal

Kishori Lal and Others, , in the case of Babu Lal v. Hazari Lan Kishori Lan and the judgment of this Court reported in 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.

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 Jawahar Lal Wadhwa

and Another Vs. Haripada Chakroberty, , 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.

As a matter of fact, the Honourable Supreme Court in the judgment reported in Prem Raj Vs. D.L.F. Housing and Construction Pvt. Ltd. and

Another, , 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 Section 37 of the Specific Relief Act (Act No. 1 of 1877) (now Section 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.

Further, the Honourable Supreme Court affirmed the judgment of our Honourable High Court reported in K.S. Sundaramayyar Vs. K.

Jagadeesan and Another, . 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)

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 Jawahar Lal Wadhwa and Another Vs. Haripada Chakroberty, , the

plaintiff is not entitled to amend his plaint.

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 Jawahar Lal

Wadhwa and Another Vs. Haripada Chakroberty, , the amendment cannot be allowed.

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.